Super. Ct. No. CR-65127 Riverside County. Judge: Vilia G. Sherman.
The opinion of the court was delivered by: Chin, J.
Defendant Joseph Avila was convicted of the first degree murders of Raul Moncada and Robert Navarro, and the attempted murder of David Montoya. (Pen. Code,*fn1 §§ 187, 189, 664.) The jury also found true the multiple-murder special-circumstance allegation, and allegations that the murders and attempted murder were willful, deliberate, and premeditated, defendant inflicted great bodily injury on Montoya, and defendant personally used a dangerous or deadly weapon, i.e., a knife, in each crime. (§190.2, subd. (a)(3), former § 664, subd. (1), now § 664, subd. (a), § 1192.7, subds. (c)(8), (23), § 12022, subd. (b), former § 12022.7, now § 12022.7, subd. (a).) It returned a death verdict, and the trial court entered a judgment of death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) For the reasons that follow, we affirm the judgment.
In the early morning hours of Saturday, January 12, 1991, a group of friends including Raul Moncada, Robert ("Bobby") Navarro, David Montoya, Jeffrey Winn, Anthony Padilla, Manuel Moreno, Luis Robledo, Lawrence ("Larry") Casas, Anthony ("Tony") Pereira, and Ronald Cordova, were socializing in a parking lot in Riverside after cruising on Magnolia Boulevard. They were unarmed, and had not consumed drugs or alcohol. Pereira and Casas were talking with three young women they had met that evening, Evelyn Quintana, Pauline Mesa, and Joanie Olsen.
Testimony from various eyewitnesses to the events at issue, including Montoya, Winn, Padilla, Moreno, Robledo, and Casas, and the testimony and prior statements of Quintana and Mesa, established the following.
A dark-colored vehicle, identified by Moreno and Mesa as an Impala, pulled into the parking lot. Defendant and one or two other men got out and walked toward the group of friends. The men told at least two of the women to get in the car. The women refused to leave, and defendant became irate. Padilla heard Pereira say "Carmelos," which Padilla did not recognize, but assumed was a gang name. Defendant said "Crown Town" or "Corona." Pereira and Montoya briefly argued with defendant, and someone from defendant's group suggested they go "one-on-one." Montoya said defendant was free to take the women, and said "[t]here's no big problem here." The confrontation appeared to dissipate, and Montoya and his friends started toward their vehicles.
At some point toward the end of the confrontation, defendant broke off from the group and went to Magnolia Boulevard. Moreno testified he saw defendant reach inside the Impala, and "grab something." Moreno and several other witnesses also observed defendant flag down someone in a different vehicle on the street. That vehicle entered the parking lot, and defendant reached inside it. He then ran behind bushes toward a Honda Prelude in which Montoya sat. Defendant was carrying a large knife with an approximately six-inch blade. Montoya started to roll up the passenger window. Defendant grabbed the top of the window, shattering it. Defendant stabbed at Montoya more than twenty times, cutting Montoya's bicep in half, and cutting his leg. Montoya lay in the driver's seat, kicking with his feet out the window. When defendant ran behind the Prelude, Montoya escaped out the passenger window, fearing that defendant would attack him from the driver's side of the vehicle.
Defendant then ran to Moncada's red Ford Escort. Defendant stabbed Moncada, who was standing outside the vehicle, in the heart, killing him. He tried to open the door to Casas's vehicle, but it was locked, and the window closed. Defendant proceeded to the next vehicle, a black truck in which Navarro was sitting in the driver's seat. He stabbed Navarro in the heart through the open truck window, killing him. Defendant was apprehended more than four years later on September 19, 1995, at the Los Angeles International Airport.
Two to three hours after the attacks, Mesa, Quintana, and Olsen were separately interviewed by police. The interviews were tape recorded, and at trial played for the jury. Mesa told police she saw "Joey" stab all three victims, Quintana said "Joey" broke "Manuel's" car window and tried to "stab the guy that got stabbed in the arm," and Olsen said "Joey" was the only one with a knife. Police showed the women a photograph of defendant; they each identified defendant as "Joey." At trial, Montoya identified defendant as his assailant, and Padilla testified defendant was the person who went to the passenger side of the Prelude, and who attacked Moncada.*fn2 Padilla, and Senior Investigator Clark from the Riverside County District Attorney's Office, testified that Padilla identified defendant in a pretrial photographic lineup.
