Filed 8/27/24 P. v. Elwell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

AARON PAUL ELWELL,

Defendant and Appellant.

F087522

(Super. Ct. No. BF187437A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. J. Eric 

Bradshaw, Judge.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

* Before Levy, Acting P. J., Meehan, J. and DeSantos, J.
2.

-ooOooINTRODUCTION

In 2023, appellant and defendant Aaron Paul Elwell (appellant) pleaded no contest 

to assault with a semiautomatic firearm, and possession of methamphetamine while 

armed with a loaded and operable firearm, and admitted prior conviction allegations. He 

was sentenced to the second strike term of 25 years in prison. On appeal, appellate 

counsel filed a brief that summarized the facts with citations to the record, raised no 

issues, and asked this court to independently review the record. (People v. Wende (1979) 

25 Cal.3d 436.) Appellant filed a letter brief. We review his contentions and affirm the 

judgment.

FACTS1

At 7:40 p.m. on September 20, 2021, Bakersfield Police Officer Daniel Corona 

responded to the gas station on Brundage Lane on the report of a possible shooting. He 

spoke to Lewis Brewer, who reported that he heard one gunshot coming from the gas 

station. After the gunshot, Brewer saw “a vehicle traveling southbound on South H Street 

and an additional vehicle speeding away eastbound from the [gas station] parking lot and 

collide” into the first vehicle. Corona found one nine-millimeter spent casing near a gas 

pump. 

On September 22, 2021, Officer Steven Ronfeldt was on patrol on Texas Street, 

and saw a 2013 Volkswagen Jetta (Volkswagen). He observed an apparent bullet strike in 

the “A pillar” of the front passenger side, adjacent to the front windshield, that was 

consistent with a bullet hitting the outer frame. The bullet did not penetrate inside the 

Volkswagen, and there was no projectile in the Volkswagen frame. 

1 The following facts are from the November 22, 2021, preliminary hearing 

transcript, which the parties stipulated to as the factual basis for appellant’s pleas and 

admissions. The testifying witnesses were Officers Corona and Ronfeldt, and Detective 

Louis Rodriguez. 
3.

Appellant’s Arrest and Statement

At 9:00 a.m. on September 22, 2021, Rodriguez went to a residence on 

Sixth Street where appellant lived. Appellant walked out of the house and was arrested. 

Appellant was searched and did not possess any contraband. Rodriguez advised 

appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and 

appellant answered the questions. He was not under the influence. 

Rodriguez asked appellant what happened at the gas station at 7:40 p.m. on 

September 20, 2021. Rodriguez testified that appellant said, “a female friend by the 

name of Natalie had contacted him, asking him to retrieve her [Volkswagen]. [Appellant] 

told me Natalie informed him that she was with a male subject at a motel and she fell 

asleep inside one of the motel rooms. When she woke up, that male subject was gone 

along with her [Volkswagen]. [¶] [Appellant] said he agreed to locate her [Volkswagen] 

for her and believed it was hers because he had seen her in the past driving that

[Volkswagen].” Appellant said he located that Volkswagen, “at the [gas station] and there 

was a subject driving it.” The Volkswagen’s license plate was the same as the 

Volkswagen that Ronfeldt later observed. 

Appellant said when he saw the Volkswagen at the gas station, “he exited the 

vehicle he was in and started approaching [it] and yelling at the subject to get out so he 

can get the [Volkswagen] back. He said at that time the [Volkswagen] started driving 

away, so he discharged a firearm towards the [Volkswagen], however did not hit it.” 

Appellant said he fired one round and said, “he shot towards the [Volkswagen]; however, 

he did not hit the [Volkswagen].” 

Rodriguez asked appellant what would have happened if he hit the Volkswagen. 

Appellant replied that he made “a bad decision.” 
4.

Search of the Bedroom

A “couple days” after appellant was arrested, Rodriguez and other officers 

searched the residence on Sixth Street. In the northwest bedroom, they found mail in 

appellant’s name. In that same bedroom, there was a metal box on a dresser. The box 

contained a nine-millimeter Glock-style semiautomatic pistol, a 10-round magazine, a 

large baggie containing 5.5 ounces of a substance believed to be methamphetamine, and a 

digital scale. There were no pipes or narcotics paraphernalia in the house. The scale and 

amount of narcotics were consistent with possession for sale. Rodriguez examined the 

firearm and it was operable, and it was consistent with the type of weapon that fired the 

spent casing found at the gas station. 

