PEOPLE v. AVILAAppellant’s Reply BriefCal.November 20, 2013 SUPREME COURT COPY COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, CASE No. S135855 PLAINTIFFAND RESPONDENT, CAPITAL CASE VS. ALEJANDROAVILA DEFENDANTAND APPELLANT. APPEAL FROM THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ORANGE(CASE NO. 02CF1862) THE HONORABLE WILLIAM R. FROEBERG, JUDGE APPELLANT’S REPLY BRIEF SUPREME COURT JONATHANP. MILBERG, STATE BAR NO.74784 F | L. E D | ATTORNEY AT LAW 225 SOUTH LAKE AVENUE, 3°° FLOOR NOV 20 2013 PASADENA, CALIFORNIA 91101-3009 TELEPHONE: (626) 685-8910 Frank A. McGuire Clerk EMAIL: JonathanMilberg@earthlink.net Deputy UNDER APPOINTMENTBY THE CALIFORNIA SUPREME COURT ATTORNEY FOR APPELLANT ALEJANDRO AVILA DEATH PENALTY TABLE OF CONTENTS INTRODUCTION 2.0... ccc ccc ccc cece cece ee reece eee e eee eee eeeeeees 1 ARGUMENT 2... ccc ccc ccc ccc ccc cece cee cece eee eee eee eee eeeees 2 I. The Trial Court’s Refusal to Grant a Change of Venue Deprived Appellant of Any Reasonable Likelihood of a Fair Trial and Penalty Determination ............... 0.00. cece cece eee teenies 2 A. Prejudice Must Be Presumedin this Extraordinary Case ......... 2 B. Appellant Established a Reasonable Likelihood That He Could Not Receive a Fair Trial in Orange County .............. 17 C. Respondent Has NotEstablished That The Refusal to Grant a Change of Venue Was Harmless Beyond a Reasonable Doubt ........ 0... cece ccc cece ene eens 21 II. The Trial Court’s Failure to Allow Additional Defense Peremptory Challenges Requires Reversal .................000 23 III. The Trial Court Deprived Appellant of a Fundamentally Fair Trial And Penalty Determination by Admitting Evidence He Had Previously Molested Other Children ..................0008 27 TABLE OF CONTENTS IV. The Trial Court Deprived Appellant of a Fundamentally Fair Trial and Penalty Determination by Admitting Inflammatory Photographsof the Victim’s Body and Testimony Describing “Disgusting” Pornography Found on the Avila Family Computer .... 0... ccc cece ec cece cence eee ee eee e eee eeeeeenes 33 V. The Jury’s Consideration of Unduly Prejudicial Victim Impact Evidence Deprived Appellant of a Fundamentally Fair Penalty Determination .......... 0. ccc cece cecee nett eee eee eeeeees 34 VI. The Trial Court’s Errors Were Cumulatively Prejudicial .......... 35 VII. California’s Death Penalty Statute Is Unconstitutional ............ ci CONCLUSION... 0... cc ccc ccc cece eee eee e neces ee eeeeteeeeaes 36 Certificate of Compliance Declaration of Service Declaration of Jonathan P. Milberg ii TABLE OF AUTHORITIES CASES Chapmanv. California (1967) 386 U.S.18 2...ccceee eee e eens 21, 26 Corona v. Superior Court (1972) 24 Cal, App. 3872 00... cece ccc cence een een ene eens 16 Daniels v. Woodford (9" Circuit 2005) 428 Fed. 31181 2.0... . ccc ccc cee cence eee ee 16 Fain v. Superior Court (1970) 2 Cal. 3°46 0... cece ccc cence ene e tee ce cece ee eeeey 19 Forsyth v. Jones (1997) 57 Cal. App. 4° 776 1... c cece ce ccc cnn nen e nent eee e ens 16 Krulewitch v. United States (1949) 336 U.S. 440 2...ccc cee eee cnet eee eneees 30 _ People v. Balcom (1994) 7 Cal. 4° 414 0... ccc ccc e cence eee eee nent e eens 29 People v. Bittaker (1989) 48 Cal. 31046 0... ccc ccc cece cence een e cent eee e neues 25 People v. Bonin (1988) 46 Cal. 3659 0... cece cece cece cee cece eee eeeneeeens 11, 12 People v. Daniels (1991) 52 Cal. 39815 2... cece cece cece cence eens eee eens 16, 19 People v. Davis (2009) 46 Cal. 4539 2... cece ccc cece cece nee ne cent eees passim People v. DePriest (2007) 42 Cal. 4° 1 occcece cen eee n nee n teen eens 23 People v. Edwards (1991) 54 Cal. 3° 78700.neee ete eneeeeeneenes 34 People v. Edwards (2013) 57 Cal. 4° 658 0.00... cece cece cece eee e cece ee eeeeeeeeeens 27, 29 People v. Ewoldt (1994) 7 Cal. 4" 380 20... cece cece cece etn eee eceeeneeaes 27, 28, 29 TABLE OF AUTHORITIES People v. Falsetta (1999) 21 Cal. 4903 0.0... cece cece cence eet e tenet n een ened 29 People v. Famalaro (2011) 52 Cal. 4° 1 0...ieeeeect ene nee ne nes 9, 10 People v. Fauber (1992) 2 Cal. 4° 792 0. ccc ccc cece cence nent e nee n een enes 17 People v. Green (1980) 27 Cal. 341 occcccenen eee neees 9,17 People v. Harris (2013) 57 Cal. 4804 0.0... ccc cece cen cent n tenet ene nees 21, 22 People v. Heishman (1988) 45 Cal. 3147oo.eee e eee e nee enenenes 31 People v. Hill (1992) 3 Cal. 4" 9590ccece eee tence nee een ees 1 People v. Leonard (2007) 40 Cal. 41370 2.0... cece cece ccc ence cent e nee eet n tence ees 19 People v. Lewis & Oliver (2006) 39 Cal. 4°970 2.0... ccc cee cece nent n eee e eee ene en ees 31 People v. Prince (2007) 40 Cal. 41179 2... cece cece een tenet nen een eee 3, 34 People v. Proctor (1992) 4 Cal. 4° 499 ooccc ccc cence ence teen nee n eens 21 People v. Schmeck (2005) 37 Cal. 4" 240 2... cece cece cece tence cette ene ee en eee 36 People v. Taylor (2010) 48 Cal. 4° 574 0... cece cece cece ene tenet tenet enn enees 34 People v. Vines (2011) 51 Cal. 4" 830 00... cece cece ccc eet n enn e nee n een eeees 27 People v. Yeoman (2003) 31 Cal. 4°93 2.0... cece cece eee n eet e nee ene nned 25 Rideau v. Louisiana (1963) 373 U.S. 723 oo. cece cece cc eeeeeeeee e neces 3 iv TABLE OF AUTHORITIES Rohr Aircraft Corporation v. San Diego (1959) 51 Cal. 2° 759 occcence tenet e teen eens 16 Sheppard v. Maxwell (1966) 384 U.S. 333 bce e cece ee cece eee ee eee eee e eee ne eee eeeeeeenneentanaes 11, 21 Skilling v. United States (2011) US. [130 S. Ct. 2896, 177 L. Ed. 2°°619] 2... 2. eee. 8 Yates v. Evans (1991) 500 U.S. 391 occec ce tee e cee n en nnes 21 CODE SECTIONS Evidence Code section 352 0.0... cece ce cnc ee een cece ee neueeueenees 27 Evidence Code section 1101 2.0.0.0... ccc ccc ee cece eee e ences 27,29 Evidence Code section 1108 1.0.0.0... ccc cee cece eee eee neenees 27,29 Penal Code section 190.3 1.0... 0.eee cece cece cece ne etntneaennes 27 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, PLAINTIFF AND RESPONDENT, vs. ALEJANDRO AVILA DEFENDANTAND APPELLANT CASE No. S135855 APPELLANT’S REPLY BRIEF INTRODUCTION Defendant and Appellant Alejandro Avila hereby replies to certain points made by Respondent. Appellant Avila believes that a further discussion of these points will be helpful to the Court in deciding the issues presented. Appellant's failure to discuss any particular point means only that he has concludedthat no further discussion is necessary and should not be misconstrued as an abandonment, waiver, or concession. (People v. Hill (1992) 3 Cal. 4" 959, 995, footnote 3) ARGUMENT I THE TRIAL COURT’S REFUSAL TO GRANT A CHANGEOF VENUE DEPRIVED APPELLANT OF ANY REASONABLE LIKELIHOOD OF A FAIR TRIAL AND PENALTY DETERMINATION Respondentasserts there wasno reasonable likelihood that Appellant Avila could notreceive a fair trial in Orange County despite the unprecedented unfair and inflammatory pre-trial publicity in this child abduction-molestation- murdercase, the preconceived opinions of Orange County prospective jurors that Appellant was guilty and