Gilbert Aguilar v. Jeanne Woodford

Filing

FILED OPINION (HARRY PREGERSON, WILLIAM A. FLETCHER and MARK W. BENNETT) REVERSED AND REMANDED. Judge: WAF Authoring, FILED AND ENTERED JUDGMENT. [8720426]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GILBERT R. AGUILAR,
Petitioner-Appellant,

No. 09-55575

v.

D.C. No.
2:06-cv-00554DOC-MAN

JEANNE S. WOODFORD, Director,
California Department of
Corrections,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
October 9, 2012—Pasadena, California
Filed July 29, 2013
Before: Harry Pregerson and William A. Fletcher,
Circuit Judges, and Mark W. Bennett, District Judge.*
Opinion by Judge W. Fletcher

*

The Honorable Mark W. Bennett, District Judge for the Northern
District of Iowa, sitting by designation.

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SUMMARY**

Habeas Corpus
The panel reversed the district court’s denial of a 28
U.S.C. § 2254 habeas corpus petition due to a violation of
Brady v. Maryland, 373 U.S. 83 (1963).
The only question at petitioner Aguilar’s murder trial was
the identity of the shooter. The prosecution introduced
evidence that a police dog named Reilly had alerted to a
“scent pad,” showing that Aguilar’s scent was present on the
front passenger seat of the car from which the shooter
appeared. The panel held that the prosecution’s failure to
disclose Reilly’s history of making mistaken scent
identifications—even though it had stipulated as much in a
previous trial, resulting in the exclusion of evidence in that
case—violated Brady, and that the California Court of
Appeal’s decision to the contrary was an unreasonable
application of Brady.

COUNSEL
Neil Jacob Rosenbaum (argued), Rosenbaum & Associates,
San Francisco, California, for Petitioner-Appellant.
Elaine Tumonis (argued), Office of the California Attorney
General, Los Angeles, California, for Respondent-Appellee.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
W. FLETCHER, Circuit Judge:
Gilbert Aguilar was convicted of first-degree murder after
a jury trial in Los Angeles County Superior Court. A young
Hispanic man got out of a white Volkswagen Beetle and shot
John Guerrero while Guerrero’s car was stopped at a
stoplight. The only question at trial was the identity of the
shooter. Aguilar’s defense was that another young Hispanic
man, Richard Osuna, had shot Guerrero.
The prosecution introduced evidence that a police dog
named Reilly had alerted to a “scent pad,” showing that
Aguilar’s scent was present on the front passenger seat of the
white Volkswagen. The prosecution did not disclose to the
defense that Reilly had a history of making mistaken scent
identifications, even though it had stipulated to Reilly’s
mistaken identifications in a different trial several months
earlier. Following the stipulation, that court had excluded
evidence of Reilly’s scent identification from the earlier trial.
Reilly’s scent identification was the only evidence that
tied Aguilar to the white Volkswagen. Putting the scent
identification to one side, the evidence against Aguilar was
weak. No clear motive for Aguilar to shoot Guerrero was
ever suggested at trial. No physical evidence tied Aguilar to
the crime. The faces of Aguilar and Osuna are very similar,
but Aguilar is older and, at the time of the shooting, was
significantly taller. A number of eyewitnesses identified
Aguilar as the shooter at trial. Several of those witnesses had
earlier given a quite different physical description to police –
one that matched Osuna in age and height rather than Aguilar.

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At trial, these witnesses changed their description to match
Aguilar.
The evidence suggesting that Osuna was the killer was
substantial. Osuna’s brother was shot several days before
Guerrero was shot. Two witnesses testified that Osuna
jumped into a white Volkswagen Beetle to pursue Guerrero’s
car as it drove past. One of them testified that Osuna did so
in the belief that the “fools” in the car had shot his brother.
That same witness testified that Osuna told her a short time
later that he had shot a “fool.” Even so, Osuna was never
investigated as a suspect in this case. Indeed, the prosecutor
in this case expressly told the police not to pursue an
investigation of Osuna.
This case comes to us on a petition for habeas corpus
under 28 U.S.C. § 2254.
Aguilar argues that the
prosecution’s failure to disclose Reilly’s history of mistaken
scent identifications violated Brady v. Maryland, 373 U.S. 83
(1963), and that the California Court of Appeal’s decision to
the contrary was an unreasonable application of Brady. We
agree.
I. Standard of Review
We review de novo a district court’s decision to grant or
deny a habeas petition under 28 U.S.C. § 2254. Campbell v.
Rice, 408 F.3d 1166, 1169 (9th Cir. 2005) (en banc). To
prevail in a habeas petition filed after the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) was
enacted, a petitioner must show that the state court’s
adjudication of a claim:

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(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
This is a “highly deferential standard,” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal
quotation marks omitted). The “contrary to” clause in
§ 2254(d)(1) applies where the state court adopts “a rule that
contradicts the governing law set forth in Supreme Court
cases” or “confronts a set of facts materially indistinguishable
from those at issue in a decision of the Supreme Court and,
nevertheless, arrives at a result different from its precedent.”
Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004) (citing
Lockyer v. Andrade, 538 U.S. 63, 73 (2003)). The
“unreasonable application” clause applies where “the state
court’s application of clearly established law” is “objectively
unreasonable.” Lockyer, 538 U.S. at 75. Under either clause
of § 2254(d)(1), the law must be clearly established. There
must be a “Supreme Court decision that ‘squarely addresses
the issue’ in the case before the state court” or one that
“establishes an applicable general principle that ‘clearly
extends’ to the case before us.” Moses v. Payne, 555 F.3d
742, 760 (9th Cir. 2009) (quoting Wright v. Van Patten,
552 U.S. 120, 123, 125 (2008)). Additionally, the
constitutional error must have “had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht

