Stanford Law School - Robert Crown Law Library

Filed 8/12/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S078664
v.
JOSEPH AVILA,
Riverside County
Defendant and Appellant.
Super. Ct. No. CR-65127

MODIFICATION OF OPINION
THE COURT:
The opinion filed June 15, 2009, and published at 46 Cal.4th 680, is modified in
the following respects:
On page 695, the second full paragraph is deleted.
The first sentence of the following paragraph is modified to read as follows: “We
find no abuse of discretion.”
These modifications do not affect the judgment.

---

Automatic appeal from a judgment of death.

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Wed, 08/12/2009	46 Cal. 4th 680, 208 P.3d 634, 94 Cal. Rptr. 3d 699	S078664M	Automatic Appeal	closed; remittitur issued

Disposition
Jun 15 2009	Opinion: Affirmed

Dockets
Apr 29 1999	Judgment of death
May 6 1999	Filed certified copy of Judgment of Death Rendered 4-29-99
May 6 1999	Penal Code sections 190.6 et seq. apply to this case
Jul 15 1999	Record certified for completeness
Sep 17 2002	Filed: appellant's application for appointment of counsel (IFP form).
Sep 18 2002	Counsel appointment order filed appointing Christine Levin to represent appellant for the direct appeal.
Sep 27 2002	Appellant's opening brief letter sent, due: April 28, 2003.
Sep 30 2002	Date trial court delivered record to appellant's counsel (6,268 pp. record) (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.) (note: record was mailed on 9-23-2002.)
Nov 18 2002	Counsel's status report received (confidential) from atty Levin.
Jan 13 2003	Compensation awarded counsel Atty Levin
Jan 15 2003	Counsel's status report received (confidential) from atty Levin.
Feb 13 2003	Compensation awarded counsel Atty Levin
Mar 18 2003	Counsel's status report received (confidential) from atty Levin.
Mar 25 2003	Compensation awarded counsel Atty Levin
Apr 9 2003	Compensation awarded counsel Atty Levin
Apr 22 2003	Request for extension of time filed to file appellant's opening brief. (1st request)
Apr 24 2003	Extension of time granted to 6/27/2003 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
May 7 2003	Received copy of appellant's record correction motion Application to corrrect, complete and settle the record on appeal. (30 pp.)
May 15 2003	Counsel's status report received (confidential) from atty Levin.
May 29 2003	Compensation awarded counsel Atty Levin
Jun 16 2003	Request for extension of time filed to file appellant's opening brief. (2nd request)
Jun 19 2003	Extension of time granted to 8/26/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jul 14 2003	Counsel's status report received (confidential) from atty Levin.
Aug 13 2003	Compensation awarded counsel Atty Levin
Aug 22 2003	Request for extension of time filed to file appellant's opening brief. (3rd request)
Aug 28 2003	Extension of time granted to 10-27-2003 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 29 2003	Record certified for accuracy
Sep 11 2003	Counsel's status report received (confidential) from atty Levin.
Sep 29 2003	Record on appeal filed Clerk's transcript 21 volumes (4614 pp.) and reporter's transcript 22 volumes (2063 pp.) including material under seal; ASCII disks. Clerk's transcript includes 2533 pp. of juror questionnaires.
Sep 29 2003	Letter sent to: Counsel advising that the record on appeal, certified for accuracy on 8/29/2003, was filed this date.
Oct 28 2003	Request for extension of time filed to file appellant's opening brief. (4th request)
Oct 31 2003	Extension of time granted to 12/26/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Nov 4 2003	Compensation awarded counsel Atty Levin
Nov 10 2003	Counsel's status report received (confidential) from atty Levin.
Nov 19 2003	Compensation awarded counsel Atty Levin
Dec 24 2003	Request for extension of time filed to file appellant's opening brief. (5th request)
Dec 29 2003	Counsel's status report received (confidential) from atty Levin.
Jan 5 2004	Extension of time granted to 2-27-2004 to file AOB. After that date, only four further extensions totaling 210 additional days will be granted. Extension granted based upon counsel Christine Levin's representation that she anticipates filing the brief by 9-29-2004.
Feb 2 2004	Counsel's status report received (confidential) from attorney Levin.
Feb 20 2004	Request for extension of time filed to file appellant's opening brief. (6th request)
Feb 26 2004	Extension of time granted to 04/27/04 to file appellant's opening brief. After that date, only four further extensions totaling 195 additional days will be granted. Extension is granted based upon counsel Christine Levin's representation that she anticipates filing that brief by 11/10/04.
Mar 8 2004	Counsel's status report received (confidential) from atty Levin.
Apr 9 2004	Compensation awarded counsel Atty Levin
Apr 19 2004	Request for extension of time filed to file AOB. (7th request)
Apr 23 2004	Extension of time granted to 6/28/2004 to file appellant's opening brief. After that date, only three further extensions totaling 135 additional days will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by 11/10/2004.
Apr 28 2004	Compensation awarded counsel Atty Levin