The examining pathologist testified that stab wounds on Moncada and Navarro were consistent with a knife that was approximately five inches in length and one inch wide. Both murder victims had defensive wounds, and toxicology analysis of their blood did not show the presence of either alcohol or drugs.
Defendant presented no evidence.
Guillermo Gonzalez Valencia testified that he befriended defendant, whom he knew as "Jose," in Mexico. Gonzalez drove a tractor-trailer truck. One evening at the end of December 1992, defendant was at Gonzalez's house, and started to roll a marijuana cigarette. Gonzalez asked him to leave. The next day, at around midnight, Gonzalez heard a noise outside his home. When he investigated, he saw defendant and another man running away. The tires on Gonzalez's tractor-trailer had been punctured.
About six days after this incident, Gonzalez and his friend Guillermo Lopez Reynoza encountered defendant outside a church. Gonzalez asked defendant why he had cut Gonzalez's tires, and asked him to pay for the damage. Defendant refused. Gonzalez and defendant agreed they did not want to fight. Defendant took out a pencil from his back pocket. As he did so, Gonzalez said, "I didn't come to fight." Defendant reassured Gonzalez it was only a pencil. Defendant then discarded the pencil, pulled out a four-to-six-inch knife, and stabbed Gonzalez and Lopez. Gonzalez was hospitalized for about 10 days, required surgery to repair his spleen, and was unable to work for three months. Lopez was hospitalized for nearly two months, and was unable to work for about four months.
Navarro's parents and sister testified regarding his altruism, gregariousness, and mechanical ability. Moncada's mother, sister, and cousin testified regarding his kindness, maturity, and artistic talent, and his eager anticipation of leaving on a mission for The Church of Jesus Christ of Latter-Day Saints later that year. Montoya testified regarding the effect the murders had on him and the victims' other friends.
Rosalinda Recendez Corona, defendant's mother, testified that defendant was born July 12, 1969, when Rosalinda was about 22. She had four sons, the oldest of whom was murdered after the capital crime. Rosalinda confessed she had not been affectionate with defendant and lacked parenting skills. She beat her children "like animals" in order to discipline them. Rosalinda worked several jobs in order to support the family. Relatives assisted in raising her children.
Defendant's father, Edward Avila, was often incarcerated, and the relationship between defendant's parents ended after three years. Edward beat Rosalinda, and "probably" did so when she was pregnant with defendant. The family moved frequently until defendant was about four years old.
When defendant was about four years old, he was caught in the axle of a vehicle and dragged down the street. He was bruised all over his body, but had no serious injuries.
Also when defendant was about four years old, Rosalinda began a relationship and at some point had a son with Manuel Diaz. For several years, Diaz lived with Rosalinda and her family. Diaz used heroin, beat Rosalinda, and was incarcerated more than once. He had no relationship with defendant. Rosalinda's relationship with Diaz ended in the late 1970's or early 1980's.
When defendant was about five or six years old, his father Edward began visiting him and taking him to amusement parks and other locations.
When defendant was about seven years old, Rosalinda met and eventually married Michael Corona. This relationship lasted approximately 10 years. Michael used and sold heroin, and was not affectionate to defendant.
In 1982, when defendant was in junior high school, Rosalinda had a son with Raymond Salgado. Salgado used heroin and studied the occult, including Satanism. Once after an argument between Rosalinda and Salgado, Salgado told defendant and his brother that if their mother did not come home, he was going to kill himself. Salgado began cutting his arm with a knife. The boys became hysterical, and ran to the location where their mother was staying. Rosalinda called police, who removed Salgado in a straightjacket. The boys helped Rosalinda clean up the pieces of flesh and blood. On another occasion, Salgado slit his stomach open in front of the boys. Rosalinda was not certain, however, whether defendant witnessed this event. Although Rosalinda obtained a restraining order against Salgado, he continued to "torment" them, causing Rosalinda to move her children from Madero to Corona.
