People v. Aviles
| Decision Date | 02 October 2018 |
| Docket Number | F071781 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. YOLANDA IRENE AVILES et al., Defendants and Appellants. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant Yolanda Irene Aviles.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant Cosmen Alvarez.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Paul A. Bernardino, Stephanie A. Mitchell, and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo- Yolanda Irene Aviles and Cosmen Alvarez (Aviles and Alvarez, respectively; collectively, defendants) stand convicted, following a jury trial, of first degree murder (Pen. Code,1 § 187, subd. (a); count 1), kidnapping (§ 207, subd. (a); count 2), and assault with a firearm (§ 245, subd. (a)(2); count 3). The jury further found, with respect to Alvarez, that as to count 1, he personally and intentionally discharged a firearm, proximately causing death (§ 12022.53, subd. (d)); as to count 2, he personally used a firearm (§ 12022.53, subd. (b)); and as to count 3, he personally used a firearm (§ 12022.5, subd. (a)). With respect to Aviles, the jury found, as to counts 1 and 2, a principal was armed with a firearm in commission of the offense (§ 12022, subd. (a)(1)). Aviles was sentenced to prison for 11 years plus 25 years to life, while Alvarez was sentenced to prison for 22 years four months plus 50 years to life. Both were ordered to pay victim restitution as well as various fees, fines, and assessments.
On appeal, we hold: (1) Sufficient evidence supports Aviles's convictions on counts 1 and 3; (2) The trial court did not err by admitting evidence Alvarez had a wife and children, and defendants were not prejudiced in any event; (3) The jury instructions adequately conveyed the timing requirement for aiding and abetting premeditated murder, and counsel for Aviles was not ineffective for failing to request modification of the standard instruction; (4) CALCRIM No. 3471 was properly given, and any error in the wording of the instruction was harmless; (5) CALCRIM No. 640 did not direct the jury to find Aviles guilty of first degree murder; (6) Aviles was not prejudiced by errors in the instruction concerning second degree murder as a natural and probable consequence of aiding and abetting kidnapping; (7) Assuming the trial court erred by failing to instruct on voluntary manslaughter based on heat of passion, neither defendant was prejudiced; (8) Assuming the trial court erred by failing to instruct, as to Aviles, on aiding and abetting involuntary manslaughter, the error was harmless; (9) Defendantswere not prejudiced by their attorneys' assertedly incompetent failure to request an instruction on accident; (10) Defendants were not entitled to an instruction regarding mistake of fact as to consent, even upon request, with respect to the kidnapping count; (11) Aviles is not entitled to reversal based on the trial court's response to a question from the deliberating jury, or based on trial counsel's asserted ineffectiveness in connection therewith; (12) The prosecutor did not commit misconduct by misstating the presumption of innocence; (13) Neither defendant is entitled to a remand with respect to statutory amendments made by Senate Bill No. 620; and (14) Minor clerical errors in the abstracts of judgment must be corrected. We order those corrections and affirm the judgments in their entirety.
In December 2013, A.R., Aviles's daughter, was pregnant with the baby of her fiancée, Jose Villa.2 A.R. had known Alvarez, whose nickname was "Toucan," for two or three years. Alvarez had known J.E., who was good friends with Villa, about the same length of time. Defendants had known each other for a few months, and were living together at Aviles's house on South Kirk Street, in Fresno. Also living at the Kirk Street residence was J.A., A.R.'s younger brother.
At some point before defendants began dating, Villa and Alvarez sold marijuana together. In the course of their dealings, Villa came to owe Alvarez approximately $2,000 for a pound of marijuana. The two men had "some kind of issues" about the debt, which had been owed for over a year as of December. Alvarez pushed for payment to thepoint that Villa threatened to kill him if Alvarez did not leave J.E.'s family alone.3 Aviles told A.R. that Villa was in a lot of trouble and A.R. should get away from him.