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v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks omitted).
II. Background
On July 25, 2001, John Guerrero was driving his red
Mitsubishi westbound on Amar Road in La Puente,
California, with four friends as passengers. The group was
looking for somewhere to eat dinner. Guerrero was not
affiliated with a gang. Guerrero drove past several Hispanic
males dressed in white baggy shirts, standing near a
“primered” white Volkwagen Beetle. Omar Soltero, one of
Guerrero’s passengers, testified that Guerrero told the other
passengers that he could see the Hispanic males running
toward them in his rearview mirror. Guerrero and Soltero
thought that the individuals might be trying to attract the
attention of the occupants of Guerrero’s car.
Trying to avoid any confrontation, Guerrero kept driving
down Amar Road. Guerrero and his friends then decided to
go to a restaurant in the opposite direction. Guerrero made a
U-turn and drove eastbound, again passing the Hispanic
males standing along Amar Road. The males yelled as
Guerrero drove past. Victor Carillo, another passenger in
Guerrero’s car, testified that they were “throwing up their
hands” as Guerrero’s car drove by the second time. Carillo
believed that the males were “throwing up a neighborhood”
– in other words, indicating their neighborhood gang
affiliation.
Guerrero drove several more blocks and stopped at the
front of a left turn lane at the corner of Amar Road and
Hacienda Boulevard, waiting for a red light to change so he
could turn northbound onto Hacienda Boulevard. There was

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a KFC restaurant on the southwest corner of the intersection.
There was a gas station at the northwest corner.
A young Hispanic male wearing a dark baseball cap and
a white t-shirt got out of a white Volkswagen Beetle in the
KFC parking lot. He went into the street and approached
Guerrero’s car. The male reached into the open passenger
side front window with a semi-automatic handgun and shot
Guerrero seven times, killing him. The other occupants of the
car ducked down and were unhurt. The shooter walked
rapidly back to the white Volkswagen, and the car drove
away.
Based on descriptions by Desiree Hoefer, Victor Jara, and
Laura Jara – all eyewitnesses to the shooting – a police artist
made a sketch of the suspect from the neck up. The sketch
was made about a month after the murder. A probation
officer who knew Aguilar thought the drawing looked like
him. Police then put a photograph of Aguilar from the neck
up in a photo “six-pack” and showed it to Hoefer and the
Jaras. There was no photograph of Richard Osuna in the sixpack. All three picked Aguilar’s photograph out of the sixpack. Victor Jara made a positive identification. Hoefer and
Laura Jara said that the man depicted in the photograph
looked similar to the killer, but neither was sure that this was
the killer.
A. Evidence Pointing To Richard Osuna
Aguilar’s defense at trial was that Richard Osuna, a young
Hispanic male, also known as “Gangster”, was the shooter.
Aguilar and Osuna were both members of the Puente Street
Gang. Osuna’s younger brother Raymond had been shot, but
not killed, by unknown perpetrators the week before Guerrero

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was killed. At the time of Guerrero’s shooting, Aguilar was
twenty years old, between 5’11” and 6’0” tall, and weighed
160 pounds. Osuna was sixteen years old and between 5’5”
and 5’7” tall.
The sketch of the suspect, as well as booking photographs
of Aguilar and of Richard Osuna, were put into evidence at
trial. (Osuna’s booking photograph was taken at the time of
his arrest for a different offense a year after the Guerrero
murder.) The photographs of Aguilar and Osuna are
remarkably similar. The sketch somewhat resembles both
Aguilar and Osuna. We include the sketch and the
photographs as appendices to this opinion.
At the time of the murder, Aguilar lived with his
girlfriend and mother of his child, Mary Saiz, in an apartment
on Amar Road. Saiz and Alfred DeAnda, a friend of Aguilar,
each testified that they saw Osuna jump into a white or gray
Volkswagen Beetle to chase after a red car. DeAnda testified
that he was walking down Amar Road on his way to the store
when he encountered “Gangster” (Osuna) and five or six
other people outside the Amar Road apartment. DeAnda
testified that he then saw Gangster hop into a white or gray
Volkswagen while Aguilar and Saiz remained behind.
DeAnda heard about the shooting the following day. He
testified that the “word on the street” was that Gangster had
shot Guerrero.
Saiz testified that on the day of the shooting, she, Aguilar,
Osuna, and several others were gathered at the apartment she
and Aguilar shared in order to celebrate Saiz’s baby shower.
At the time, Saiz knew Osuna only as “Gangster”. The group
saw a red car drive by the apartment. Osuna appeared to
recognize the car and got “real antsy” after it drove by. Saiz

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testified that Osuna said, “There go those vatos that shot my
brother, fool. Fuck that. I’m going to go get those fools.”
She testified that Osuna then got into a white Volkswagen
Beetle driven by Rico Ballesteros and drove away. Saiz
testified that Aguilar left the apartment complex to go to
another friend’s house shortly after Osuna drove away. After
the shooting Osuna returned to the apartment where Saiz and
Aguilar were living and rushed into the bathroom to take a
shower. Saiz testified that Osuna said, “I just shot a fool. . . .
I got to get the gunpowder off of me.” After showering,
Osuna changed into Aguilar’s clothes and left the apartment.
Neither DeAnda’s nor Saiz’s testimony was entirely
consistent with their prior statements. However, two jail
conversations between Aguilar and Saiz recorded without
their knowledge support the testimony DeAnda and Saiz gave
at trial. The jury heard both conversations. In the first
conversation, Aguilar declared, “I can’t believe I’m in jail for
something I didn’t do.” In response, Saiz announced that she
had “a plan already done” to find out “Richard’s” last name.
Saiz’s plan was to go “by the pad like during the day time or
whatever, and steal like a piece of mail.” She hoped the piece
of mail would tell her Richard’s last name. Saiz then planned
to phone the house from which she stole the mail “and make
sure that that’s his last name” by pretending that she was
calling from Richard’s school. Saiz also planned to “check
in the records at Queen of the Valley” because Richard’s
“brother was there the day before. . . . [W]hat reason why
wouldn’t he want to shoot, know what I mean?” Osuna’s
brother Raymond was treated at Queen of the Valley Medical
Center beginning on approximately July 21, 2001. Raymond
was discharged from that hospital on July 24 – the day before
Guerrero was murdered. Saiz expressed reservations to
Aguilar about approaching Osuna directly “because I . . .