Rosalinda suffered from nervous breakdowns and used prescription sedatives and stimulants before and after defendant was born. In the 1980's, when her doctor ceased prescribing these medications, she became addicted to heroin for about five years. She also used cocaine and methadone. She became unable to work, and sold heroin and cocaine to support her habit. In 1983 or 1984, when defendant was about 15, she was incarcerated for 14 months for a drug-related offense. After she was released, she began using drugs again. Rosalinda did not know with whom defendant lived while she was incarcerated. In 1990, Rosalinda became paralyzed, and was then able to end her drug addiction.
Defendant had no unusual medical conditions or learning disabilities growing up. Rosalinda testified he was a good child. She had no recollection of how he performed in school. It was "[t]otally out of his character to be violent." Rosalinda loved defendant and wanted him to live.
Defendant also presented the testimony of individuals he met in Mexico. Juanito Aguirre and his mother, Emilia Dedios, testified about defendant's kindness toward him. Juanito had cerebral paralysis, and was confined to a wheelchair. Defendant cooked meals for him, and took him out to eat and for walks in the park or downtown. Juanito testified that defendant was "like a brother to me." Defendant did not tell Juanito he was in Mexico to avoid apprehension for murder.
Jose Gregorio Jimenez Quintero testified that defendant worked for him in Mexico for approximately one month on a remodeling project for the military. Defendant was one of the best workers Jose ever had, and was respected by his co-workers. Defendant also was generous with Jose and others.
In 1993, Julian Jimenez Villa was the director of a rehabilitation center in Mazatlan. Defendant participated in a voluntary rehabilitation program in which he committed to "find Christ" and try to change who he was. After three months, Julian saw a change in defendant. He assisted newcomers to the center, studied scripture, and discussed his spiritual experience with people living on the street. Defendant became a counselor at the center, and performed well in this position. Julian did not know defendant was hiding in Mexico because he was wanted for two murders in the United States.
Maria Louisa Carajal Moreles knew defendant when he was active in the church connected with the Mazatlan rehabilitation center. Defendant gave Maria's mother hope that her own son, Maria's brother, would change and stop using drugs. Maria's brother did change, and was now an attorney.
Frank Lira testified he was housed in the same area as defendant in the Riverside County jail from 1995-1997. Defendant and several others physically assaulted other inmates; on one occasion they beat another inmate and took his commissary card. Once, after defendant and others had beaten an inmate, defendant told Lira he "just had to relieve some stress."
1. Denial of Keenan Counsel and Removal of Counsel
Defendant contends that the trial court erred by refusing to appoint Keenan counsel, refusing to grant a reasonable continuance, and removing his counsel of choice, in violation of various constitutional rights.*fn3 (Keenan v. Superior Court (1982) 31 Cal.3d 424, 430 (Keenan) [trial court has discretion under statutes governing appointment of counsel to appoint a second defense attorney to assist in defense of a capital case].) We disagree.
The capital crimes occurred on January 12, 1991. Defendant was apprehended on September 19, 1995, and initially represented by the Riverside County Public Defender. On June 21, 1996, after receiving numerous continuances of the preliminary hearing, the public defender declared a conflict, and was removed as counsel. The criminal defense panel was appointed, and the case was assigned to John Aquilina. The preliminary hearing was held on October 24, 1996, and defendant was arraigned in superior court on December 19, 1996. In December 1997, the parties agreed on an April 6, 1998 trial date, and trial was set for that date.
On March 5, 1998, Aquilina informed the court that he was not ready to proceed to trial. He explained that he was assigned to two other cases, one of which, Hartsch, was ready to proceed to trial, and the other, Lee, nearly ready. Aquilina stated that earlier that week, the criminal defense panel had attempted to reassign the case to a different attorney who was more available, but that "fell through the cracks."
