State v. Avalos

• Decision Date: 22 January 1999
• Docket Number: No. 78,409,78,409
• Citation: 974 P.2d 97,266 Kan. 517
• Parties: STATE of Kansas, Appellee, v. Jose AVALOS, Appellant.
• Court: Kansas Supreme Court

Page 97

974 P.2d 97

266 Kan. 517

STATE of Kansas, Appellee, v.Jose AVALOS, Appellant.

No. 78,409.

Supreme Court of Kansas.

Jan. 22, 1999.

Syllabus by the Court

The district court may authorize a juvenile charged with felony murder to be prosecuted as an adult if the juvenile is 14 years of age at the time the offense was committed and there is substantial evidence that the juvenile should be prosecuted as an adult.K.S.A. 38-1636(f).The standard of review is whether the district court's decision is supported by substantial evidence.

Mary D. Prewitt, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.

Tamara S. Hicks, assistant county attorney, argued the cause, and Lois K. Malin, assistant county attorney, John P. Wheeler, Jr., county attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.

ALLEGRUCCI, J.:

Jose Avalos appeals from the district magistrate judge's order authorizing his prosecution as an adult pursuant to K.S.A. 38-1636(f).

During the early morning hours of February 4, 1996, there were a number of young people at a partyat 1809 Chesterfield in Garden City, Kansas.Many were members of the YC gang.A fight began in which Juan Ayon was hit by six or more people, including Adam Valdez and Avalos.When Ayon fell down, his assailants hit and kicked him.Then Richard Garcia, the gang's leader, said to "take care of him."Avalos and Valdez left the party in Juan Ayon's car with Ayon in it.

Avalos and Valdez drove Ayon to a gang hangout just outside the city limits.They took him out of the car and beat him some more.Then, with Avalos standing outside the car, Valdez drove back and forth over Ayon.Avalos and Valdez left Ayon's body at the hangout, drove into town, and abandoned Ayon's car.

The cause of Ayon's death was internal bleeding from massive trauma.In the pathologist's opinion, "the instrumentality of death was a vehicle."He believed that Ayon had been run over at least three times by an automobile.

Avalos was born February 17, 1981.He was nearly 15 at the time of Ayon's murder.He lived at home with his mother; his school attendance was poor.He had been suspended several times for long periods.In addition, when not suspended, he did not attend regularly.

Avalos's first contact with law enforcement was in August 1993, when he was 12.By mid-February 1996, 31 contacts between Avalos and law enforcement authorities had been recorded.The record shows that a contact did not necessarily involve a violation of law, but it does not specify how many did and did not.He was known by law enforcement officers as a gang member, and all contacts with Avalos therefore were described as "gang-related."The record contains no information about juvenile charges or adjudications for Avalos.

Gordon Duncan, a psychologist, administered a series of tests for the purpose of assisting the magistrate judge in determining Avalos' intellectual and psychological maturity.Avalos' IQ was measured at 73, with 69 being considered mentally deficient and 70 to 79 "borderline."His functioning is that of a 9- to 10-year-old child, and he views the world that way.According to Duncan, IQ does not measure sophistication.There is a correspondence between IQ and maturity, however, in that maturity is based "on knowledge that one gains through gaining intellect."Avalos' personality was described by Duncan as being "totally dependent," and he was said to be "suffer[ing] from a low-grade dysthymic-type depression."Duncan testified that Avalos would benefit more from a treatment plan in a rehabilitation process that was designed for a 9- or 10-year old than from one designed for an adult.The district magistrate authorized that Avalos be prosecuted as an adult.Avalos eventually entered an Alford plea of guilty to felony murder, and he was sentenced to life imprisonment.

K.S.A. 38-1681(a) provided that a juvenile could take an appeal from an order authorizing prosecution as an adult but that it could not be taken until after conviction.The journal entry of sentencing was signed on December 13 and filed on December 16, 1996.On December 17, 1996, Avalos filed a timely notice of appeal from the order authorizing prosecution as an adult.SeeK.S.A. 38-1681(b).

Avalos was 14 years old at the time of the offenses, less than 2 weeks from his 15th birthday.K.S.A. 38-1636(f)(1) provided that a juvenile 14 years of age could be prosecuted as an adult if "there is substantial evidence that the respondent should be prosecuted as an adult for the offense with which the respondent is charged."K.S.A. 38-1636(e) provides:

"In determining whether or not prosecution as an adult should be authorized, the court shall consider each of the following factors: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent's home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court's jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution."

The standard applied by this court in reviewing the decision to authorize prosecution as an adult is whether it is supported by substantial evidence.SeeState v. Claiborne, 262 Kan. 416, 420, 940 P.2d 27(1997).Avalos contends that the district magistrate's consideration of the question of certification was inadequate.He contends that she failed to mention the statutory factors and misinterpreted data.As a result, the argument continues, the magistrate judge concluded that Avalos should be...