May 10 2004	Counsel's status report received (confidential) from atty Levin.
May 25 2004	Counsel's status report received (confidential) from atty Levin.
Jun 25 2004	Request for extension of time filed to file appellant's opening brief. (8th request)
Jul 6 2004	Counsel's status report received (confidential) from atty Levin.
Jul 9 2004	Extension of time granted to 8-27-2004 to file AOB. After that date, only two further extensions totaling about 105 additional days will be granted. Extension granted based upon counsel Christine J. Levin's representation that she anticipates filing the brief by 12-10-2004.
Aug 25 2004	Request for extension of time filed to file appellant's opening brief. (9th request)
Aug 31 2004	Extension of time granted to 10-28-2004 to file AOB. After that date, only two further extensions totaling about 75 additional days will be granted. Extension granted based upon counsel Christine J. Levin's representation that she anticipates filing the AOB by 1-10-2005.
Sep 3 2004	Counsel's status report received (confidential) from atty Levin.
Sep 10 2004	Counsel's status report received (confidential) from atty Levin.
Oct 27 2004	Counsel's status report received (confidential) from atty Levin.
Nov 3 2004	Compensation awarded counsel Atty Levin
Nov 17 2004	Compensation awarded counsel Atty Levin
Nov 23 2004	Request for extension of time filed to file appellant's opening brief. (10th request)
Dec 1 2004	Extension of time granted to December 27, 2004 to file appellant's opening brief. After that date, only one further extension totaling about 55 additional days will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by February 20, 2005.
Dec 28 2004	Request for extension of time filed to file appellant's opening brief. (11th request)
Jan 3 2005	Extension of time granted to 2/25/2005 to file appellant's opening brief. After that date, only one further extension totaling about 15 additional days will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by 3/10/2005.
Jan 6 2005	Counsel's status report received (confidential) from atty Levin.
Feb 25 2005	Request for extension of time filed to file appellant's opening brief. (12th request)
Mar 9 2005	Counsel's status report received (confidential) from atty Levin.
Mar 9 2005	Filed: Supplemental declaration in support of application for extension of time to file appellant's opening brief.
Mar 14 2005	Extension of time granted to 4/25/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 110 additional days will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by 8/15/2005.
Mar 14 2005	Received: copy of appellant's motion to preserve evidence, exhibits, files and other materials related to capital case. (filed in superior court)
Apr 28 2005	Request for extension of time filed to file appellant's opening brief. (13th request)
May 11 2005	Compensation awarded counsel Atty Levin
May 11 2005	Filed: Supplemental declaration in support of application for extension of time to file appellant's opening brief.
May 17 2005	Extension of time granted to 6-24-2005 to file AOB. After that date, only one further extension totaling about 60 additional days will be granted. Extension granted based upon counsel Christine J. Levin's representation that she anticipates filing the brief by 8-27-2005.
Jul 21 2005	Application for relief from default filed for failure to file appellant's opening brief or timely motion for extension of time.
Jul 27 2005	Request for extension of time filed to file appellant's opening brief. (14th request)
Jul 27 2005	Extension of time granted Appellant's application for relief from default for failure to file appellant's opening brief or a timely motion for extension of time is granted. Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's opening brief by 9/27/2005, counsel's request for an extension of time in in which to file that brief is granted to 9/27/2005. After that date, no further extension is contemplated.
Aug 5 2005	Counsel's status report received (confidential) from atty Levin.
Sep 26 2005	Counsel's status report received (confidential) from atty Levin.
Sep 26 2005	Request for extension of time filed to file appellant's opening brief. (15th request)
Sep 29 2005	Extension of time granted to 11/28/2005 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by 1/27/2006.
Nov 28 2005	Request for extension of time filed to file AOB. (16th request)
Nov 28 2005	Counsel's status report received (confidential) from atty Levin.
Dec 1 2005	Extension of time granted to 1/27/06 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by January 27, 2006.
Jan 27 2006	Request for extension of time filed to file appellant's opening brief. (17th request)
Feb 3 2006	Extension of time granted to 2/14/2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by 2/11/2006.
Feb 8 2006	Compensation awarded counsel Atty Levin
Feb 10 2006	Application to file over-length brief filed to file appellant's opening brief. (119,279 word brief submitted under separate cover; 405 pp.)
Feb 16 2006	Order filed Appellant's application for leave to file appellant's opening brief in excess of the word count limit is granted.
Feb 16 2006	Appellant's opening brief filed (119,279 words; 405 pp.)