deservedto die, and therelentless efforts of radio “shock jocks” Ken and Johnto taint the jury selection process. Consequently, Respondentasserts, the trial court properly denied Appellant's repeated motions for a change of venue andhis constitutional rights were notviolated. (RB 20-32) Respondent's assertions are unpersuasive. A. Prejudice Must Be Presumedin this Extraordinary Case Respondent concedesthat there are cases in whichit is impossibleto select an impartialjury in a county saturated with prejudicial media publicity about the crimes and inflamed against the accused. Respondent further concedesthat, under these circumstances,jurors’ assurances of impartiality cannotbe trusted, a change of venueis constitutionally required, and an affirmative showingof actual juror bias is not necessary in order to obtain appellaterelief. (RB 29; People v. Prince (2007) 40 Cal. 4° 1179, 1216-1218; Rideau v. Louisiana (1963) 373 U.S. 723) Asdiscussed morefully in the Appellant’s Opening Brief, the instant case is such a case. Five-year-old victim Samantha Runnion was abducted while playing in front of her home, taken to a remote mountain area, and sexually molested and murdered. Herfuneralservice, held in Orange County’s famed Crystal Cathedral, was attended by thousandsof residents and broadcast on national television. She was dubbed by Orange County officials as “ourlittle girl” and a large shrine waserected in her honor. Appellant Avila was repeatedly vilified by the Orange County media as a serial rapist and pedophile, wrongfully acquitted of previous molestations, who wasguilty of the current offenses, and who posed a deadly menace to children. Hundreds of county residents wrote letters demanding that he be put to death. A public opinion survey revealed that a large majority of the community was convincedofhis guilt and that he deserved the death penalty, based solely upon whatthey had read andheard, before jury selection commenced. From the onsetof the case through jury selection, popular radio commentators Ken and John, by their own admission, were doing everything in their powertotaint, pollute, and contaminate the jury pool. They -3- communicated directly with prospective jurors via email and telephone, in violation of the trial court's order. They invited their listeners to call in and broadcasttheir strong opinions that Avila was guilty and should die an excruciating death. And, they were urging their radio listeners, if summoned as prospective jurors and assigned to the Avila case, to lie underoath, claim they neverheardofthecase, give false assurancesof impartiality, get selected, find Mr. Avila guilty, and give him the death penalty which he deserved. (See transcripts of radio broadcasts appended to second defense Motion For Change of Venueat 46 CT 12234-12283) Typical of the statements madeare the following: John: Ken: Ken: John: Ken: John: “Yeah, that Avila is guilty and, ... brutally, ... murdered, ... Samantha Runnion, ...” (46 CT 12235) “Andthen,later, was accused of child molestation in a separate case...” (46 CT 12235) “You know what'd be great? You know whatI'd love? Is to have a John and Kenstealth juror ...to make it... Somebody wholistens to us all the time...” (46 CT 12239-12240) “Butif he's... Convicted, it could be thrown out on appeal.” (46 CT 12240) “Onlyif they find out. . .” (46 CT 12240) “No,that... guy’s gotta go down. That guy’s gotta go down because ... when you hearthe details . .. and you hearthe -4- John: John: evidence they have and the DNA... it is... just so disgusting, so revolting .. .and he already got away once on those child molestation charges outin Riverside. He's not gonnaget away again...” (46 CT 12240-12241) “,.. Denise Gragg is the Assistant Public Defender in Orange County and she has chosen.. . as her coursein life. . . to try to get Alejandro Avila off... although he's been charged with kidnapping. . . sexual abuse and murder. And Denise Gragg thinks this guy oughta be back onthe streets so he can kidnap someotherlittle 5 year-oldgirl... rape ‘em... or sexually abuse them in some way .. . and then kill ‘em ...and leave their naked body lying in the sun. Shethinks that's a good thing ... and she gets angry because .. . Ken and I think that's not a goodthing . . [soundeffect]... the presumption of innocenceis only in the courtroom... But outside that courtroom... we can believe and say anything we wannabelieve and say . .. and I can express that on the radio...I really can... I think Alejandro Avila... murdered. . . sexually assaulted, kidnapped Samantha Runnion. I can sayit all day, all night, and there's nobodyin the governmentand nobodyin law enforcement...no where can stop me.” (46 CT 12260-12261) “...I think... beyond a reasonable doubt Alejandro Avila is guilty of killing Samantha Runnion... and I say this before the trial [sound effect]... and what are you gonnato do aboutit... [soundeffect] .. . [laughing] . . . (46 CT 12265) -5- Brie: John: Kendra: John: Tony: [telephonecaller] “Hi, my nameis Brie andI believe . . . that Alejandro Avila, murderer and sexual predatoris guilty, guilty, guilty ... of [sound effect] ... kidnapping and murdering and sexually abusing Samantha Runnion andhe should be putto death. She deserved herrightto life and he deservesa right to die ‘cause he's guilty, guilty, guilty!” (46 CT 12268) “... thank you for contaminating the jury pool, Brie.” (46 CT 12268) [telephonecaller] “Hi. Yes. I think you provided a unique opportunity here. I live in Orange County and... I wanna make sure I don't end up on this gruesomecase. . . and, so, I try to read everything I can about this Mr. Avila guy andI think he's guilty as sin.” (46 CT 12277) “You know what I wish. ..I wish the people who.. . feel this way would somehow... sneak their wayinto the jury pool. . and whatyou have... to do is that you fake it and pretend you don't know anything about the case and then you get on... the jury and you‘lie in weight' (sic) and then you . . . push for the guilty verdict in the jury room. So,... that's my purposehereis to infiltrate the jury ... with tainted jurors.” (46 CT 12277) [telephonecaller] “...I am alaw enforcementofficer with a major police departmentin Southern California . . . and I'm very familiar with the case because, as I was getting ready to expect the birth of my first daughter. . . this S.O.B. murdered, raped, andkilled this poorlittle girl. So, I'm hopin’ to render my expert -6- John: Tony: Laura: John: Laura: John: Joanne: opinion as a sworn law enforcementofficer and detective, that he is absolutely, positively, 100% guilty . .. well, they won't take me ‘cause I'm a cop, but I'm hopin’ they take my wife or family memberandI'll do everything I can to... coach them on how to get on the jury...” (46 CT 12278) “Well, remember, you can't mention that you listened to this show ‘cause they'll ... throw you out immediately.” (46 CT 12278-12279) “Oh, no no. ... Well, I'll tell everybodyout there, the guy is guilty. Noifs, ands, or buts and I am