In the supreme court of california

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III. Conclusion

We affirm the judgment.









* Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Avila

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted
Opinion No. S135855

Date Filed: June 30, 2014

Court: Superior

County: Orange

Judge: William R. Freeberg
Jonathan P. Milberg, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney, Robin Urbanski and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):
Jonathan P. Milberg

225 South Lake Avenue, 3rd Floor

Pasadena, CA 91101-3009

(626) 685-8910

Bradley A. Weinreb

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2290

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2 Because the frequency of one person in a trillion is so small, the laboratory that did the testing had adopted the policy of not calculating any smaller frequency numbers. For anything smaller, the examiner would just say fewer than one in a trillion.

3 With respect to this and other claims on appeal, defendant argues that the asserted error also violated various of his constitutional rights. The constitutional claims do not invoke facts or legal standards different from those defendant asked the trial court to apply but merely assert that the alleged errors were also constitutional violations. Because we find no error, we necessarily also find no constitutional violation. Accordingly, we provide no separate constitutional discussion. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)

4 We do provide intracase proportionality review on request. (People v. Rountree, supra, 56 Cal.4th at p. 860.) Defendant does not specifically request such review, but it would not aid him. The crime of this case, kidnapping and then brutally killing a five-year-old child for sexual enjoyment, was truly appalling. And defendant was solely responsible for that crime. “The sentence defendant received is not disproportionate to his personal culpability. It does not shock the conscience.” (Id. at p. 862.)

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