The prosecutor strongly objected to both "protracted delay" of the trial date past May 1998, and reassignment of the case to different counsel. He noted that he had grave concerns about the availability of one of his witnesses, a victim's parent, who had cancer. He also noted that the case had previously been assigned to different counsel. Aquilina stated that "the reason for the attempt to re-assign this matter was to speed up the case, not to delay matters." The court responded that its "experience, unfortunately, has been that when that happens, it usually has the opposite effect." At a subsequent hearing, the trial date was moved to April 13, 1998.
On April 7, 1998, defendant filed a motion to continue the trial to a date after May 1, 1999, or more than eight years after the capital crimes occurred. (§ 1050.) In a declaration filed in support of the motion, counsel declared that based on his lack of investigation and preparation, he would not be ready for trial for at least 12 months. His efforts to obtain second counsel, or to have the case reassigned to counsel who would be ready for trial before May 1999, had been unsuccessful.
At the April 9, 1998 hearing on the motion to continue, Aquilina stated that the prosecutor only recently had started to object to defense requests for a continuance or insist that the matter proceed to trial. He also said that he organized his capital caseload by working on each case in the order in which it was assigned to him. He received the assignment in Hartsch first, Lee second, and this case third, and had worked on them in that order. He found it "impossible to work on more than one and one-half of these capital cases at any one time." As a result, he had "devoted [his] full attention to the Hartsch matter, partial attention to the Lee matter, and very little, if any, attention to the Avila matter." He suggested that if the court wanted to discuss the Avila investigation with him, that discussion should occur in camera. The hearing continued in open court.
The court inquired how long a delay would occur if the case was assigned to someone else on the criminal defense panel. Aquilina stated that it was his understanding that each panel attorney was already assigned at least two capital cases set for trial. He further noted that this caseload made it difficult for the attorneys to act as second counsel for each other's cases. He said that if he were able to devote his full-time attention to defendant's case, it was "possible that the matter might be able to proceed to trial later this year."
The court acknowledged Aquilina was busy. It also stated that "the People have a point . . . . [Y]ou're representing to me here . . . . [that] you can't even begin to think about getting ready for this case until you've taken care of, in large measure, those other two cases; that you need at least a year, on top of all the time you've already had, and on top of the public defender's rather large amount of time before they were relieved. . . . [T]hese crimes occurred in 1991." While defendant's absence from the jurisdiction contributed to the delay, the court stated it nevertheless had to consider the date of the crimes when "evaluating the problems that the People encounter and the victim's family's issues." The court stated that it needed to know if there was anyone on the panel who could work on the case right away, and how soon that person would be ready. The court was concerned that "if we find somebody else to take over for you, it will make it go even longer than if we left it in your hands . . . ." Aquilina responded, and the court agreed, that the delay "also obviously affects the defendant."
The court then heard from Mr. Finn, who apparently assisted in running the criminal defense panel. Finn described the panel's staffing and workload challenges, and then stated: "[T]he answer to the Court is simply, no, not within our current people and within our current budget can we reassign this case."
After further colloquy between the court and Finn, the court stated, "From what you're telling me, I essentially only have two options here. I leave it with Mr. Aquilina and give him something approaching the time he says he wants, or we relieve Mr. Aquilina and appoint private counsel." The court stated that if private counsel were appointed, it had "no idea whether they can be ready any sooner than Mr. Aquilina can be. If we leave him on the case, at least he has the advantage of familiarity with the case and the defendant . . . ." The court subsequently stated that it needed to find out if anyone was available to take over the case "and be ready any faster than Mr. Aquilina can. And I need to find that out before I can make a decision."
The prosecutor stated that the delay was "working a great injustice" to the victims' families, and that it was "incumbent upon the Court to . . . find competent counsel." He noted defendant's case was not "complicated," and mentioned other cases in which counsel had been obtained outside the criminal defense panel.
After further argument by the prosecutor, and by the apparent prosecutor in the Hartsch case, Aquilina observed that one factor for the court to consider in determining whether to change counsel was "whether the defendant consents to a change of counsel or objects." The court inquired of defendant whether he would like the court to relieve Aquilina and attempt to find someone who could get to trial faster, or retain Aquilina, "hoping he can get to trial as fast as he can in light of his heavy caseload of complex homicides and death penalty cases." Defendant answered, "I would like to keep Mr. Aquilina." The court asked, "Even if it means going for a year or more waiting to get to trial?" Defendant said, "Yes."