an expert opinion onthis. So, I hopeI've done mypartto pollute the jury pool.” (46 CT 12279) [telephonecaller] “...1 am very passionate aboutthis case ‘cause Thad a 5 year-old curly haired daughter at the sametimethis happened ... and I want that bastard to remember when he grabbed her howshe cried for her mom and her grandma [crying] ... and he killed her. There's nothing that I don't think anybody could do that would be bad enough or mean enoughto do whathedid to thatlittle girl.” (46 CT 12281-12282) “Laura, say his name.” (46 CT 12281) “Samantha Runnion... and Avila.” (46 CT 12282) “There you go [soundeffect]. Alright. Now,you've... officially tainted the jury pool. Thank you.” (46 CT 12282) [telephonecaller] “I wanted to say Alejandro Avilais guilty of murder. . . [soundeffect] . . . not of killing, but of torture and -7- murderinglittle Samantha Runnion .. . andit's too bad California doesn't have the electric chair any more... ‘cause that's what he deserves. I believe that.. . it should be televised.. . giving him the needle, the shot, is too good for him. He deservestheelectric chair. (46 CT 12282) John: “Well, thanks very much. I just hope Denise Graggis listening.” (46 CT 12282) Mike 2: [telephonecaller] “. . . I just wannatell you that, as a law enforcementofficer ... Alejandro Avila, murdererslike him... whenthey do stuff to Samantha Runnion andgirls .. . victims like that just makes me wishthat, instead of takin’ ‘em to jail. we could drive them out to the desert someplace .. . put a bullet in ‘em and leave ‘em for coyote's food.” (46 CT 12283) John: “Allright... and you made a stronger case now for Denise Gragg to have this moved out of Orange County.” (46 CT 12283) To believe that a fair and impartialjury trial was possible in Orange County in such an atmosphereis to ignore reality and live in a dream world. Respondent's reliance on other high profile cases in which denials of changes of venue have been upheld is misplaced. Skilling v. United States (2011)___—-U.S.___ [130 S. Ct. 2896, 177 L. Ed. 2"¢ 619] involved a financial fraud perpetrated by Enron executives and the victims were upsetthat they had been cheated. Avila's case involved the kidnapping, sexual molestation, and murderofa little five-year-old girl which resulted in hysterical demandsfor the Defendant's death. As this Court has recognized, sexual child murdersare particularly likely to have the “sensational overtones” necessitating a change of venue.(People v. Green (1980) 27 Cal. 3" 1, 46): Contrary to Respondent, the nature of the crimes and the emotionsarousedinthelocal community makes a huge difference in determining whetheror not jurors can remain untouchedbypervasive pre-trial publicity, and whetheror not their assurancesthat they can befair should be acceptedat face value. Respondentrelies heavilyon People v. Famalaro (2011) 52 Cal. 4" 1, another Orange County abduction, sexual molestation, murdercase, tried ten years before Avila’s, in which this Court upheld a denialof a change of venue. However, in Famalaro, the media coverageat the timeof trial was generally factual and contained no inadmissible or prejudicial material. (Famalaro, supra, 52 Cal. 422-23).' In this case, in dramatic contrast, public passions werere- inflamed on the eveoftrial and during jury selection by the vitriolic radio broadcasts of Ken andJohn andtheir uniquely prejudicial last-minute campaign to taint the jury selection process and impanel“stealth jurors,” secretly " Somereports did mention thatthe victim's parents wanteda death sentence. -9- committed to convicting Avila and sentencing him to death. Thecapacity of radio broadcasters to incite and exploit the listeners’ emotions anddesire to exact revenge against those they perceive as a threat to society by any andall meansnecessary has been well documented.’ Respondentbarely mentions Ken and John (at RB 22) andfails to explain why, in view of whatthey did, it “makes good sense”(or indeed any sense)to rely on the jury selection process to weed out problematic or biased jurors. Thelack of other available remedies also distinguishes this case from cases like Famalaro and weighedheavily in favor of a change of venue. Respondent acknowledgesthat in Appellant Avila’s case, unlike in Famalaro, the trial court refused to allow the defense additional peremptory challengesto eliminate six jurors who had been exposed to the extensive inflammatory publicity, who were particularly unlikely to be able to overcome their pre-conceived prejudices, and who the defense remained convinced could not give Avila fair trial. The refusal to allow the defense to excuse these jurors exacerbatedthetrial court’s refusal to grant a change of venue andsubstantially * Oneneedonlyrecall Joseph Goebbels’ anti-Semitic radio broadcasts of the 1930s. Another tragic example of the power of radio was the Rwandan genocide which waslargely kicked off by a series of radio broadcasts advocating Hutu violence against Tutsis. Three of the Rwandan broadcasters were subsequently convicted of aiding genocide in later United Nations warcrimes tribunals. (news.bbc.co.uk/2/hi/africa/3257748.stm; Jamie F. Metzl, Rwandan Genocide andthe International Law of Radio Jamming, 91 AMJIL 628, 629 (1997)) -10- increasedthe likelihood Appellant would notreceive fairtrial. Respondent suggests Appellant should have requested a further continuanceto allow the media frenzy and passionsto subside. (Cf. Sheppardv. Maxwell (1966) 384 U.S. 333, 363 [“where there is a reasonable likelihood that prejudicial newspriortotrial will preventa fair trial, the judge should continue the case until the threat abatesor transfer it to another county not so permeated with publicity”]) Had Appellant done this, Respondentclaims, a changeof venue might have been unnecessary. Notso. Thetrial had been repeatedly continued andjury selection did not commenceuntil almostthree years after the offenses were committed. Andyet, the passage of time provedanineffective safeguard because of the campaign wagedby the “Shock-Jocks” Ken and John during jury selection to deny Appellanta fair trial and to ensure his death. Radio Shock-Jocks are by definition sensationalists. A further continuance would simply have provided Ken andJohn additional opportunity to taint the jury-selection process. Respondentalso relies on People v. Bonin (1988) 46 Cal. 3659, the “FreewayKillings” case. Mr. Bonin was convicted of multiple murders in separatetrials, the first in Los Angeles County, the second in Orange County. A substantial amountof time elapsed betweenthe twotrials. This Court upheld -l1- the denial of a defense motion for a change of venue and additional peremptory challenges by the Orange County trial court. However, the circumstancesin the Bonin case andthe instantcase are strikingly different. The Bonintrial court denied the motion,in large part, because (1) the publicity in Orange County subsequentto the conclusion of the Los Angeles case had been minimal; and (2) there were nopolls indicating how