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have to think about the baby and us too, you know, when you
do get out.”
At trial, Saiz explained that during this conversation, she
knew Richard Osuna only by his first name. She devised her
“plan” to find out Osuna’s last name so she could disclose it
to a police investigator. Saiz also explained that she
eventually “chicken[ed] out” and did not follow through with
the plan. She later found out Osuna’s last name through
Aguilar, who had learned the name from fellow inmates.
In the second recorded jail conversation, Saiz told Aguilar
that she had obtained a document containing the names and
addresses of eyewitnesses in the case. Saiz asked Aguilar
whether she should “[s]how people” the report. He told her
that “there’s no reason to show ’em” because “the[y’]re
gonna go do something and get me in trouble” when “I ain’t
even done.” Saiz then asked Aguilar if he wanted her “to
rat,” and he told her, “Not right now.” Saiz responded, “I will
Gilbert ’cause I’m not a south sider and look at me Gilbert
I’m . . . falling apart[.]” Saiz also stated that she was “ready
to rat,” because if Aguilar ratted himself he would “get killed
in there.” She did not want to wait until “it’ll be to[o] late for
anyone to do anything.” She stated she was “gonna tell them
the fuckin’ whole truth.”
Saiz then told Aguilar, “This reward, like I said it’s 50/50,
if you get a lawyer you’ll beat it. If you don’t get a lawyer
you’ll have a small chance maybe, know what I mean?
Rico’s ass is already, they already he did, he was involved,
but th – he’s still out here[.]” Aguilar responded that “[t]hat
other fool[] stays in Hacienda Heights,” and said he wanted
to talk to the “fool.” At the time, Richard Osuna lived in
Hacienda Heights.

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At trial, Saiz explained that by Rico, she was referring to
Rico Ballesteros, the driver of the white Volkswagen. She
understood the “other fool” to refer to Richard Osuna. Saiz
also explained that she hesitated to bring Osuna’s name to the
police because she feared doing so might put the safety of her
family at risk. Saiz explained that “if you tell in court like I
am right now or speak of things that you shouldn’t be telling
others that other people are doing, . . . you get killed or
someone comes after you and your family.” Saiz explained
that Aguilar did not himself tell the truth because he was
likely to be killed in prison if he was perceived as a “rat.”
Saiz testified that at first she tried to resolve the situation
without “ratting” Osuna out. Once Saiz identified Osuna by
name, she and several friends approached him to ask for
money to help her “retain a lawyer or [support] the baby.”
She testified that “[w]e went over there because he did do the
killing, so therefore I felt like he was responsible for me
going through all this situation that I’m going through, and
Gilbert [Aguilar] also.” Osuna gave Saiz his phone number,
but when she tried to call it, the number had been
disconnected. Saiz testified that she eventually got “fed up”
with Osuna’s unresponsiveness and decided to tell the truth.
She thought she would not be killed because she is not a
“south sider” – meaning she did not belong to any gang.
Even so, Saiz received threats after she agreed to testify.
The police collected the jail recordings of the
conversations between Saiz and Aguilar. In addition, defense
counsel and a court-appointed private investigator each
brought information about Richard Osuna to Detective
Richard Ramirez, the lead police investigator for the Guerrero
murder, a few months before trial. Nevertheless, the police
never investigated Richard Osuna as a suspect in Guerrero’s

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murder. Indeed, the prosecutor trying Aguilar’s case
specifically told Ramirez “not to follow up” on the Osuna
lead because he believed it would be “a wild goose chase.”
The prosecutor told the jury at trial that he “instructed
Detective Ramirez not to follow up on that lead” because it
was “immoral” and “illegal” to do so without more evidence.
B. Evidence Against Aguilar At Trial
At trial, the prosecution introduced three types of
evidence to support its case that Aguilar, rather than Osuna,
was the killer: physical evidence, eyewitness testimony, and
testimony about Reilly’s dog scent identification.
1. Physical Evidence
The prosecution had little physical evidence connecting
Aguilar to the crime. On August 9, a police patrol stopped a
white Volkswagen Beetle that fit the description of the car
from the murder. The police discovered that the vehicle was
stolen and impounded it. The police recovered fingerprints
from the passenger side of the white Volkswagen. Aguilar’s
prints did not match the recovered fingerprints. The police
never tested the fingerprints to see if they matched Richard
Osuna.
A forensic scientist testified that all of the bullets fired at
Guerrero had been discharged from a single firearm. The
police never found that firearm. The police did find a live .25
caliber bullet while searching a bedroom at the Amar Road
apartment in which Aguilar kept some of his things. Another
person was then living in that room. The bullets used in
Guerrero’s murder were also .25 caliber, but they were not
the same brand as the bullet found in Aguilar’s home. The

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live bullet found in the bedroom had been “cycled through”
a weapon, but a forensic scientist’s efforts to determine
whether the bullet had passed through the murder weapon
were inconclusive.
2. Eyewitness Testimony
Because there was limited physical evidence, the
prosecution relied heavily on eyewitness testimony from
seven witnesses. None of the eyewitnesses personally knew
Gilbert Aguilar. No eyewitness had been shown a picture of
Richard Osuna.
The first witness, Omar Soltero, was a passenger in
Guerrero’s car sitting directly behind Guerrero. He ducked
down as soon as the gunman approached the passenger side
window. During the police investigation, Soltero reported
that the gunman was approximately 5’9” tall and about 18–20
years old. At trial, Soltero testified that the gunman was
taller than Soltero’s 5’3” height. He also admitted that he
only got a “momentary glimpse” of the shooter, that he never
saw the shooter’s face, and that he did not believe he could
give an accurate description of the shooter outside of the fact
that the shooter was male. Soltero never identified Aguilar at
any point during the proceedings.
The second witness, Victor Carillo, was also in
Guerrero’s car. He was sitting in the middle of the back seat,
to the right of Soltero. There is no evidence in the record as
to how Carillo initially described the suspect to police
investigators. At trial, Carillo estimated that the gunman was
“probably about” 5’9” or 5’10”, and that the gunman was
wearing a white t-shirt and black cap. Carillo admitted that,
like Soltero, he could not identify the suspect.

