PEOPLE v. AVILA

Respondent’s Brief

Cal.July 26, 2013

Jn the Supreme Court of the State of Caltfornia THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, CAPITAL CASE Case No. $135855 SUPREME COURT " FILED ALEJANDRO AVILA, Defendant-Appellant. JUL 26 2013 Frank A. McGuire Clerk Orange County Superior Court Case No. 02CF1862— Deputy The Honorable William R. Froeberg, Judge RESPONDENT?’S BRIEF KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND | Senior Assistant Attorney General ROBIN URBANSKI Deputy Attorney General BRADLEY A. WEINREB Deputy Attorney General State Bar No. 157316 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2290 Fax: (619) 645-2271 Email: Bradley.Weinreb@doj.ca.gov Attorneysfor Respondent DEATH PENALTY TABLE OF CONTENTS Page Statement of the Case...eeccscsccssceecessnecceeessnaeeseesteecseteeessneesesseseneeseeeens 1 Statement Of Facts...ccesseseceseeeeeeceeseeeceeecereccessesseeesaeesaesneseveseseesaessess 2 OL Guilt phase evidence...eeeeeceseseeseeeseeeeeeesaeeeeeeeeeearseesees 3 A. Molestations of other girls before Samantha’s abduction and Murder.........cccsseeseeseeeesseeteeeeeeesLeste 3 B. Samantha’s abduction and murder, and the investigation that followed ...........ssseeseeseeneeeneeeees 7 C. Defense .0.....e sc cseescscceceesceeccescesceecceceseresseeereseeaeentaeenees 13 Il. Penalty phase CVidence...........sccscsesssessesseseeeseseessarsseeerscnees 16 A. Prosecution case in aggravatiONn .........::csesecsseeeseeees 16 B. Defense case in MitigatiONn............cssseeesseeneeteeeees 17 C. Prosecution case in rebuttal ...........ccccsesssssseeseeeeees 19 ASLQUMent .........cccesscccesseescssseececesaecesessssceesesseeeesecesecessssusecesessensseseseeeneseeens 20 I, Thetrial court properly denied Avila’s motion for change of venue and noprejudice resulted............eceseees 20 A. The defense motions for change of venue and trial court rUlingS............ es eseeseeseeeeeesreesreesssessetnens 21 B. Because Avila failed to establish a reasonable likelihood of anunfair trial in Orange County, the trial court properly denied Avila’s motion for change Of VENUE «0.0... ecseseeceeeeeeteteseeesseenseneenees 23 C. The pre-trial publicity did not support a presumption ofprejudice ............ceeseeseteeeeesheseeeeees 29 D. Avila fails to establish prejudice ...........cccseceeeeseees 30 Il. Thetrial court properly denied Avila’s motion for additional peremptory challengesas he failed to demonstrate the likelihood of an unfair trial...eee 32 Til. Evidence Avila previously molested other children was properly admitted under Evidence Code sections 1101 and 1108 during the guilt phase and as aggravating evidence in the penalty phase................ setesetees 36 IV. VI. VII. TABLE OF CONTENTS (continued) Page The defense motion to exclude evidenceof Avila’s prior acts of child molestation and the trial court’s ruling regarding the admissibility of the CVIdENCEoeeeecsecesessessssceseesscecessessecsecssseeeses 37 Prior acts of molestation evidence...................Seveeeeee 39 Thetrial court properly admitted evidence of Avila’s prior acts of child molestation under Evidence Code sections 1101 and 1108.00.00... 42 Thetrial court did not abuseits discretion in admitting crime scene photographsorletting witnesses describe pornography found on Avila’s computer...........ccccssseeeees 49 Thetrial court properly admitted victim impact evidence during the penalty phase of Avila’strial.............. ‘55 Avila’s cumulative-error claim fails ......cc.cssseesssessssesseeeen 58 This court should reject Avila’s routine challenges to the California death penalty statute ..00...... ccc ceeceeseeseesseeeees 59 A. Penal Codesection 190.2 is not impermissibly DOA 20.eeeeeceeeeeessseesessesesesscsesssseeensesesseseeesscecerecees 59 B. Penal Code section 190.3 does not allow for arbitrary and capricious imposition of death............ 59 C. California’s death penalty scheme provides adequate safeguards against the arbitrary Imposition Of death ..........eecsesseeesssesseeeeessenesseeeees 60 1, Unanimity for aggravating factors not TOQUITEM 00... eeeeeseseececessestesssessceseeeesseseeenesses 60 2. Avila’s burden ofproof argument should be rejected...ecsessssessesssesseceseecsqeeersnssesenes 61 3. Written findings regarding aggravating factors are not required ..............ccccssessersseeeeees 62 4. There is no need for inter-case PFOPOrtionalityoeeeeeseesseeseessseseeeseseeeees 63 il TABLE OF CONTENTS (continued) Page 5. Consideration of unadjudicated criminal activity does not offend due process............. 63 6. The use ofrestrictive adjectives in sentencing factors is propet............eeeeeeee63 7. Failure to instruct the jury that statutory mitigating factors were relevantsolely as potential mitigating factors is noterror......... 64 D. California’s death penalty schemecomports with equal protection in that it provides adequate procedural safeguards to capital defendants when compared to non-capital Cefendant...........cceseseseesseeseseeseeeetesseesesssesesensneeeeees 64 E, California’s death penalty scheme does not violate international law ...........cesccesseeseseeetenceeeeeees 65 COnCIUSION .........ceececcesessesccsccesssscecsscsevesesseserscsuseceseesceesessseeeesenseracecseeeeeerens66 ill TABLE OF AUTHORITIES Page CASES Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435...cceeeeeseeseeees 61 Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.0... eccessceesseteens 61 Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856.0... eceeseeesteseeeee 61 Daniels-v. Woodford (9th Cir. 2005) 428 F.3d 1181 oeceeeesesesecsecereeteeseeseeeeees seceneeeceneecearens 25 Harris v. Pulley (9th Cir. 1988) 885 F.2d 1354 occeecccccceseesesceseeesseesesensesesseseeseeoenes 29,30 Irvin v. Dowd (1961) 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.0...25, 29, 30, 31 Murphy v. Florida (1975) 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed. 2d 589.0... ccsseesessseseeeees 30 Nebraska Press Assn v. Stuart (1976) 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683.00... ceceeseeseeesreseeees 29 Patton v. Yount (1984) 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847...eee27, 36 People v. Abilez (2007) 41 Cal.4th 472 oooccccescssecsecscecsecsecescedecssesseseenssenssateseeseneneeesens 58 People v. Alfaro (2007) 41 Cal.4th 1277 oiiecseescesseesesseecenecssseesecesescetecsessesseeseeessees 58, 65 People v. Anderson (2001) 25 Cal.4th 543 oooeccessssetceeceeseesesseencsssssesaeeseesseeeeseeesaees 41,57 1V People v. Arias (1996) 13 Cal.4th 92 ooeceecsesseetcceceeeseneceesseeeeeesssesceceeeassseessaseaseses 59 People v. Avena (1996) 13 Cal.4th 394 oooccccccsceseeeceneterseenecesececeeeeeseseeseeseserseeressesees 25 People v. Avila (2006) 38 Cal.4th 491 ooceceeseeeeeeeeeseneceeessersesesesesacesseesesseseseeseseees 64 People v. Avila (2008) 46 Cal.4th 680 0...eeessceeeseceeeeceseneeeeeseens daneeaeeneesesceaseaeetassaees 62 People v. Blacksher (2011) 52 Cal.4th 769 oo.ccecccssesecsnesscensesersenescesecsnaesaeseaseseseeseeeeonees 53, 65 People v. Bonin (1988) 46 Cal.3d 659 oo.ecsesecteesecseceetsecesesseeeseesaeseeseeasenessenaees 27, 28, 36 People v. Booker (2011) 51 Cal.4th 141oeeseeeereeecssecessecseeceersecneesreceseessensssesseseeseses 53 People v. Bramit (2009) 46 Cal4th 122]oecsceseeeeeecereeeeeeesseeeeseseessnesssesseesenseseaes 60, 61 People v. Brasure (2008) 42 Cal4th 1037 oo. ccccsessssessesesssseeseceeseeeseecesceseseessssssssseseeseeses 64 People v. Brown (2003) 31 Cal.4th 518 ooecccsescenessesesseseseaeeeeeeeeeeesseesseesstecnstesseaseneases 50 People v. Brown (2004) 33 Cal.4th 382....... vecesseeetecsseeeeaeeeseecssesaeeeacaccuseecaaecesasecseeeaeeeseeee® 56, 60 People v. Burney (2009) 47 Cal.4th 203 oececcessessssessccsesssseesesesecseseeseseessersessssseesseaes 60, 61 People v. Burns (1952) 109 CalApp.2d 524 oeescsscsesseessesecsssesseessesseseeesereneseeneseneeees54 ‘People v. Carey (2007) 41 Cal.4th109scessesenceceesseseennecseaeeanesseeceaceseeecsesececenseaseas 49 People v. Carrington (2009) 47 Cal.4th 145oeececcneeseeeseeesseeseeseesnsessseesssssseesesseerssnesseasenses 60 People v. Carter (2005) 36 Cal.4th 1114oceccecssesstsseseeeeessesterseecseeseeeeassaseeeeseaes42,50 People v. Coffman & Marlow (2004) 34 Cal4th Doonceceesssssssssssesesessesesesssesescsescessesecsececseseseacesees 31 People v. Cook (2007) 40 Cal4th 1334 oooceseccecesessessestseeseeesesesessessessesssesesesesseaeeess 61 People v. Cooper. | (1991) 53 Cal.3d 771oeseseesesescascecnesseaseseseseassesaneaecaeesaesseecateceeaeeas 31 People v. Cornwell (2005) 37 Cal4th 50 oooceesscsesssessesessecesessessessscssseeseseesseseeestseeneecscsteees 63 People v. Cowan (2010) 50 Cal.4th 401 oocessscssssesessessescsescesscsesessessessessssscseseasensses 54 People v. Daniels (1991) 52 Cal.3d 815 ocessceensssssssssssssssesesesscsssesecsecseeseesesaceecseassesees 25 People v. Davis (2009) 46 Cal4th 539 ooeccsccsccsscesscssessscesesscsscsssscerscrsseeeescserseeaespassim People v. Demetrulias (2006) 39 Cal4th onceecscsessseeesessassecssessssssssesesseseesesesassesserseseeees 66 People v. DePriest (2007) 42 Cal.4th 1 oececseseseeseeeseeeees secsecaeeaeenteneeeeenessencaenesneeanennseasens 33 People v. Doolin (2009) 45 Cal.4th 390 ooecscsccssssessssssscssessescsesscsssseseessssaeesseess 62, 65, 66 People v. Dunkle . (2005) 36 Cal.4th 861eecccccsssssssessesessssssesessescessscsscsesesessesceseeesseeeseeees 62 People v. Edwards (1991) 54 Cal.3d 787 oecesessscecsssessesessescsseesesesseteseeeeesseseeeeseeessers 55, 57~ Peoplev. Elliot (2005) 37 Cal.4th 453oecessesesesseseeecesesessenssseesesesseseeeseeeecesesnessecs 63, 65 People v. Eubanks (2011) 53 Cal.4th 110 ooccesssscssessesscssssessesesessesecesereseecesensssesesseenes 64 People v. Ewoldt . (1994) 7 Cal.4th 380occcscsessesssssessereeceeeeessesteteeceeeeeteacesoaeesasoneaes 44, 46 People v. Falsetta (1999) 21 Cal.4th 903 vocessaseeeeecssccecceseseessessnseceececeeeeseneecesseess 47 vi People v. Famalaro (2011) 52 Cal.4th 1 occescccccssssseessssssecessnnsececsecseeeesenssssnsecseseess 21, 23, 24, 26 People v. Farley (2009) 46 Cal.4th 1053 oo... cecscedeccseeceeeseeseesesessecsstsessessssesscsesseseseeseeeeegs 59 People v. Fauber (1992) 2 Cal4th 792 .ooccccccccccscscesssessecseeeseeneseeseeeeseesaeeseeseeseetsesssenseesnseeses 30 People v. Foster (2010) SO Cal.4th 1301 ooo.ccsecesnceeneceeeeereeeeneesseeascossossetensenes 42, 62, 63 People v. Gemache (2010) 48 Cal.4th 347 ooo.cecesccseeesseceeeeeessersenesateecteeseesnessesestesseseeseseres 62 People v. Gonzales (2011) 52 Cal.4th 254 ooo. ccccccssccencesesceeesesseceseseseeeseeesesssssessseeeeessenss 65 People v. Griffin (2004) 33 Cal.4th 536 oocscecssesecsceseeeerseeeesesesssrsssssseseeesessesstesseneeseeess 61 People v. Guerra (2006) 37 Cal.4th 1067.0...cc cesecccsseecsecseetessenateeseeeseeseceseseesseseessessesees 48, 49 People v. Gurule (2002) 28 Cal.4th 557 oescssssscssescsessssesssssesesssssssssssteneensseseessssneesseeeees OD People v. Hamilton (1988) 46 Cal.3d 123 occeeesectecesceeeeeeseeteesecsecesereseeneeesseceecseseseeseeseeaees 58 | People v. Hamilton (2009) 45 Cal.4th 863 on... eeccsecssceccenesctsensseceeesesesssessassesseaseussaseeesseeeneegs 65 People v. Harris (1981) 28 Cal.3d 935 oo.ccecescesscessesenseseseeeesesssesessesscsessssesseseeeseeasenseees 31 People v. Hayes (1999) 21 Cal.4th 1211oeceecseeeeeceeseesesessensssseecereeaseeeesteneseseessnees 31 People v. Hecker (1990) 219 Cal.App.3d 1238 oceecseeeesssescsecsssssssereeseesseeetens seseeeeeeeseees 34 People v. Holt (1984) 37 Cal.3d 436 oo. cceecsceneesceeseseeseeserscsesssssscneeeseessecseeneeeeneseserens 58 People v. Hoyos (2007) 41 Cal.4th 872 oo.eeseecsessceseeesesescreseessssssssseesseusseceeeneees 60, 61, 63 Vil People v. Huggins (2006) 38 Cal4th 175 ooo eecsssssessessssesescesevscsessesesesssscseseaeeseseeaeseeseseeseees 42 People v. Jones (2003) 29 Cal.4th 1229 oocesssssssesessesssesesescsesseseseassecseeseseesesaseesecses 63 People v. Jones (2012) 54 Cal4th boccccccescssessecsessesesscsessecsceeesecsessensessesseeseenees 43, 46 People v. Jurado (2006) 38 Cal4th 72 oo.eeeccccseescesessesscescssesssessncessecsecsessesesseceeeseenees 49, 64 People v. Karis (1988) 46 Cal.3d 612.....ss sesseassuecacoscovenecnscnseneenseneeseensesensaneasenecessasees 50 People v. Kelly (2007) 42 Cal4th 763 oo... eecsssessscssesssssesessesenssecsesssnesscsesessseesseetesesssenesesaees 58 People v. Lee (2011) 51 Cal.4th 620 oooceseessssssessessssesesesscsseessesessesecaeeeceecsesaesneeeaes 65 People v. Leonard (2007) 40 Cal4th 1370ooessesessssssseeseeceessesesssesssesscesseseesseseeseerseeees 36 People v. Lewis & Oliver (2006) 39 Cal4th 970 ooosceceecssccssccesecsesesessesessessssesentsecseesesaessesesneeeses 41 People v. Lewis (2001) 25 Cal4th 610 oo... eeesseessesssesssseessssseeeacesssesstsnseessssseaerseseassenees 50 People v. Lewis (2009) 46 Cal4th 1255 ooescesssscecsscssessesesessesesesecsessesessssesesesseseesess 47, 48 People v. Lucero . (2000) 23 Cal4th 692 oo... cccccsecsscsseessessesssessessesseees seseeceesaceeeaeeeeeeeaneeeees 57 People v. Marshall (1990) 50 Cal.3d 907 oecssecseesssescesesessesessssseseesssseeseaceasceeeseesesesesnees 58 People v. Martinez (2009) 47 Cal.4th 399 oooccccssssessssssssesesseseesessenececssesssseessessesessessesees 60 People v. Martinez (2010) 47 Cal.4th 911 oecessscssscsesessssseeceensasacacacaceceeecesseeneessceees 57, 65 People v. McKinzie (2012) 54 Cal.4th 1302 ooeeeeeecssscescnsnseseeesesssecesesessenenseceaesnsersetieees 58 Vill People v. Melton (1988) 44 Cal.3d 713 oo. cccccccsessceseesereeseeeeeeeecesesseeeesssssseassesensessseeseses 49 People v. Memro (1995) 11 Cal.4th 786oceccscseeecteenerseeeceesssssessesseeseesseasseeseseseseees 52, 54 People v. Michaels . (2002) 28 Cal.4th 486 oo. ccccccccceseeeseeeeeeeeceasseceesessenesstesesereesssssesensensegss 50 People v. Mickle (1991) 54 Cal.3d 140 occccecsecreeneceeeceetseeesesseeeseanseeeesaeseseesessesessseesens 49 People v. Mitcham (1992) 1 Cal.4th 1027 oo... ecccesceesceceeecescseeeceeeseeeseeseseessesseessrssssesssseessess 56 People v. Moon | (2005) 37 Cal.4th 1 oieeseesccsecsscseeseeseeecseesseeeseeesensaese sesevsceenseaescesesaeenees 64 People v. Moore (2011) 51 Cal.4th 1104oecececsesceesreeserereseseseseseesesenessseesesesseseeeseseens 49 People v. Morrison (2004) 34 Cal.4th 698 ooccccccceseeseescsseeeeeeeeesseeeerecsecsecsesestscssssesersesessesees1OF People v. Mullens (2004) 119 CalApp.4th 648 oo...cee eesesseseetescseecessssessessesesssessesesseeasees 42 People v. Mungia (2008) 44 Cal.4th 1101 wo.cceccsescsssecereseseessenescseterseeesesesstesssssssesseseens 65 People v. Navarette (2003) 30 Cal.4th 458 ooeecssesscssesseesseeserenerseeseeessacteceeesesseesessensessessnees 54 People v. Nelson (2011) 51 Cal.4th 198 woocccceseeeecneeseseessssenssscseeseeseesseeseenteaes 60, 61, 62 People v. Panah (2005) 35 Cal.4th 395 oo... ecceseecscesseceesesesessssesecsevsresesesesessecsenereseeees 59, 65 People v. Parson (2008) 44 Cal.4th 332 occcecsssessessscssssscessnssesssesssessesseseneecsesnesseeseesasens 62 People v. Pierce (1979) 24 Cal.3d 199 occceccscceesecssseeessesseecsessssesssssecnesensceeeeeserseeseenees 54 People v. Pinholster (1992) 1 Cal.4th 865 oo.eeeeeeeenees sesasecesscateeaeeessaneceeeeesaceseeeeeneneesevess 56 ix People v. Poggi (1988) 45 Cal.3d 306 oo. cceecessssessessscsessesecoersssecseseseesssecseessesscecseseesssssess 54 People v. Prieto (2003) 30 Cal.4th 226 o.oo. ececccessssseseseesessssessessesceesesessessesssesseacseseesesesens 62 People v. Prince (2007) 40 Cal.4th 1179 oo cccecccsscssssessesessssesscsecscsescsessessesssesseseseeeees 29, 57 People v. Ramirez (2006) 39 Cal.4th 398 ooeccccssscseesssscssecesesscacsesecsessesesesessserseersenseeecs 36 People v. Rodriguez (1999) 20 Cal.4th Loecscesssssscsseseseesessesseecsecessescsecsessessees“vacentesaeseeees 51 People v. Rundle (2008) 43 Cal.4th 76 ......ccccccscssesesssscsesesssseseesseeesceeseeaceeeenececseetenaeeneeeatenaeees 48 People v. Russell (2010) 50 Cal.4th 1228 ooeesscseseseescesescesecsessesenessessesseeaseneseeeees 60, 61 People v. Sanders (1995) 11 Cal.4th 475 oooccccsssssssesesssecscsnessesesesscsesessssessessecsseseseeases 31, 57 People v. Schmeck (2005) 37 Cal.4th 240 ooo cccsccsssescsscssesesessessesssssessesseecseeeeceesseereaeess 59, 64 People v. Scott (2011) 52 Cal.4th 452 ooeescsssccssssssesssessseesesstesssscscsesesecescseeeseseseseersees 44 People v. Smith (2005) 35 Cal.4th 334 oocssscssssssetsssesessseseessssssssesscsessesesessesscseaseneess63 People v. Story * (2009) 45 Cal.4th 1282 oo.eccccssssesessssessssssseseesessseeseseseeeneeeessseenseees 44,47 People v. Taylor (2001) 26 Cal.4th 1155oeeecscsssscesssseesssesscsssssseseseenesseessesesessesesncaesess 56 People v. Taylor (2010) 48 Cal.4th 574oceeesessssesssssesessessaeeeneneeseeseaeeeseeeeseens 55, 57, 63 People v. Verdugo (2010) 50 Cal.4th 263 oo.eesccsssscssesssescossseseseseesssssssseseesesseseeeceesceesesess 59 -People v. Villatoro (2012) 54 Cal.4th 1152 ooccccccsessssesesesssssessesessecsessssssesescscsssscsessssssesesesees 42 People v. Vines (2011) 51 Cal4th 830 oooeeecsseeceeeeceecereeeserseeaseeeseseeasssassnesessesecseseeaeee 43 People v. Virgil (2011) 51 Cal4th 1210 oo.cceeeeseeeeseceeeesessteeseesesessseensenseeseaes 59, 60, 62 People v. Ward (2005) 36 Cal4th 186 0... cccccesseseeceeeneseerereeeeeseeneeeeesessseusssesesseaeseeans 62, 65 People v. Weaver (2001) 26 Cal4th 876 oo... cccccssessececsrerneeerescesesseseeseseeseesseessesseesessensesesseaees 31 People v. Webster (1991) 54 Cal.3d 411 occescsscesecsececceeeeeeseeseseesecesssesseesseesessesesssseseeenes 32 People v. Welch (1999) 20 Cal4th 701 ooceseessesecseesesssscesescsressssssseeerseeseeresseeenes 31, 59 People v. Wilson (2005) 36 Cal4th 309 oooeesessessscsesstseesssssesessesseseeeseseeneesesseeseseeeees 59 People v. Yeoman (2003) 31 Cal4th 93 oo. cccccccssssessceseceesceeeeseseseeeesesessscsecssveserssnsessseeveseaees 35 People v. Zapien (1993) 4 Cal.4th 929 oooecceeseceeeceeeeseeeeeesereeesesteasessenenees veseeaeaeeneeseeees 49 Rideau v. Louisiana (1963) 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663.00...eeesesnteenee 29 Ring v. Arizona (2002) 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556.0... cccseeseseereenes 61 Riverav. Illinois (2009) 556 U.S. 148, 129 S.Ct. 1446, 173 L. Ed. 2d 320.0...ssessseeeeees 33 ~ Ross y. Oklahoma (1988) 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80, 90.0...ceeeseeeeees 32 Schneble v. Florida (1972) 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340.0... cc eceseeseteeseeeeres 58 Skilling v. U.S. (2011) __—;U.S. __, 130 