many Orange County residents had heard aboutthe case or formed any opinions aboutit. (Bonin, supra, 46 Cal. 3"! at 674- 675) Here, we have unprecedented massive inflammatory pre-trial publicity in Orange County, polls indicating a large majority of Orange County residents had “convicted” Appellant Avila and decided he deservedto die beforethetrial commenced, and radio personalities communicating directly with prospective jurors during jury selection in violation of a court order and urging them tolie, get on the jury, and pronounce a death sentence. Contrary to Respondent, the two cases are anything but “comparable.” Respondentacknowledgesthat in People v. Davis (2009) 46 Cal. 4" 539, the notorious Polly Klaas kidnapping, sexual-molestation, child murder case, which is most comparable to Avila’s case, this Court upheld the Sonoma County trial court’s findingthat a fair trial could not be held in Sonoma County andthat a change of venue out of Sonoma County and into Santa Clara County was necessary. -12- Respondentseemsto recognize the similarity between Appellant Avila's case and Mr. Davis' case. Respondentdoesnotchallenge the necessity of the change of venue out of Sonoma Countyin Davis. Yet, he insists that a change of venue out of Orange County wasnotnecessary in Avila's case. Respondent notes that Mr. Davis made a second unsuccessful change of venue motion in Santa Clara County and complainedthat the first change of venue to Santa Clara did him no good because the media coverage permeated that county as well and prejudiced the people of that county against him. Respondent, adopting Mr. Davis’ argument, reasons by analogy that a change of venue from Orange County to some neighboring county would not have benefitted Avila since the “shining light of publicity” would simply have followed him. (RB 25-26) This argument, like that made by Mr. Davis and rejected by this Court, is unpersuasive. Changesof venue out of the county where the crimes were committed and into another county in these extraordinary emotionalcases do substantially increase the defendant's chancesof receiving a fairtrial. As this Court explained in Davis, it is not the amountof publicity alone, but the passions aroused against the defendantin the county, which determines whether a fair trial can be had. The level of passion in the county wherethe crimes occurredis generally muchgreater than in any other county. (Davis, supra, 46 Cal. 4" at 569- 581) -13- In Davis, the Sonoma County prospective juror surveys and question- nairesindicated a very high level of personal and community involvement with child-victim Polly Klaas and her family and prejudice against her accusedkiller. Seventy-two percent of Sonoma county residents admitted the case had affected their lives, and a great many had participated in the search for Polly after her abduction, attendedor listened to her memorial service, given moneyto the Polly Klaas Foundation, and/or visited the crime scene. In addition, the majority of residents had decided Davis wasguilty before jury selection began. And, during jury selection, despite the court’s admonitions, prospective jurors improperly discussed the case and made inflammatory comments aboutthe defendant's guilt and how heshouldbekilled.(Id.) In contrast, in Santa Clara County, the level of personal involvement and the passions aroused against Defendant Davis werefar less. Only 26 percentof the residents surveyedsaid the case had affected their lives, relatively few had listened to Polly's memorial service or visited the crime scene, and only three percenthad participated in the search for Polly or given moneyto the foundation established in her honor.(Id.) Thus, in Davis, a change of venue out of Sonoma County wasjustified. A second change of venue out of Santa Clara County wasnot. -14- In Appellant Avila’s case, a change of venue out of Orange County,like the change of venue out of Sonoma County in Davis, was necessary to protect the defendant's right to a fair trial by an impartial jury. Avila’s case, like Davis, involved an unprecedentedfirestorm of publicity in the county wherethe crimes were committed. The crimes reported in the instantcase, like those reported in Davis, inflamed the emotions of prospective county jurors and madea fairtrial in that county impossible. The similarities between Davis and Avila are remarkable. The funeral for child-victim Samantha Runnion, “Orange County’s little girl,” like the funeral of Polly Klaas, was attended by thousandsof county residents and watched by many thousands moreontelevision. A Joyful Child Fund, similar to the foundation established in Polly Klaas’ name, wasset up. The percentage of county residents who assumed in advance Appellant Avila was guilty was higher even than in Davis. Furthermore, in Avila’s case, as in Davis, prospective jurors disregarded the court’s admonitions and made inflammatory comments during jury selection about Appellant's guilt. To be clear, in Appellant Avila’s case, as in Davis, the visceral emotional involvementof the prospective jurors and the intensity of their feelings about the child-victim’s accused murdererwasatits zenith in the county wherethe crimes were committed. There is nothing in this record which indicates the level -15- of passion and prejudice against Appellant Avila would have been the sameif a changeof venue out of Orange County had been granted andthe case transferred into another county. Alternatively, assuming for argument’s sakethata fair trial in a neighboring Southern California County (e.g., Los Angeles or San Diego County) might not have beenpossible becauseof thespill-over effect of the Orange County pre-trial publicity, this just means the case should have been transferred to a county farther away. Asthis Court has recognized, “in counties geographically removed from the locale of the crime, lack of a sense of community involvementwill permit jurors a degree of objectivity unattainable in thatlocale” and “local consciousnessof the community's reputation for peace and security will be eliminated.” (People v. Davis, supra at 46 Cal. 4" 577, quoting Corona v. Superior Court (1972) 24 Cal, App. 3" 872, at 883.)° Accordingly, this is a case where it must be presumedthat it was impossible to select a fair and impartial jury and that a change of venue out of * Respondent summarily dismisses Daniels v. Woodford (9" Circuit 2005) 428 Fed. 3° 1181, sinceit is not binding on this Court as a matterofstare decisis andis contrary to this Court's earlier decision in the samecase.(i.e., People v. Daniels (1991) 52 Cal. 3" 815, 851-853) (RB 25, footnote 16) However,the decisions of intermediate federal appellate courts, while not controlling, may be persuasive. (Forsyth v. Jones (1997) 57 Cal. App. 4"* 776, 782-783; see also Rohr Aircraft Corporation v. San Diego (1959) 51 Cal. 2° 759, 764) Nothing precludes this Court from reconsidering Daniels in light of the federal court’s reasoning. -16- Orange County wasconstitutionally required, Respondent’s arguments notwithstanding. B. Appellant Established a Reasonable Likelihood That He Could Not Receive a Fair Trial in Orange County Contrary to Respondent's assertion, Appellant established a reasonable likelihood that he could notreceivea fair trial in Orange County underthe five factors analysis traditionally used by this Court.