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The third witness, Desiree Hoefer, was at the drivethrough line at the KFC restaurant when a white Volkswagen
Beetle pulled into the restaurant parking lot. Through her
rearview mirror, Hoefer watched a Hispanic male get out of
the white Volkswagen and walk out of sight. She saw that
the male was carrying a gun and feared that she was about to
be carjacked. After hearing gunshots, Hoefer decided to
leave the KFC. She nearly hit the same male with her car as
the male returned to the KFC parking lot. She looked at his
face for less than a second.
Hoefer is 5’0”. She told the police shortly after the
murder that the perpetrator was a Hispanic male around 5’4”,
15 to 17 years old, and wearing a baseball cap. A month after
the incident, Hoefer told a police sketch artist that the
gunman was 5’2” or 5’3” and that he was 16 to 20 years old.
Hoefer also described the perpetrator as having a small
mouth. After some hesitation, Hoefer identified Aguilar in a
six-person photo lineup. The lineup Hoefer viewed did not
include a photograph of Osuna. At the time of the lineup,
Hoefer said that Aguilar’s photograph “looked close” to the
suspect, but that she thought Aguilar’s “comple[x]ion was
lighter” than the murderer’s complexion. She also thought
that the perpetrator was younger than Aguilar. Hoefer said
she was not “a hundred percent” sure she had the right
person.
At trial, Hoefer identified Aguilar as the person she had
picked out of the lineup. Hoefer testified that she believed
she had described the perpetrator as 5’8” or 5’10” to the
police, though she had actually described him to the police as
between 5’2” and 5’4.” Hoefer also stated in court that she
continued to believe that the shooter “might have been a little
shorter” than Aguilar. The prosecution suggested to Hoefer

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that the crouching position of the shooter might have led her
to underestimate the shooter’s height, and Hoefer agreed.
The fourth witness, Victor Jara, was the driver of a car on
Amar Road about four cars back from the intersection and
one lane closer to the curb than Guerrero’s car. He was
stopped at the same traffic light as Guerrero when he heard
gunshots. Victor Jara took note of the shooter’s face as he
jogged away from Guerrero’s car. He saw the shooter for
between two and four seconds.
Victor Jara reported to the police and to the police sketch
artist that the suspect was a clean-shaven Hispanic male
between 15 and 17 years old with distinctive eyebrows. After
speaking with Victor Jara and two other eyewitnesses (Laura
Jara and Kevin Feeney) during the initial investigation,
Deputy Sheriff Blackmer described the suspect as 5’5” and
130 pounds. Detective Ramirez, the lead case investigator,
believed that it was Victor Jara who told Deputy Blackmer
that the suspect was 5’5”. Victor Jara later told the police
sketch artist that the suspect was about 5’6”.
Victor Jara identified Aguilar’s photo from the same
photo lineup of six persons presented to Hoefer. That lineup
did not include a photograph of Osuna. At trial, Victor Jara
expressed “absolute certain[ty]” that Aguilar was the shooter.
He also testified at trial that the perpetrator may have been
“taller” than the 5’6” defense counsel.
The fifth witness, Laura Jara, was in the passenger seat of
the car driven by her husband Victor. She heard gunshots and
looked ahead toward Guerrero’s car. Laura saw a male
wearing a baseball cap running away from the vehicle.
During the initial investigation, Laura Jara described the

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gunman to the police as a juvenile, 15 to 17 years old. She
could not recall whether she had given a height estimate to
the police. However, Deputy Sheriff Blackmer described the
suspect as 5’5” and 130 pounds after speaking to Laura Jara.
Laura identified Aguilar in a six-person photo lineup on the
same date as her husband, but was not certain she had
identified the perpetrator. She said it “looks like him a lot.”
At trial, Laura Jara stated that the person she saw looked
very young and had dark, distinctive eyebrows. Laura Jara
also testified that she thought the perpetrator was a “little
taller” than the 5’6” defense counsel. Laura Jara did not
identify Aguilar as the shooter in court, but she did identify
him as the person she had thought “looked like” the shooter
in the photo lineup. She also stated that she believed Aguilar
had distinctive eyebrows like the perpetrator.
The sixth witness, Kevin Feeney, was putting gas in his
car at the station on Amar Road across from the KFC.
Feeney saw Guerrero slumped in his vehicle, and then
observed an individual running away from the scene. He was
approximately 40 yards from the individual he saw running.
Deputy Sheriff Blackmer described the suspect as 5’5” and
130 pounds after speaking to Feeney and the Jaras during the
police investigation. At trial Feeney testified that the shooter
was “tall and slender.” Feeney never identified Aguilar at
any point during the proceedings.
Finally, the seventh eyewitness, Rene Valles, was the
driver of a car facing eastbound on Amar Road, stopped in
the far righthand lane a few cars back from the intersection.
Valles heard gunshots. He then saw a Hispanic male run in
front of his car and into the KFC parking lot. Valles told the
police the suspect was 16 to 21 years old and wearing a white

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t-shirt and baseball cap. He also stated that he was focused
on the gun and saw the suspect’s face for “just a second.”
Valles “really wasn’t sure” of the suspect’s height during the
police investigation. The police showed Valles a lineup
including a picture of Aguilar. Valles was unable to make an
identification.
At trial, Valles identified Aguilar as the shooter. This was
the first time he had ever identified Aguilar. Valles testified
that he had not identified Aguilar previously because he could
not see Aguilar’s profile view in the photo lineup. Also for
the first time at trial, Valles estimated the perpetrator’s height
as 5’9” or 5’10”.
To counter the eyewitness testimony, the defense used an
expert witness on eyewitness identification. The expert
testified that the sooner after an incident an eyewitness
describes a suspect, the more accurate that description is
likely to be. Further, he testified that “people overestimate
the height” of individuals carrying guns, such that “the actual
person” being sought “might be shorter than the height
estimates.”
Two things are apparent from the foregoing. First, the
eyewitnesses’ height, weight, and age estimates during the
police investigation more closely resemble Richard Osuna
(no more than 5’7” and 16 years old) than Aguilar (no less
than 5’11” and 20 years old) at the time of the murder.
Desiree Hoefer estimated the suspect to be no taller than 5’4”.
Victor Jara estimated him to be 5’5” or 5’6”. After speaking
to the Jaras and Kevin Feeney, Deputy Sheriff Blackmer
described the suspect as 5’5”. Only Omar Soltero stated to
investigators that the shooter was taller, and even he
estimated the shooter to be several inches shorter than

