Kid Rapist of Kids Jose Avina Catches a Break

[Moxley Confidential] State court of appeal calls lifetime imprisonment of mentally challenged 14-year-old offender cruel

Kid Rapist of Kids Jose Avina Catches a Break
Luke McGarry

Beginning in October 2004, Anaheim's Jose Ignacio Avina committed one of the most troubling and bizarre crime sprees in Orange County history. Armed with a screwdriver near Disneyland, Avina stopped a 12-year-old boy riding his bicycle home from Ball Junior High School, forced him to a nearby building roof, demanded oral copulation, and then sodomized him for what police called "a long time." Three weeks later, a Swiss Army knife-wielding Avina robbed a 13-year-old boy walking to school and threatened to kill him if he alerted police. The following month, Avina used his knife to rob a 12-year-old boy walking to school, and then took him inside an apartment building, where he demanded oral sex and sodomized the kid. Later the same day, Avina targeted a different 12-year-old for robbery, but this child was so frightened after being ordered to an alley that he dropped his backpack and sprinted to school. It wasn't difficult for police to tie Avina to the ghastly crimes. He'd left more than traceable amounts of DNA inside two of his victims, who suffered anal wounds and emotional trauma.

But Avina wasn't a pedophile. He wasn't even a man. Standing barely taller than 5 feet and weighing about 100 lean pounds, his facial features were soft and pleasant enough that in a different, more ideal world, he might have been a teenage model. Back in reality, this unusual robber/rapist grew up in a dirt-poor, broken family whose adults were unfamiliar with elementary parenting skills, hobbled by serious drug addictions and prone to abusive, violent outbursts. Avina—a special-education student—was just 14 years old and, according to examining doctors, certifiably retarded. His schoolmates called him names. His father beat him mercilessly. Eight years earlier, during a trip to Mexico, a man took him to the woods, ordered him to his knees and molested him.

Avina's youth, handicap, lousy upbringing and scarring victimization did not win him the slightest break. A sexual-assault prosecutor made Avina the youngest person in county history to be tried as an adult and won a long list of felony convictions after a jury trial. Public defender Dolores Yost passionately advocated a punishment of no more than a six-year stint at the California Youth Authority (CYA). Superior Court Judge James A. Stotler, however, believed he had a mandatory obligation to sentence the youngster to 50 years to life in prison, plus two consecutive life terms.

Luke McGarry


"I have searched my soul on this one because of the age of [Avina]," a visibly fretful Stotler—one of the most thoughtful court officials in the county—said at the sentencing hearing in Santa Ana. "I really didn't want to do this to you, but there are repercussions of that conduct on the [four] victims, who'll suffer for years to come."

I'd covered key portions of the trial and saw a shackled Avina's cluelessness about what awaited him, as well as the genuine concern of Yost, who gave Stotler numerous examples of her client's acts of compassion. Authorities sent the defendant to the CYA, where he'd stay until he was old enough to be bused to a prison for the rest of his days. That's where the public record ended.

In our state, citizens are blocked from observing juvenile-court proceedings, but, even though Avina had been tried and sentenced as an adult, justices inside the California Court of Appeal based in Santa Ana decided to cloak their review of the case in secrecy by deleting the defendant's name from public files. That ridiculous move made it impossible for reporters to track developments. Essentially operating in darkness, justices Kathleen E. O'Leary, William W. Bedsworth and Richard D. Fybel considered arguments, debated and last January made a ruling on whether the justice system had been too harsh in the case. Only because of a recent tip from a source was I able to discover their important opinion filed under Avina's initials. (Still, court staff rejected my request to fully review the arguments the justices considered, telling me the briefs are "confidential.")

In a 20-page opinion written by O'Leary, the appellate panel rejected the point of view of Richard Power, Avina's court-appointed lawyer, that the defendant's punishment is vastly greater than persons who commit murder, manslaughter and other violent felonies. They weren't impressed by Power's claim that life sentences for multiple sex-crime convictions are unconstitutional. They also recoiled in contempt at his apparent attempt to win points by asserting his client is a heterosexual who committed the homosexual acts only as a way to scare his victims into silence with police.

However, the justices ultimately concluded that Power was right that Stotler's sentencing decision amounted to "cruel and unusual" punishment.

"The evidence overwhelmingly demonstrated [Avina] acted alone and, with planning and deliberation, terrorized young boys to satisfy his perverse desires," wrote O'Leary, who noted that the defendant began smoking marijuana and drinking booze at 12, first had sex with a girl at 13 and intercourse with a 40-year-old woman at the age of 14. "The gravamen of [Avina's] complaint is that he was a mentally retarded juvenile who had an extremely abusive childhood and he was not provided appropriate guidance and supervision. He asserts that as a low-functioning juvenile, he should not be punished as severely as 'a normally intelligent adult.' . . . We conclude [Avina's] age at the time of offenses, his poor upbringing and his substandard intelligence rendered his sentence unconstitutional" and one that "shocks the conscience."

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