‘ Respondent recognizesthatthe first of these factors—the nature and gravity of the offenses—weighed heavily in favor of a change of venue. Appellant wasfacing the death penalty for kidnapping, sexually molesting, and murdering a child. This is precisely the kind of sensational case that requires a change of venueout of the county where the crimes were committed.(People v. Green (1980) 27 Cal. 3" 1, 46; People v. Fauber (1992) 2 Cal. 4" 792, 817-818; People v. Davis, supra, 46 Cal. 4", at 569 et seq.) The secondfactor, pertaining to the nature and extent of the media coverage, also weighed heavily in favor of a change of venuefor the reasons discussed aboveandin the Appellant’s Opening Brief (pages 21-48). Respondent, while he admits there wasa “significant amount” of inflammatory * Respondentfalsely asserts that Appellant has conceded that four of the five factors did not warrant a change of venue.(RB 23). Not so. (See AOB 44-48) -17- pre-trial publicity, points out that the publicity subsided somewhatafter Appellant's arrest. However, what Respondentoverlooksis that the effect of the publicity had not diminished. Indeed, the Orange County public's awareness of what had happened to Samantha and whatAvila had allegedly done remained very high more than twoyearslater, with over 86 percent of the potential jury poolstill familiar with the case and about 72 percentofthese convinced of his guilt, based solely upon whatthey had read and heard. Moreover, Respondentfails to address the effect of Ken and John’s incendiary radio broadcasts and e-mail and telephone communications with the prospective jurors during jury selection calculated to ensure Avila’s death sentence. Respondent's reliance on the jury selection process to weed out problematic or biasedjurors in this case is misplaced for the reasons previously discussed andparticularly in light of what Ken and John did duringjury selection. It is true that the jurors selected assuredthetrial court they could be fair and impartial. Butit is equally true thatthis is precisely what they would say if they followed Ken and John’s advice—tolie in orderto get on the jury and pronouncea death sentence. Thetrial court had no wayof detecting and eliminating these “stealth jurors” andit is at least reasonablylikely that some of -18- them survivedthe jury selection process and denied Appellantthe fair trial he wasconstitutionally entitled to. Respondentcorrectly points out that the third factor—the size of Orange County’s population— weighedagainst a change of venue. However, this Court has held that population aloneis not determinative. (Fain v. Superior Court (1970) 2 Cal. 3"! 46, 52, footnote 1) Moreover, defense counsel’s exhaustionofall 20 of her peremptory challenges and requestfor six additional peremptory challenges indicates she remained deeply concerned aboutthe jurors’ fairness and regarded the trial court’s hope that an unbiased jury could be selected in Orange County as little more than an exercise in wishful thinking. (Cf. People v. Daniels, supra, 52 Cal. 3%. 854 [“In the absence of some explanation for counsel's failure to utilize his remaining peremptory challenges, or any objection to thejury asfinally composed, weconcludethat counsel's inaction signifies his recognition that the jury as selected wasfair and impartial”]; People v. Leonard (2007) 40 Cal. 4" 1370, 1397 [jurors’ exposure to pre-trial publicity in “Thrill Killer” case in populous Sacramento County apparently wasnotof great concern to defense which exercised only 13 of its 20 peremptory challenges and supportstrial court's conclusion that unbiased jury could be found]) Respondent acknowledgesthat the fourth factor—the Appellant's relative -19- lack of Orange County community ties—was a “neutral” factor which did not weigh heavily for or against a change of venue. Respondentalso admits that the fifth factor—“the victim’s posthumous celebrity status—may havefavored a change in venue” out of Orange County. Respondent assumesthat the problem posedbythe child-victim’s prominence would have been the same in any county in which “venue ultimately resided.” However, this is simply not so. As previously discussed, the emotional involvementof prospective jurors with the child-victimsin caseslikethis is muchgreater in the county wherethe child was abducted, molested, and murdered. That was why Richard Davis could never havereceiveda fairtrial in Sonoma County where Polly Klaas was murdered,but could get onein Santa Clara County. Similarly, that is why Appellant Avila, the accused murdererof “Orange County’slittle girl” Samantha Runnion, could notreceivea fair trial in Orange County, and wasfar morelikely to receive one in another county. In sum,threeof the five factors—the nature and gravity of the offense, the nature and extent of the media coverage, and the prominenceof the victim— weighed heavily in favor of a change of venue, only one factor (the size of the county) weighed somewhatagainst a change of venuebut provedinsufficient to ensurea fair trial, and the last factor—the Defendant'srelative lack of -20- community ties—was a neutral factor. There was a reasonable likelihood Appellant could notreceive a fair trial in Orange County and a change of venue should havebeen granted. C. Respondent Has Not Established That The Refusal to Grant a Change of Venue Was Harmless Beyond a Reasonable Doubt Respondentarguesthat, even if the trial court committed error in denying a change of venue, Appellant Avila is not entitled to a reversal on appeal since he hasfailed to establish a reasonable likelihood that he was prejudiced;i.e., he did notin fact receivea fair trial. (See People v. Proctor (1992) 4 Cal. 4" 499, 523; People v. Harris (2013) 57 Cal. 4" 804, 830-831) But, this is the wrong standard. The refusal to grant a change of venuein a capital case, where there is a reasonable likelihood the defendant cannotreceive fair trial and penalty determination by an impartialjury, violates his Federal constitutionalrights. (Sheppard v. Maxwell, supra) Federal constitutional errors are subject to federal harmlesserror analysis under Chapmanv. California (1967) 386 U.S. 18, 24. The beyonda reasonable doubt standard of Chapman requiresthe prosecution, as the beneficiary of a federal constitutional error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict. (Yates v. Evans (1991) 500 U.S. 391, 403) Respondent has not proven beyond a reasonable doubt -21- that the jurors selected to try this case were somehowable to putasidetheir preconceived opinions that Appellant Avila was guilty and deservedto die, disregard Ken andJohn’s vicious campaign to ensure Appellant's death, and decide this case based solely on the evidence actually presented. Indeed, the very fact that the jury found Appellant guilty of every crime with which he was charged and foundthe special circumstancesallegations true, even thoughthere were significant weaknessesin the prosecution's case (as discussed at AOB, pages 72-75) tends to showit was prejudiced against him.