P. v. AVILA

Filed 5/15/06

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S045982

v. )

)

JOHNNY AVILA, JR., )

) Fresno County

Defendant and Appellant. ) Super. Ct. No. 452067-2

__________ )

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 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 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 â€

Description	Prospective jurors in a capital case may be discharged for cause based solely on answers to written questionnaire if it is clear that they are unwilling to temporarily set aside own beliefs and follow the law. Trial court did not abuse discretion under Code of Civil Procedure Sec. 223 in setting time limit on counsel's voir dire of potential jurors individually or in the aggregate. When trial court determines that defendant has made a prima facie showing that a particular prospective juror has been challenged by prosecution because of bias, court need not ask the prosecutor to justify challenges to other prospective jurors of the same group for which the court has already denied a Batson/Wheeler mistrial motion. Prosecutor's use of peremptory challenges to eliminate four jurors who did not wholeheartedly support death penalty did not violate defendant's constitutional rights to due process, fundamentally fair trial by an impartial jury, or a reliable judgment.
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