Appellant’s Second Statement

Rodriguez interviewed appellant again after the search, and asked about the 

firearm and narcotics found in the bedroom. Appellant did not believe he found these 

items and asked to see them. Rodriguez showed him the evidence. Appellant then said 

“the firearm and the narcotics were his.” Rodriguez asked appellant if that was the same 

firearm he used when he fired at the Volkswagen at the gas station, and appellant said it 

was. 

PROCEDURAL BACKGROUND

On November 23, 2021, an information was filed in the Superior Court of Kern 

County charging appellant with the following offenses committed on or about 

September 20, 2021: count 1, assault with a semiautomatic firearm, a nine-millimeter

firearm, on John Doe (Pen. Code,

2 § 245, subd. (b)); and count 2, maliciously discharging 

a firearm at a motor vehicle occupied by John Doe (§ 246). 

He was also charged with counts 3 and 4, felon in possession of a firearm 

(§§ 29800, subd. (a)(1), 29805); count 5, felon in possession of ammunition (§ 30305, 

2 All further statutory citations are to the Penal Code unless otherwise indicated.
5.

subd. (a)(1)); count 6, possession of methamphetamine while armed with a loaded and 

operable firearm (Health & Saf. Code, §11370.1, subd. (a)); and count 7, possession of 

methamphetamine for sale (Health & Saf. Code, §11378). 

As to count 1, it was alleged appellant personally and intentionally discharged a 

firearm (§§ 12022.53, subd. (c), 12022.5, subd. (a)); and as to count 6, he was armed with 

a firearm (§ 12022, subd. (a)(1)). As to all counts, it was alleged he had three prior strike 

convictions (§§ 667, subds. (c)−(j) & 1170.12, subds. (a)−(e)) and three prior serious 

felony conviction enhancements (§ 667, subd. (a)). 

Plea Proceedings

On October 27, 2023, the trial court conducted a change-of-plea hearing. The 

parties advised the court that appellant would plead no contest to count 1, assault with a 

semiautomatic firearm, and count 6, possession of methamphetamine while armed with a 

loaded and operable firearm. The parties also advised the court that one of the prior 

strike convictions was invalid. Appellant would admit one prior serious felony 

conviction enhancement and the two remaining prior strikes, and one of those strikes 

would be dismissed; and he would receive an aggregate term of 25 years. 

Thereafter, appellant pleaded no contest to counts 1 and 6, admitted one prior 

serious felony conviction, and admitted two prior strike convictions. The parties 

stipulated to the preliminary hearing transcript and/or the police reports for the factual 

basis for the pleas, and the trial court dismissed the remaining charges and enhancements. 

Sentencing

On November 29, 2023, the trial court conducted the sentencing hearing, and 

dismissed one of the two prior strike convictions. The court imposed the stipulated 

aggregate sentence of 25 years based on the upper term of nine years for count 1, doubled 

to 18 years as the second strike term, plus five years for the prior serious felony 

conviction enhancement; and a consecutive term of one year (one-third the midterm),

doubled to two years, for count 6. 
6.

Appellant filed a timely notice of appeal. 

DISCUSSION

As noted above, appellate counsel filed a Wende brief with this court. The brief 

also includes counsel’s declaration that appellant was advised he could file his own brief 

with this court. This court advised appellant by letter that he could file a supplemental 

letter or brief raising any arguable issues.

On July 18, 2024, appellant filed a letter brief and raises several issues about the 

search and the validity of his convictions. We note that appellant never filed a motion to 

suppress evidence or a motion to withdraw his plea. Nevertheless, we briefly address his 

contentions.

A. Appellant’s Pleas and Convictions

Appellant complains he should not have been convicted of assault with a firearm 

because “all I did was unlawfully discharge[] a firearm [sic] dwelling at an occupied 

motor vehicle” that carried a sentence of three, five, or seven years. Appellant is 

apparently referring to section 246, which states: “Any person who shall maliciously and 

willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied 

motor vehicle ... is guilty of a felony, and upon conviction shall be punished by 

imprisonment in the state prison for three, five, or seven years, or by imprisonment in the 

county jail for a term of not less than six months and not exceeding one year.” (§ 246.)