S.Ct. 2896, 177 L.Ed.2d 619.0... .ceseeeeees 25, 26, 28 Tuilaepa v. California (1994) 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750........cece60, 62 x1 United States v. Hasting (1983) 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 ....cccccescesescestesesees 58 United States v. McVeigh (Oth Cir. 1998) 153 F.3d 1166 .o...ccccccessesescsscsessesessesevsvescacaveceeseceesucaesseace 29 STATUTES Evidence Code Icepassim 8 LODceeeesesesestecsesesesscessssssssessssssessessersnsesesusesavacerseenacaes 37, 42 § 1108.eeceesesesesesescsesesssssssssssscsssssssssusssecarsesestevecesaseceacaveeaespassim Penal Code § 187, Subd (8)... eesessesesessssesescscsessssecssecsesssssscsssesescevscecesseesesesseacavasaes 1 § 190.2, subd (a)(17)(E) ...eseseececescsesesesessesescscsesssesssscssesessssessscasecaracarsesecseeesaes 1 § 190.3.eesscsseeeseseeeescsssssescsessecasscsssesssesesssscssarseseseeseeesacavereeesecees 59, 61 § 190.3, SUB. (a)... ccesesesessssesesscsescscscscsscssssscscevsvseecsseevavaeesers 48, 55, 60 § 190.3, sub. (k) oeeesecesssesessesssssesesessssesssssssssssccssecscecacacacesececeraeesass 17 § 190.4, Subd (€)...0... sc ecsecesssssssssssescesseesesescscscscassuscsesscssscssscseuersessasatsesesscsess 2 § 207... esecesscsseseccesssedereecssseseesssssesesasscacsesevssesesssscesssssscacecsasacercucasacesscacaueces 1 § 288, SUB. (O) ooesesesssesesssssssescssssssecsesssssscsescscsvevecscasesesececnsseseaeass 1 § O54ccccsescsssssesesesesssenesessscassssesssssscsscssesesastssssscscssasssassvavesacaeacagacacaraeaears 2 § 1033ooeecseesseeees sesesesssesevevscacsseneseaesesessesesesssesessesseseseonsaseeaticssssesesessens 21 § 1033, SUDC. (8)... eeesesesesesesessssscsesescsesessscstssscsessessscesseecstacatacaeaveaees 20 BODeeseecsseseeeseseeesssessssescsesessessessssescscssssesscesseavesesessaceceseseeeess 42 BSLeecaceestsessssscsesescsstecssssescecsssssssessvseseavacevacacaeessseeseeeeateseneeeaseas 2 CONSTITUTIONAL PROVISIONS California Constitution ATtICle 1, § 1 oeecasecteesecesessscscsesecsssssssscscscssssssesesvsssestecsvacecessseserseqeaacavaes 20 Article T, § 15 veeeessssessesssssessscessessesesssscacsssacseeseecasssecescaeseassacstensadersanscees 20 Article 1, § 16occessssessecssssccsssescsscscsecscsecsecscsaceccsssseecscssessesacssesuesececsases 20 article I, § 28, subd. (b) oo...ccc eccsscscssscscscscscescerscscseersvacseessseeseesatscseasseseees 1 Article I], § 15oessssesessssesesssscssssscsescsscsssesscsssssavasesecsesecsceeseseseucsssnsesacses 50 Article I], § 16... cceesssesssssecessssesesssssesevsssssssssscscsvsvsvseecacacsaeacecseeasacasaeasaes 50 article TT, § 17oeesesssssssscssscsscsscccsecscsececeesecscstessacssssescassesacsavsesesaseaesececs 50 United States Constitution Sth Amendment..........ccccccsssssssscsssssssescsersssesecesseceevevcececteseessaesesacseresesaeacecess 20 Oth Amendment...........cccceescsesssscescsssssssscscessececseseecsssvececaceacecseesessacaeseseseees 20 14th Amendment..0.......ccccccecesssccesssescscsssessecessscessssesessesssesesesersccasecetessees 20 xii OTHER AUTHORITIES 2 Wigmore, Evidence (Chadbourne rev. ed. 1979) I |0 44 xiii STATEMENT OF THE CASE On July 22, 2002, the District Attorney of Orange Countyfiled a criminal complaint charging appellant Alejandro Avila with the murder of Samantha Runnionandotheroffenses, committed on July 15, 2002. (i CT 1.) On September6, 2002, the District Attorney of Orange County noticed appellantit intended to seek death. (1 CT 42, 73.) Following a preliminary hearing, on December5, 2002, the District Attorney of Orange County filed an Informationthat alleged Avila kidnapped (count 1: Pen. Code, § 207)', forcibly committed “lewd and lascivious” acts against [forcible sexual assualt of vaginal andofanalarea] (counts 2 and 3: § 288, subd. (b)), and murdered Samantha Runnion (count 4: § 187, subd (a)).’ Special circumstances werealso alleged that Avila committed the murder while engaged in the commission of kidnapping, and while engaged in the commission oflewdand lascivious acts against a child underthe age of 14, which rendered him eligible for the death penalty or life imprisonment withoutpossibility of parole (§ 190.2, subd (a)(17)(E)). (1 CT 156-158.) | | Avila pled not guilty and denied the special circumstancesallegations on December 16, 2002. (1 CT 167.) Avila’s motions for a change of venue were denied. (6 CT 1148; 46 CT 12221, 12285, 12308; 17 RT.3117 et seq; 21 RT 3908et seq.) Jury ' All further statutory references are to the California Penal Code unless otherwise noted. * This case involves a child’s sexual assault and murderand prior child molest victims. In addition, witnesses related to appellant share his surname. Accordingly, respondent will refer to victims and witnesses - other than law enforcement personnel- byfirst name. No disrespectis intended and this is designed in part to promote privacy, respect, and integrity for the victims. (See Cal. Const., art. I, § 28, subd. (b); see also 46 CT 12314.) selection commenced on March3, 2005, and a jury was empanelled on March 16, 2005. (17 RT 3194; 21 RT 3879.) On April 28, 2005, the jury found Avila guilty as charged and foundthe special circumstance allegations to be true. (46 CT 12480-12485; 47 CT 12524-12525; 34 RT 6581-6585.) The penalty phase began on May 5, 2005. (47 CT 12534.) On May 16, 2005, the jury imposed death. (47 CT 12705; 36 RT 7216-7218.) OnJuly 22, 2005, the trial court denied Avila’s motionsfor a newtrial and modification of the death verdict (§§ 1181 and 190.4, subd (e)), and sentenced him to death. The court stayed execution of the term related to the non-homicide offenses pursuant to section 654. (48 CT 12810; 36 RT 7243-7244.) STATEMENTOF FACTS? In early 2001, Appellant Avila was acquitted in Riverside County of _ sexually molesting his girlfriend’s seven year-old daughter Catherine, and Catherine’s cousin Alexis. A pedophile now emboldenedby the acquittal, Avila set out to molest again the following summer. Avila had previously been with his girlfriend and Catherine to the Smoketree condominium ~ complex in Stanton, a complex where Catherine often played with other young girls. So in the early evening on July 15, 2002, Avila drove overto the complex and found five year-old Samantha playing outside with her friend. He lured Samantha with a plea to help him find his puppy, then grabbed and abductedher, and drove her away. Samantha’s playmate provided the police a description and Avila’s sketch was broadcastoverthe | > For convenienceofthe Court, respondent observesthat opening statements were provided and testimony began at Reporter’s Transcript Volume 23 - 23 RT 4213 [opening statements] and 23 RT 4268 [first witness]. news. Alexis’ mother saw his sketch and called the police. (See 23 RT 4269 et seq., 4283 et seq; 24 RT 4450-4453; 29 RT 5444-5453.) Samantha’s body was found the next day. Avila had sexually assaulted her (vaginally and anally), strangled her to death, and dumped her bodyin a remote area off Ortega Highway. (23 RT 4327-4334 [discovery of body]; 24 RT 4416-4428 [autopsy].) Avila’s car matched the description of the car used in the kidnapping andits tire tread was comparable to tracks left at the scene, and impressions from Avila’s feet were similar to barefoot impressions found atthe crime scene. (23 RT 4339-4346; 25 RT 4696 et ~ geq.; 28 RT 5112-5156, 5242-5290; 29 RT 5334-5337.) In addition, Avila’s DNA wasfound under Samantha’s fingernails, and her DNA inside Avila’s car. (24 RT 4554 et seq; 26 RT 4796 et seq; 28 RT 5157 et seq.) I. GUILT PHASE EVIDENCE A. Mbolestations of Other Girls Before Samantha’s Abduction And Murder Lizbeth (Beth) met Avila during the summer of 1996. They began dating twoorthree years later and after a few monthsstarted living together. Avila wasnot interested in a normal sexual relationship and neverinitiated sex. They would occasionally have sexual intercourse, but only after Lizbeth “begged”for it. Avila said he simply was not interested in sex. Avila was, however, preoccupied with adult pornographic movies, displayed an abnormalinterest in young girls, wanted Lizbeth to dressin little girls’clothing, and told her how much he liked blond, blue-eyedgirls. (25 RT 4649-4652, 4656-4658.) Catherine was Lizbeth’s daughter. Around 1997, and when Catherine was aboutseven years old, she and her two brothers wentto live with their fatherJim, at the Smoketree Town Home condominium complexin Stanton. (25 RT 4569-4571, 4593-4594.) While living with her father, Catherine knew other young girls who also lived there, including Samantha and Samantha’solder sister. (25 RT 4594-4595.) But every other weekend from early 1997 through March of 1999, Catherine and her brothers stayed with her mother in Lake Elsinore. (25 RT 4571-4572, 4586.) Her mother often drove over to the Smoketree condominiumsto pick up the children. She would sometimes be accompanied by Avila, and Avila had even come alone to pick up the children. (25 RT 4572, 4595-4596, 4662.) Avila liked to bathe Catherine. (25 RT 4561-4562.) When Lizbeth went to work, Avila would babysit Catherine. (25 RT 4660.) And, Avila often suggested to Lizbeth that Catherine sleep in the bed with them. (25 RT 4661-4662.) During Avila’s relationship with Lizbeth, he sexually molested Catherine overfifty times. Avila never sexually penetrated her, but would havehertake off her clothes, kiss her mouth and vagina, masturbate himself and had her kiss his penis. (25 RT 4587, 4589, 4597-4601.) He also askedherto insert tubes into her vaginafor practice so he could have intercourse with her when she was older. Avila also showed her pornographic films and sometimesfilmed her as well. (25 RT 4601-4603.) Catherine further explained that, “If I would try to jerk away, he would put his hand over my mouth and jerk me andsay, “Don’t move.” (25 RT 4600.) Avila also molested Catherine’s cousin Alexis, who on some weekends would come to Lake Elsinore and stay with her aunt and Catherine. During oneofthese visits when Alexis was about seven years- old, Avila put his hand undereach girl’s pajamas and onto the “private area and movedit fast,” to show them how to masturbate. (24 RT 4455-4461, 4481; 25 RT 4605-4606, 4641.) Catherine told Alexis to let him doit, because“it feels good.” (24 RT 4469.) Onan earlier occasion when Alexis wasaboutfive-years-old, Avila told Alexis and Catherineto take offtheir clothes and play together. (24 RT 4474.) Catherine wasinitially afraid to report being molested, because Avila threatened to hurt her and her family if she told anyone. But after she found out Avila molested her friend Cara, it “gave methe couragetotell.” So in Decemberof 1999,after her mother had broken up with Avila and he moved out, Catherine told her mother and father about her being molested. (25 RT 4604-4605, 4683.) ~ After Avila’s break-up with Catherine’s mother, Avila moved into Jose B.’s homein Lake Elsinore.* This was from about Septemberthrough Decemberof 1999. Cara was Jose’s daughter and lived there as well. (24 RT 4495-4496, 4499, 4512-4513.) At this time Cara was 11 years-old. (24 RT 4518.) The summerbefore Avila had movedin, he offered to take Cara to Knott’s Berry Farm amusementpark, so Cara stayed with him at his own homethe night before. That evening Avila asked her to touch his penis and inserted a test tube into her vagina. He put his hand over her mouth and warnedherthat if she told anyone about this incident, “someone could be killed.” (24 RT 4514-4515, 4520-4524, 4532-4533, 4542.) Cara later told investigators” that when Avila lived in her home, she saw photos of young girls having sex with adult men on Avila’s computer. 4 Alexis’s mother was an ex-girlfriend of Jose. (24 RT 4484.) > Cara did nottell anyone about what Avila had done until after she heard about Samantha’s abduction and murder. (24 RT 4517-4518.) She was afraid she would be taken away from her father, because Avila lived _ there. (24 RT 4530-4531.) Cara also knew Catherine, whom she described — as “my dad’s girlfriend’s sister’s daughter.” (24 RT 4515-4516.) She had seen Avila bathe Catherine before. Avila would also show hervideos of Catherine, and always commented to her about Catherine’s beauty. (24 RT 4517.) Cara also knew Catherine’s cousin Alexis; she and her father lived with Alexis and her family when Catherine told her mom what had happened with Avila. (24 RT 4525-4526.). In other words, thesegirlsall knew about each other being molested, but decided to simply keep quiet aboutit. (24 RT 4551.) He wouldalso tickle her “legs and by myprivate parts.” (24 RT 4515.) And when he becameangry with her, Avila wouldputhis fingers around Cara’s neck and choke her. Hedid this nine or ten times. (24 RT 4519- 4520.) When Jose learned about what Avila had done, he threatened to shoot him. (24 RT 4501-4502.) Riverside County Sheriffs Detective Eric Davis investigated the molestation of Catherine. He interviewed Avila in January of 2000, and observed a second interview a few dayslater. (25 RT 4686-4689.) Both times Avila denied that he inappropriately fondled Catherine. He acknowledged he may have touchedher vaginal area, but claimed it was in a non-sexual way while bathing and drying her off. (25 RT 4688-4690.) Duringaninitial search of Avila’s room at Jose’s house,the police only discovered adult pornography videos. (25 RT 4688-4692.) However, the police kept Jose out of the house until early 2000 as part of the molestation investigation. When Jose returnedto his home, he wentinto the bedroom formerly occupied by Avila, to clean up the mess and debris that Avila left behind. At that time, Jose found a photographpartially hidden amongst debris, and which had been previously overlooked by thepolice. (24 RT 4496-4497, 4498-4501, 4506.) The photograph was a computer printer image of a naked seven-year-old Asiangirl straddling an adult man’s penis. (24 RT 4498-4499) Jose turnedit over to the police. (24 RT 4510.) Avila was never prosecuted for Cara’s molestations. But he was arrested and prosecuted for sexually molesting Catherine and Alexis. In January of 2001, a Riverside County Superior Court jury found him not guilty. (26 RT 4746-4747; 29 RT 5404, 5538-5539 [Exh. P-101].) After the acquittal, Avila bragged to his sister Elvira that, “I could do anything I wantto that little girl and I can’t be charged for it because of double jeopardy.” (26 RT 4753.) Avila then met Ruby Hernandez in November 2001, and they began dating the following month. They broke up on July 11, 2002. (26 RT 4783.) During this time, Avila lived with family membersin an apartment complex in Lake Elsinore. Avila and his sister Elvira shared one apartment, and his mother Adelina andsister Adelita lived in another. (26 RT 4722-4723, 4732-4733.) B. Samantha’s Abduction And Murder, And the Investigation That Followed OnJuly 15, 2002, Avila promised to cook a chicken dinnerso his family could eat around 6 or 6:30 p.m. (26 RT 4722-4723.) At about 4:00 p.m., Avila left the apartment complex to go buy some water. (26 RT | 4734.) He never returned to cook dinner. Avila’s sister Elvira called him just before 6:00 p.m.to find out why Avila had not yet returned home. (26 RT 4722-4726, 4734-4735, 4761.) Avila claimed he was in Corona and just felt like going for a drive. (26 RT 4735.) They did not speak to him again until about 3:00 a.m. the next morning, when he called from the apartment complex gate and asked them to buzz him inside. (26 RT 4736.) Five-year-old Samantha lived at the same Smoketree Condominium complex where Catherine lived with her father. Samantha lived there with her grandmother Virginia, mother Erin, and mother’s fiancee Ken, along with Ken’s two young children - Paige and Conner. At that time, Paige was four or five years older than Samantha and Conner was abouta year younger than Samantha. (23 RT 4269-4270.) On July 15 at about 5:30 p.m., Erin was at work and Virginia watched her grand-daughter Samantha. Samantha was playing outside on the frontlawn with her six-year-old neighbor and friend Sarah. They were having a tea party. (23 RT 4270- 4271, 4283-4285.) The girls took a break to have dinner andmet back outside to continue playing sometimeafter 6:00p.m. The front lawn was considered a play area in the complex where manychildren played. (23 RT 4273-4274.) Around 6:30 p.m., Avila’s green car passed by the complex, went around the block, and then stopped in front where Samantha and Sarah were playing. Avila got out. Avila asked if they had seen a little puppy and when Samantha approachedto ask how big the puppy was, Avila grabbed her. As Samantha kicked and screamed for help, he threw herinto the car. He then got back into the car and sped away. Sarah ran home and told her mother and Samantha’s grandmother, Virginia, what happened and they called 9-1-1. (23 RT 4274-4276, 4285, 4287-4296.) Based upon Sarah’s description, a police artist made a sketch of Samantha’s abductor. (23 RT 4296-4297.) The sketch was then broadcast across local television stations.® Alexis’ step-mother, Tammy Jean, saw the sketch and thoughtit looked like Avila. She contacted the police in Riverside. (24 RT 4450- 4451; 29 RT 5444-5453.) Avila’s cell phone and bank recordsindicatedthatafter heleft his apartmentthat afternoon, Avila droveall over Southern California during the next three hours. He stopped at 5:18 p.m. and withdrew $40 from the Lake Elsinore branch ofBank of America, and twice stopped for gas, but gas station video tapes did not show Samanthain Avila’s car. (See 29 RT 5403-5404, 5405, 5423 [Exhs. 57-59 (videotapestills)]; see also 28 RT 5240.) Shalina Carlson, who was driving that evening with her boyfriend from San Clemente to Lake Elsinore along the Ortega Highway, heard what seemedto bea little girl screaming for help. Shalina thought this was - around sunset or 6:00 p.m., but was unsure of her exact location when she heard the scream. (23 RT 4305-4325; 30 RT 5681.) When she learned ® The sketch, which bore a striking resemblance to Avila, was People’s Exhibit 4. (29 RT 5539; 46 CT 12316.) about Samantha’s abduction, she contacted the police and they wentout to the area with her to try and determine where she heard the screams. (23 RT 4310, 4317-4318.) Around9:15 that evening, Avila checked into the Comfort Inn in Temecula. He did not have a child with him and no onenoticed anything unusual. (See, e.g., 29 RT 5433-5436, 5449-5527; 30 RT 5558 et seq; 32 RT 5991 et seq.) Then, at about 11:15 p.m., Avila called his most recent girlfriend, Ruby. Avila asked her to meet him at the motel but she refused. Avila telephoned her at about 3:00 a.m., on the moming of July 16, and again tried to get her to come to the Comfort Inn. She agreed to come there, but never did. (26 RT 4783-4787.) Then about 20 minuteslater, Avila called his sister Elvira from outside the gate of their complex, and asked her to let him in. Whenhegotinside, she asked him where he had ‘been. Avila replied he had goneto the beach and joked, as he often did, that he had also gone to Japan and China. Avila did not seem nervousor upset. Heleft the apartment a few minuteslater. (26 RT 4736.) The next morning, Avila did something outofthe ordinary for himself—he took out the trash andcleaned his room.’ (26 RT 4742-4743.) In addition, Avila’s sister Elvira noticed that when Avila returned, he had a scratch onthe back of his leg. Avila claimed he had been scratched while climbing over a baby gate inside the home. But this made nosense to Elvira because the gate did not have any rough edges. (26 RT 4743-4746.) " Incidentally, the police never located the shoes or clothes worn by Avila or clothes worm by Samanthaatthe time of her abduction. (See 24 RT 4230 [People’s opening], 29 RT 5342 [Avila’s shoes worn that evening unrecovered].) However, a security video taken at the Arcostation depicted Fila tennis shoes worn by Avila that evening. Forensic experts obtained these shoes from Fila and determined the shoes seen in the video had similarities to shoes prints left at the crime scene. (28 RT 5287-5292; 29 RT 5276-5279, 5280-5283.) Around 3:15 p.m. that afternoon, two young mencalled the police to report finding something unusual near the intersection of the Killen Truck Trail and the Ortega Highway. (23 RT 4326-4328.) About 45 minutes later, Riverside Sheriff's Corporal Donovan Brooksarrived and met with the two witnesses, and they went to the area. Brooks discovered Samantha’s naked bodyin a relatively remote, but popular area for hang- gliding. (23 RT 4327-4331; 24 RT 4555-4557 [crime scene photographs].) According to Elvira, Avila was familiar with this area because they had been there about two monthsearlier to watch a meteor shower. (26 RT 4740-4741.) The next morning, July 17, Dr. Richard Fukumoto performed an autopsy of Samantha’s body. (24 RT 4418.) Heobserved vaginal and anal bleeding and trauma from something being inserted into each area. (24 RT 4422-4423.) He also observed massive bleeding in the head from being struck twice, and a very swollen brain. (24 RT 4423-4424.) The blow to Samantha’s head mayhave causedherto lapse into a semi-conscious or unconsciousstate, but she wasstill alive for a significant period of time after. (24 RT 4426-4427.) Samantha had also been asphyxiated by compression on her neck area, which meant pressure by hand squeezing, a choke hold, an elbow, or something else that compressed her neck and airway. This prevented her from breathing and caused her death. (24 RT 4424, 4427.) In other words, Samantha survived being struckin the head but was then suffocated until she died. (24 RT 4427.) Dr. Fukumoto also believed Samanthawas still alive when she was sexually molested. (24 RT 4425.) Andrecognizing time of death to be an estimate, Dr. Fukumoto estimated Samantha died about 30 to 36 hours 10 before the autopsy, or around 8:00 p.m.or a few hours later, on the evening of July 15.5 (24 RT 4428-4429.) Orange County Sheriff's Department Investigator Brian Sutton retraced Avila’s steps the night of Samantha’s abduction and murder, coinciding with Avila withdrawing money from the Lake Elsinore Bank about 5:15 p.m., abducting Samantha about 6:30 p.m., and until he checked into the motel just after 9 p.m.. He drove over 200 miles. According to Investigator Sutton, Avila could have drove from the bank in Lake Elsinore through Southern California and arrive at the Smoketree complex in Stanton to abduct Samanthaat about 6:30 p.m., drive around,stop for gasat both the Arco and Chevronstation at the times noted on surveillance cameras, then get to the Kileen Truck Trail hang-gliding area to kill Samantha or dumpher body about 8:30 p.m.. Avila still had time to drive - to, and checkin, at the Comfort Inn shortly after 9:00 p.m. (29 RT 5404- 5420.) On July 18, 2002, Avila was under surveillance as part of the investigation into Samantha’s death. (15 RT 2746.) Officers observed Avila drive to the area near his apartment, then approached and detained him. (15 RT 2721-2732.) Avila’s neighbor Leonard Ward waspresentat the scene and felt Avila did not seem nervous. Avila voluntarily agreed to go backto the Sheriff’s station. (29 RT 5477-5480, 5486-5492; see also 15 ® This time-frame would coincide with the time period between Samantha’s abduction and when Avila checkedin alone at the Comfort Inn in Temecula. However, since the time of death was merely anestimate,the People recognizedit was possible that Avila left her unconscious body in the car when he checkedinto the Inn but later dumped her bodyearly the next morning, before he headed home. (See 23 RT 4238 [opening statement]; 33 RT 6384-6385 [People’s closing statement referring to time of death]; 34 RT 6553-6554.) [People’s rebuttal referringto time of death].) 11 RT 2556.) At that time, Avila was questioned andthen arrested.” (48 CT 12827 et seq.) A computer waseventually seized from Avila’s mother’s apartment. This was a computer that Avila used. Avila’s mother never used the computer and the only two people with passwordsto accessthe internet were Avila and his sister Adelita. (26 RT 4711-4713.) Computer expert James Dale Vaughn analyzedthe hard drive. (29 RT 5348-5350.) The computer contained several child pornography images. (29 RT 53 57-5360.) This included photographsof adults and children engaged in various sexual activities, and over a dozen movie clips of sex acts between adults and children, or between children and children. Also, around 4:30 a.m. on July 14 — the day before Samantha’s abduction - someone had printed out a multi-part story involving an adult man engaging in sexual activities with his daughters and granddaughters. In addition, there were chat room conversations discovered between someonein the house who used the nickname “Girl*Lover,” and in whichhe said that he liked girls under 12 years of age. During the chat conversation, he shared with others feelings and sexual desires concerning children.'° (25 RT 4700-4702; 29 RT 5350-5363, 5366-5372.) When asked during onechat if Avila liked ” The defense moved to exclude Avila's statements to investigating officers because he was not admonishedofhis rights. But after an evidentiary hearing, the court concluded the statements were admissible becauseit was an informal conversation about his whereabouts, and, he was not in custody at the time. Avila did not confess to the murderandthe interview ceased when herequested an attorney. Avila was thereafter processed for forensic sampling. (15 RT 2720-2804; 17 RT 3159-3170.) It does not appear the prosecution soughtto introduce any ofAvila’s interview statementsattrial. (See 23 RT 4263-4264.) In any event, Avila does notraise any claim oferror aboutthe interview or statements. '0 Adelita denied she ever used these chatroomsor accessed pornography. (26 RT 4713.) 12 living in California, Avila replied,“I live four thousand feet in the mountains where you can do anything tolittle kids.” (Exh. P-96.) Avila’s green Ford Thunderbird was also foundat his residence. It generally matchedthe description of the car provided by Sarah. (25 RT 4696-4700.) Forensic experts determinedthe tires on Avila’s car had sufficient similarities to tire tracks found near Samantha’s body. The forensic experts also compared shoeprints taken from the scene with shoes found during a search of Avila’s apartment, but concluded noneofthe shoes recovered from his home matchedthe shoe prints. However, they also compared barefoot impressions left at the crime scene with impressions of Avila’s feet. Like the tire tracks, the barefoot prints containedsufficientsimilarities to Avila’s feet. (23 RT 4339-4346; 28 RT 5112-5156, 5242-5290; 29 RT 5334-5337.) _ DNAsamples werealso taken from Samantha’s heart blood and fingernails, a napkin found near Samantha’s body, and from swabs taken from Avila and inside his car. Forensic analysts tested and compared the samples and concludedthat Avila’s DNA wasleft under Samantha’s fingernails, and Samantha’s DNAhadbeenleft in Avila’s car.'! (See, e.g. 23 RT 4377-4378, 4384-4385, 4388-4389; 24 RT 4394-4395, 4396-4400, 4406, 4554-4562; 26 RT 4794-; 28 RT 5157 et seq.) C. Defense Avila did not testify. The defense theory was that someoneelse abducted Samantha. (See 23 RT 4242-4243 [defense opening suggesting '' DNA frequencyestimates evidence suggested the sample taken from Samantha’s fingernails to be consistent with Avila by a standard of one in six million. (26 RT 4832-4842.) Some of the DNAlocated in Avila’s car was consistent with Samantha by a standard of one in three trillion. (26 RT 4844-4846.) 13 phonerecords revealed he could not have driven the distance required].) The defense also challenged the strength of the prosecution evidence: Regarding the prior offenses, Avila’s sister Elvira claimed Lizbeth fabricated the molestation incidents with Alexis and Catherine because she wasangry at Avila and vowedrevenge. (30 RT 5639.) Asfar as the pornography discovered on the Avila family computer, defense computer expert Jeff Fischbach opined the computer was infected with a Trojan-Horse virus and it would have been possible for other computer users to remotely log in and access child pornography. (30 RT 5708 et seq.) But the People’s computer expert noted that there were no viruses. (29 RT 5364-5365.) In an effort to dispute the evidence he abducted Samantha, Avila presented testimony from one of Samantha’s neighbors, Lynn Grimm. Grimm had seen a “lime green vehicle” in the area immediately before Samantha’s kidnapping, but thoughtthat it was a Honda. (29 RT 5444.) Similarly, a few hoursafter the kidnapping, Sarah told a social worker the car she saw had capital “H”s on its wheels. (4 CT 572.) However, Samantha’s grand-mother Virginia confirmedthat at the time of the abduction, there were two green cars parkedin the area, including a dark green Honda. Sarah was shownthese cars and said Samantha wastaken in a different colored car. (23 RT 4276.) Regarding the forensic evidence, defense entomologist James Webb testified that based upon the size and number of maggots recovered from Samantha’s body andthe time theydeposited their larvae, she could not have beenkilled until the early morning hours of July 16, or hours after Avila checked into the Comfort Inn. (29 RT 5505-5513.) However, Webb admitted on cross-examination thatif the body were placedin the area just | before the end of daylight, flies might not have found it and deposited their larvae until the next morning. (29 RT 5514.) 14 Defense experts also claimed proper protocols were not followed in collecting and analyzing the forensic evidence, that the Orange County Crime Laboratory (where the testing had been done) hada history of failing to follow proper procedures, and, that there was a possibility of contamination because the DNA samples had been mixed improperly. Defense experts also asserted DNAis transferable and there was a possibility the DNA found in Avila’s car might have been planted thereto incriminate Avila. This was based partly on testimony from the People’s forensic expert Elizabeth Thompson, who conceded that when Avila’s vehicle had first been examined, no DNA had been found. It was only after she was asked to examineit a second time that Samantha’s DNA was discovered.'?: (See 24 RT 4394-4396; 30 RT 5562 et seq., 5666 et seq; 31 RT 5766 et seq., 5848 et seq., 5869 et seq; 32 RT 5996 et seq., 6067et seq., 6179 et seq.) But the People’s experts rebutted these claims and explained that the DNA wasboth properly analyzed and that the defense experts misinterpreted the available data.'? (33 RT 6236 et seq.) In an effort to establish someone else may have left Samantha’s body, the defense presented witness Johan Larsson wholived near this area and testified that when he left for work in the early morning hours of July 16, he noticed a small SUV or pick-up truck in the area near where Samantha’s '2 The second examination followed the car being “super-glued,” a term for a more involved process where cyano-acrylate is applied in a vapor form to coat the interior of the car. The chemical processattracts salts and oils in fingerprints to make them easier to locate and identify with other testing methods. The process also helps to identify saliva and other biological fluids that might not otherwise be easily observed. (24 RT 4396- 4397, 4414-4415.) '3 Respondentalso notes Avilaneither challenges the sufficiency of the evidence, nor makes any claim on appeal about the DNA orother forensic evidence. 15 body waslater found. The trunk was open and an individual wasleaning in as if taking something out or putting something in. There wasalso a motorcycle parked in the area. It was highly unusualfor there to be any - vehicles in that area at that time of the morning. However, Larsson said he had observed this activity muchearlier in the morning, between 4:15 and 4:45 a.m. (29 RT 5455-5476.) As far as Avila’s actions after the murder, Avila’s sister tried to downplayhis out-of-character behaviorin cleaning up his room andtaking out the trash the morningafter he returned to the apartment. She notedthat she had asked him to clean up his room because there was going to be an inspection of the complex. But, she also admitted that Avila never took these inspectionsseriously before, and,still considered his taking out the trash and cleaning his room that day to be unusual. (26 RT 4742-4743.) II. PENALTY PHASE EVIDENCE A. Prosecution Case In Aggravation Samantha’s grandmother Virginia was taking care of Samanthaat the time of her abduction. When Virginia heard Samanthahadbeen killed,it felt as if she had “thelife sucked out ofme ... I just went dead.” (34 RT 6631.) Virginia noted that Samantha wasajoy to be around and had many friends. After the murder, other children at the Smoketree complex, | including Samantha’s stepbrotherandsister, were afraid to go outside and | play in fear that like Samantha, they might be abducted and “gone forever.” (34 RT 6629-6633.) Samantha’s mother Erin explained she gave birth to Samanthaat the age of 21, and described Samantha as “my purpose.” (34 RT 6634.) On July 15, Erin got a message from her mother and learned Samantha had been kidnapped. Sheinitially thought Samantha’s biological father (who lived in Massachusetts) decided to visit and was not concerned, because she 16 knew he would not hurt her. (34 RT 6635.) Shetried to stay calm but worry and fear took over. As soon as she got homethat evening, she ran outside with photos of Samantha, hoping people would help find her. (34 RT 6634-6635.) The next day, she wasat the Sheriff's Department waiting to be interviewed and learned her daughter’s body had been found. Erin screamed out, “why do they haveto kill them?” and collapsed on the floor. (34 RT 6636-6637.) Erin described Samantha as a courageouschild whobelieved in heroes and doubtless thought someone would saveher: Whatjust infuriates me is I know she thought that somebody would save her. I know she believed in heroes. She believed that the good guys always won. And that’s whyI think she fought so hard because she thought she would win. Butit’s just she was so proud, and she died so humiliated, so her entire vision of the world devastated. (34 RT 6638.) Erin explained that bythetime ofthe trial some two-and one-half years later, her stepson, Connor, still had nightmares. Erin managedto finally focus on happy memories of Samantha. But being in the same courtroom with Avila brought back her terror. And even though she had since given birth to the baby sister Samantha had always had wanted, Erin was simply unable to fully enjoy being a mother again. (34 RT 6633-6640.) Several photographs, including one depicting Samanthaas an angel on the last Halloween before her death, were also admitted. (34 RT 6640- 6643 [People’s Exhibits 112-118].) | B. Defense Case In Mitigation The defense presented section 190.3, subdivision (k) evidence. Witnessestestified that Avila came from a dysfunctional and poorfamily, one that abused the children. Several family members described the Avila menas alcoholics who sexually assault their wives and daughters, and had 17 fist fights in front of their children. Avila was the youngest and smallest of the boys. His father Rafael would call him a “fag” and “fairy,” would get drunk, and repeatedly hit him with a belt. The Avila women were completely dependant upon their husbandsandlazy, and never cared properly for the children. Avila’s mother Adelina would often not feed her children. (See e.g. 34 RT 6657 et seq. [Adriana Avila - Avila’s aunt], 6667 et seq. [Laura S.