He has been in and out of prison since 1981. He must register as a sex offender as a result of a Juvenile Court true finding when he wasfifteen years old that he violated Penal Code section 288(a) with his ten-year-old sister. At the time he committed the crime, the law required him to register only until his twenty-fifth birthday, but the law was subsequently changed to requirelifetime registration.

All one-hundred-forty-three (143) potentially meritorious claims were refined, verified, and further developedfor final presentation to this Court. Counselalso established a 149 See second petition, at 309 (Claim 90 (Trial Counsel Rendered Ineffective Assistance by Failing to Investigate and Present Scientific Evidence or to Cross-Examine the Coroner Regarding the Alleged Penal ‘Code § 288 Violation)); 313 (Claim 91 (Trial Counsel Rendered Ineffective Assistance When HeFailed to Impeach Cornejo Based on Favors Regularly Conferred upon Him in Exchange for His Testimony));, 331 (Claim 98 (Petitioner's Right to Effective Assistance of Counsel was Violated as a Result of Counsel's Failure to Conduct an Adequate Voir Dire)); 337 (Claim 102 (Trial Counsel Rendered Ineffective Assistance By Failing to Impeach Dr. Choi with his Preliminary Hearing Testimony)); 358 (Claim 108 (Petitioner's Rights to Due Process and Effective Assistance of Counsel at Both Guilt and Penalty Phases, and to a Reliable Determination of Penalty, Were Violated as a Result of Failure to Investigate and Present Mitigating Penalty Phase Evidence)); and 361 (Claim 109: (Trial Counsel Rendered Ineffective Assistance for Failing to Present Mitigating Evidence in the Sentencing Phase of Trial)). ‘50 See secondpetition, at 417 (Claim 119 (Petitioner was Mentally Incompetent to Stand Trial)); and 422 (Claim 120

At the time of the defendant’s plea and sentencing, Penal Codesection 1203.4 permitted him to apply to the court to have his conviction expunged after probation concluded. However, in 1997, the statute was amended to prohibit “expungement” for convictions of Penal Code section 288. On appeal, Acuna argued that the application of the amended statute to his case deprived him of the benefit of an implied term of his plea bargain that he would be permitted to seek expungement underthe law in effect at the time of his plea.

(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)).

er grand jury returned an indictment for manslaughter]; People v. Murat (1873) 45 Cal. 281,284 [an indictment charging only assault with intent to murder would not support a conviction of assault with 2' Subdivision (a) of Penal Code section 187, unchanged since its enactment in 1872 except for the addition of the phrase "or a fetus" in 1970, provides as follows: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." 22 At the time the murder in this case occurred, section 189 provided in pertinent part: "All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Sections 286, 288, 288a, or 289, is murder of the first degree; and all other kinds of murders are of the second degree." a deadly weapon] .) Nevertheless, this Court has held that a defendant may be convicted of first degree murder even though the Indictment or Information charged only murder with malice in violation of section 187. (See, e.g., People v. Hughes, supra, 27 Cal.4th at pp. 368-370; Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1034.)

Like other circumstantial evidence, admissibility depends on the materiality of the fact soughtto be proved, the tendency ofthe prior crime 8 Appellant makes no claim, noris there a meritorious claim to be made, that appellant’s Colorado offenses were not each a “sexual offense” within the meaning of Evidence Code section 1108, subdivisions (a) and (d)(1). At a minimum,the Colorado acts represented violations of California Penal Code sections 243.4 and 288, subdivision (a). 56 to prove the material fact, and the existence vel non of some other rule requiring exclusion.” [Citation.] An exception to the general rule against admitting propensity evidence is Evidence Code section 1108, subdivision (a), which providesfor the admissibility of evidence of other sexual offenses in the prosecution for a sexual offense, subject to Evidence Code section 352. “[T]he Legislature’s principal justification for adopting section 1108 wasa practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence.