Filed 5/9/14 P. v. Avila CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048673

         v.                                                            (Super. Ct. No. 10CF3246)

JUAN HUMBERTO AVILA,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, W.
Michael Hayes, Judge. Affirmed.
                   Richard De La Sota, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.
              We appointed counsel to represent Juan Humberto Avila on appeal.
Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his
client but advised the court he found no issues to argue on Avila’s behalf. Avila was
given 30 days to file written argument on his own behalf. That time has passed, and
Avila did not file a supplemental brief.
              Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that
sets forth a summary of proceedings and facts but raises no specific issues. (Id. at
pp. 438, 439.) Under these circumstances, the court must conduct an independent review
of the entire record. When specific issues are raised by the appellant himself in a
Wende proceeding, we must expressly address them in our opinion and explain why they
fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124 (Kelly).) Here, Avila did not
file a supplemental brief raising any issues.
              Counsel advised this court that he had thoroughly reviewed the record in
this case and was unable to identify an arguable issue on appeal. He further advised this
court that a staff attorney at Appellate Defenders, Inc. had also reviewed the record. But
pursuant to Anders v. California (1967) 386 U.S. 738, to assist the court with its
independent review, counsel provided the court with information as to issues that might
arguably support an appeal. Counsel raised three questions: (1) was there sufficient
evidence to support Avila’s convictions; (2) did the court commit reversible error by
excluding expert testimony regarding the frequency with which women falsely claim to
have been raped and the reasons for making such false claims; and (3) did the court
commit reversible error by allowing the prosecution to prove the prior convictions
alleged against Avila after the jury that determined the question of guilt had been
discharged. We have reviewed the record in accordance with our obligations under
Wende and Anders, and found no arguable issues on appeal. The judgment is affirmed.



                                                2
                                PROCEDURAL HISTORY
              A jury convicted Avila of one count of forcible sexual penetration in
violation of Penal Code section 289, subdivision (a)(1)1 (count 1), two counts of rape in
violation of section 261, subdivision (a)(2) (counts 2 and 3), two counts of forcible
sodomy in violation of section 286, subdivision (c)(2) (counts 4 and 5), two counts of
forcible oral copulation in violation of section 288a, subdivision (c)(2) (counts 6 and 7),
and one count of forcibly attempting to dissuade a witness from reporting a crime in
violation of section 136.1, subdivisions (b) and (c)(1) (count 8). The jury also convicted
Avila of one count of grand theft from the person in violation of section 484 as a lesser
included offense of the robbery originally charged in count 9. The jury found true
allegations as to counts 1 through 7 that Avila kidnapped the victim and inflicted great
bodily injury upon her within the meaning of section 667.61, subdivisions (a), (b), and
(e)(1) and (3). The prosecution alleged Avila was convicted of a prior serious felony as a
strike, and as a prior serious felony within the meaning of section 667, subdivision (a).
The prior convictions were bifurcated from the trial on counts 1 through 9 and the jury
that convicted Avila was discharged without any action having been taken on that
allegation.
              A few days later, the prosecution raised the issue of the trial on the prior
conviction allegation. Avila objected to a trial on the prior conviction allegation being
heard after the original jury was discharged. The court overruled the objection. Avila
then waived his right to a jury trial on the prior and agreed to have a court trial on
that issue during the already-scheduled sentencing date of June 14, 2013. On June 14,
2013, the trial court found the allegation that Avila had previously been convicted of a
serious felony true.




