People v. Avila, No. S045982.

• Court: United States State Supreme Court (California)
• Writing for the Court: Baxter
• Citation: 38 Cal.4th 491,43 Cal.Rptr.3d 1,133 P.3d 1076
• Parties: The PEOPLE, Plaintiff and Respondent, v. Johnny AVILA, Jr., Defendant and Appellant.
• Docket Number: No. S045982.
• Decision Date: 15 May 2006

43 Cal.Rptr.3d 1 38 Cal.4th 491 133 P.3d 1076 The PEOPLE, Plaintiff and Respondent,
v.
Johnny AVILA, Jr., Defendant and Appellant. No. S045982. Supreme Court of California. May 15, 2006.

[43 Cal.Rptr.3d 14]

Mark E. Cutler, Sacramento, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Eric L. Christopherson and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

38 Cal.4th 504

During the late night and early morning hours of July 31 and August 1, 1991, two young women, Dorothy Medina and Arlene Sanchez, attended a gathering in rural Fresno, where Medina was brutally gang-raped. She and Sanchez were then driven to a canal bank and killed.

In 1994, a Fresno County jury convicted defendant Johnny Avila, Jr., codefendant Richard Avila, who is also defendant's cousin, and codefendant Jeffrey Spradlin, of two counts of first degree murder. (Pen.Code, §§ 187, 189.)¹ It acquitted defendant and Richard Avila of one count of rape while acting in concert but convicted Spradlin of that charge. (§§ 261, subd. (a)(2), 264.1.) The jury further found that defendant and Spradlin personally used a firearm (§ 12022.5, subd. (a)), and that Richard Avila was armed with a firearm (§ 12022, subd. (a)(1)). For defendant and both codefendants, the jury further found

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true multiple-murder (§ 190.2, subd. (a)(3)), rape-murder (§ 190.2, subd. (a)(17)), and witness-killing (§ 190.2, subd. (a)(10)) special circumstance allegations as to each victim.

For defendant, the trial court subsequently struck the rape-murder special circumstance as to both murder counts and the multiple-murder special circumstance as to the Sanchez murder count.² The penalty phase trials of the

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three individuals were severed from each other, and defendant's trial commenced first. The jury sentenced defendant to death.³ Defendant's appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. FACTS

A. Guilt Phase Evidence

1. Prosecution's Case-in-chief

a. Background

In July and August 1991, Richard Avila and his wife Tricina lived at 1604 North Hayes (the North Hayes property) in Fresno. There were three trailers on the property: Tricina's mother Rachael Diaz, 15-year-old brother Zeek, and sister Veronica lived in the main trailer; Richard and Tricina lived in a smaller Wilderness trailer; and the smallest trailer was abandoned.

Late at night on July 31, or in the early morning hours of August 1, 1991, Dorothy Medina picked up Arlene Sanchez to attend a party. Corinna Sanchez, who lived with her sister Arlene and briefly spoke to Medina at the door, saw Michael "Blanco" Rojas get out of the passenger side of a 1963 or 1964 dark-colored Chevrolet with an orange "76" ball on the antenna. Corinna never saw her sister alive again.

b. Discovery of the Bodies and Investigation

Around 6:00 a.m. on August 1, 1991, a ranch foreman with Quist Farms saw two cars drive past him at the intersection of Cornelia and Church Streets in Fresno. One was a fairly new Pontiac Bonneville, which was wet and had all its windows down. The other was an old light-colored Datsun or Toyota.

Thirty minutes later, an irrigation worker discovered Medina's body on the south bank of the Houghton Canal (bounded by Chateau Fresno, Grantland Avenue, Belmont Avenue, and Highway 180), which borders a vineyard, in rural Fresno. She was on her back with her arms bent near her head and her legs extended outward. Her blouse was pulled down around her waist, and her bra was pulled up over her breasts. Otherwise she wore only socks and shoes. Nearby, authorities recovered a pair of pink underpants belonging to Medina and a .25-caliber shell casing.

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Medina, whose face and upper body were splattered with blood, died of two gunshot wounds to her head. One was a small contact wound on her right temple made by a .25-caliber copper-jacketed bullet. The other was a large contact wound made by a bullet that entered her forehead and exited the back of her skull. Based on the crime scene evidence, including blood splatter evidence, and the position of Medina's body, authorities concluded that when

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she was shot Medina was lying in the position in which she was found, and that she probably was shot in the temple first and in the forehead second. Medina had abrasions and lacerations in her genital region that most likely were inflicted shortly before her death, and a vaginal swab indicated the presence of semen. She also had multiple bruises on her neck, forearms, and inner thigh. She had a substantial level of phencyclidine (PCP) and a .07 percent blood-alcohol level in her system, as well as some cocaine metabolite.