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Aguilar. According to expert testimony, the witnesses would
have been expected to overestimate, not underestimate, the
height of a man carrying a gun. The eyewitnesses’ weight
and age estimates are also more similar to Osuna than to
Aguilar. Deputy Sheriff Blackmer reported, after speaking to
the eyewitnesses, that the suspect was 130 pounds. That is 20
pounds lighter than Aguilar’s reported weight. Additionally,
Hoefer and the Jaras estimated the perpetrator to be
substantially younger than Aguilar.
Second, several of the eyewitnesses changed their
testimony at trial from the statements they had given during
the police investigation. At least two witnesses (Hoefer and
Victor Jara) increased their height estimates, one (Valles)
testified to a height estimate when he had not made one
before, and two others (Laura Jara and Feeney) testified that
the perpetrator was tall when they had given no such opinion
before. Hoefer, Laura Jara, and Valles also expressed greater
certainty in their identification at trial than they had during
the investigation. Valles identified Aguilar for the first time
at trial, though he had not previously been able to identify
Aguilar from a photo lineup.
3. Dog Scent Identification
To supplement the physical evidence and eyewitness
testimony, the prosecution put on evidence that a trained
scent dog, Reilly, had identified Aguilar’s scent on the white
Volkswagen. Shortly after Aguilar was arrested, Officer Joe
D’Allura used Reilly to perform a scent comparison test
between Aguilar’s scent and the scent found in the white
Volkswagen. Scent comparison tests are based on the idea
that every person has a unique scent, and that dogs can
identify particular scents as belonging to particular objects

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and persons. A scent transfer unit extracted scent from
Aguilar’s clothes and from the impounded vehicle. The
extracted scents were then placed in sterile gauze “scent
pads.”
Reilly was first given a sample of Aguilar’s scent. Reilly
then was led to a lineup of four scent pads, one of which had
been collected from the passenger side of the impounded
Volkswagen. He was trained to bark if he perceived a match
between the sample scent and any of the scent pads. Reilly
barked at the third scent pad, signaling a match between the
scent pad from the Volkswagen and the scent from Aguilar’s
clothes. While there were four scent pads in the line-up,
Reilly only reached the third scent pad before he signaled a
match. Reilly did not signal a match on the spent casings
from the bullets fired at Guerrero.
The scent test occurred on September 4, 2001, over a
month after the murder and several weeks after the car was
impounded. Aguilar’s scent was taken from Aguilar’s street
clothes when he was arrested, and the scent test occurred that
same day. It is not clear from the record when the scent was
collected from the impounded Volkswagen. On cross
examination, Officer D’Allura stated that the scent in the
impounded vehicle would have had to have been present
“within the last week” in order for it to be “picked up.” On
redirect, D’Allura changed his testimony. He stated that
“[t]he scent would still be in there as long as [the car]’s not
being used by other people and things.”
During the remainder of the trial, the prosecution used
Reilly’s scent evidence to support the eyewitnesses’ claim
that Aguilar was “in fact, the shooter.” The prosecutor asked
Mary Saiz to explain the presence of Aguilar’s scent in the

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Volkswagen. Saiz responded that perhaps it was her scent the
dog identified. She testified that she sometimes wore
Aguilar’s clothes and had ridden in Ballesteros’s car. The
prosecutor also emphasized the dog scent evidence on crossexamination of the defense’s court-appointed investigator,
suggesting that Reilly’s scent match made the case
“miraculously strong.” The prosecutor raised the scent
evidence yet again while cross-examining the defense’s
expert on eyewitness testimony.
The main theme of the prosecutor’s closing summation
was that the defense could not “explain why Gilbert Aguilar’s
scent was in the same particular vehicle that was responsible
for following the victims to the murder location.” The
prosecutor discounted the defense’s claim that Osuna and
Aguilar looked similar, referring to them disparagingly as
“twins.” He then used the scent evidence to cast doubt on the
defense’s theory of the case. “[T]hese two twins not only
look alike, but they smell alike. So we not only have a lookalike guy, we have a smell-alike guy as well – that being
Richard Osuna and Gilbert Aguilar.” More particularly, if
“Mr. Osuna is, in fact, the shooter in this case,” the jury
“would be accepting an incredible coincidence that Mr.
Aguilar’s scent was in the passenger side of that
Volkswagen.” Further, it would also be “accepting another
incredible coincidence”:
That the actual shooter, Richard Osuna, the
person responsible for this crime — his scent
just so happened to have evaporated from that
scent because of what Mary did. Wearing
clothing on some prior occasion before the
murder even occurred. So how that scent

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managed to overtake Richard Osuna’s scent
on July 25th remains a mystery.
The prosecution argued that its theory of the case did not
require the jury to accept such incredible coincidences, not
least because “[w]e have the scent for Mr. Aguilar in the seat
in which the gunman arose.” The prosecutor concluded: “[I]f
you do acquit Mr. Aguilar, [remember] what version of the
facts you’re really accepting. You’re accepting all the
coincidences that his identical twin and smell-alike person is
the one who [is] really responsible. You’re accepting all the
incredible coincidences that Gilbert Aguilar just so happened
to be everywhere at the time his twin committed this
particular offense.”
At the conclusion of the trial, the jury received an
instruction on the dog scent evidence stating that “[e]vidence
of dog tracking has been received for the purpose of showing
. . . that the defendant is a perpetrator of the crime of
murder.” The jury was also instructed to “consider the
training, proficiency, experience, and proven ability, if any,
of the dog” in determining the weight given to the dog scent
evidence.
C. Jury Deliberation and Verdict
After a six-day trial, the jury began deliberating on
October 21, 2002. It deliberated for four days. While
deliberating, the jurors asked for a reading of the testimony
of Desiree Hoefer, Kevin Feeney, and Rene Valles, as well as
Victor Jara’s description of the suspect. The jurors also
requested a response from the judge to the following
question: “Is the fact that the D.A.’s office did not pursue the
‘Richard Osuna’ lead considered evidence? Is it something