1             All further statutory references are to the Penal Code.

                                              3
              The trial court then sentenced Avila to a total term of 363 years to life in
state prison as follows. The court sentenced Avila to consecutive terms of 25 years to life
for each of the charges in counts 1 through 7, and doubled each of those terms for Avila’s
prior strike to seven consecutive terms of 50 years to life. The court imposed the high
term of four years for count 8 and doubled that to a consecutive term of eight years. The
court imposed a concurrent upper term sentence of three years for count 9. Finally, the
court imposed a consecutive five-year term for Avila’s prior conviction pursuant to
section 667, subdivision (a). Avila timely appealed.
                                          FACTS
              In January 2008, Dulce T. (Dulce) and her boyfriend, Jose T., met at about
6:00 p.m. and went to a friend’s house. Dulce was 16 years old and a senior in high
school. While there, they watched movies and smoked “pot” with three or four others.
About midnight or 1:00 a.m., Dulce and Jose T. left on foot. They walked down Bristol
Street until they got to Central Street where Jose T. left Dulce to walk to his house.
When they went their separate ways, Dulce was speaking to her mother on her cellular
telephone. Jose T. watched Dulce until she turned and he lost sight of her. He then
walked home. Dulce was supposed to call him when she got home, but she never did.
              When Dulce left Jose T., she texted an ex-boyfriend named J.C. and told
him she was frightened. He then called her. While still on the cell phone with J.C., a
man she had never seen before came out from behind a sign and hit her in the face. She
screamed and dropped her phone. Her glasses were knocked off her face. J.C. heard a
“yell,” a “commotion,” and an adult male voice that he thought said, “Get in.” J.C. tried
to call Dulce back but did not get an answer. He called her parents and told them what he
had heard.
              When the man first hit Dulce, Dulce was near the corner of Main Street and
Warner Avenue in Santa Ana. The man struck Dulce two or three more times in the face
and dragged her in a “bear hug[]” up Main Street to a parking lot across the street behind

                                             4
a medical building out of sight from the street. In the parking lot, the man started to
unbuckle Dulce’s pants. When she tried to stop him, he kneed her in the ribs, pulled
down her pants, and digitally penetrated her. He then pulled down his own pants. While
Dulce was on her feet, but bent over at the waist, the man penetrated Dulce’s vagina and
anus with his penis, then grabbed her by the hair and forced her to her knees and placed
his penis in her mouth. He then repeatedly switched between penetrating her anally and
vaginally and forcing her to orally copulate him. Throughout the various assaults, the
man threatened to kill Dulce.
              After the repeated assaults, the man told Dulce to take her pants off, lie on
her back, and cover her face, saying, “‘Let me fuck you and I’ll let you go.’” While
Dulce was in that position, he orally copulated her and penetrated her vagina with his
penis again. The man finally told Dulce to put on her pants and give him her
identification. She did not have a photo identification and that made the man angry. He
asked her for her address, and she told him what it was. She also gave him $60 or $80
and her ATM card. He told her that if she said anything, his “‘homeys from Delhi will
fuck you up and they’ll fuck up your family too.’” Dulce knew Delhi was a violent street
gang from that area. She believed the threat and was frightened by it. Before leaving, the
man who attacked Dulce told her to lie down and count to 100. While she was doing
that, he came back and threatened her with retribution again. After she finished counting
to 100, she got up and ran home, where she told her sister what had happened. Her sister
called the police. A responding police officer, Brandon Sontag, observed Dulce to be
nervous and shivering. Her clothing was disheveled and appeared to have been torn from
her body, and her face was “tear-streaked.” Dulce described her attacker as a male
Hispanic, 5’6” to 5’8” and 180 to 200 pounds with a “chunky” build. He had a tattoo of
something that looked like an animal head on his left shin, and long sideburns.




                                             5
              Dulce had never seen her attacker before, did not know him, and did not
agree to have sex with him. She did not know Avila, and had never had consensual sex
with him. Dulce had bruising to her left eye, a cut under that eye, a cut to her upper lip
from which she still had a scar when she testified, and multiple abrasions to her labia and
posterior fourchette at the six o’clock position. Oral, vaginal, and anal swabs were taken
from her during a sexual assault examination.
              Soon after the attack, an investigator with the Santa Ana Police
Department, Michael Maiocco, went to the parking lot where the attack took place and
found blood drops on a block wall in that area. He took a swab of the blood. He also
went to the corner of Main Street and Warner Avenue, where he located Dulce’s glasses
and cell phone. Almost one year later, Fidencio Zepeda, a sex crimes investigator for the
Santa Ana Police Department, received information that a DNA match had been made
between the swabs taken from Dulce and someone named Juan Avila. On that same date,
he contacted Avila at his home at 2238 South Towner in Santa Ana, which was “just
down the street” from Main Street and Warner Avenue, and contacted Avila. Avila was
5’11” in height, weighed about 240 pounds, and had a tattoo on his shin.
              The parties stipulated the Orange County Crime Lab examined the
vaginal and anal swabs taken from Dulce and they revealed the presence of semen and
spermatozoa. Genetic profiles were developed from those swabs. The profile from the
vaginal swab was the same as the profile from the rectal swab. Both genetic profiles
were from the same male individual. A DNA sample was taken from Avila after his
arrest. The genetic profile developed from Avila’s sample matched the profile developed
from the swabs taken from Dulce. Further DNA testing revealed the blood sample
taken from the block wall at the crime scene was Dulce’s. Finally, the parties stipulated
Avila had never been affiliated with the Delhi street gang but he knew that it was a
violent street gang that claimed as part of its territory the area where the crimes charged
in this case occurred.

