Citation 46 Cal. 4th 680, 208 P.3d 634, 94 Cal. Rptr. 3d 699

People v. Avila

Automatic appeal from a judgment of death.

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.


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
Parties
1 Avila, Joseph (Appellant)
San Quentin State Prison
Represented by Christine J. Levin
Attorney at Law
4459 N. Teilman Ave.
Fresno, CA
2 The People (Respondent)
Represented by Attorney General - San Diego Office
Sharon L. Rhodes, Deputy Attorney General
P.O. Box 85266
110 West "A" Street, Suite 1100
San Diego, CA
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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