Ten feet from Medina, between two rows of grapevines, detectives discovered Sanchez's fully-clothed body. Sanchez similarly died of gunshot wounds to the head. One was a contact wound made by a nine-millimeter copper-jacketed bullet that entered her forehead and lodged in the base of her neck. The other was a smaller wound made by a .25-caliber copper-jacketed bullet that entered her left temple and lodged in her brain. Nearby, police found a .25-caliber shell casing and a nine-millimeter shell casing. The .25-caliber slug recovered from Medina's head and two pieces of the .25-caliber slug recovered from Sanchez's head were similar, but could not be conclusively shown to have been fired from the same gun.

There was a large amount of blood on Sanchez's body, indicating that her heart was still functioning when both wounds were inflicted. A vaginal swab was taken but did not detect any semen. Sanchez had a .14-percent blood-alcohol level and substantial levels of PCP and cocaine metabolite in her system. Evidence at the scene indicated Sanchez attempted to flee up the embankment before she was shot and killed. Two types of shoe prints in addition to the victims' shoe prints were found at the scene.

About the time Medina's body was discovered, a Pontiac Bonneville was engulfed in flames at the canal bank, on the north side of Annadale Avenue, near Blythe and Cornelia, in Fresno. Authorities concluded the fire was deliberately set. In the car were three nine-millimeter shell casings —two that had been expended and one that had not been expended but had detonated in the fire—and one expended .32-caliber shell casing.

Detective Melinda Ybarra of the Fresno County Sheriff's Department investigated the murders of Medina and Sanchez. During the course of her investigation, she became aware of a concurrent investigation of an incident

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involving a minor, Spring J., that allegedly occurred at the North Hayes property mere hours before the murders.

On August 2, 1991, Detective Ybarra and sheriff's deputies executed a search warrant at the North Hayes property. On the property was a purple 1964 Chevrolet Impala, which belonged to Richard and had Sanchez's fingerprints on it. Also on the property was a blue 1978 Chevrolet belonging to David Gomez. Sheriff's deputies also found numerous firearms and various calibers of ammunition. Although .25-caliber ammunition was found on the property, no weapon capable of firing such ammunition was found. One unexpended .25-caliber bullet found on the property and two expended .25-caliber shell casings found at the murder scene had been cycled through the same gun. Two of the expended nine-millimeter shell casings recovered from the burnt car found on Annadale Avenue had been cycled through an Uzi that was seized from the property. No firearms used in the murders were recovered.

On August 30, 1991, sheriff's deputies executed a search warrant at a home owned by Richard Avila's mother-in-law,

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located at 355 North Fruit Street in Fresno, and seized several identical pairs of Nike shoes. These items were compared to photographs of footprints found at the crime scene and found to have similar class characteristics as to shoe length, width, sole design, and wear pattern.

c. Events Surrounding the Double Murder

The testimony of Michael Rojas, Ray Juarez, and Frank Rodriguez formed the heart of the prosecution's case-in-chief. They testified consistently with each other regarding the identity of the key individuals present and certain events occurring that night. Thus, Rojas, Juarez and Rodriguez testified that, on the night of July 31-August 1, about 30 people gathered on the North Hayes property in the expectation of a drive-by shooting. Many firearms were on the property, and some individuals were armed. People were drinking beer and smoking marijuana and PCP. Two young women, Spring J. and Kim F., were brought to the gathering, where they remained for a couple of hours and then left. At the end of their stay or shortly thereafter, two different young women, Dorothy Medina and Arlene Sanchez, were brought to the property. After several hours, defendant, Spradlin, and Rodriguez drove them away in a late-model gray Pontiac Bonneville, returning without them.

Rojas, Juarez, and Rodriguez testified inconsistently, at times wildly so, regarding their individual roles and their observations during the night in question. We summarize the relevant portions of their testimony below because the bulk of defendant's claims assert errors stemming from their testimony.

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(1) Michael Rojas⁴

Michael Rojas went to the North Hayes property on July 31, 1991, to back up Richard in case a fight erupted. He arrived about midnight and did not leave until dawn. That night, Rojas drank beer and smoked marijuana cigarettes.

Zeek Diaz and some other youngsters brought Spring J. and Kim F. to the property. Spring smoked PCP, commonly known as "KJ," with a group of men that included Richard. The group then went inside the main trailer. During this time, Rojas was outside near some...