Feb 16 2006	Respondent's brief letter sent; due: June 16, 2006.
Feb 21 2006	Counsel's status report received (confidential) from atty Levin.
Apr 19 2006	Change of contact information filed for: attorney Christine J. Levin.
May 24 2006	Compensation awarded counsel Atty Levin
Jun 5 2006	Request for extension of time filed to file respondent's brief. (1st request)
Jun 13 2006	Extension of time granted to August 15, 2006 to file respondent's brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon Deputy Attorney General Sharon L. Rhodes's representation that she anticipates filing that brief by September 15, 2006.
Aug 8 2006	Request for extension of time filed to file respondent's brief. (2nd request)
Aug 9 2006	Change of contact information filed for: applt counsel Christine J. Levin.
Aug 9 2006	Extension of time granted to September 15, 2006 to file the respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Sharon L. Rhodes's prior representation that she anticipates filing that brief by September 15, 2006.
Sep 13 2006	Request for extension of time filed to file respondent's brief. (3rd request)
Sep 14 2006	Extension of time granted to November 14, 2006 to file respondent's brief. Extension is granted based upon Deputy Attorney General Sharon L. Rhodes's representation that he anticipates filing that brief by November 14, 2006. After that date, no further extension is contemplated.
Sep 15 2006	Filed: amended declaration of service of application for extension of time to file respondent's brief.
Nov 14 2006	Respondent's brief filed (65,334 words; 200 pp.)
Nov 14 2006	Motion filed (AA) by respondent to strike charts included in AOB.
Nov 14 2006	Note: appellant's reply brief is due January 16, 2007.
Dec 5 2006	Note: attorney Levin advised by telephone that appellant's response to motion to strike charts in AOB is due on or before December 22, 2006.
Dec 26 2006	Filed: appellant's "Response to Respondent's Motion to Strike Charts Included in Appellant's Opening Brief."
Jan 16 2007	Request for extension of time filed to file appellant's reply brief. (1st request)
Jan 17 2007	Motion denied Respondent's "Motion to Strike Charts Included in Appellant's Opening Brief," filed on November 14, 2006, is denied. Moreno, J., was absent and did not participate.
Jan 22 2007	Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's reply brief is extended to and including March 12, 2007.
Mar 12 2007	Request for extension of time filed to file appellant's reply brief. (2nd request)
Mar 15 2007	Filed: supplemental declaration in support of application for extension of time to file reply brief.
Mar 19 2007	Extension of time granted to May 11, 2007 to file appellant's reply brief. After that date, only four further extensions totaling about 210 additional days are contemplated. Extension is granted based upon counsel Christine J. based upon counsel Christine J. Levin's representation that she anticipates filing that brief by December 12, 2007.
May 14 2007	Request for extension of time filed to file appellant's reply brief. (3rd request)
May 17 2007	Extension of time granted to July 9, 2007 to file appellant's reply brief. After that date, only three further extensions totaling about 150 additional days are contemplated. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by December 12, 2007.
Jul 6 2007	Request for extension of time filed to file reply brief. (4th request)
Jul 10 2007	Extension of time granted to September 10, 2007 to file the reply brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon counsel Chirstine J. Levin's representation that she anticipates filing that brief by December 12, 2007.
Sep 24 2007	Request for extension of time filed to file appellant's reply brief. (5th request)
Oct 1 2007	Extension of time granted Good cause appearing, and based upon counsel Louis N. Hiken's representation that counsel Christine J. Levin anticipates filing the appellant's reply brief by April 10, 2008, counsel's request for an extension of time in which to file that brief is granted to November 13, 2007. After that date, only three further extensions totaling about 150 additional days are contemplated.
Nov 14 2007	Request for extension of time filed to file appellant's reply brief.(6th request)
Nov 19 2007	Extension of time granted Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's reply brief by April 10, 2008, counsel's request for an extension of time in which to file that brief is granted to January 14, 2008. After that date, only two further extensions totaling about 90 additional days are contemplated.
Jan 15 2008	Request for extension of time filed to file appellant's reply brief. (7th request)
Jan 17 2008	Extension of time granted Good cause appearing, and based upon counsel Christine Levin's representation that she anticipates filing the appellant's reply brief by April 10, 2008, counsel's request for an extension of time in which to file that brief is granted to March 17, 2008. After that date, only one further extension totaling about 24 additional days is contemplated.
Mar 17 2008	Request for extension of time filed to file appellant's reply brief (8th request)