(Cf. People v. Harris, supra, 57 Cal. 4" 831 [Court agrees with Attorney Generalthat jury’sfailure to convict the defendantof all charged offenses tends to showit wasnot prejudiced against him, but rather wasable to fairly evaluate the evidence presented]) Additionally, it would be inappropriate to require Appellant to prove he wasin fact prejudicedbythetrial court’s refusal to grant a changeof venuein this extraordinary case where prejudice must be presumed. Accordingly, despite Respondent's arguments,the trial court’s adamant refusal to grant a change of venue requires reversal. -22- Il. THE TRIAL COURT’S FAILURE TO ALLOW ADDITIONAL DEFENSE PEREMPTORY CHALLENGES REQUIRES REVERSAL Respondentrecognizes that a defendantis constitutionally entitled to additional peremptory challenges, over and above the 20 normally allowed by statute in a capital case, if it is likely that in the absence of the additional challenges he cannotreceive a fair trial. (People v. DePriest (2007) 42 Cal. 4" 1, 23) Respondent, nonetheless, asserts the trial court properly denied Appellant Avila’s request for additional peremptory challenges because there was no likelihood of an unfair trial. Respondent's assertion is based uponhis view that, despite the unprecedented inflammatory pre-trial publicity and the passions ignited by Samantha Runnion’s kidnapping-molestation-murder in Orange County, this case was not so extraordinary that extraordinary remedieslike a change of venue or additional peremptory challenges were necessary. (RB 32-36) Appellant disagrees. For the reasons previously discussed in regard to the changeof venueissue, this is precisely the kind of case where extraordinary remedies wereessential. Respondent argues Appellant failed to avail himself of all of the other remedies available to him and suggests that, had Appellant doneso, additional peremptory challenges would have been unnecessary. -23- This argumentis strained and unpersuasive. Appellant repeatedly moved for a change of venue, obtained numerouscontinuances, challenged prospective jurors whom he believed were biased for cause, and exhaustedall of the peremptory challenges he wasstatutorily entitled to. Respondent contends Appellant should have requested a further “continuanceof the trial to further allow the media spotlight to fade.” However, once again, the trial had already been continued for nearly three years and the passageof time had provento be an ineffective remedy dueto the relentless and despicable efforts of Ken and John to impanela biased jury. Again, there is no reason to believe that a further continuance would have deterred Ken and John or increased Appellant’s chancesof receiving a fair and impartialadjudication based solely on the evidence. Appellant did everything he could reasonably have been expectedto. His only remaining available option was to request additional peremptory challenges. Respondent suggests no additional peremptory challenges were needed since the six jurors Appellant wantedto excuse all stated they could put aside their acknowledged biases and preconceptions and werenotexcusablefor cause. But jurors not excusable for cause are not immune from peremptory challenge. Onthe contrary, the purpose of peremptory challengesis to getrid of jurors a -24- party is convinced cannotbe fair to him, but whom he has been unable to successfully challenge for cause because they refuse to admit this. The cases cited by Respondentrecognize that, where there are a large numberofthese jurors, the use of additional peremptory challenges is an appropriate remedy. They hold only that, before requesting additional peremptory challenges, the defendant mustfirst attempt to excuse such jurors by challenging them for cause, exhausthis statutorily authorized peremptory challenges, advise the courtof his continued dissatisfaction with the jury, and explain whythereis a reasonablelikelihood that the additional jurors he wishes to excuse will be unable to give him fair trial. (People v. Bittaker (1989) 48 Cal. 3" 1046, 1087-1088, People v. Yeoman (2003) 31 Cal. 4" 93, 118-119) Since Appellantdid all of these things (see AOB 49-51), Respondent’s argumentfails. Contrary to Respondent, Appellant did not haveto provethatthe six jurors he soughtto excuse actually lied or deliberately misled the court about their ability to be impartial. All he neededto establish, and did establish, was that it was reasonably likely they could not give Appellanta fairtrialin lightof, not only their exposure to the inflammatory publicity, but also their personal identification with the victim and her mother and their sympathy with close friends and relatives who had been victimsof sexual assaults. Respondent never -25- explains how jurors like these could be objective nor why the defense should not have been permitted to excuse them by peremptory challenge. Respondent's contention that Appellant has failed to establish he was actually prejudiced by the denial of the additional peremptory challenges precludes appellate relief is without merit for the same reasonsashis similar contention in regard to the denial of the change of venue. (See ArgumentI-C, ante) Appellant has established a reasonable likelihood that six of the twelve jurors whofound him guilty and sentenced him to death were incapable of judging him fairly, based solely upon the evidence presented in the courtroom and thathis federal constitutional rights were violated. Respondent has not proven beyond a reasonable doubtthat the prejudices and preconceived opinionsof these jurors did not affect the jury’s verdicts as required under Chapmanv. California, supra. Despite Respondent's objections, the trial court’s errorin disallowing additional peremptory challenges, especially when coupled with that court’s refusal to grant a change of venue, requires that the judgmentbe reversed. -26- HI. THE TRIAL COURT DEPRIVED APPELLANT OF A FUNDAMENTALLYFAIR TRIAL AND PENALTY DETERMINATION BY ADMITTING EVIDENCE HE HAD PREVIOUSLY MOLESTED OTHER CHILDREN Respondentcontendsthetrial court properly admitted evidence Appellant Avila molested other children, during both the guilt and penalty phasetrials, pursuant to Evidence Codesections 1101, 1108, and 352 and Penal Code section 190.3, subdivisions (a) and (b). According to Respondent,this evidence wasrelevant and did notcreate any substantial danger of undue prejudice. (RB 36-49) This argumentis unsupportable. Respondent, abandoning the prosecution’s position in the trial court, all but concedes that during the guilt phasetrial the other offenses were not admissible to prove Appellant Avila’s identity as the perpetrator of the charged offenses involving Samantha Runnion under Evidence Codesection 1101. Respondent doesnotassert that the charged and uncharged crimes shared common features that were so unusualand distinctive as to be like a signature. (People v. Ewoldt (1994) 7 Cal. 4" 380, 403; People v. Vines (2011) 51 Cal. 4" 830, 856; People v. Edwards (2013) 57 Cal. 4" 658, 710-712) Instead Respondentstates that this Court need not decide this issue since the evidence was admissible for other reasons.