- Avila’s second cousin], 6680 et seq. [Erin Avila - Avila’s sister-in-law], 6751 et seq. [Angelina C. - Avila’s father was her uncle]; 35 RT 6779 et seq. [Alma Ramirez- married to Avila’s uncle Francisco] 6799 et seq. [Ofelia Avila- married to Avila’s uncle Santiago], 6811 et seq. {Manuel Avila Rodriguez- Avila’s uncle], 6845 et seq. [Teresa Avila — Avila’s Aunt], 6891 et seq. [Antonia Hernandez- Avila’s cousin], 6906 et seq. [Maria Avila- Avila’s Aunt].) Tammy Daddato, a Bell Gardens’ police officer, testified that in 1989, Avila’s father Rafael was arrested for child abuse, and the children were - removed from the family home bythe Department of Children’s Services. (35 RT 6819 et seq.) In addition, Rafael shot and killed a neighborin front of Avila and then fled the country. He eventually returned,pled guilty to manslaughter, and went to prison. (35 RT 6906et seq.) Dr. Matthew Mendel, a child psychologist specializing in the effects of sexual abuse on male children and the author of “The Male Survivor: Impact of Sexual Abuse Upon Men,”also testified. He stated the male Avila children were traumatized, ashamed, and endured years ofpain and suffering from a pattern of alcoholism, sexual abuse, and physical abuse. But he also admitted this did not predestine them to molest or abuse children as adults. In fact, none of thepatients referenced in his book became molesters. (34 RT 6692-6750.) . Francisco Gomez, a forensic psychologist, performed an assessment ofthe Avila family history. He described Rafael as an abusive person, who 18 was an alcoholic, controlling, and manipulative. (35 RT 6933-6944.) He described Avila’s mother Adelina as completely dependent, highly depressed, and submissive. (35 RT 6933 et seq.) Because Avila grew up abused,in poverty, and with two dysfunctional parents, Dr. Gomez opined that there existed a high risk he would experience severe problemsas an adult and that children like Avila risked at least a 50 percent chance of becoming molesters as adults. Other risk factors in the Avila family increased chances Avila would be unable to function as a normal adult. (35 RT 6949-6991.) Others who knew Avilatestified as to his character. Toni Arnsberger, a one-time co-worker, described him as a generally upbeat, cheerful, and generous person. Avila was a hard worker who did not wantto talk about his father. (34 RT 6643-6648.) Another co-worker, Ruth Olivia Conley, said Avila often helped people in distress and once helped herwith flat tire on the freeway at 2:00 a.m. (35 RT 6930 et seq.) Other former co- workers described Avila as a good worker. (See e.g., 34 RT 6832-6837 [Showana Royal] and 6900-6903 [Dora Arrendondo].) Ellen Micheli, Avila’s teacher when he was 14 or 15 years of age, said that while he was in a “high risk” class, he was not a disciplinary problem. However, he did not easily associate with other boys and seemed effeminate. (35 RT 6775 et seq.) Finally, according to formerpriest Rudolph Gil, after Avila’s father killed the neighbor and fled to Mexico, Avila had to becomethe man of the house while in high school. Avila madesurehis sisters attended Mass and Catechism classes. (35 RT 6838 et seq.) C. Prosecution Case In Rebuttal Forensic psychiatrist Dr. Park Dietz testifiedhe reviewed the reports ~ of Drs. Mendel and Gomezandlistened to their testimony, and considered other evidence presented at trial, including that Avila may have 19 downloadeda story involving incest the night before Samantha’s abduction. Dr. Dietz concluded Avila was a pedophile. He explained, however, that pedophiles have free will and ability to refrain from attacking children. Furthermore, pedophilia does not include an impulseto kill the child victims. (36 RT 7032-7097.) ARGUMENT I, THE TRIAL COURT PROPERLY DENIED AVILA’S MOTION FOR CHANGE OF VENUE AND NO PREJUDICE RESULTED Asserting Samantha’s abduction and murderresulted in an “unprecedented firestorm of publicity in Orange County,” Avila contends that when the trial court denied his pretrial motion for change of venue,it violated his federal and state constitutional rights to due process of law, a fair trial, and an impartial jury. (AOB 22; U.S. Const., Amends. 5th, 6th, 14th; Cal. Const., art. I, §§ 1, 15, 16; see also § 1033, subd. (a).) Denial of the change of venue motion wasneitherin error nor prejudicial. This Court has described the standard a criminal defendant must meet to prevail on a motion for a change of venue: A motion for change of venue must be granted when“thereis a reasonable likelihood that.a fair and impartial trial cannot be had in the county” in which the defendantis charged. (§ 1033, subd. (a).) The trial court’s initial venue determination as well as our independent evaluation must considerfive factors: “‘(1) nature and gravity of the offense; (2) nature and extent of the media coverage; (3) size of the community; (4) communitystatus of the defendant; and (5) prominenceofthe victim.’ [Citations.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1394, 58 Cal.Rptr.3d 368, 157 P.3d 973.) On appeal, a successful challengeto trial court’s denial of the motion must show both _ error and prejudice,thatis, that “at the time of the motion it was reasonablylikely thata fair trial could not be had in the county, and that it was reasonably likely that a fair trial was.not had. {Citations.]” (People v. Davis (2009) 46 Cal.4th 539, 578, 94 Cal.Rptr.3d 322, 208 P.3d 78.) Although wewill sustain the trial court’s determination ofthe relevant facts if supported by 20 asesubstantial evidence, “‘[w]e independently review the court’s ultimate determination of the reasonable likelihood of an unfair trial.’” (People v. Hart (1999) 20 Cal.4th 546, 598, 85 Cal.Rptr.2d 132, 976 P.2d 683.) (People v. Famalaro (2011) 52 Cal.4th 1, 21; see also Pen. Code, § 1033 (“In a criminal action pending in the superior court, the court shall order a change of venue:(a) On motion ofthe defendant, to another county whenit appears that there is a reasonable likelihood thata fair and impartial trial cannotbe had in the county... .”) A. ‘The Defense Motions For Change of Venue AndTrial Court Rulings About six months before jury selection, Avila moved to change the venueofhis trial because of pre-trial publicity. (6 CT 1148-1157; 7 CT 1227-1237 [amended motion].) Avila’s motion referred to the various media outlets that decried Samantha’s murder, and included exhibits of news and print articles, television report transcripts, and radio and internet broadcast materials. (7 CT 1238; 47 CT 12742.) Avila conceded publicity “subsided over time,” but also relied on a public opinion poll conducted -after his arrest, and which found most persons in Orange County were familiar with the case, and, a majority believed him guilty and deserved the death penalty. (6 CT 1174-1176.) The prosecution acknowledged the case evoked natural sympathies and publicity, but suggested a change of venue would only be appropriate if it became apparent during jury selection an impartial jury could not be selected. (38 CT 10393-10418.) Thetrial court first denied the motion before jury selection, on February 14, 2005,and after it had conducted a hearing and considered testimony from “experts” and consultants who addressed the affect of the pre-trial publicity. (See, e.g., 12 RT 2172-2305; 13 RT 2327-2377, 2420- 2501 [defense expert Bronson]; 14 RT 2511-2609; 16 RT 2828-2988 {prosecution expert Ebbesen]; 16 RT 2989-3044; 17 RT 3045-3079 [New].) - 21 The court concludedthe potential jury pool was nottainted and denied the motion, without prejudice to renew if the defense believed a fair panel could not be selected. (17 RT 3117-3123.) Jury selection then began on March 3, 2005. On March7, the court learned some of the prospective jurors communicated with AMstation KFI’sradio talk show hosts “John andKen.” (See 18 RT 3398et seq.) On March 14, Avila renewed his change of venue motion. (46 CT 12221.) The court reserved ruling pending examinationofpotential jurors. During the selection process, those jurors who admitted they could not be fair and impartial were excused for cause, as compared to those whoindicated that although they had been exposedto publicity, theycould set aside opinions they may have formedas to Avila’s guilt or punishment. (Compare 20 RT 3648-3656 and 19 RT 3507-3543; 20 RT 3729.) After the defense had exercisedall ofits 20 peremptory challenges, the trial court denied Avila’s request for six additional peremptory challenges.'* (21 RT 3976.) Avila again renewed his change of venue motion, but the trial court deniedit, finding there were a sufficient number ofjurors not adversely influenced bypre-trial publicity, and that the publicity did not preclude Avila from receiving a fair trial. Furthermore, over 150 prospective jurors were questioned, and those with extensive recollection of media accounts had been excused for various reasons, while those whom the defense were unable to excuse for cause and remained, had only a limited knowledgeofthe facts of the case. (22 RT 4206-4208.) '4 Avila claimed he neededadditional challenges to remove panelists 151, 194, 201, 210, 211, and 255, whostated they could set aside their pre- judgmentfrom thepre-trial publicity. (See 21 RT 3976.) His argument aboutthe denial of additional peremptory challenges is addressed below. 22 B. Because Avila Failed to Establish a Reasonable Likelihood of An Unfair Trial In Orange County,the Trial Court Properly Denied Avila’s Motion For Change of Venue Avila’s focus here on appealis the extensive pre-trial publicity in this case. Admittedly, there existed a significant amountofpre-trial publicity. But a change of venue wasnot warranted because Avila failed to show there existed a reasonable likelihood that a fair and impartial trial could not be held. Initially, Avila concedesthe other factors — i.e., the nature and gravity of the offense, the size of the community, the communitystatus of the defendant and the prominenceofthe victim - were not predominant enough to warrant a change of venue. Indeed mostof these factors were neutral or weighedagainst a change of venue. As this Court observed in the Orange County case ofFamalaro,the nature of gravity of the capital offense alone does not require change of venue,the size of the Orange County community “weighed ‘heavily against a change of venue,””the lack of community ties of the defendant was a “neutral”factor, and while the victim’s “posthumouscelebrity status” may have weighedin favor of a changein venue, that would have followed the defendant to whatever community where venueultimately resided. (People v. Famalaro, supra, 52 Cal.4th at pp. 22-24.) _ Avila nevertheless maintains the “unprecedented firestorm of publicity” and sympathy engendered for Samantha - whose death “catapulted her into posthumous stardom”- madeit reasonably unlikely that he could receive fairtrial.’ (AOB 46-50.) Respondentdisagrees. 'S Before addressing the merits, respondent observes that Avila’s attempt to portray an unfair atmosphere includes referencing former Orange County Sheriff Mike Corona. Avila points out that Corona announced he (continued...) 23 Famalarois particularly instructive. Ten years prior to Avila’s trial, the murder and discovery in a freezer of the sexually molested, brutally _beaten, andfrozen body of 23-year-old Denise Huber - whom the defendant abductedoffan Orange County freeway when hercar broke down- also involved extensive and intensive amount of media coverage. Ironically, testimony offered in this case by Bronson and Ebberson wassimilar to the testimony they offered during a venue hearing in the Famalaro case. (People v. Famalaro, supra, 52 Cal.4th at pp. 19-20.) But there, this Court observed even a saturation of pre-trial publicity does not require a change of venue. (d. at p. 23 :) Asthis Court explained, “Whenpretrial publicity is at issue, ‘primary reliance on the Judgmentofthe trial court makes [especially] good sense’ because the judge ‘sits in the locale where the publicity is said to havehadits effect’ and may base[the] evaluation on [the judge’s] ‘own perception of the depth and extent of newsstories. that might influenceajuror.’” (Skilling v. United States, supra, — — US.at p. , 130 S.Ct. at p. 2918.) Here, we agree with the trial court’s conclusion that defendant did not show a reasonable likelihood that he could not receive a fair and impartial trial in Orange County. Thetrial court’s denial of defendant’s pretrial motion for a change of venue wastherefore proper. (People v. Famalaro, supra, 52 Cal.4th at p. 24.) (...continued) was “one-hundred percent” sure Avila was Samantha’skiller after Avila’s arrest. (AOB 22 and 41.) But as the trial court noted, there was no evidence this had any effect or influence on the prospective jurots and excludedit from evidence. (33 RT 6358-6359). But Avila goes on with umbrage to describe Corona being elevated to hero-status andhis national media appearancesafter the arrest. He then discusses Corona’s downfall for being convicted and imprisoned for witness tampering in an unrelated case. (AOB 22, fn. 2, and 41.) This is not appropriate. Corona’s demise post-dated the trial here andis not part of the appellate record. And other than mere sensational value, it offers no relevancy to the appeal. 24 Perhaps recognizing the import of Famalaro, Avila maintains a more comparable case in recent memory wasthe murderof Polly Klaas andtrial of Richard Allen Davis. In so doing he complainsthe trial court in that case recognizedpre-trial publicity had warranted a change of venue out of Sonoma Countyandinto Santa Clara County. (AOB 47, referring to People v. Davis (2009) 46 Cal.4th 539, 569.)'° Ironically in Davis the defendant claimed that change of venue violated his rights, because the people in the transferred county werejust as prejudiced against him. (People v. Davis, supra, 46 Cal.4th at p. 574.) '6 Avila also suggests this case is more like Daniels v. Woodford (9th Cir. 2005) 428 F.3d 1181, where the Ninth Circuit presumed prejudice and a due processviolation, based on inflammatory media coverage. (AOB 40- 41.) The contention is unavailing. First, Daniels is a federal habeas case and not controlling authority. (People v. Avena (1996) 13 Cal.4th 394, 431.) Second,it involved a pre-Antiterrorism and Effective Death Penalty (AEDPA)habeas matter that had followed this Court’saffirmanceofthe judgment on direct appeal and rejection of the very same venue argument. (See People v. Daniels (1991) 52 Cal.3d 815, 851-853.) Third, the Ninth Circuit found a due process violation merely because empanelled jurors knew of or rememberedpre-trial publicity, and did not engage in any © evaluation as to whetherit affected the jurors’ views orbias against the — defendant. Thus, its validity is questionable given that the court ignored Supreme Court precedent ofIrvin v. Dowd (1961) 366 U.S. 717, 723 [81 S.Ct. 1639, 1643, 6 L.Ed.2d 751] [““It is sufficient if the juror can lay aside his impression or opinion and rendera verdict based on the evidence prese[nted in court’”], and, is undercut further by the more recent Supreme Court case of Skilling v. U.S. (2011) ___ U.S. __ [130 S.Ct. 2896, 2923, 177 L.Ed.2d 619] [This face-to-face opportunity to gauge demeanor and _ credibility, coupled with information from the questionnaires regarding jurors' backgrounds, opinions, and sources of news, gave the court a sturdy foundation to assess fitness for jury service”].) In any event, the similarity between Daniels and the instant case was no different than most other high profile murders: extensive pre-trial publicity, the murdered officers _ becoming posthumouscelebrities, and editorialized media comments which clamored for the death penalty. (Daniels v. Woodford, supra, 428 F.3dat pp. 1211-1212.) 25 Nevertheless, this Court recognized that often in high profile, noteworthy trials where media coverage permeates, similar concerns would exist within the changed venuelocation as well. The shining light of publicity, however, does not precludea fair trial. (/d. at pp. 575-576 [“The mere presence of such awareness on the jurors’ part, without more, does not presumptively deny a defendant due process, because to hold otherwise ““‘would be to establish an impossible standard.’” (Citations omitted.)].) Here, the trial court considered notjust the extent ofthe pre-trial publicity, but also independently reviewed the effect on prospective jurors, based on their answersto the juror questionnaire and their responseto voir dire questions. (See 22 RT 4207-4208.) Thetrial court’s “face-to-face opportunity to gauge demeanorand credibility, coupled with information from the questionnaires regarding jurors’ backgrounds, opinions, and sources of news, gave the court a sturdy foundation to assess fitness for jury service.” (Skilling v. U.S., supra, 130 S.Ct. at p. 2923.) Like in Famalaro, where the trial court addressed these samefactors beforetrial and again after jury selection commenced, the trial court’s denial of the motion for a changeofvenuein this case was entirely proper. (People v. Famalaro, supra, 52 Cal.4th at p. 29 [“The trial court denied defendant’s motions, agreeing with the prosecution that the selection process had successfully eliminated the prospective jurors whoheld fixed opinions, and had not caused the remaining jurors to becomebiased.”’].) In other words, and like in Famalaro, “noneofthe problematic prospective jurors survived the selection process. Thetrial court properly excusedall of the biased prospective jurors for cause; on appeal, defendant does notidentify a single prospective juror as to whom the court erroneously denied a defense challenge for cause.” (Famalaro, supra, 52 Cal.4th at p. 30.) Respondent acknowledges Avila sought to peremptorily challenge six additional jurors that he believed pre-judgedhis guilt, despite 26 their assurancesto the court they could set aside any prejudgment or information they had learned before trial and be fair and impartial. (See AOB36.) But Avila does not separately contend he waserroneously denied a challenge for cause for any, nor raise any claim on appealthat the selection process wasdefective, that jurors held bias the selection process failed to detect, or, that these or any other jurors engaged in misconduct or considered inadmissible evidence during the guilty or penalty trial or deliberation process. Given just how extraordinary the circumstances mustbeforpretrial publicity to entitle any defendant to a remedy such as additional peremptory challenges or a change of venue, respondent suggests that this Court compare the instant case to others where similar arguments were rejected. . For instance, in People v. Bonin, this Court upheld the denial of a change-of-venue motion and a request for additional peremptory challenges, finding that there was “no reasonable likelihoodthatjurors who will be, or have been, chosen for the defendant’s trial have formed such fixed opinionsas a result ofpretrial publicity that they cannot make the determinations required of them with impartiality.” (People v. Bonin (1988) 46 Cal.3d 659, 672-673, citing Patton v. Yount (1984) 467 US. 1025, 1035 [104 S.Ct. 2885, 81 L.Ed.2d 847, 856].) Bonin was convicted of and sentenced to death for the murders of 14 people in Orange County and Los Angeles County in what was dubbedthe “freewaykillings” of 1979 and 1980. He was convicted in Los Angeles first and then raised the change of venue motion in his subsequent Orange Countytrial. (Bonin, _supra, 46 Cal.3d at pp. 668, 673.) Like the venire in the instant case, most of the prospective jurors in Bonin had been exposed,at least to some degree, to publicity about the case particularly in light of the previous Los Angeles trial. (Id. at p. 675.) This Court nevertheless upheld the denial of 27 Bonin’s change of venue motion, finding that despite the “extensive” news coverage surrounding the case and despite the gravity of the crimes, the community in which the case was beingtried waslarge and due to the passage oftime since the Los Angeles County conviction, the media attention had diminished. (/d. at pp. 677-678.) Thus, this Court concluded that Bonin’s speculation about the possibility of an unfairtrial was insufficient to show that he would be unableto be tried by a fair and impartial jury in Orange County. (/d. at 678.) Onthat basis, this Court upheldthetrial court’s denial of both the change-of-venue motion and the defendant’s request for additional peremptory challenges. (/d. at p. 679.) Another comparable case is Skilling v. United States, supra, 130 S.Ct. 2896. Skilling involved the highly inflamedtrial that resulted in the conviction of a former chief executive officer of the Houston-based Enron, in a case that garnered tremendous national mediaattention. (/d. at pp. 2911-2912.) A multitude ofpeople in the Houston area were directly or indirectly impacted by the economic effect of Enron’s demise, and the news coverage included substantial personalinterest stories from individuals expressing their anger toward those involved. (/d. at pp. 2907-2912.) The United States Supreme Court affirmed the federal district court’s denial of a change-of-venue motion, and concludedthat the defendant had failed to establish a presumption ofprejudice. (/d. at p. 2915.) The import ofthe Skilling decision is not affected by the fact that Skilling may have involved corporate crime whereas the matter before this Court is the murder of a young child. Skilling stands for the proposition that even in the face of pervasive media coverage, a fair trial by an impartial jury can be had where the voir dire process, both written andoral “successfully secure[s] jurors | whowerelargely untouched by”pretrial publicity. (/d. at p. 2920.) Here,the voir dire process and the responses ofthe seated jurors ensured that no juror wasso affected by pretrial publicity, such that he or 28 she was unable or unwilling to set aside any preconceived opinion, and could instead decide the case based solely upon the evidence presentedat trial. Furthermore, the trial court made reasonable factual determinationsin that regard. Accordingly, there was not reasonable likelihood of an unfair trial and thetrial court properly denied the motion for a change of venue. C. The Pre-Trial Publicity Did Not Support a Presumption of Prejudice Avila nevertheless appears to suggest prejudice must be presumed here, merely because ofthe extensive inflammatory pretrial publicity and the notoriety of the case. (AOB 38-41.) Respondent again disagrees. Avila wasentitled to be tried by “a panel of impartial, ‘indifferent’ jurors.” (Irvin v. Dowd, supra, 366 U.S. at p. 722.) A trial court may be unable to seat an impartial jury because ofprejudicial pretrial publicity or an inflamed community atmosphere. (Rideau v. Louisiana (1963) 373 U.S. 723, 726 [83 S.Ct. 1417, 10 L.Ed.2d 663].) Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial, and inflammatory media publicity about the crime. (/d. at pp. 726-727; Harris v. Pulley (9th Cir. 1988) 885 F.2d 1354, 1361.) Under suchcircumstances,it is not necessary to demonstrate actual bias. (Ibid.) The presumption of prejudice is ““‘rarely invoked and only in extreme situations.”” (United States v. McVeigh (10th Cir. 1998) 153 F.3d 1166, 1181; Nebraska Press Assn v, Stuart (1976) 427 U.S. 539, 554 [96 S.Ct. 2791, 49 L.Ed.2d 683].) And, as this Court has observed, “{t]his prejudice is presumedonly in extraordinary cases — not in every case in which pervasive publicity has reached most members of the venire.” (People v. Prince (2007) 40 Cal.4th 1179, 1216, orginal emphasis.) For the reasons detailed above, the publicity in Avila’s case was not ‘such as to support a presumption of prejudice. Indeed and as Avila admits, - most ofthe publicity he focuses on subsided long before thetrial began, 29 and was unremarkable in comparisonto other capital cases. (See AOB 25 [““The publicity subsided over time”] and 26(referring to 38 CT 10393- 10418 [People’s opposition to change of venue motion noting that “{m]ost of the publicity had occurred within a few weeks after Samantha [ ] was killed and Appellant was arrested’’].) D. Avila Fails to Establish Prejudice In addition to lacking a basis to presumeprejudice, Avilaalso fails to establish that any actual prejudice resulted from the denial of his change of venue motion. Actual prejudice is demonstrated where a sufficient number- of the jury panel has such fixed opinions about the guilt of the defendant that they could not impartially judge the case, anda trial before that panel would be inherently prejudicial. (Harris v. Pulley, supra, 885 F.2d atp. 1364.) In deciding whether there was actual prejudice against a defendant, the reviewing court “must determineifthe jurors demonstrated actual partiality or hostility that could not be laid aside.” (/d. at p. 1363.) To that end, a juror need notbe “totally ignorant of the facts and issues involved.” (Murphy v. Florida (1975) 421 U.S. 794, 799-800 [95 S.Ct..2031, 44 L.Ed. 2d 589].) “‘It is sufficient if the juror can lay aside his impression or opinion and rendera verdict based upon the evidence presented in court.’” (/d. at p. 800, quoting Jrvin v. Dowd, supra, 366 U.S. at p. 723; Peoplev. Fauber (1992) 2 Cal.4th 792, 819.) “{A] key factor in gaugingthereliability ofjuror assurances of impartiality is the percentage of venireman who‘will admit to a disqualifying prejudice.’” (Harris v. Pulley, supra, 885 F.2d at p. 1364, quoting Murphy v. Florida, supra, 421 U.S. at p. 803.) As this Court has observed: [I]t should be emphasizedthat the controlling cases “cannot be madeto stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to newsaccounts of the crime with which heis charged alone presumptively deprives the defendant ofdue process.” (Murphy 30 v. Florida, supra, 421 U.S. at p. 799 [44 L.Ed.2d at p. 594].) “It is not required... that the jurors be totally ignorant ofthe facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any ofthose best qualified to serve as jurors will not have formed some impression or opinion of the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notionasto the guilt or innocence of an accused, without more,is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard.It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” (People v. Harris (1981) 28 Cal.3d 935, 949-950, quoting Irvin v. Dowd, supra, 366 U.S. at pp. 722-723; accord, People v. Cooper (1991) 53 Cal.3d _ 771, 883; People v. Weaver (2001) 26 Cal.4th 876, 908.) And, “[t]he defendant bears the burden of proofthat the jurors chosen have such fixed opinionsthat they cannot be impartial.” (People v. Hayes (1999) 21 Cal.4th 1211, 1250, citing People v. Sanders (1995) 11 Cal.4th 475, 505.) In this case, the questioning ofjurors during voir dire demonstrates the lack of taint ofjurors bypretrial publicity. None of the jurors held a fixed opinion regarding Avila’s guilt, let alone one he or she would notset aside so as to decide the case on the evidence presented attrial. (See People v. Welch (1999) 20 Cal.4th 701, 745.) Indeedandasset forth above,nositting juror’s initial impressions of the case were resolutely held, andall of the jurors provided assurances, deemedcredible bythetrial court, that any pretrial publicity they had heard would not prevent them from performing their duties fairly and impartially. (Péople v. Coffman & Marlow (2004) 34 Cal.4th 1, 47; People v. Cooper, supra, 53 Cal.3d atp. 807.) 31 Accordingly, Avila has failed to show either error or prejudice as a result of having been tried in Orange County. This claim must, therefore, be denied. II. THE TRIAL COURT PROPERLYDENIED AVILA’S MOTION FOR ADDITIONAL PEREMPTORY CHALLENGESAS HE FAILED TO DEMONSTRATE THE LIKELIHOOD OF AN UNFAIR TRIAL Similar to his change of venue argument, Avila claimsthatin light of the extensive pretrial publicity, the trial court’s denial of his request for six additional peremptory challenges madeit reasonably likely he would not receivea fair trial with an impartial jury.'’ (AOB 51-57.) Thetrial court properly denied Avila’s request for additional peremptory challenges. As _ explained in ArgumentI, supra, Avila failed to show thepretrial publicity prevented a fair trial. Moreover, Avila fails to demonstrate prejudice from the denial of additional peremptory challenges, and fails to establish how the trial would have been anyfairer had such challenges been provided. “Peremptory challenges are intended to promote a fair and impartial jury, but they are not a right of direct constitutional magnitude.” (People v. Webster (1991) 54 Cal.3d 411, 438, citing Ross v. Oklahoma (1988) 487 U.S. 81, 88-89 [108 S.Ct. 2273, 101 L.Ed.2d 80, 90].) “[P]eremptory challenges are within the States’ province to grant or withhold, the '” Avila maintainsthatat trial he requested additional peremptories based on “inflammatory”pre-trial publicity, but on appeal he fails to refer where the record below supports his assertion. (AOB 52-53.) Instead, he baldly states defense counsel exhausted twenty peremptories, then requested six more peremptory challenges to use on panelists numbers 151, 194, 201, 210, 211 and 225, and based on 3 reasons: (1) exposure to inflammatory publicity, (2) personal identification with the victim and her mother, and/or (3) sympathy with friends who were sexual assault victims. (AOB 52-53.) But then Avila merely describes answers from four of these jurors andreferencesthetrial court’s denial of the request for additional peremptories. (AOB 53, referring to 20 RT 3631, 21 RT 3945; 16 CT 3479, 3518 [juror answers] and 21 RT 3976 [court ruling].) 32 mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution.” (Rivera v. Illinois (2009) 556 U.S. 148, 158 [129 S.Ct. 1446, 173 L. Ed. 2d 320].) As a result, in order to establish a constitutional entitlement to additional peremptory challenges, Avila was required to show at least that he waslikely to receive an unfair trial before a biased jury without the challenges. (People v. DePriest (2007) 42 Cal.4th 1, 23.) | Based on the foregoing change of venue argument, Avila’s was not a case so extraordinary that the pervasivepretrial publicity rendered his request for additional peremptory challenges a constitutional necessity in order to ensure the fairnessofhis trial. Implicit in Avila’s argument is the premise that the only wayto protect against negative impact from pretrial publicity was to grant additional peremptory challenges. Significantly there are other waysto protect against the samerisks, but Avila chose not to avail himself of all of them. For example, while he did move to change the venueofhis trial, he could have alternatively asked for a continuance ofthe trial to further allow the media spotlight to fade. The fact that he did not request a continuanceonthis basis is a relevant consideration in determining whetherthe publicity was so pervasive that unfairnessto his proceedings should have been presumed. Avila further suggests additional peremptory challenges were needed in order to replace those that he had used to dismiss prospective jurors whom he had unsuccessfully challenged for cause. (AOB 52,referring to panelists 151, 194, 201, 210, 211 and 225.) These were panelists who sat on the jury, despite his belief they could not be fair and impartial because ofthe pre-trial publicity, their personal identification toward the victim and her mother, or sympathy toward sexual assault victims. (See AOB 52, referring to 21 RT 3976; 16 CT 3479 [juror who stated he would be fair despite formergirlfriend being sexual assault victim)] 16 CT 3518 [juror 33 who wouldbefair despite niece being a rape victim]; 20 RT 3631 [juror whoinsisted he would be fair despite having listened recently to the AM “John and Ken” show]; and 21 RT 3945 [stay-at-home mom who supported death penalty but who could set aside sympathies and be fair and impartial]). But Avila concedes these panelists were not excusable for cause, because they stated they could be fair and impartial. (AOB 56, referring to People v. Hecker (1990) 219 Cal.App.3d 1238, 1242.) To that end, he does not suggestthe panelists lied or misled the court on this basis. Instead, he simply maintains there were a greater numberofpanelists who stated they could be fair and objective than the numberofperemptory challenges he was afforded. (AOB 56.) Respondentis unclear how that assertion results in a viable claim oferror. | Regardless, while Avila expressed specific dissatisfaction as to these jurors given their exposure to pre-trial publicity, he did not do so for the remaining jurors. This is indicative of his impression that other jurors were not tainted by the very samepretrial publicity and held no bias against him. In any event, that jurors may have knowngenerally about the crime did not equate to pervasive, prejudicial pretrial publicity that required additional peremptory challenges to ensure the fairness of the proceeding. Asthis Court observed in People v. Davis, supra, 46 Cal.4th 539: Wehaveneverrequired potential jurors to be ignorant of news accounts of the crimeorfree of “‘any preconceived notion as to the guilt or innocence of an accused.’” (People v. Harris (1981) 28 Cal.3d 935, 950 [171 Cal. Rptr. 679, 623 P.2d 240], quoting Irvin v. Dowd, supra, 366 U.S. at p. 723; see also People v. Riggs (2008) 44 Cal.4th 248, 281 [79 Cal. Rptr. 3d 648, 187 P.3d 363]; In re Hamilton (1999) 20 Cal.4th 273, 295 [84 Cal. Rptr. 2d 403, 975 P.2d 600].) The mere presence of such awareness on the jurors’ part, without more, does not presumptively deny a defendant due process, because to hold otherwise ““would be to establish an impossible standard.’” (People v. Harris, supra, 28 Cal.3d at pp. 949-950, quoting Irvin vy. Dowd, supra, 366 U.S.at p. 723.) In the absence of 34 some reason to believe otherwise,it is only necessary that a potential juror be willing to set aside his or her “impression or opinion and rendera verdict based on the evidence presented in court.” (Harris, at p. 950, quoting Irvin v. Dowd,at p. 723; see People v. Riggs, supra, 44 Cal.4th at p. 281.) (People v. Davis, supra, 46 Cal.4th at p. 575.) Moreover, Avila’s suggestion that he was entitled to additional peremptory challenges because he used challenges to dismiss those prospective jurors he unsuccessfully challenged for cause, is also untenable. This Court rejected the same argument in People v. Yeoman (2003) 31 Cal.4th 93: To be sure, we have observedthat “an erroneous denial of a challenge for cause can be cured bygiving the defendant an additional peremptory challenge.” (People v. Bittaker, supra, 48 Cal.3d 1046, 1088, 259 Cal.Rptr. 630, 774 P.2d 659.) Yet, while a trial court that was convincedit had erred might well grant additional peremptory challenges, the mere claim of error cannot reasonably be thought sufficient to compel the court to do so. Otherwise, the number ofperemptory challengesa trial court must allow would be limited only by the numberof challenges for cause a party was willing to assert, regardless of merit. In another context, we have held that “to establish [a] constitutional entitlement to additional peremptory challenges..., a criminal defendant must showat the very least that in the absence of such additional challenges he is reasonably likely to receive an unfair trial before a partial jury.” (People v. Bonin (1988) 46 Cal.3d 659, 679, 250 Cal.Rptr. 687, 758 P.2d 1217 [rejecting a claim of error based onthetrial court’s refusal to allow additional peremptory challengesto redress the effects ofpretrial publicity].) We see no reason the samestandard should not apply in this context. Applying that standard, we conclude - defendant cannot showthetrial court’s failure to allow additional peremptory challenges caused him to receive an unfairtrial, because he did not challenge anysitting juror for cause. (Yeoman, supra, 31 Cal.4th at pp. 118-119.) 35 Finally, Avila cannot show any actual prejudice resulted from the denial of additional peremptory challenges. Noneofthe jurors here had unwavering opinions concerninghisguilt, let alone fixed opinions and unwillingness to change even if contrary evidence was presentedattrial. | Moreover, if Avila’s point is that media attention was so pervasive that his entire jury pool wastainted, then an infinite number of peremptory | challenges would not have beensufficient. If he sought a jury of 12 individuals who knew nothing about his case, the task was an impossible one. Moreover, Avila was not constitutionally entitled to an ignorant jury. (E.g., People v. Davis, supra, 46 Cal.4th at p. 580 [every seated juror had prior knowledge of case]; People v. Ramirez (2006) 39 Cal.4th 398, 434 [11 jurors had prior knowledge of case]; People v. Bonin, supra, 46 Cal.3d at p. 678 [10 jurors with prior knowledge]; People v. Leonard (2007) 40 Cal.4th 1370, 1396-1397 [8 jurors].) “The relevant inquiry is ... whether the jurors ... had such fixed opinionsthat they could not judge impartially the guilt of the defendant.” (Patton v. Yount, supra, 467 U.S.at p. 1035.) Here, each seated juror Avila now complains about stated he or she could set aside any external influence and fairly decide the matter on the evidence presented in the courtroom. Thus,the voir dire process ensured Avila wastried by a panel ofjurors untainted by pretrial publicity, and failure to grant him additional peremptory challenges wasneither error nor prejudicial. Avila’s claim must, therefore, be rejected. IIf. EVIDENCE AVILA PREVIOUSLY MOLESTED OTHER CHILDREN WAS PROPERLY ADMITTED UNDEREVIDENCE CODE SECTIONS 1101 AND 1108 DURING THE GUILT PHASE AND AS AGGRAVATING EVIDENCE IN THE PENALTY PHASE Avila argues admission ofhis prior child molestation offenses violated his right to a fundamentally fair trial and penalty determination, deprived him of due process, and constituted an abuse ofdiscretion and reversible error. (AOB 58-80.) The argumentlacks merit. The evidence 36 was admissible under Evidence Code sections I 101 and 1108. Further, the trial court did not abuseits discretion in finding the probative value of the evidence outweighed any prejudice. For similar reasons, the evidence was properly admitted in the penalty phase. A. The Defense Motion to Exclude Evidence of Avila’s Prior Acts of Child Molestation and the Trial Court’s Ruling Regarding the Admissibility of the Evidence _ Priorto trial, Avila filed a motion to exclude evidence that he molested Catherine, Alexis, and Cara in the year preceding Samantha’s abduction, molestation, and murder. Avila had never been charged with the offense involving Cara, and was acquitted of the charges involving Catherine and Alexis in early 2001. Avila contended the prior offense evidence was weak becausein addition to the acquittal, the victims’ complaints were not corroborated and the allegations made by Catherine and Alexis cameafter his bitter separation from Catherine’s mother, | Avila’s ex-girlfriend. Avila also contended the evidence should have been excluded under Evidence Codesection 352, based on the speculative assertion he had already been “convicted”by pre-trial publicity and the jury would assumehim a habitual child molester. And, he separately contended the evidence would infect the penalty phase and the jury would consider the offenses for which he was acquitted as aggravating evidence. (See AOB 58-60, referring to 43 CT 645-655; 15 RT 2812-2816, 2818.) The prosecution asserted the evidence wasprobative to Avila’s identity as the perpetratorofthe charged offenses and motive under Evidence Code section 1101, as well as Avila’s propensity to molest young girls under Evidence Code section 1108. The prosecution theorized Avila knew younggirls resided at the Smoketree condominium complex and went there again to molest Catherine, or at least abduct a younggirl to gratify his 37 sexual desires.'