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we should deliberate about?” The court responded, “The
state of mind of the investigator or the prosecutor, except as
it relates to a bias, intent or other motive to fabricate
evidence, is not relevant to the guilt or innocence of the
[defendant].”
During the third day of deliberations, Juror No. 2
approached the court about a conversation he had overheard
during a break in the trial. He had seen several eyewitnesses,
including Victor Jara, Desiree Hoefer, and Rene Valles,
apparently talking about the case. The court dismissed Juror
No. 2 because the juror could not “evaluate the testimony of
those three witnesses just based on what he heard in court.”
Aguilar’s counsel argued for a mistrial, pointing out that
the witness testimony on height and age had changed
substantially from the police investigation. He argued that
Juror No. 2’s report suggested that the witnesses may have
“cooked their testimony,” and that a jury could not make a
“reasonable” or “accurate determination” about Aguilar’s
guilt without that information. The court denied Aguilar’s
motion; it found that Aguilar’s counsel had already
sufficiently cross-examined the eyewitnesses about the
discrepancies in their testimony.
Juror No. 2 was dismissed no earlier than 9:18 am on
October 24. With the alternate seated, the reconstituted jury
rendered a verdict by 11:23 am that same day. The jury
convicted Aguilar on both counts, and he was sentenced to 50
years to life in prison.

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D. Brady Evidence
Unbeknownst to defense counsel at the time of trial, the
prosecution had stipulated in another case only a few months
earlier that Reilly, the scent dog, had made mistaken
identifications on two prior occasions. In People v. White,
No. BA 212658 (L.A. Cty. Super. Ct. Mar. 19, 2002), the
prosecution sought to introduce testimony from Officer Joe
D’Allura about a scent identification made by Reilly
implicating White. The prosecution stipulated that in
November 1997 Reilly had identified two different men as
the source of scent on the murder suspect’s shirt, and that in
a 2001 case, People v. Bruner, No. BA 216390 (L.A. Cty.
Super. Ct.), Reilly had identified as the perpetrator of a crime
an individual who was in prison at the time the crime was
committed. After an evidentiary hearing on dog scent
lineups, the White court ruled that the dog scent procedures
Officer D’Allura used with Reilly “were so flawed” that the
judge would “not allow the dog scent lineup in.”
After the White case concluded, the Los Angeles County
Public Defender wrote a letter to the Los Angeles District
Attorney, Steven Cooley, dated March 20, 2002. The County
Public Defender detailed the facts in White, and stated:
I bring this to your attention because I
believe that this information constitutes Brady
discovery and I believe that at a minimum this
information should be disclosed to every
defense attorney who represents or has
represented an individual in a case in which
Mr. D’Allura will or has presented evidence
regarding his dog Reilly’s ability to detect
scents.

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In addition, I request that you order an
investigation into all the cases in which Reilly
has participated in scent lineups.

By the time the prosecution introduced the dog scent
evidence in Aguilar’s case, Reilly no longer worked as a
scent dog.
The Los Angeles District Attorney’s office prosecuted
Aguilar’s case six months after the White case concluded. At
Aguilar’s trial, the prosecutor trying the case did not disclose
to the defense the earlier mistaken identifications, the
stipulation in the White case, or the letter to District Attorney
Cooley from the County Public Defender. Aguilar’s trial
counsel moved to strike the dog scent evidence for
foundation, but not for relevance or admissibility. Counsel
has since declared that he would have objected to the
evidence’s admissibility had he been aware of Reilly’s history
of mistaken identifications, of the White stipulation, or of the
letter to Cooley.
E. Appeal and Collateral Attack
Aguilar’s appellate counsel first discovered the
exculpatory evidence about Reilly. Aguilar argued to the
California Court of Appeal that “the trial court deprived [him]
of due process when it denied his motion for a new trial based
on evidence revealed by a juror during deliberations.”
Aguilar also filed a habeas petition in the Court of Appeal
arguing that (1) the prosecution had violated Brady v.
Maryland by failing to disclose the exculpatory evidence –
that Reilly had a history of misidentification, and (2) his
counsel was ineffective for failing to challenge the
admissibility of the dog scent evidence.

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The California Court of Appeal affirmed Aguilar’s
conviction and denied his habeas petition in a single
disposition. The court determined that the failure to grant
Aguilar’s motion for a new trial did not violate his rights.
Further, the court found no ineffective assistance of counsel
or Brady violation. It noted that the “[u]se of dog-scent
evidence in this case was of questionable probity,” and
concluded that the evidence was immaterial because, had the
jury been given such information, “it is not reasonably
probable that . . . the result would have been different.”
Aguilar petitioned for review in the California Supreme
Court, but his petition was denied without comment. The
California Court of Appeal decision is the last reasoned statecourt decision. See Ylst v. Nunnemaker, 501 U.S. 797, 805
(1991).
Aguilar petitioned for habeas corpus in federal district
court in 2006 on all three issues. The magistrate judge
hearing the case recommended that the petition be denied.
The district court adopted the magistrate judge’s
recommendation without comment. It dismissed the action
with prejudice and denied Aguilar a certificate of
appealability. Aguilar appealed to this court, and we granted
a certificate of appealability.
Aguilar argues on appeal that the state court unreasonably
applied clearly established Supreme Court law in two ways.
First, he argues that the state court unreasonably determined
that the prosecutor’s failure to disclose evidence of Reilly’s
misidentifications was immaterial under Brady v. Maryland.
Second, he argues that the state court unreasonably
determined that Aguilar’s inability to put on Juror No. 2 as a
witness at his trial did not violate his right to present a

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complete defense. We agree with Aguilar’s Brady argument.
We do not reach his second argument.
III. Brady
The State concedes that Brady is “clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). Thus, the question
before us is whether the state court reasonably applied Brady
to the facts in Aguilar’s case. A Brady claim has three
components. There must be (1) evidence that is exculpatory
or impeaching (2) that is suppressed by the state and (3)
resulting prejudice. Strickler v. Greene, 527 U.S. 263,
281–82 (1999).
1. Exculpatory or Impeaching Evidence
There is no doubt that Reilly’s history of making
erroneous scent identifications is exculpatory evidence.
“[I]mpeachment, as well as exculpatory, evidence falls within
Brady’s definition of evidence favorable to the accused.”
United States v. Marashi, 913 F.2d 724, 732 (9th Cir. 1990)
(internal quotation marks omitted). “Any evidence that
would tend to call the government’s case into doubt is
favorable for Brady purposes.” Milke v. Ryan, 711 F.3d 998,
1012 (9th Cir. 2013). The evidence not disclosed by the
prosecution showed that Reilly had a record of mistaken scent
identifications. Because Reilly’s identification tied Aguilar
to the white Volkswagen, the undisclosed evidence is
unquestionably “favorable for Brady purposes.” Id.