(RB 44, footnote 20) Respondent arguesthe prior offenses were admissible undersection 1101 -27- and Ewoldt, supra, to show that Appellant Avila probably harbored anintent to molest a young blondgirl. However, according to Respondent, the young blond girl who Avila was supposedly attracted to, believed he wasfree to molest again with impunity after the previous acquittals, and expected to find at the Smoketree Condominium complex was Catherine Coker (Lizabeth Veglahn’s daughter), not Samantha Runnion.(RB 44-46) Respondentfurther undermineshis argument by admitting that the prior offenses involving Catherine were dissimilar from those perpetrated against Samantha in many ways. For example, Catherine, unlike Samantha, was not abducted in broad daylight while playing outside her home andthe offenses Appellant was found not guilty of committing against Catherine were far less brutal than those perpetrated upon Samantha.(Id.) Respondenttheorizes that Appellant Avila might have decided to “prey” upon Samanthain the hope she might recognize him from his previousvisits and not be on her guard. Respondentalso hypothesizes that Avila later decided to kill Samantha since he perhaps realized his alleged threatto kill Catherine if she reportedhis transgressions had been unavailing and feared he might be caught. (Id.) Butall of this is mere speculation and is not based upon the evidence or any reasonable inferences drawn therefrom. -28- The Catherine Coker offenses were notsufficiently similar to the Samantha Runnionoffenses to be admissible to prove intent, and this is especially true since the intent of Samantha’s assailant was neverdisputed. Respondentarguesthat, even if not admissible under section 1101, the prior offense evidence was admissible as propensity evidence undersection 1108 and People v. Falsetta (1999) 21 Cal. 4" 903, 915. However, as Respondent acknowledges, this is true only if the limited probative value of this evidence wasnot outweighed by the danger of undueprejudice in the mindsof thejurors. (RB 46-48) As explained in the OpeningBrief, the undue prejudice in this case was enormousin view ofthe jury’s exposure to the unprecedented publicity portraying Appellantas a habitual pedophile and the continual disparagement of the jurors who had acquitted him of the previous molestations as “vegetables” and “idiots” by Ken and John. This is precisely the kind of case wherethe jury would find the temptation to convict the defendantof the charged offenses, regardlessof his guilt, in order to assure that he would be punishedfor the previous crimesirresistible. (People v. Ewoldt, supra, 7 Cal. 4" 405; cf. People v. Balcom (1994) 7 Cal. 4" 414, 427 and People v. Edwards, supra, 57 Cal. 4713) -29- Respondentnaively asserts that, despite this, the jury would somehow be able to disregard orlimit their consideration of this evidence just because the trial court instructed them to do so. But Respondentfails to tell us how this would be humanly possible. As one of our greatest jurists has written: “The naive assumptionthat prejudicial effects can be overcomebyan instruction to the jury [citation] all lawyers know to be an unmitigated fiction.” (Krulewitch v. United States (1949) 336 U.S. 440, at 449, Mr. Justice Jackson concurring) Respondentseemsto be suggesting that, assuming the evidence was legally sufficient to support the jury’s verdicts, this necessarily meansit was so conclusive Avila would have been convicted as charged even in the absence of the prior crimes testimony. (RB 47-48) If so, Respondentis badly confused. In any event, for the reasons discussed in the OpeningBrief (at AOB 72-75), the evidence against Avila was not as conclusive as Respondentbelieves and the introduction of the alleged prior crimes evidence during the guilt phase trial was anything but harmless. For example, Respondentignoresthe curiousfact that Samantha wasneverseen in Avila’s car in the hours which elapsed between her abduction and demise while he presumably was driving with herall over Southern California. The best Respondentcan dois describe Avila’s movements and whereabouts as “unusual” and “suspicious.” Or, to take another example, ~-30- while Respondentis quick to point out that Samantha’s DNAwaslater found in Avila’s car, he does not mention that it was not found thefirst time the car was carefully searched by a notably experienced forensic expert, and somehow magically appeared only after the expert’s superiors insisted she search the cara second time. The introduction of the prior crimes evidence into the penalty phase was both erroneousandprejudicial. Contrary to Respondent, none of the previous incidents could be consideredasfactor (a) evidence since they were not relevant to provide “insight” into Appellant Avila’s state of mind at the time of Samantha’s murder, 18 months after he was acquitted. As discussed above, the supposed relevancy wasbasedpurely on prosecutorial speculation rather than any evidence. Respondent acknowledgesthat the jury could not considerthe incidents involving Catherine and Alexis as factor (b) evidence since Appellant Avila had been acquitted of them (People v. Heishman (1988) 45 Cal. 3"¢ 147; People v. Lewis & Oliver (2006) 39 Cal. 4 970, 1052), but the prosecutor nonetheless made “limited” references to these incidents anyway. (RB 41) It is true thetrial court instructed the jury that, before they could consider the evidenceof other alleged criminal molestations as an aggravating -31- circumstance, they hadto find these crimes were committed beyond a reasonable doubt. However,the jury should_never have heard this evidence. Forthe reasons already discussed, the evidence regarding Catherine, Alexis, and Cara was enormously prejudicial and madea fair penalty determination impossible. Again, while the jury might have unanimously concluded that Appellant should be put to death based uponthe aggravated nature of the offenses and the pain experienced byherfamily, this is not a foregone conclusion. The defense presented abundant mitigating evidence and someorall of the jurors might have decided to spare Appellant's life had they not heard aboutthe prior alleged molestations. Consequently, while Respondentstruggles mightily to persuade this Court otherwise, Appellantis entitled to a reversal of the entire judgmentor, at the very least, a new penalty trial. -32- IV. THE TRIAL COURT DEPRIVED APPELLANT OF A FUNDAMENTALLYFAIR TRIAL AND PENALTY DETERMINATION BY ADMITTING INFLAMMATORY PHOTOGRAPHSOF THE VICTIM’S BODY AND TESTIMONYDESCRIBING “DISGUSTING” PORNOGRAPHY FOUNDON THE AVILA FAMILY COMPUTER Appellant Avila is confident that this issue has been—for the most part—adequately briefed (see AOB 77-88; RB 49-55), that most of Respondent's arguments were anticipated and replied to in the Opening Brief, and that no purpose would be served by simply repeating those samepoints here verbatim. Suffice it to say that, while Respondentarguesat length that the photographs and pornography wererelevantto help the jury understand the savage manner in which Samantha Runnion was assaulted and murdered and her body discarded and Appellant's sexualattraction to younggirls, their real purpose wasto inflamethe jury against Avila as a depraved “animal” who neededto be exterminated. Contrary to Respondent, Appellantis not arguing thatall autopsy and crime scene photographsshould be excludedasa matter of law in every capital case merely because they are unpleasant. Butin this case there wasclearly no legitimate reason to show thejury close-up photographsofthe child-victim’s naked body with legs spread and bleeding sex organs. Similarly, there was no legitimate reason whythe jury had to know aboutan adult man engagingin sexual activities with his granddaughters when Avila was not accusedofincest. -33- V. THE JURY’S CONSIDERATION OF UNDULY PREJUDICIAL VICTIM IMPACT EVIDENCE DEPRIVED APPELLANT OF A FUNDAMENTALLYFAIR PENALTY DETERMINATION Respondentrecognizesthat victim impact evidenceis admissible only ifit is not so unduly prejudicialthatit is likely to elicit an irrational emotional response and deprive the defendantof a fair penalty determination.(Peoplev. Taylor (2010) 48 Cal. 4" 574, 645-646; People v. Edwards (1991) 54 Cal. 3787, 836) Respondentalso recognizes that showing the jury photographs of Samantha dressed as an angel, coupled with her widely publicized adoption as “ourlittle girl,” waslikely to provoke an emotional response. However, Respondent insists that victim impact evidence cannotbe limited andtailoredin lightof the local community’s predictable visceral response to a child murder.(RB 55-58) This argument makesnosense. The reasonfor limiting this kind of victim impact evidenceis to ensure that the local community’s emotional response does not so inflamethe jurors chosen from that community that a rational penalty determination becomes impossible. Indeed, Respondentpointsoutthatthis is precisely the kind of photographic emotionaltribute to the victim this Court cautioned against in People v. Prince (2007) 40 Cal. 4" 1179, at 1286-1291). The fact that the victim impact evidence, independentof the photographsatissue, mayhavebeenless extensive than in other cases doesnot changetheanalysis. -34- VI. THE TRIAL COURT’S ERRORS WERE CUMULATIVELY PREJUDICIAL Appellant Avila has arguedthat the denial of a change of venue, the refusal to allow him additional peremptory challenges, and the admissionof inflammatory photographs and pornography,as well as evidence of other crimes, considered cumulatively, deprived him ofthe fair trial and penalty determination to which he wasconstitutionally entitled. (AOB 95-96) Respondentargues Avila received a fundamentally fair and untainted trial, even assuming it may not have been “perfect” or error free. According to Respondent, any errors were harmless. (RB 58-59) Whilethis issue has been adequately briefed, Appellant Avila wishes to emphasize thatthe state’s thinly veiled purpose in this case, beginning with Sheriff Corona’s statements and concluding with the prosecutor's impassioned penalty phase argument, wasto overcomethe jurors’ reason and to ensure emotionally driven guilty and death penalty verdicts. Appellant submits that a judgement rendered under such circumstances cannotstand. VII. CALIFORNIA’S DEATH PENALTY STATUTE Is UNCONSTITUTIONAL Respondentarguesthat California’s death penalty law,as interpreted by this Court, is constitutional and that there is no reason for this Court to -35- reconsider its previous decisions. (RB 59-66) Appellant disagreesfor all of the reasons stated in his OpeningBrief. (see AOB 97-142) Appellant believes this issue has been adequately briefed, especially in light of People v. Schmeck (2005) 37 Cal. 4" 240, at 304, and that no further discussion is warranted. CONCLUSION For each andall of the reasons, as well as for all of the reasonsstated in the Appellant’s Opening Brief, the judgment of conviction, the jury’s special circumstancesfinding, and the death sentence should be reversed. NOVEMBER15, 2013 RESPECTFULLY SUBMITTED, JONATHANP. MILBERG ATTORNEY FOR APPELLANT ALEJANDRO AVILA -36- CERTIFICATE OF COMPLIANCE (People v. Alejandro Avila, California Supreme Court Case No. $135855) I, Jonathan Milberg, hereby certify, pursuant to Rule 8.630, subdivision (b) of the California Rules of Court, that the foregoing Appellant's Reply Brief contains 7,802 wordsas counted by the Corel WordPerfect, Version 8 application, and does not exceed 140 pages. November15, 2013 Respectfully submitted, ONATHANP. MILBERG DECLARATIONOFSERVICEBY U.S. MAIL (People v. Alejandro Avila, California Supreme Court Case No. 5135855) I, the undersigned,state that I am citizen of the United States employed in the County of Los Angeles, that I am over the age of 18 years and not a party to this action. My business is 225 South Lake Avenue, 3Floor, Pasadena, California 91101. On November15, 2013, I served the foregoing: APPELLANT'S REPLY BRIEF by placing a true copythereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Pasadena, California, addressedas follows: Bradley A. Weinreb Deputy California Attorney General 110 West "A"Street, Suite 1100 San Diego, CA 92101 Denise M.Gragg Assistant Public Defender Orange County Public Defender's Office 14 Civic Center Plaza Santa Ana, CA 92701 David Brent Assistant Orange County District Attorney 401 Civic Center Drive West Santa Ana, CA 92701 Scott F. Kauffman Staff Attorney California Appellate Project 101 SecondStreet, 6" Floor San Francisco, CA 94105 Hon. William R. Froeberg Judge, Orange County Superior Court Central Justice Center 700 Civic Center Rive West, Dept C40 Santa Ana, CA 92701 I declare under penalty of perjury underthe lawsof the State of California that the foregoing is true and correct, and that this Declaration was executed on November15, 2013, at Pasadena, California. JONATHANP. MILBER DECLARATION OF JONATHANP. MILBERG I, Jonathan P. Milberg, hereby declare: Iam the attorney of record for the Defendant and Appellant in Peoplev. Alejandro Avila, California Supreme Court Case No. 5135855, a death-penalty case. I will personally serve the Defendant with a copy of the Appellant's Reply Brief on or before December15, 2013, and shall notify the Court thereafter in writing that the Defendant has been served, pursuantto Policy Statement4. I hereby declare underpenalty of perjury, under the lawsof the State of California, that the foregoing is true and correct and that this Declaration was executed at Pasadena, California on November15, 2013. JONATHANP. MILBERG