* Additionally, the evidence was relevantto prove Avila’s motive to murder Samantha,in order to eliminate a victim-witness and avoid being arrested and subjected to anothertrial, thereby escaping punishment a second time. (See 34 RT 6538 [People’s rebuttal].) Further, the prosecution maintained the prior crimes evidence was not unduly prejudicial: unlike the present offenses, the unchargedcrimesinvolving Catherine, Alexis, and Cara did not involve any brutal sexual assaults or murder, so evenifthe |jury believed Avila committed the prior offenses, it wouldnotnaturally assume he committed the charged crimes. On a separate basis, the prosecution argued the evidence was admissible during the penalty phasetrial under factor (a), since it involved the nature and circumstancesof the crime, and underfactor (b), as other crimes evidence. The prosecution alternatively suggested that if it was not admissible under factors (a) and (b), that the court could instruct the jury it should not | considerthe offenses which resulted in acquittals. (45 CT 11972; 15 RT 2806-2812, 2817.) Thetrial court ruled the prior crimes evidence admissible under Evidence Code section 1108, during the guilt phase trial. Moreover, the court determined anyprejudicial affect was relatively minimal under Evidence Code section 352, given that the probative value was extremely '8 As noted in the Statement of Facts, in January of 2001, a Riverside County Superior Court jury found Avila not guilty of the molestations of Catherine ands Alexis. (26 RT 4746-4747.) After the acquittal Avila braggedto his sister Elvira that because of “double jeopardy,” he could now do anything he wantedto "thatlittle girl" and never again be criminally charged. (26 RT 4752-4753.) While Avila’s motive was not expressed or clear, the People theorized he returned to the condominium complex with a plan to find and molest Catherine again, or decided at some point to simply take Samantha. (See 26 RT 4747-4753 [evidence]; 33 RT 6375-6376 and 6409-6410 [People’s closing statement] 34 RT 6538-6540, 6557-6538 [People’s rebuttal argument].) 38 high andin light of the conduct being less brutal andrelatively minimal when compared to the instantcase, plus the fact that these offenses did not involve convictions. Thetrial court was also confident the jury would follow its instructions on the nature of the prior offense evidence, and that it may consider the previous acquittals in determining its relevance for the present crimes. As to the penalty phasetrial, the court deferred ruling concerning admissibility of the evidence. (15 RT 2819-2821.) B. Prior Acts of Molestation Evidence?” WhenCatherine was about seven years-old, she and her brothers lived with their father at the Smoketree condominiumsin Stanton. There she becamefriends with other younggirls, including Samantha. Every other weekend from early 1997 through March of 1999, Catherine and her brothers stayed with her mother in Lake Elsinore. Avila was living with Catherine’s mother and he would cometopick her up at the complex. (25 RT 4569-4572, 4587-4588, 4592, 4594-4595, 4596, 4660, 4662.) Avila wanted Catherineto sleep in bed with her mother and him. (25 RT 4661-4662.) And when Catherine’s mother was awayat work, Avila would babysit her. He also sexually molested her over 50 times. He never sexually penetrated her, but would have her take off her clothes, kiss her mouth and vagina, masturbate himself, and ask her to insert tubes into her vagina for practice so he could have intercourse with her when she was older. He showedher pornographic films and even filmed her. Sometimes during the molestations, Avila would put his hand over her mouth,jerk her, and threaten, “don’t move.” Catherine wasinitially afraid to report the incidents, but eventually complained about them to both her mother and father around Decemberof 1999. (25 RT 4586-4588, 4589, 4596-4604, '° The trial court provideda limiting instruction before prior offense testimony was presented. (24 RT 4453-4454.) 39 4634, 4660, 4677-4678.) Avila had threatenedto hurt her and her family if she told anyone, but when she found out one ofher friends had been molested by Avila, it “gave me the courageto tell.” (25 RT 4604-4605.) Alexis was Catherine’s cousin, and sometimes on weekendsvisited Catherine and her aunt in Lake Elsinore. On one visit when Alexis was about five, Avila told the girls to take off their clothes and play together. (24 RT 4474.) During another visit when Alexis was about seven, Avila put his hand undereachgirl’s pajamas and onto the “private area and movedit fast,” to show them how to masturbate. (24 RT 4455-4461, 4481; 25 RT 4641.) Catherine told Alexis to let him do it, because “it feels good.” (24 RT 4469.) Avila also molested Cara both during and before he movedinto her home. The summerbefore he moved in, Avila offered to take Cara to the Knott’s Berry Farm amusementpark, so Cara stayed with him the night before. That evening Avila asked her to touch his penis and inserted test tube into her vagina. He put his hand over her mouth and warnedherthatif she told anyone aboutthis incident “someone could be killed.” (24 RT 4514-4515, 4520-4524, 4532-4533, 4542.) Andafter Avila broke up with Catherine’s mom and movedin with Jose, Cara saw photos of younggirls having sex with adult men on Avila’s computer. He would alsotickle her “legs and by myprivate parts.” (24 RT 4515.) In addition, Avila choked her on nine to ten occasions, when he becameangry with her. (24 RT 4519.) Before the testimony, and again at the conclusion ofthe guilt phase | trial, the trial court instructed the jury it could consider the prior offenses for the “limited” purposesit was offered, if it determined by a preponderance of the evidence that Avila committed the offenses. And in making that determination, the jury could consider the previousacquittals. The trial court also instructed the jury the prior offenses were but one factor 40 they could consider in evaluating whether the prosecution had proved Avila’s guilt for the charged offenses beyond a reasonable doubt. (24 RT 4453-4454; 33 RT 6331 and 6334-6340; 46 CT 12403 et seq. [CALJIC Nos. 2.50.01, 2.50.1, 2.50.2, 2.90].) In regard to the penalty phase, the prosecutor conceded that because Avila had been acquitted, the incidents involving Catherine and Alexis were inadmissible in the penalty phaseas prior criminal activity under factor (b). This was correct. (People v. Lewis & Oliver (2006) 39 Cal.4th 970, 1052; People v. Anderson (2001) 25 Cal.4th 543, 584.) But the prosecution contended those offenses were still admissible as circumstances of the offense underfactor(a), as evidence of Avila’s premeditation and motive for the murder. To that end, the court and both parties agreed the prosecutor could arguethat “the motive for this killing was to avoid having to go through a sexual assault trial as he had in the past,” but not otherwise refer to the offenses involving Catherine and Alexis. Further and over Avila’s objection that it was unduly prejudicial, the trial court ruled the incident involving Cara could be considered as aggravation under factor (b). (47 CT 12526-12534; 34 RT 6590-6601.) In accordance with the parties’ agreement and the court’s ruling, the prosecutor madelimited references to the Catherine and Alexis incidents during the penalty phase argument. The prosecutorbriefly asked the jury to consider onlythe prior criminal activity involving Cara as aggravating evidence underfactor (b), because it provided “insight” into Avila, but did not ask the jury to impose the death penalty because of this previous offense. (36 RT 7126-7127.) During penalty phase instruction, the court instructed the jury that before a juror can considerthis as evidence of other violent criminal activity in aggravation, he or she mustfind the existence of such activity beyond a reasonable doubt. (34 RT 6613-6614; 35 RT 7013- 41 7014, 7110-7111; see also People v. Foster (2010) 50 Cal.4th 1301, 1364; People v. Huggins (2006) 38 Cal.4th 175, 239.) C. The Trial Court Properly Admitted Evidence of Avila’s Prior Acts of Child Molestation Under Evidence Code Sections 1101 And 1108 Evidence Codesections 1101 and 1108, both permit in some capacity the introduction of prior offenses and uncharged misconduct. (Peoplev. Villatoro (2012) 54 Cal.4th 1152, 1161-1162.) This may include evidence of an offense that resulted in an acquittal. (See People v. Mullens (2004) 119 Cal.App.4th 648 [in sex offense prosecution in whichtrial court admitted propensity evidence defendant committed an uncharged sex offense, evidence the defendant was acquitted of that offenseis admissible].) A trial court’s rulings on the relevance, prejudice, and admission or exclusion of other crimes evidence under Evidence Code sections 1101 and 1 108, as well as undersection 352, are reviewed for abuse of discretion. (People v. Davis, supra, 46 Cal. 4th at p. 602; People v. Carter (2005) 36 Cal.4th 1114, 1147.) - This Court recently discussed the rules governing admissibility of evidence undersection 1101: In order to be admissible to prove intent, the uncharged misconduct mustbesufficiently similar to support the inference that the defendant ““probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.] [{]] A greater degree of similarity is required in order to prove the existence of a ~ commondesign or plan.... [{] To establish the existence of a commondesign or plan, the common features mustindicatethe existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.... [§] The greatest degree ofsimilarity is required for evidence ofuncharged misconductto be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 42 ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’” [Citation.] [fn. omitted] { Other-crimes evidence is admissible to prove the defendant’s identity as the perpetrator of another alleged offense on the basis of similarity “when the marks commonto the charged and unchargedoffenses, considered singly orin combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing,tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.” [Citation.]’ [Citation.] The inference of identity, moreover, need not depend on one or more unique or nearly unique commonfeatures; features of substantial but lesser distinctiveness may yield a distinctive combination when considered together. [Citation.].” (People v. Vines (2011) 51 Cal.4th 830, 856-857.) Andin regard to admission undersection 1108, this Court explained, An exception to the generalrule against admitting propensity evidence is Evidence Codesection 1108, subdivision (a), which provides for the admissibility of evidence of other sexual offenses in the prosecution for a sexual offense, subject to Evidence Codesection 352. “(T]he Legislature’s principal justification for adopting section 1108 was a practical one: By their very nature, sex crimesare usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuingtrial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 providesthe trier of fact in a sex offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes.”(People v. Falsetta (1999) 21 Cal.4th 903, 915, 89 Cal-_Rptr.2d 847, 986 P.2d 182 (Falsetta).)” (People v. Jones (2012) 54 Cal4th 1, 49.) In this case, the prior recent molestations of Catherine, Alexis, and Cara, were properly admitted during the guilt phase under Evidence Code 43 . section 1101, to show Avila’s intent and motive.” They werealso separately admissible as propensity evidence under Evidence Codesection 1108.7" The prior offenses were relevant to Avila’s intent under section 1101,. in that heat least “probably harbor[ed]’” the same intent to molest Catherine again,if not yet another young (preferably blonde) girl. (See Peoplev. Scott (2011) 52 Cal.4th 452, 471 (“To be admissible to proveintent, the charges must be sufficiently similar to support the inference that the defendant probablyharbored the sameintent in each instance” and citing 2 Wigmore, Evidence (Chadbournerev. ed. 1979) § 302, p. 241 [“The recurrence of a similar result ... tends (increasingly with each instance) to negative accident or inadvertenceorself-defense or good faith or other innocent mentalstate, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying suchan act....”].) *° As noted above,the trial court ruled the evidence admissible under section 1108, presumably becausethe parties primarily discussed this ‘evidence under Evidence Code section 1108 while marginally discussing section 1101. In regards to section 1101, the prosecution argued the evidence was admissible to show identity, which requires the greatest degree of similarity where the pattern and characteristics of the crimes must be so unusual anddistinctive as to be like a signature. (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) Admittedly, the prior offenses were not as brutal as the molestation here, but the present andprioroffensesall involved some form ofvaginal penetration. Regardless, this Court need not determine whether the evidence of identity was sufficient in this case, because the trial court properly found the evidence admissible forother reasons. *! That this was a homicide case doesnotaffect the admissibility of 1108 evidence, because Avila was also charged with sexual related offenses and the murder occurred while in the commission of sexual offenses. (People v. Story (2009) 45 Cal.4th 1282, 1291-1292.) 44 Avila’s prior molestation of Catherine was coupled with an unusual attraction to her, so muchso that Catherine’s mother ended her relationship with him. (25 RT 4683.) And he also always commented about Catherine’s beauty to Cara. (24 RT 4517.) Simply put, Avila was a pedophile drawn to Catherine. And after his acquittal, Avila believed he wasfree to molest Catherine again without getting caught. (26 RT 4753.) Indeed, the day after viewing an incest story on the family computer, Avila returned to the very area where he knew Catherine often lived- evidencing desire to again molest her, or at least another younggirl. Admittedly, Avila’s prior offense victims were securely inside the home wherehelived and he had no needto “hunt” them like Samantha. Butif Avila intended to find and molest Catherine, that he instead took Samanthadid notvitiate such intent. In any event, even if Avila changed his mind whenhearrived, or even intended to prey upon anotherchild, he clearly groomed his prior victims and their parents to cultivate trust and facilitate his being alone with them. In that respect, Avila wentto a place where he knewother children lived and played outside. These children might recognize him and not be on guard, or he could take better advantage of an opportunity to find and be alone with a child without adult supervision. Andin fact,Avila cultivated Samantha’strust here, by asking herto help find his lost puppy. Avila’s recent acquittal emboldened him to continue molesting Catherine andit was entirely reasonableto infer that he wished to find and molest her again, or at the very least molest another young girl. All of this wasin the belief there would be no consequenceto him. Alternatively, the prior molestations involved Avila putting his hand over the children’s mouths andthreatening to kill them if they told anyone. Samantha’s murderthus served a separate ulterior purpose, one Avila perhaps realized 45 after he had been caught: eliminate the only witness to his depraved sexual acts to prevent arrest and face anothertrial. | But even if not admissible under section 1101, the prior offense evidence was admissible as propensity evidence undersection 1108. As this Court has recognized: Regardless of the admissibility of the challenged evidence underEvidence Code section 1101, subdivision (b), there was noerrorin the Toni P. evidence being considered by the jury because it was admissible under Evidence Codesection 1108 to show that defendant had a predisposition to commit the sexual offensesin this case. (See Davis, supra, 46 Cal.4thatp. 603, fn. 6, 94 Cal.Rptr.3d 322, 208 P.3d 78; see also People v. Smithey (1999) 20 Cal.4th 936, 972, 86 Cal.Rptr.2d 243, 978 P.2d 1171 (Smithey) [“““‘[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrongreason. If right upon any theory ofthe law applicable to the case, it must be sustained regardless of the considerations which may have movedthe trial court to its conclusion.’ [Citation.]” [Citation.]’”].) Admissibility under Evidence Code section 1108 does not require that the sex offenses be similar; it is enough thecharged offense andthe prior crimes are sex offenses as defined bythe statute. (People v. Frazier (2001) 89 Cal.App.4th 30, 41, 107 Cal.Rptr.2d 100.) That criterion is clearly methere. (People v. Jones, supra, 54 Cal4th at p. 50.) For similar reasons as to section 1101, there was no abuse of discretion in the admission ofthe prior offense evidence undersection 1108. The evidence wasclearly probative to Avila’s propensity to molest young girls. Further, the trial court here engaged in the weighing process required by section 352, and in so doing properly observed the probative value ofthe prior offense evidence was not outweighed by a substantial likelihood it would prejudice the jury. (People v. Ewoldt, supra, 7 Cal.4th at pp. 404-407.) To that end, Avila even recognizesthat, “so long as Evidence Code section 352 is properly applied to exclude unduly 46 prejudicial other crimes evidence, there is no due process problem.” (AOB 70; see also People v. Falsetta (1999) 21 Cal.4th 903, 915.) Here, the evidence wasprobative of Avila’s propensity to commit sexual offenses (Falsetta, supra, at p. 915 [“evidencethat [the defendant] committed other sex offenses is at least circumstantially relevant to the issue of his disposition or propensity to commit these offenses”].) And although serious crimes, they certainly were not more serious or inflammatory than the charges against Avila in the present case (see People -y. Lewis (2009) 46 Cal.4th 1255, 1287), and, were not too remote in time from the present case. At the very least, it cannot be said the trial court’s ruling on the admissibility of this evidence constituted an abuse of discretion. (People v. Story, supra, 45 Cal.4th at p. 1295 (“Like any ruling undersection 352, the trial court’s ruling admitting evidence undersection 1108 is subject to review for abuse of discretion.) Here, the court carefully considered the evidence, foundit had significant probative value and ensuredthat it would minimize any prejudice with its instructions. Further, the evidence did not take long to present in an otherwise extensive capital trial. The ruling came well within the court’s discretion and Avila presents no compelling argumentthat its admission in the guilt phase resulted in prejudicial error. But even if this Court found error, Avila’s prejudice argument does not suggest the court improperly instructed the jury on the mannerto consider or weightthe other offense evidence. Instead, he baldly speculates the jury may not have followed the court’s admonition not to consider the offenses for which he was acquitted during the penalty phase. (AOB 73.) Thus, the prejudice argumentasserts the jury might not have convicted him and sentenced him to death if it had notlearned of the prior offenses and in so doing, points to what he perceives to be weakness in witness testimony and in the physical evidence collected: (See AOB 75-80.) Curiously, Avila 47 does not separately challenge the sufficiency of the evidence that supported his conviction or the special circumstancefinding. In any event, given the unchargedact evidence wassignificantly less inflammatory than the charged offenses, there was minimalrisk the jury would be motivated to punish Avila for the uncharged offenses, and Avila presents no convincing argumentthat the section 352 analysis employed here was not a sufficient safeguard against prejudice. Moreover, and despite Avila’s perception to the contrary, he and his car were identified at the scene of the abduction, his movements and whereabouts before and after the abduction coincided with the location of the kidnapping and location he dumped Samantha’s body,his actions after the murder were unusual and suspicious, and forensic evidence placed him at the scene, his DNAunder Samantha’s fingernails, and her DNA in his car. Consequently, Avila fails to establish that admission of the evidence resulted in a manifest miscarriage ofjustice. (People v. Lewis, supra, 46 Cal.4th at pp. 1286- 1289.) | Alternatively, Avila challenges admission of this evidence during the penalty phase. But the prior offenses against all girls were entirely admissible during the penalty phase undersection 190.3, subdivision (a) {nature and circumstances of the crime], because they supported the prosecution’s theory as to why Avila returned to this condominium complex a mere 18 months after his acquittal. (See People v. Guerra (2006) 37 Cal.4th 1067, 1154, overruled on other grounds, People v. Rundle (2008) 43 Cal.4th 76, 151 (evidence that bears directly on the defendant’s state of mind contemporaneouswith the capital murderis relevant under factor (a), as circumstancesofthe crime.) In Guerra, this Court noted that because the defendant’s mental condition suggested he “experienced ‘emotional fulfillment, psychological satisfaction from pain’ ~ and enjoyed causing [the victim] to suffer to be relevant to the 48 circumstances of[the victim’s] murder, such matters could properly be considered by the jury as evidence in aggravation undersection 190.3, factor (a).” (/d. at p. 1154.) Here, Avila’s state of mind was one of committing forcible sexual molestations against one particular, or other youngchildren underthe belief he could do so without consequence. Additionally, under section 190.3, subdivision (b), a jury may hear facts. surroundingprior criminalactivity involving force or violence. (E.g., People v. Moore (2011) 51 Cal.4th 1104, 1135; People v. Carey (2007) 41 Cal.4th 109, 135; People v. Jurado (2006) 38 Cal.4th 72, 135; People v. Zapien (1993) 4 Cal.4th 929, 987; People v. Mickle (1991) 54 Cal.3d 140, 187; People v. Melton (1988) 44 Cal.3d 713, 754.) Thus, the incident with Cara, where Avilainserted a test tube into her vagina wasseparately admissible underfactor(b), so long as the jury found it proven beyond a reasonable doubt. And as the prosecution argued,this incident also involved evidence Avila threatened to kill her if she told anyone, which suggested he hadnodifficulty in killing a victim to avoid punishment. (See 34 RT 7127.) Consequently, the prior offenses were properly admitted during the guilt and penalty phases. Avila’s claimsto the contrary should be rejected. IV. THE TRIAL COURT Dip NOT ABUSEITS DISCRETION IN ADMITTING CRIME SCENE PHOTOGRAPHSORLETTING WITNESSES DESCRIBE PORNOGRAPHY FOUND ON AVILA’S COMPUTER Avila argues crime scene photographs were gruesome,inflammatory, unduly prejudicial, cumulative, and violated his rights to a fair trial and penalty determination under the Eighth Amendment and DueProcess Clause of the Fourteenth Amendment, as well as analogous California constitutional provisions. He makes a similar argument for the admission 49 of child pornographic images found onhis family’s home computer.” - (AOB 77-94.) Neither has merit. Thetrial court’s relevance determination, like Evidence Code section 352 and 1101 rulingsas to other uncharged offenses, are subject to the deferential abuse-of-discretion standard. (People v. Carter, supra, 36 Cal.4th at.p. 1147 [Evid. Code, § 352]; People v. Brown (2003) 31 Cal.4th 518, 577 [relevance]; People v. Lewis (2001) 25 Cal.4th 610, 637 (Evid. Code, § 1101].) With regard to the admission ofprobative evidence,this Court has observed: The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damageto a defense that naturally flows from relevant, highly probative evidence. All evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the moreit is “prejudicial,” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotionalbiasagainst the defendant as an individual and whichhasvery little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” (People v. Karis (1988) 46 Cal.3d 612, 638, internal quotation marks omitted.) . Evidenceis not rendered inadmissible under section 352 unlessits probative value is “substantially” outweighed bythe risk of such prejudice. In making this determination,trial courts enjoy broad discretion. (People v. _ Michaels (2002) 28 Cal.4th 486, 532.) Further, that discretion will only be ”? The court and parties discussed the admissibility of the photographs and the pornographyat the same time. (See 17 RT 3125.) Avila objected to the crime scene photos and the pornography found on the computer under Evidence Codesection 352, as well as the Fifth, Sixth, Eighth and Fourteenth Amendments and the California Constitution article IT, sections 15, 16 and 17. His argument focused on section 352. (17 RT 3129-3130.) 50 disrupted on appeal upon a showing that it was exercised “in an arbitrary, capricious, or patently absurd mannerthat resulted in a manifest miscarriage ofjustice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) First and in regard to Avila’s possession of child pornography,the court agreed with the prosecutionthat the incest story downloaded the day before Samantha’s abduction was probative to his motive andintent for molesting then killing Samantha. In so doing, the court also recognized _ that the images found onhis computer (which depicted inter alia a young girl straddling an adult man’s penis and oral sex between adult males and children) were potentially inflammatory and exercised its discretion under section 352 to exclude the images themselves. Instead, the court obviated potential prejudice by having witnesses merely testify about the pornography found on the computer. (See 15 RT 2720; 17 RT 3135-3145, 3153-3156.) Thejury learned the computer to which Avila had access contained several child pornography images. This included photographsof adults and children engagedin various sexualactivities, and over a dozen movie clips of sex acts between adults and children or between children and children. Andat about 4:30 a.m. on July 14, someoneprinted out a multi-part incest story involving an adult man engaging in sexual activities with his daughters and granddaughters. Also stored on the computer were chat room conversations wherethe participants shared feelings and sexual desires concerning children. (25 RT 4700-4702; 29 RT 5347-5363, 5366- 5372.) The jury also heard from Cara’s father, Jose, that he found a photo inside the bedroom once occupied by Avila, of a young Asian girl straddling a man’s penis. (24 RT 4494, 4498-4499.) | During his guilt-phase closing argument, the prosecutorbriefly discussed this evidence,in asking the jury to conclude Avila’s motive and intent was the sexual molestation of Samantha. (33.RT 6404-6410.) The 51 prosecution did not mention the photographs during the penalty phase argument. Admission of the evidence,particularly in this limited fashion, wasentirely proper. (People v. Memro (1995) 11 Cal.4th 786, 865 [“the photographs, presented in the context of defendant’s possession of them, yielded evidence from which the jury could infer that he had a sexual attraction to young boysandintendedto act on that attraction”].) Second andin regard to admission of crime scene photographs, six photographs werepresented and the prosecutor maintained the crime scene photographs wererelevant and probative as to Samantha’s body and the traumainflicted to her vaginal and analarea, in order to prove she had been sexually assaulted before her murder. (17 RT 3125-3134 (identified as Crime Scene- People, or “CS-P”).) The court recognized some photographs were particularly gruesome andthus specifically addressedits discretion under Evidence Codesection 352 before ruling some admissible. _ (15 RT 2821-2824; 17 RT 3133-3135.) In so doing, the court even | remarked that photograph CS-P4, which wasa closer view of Samantha’s naked body with legs spread and that showed bleeding ofthe sexual organs- was “the worst ofthe lot.” Nevertheless, it ruled this photo admissible because it was probative and not inherently prejudicial. (17 RT 3135.) Thusand to corroborate the pathologist’s testimony, the jury observed crime scene photographsthat depicted Samantha’s bruised and bleeding vagina and anus. (24 RT 4416 et seq.) The prosecution did not seek to admit any autopsy photographs. (17 RT 3125-3126.) Consequently, these were the only photographsbefore the jury that displayed the sexual assault and traumainflicted to Samantha and they were no more graphic than what would have been presented in autopsy photographs. Avila’s arguments against admission ofthe crime scene photosare that (1) they had no probative value because he did not contest sexual assault, (2) they were cumulative to the pathologist’s testimony, and (3) 52 they were unduly prejudicial because, any juror “would have to be devoid of all human emotionto objectively weigh the evidence.” (AOB 90.) The arguments lack merit. First, whether Avila disputed that a sexual assault occurred is not consequential, because the prosecution nonetheless was required to present evidence from whichthe jury could conclude beyond a reasonable doubt that the molestation offense occurred. “[P]hotographs of murder victims are relevant to help prove how the charged crime occurred,” and prosecutorsare “not limited to details provided by testimonyoflive witnesses.” (People v. Booker (2011) 51 Cal.4th 141, 170-171; People v. Gurule (2002) 28 Cal.4th 557, 625 [“{P]rosecutors... are not obliged to provetheir case with evidence solely from live witnesses; the jury is entitled to see details of the victims’ bodies to determineif the evidence supports the prosecution’s theory ofthe case.”]; People v. Blacksher (2011) 52 Cal.4th 769, 827 [autopsy photos properly admitted where evidence showednature and placementoffatal wounds, and photoillustrating wound indicated victim indefensive position just before being shot was relevant to issue of malice andintentto kill].) Second, the photographs corroborated the medical examiner’s testimony and helped the jury to weighhis credibility, and better understandhis testimony about the injuries to Samantha before she died and her death. In any event, the cumulative nature of the photographs was not sufficient to order them excluded. Avila’s argumentis really a thinly-veiled prophylactic effort to exclude both autopsy and crime scene photographs as a matterof law, 53 becausetheir very nature evokesprejudice.” Thelaw is to the contrary. Asthis Court observedin cases involving the admissibility of photographs over a section 352 objection in murdercases, murderis seldom pretty,sence 399 993and pictures in such a case are always unpleasant”... .’” (People v. Cowan(2010) 50 Cal.4th 401, 475, citing People v. Pierce (1979) 24 Cal.3d 199, 211.) Of course, the sameis true with child pornography images. But unpleasantpictures are routinely admitted in criminaltrials. (See People v. Navarette (2003) 30 Cal.4th 458, 496 [“sexually suggestive” photograph of unclothed murder victim necessary for the jury to see asit wasthe nature of thecrime]; People v. Memro, supra, 11 Cal.4th atpp. 865- 866 [trial court did not abuse discretion in admitting pictures of child victims murdered in “ghastly manner’’].) In this case, the photos were highly probativeasto the location of the body in this area, as well as showedthe jury the mannerin which she was found- naked and bloodied by the assault which occurred before her death. The photos helped the jury to better understand the manner in which Samantha waskilled and her body discarded, and also helped explain the evidence collected at the scene. (See 33 RT 6382-6382 [People’s closing describing conditions observed and arguing “he doesn’t throw her body off that side. He wants it found for some reason” and 6385 [“What kind of an animal posesa little girl like this?”] and 6386 [asking jurors to observe _injuries and that “he ripped her up so bad. Hegotoff on that.”].) Further, the record showsthat trial court was keenly aware ofthe effect and potential prejudice that flowed from photographs which depicted a sexually molested and murdered child. But the court was also equally 3 Avila relies in part on cases that address the admission of autopsy photographs. (See AOB 81-84,referring to e.g. People v. Burns (1952) 109 Cal.App.2d 524; People v. Poggi (1988) 45 Cal.3d 306.) 54 mindful of the relevance and probative value of this evidence. Asa result, the court admitted some photographs and excluded others. It cannot be said that in so doing, it abusedits discretion. V. THE TRIAL COURT PROPERLY ADMITTED VICTIM IMPACT EVIDENCE DURING THE PENALTY PHASEOF AVILA’S TRIAL Focusing on one photograph of Samantha dressed as an angel on the Halloween before her death, Avila contends the death judgment must be reversed because the victim impact evidence during the penalty phase of his trial invited the jury to-base its decision on emotion and thuscreated a fundamentally unfair penalty trial and unreliable sentence of death. (AOB 94-99.) Avila recognizes the victim impact evidence in this case was far less extensive and intensive than the evidence presented in the cases he relies upon for his argument. Regardless,the trial court acted well within its broad discretion and neither committed error nor denied Avila any constitutional right in admitting this evidence. Victim impact evidence is admissible under federal law “unless such evidenceis so unduly prejudicialthat it results in a trial that is fundamentally unfair,” and under state law “so longasit is not so inflammatory asto elicit from thejury an irrational or emotional response untethered to the facts of the case.” (People v. Taylor (2010) 48 Cal.4th 574, 645-646, quotation marks omitted.) In California, Penal Code section 190.3, subdivision (a), permits the prosecution to establish aggravation by the circumstances of the crime. The word “circumstances” does not mean merely immediate temporal and spatial circumstances, but also extends to those which surroundthe crime “materially, morally, or logically.” (People v. Edwards (1991) 54 Cal.3d 787, 833.) Factor (a), allows evidence and argumenton the specific harm caused by the defendant, including the psychological and emotional impact on surviving victims and the impact on the family ofthe victim. (Jd. at pp. 55 833-836; see also People v. Brown (2004) 33 Cal.4th 382, 398; People v. Taylor (2001) 26 Cal.4th 1155, 1171; People v. Mitcham (1992) 1 Cal.4th 1027, 1063; People v. Pinholster (1992) 1 Cal.4th 865, 959.) In this case, the victim impact evidence wasentirely proper. Before the penalty phase began,the prosecutornotified the trial court and defense counselofhis intention to introduce victim impact evidence,including two photographs where Samantha was dressed as an angel or princess. The defense objected and the trial court marked the photographs and reserved ruling until after it had heard the testimony. (34 RT 6588; see also 34 RT 6688-6690 [renewed objection and ruling].) During the penalty phasetrial, the People relied on the evidence presentedattrial asevidence in aggravation and otherwise presented very little evidence beyond victim impact. (34 RT 6578.) The People only presented two witnesses, Samantha’s mother and grand-mother, as well asa - few photographs of Samantha while alive. | Samantha’s mother Erin described her reaction to learning of her daughter’s death, ofhow she collapsed on the floor of the Sheriff's office, her painful memories revived being in the same courtroom withAvila, the nightmares of her step-son, and her own inability to fully enjoy being a motherto her newly born child. (34 RT 6623-6640.) Photographs, | including one that depicted Samanthaas an angel on the last Halloween before her death, were also admitted.** (34 RT 6589; 6640-6643; People’s Exhs. 112-118.) During the closing penalty phase argument, the prosecutor 4 The prosecutor presented a conservative eight photographs. (47 CT 12534.) Other than the cumulative nature of the photographs, the defense focused only on the prejudicial affect of the one that depicted Samantha dressed as what appeared to be an angel(ie.,white dress with crown on head). (34 RT 6588-6589 [Exh. P-113].) 