In count 2, however, appellant was charged with violating section 246 on or about 

September 20, 2021, when he shot at the Volkswagen. Appellant pleaded no contest to 

count 1, assault with a firearm, and as part of his plea agreement, the trial court dismissed 

count 2.

Appellant next states that he only had his wallet and keys when he was arrested, he 

did not have drugs or a firearm, and he could not be charged with possession of a firearm 

and narcotics. Appellant also complains that no witness or victim appeared in trial court 

to identify him as the shooter. 
7.

At the plea hearing, the parties stipulated to the preliminary hearing transcript as 

part of the factual basis for his plea. The witnesses at that hearing were the 

three investigating officers, as summarized above. An officer’s hearsay testimony is 

admissible at a preliminary hearing for the trial court to make the probable cause 

determination. (People v. Miranda (2000) 23 Cal.4th 340, 347−348.) Rodriguez testified 

about appellant’s statements to him—that appellant admitted he confronted the person 

driving the Volkswagen at the gas station and he fired a shot at the Volkswagen. 

Rodriguez testified that when he showed appellant the firearm and drugs found in the 

bedroom, appellant admitted the firearm and narcotics belonged to him.

Appellant further asserts he only took the plea because the police officers were 

“crooked.” As noted, appellant never filed a motion to withdraw his plea and this claim 

is not cognizable in this appeal.

B. Search of the House

Appellant argues that “when the cops hit my parole address,” there was no warrant 

for his arrest; the homeowner never gave permission to search the house or open the lock 

box; the officers did not have a search warrant; the lock box was in the homeowner’s

bedroom and not in his bedroom; “my parole agent knew where my bedroom was at,” 

and appellant did not have the key or access to the lock box. 

Appellant did not file a suppression motion and he has waived review of this 

claim. However, appellant’s appellate challenges to the search are undermined by his 

own arguments, which suggest the reason why a suppression motion was not filed. In his 

letter brief, appellant states he was on parole, he had a parole agent, and the officers 

searched his parole address. A parole search clause is an exception to the warrant 

requirement. (People v. Schmitz (2012) 55 Cal.4th 909, 916.) An inmate released on 

parole is advised “that he or she is subject to search or seizure by a probation or parole

officer or other peace officer at any time of the day or night, with or without a search
8.

warrant or with or without cause.” (§3067, subds. (a), (b)(3).) A suppression motion 

would have likely been denied.

C. Ineffective Assistance

Appellant next asserts his attorney never obtained or showed him photographs that 

proved the Volkswagen was hit by a bullet. Appellant further states his attorney never 

filed a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 for officer 

personnel records, because Rodriguez was purportedly arrested for driving under the 

influence. 

As to the photographs, appellant admitted to Rodriguez that he fired a shot at the 

Volkswagen. To the extent appellant’s contentions raise claims of ineffective assistance 

of counsel, we note he made three motions for appointment of a new attorney pursuant to 

People v. Marsden (1970) 2 Cal.3d 118 prior to entering his plea.

If a defendant raises a Marsden issue on appeal, or an issue related to Marsden, 

the previously sealed transcript of the in camera hearing is subject to disclosure. (See 

California Rules of Court, rule 8.47; People v. Knight (2015) 239 Cal.App.4th 1, 7−8.) 

We decline to unseal the transcripts of the Marsden hearings, except to note that the trial 

court conducted in camera hearings and denied his motions on November 19, 2021 (just 

before the preliminary hearing) and on June 28, 2023. Appellant’s third motion and 

hearing was on October 4, 2023, the court granted the motion and appointed a new 

attorney, and appellant entered his plea on October 27, 2023. Thereafter, appellant did 

not file a motion to withdraw his plea or raise any of these issues, even at the time of 

sentencing.

“We have repeatedly stressed ‘that “[if] the record on appeal sheds no light on why 

counsel acted or failed to act in the manner challenged[,] ... unless counsel was asked for 

an explanation and failed to provide one, or unless there simply could be no satisfactory 

explanation,” the claim on appeal must be rejected.’ [Citations.] [¶] A claim of 
9.

ineffective assistance in such a case is more appropriately decided in a habeas corpus 

proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266−267.)

DISPOSITION

The judgment is affirmed.