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2. Suppression
Aguilar also demonstrated that the prosecution had
knowledge of this exculpatory evidence. Aguilar attached to
his state-court habeas petition the reporter’s transcript in
White, No. BA 212658 (L.A. Cty. Super. Ct.), the case in
which the Los Angeles District Attorney’s office stipulated to
Reilly’s mistaken scent identifications, and in which the trial
judge excluded evidence about Reilly. Aguilar also attached
the letter from the Los Angeles County Public Defender to
the Los Angeles District Attorney, Steven Cooley, dated six
months prior to Aguilar’s trial and specifically stating that, in
his view, the record of Reilly’s misidentifications was Brady
material.
The State argued to the California Court of Appeal in this
case that knowledge of the Brady evidence could not be
imputed to the trial prosecutor. For good reason, the State
has not made that argument to us. The individual prosecutor
at Aguilar’s trial may or may not have possessed Brady
information. Joe D’Allura, who testified in Aguilar’s case,
was Reilly’s handler in the White case. D’Allura stated at
trial, in response to questioning by the trial prosecutor, that he
knew about Reilly’s performance in prior gang-related
homicides. If the prosecutor in Aguilar’s case was unaware
of Reilly’s prior performance, either he was hasty in
preparing his witness or D’Allura deliberately concealed from
him Reilly’s prior record of misidentifications.
But even if the trial attorney did not himself possess the
exculpatory evidence, knowledge of that evidence is imputed
to him under Brady. First, each “individual prosecutor has a
duty to learn of any favorable evidence known to the others
acting on the government’s behalf” and to disclose it to the

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other side. Kyles v. Whitley, 514 U.S. 419, 437 (1995). This
includes evidence held by other prosecutors. The Public
Defender’s letter, which put the State on notice that the prior
Reilly cases were Brady evidence, was addressed specifically
to District Attorney Steven Cooley. The prosecutor in
Aguilar’s case was employed by District Attorney Cooley.
Knowledge of the Brady evidence therefore is imputed both
to Cooley and, by extension, to prosecutors working in his
office.
Second, it is clearly established that “Brady suppression
occurs when the government fails to turn over even evidence
that is known only to police investigators and not to the
prosecutor.” Youngblood v. West Virginia, 547 U.S. 867,
869–70 (2006) (per curiam) (quoting Kyles, 514 U.S. at 438);
see also United States v. Blanco, 392 F.3d 382, 393-94 (9th
Cir. 2004) (“Exculpatory evidence cannot be kept out of the
hands of the defense just because the prosecutor does not
have it, where an investigating agency does.” (internal
quotation marks omitted)). Here, even if the prosecutor’s
office had not had the Brady material, Reilly’s handler Joe
D’Allura, a “scenting K-9 handler with the Los Angeles
County Sheriff’s Department,” clearly did. D’Allura’s
testimony about the reliability of Reilly’s scent identifications
addressed precisely what had been at issue in White, and
D’Allura has admitted he had knowledge of previous trials
involving Reilly’s misidentifications. Finally, even if
D’Allura himself had not been aware of Reilly’s
misidentifications, it is enough that other members of the
Sheriff’s Department were aware of them.

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3. Prejudice
The state court based its decision on the third prong of
Brady, concluding that Aguilar was not prejudiced by the
failure of the prosecution to disclose Reilly’s record of
misidentifications. “To determine whether prejudice exists,
we look to the materiality of the suppressed evidence.”
Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir. 2008).
Brady evidence is material if “the favorable evidence could
reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.” Kyles v.
Whitley, 514 U.S. at 435. Aguilar does not need to prove that
a different result would have occurred in his case. He needs
to show only that the state court unreasonably decided that
there was not “a reasonable probability of a different result.”
Id. at 434 (internal quotation marks omitted).
If the Brady evidence had been presented to the Aguilar
court, it is virtually certain that the trial judge would have
ruled as did the trial judge in White by excluding the evidence
of Reilly’s scent identification.
In at least two
contemporaneous California state court trials, defense
attorneys successfully challenged the admissibility of dog
scent lineups. See White, No. BA 212658; People v. Rhoney,
No. 94HF0957 (Orange Cty. Super. Ct. 1998) (dog scent
evidence excluded because it was more prejudicial than
probative). One of those cases, White, was before the same
court, with the same District Attorney’s office, and involved
the same dog. Further, shortly after Aguilar’s trial, the
California Court of Appeal found that “evidence of Reilly’s
scent identification was admitted in error” in a different
criminal proceeding because it was not adequately supported
by scientific evidence. People v. Mitchell, 110 Cal. App. 4th
772, 790–94 (2003); see also People v. Willis, 115 Cal. App.

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4th 379, 381 (2004) (finding in a case involving a different
dog that “the dog scent evidence was improperly admitted”).
The court in Aguilar’s case already seemed receptive to
excluding the dog scent evidence, even without knowledge of
the stipulation in the White case. At trial, Aguilar’s counsel
objected to that evidence on grounds of foundation, arguing
that the control scent pads were unidentified and may have
been prepared improperly. The court deferred ruling on the
objection but stated, “I am sure it is likely [the prosecution]
will be happy to strike the whole thing because [D’Allura]
was real honest. He had no idea where in the world the pads
came from . . . .” Aguilar’s attorney did not renew his
foundation objection. Given that the trial court was already
concerned about the admissibility of the dog scent evidence,
we are confident that it would have excluded that evidence if
the Brady material had been presented to it.
Even if D’Allura’s testimony about Reilly had been
admitted into evidence, at the very least a reasonable state
court would have concluded that the Brady evidence provided
powerful impeachment material. Despite being asked in jury
instructions to consider the “proven ability, if any, of the dog”
in determining the weight to give to the dog scent evidence,
the jurors in Aguilar’s case were presented no evidence about
the reliability of Reilly as a scent dog. Thus, they had no
reason to question the accuracy of Reilly’s identification of
Aguilar.
A reasonable state court would have concluded that there
was a reasonable probability that the jury would have reached
a different verdict if Reilly’s dog scent identification had not
been presented to the jury, or had been impeached by the
evidence of Reilly’s earlier misidentifications and the White