Mar 19 2008	Extension of time granted Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's reply brief by June 10, 2008, counsel's request for an extension of time in which to file that brief is granted to May 16, 2008. After that date, only one further extension totaling about 25 additional days is contemplated.
May 16 2008	Request for extension of time filed (AA) to file appellant's reply brief. (9th request)
May 20 2008	Extension of time granted Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's reply brief by June 10, 2008, counsel's request for an extension of time in which to file that brief is granted to June 10, 2008. After that date, no further extension is contemplated.
Jun 6 2008	Request for extension of time filed (AA) to file appellant's reply brief. (10th request)
Jun 11 2008	Extension of time granted Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's reply brief by July 24, 2008, counsel's request for an extension of time in which to file that brief is granted to July 24, 2008. After that date, no further extension is contemplated.
Jul 23 2008	Request for extension of time filed (AA) to file appellant's reply brief. (11th request)
Jul 29 2008	Extension of time granted Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's reply brief by August 7, 2008, counsel's request for an extension of time in which to file that brief is granted to August 7, 2008. After that date, no further extension will be granted.
Aug 7 2008	Application to file over-length brief filed by appellant, "Application to File Reply Brief in Excess of 47,600 Words."
Aug 12 2008	Order filed Appellant's "Application to File Reply Brief in Excess of 47,600 Words" is granted.
Aug 12 2008	Appellant's reply brief filed (87,621 words; 290 pp.)
Sep 17 2008	Exhibit(s) lodged People's exhibits: 8, 9 (photoline ups), 10 (small photo), 11A, 12, 13A (cassette tapes), 11B, 12A, 13B (transcripts of cassette tapes).
Sep 18 2008	Exhibit(s) lodged People's exhibits 1 & 3 (posterboards).
Oct 1 2008	Compensation awarded counsel Atty Levin
Oct 16 2008	Compensation awarded counsel Atty Levin
Feb 13 2009	Exhibit(s) lodged People's exhibits 3 and 4. (letter(s) and photo-lineups)
Feb 17 2009	Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the April calendar, to be held the week of April 6, 2009, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Mar 11 2009	Case ordered on calendar to be argued on Wednesday, April 8, 2009, at 2:00 p.m., in Los Angeles
Mar 20 2009	Received: appearance sheet from Attorney Christine J. Levin, indicating 45 minutes for oral argument for appellant.
Mar 23 2009	Received: appearance sheet from Deputy Attorney General Sharon Rhodes, indicating 30 minutes for oral argument for respondent.
Mar 23 2009	Filed: respondent's focus issue letter, dated March 19, 2009.
Mar 23 2009	Filed: appellant's focus issues letter, dated March 23, 2009.
Mar 27 2009	Received: respondent's additional authorities letter, dated March 26, 2009.
Apr 8 2009	Cause argued and submitted
Apr 22 2009	Counsel fee request received Atty Levin
Apr 23 2009	Compensation awarded counsel Atty Levin
May 13 2009	Change of contact information filed for: Christine J. Levin, Esq.
May 14 2009	Compensation awarded counsel Atty Levin
Jun 11 2009	Change of contact information filed for: Christine J. Levin, Attorney at Law.
Jun 12 2009	Notice of forthcoming opinion posted
Jun 15 2009	Opinion filed: Judgment affirmed in full opinion by Chin, J. ----- joined by George, C.J., Kennard, Baxter, Werdegar, Moreno, Corrigan, JJ.
Jun 30 2009	Rehearing petition filed by appellant. (5,105 words; 18 pp.)
Jul 6 2009	Order filed The time for granting or denying rehearing in the above-entitled case is hereby extended to and including September 14, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jul 9 2009	Compensation awarded counsel Atty Levin
Jul 16 2009	Filed: by California Public Defenders Association, "Application to File Request for Modification of Opinion"
Jul 16 2009	Order filed The California Public Defenders Association's "Application to File Request for Modification of Opinion" is granted.
Jul 16 2009	Filed: Letter from the California Public Defenders Association, dated July 15, 2009, requesting modification of the opinion.
Jul 22 2009	Compensation awarded counsel Atty Levin
Aug 12 2009	Rehearing denied; opinion modified Moreno and Corrigan, JJ., were absent and did not participate.
Aug 12 2009	Opinion modified - no change in judgment The opinion filed June 15, 2009, and published at 46 Cal.4th 680, is modified in the following respects: On page 695, the second full paragraph is deleted. The first sentence of the following paragraph is modified to read as follows: "We find no abuse of discretion." These modifications do not affect the judgment.
Aug 12 2009	Remittitur issued
Aug 18 2009	Exhibit(s) returned to superior court.
Aug 24 2009	Received: acknowledgment of receipt of exhibits.
Aug 24 2009	Received: acknowledgment receipt for remittitur from superior court.

Briefs
Feb 16 2006	Appellant's opening brief filed (119,279 words; 405 pp.)
Nov 14 2006	Respondent's brief filed (65,334 words; 200 pp.)
Aug 12 2008	Appellant's reply brief filed (87,621 words; 290 pp.)

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