                                             6
              Barbara Richard testified for the defense. She was a mental health service
coordinator at Orange County Health Center. The center was a locked facility and was
the psychiatric emergency room for Orange County. It was located at 1030 West Warner,
which was a “little bit east of Bristol” about a half-mile from Main Street and
Warner Avenue. While she did not bring any records pertaining to the release of and
specific patients on the day of the offense, she testified patients can be released from the
facility at any time of the day or night.
              Monte Miller also testified for the defense. Miller testified he owned and
operated a business called “Forensic D.N.A. Experts.” He was an expert in the field of
crime scene investigation and serology. He examined the evidence developed in this
case, including witness statements, photographs, and the crime lab file, and he went to the
scene itself. He testified it was very common to find semen in an anal/rectal sample
when only vaginal intercourse has been reported. Based on photographs of the blood
spatter on the wall, Miller opined the splatters were consistent with the victim having
suffered blunt force trauma or punch to the face. Miller found no evidence of such an
injury in the reports he reviewed. Miller also testified as to a lack of evidence of various
aspects of the victim’s account including no evidence of Dulce being dragged on
Main Street towards Broadway Avenue, no evidence of an assault on that stretch of
Main Street, and no evidence Avila was in the parking lot with Dulce.
              Miller further testified the evidence that Avila’s semen was found inside
Dulce’s vagina was evidence there had been a sexual encounter between them. He would
have expected to see staining on Dulce’s underwear if she had taken part in sexual
activity within an hour of the underwear being collected, and no such stains were
documented in this case.
              Corporal Galen Diaz of the Santa Ana Police Department testified for the
defense. He went to the crime scene at 2222 South Main Street in Santa Ana on the day
of the offense. He saw blood splatter on a block wall and blood on the ground in an area

                                              7
by some containers in the parking lot at that location. Bloodhounds were called in, and
they went south on Main Street.
              Jonathan Nieto testified, also called by the defense, that in January 2008 he
worked with Avila at Club Vegas in Costa Mesa. Nieto was a security guard at the club
and Avila was also a security guard and a “deejay hype man.” He would announce the
deejay on stage and “get[] the crowd going.” On the evening of the offense, Nieto and
Avila went to a belated Christmas party hosted by the owner of Club Vegas at Sharkeez
in Newport Beach. Before the party, they had been at a co-worker’s house drinking.
They went to Sharkeez at about 6:00 p.m. and continued drinking. Avila got into a fight
in the rest room and cut his elbow so that it was bleeding “profusely.” Avila was “kicked
out” of Sharkeez at about 8:30 p.m. When Avila left, he was intoxicated.
              Between 2008, the time of the offense, and the time Nieto testified in
February 2013, it appeared Avila had lost some weight and trimmed his goatee. Avila
did not have long sideburns when Nieto knew him in 2008. Nieto saw Avila around
women and he was not violent or aggressive towards them.
              Dr. Veronica Thomas testified for the defense she was a clinical and
forensic psychologist with a private practice in Tustin. She conducted a
psychosexual assessment of Avila. As part of that assessment, Thomas interviewed Avila
in the jail for six or seven hours and administered psychological testing that was designed
to detect the presence of sexual deviance, including sexual aggression, and rape. She
found Avila was “defensive,” which was not unusual. Thomas also concluded Avila did
not have sexually aggressive character traits. She did find, however, that he was a
“philanderer,” meaning a person who is in a relationship with one person but who
continues to have a sexual interest in others, and for whom sexual conquests are an
important part of feeling good about themselves. While Avila worked in a setting that
brought him into contact with many women who were intoxicated and otherwise
impaired, he did not have any history of “violent predatory behavior toward women.”