56 askedthe jury to take into account the impact of Samantha’s death on her family. (36 RT 7162.) Thetotality of the victim impact witness testimony offered here was the very type of “personal perspectives” and testimony concerning “the kinds of loss that loved ones commonlyexpress in capital cases.” (People v. Taylor, supra, 48 Cal.4th at p. 646; People v. Martinez (2010) 47 Cal.4th 911, 961.) Such testimony, although emotional, was not surprising, shocking, or inflammatory. Instead, it was a tragically obvious and predictable consequence of Avila’s murder of a young child. (People v. Sanders, supra, \1 Cal.4th at p. 550.) Avila nevertheless claims that when coupled with pretrial publicity that condemned Samantha’s murderer and the community having adopted heras “ourlittle girl,” this one photograph made it morelikely he would be sentenced to death for killing this “angelic”little girl. (AOB 98-99.) But to suggest victim impact evidence must be limited andtailored in light ofhow the local community responds to the murder of a child, is devoid of any judicial support and ignores the permissible scope of victim impact testimony. . Photos of the victim alive are generally admissible in the penalty phase. A photo of a victim while alive constitutes a “circumstanceofthe offense” which portrays the victims as the defendant saw them atthe time of the killing. (People v. Anderson, supra,25 Cal.4th at p. 594; People v. Lucero (2000) 23 Cal.4th 692, 714; People v. Edwards, supra, 54 Cal.3d at p. 832.) Further, admission ofthis photograph did not exceed the bounds of admissible victim impact evidence. Indeed, independent of the one photograph,the entirety of the victim impact evidence admitted in this case was far less extensive than victim impact evidence this Court has upheld in other capital cases. (E.g., Peoplev. Prince, supra, 40 Cal.4th at pp. 1286- 1291 [cautioning against but finding no prejudicial error in admission of 57 video tape “ montage” or photographic evidence tantamountto an emotionaltribute to the victims]; People v. Kelly (2007) 42 Cal.4th 763, 793 [same].) Consequently, Avila’s argumentto the contrary should be rejected. VI. AVILA’S CUMULATIVE-ERROR CLAIM FAILS Avila contends that any combinedprejudice from the alleged errors raised on appeal warrants reversal of the guilt and penalty phase and death judgment. (AOB 100-101.) No error occurred, and even if erroris assumed to have occurred, Avila has failed to show any prejudiceresulted. (People v. McKinzie (2012) 54 Cal.4th 1302, 143; People v. Alfaro (2007) 41 Cal.4th 1277, 1316; People v. Abilez (2007) 41 Cal.4th 472, 523.) A criminal defendantis entitled to a fair trial, but not a perfect one, even where he has been exposedto substantial penalties. (See Peoplev. Marshall (1990) 50 Cal.3d 907, 945; People v. Hamilton (1988) 46 Cal.3d 123, 156; see also Schneble v. Florida (1972) 405 U.S. 427, 432 [92 S.Ct. 1056, 31 L.Ed.2d 340]; see, e.g., United States v. Hasting (1983) 461 U.S. 499, 508-509 [103 S.Ct. 1974, 76 L.Ed.2d 96] [“[G]iven the myriad ‘safeguards providedto assure a fair trial, and taking into account the reality of the humanfallibility of the participants, there can be no such thing as an error-free, perfect trial, and...the Constitution does not guarantee such a trial.”’].) Any claim based on cumulative error must be assessedto seeifit is reasonably probable the jury would have reached a result more favorable to the defendantin the absence ofthe asserted errors. (People v. Holt (1984) 37 Cal.3d 436, 458.) Applying that analysis to the instantcase, this contention should be rejected. Notwithstanding Avila’s arguments to the contrary, he received a fair and untainted trial. The Constitution requires no more. And even whenconsidered together, it is not reasonably probable that, absent the alleged errors, Avila would have received a more favorable 58 result, and any errors were harmless. Thus, even cumulatively, any errors are insufficient to justify a reversal of the verdict and death sentence. VII. THIS COURT SHOULD REJECT AVILA’S ROUTINE CHALLENGESTO THE CALIFORNIA DEATH PENALTY STATUTE Avila concedes he merely advances “routine instructional and constitutional challenges” to California’s death penalty statute. (AOB 102, referring People v. Schmeck (2005) 37 Cal.4th 240, 303; see also 34 RT 6587.) As these challenges have repeatedly been rejected by this Court, they require little discussion. A. Penal CodeSection 190.2 is Not Impermissibly Broad Contrary to Avila’s assertion (AOB 105-108),“[s]ection 190.2, which sets forth the circumstances in which the penalty of death may be imposed, is not impermissibly broad in violation of the Eighth Amendment.” (People v. Farley (2009) 46 Cal.4th 1053, 1133.) This Court has repeatedly rejected the claim that California’s death penalty statutes are unconstitutional becausetheyfail to sufficiently narrow the class of persons eligible for the death penalty. (People v. Virgil (2011) 51 Cal.4th 1210, 1288; People v. Verdugo (2010) 50 Cal.4th 263, 304; People v. Schmeck, supra, 37 Cal.4th at p. 304; People v. Wilson (2005) 36 Cal.4th 309, 361- 362; People v. Panah (2005) 35 Cal.4th 395, 499; People v. Welch, supra, 20 Cal.4th at p. 767; People v. Arias (1996) 13 Cal.4th 92, 187.) Avila’s claim fails because he gives no justification for this Court to depart from its prior rulings on this subject. B. Penal Code Section 190.3 Does Not Allow For Arbitrary And Capricious Imposition of Death Equally unavailing is Avila’s claim the application of Penal Code section 190.3 in the penalty phaseresults in the arbitrary and capricious imposition of the death penalty. (AOB 109-112.) Allowing a jury to find 59 aggravation based on the “circumstances of the crime” under Penal Code section 190.3, factor (a), does notresult in an arbitrary and capricious imposition of the death penalty. (People v. Virgil, supra, 51 Cal.4th at p. 1288.) As the United States Supreme Court noted in Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630, 129 L.Ed.2d 750], “The circumstancesofthe crime are a traditional subject for consideration by the sentencer, and an instruction to consider the circumstancesis neither vague nor otherwise improper under our Eighth Amendmentjurisprudence.” (/d. at p. 976.) _ Nor is section 190.3, factor (a), applied in an unconstitutionally arbitrary or capricious manner merely because prosecutors in different cases may argue that seemingly disparate circumstances, or circumstances present in almost any murder, are aggravating underfactor (a). (People v. Carrington (2009) 47 Cal.4th 145, 200.) Instead,“‘each case is judged on its facts, each defendanton the particulars of his [or her] offense.’” (/bid., quoting People v. Brown, supra, 33 Cal.4th at p. 401, alteration in original.) C. California’s Death Penalty Scheme Provides Adequate Safeguards Against the Arbitrary Imposition of Death 1. Unanimity for aggravating factors not required Avila contends that before choosing to impose death, jurors needed to unanimously find each aggravating factor true beyond a reasonable doubt and that they outweighed mitigating factors. (AOB 114.) This Court has consistently rejected these claims. (People v. Nelson (2011) 51 Cal.4th 198, 225; People v. Hoyos (2007) 41 Cal.4th 872, 926; People v. Russell (2010) 50 Cal.4th 1228, 1271-1272; People v. Bramit (2009) 46 Cal.4th 1221, 1249-1250; People v. Burney (2009) 47 Cal.4th 203, 267-268.) There is no constitutional requirementthat a capital jury reach unanimity on the presence of aggravating factors. (People v. Martinez (2009) 47 Cal.4th 399, 455; People v. Burney, supra, 47 Cal.4th at p. 268.) The 60 Eighth and Fourteenth Amendments do not require the jury to unanimously find the existence of aggravating factors or that aggravating factors outweigh mitigating factors. (People v. Nelson, supra, 51 Cal.4th at p. 225; People v. Hoyos, supra, 41 Cal.4th at p. 926.) Nor doesthe failure to require jury unanimity as to aggravating factors violate Avila’s right to Equal Protection. (People v. Cook (2007) 40 Cal.4th 1334, 1367; Peoplev. Griffin (2004) 33 Cal.4th 536, 598.) 2. Avila’s burden of proof argument should be rejected Avila also contendsthe failure to assign a burden of proofin California’s death penalty schemeshould berevisited in light of the United States Supreme Court’s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]; Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556]; Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]. (AOB 115-123.) However, this Court has determined on manyoccasionsthat Penal Code section 190.3 and the pattern instructions are not constitutionally defective because they fail to require the state to prove beyond a reasonable doubtthat an aggravating factor exists, and that aggravating factors outweigh mitigating factors. This Court hasalso consistently rejected the claim that the pattern instructions are defective because they fail to mandate juror unanimity concerning aggravating factors. (See, e.g., People v. Russell, supra, 50 Cal.4th at pp. 1271-1272; People v. Bramit, supra, 46 Cal4th at pp. 1249-1250; People v. Burney, supra, 47 Cal.4th at pp. 267-268.) “(U]underthe California death penalty scheme, once the defendanthas been convicted offirst degree murder and one or more special circumstances has been found true beyond a reasonable doubt, death is no more than the prescribed statutory 61 maximum for the offense; the only alternativeis life imprisonment withoutthe possibility of parole.” [Citation]. (People v. Ward (2005) 36 Cal.4th 186, 221-222, quoting People v. Prieto (2003) 30 Cal.4th 226, 263.) Asthis Court explained in Prieto, “in the penalty phase, the jury merely weighs the factors enumerated in section 190.3 and determines ‘whether a defendanteligible for the death penalty should in fact receive 999that sentence.’”” (People v. Prieto, supra, 30 Cal.4th at p. 263, quoting Tuilaepa v. California, supra, 512 U.S. at p. 972; accord People v. Virgil, _ supra, 51 Cal.4th at pp. 1278-1279.) Avila gives this Courtno reason to reconsiderits previous holdings. 3. . Written findings regarding aggravating factors are not required Avila claims the California death penalty law violates his federal due process and Eighth Amendmentrights becauseit does not require that the jury base a death sentence on “written findings regarding aggravating factors.” (AOB 128-131.) Contrary to his assertion, “[t]he law does not deprive defendant of meaningful appellate review and federal due process and Eighth Amendmentrights by failing to require written or other specific findings bythe jury on the aggravating factors it applies.” (Peoplev. Dunkle (2005) 36 Cal.4th 861, 939, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord People v. Foster, supra, 50 Cal.4th at pp. 1365-1366; People v. Gemache (2010) 48 Cal.4th 347, 406.) Nor does the absence of such findings violate equal protection (People v. Parson (2008) 44 Cal.4th 332, 370) or a defendant’s rightto trial by jury (People v. Avila (2009) 46 Cal.4th 680, 724.) “Nothing in the {F]ederal [C]onstitution requires the penalty phase jury to make written: findings ofthe factors it finds in aggravation and mitigation[.]” (People v. 62 Nelson, supra, 51 Cal.4th at p. 225.) Avila offers no justification for this Court to reconsiderits earlier rulings. 4. There is no needfor inter-case proportionality Avila claimsthat the failure to conduct intercase proportionality review violates the Eighth Amendment. (AOB 131-134.) This Court has repeatedly rejected this contention and should do so again here. (Peoplev. Foster, supra, 50 Cal.4th at p. 1368; People v. Hoyas, supra, 41 Cal.4th at p. 927; People v. Cornwell (2005) 37 Cal.4th 50, 105; People v. Elliot (2005) 37 Cal.4th 453, 488; People v. Smith (2005) 35 Cal.4th 334, 374; People v. Jones (2003) 29 Cal.4th 1229, 1267.) 5. Consideration of unadjudicated criminal activity does not offend due process Avila contends unadjudicated activity cannot be considered as a factor in aggravation. (AOB 134-135.) But, [a]s we have previously made clear, when,as here, the jury is instructed it may consider evidence of unadjudicated criminal activity as a factor in aggravation only after being convinced beyonda reasonable doubt that the defendant committed the alleged criminal activity, no more is required. (People v. Prieto, supra, 30 Cal.4th at p. 263, 133 Cal_Rptr.2d 18, 66 P.3d 1123; People v. Benson (1990) 52 Cal.3d 754, 810, 276 Cal.Rptr. 827, 802 P.2d 330 [the reasonable doubt standardin thissetting provides the substance of the presumption of innocenceand the prosecution’s burden of proof].) (People v. Taylor, supra, 48 Cal.4th at pp. 657-658.) Avila does not present any reason torevisit this conclusion. 6. The useof restrictive adjectives in sentencing factors is proper Avila urges this Court to reconsiderits earlier holdings and find the use ofrestrictive adjectives such as “extreme” and “substantial”in thelist of potential mitigating factors act as barriers to the meaningful consideration of mitigation in violation ofthe Fifth, Sixth, Eighth and 63 Fourteenth Amendments. (AOB 135.) This argument has been consistently rejected by this Court. (People v. Eubanks (2011) 53 Cal.4th 110, 153; People v. Brasure (2008) 42 Cal.4th 1037, 1068; People v. Avila (2006) 38 Cal.4th 491, 614-615; People v. Schmeck, supra, 37 Cal.4th atp. 305; People v. Morrison (2004) 34 Cal.4th 698, 729-730.) Avila has offered no basis to reconsidertheserulings. 7. Failure to instruct the jury that statutory mitigating factors were relevantsolely as potential mitigating factors is not error Avila arguesthe trial court’s failure to advise the jury that mitigating factors could only be considered mitigating violated state law and his constitutional rights. (AOB 135-139.) This Court has repeatedly found no error in this regard: Thetrial court wasnot constitutionally required to inform the jury that certain sentencing factors were relevant only in mitigation, and the statutory instruction to the jury to consider ‘whetheror not’ certain mitigating factors were present did not impermissibly invite the jury to aggravate the sentence upon the basis of nonexistentor irrational aggravating factors. (People v. Morrison, supra, 34 Cal.4th at p. 730; see also People v. Jurado, supra, 38 Cal.4th at p. 143; People v. Moon (2005) 37 Cal.4th 1, 42.) Avila offers no basis for this Court to reconsideritsearlier rulings. D. California’s Death Penalty Scheme Comports With EqualProtection In That It Provides Adequate Procedural Safeguards to Capital Defendants When Compared to Non-Capital Defendants Avila contends the capital sentencing schemeviolates equal protection becauseit provides fewer procedural protectionsto death eligible defendants than for those in non-capital cases. (AOB 139-143.) Again, this Court has ruled otherwise: The death penalty law does not violate equal protection by denying capital defendants certain procedural safeguards that are 64 afforded to noncapital defendants because the two categories of defendants are not similarly situated. (People v. Redd (2010) 48 Cal.4th 691, 758, 108 Cal.Rptr.3d 192, 229 P.3d 101; People v. Martinez (2010) 47 Cal.4th 911, 968, 105 Cal.Rptr.3d 131, 224 P.3d 877.) (People v. Lee (2011) 51 Cal.4th 620, 653.) Avila does not present any reasonto revisit this conclusion. E. California’s Death Penalty Scheme Does Not Violate International Law Avila contends the California death penalty schemeviolates international law. (AOB 143-145.) This Court has repeatedly rejected similar arguments and should do so again here. Internationallaw does not prohibit a sentence of death where, as here,it was rendered in accordance with state and Federal Constitutional and statutory requirements. (People v. Blacksher, supra, 52 Cal.4th at p: 849 [rejecting claim “again’”]; People v. Gonzales (2011) 52 Cal.4th 254, 334; People v. Hamilton (2009) 45 Cal.4th 863, 961; People v. Alfaro, supra, 41 Cal.4th at p. 1322; accord People v. Mungia (2008) 44 Cal.4th 1101, 1143; People v. Panah, supra, 35 Cal.4th at p. 500; People v. Ward, supra, 36 Cal.4th at p. 222; People v. Elliot, supra, 37 Cal.4th at p. 488.) Avila does not present any reason to revisit these holdings. Avila also contendsthat the use of the death penalty is contrary to prevailing civilized norms. But international law does not require California to eliminate capital punishment. (People v. Blacksher, supra, 52 Cal.4th at p. 849; People v. Martinez, supra, 47 Cal.4th at p. 968; People v. Doolin, supra, 45 Cal.4th atp. 456.) Furthermore, California does not impose the death penalty as regular punishmentin California for numerous offenses. (Doolin, supra, at pp. 456-457.) Instead, [t]he death penalty is available only for the crime of first degree murder, and only whena special circumstance is foundtrue; furthermore, administration of the penalty is governed by 65 constitutional and statutory provisions different from those applying to ‘regular punishment’ for felonies. (E.g., Cal. Const., art. VI, § 11; §§ 190.1-190.9, 1239, subd. (b).) (People v. Doolin, supra, 45 Cal.4th at p. 456, quoting People v. Demetrulias (2006) 39 Cal.4th 1, 44.) Avila gives this Court no reason to reconsider its previous holdings. CONCLUSION For the foregoing reasons, respondent respectfully requests that the judgmentbe affirmed inits entirety. Dated: July 25, 2013 Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANER.GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ROBIN URBANSKI Deputy Attorney General © BRADLEY A. WEINREB Deputy Attorney General Attorneysfor Respondent BAW:bp _ $D2005XS0003 - 70720963.doc. 66 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFuses a 13 point Times New Romanfont and contains 20,996 words. Dated: July 25, 2013 KAMALAD. HARRIS Attorney General of California Bornlee BRADLEY A. WEINREB Deputy Attorney General Attorneys for Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Alejandro Avila No.: 135855 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On July 25, 2013, I served the attached RESPONDENT?’SBRIEFbyplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186- 5266, addressed as follows: Clerkof the Court . Scott Kaufman Attn: Hon. William R. Froeberg California Appellate Project Orange County Superior Court 101 Second Street, Suite 600 Central Justice Center San Francisco, CA 94105 700 Civic Center Drive West Santa Ana, CA 92701 Jonathan P. Milberg Attorney at Law 225 South Lake Avenue, Suite 300 Pasadena, CA 91101 Attorney for Appellant Alejandro Avila (2 Copies) I declare under penalty ofperjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on July 25, 2013, at San Diego, California. Bonnie Peak : PSnhaX. Do R Declarant . Signature $D2005XS0003 70725933 .doc