On December 2, J.E. took Villa's truck to the Kirk Street house. Alvarez did not want to let J.E. leave, so he refused to move his car from behind the truck. Alvarez wanted to take the truck as payment for the debt Villa owed him. Villa, who was at a motel with A.R., went to the house. He and Alvarez got into an argument, and Villa grabbed a shotgun out of the truck. He pointed it at Alvarez and told him to move his car. Alvarez did not comply, and the two continued to argue. Aviles stepped in front of Villa, because he was going to shoot Alvarez. Eventually, Alvarez moved the car and left with Aviles. The police were called that night. When Villa found out, he threatened Alvarez for calling the police.
Villa and A.R. immediately returned to Yuba City, where they were living with Villa's sister. Villa and A.R. were hiding because defendants were looking for them. On December 18, Aviles arrived, unannounced, at the sister's house with her son J.A. and a man the sister had never before seen. The man, whom J.A. said was Aviles's boyfriend, stayed in the car, while J.A. came to the door and handed the sister a letter. J.A. said his mother was sending it to Villa. The sister, who was scared because it seemed strange that Aviles would bring her a letter when they did not know each other, telephoned Villa. Villa said he would read the letter when he returned, but he never came back. The note was written by Aviles. It read:
On the night of December 21, A.R. and J.E. both were present when Villa made a call to a friend of Alvarez, in an attempt to get the friend to bring Alvarez somewhere so Villa could kill him. A.R. was not sure what led up to this, but Villa told her that if he did not find Alvarez first and do away with him, Villa was going to die.
As of December 22, Villa and A.R. had been staying at the Vagabond Inn on South East Avenue, near Jensen Avenue and Freeway 99, in Fresno, for about two days. That morning, they left the hotel in Villa's green Chevrolet Tahoe, to visit a friend in Parlier. They did not go by the house on South Kirk Street. A.R. had not told Aviles that she was going to be in town or that they were at the Vagabond Inn; however, Aviles was aware they had stayed there on prior occasions.
At 11:26 that morning, police received a report of shots being fired at Aviles's residence. The report came from a neighbor. Officers Soghoian and Miramontez arrived at 11:53 a.m. Upon arrival, Soghoian observed J.A. in the driveway. At the corner of the residence, Soghoian observed multiple .40-caliber shell casings. J.A. said defendants had just been at the house and were there when the shots were fired.
Meanwhile, Villa and A.R. returned to the hotel. They planned to change rooms so they could have accommodations for their dog. They discovered their room key would not work, so Villa drove to the hotel office and parked. He went inside to see about the key, while A.R. remained in the vehicle.
J.E. had gone to the hotel to see Villa, A.R., and a mutual friend. He was standing in back of the hotel, smoking, when a gray Infiniti approached. Aviles was driving. Alvarez was in the car with her. The car pulled up next to J.E., and defendants both called him over. Aviles told him to get in the car, and that nothing was going to happen to him, as he was "neutral." Alvarez got out of the car. As he did so, he pointed a gun at J.E. and told him to get in. Alvarez said he would break J.E.'s legs. Because he was pointing the gun at J.E., J.E. interpreted this to mean he was going to shoot J.E.'s legs.Then he said he was going to kill J.E. if J.E. did not go. While Alvarez was doing this, Aviles was just waiting in the car.
J.E. was hesitant to get in the car, as he was afraid for his life. Eventually, he got in the front passenger seat. Alvarez got in the backseat behind him and held the gun to his head. Alvarez said he was going to kill him in front of J.E.'s father. Aviles repeated that nothing was going to happen to him, that he was "neutral." Alvarez asked where Villa was, but J.E. did not know where Villa and A.R. were.
J.E. was still in the front passenger seat of the car, with Alvarez behind him, holding the gun to his head, as the car started to leave the motel. As it passed the office, they saw Villa's truck, and they stopped. J.E. heard Aviles tell Alvarez to save A.R. and rescue her from Villa.
A.R. had been sitting in the passenger seat with the couple's dog for about 15 or 20 minutes, when a silver Infiniti passed. A.R. heard Aviles yell, or "There is that bitch right there." A.R. realized Aviles was driving the car, and Alvarez...
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