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People v. Avilez1/13/2003
On July 31, 2000, appellant Louie Avilez was climbing through a bedroom window and saw John Daniel George naked in bed with his (appellant's) girlfriend. Appellant shot George from a short distance. The gun he used was loaded with snake shot. Appellant was convicted of attempted deliberate and premeditated murder and sentenced to life for the attempted murder plus 25 years to life for the gun use. He appeals, contending there was insufficient evidence that he intended to kill George or that the attempted murder was premeditated and deliberate. He also claims his sentence constitutes cruel and unusual punishment. We affirm.
STATEMENT OF THE CASE
On October 20, 2000, the Tulare County District Attorney's office charged appellant Louie Avilez by amended information with: (1) attempted murder (Pen. Code, §§ 664/187, subd. (a)), (2) assault with a firearm (§ 245, subd. (a)(2)), and (3) first degree residential burglary (§ 459). Count 1 additionally alleged appellant personally and intentionally discharged a firearm. (§ 12022.53, subd. (d).) Counts 2 and 3 alleged appellant personally and intentionally used a firearm (§ 12022.5, subds. (a), (d)), and each count alleged appellant inflicted great bodily injury. (§ 12022.7, subd. (a).) Counts 1 and 3 alleged appellant had three convictions within the meaning of section 1203, subdivision (e)(4).
On October 24, 2000, after rejecting a plea offer of three years, appellant pled not guilty and the case proceeded to trial. At the close of the prosecution case, the defense moved for acquittal on counts 1 and 3. The motion was granted as to count 3, the burglary charge, and denied as to count 1, the attempted murder charge. After two days of trial the jury returned guilty verdicts on the attempted murder and assault charges. The jury found true that the attempted murder was willful, deliberate and that appellant personally discharged a firearm and inflicted great bodily injury.
Appellant's motion for a new trial was denied and appellant was sentenced on November 30, 2000. Appellant received life in prison on count 1, 25 years to life for the firearm use (consecutive to the life sentence) and three years for the great bodily injury enhancement. A sentence totaling 10 years on count 2 was stayed pursuant to section 654. Appellant timely appeals.
FACTS
Prosecution Case
On July 31, 2000, John George stopped at the home of Ray Gore after his shift as a security guard ended at approximately 2:30 a.m. He decided to spend the night at Gore's house because he was tired, even though his own home was only a couple of miles away. He went into a bedroom he knew had been occupied by appellant and appellant's girlfriend, Michelle Ellington. Ellington arrived shortly thereafter, and George and Ellington had sex. They were both naked, sitting on the edge of the bed talking when George heard the bedroom window open. He saw appellant looking through the window, heard a gunshot, and realized he had been shot in the back.
Deputy Tim Satterfield interviewed George at the hospital. George told the deputy that he had been lying in bed when he was shot. He did not mention Ellington. George stated at trial that he gave a different account to the deputy because he had been in pain.
Neighbor Esperanza Zepeda testified that she heard a gunshot between 6:20 and 6:25 a.m. Immediately thereafter she saw appellant running from the back yard to the front yard and getting into a car. She was familiar with appellant.
Sheriff's Deputies eventually located appellant in the attic of an apartment and, after shooting pepper balls into the attic, appellant came out, unarmed.
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