                                             8
              Thomas was aware of reports Avila’s wife or girlfriend, Diana Avila
(Diana), had called the police alleging Avila had assaulted her on more than one
occasion. However, the reports did not document any sexual violence toward Diana, and
Thomas concluded from those reports Avila had a “problematic relationship at home.”
              Dr. Richard Abeyta was a chiropractor called by the defense. Starting
about six months before the offense, he treated Avila for neck and back pain resulting
from an automobile accident. At that time, Avila was 5’11” tall and weighed
200 pounds. He released Avila from treatment five months later and recommended he
not lift anything over 35 pounds. He last treated Avila about two weeks before the
offense for a “flare-up” of lower back pain. He did not see Avila after that date.
              Diana testified for the defense that she was Avila’s wife. They met in 2003
and were married in May 2008 when their daughter was born. In December 2010, she
called the police because Avila threw something and hit her ankle. She and Avila had
arguments throughout their relationship over his going out with other women. “Many
years” before the 2010 incident, Avila slapped her, and she called the police. She told
police they had many altercations involving pushing and shoving. She also told police
she was bleeding from the slap because she had braces. She did not tell the police that
was the worst beating he had ever given her, but that it was the worst physical altercation
they had. She called the police in October 2010 because she had been looking through
his Facebook account and thought he was planning to meet another woman and
confronted him about it. He punched her in the arm and told her if she did not stop
questioning him about what he was doing, he would show her what a real beating was.
She was not a citizen of the United States, and he threatened to have her deported and her
baby taken from her. Diana believed she could be deported.
              The day before the offense, Diana slept at Avila’s home on Towner Street.
She was pregnant at the time. He lived in a “little studio” behind the main house in
which his parents lived. On the morning of the incident, he took her to her mother’s

                                             9
house and dropped her off. She remembered the dates because they had an argument
about the late Christmas party he was going to. She did not believe he was going to a
party but was going to see another woman. Diana called Avila at about 10:00 p.m. and
he sounded drunk. She told him to bring back her car – which he had been
driving – because it was getting late. He picked her up at her mother’s house at about
11:00 p.m. He was drunk and bleeding from his elbow. She drove. They stopped at a
Del Taco and returned to his place on Towner Street at about midnight. He threw up and
went to bed at about 12:30 a.m. She awoke at about 8:00 a.m., and Avila was next to her.
              After Avila was arrested in this case, he spoke to Diana on the telephone
from jail. During one of the calls from jail, Avila told her, “‘everybody I work with,
they’re with me from 9:00 at night, 10:00 at night, all the way up to like midnight,
1:00, like midnight, 12:30, 1:00. And then I was with you for the rest of the evening.
You know what I’m saying?’” In another of the conversations, Diana said that although
she knew Avila could not have committed the crime he was arrested for because he was
with her, she told him that she was “‘trying not to believe everything I’m reading.’”
              Judy Malmgren, a registered nurse and certified sexual assault nurse
examiner, testified for the defense. Malmgren testified she had reviewed the photographs
of Dulce taken at her sexual assault examination, the records of that examination, and the
police reports prepared in connection with the case. The abrasions to Dulce’s posterior
fourchette at the six o’clock position were consistent with Dulce being on her back when
those injuries were sustained. Had Dulce been penetrated from behind, Malmgren would
have expected to see some abrasions to the same area at around the 12 o’clock position.
She also would have expected to see some staining to Dulce’s underwear had sperm been
deposited in her vagina within an hour or so of the underwear having been collected, but
she saw no mention of any such staining in the reports. Finally, Malmgren would expect
to see some redness or swelling to the anus had Dulce been anally penetrated, but she did
not see any such evidence in the photographs of Dulce’s anal area.