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court stipulations. The gunman’s identity was the only issue
in Aguilar’s case. Absent Reilly’s dog scent testimony, there
was no corroborating evidence for the shaky eyewitness
identifications. There was no forensic evidence, murder
weapon, or confession. The prosecution did not tie Guerrero
and Aguilar to each other in any way. The only motive given
for the killing was the unsubstantiated suggestion that
Guerrero had trespassed into the territory of Aguilar’s Puente
Street gang, and this theory was suspect given that Guerrero
was shot numerous times at close range while his passengers
– equally trespassing – were left unharmed.
The
prosecution’s own gang expert testified that the fact that only
Guerrero was shot indicates that he was the intended target,
undercutting the government’s theory that this was a gang
rivalry shooting. Richard Osuna, a suspect who had a motive
to commit a targeted shooting, and who more closely
resembled the eyewitness descriptions, had not been
investigated.
The state court misstated the nature of the eyewitness
testimony, making it appear stronger than it was. The Court
of Appeal wrote that “Kevin Feeney . . . told police the
shooter was ‘tall and slender,’” when in fact Feeney first
stated that the shooter was “tall and slender” at trial. The
eyewitness testimony at trial clearly gave the jury pause, even
when reinforced by the unimpeached dog scent evidence.
The jurors asked to rehear significant portions of the
eyewitness testimony during their deliberation. Given that
the identity of the killer was the only question in the case, “it
does not seem possible that the jury would have deliberated
. . . over several days if the jurors did not have serious
questions as to the credibility of the eyewitnesses.” Gibson
v. Clanon, 633 F.2d 851, 855 n.8 (9th Cir. 1980); see also
Rhoden v. Rowland, 172 F.3d 633, 637 (9th Cir. 1999)

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(deliberations of nine hours over three days suggests jurors
“did not find the case to be clear cut”). The dog scent
evidence provided the only corroboration that the
eyewitnesses had seen what they testified to at trial, rather
than what almost all of them had told the police immediately
after the shooting.
The prosecution emphasized the importance of the dog
scent identification throughout trial. The State now argues to
us that “the dog scent evidence in this case did not prove that
Petitoner was in the Volkswagen on the date of the murder”
because the scent would not last that long. But the State took
a very different position at trial. While defense counsel
argued that the dog scent evidence was not probative, the
prosecution consistently contended that the evidence
corroborated the testimony that Aguilar was “in fact, the
shooter.” In his closing argument, the prosecutor said that the
relevant question was whose scent was present “on July 25th”
(the date of the murder). The jury was told to use the dog
scent identification “for the purpose of showing . . . that the
defendant is a perpetrator of the crime of murder.” The State
cannot now argue with a straight face that the evidence upon
which it relied so heavily at trial was, in fact, not probative.
The strength of the unimpeached dog scent evidence at
trial also forced Aguilar’s counsel to make a strategic
concession in his closing argument that Aguilar had sat in the
white Volkswagen Beetle. Aguilar’s counsel during closing
arguments admitted that the scent evidence shows that
“[Aguilar] at some time sat in that car.” He stated, “I don’t
doubt that Gilbert sat in that white Volkswagen.” Had
Reilly’s dog scent evidence been excluded, or had counsel
been able to impeach it using the Brady evidence, counsel
would never have made this concession.

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In every case where a federal or California state court has
found dog tracking or scent identification Brady evidence to
be immaterial, the defendant was convicted on evidence
stronger than, and independent from, the dog scent
identification. In such cases, there was physical evidence to
support the conviction, see Epperly v. Booker, 997 F.2d 1, 10
(4th Cir. 1993) (bloodstained clothes with head hair
resembling Epperly’s hair), a known relationship between the
defendant and the victim, see Sherer v. Stewart, No.
06-1635-RSM-JPD, 2008 U.S. Dist. LEXIS 118661 at *3,
*57–59 (W.D. Wash. June 20, 2008) (history of violence
toward victim); Willis, 115 Cal. App. 4th at 387 (same), or
other evidence corroborating guilt, see Sherer v. Sinclair,
476 F. App’x 433, 433 (9th Cir. 2012) (mem.) (“[G]iven the
strength of the evidence against petitioner versus the relative
weakness of the dog tracking evidence, petitioner has not
demonstrated a reasonable probability that disclosure of the
allegedly suppressed dog tracking report would have
produced a different result.”); People v. Herrera, No.
B181092, 2006 Cal. App. Unpub. LEXIS 8638, at *8, *28
(Cal. Ct. App. Sept. 28, 2006) (mem.) (defendant testified and
admitted he lied); Mitchell, 110 Cal. App. 4th at 794
(admission to third party of guilt); People v. Rivera, No.
B166838, 2004 Cal. App. Unpub. LEXIS 10517, at *3–4, *20
(Cal. Ct. App. Nov. 17, 2004) (perpetrator chased and
arrested minutes after attack). In each of these cases, the
evidence to convict was sufficient even absent the dog scent
identification because the prosecution had independently
proven guilt beyond a reasonable doubt. Here, in contrast,
the only evidence in addition to Reilly’s scent identification
was shaky eyewitness testimony.

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Conclusion

Reilly’s scent evidence was the only evidence at trial
linking Aguilar to the getaway car, as well as the only
evidence corroborating strikingly weak eyewitness
identifications. We conclude that the prosecution’s failure to
disclose that Reilly had a history of mistaken identifications
violated Brady v. Maryland, and the California courts’
decision to the contrary was an unreasonable application of
Brady.
We grant Aguilar’s petition and reverse the district
court’s judgment on the Brady claim. We do not reach
Aguilar’s other argument. We direct that a conditional writ
of habeas corpus issue, requiring the State of California to
release Aguilar from custody unless it grants him a new trial
to commence within a reasonable period of time to be
determined by the district court.
REVERSED and REMANDED.

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Case: 09-55575

07/29/2013

ID: 8720426

DktEntry: 57-1

AGUILAR V. WOODFORD

APPENDICES

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ID: 8720426

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