The court inquired of Aquilina whether appointment of second counsel would assist him in getting to trial any faster. Aquilina responded, "Obviously second counsel would help." The court said, "Let's assume for argument's sake that you had a second attorney to assist you on this case, not because it's a complex case, but in order to assist you to get it to trial faster. . . . "[A]ssuming the case was prepared and ready with Keenan counsel, what's the earliest you could be available?" Aquilina responded, "[W]ith one proviso, I believe January , because the Lee matter . . . would probably go some time in November or December. Although yesterday I heard Lee may not go until January." Aquilina anticipated Hartsch would be tried in July 1998. Aquilina stressed that while he would be physically available to try defendant's case, he did not know "of any defense counsel that has tried three capital cases in a 12-month period," and he was disinclined to be the first to do so. The court then inquired whether if Hartsch was tried in July 1998, and Lee tried in January 1999, Aquilina could, with "extra help," be ready to try defendant's case between these trials, by October 1998. Aquilina responded, "[I]t's possible."
The court vacated the April 13, 1998 trial date, and the matter was put over so the court could research what attorneys might be available.
On April 13, 1998, the trial court made findings on the record. In particular, it found that Aquilina "has had a reasonable time to prepare the case, and that due to his . . . heavy caseload and matters beyond his control, he's functionally unavailable to try the case, under Penal Code [s]section 987.05. So as soon as private counsel can be found, I'm going to ask Mr. Aquilina to turn over all his discovery to new counsel" and return any public funds received for preparation of the case. Aquilina did not object. The court noted that a new attorney had not yet been located and scheduled a hearing in two days.
At the April 15, 1998 hearing, the court informed the parties that Bruce Cormicle was available to take the case and give it "top priority." The court requested Aquilina bring all of his discovery to a hearing on April 17, 1998. Aquilina agreed, and again made no objection to the replacement of counsel. On April 17, 1998, Cormicle appeared, confirmed he was available, and stated he anticipated he would be ready for trial in less than 13 months. Aquilina was relieved and turned over his discovery, again without objection.
Defendant contends that Aquilina "was removed over the objection of both Mr. Aquilina and [defendant] on the request of the prosecutor when Mr. Aquilina requested a five-month continuance with the assistance of Keenan counsel or a 12-month continuance if he tried the case alone." As the above factual recitation demonstrates, while defendant stated he would rather keep Aquilina and delay trial than obtain new counsel and go to trial more quickly, no objection was made either when the court found that Aquilina should be removed, or when he was actually removed.
Moreover, contrary to defendant's assertion, Aquilina never moved for Keenan counsel. Under section 987, subdivision (d), the court may appoint a second attorney in a capital case "upon a written request of the first attorney appointed. The request shall be supported by an affidavit of the first attorney setting forth in detail the reasons why a second attorney should be appointed." No such written request was made in this case. Nor did Aquilina orally request second counsel. Rather, the possibility of Keenan counsel was simply discussed by Aquilina and the court as one option to accelerate the trial date. Indeed, Aquilina stressed to the court that while he might be physically available sooner with the appointment of Keenan counsel, he knew of no one who had tried three capital cases in a 12-month period, and he was disinclined to be the first. Hence, because Aquilina did not request Keenan counsel, the trial court never ruled on such a request.
Nor, contrary to defendant's assertion, did the trial court err in denying Aquilina's request for a continuance of at least 12 months, and removing him as defense counsel. " `A court may remove appointed counsel both to "prevent substantial impairment of court proceedings" [citation] and when counsel, without good cause, does not become ready for trial (§ 987.05).' (People v. Cole (2004) 33 Cal.4th 1158, 1188.) A trial court's removal of appointed counsel for an indigent defendant is reviewed for abuse of discretion." (People v. Mungia (2008) 44 Cal.4th 1101, 1119.)
As noted above, defendant did not object to the removal of counsel, and the claim is therefore forfeited. Indeed, Aquilina had on his own initiative investigated whether another ...