                                            10
              Avila testified that when the police took him into custody, they told him it
was because of a rape of a 16-year-old girl at the corner of Main Street and
Warner Avenue. He could not “figure out” what they were talking about because he
would not do anything like that. When he got into the auto accident in 2007, he weighed
about 200 to 210 pounds. After that, he did not exercise as he had, he stopped being
careful about what he ate, and his weight “ballooned.” Avila could grow “sporadic”
whiskers on his sideburn area, but nothing that would “look like sideburns or a beard.”
              As a teenager, Avila lived at 2238 South Towner in Santa Ana with his
parents. The Alley Boys gang claimed that territory. A gang called Dehli claimed the
area around Main Street and Warner Avenue. They were rival gangs. He had friends
who were members or associates of the Alley Boys gang. They all lived in the same
neighborhood. People were initiated into the gang by being beaten or “jump[ed] in.” He
hit his wife, but that was not part of the “jumping in” process. In fact, physical violence
toward women and raping them is “frowned upon” in the gang culture. One could be
killed for raping a woman. When he was 19 years old, he was arrested on a firearm
charge. He pled guilty as part of a plea bargain that involved three years’ probation and a
guarantee of no jail time. As part of the plea bargain, he admitted to being an active
participant in the Alley Boys gang. He was not a member of Alley Boys in January 2008.
He stopped associating with the gang after his arrest in 1996.
              Avila met his wife Diana when he was 24 or 25 years old. At the time he
had a son from a previous relationship. He always had girlfriends. He never forced them
to have sex or mistreated them physically, although he could say some “mean” things.
He was unfaithful to his wife, Diana, throughout their relationship. They had physical
altercations as well. She would accuse him of being unfaithful, which was true, and there
would be pushing and shoving. He once slapped her, and, on another occasion punched
her in the arm. He started working at Club Vegas as a bouncer in March 2006. He also



                                             11
worked at Club Glam, which was in a club called J.C. Fandango in Anaheim, until
November 2007, when it lost its lease and closed.
              When he was arrested, he had no recollection of the day of the offense. He
later recalled the date because of a professional football playoff game and the belated
Christmas party at Sharkeez. On the day of the offense, he dropped Diana off at her
mother’s at about 11:00 a.m. He was driving her Nissan Altima. She was angry and
suspicious about the party later that night. After he dropped Diana off at her mother’s,
Avila began distributing flyers about a promotion at another club called Club Arrows.
He had lunch at about 2:00 p.m. and afterwards “ran into Dulce,” whom he knew from
Club Glam. They recognized each other and hugged. Avila and Dulce then drove into a
nearby parking lot and smoked some “weed” or “pot.” While they were smoking they
did something called a “shotgun toke” where one person would inhale the smoke and
then exhale it into the other the other person’s mouth. That led to them kissing and
ultimately having intercourse in the back seat of the car. Avila stated the entire encounter
lasted for about 15 minutes. Avila believed he ejaculated. They had undressed from the
waist down to have sex. They then got dressed and “parted ways.”
              Avila testified that while he was at the party at Sharkeez later that evening,
he got into a fight in the men’s restroom, which resulted in a gash on the point of his
elbow. He left Sharkeez and went to another person’s house and “crashed” on his couch
until he got a call from his “then girlfriend/wife.” Avila drove to Diana’s house and they
went to a Del Taco after 11:00 p.m., and then back to his house on Towner Street. He
watched television and “passed out.” He did not leave again that night. He was not at the
corner of Main Street and Warner Avenue or at the parking lot where the assault on
Dulce took place that night. He did not force Dulce to have sex with him. He did not see
Dulce between the time they had sex in the back seat of his wife’s car and the trial.




                                             12
              Avila also sought to call psychologist Laura Brody as an expert witness.
The defense indicated Doctor Brody would testify as to why a person might falsely claim
rape. The court refused to allow Avila to call Brody for this purpose.
                                      DISCUSSION
              The fact counsel filed the opening brief under Wende confirms he does not
believe the listed issues are arguable. When appellant raises specific issues in a Wende
brief, we must expressly address those issues in our opinion. (Kelly, supra, 40 Cal.4th at
pp. 110, 120, 124.) In this case, Avila did not file a supplemental brief. We have
reviewed the record in accordance with our obligations under Wende and Anders and
considered the issues listed by counsel. We find no arguable issues on appeal.
                                     DISPOSITION
              The judgment is affirmed




                                                 O’LEARY, P.J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




                                            13
