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.

"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."

In reviewing the situation, the justices determined that Stotler's sentence meant the defendant would be 70 years old when he could first ask a prison parole board for release and observed that conclusion meant a de facto life sentence because, statistically, Avina won't survive his 60s. (Prison inmates have a life expectancy far beneath the average citizen.)

"[Stotler's] sentence effectively deprives [Avina] of any meaningful opportunity to obtain release regardless of his rehabilitative efforts while incarcerated," the opinion states. "Should [Avina] spend the next half century attempting to atone for his crimes through education, rehabilitation and introspection into why he committed the offenses knowing there is virtually no chance he will be released? Recognizing [Avina] was not sentenced to [life without parole], his sentence nevertheless effectively means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of the convict, he will remain in prison for the rest of his days."

Claiming state law forbids the government from issuing non-homicide juvenile offenders life sentences without the possibility for parole, the justices resentenced Avina by making two of the punishments run concurrently with the other terms. The move gives Avina, who is 23 and a resident of Ironwood State Prison in Blythe, a glimmer of hope. Now, he can ask a future parole board to grant him freedom when he's 56 years old and hope they are impressed with his growth. At that point, he'll have been incarcerated for 42 years and six months.

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23 comments
elenoreflores
elenoreflores

He needs mental help and he'll just become a better rapist if they put him in a cage.

trevorj842
trevorj842

Spare me the pity, tough life story. The best outcome is that he will be pushing daisies by his first parole hearing.

mariaavia
mariaavia

i am joses sister and all i got to say is that i love you bro keep your head up and have faith in god.mommy is taking care of us from up above. i love you carnal

mariaavia
mariaavia

mariaavina jose Ignacio is my brother and all i have to say is that i love you brother and lets never loose faith mommy is taking care of us from up above nd i know that god will help you during this hard time.remember god is love mercy and compassion.dont worry everything willl be ok i love you güero

DaniGirl949
DaniGirl949

Terrible all the way around. Yet I feel worse for the ones that were molested!

sweetliberty17761776
sweetliberty17761776 topcommenter

AS horrible a lifes story that he has had, 


now HIS VICTIMS WILL HAVE A HORRIBLE STORY TO TELL

And should they become molesters themselves those who want criminals out on the streets will again be guilty of hurting the good to satisfy their needs to spread their misery onto others

Michael Moon
Michael Moon

In any sane society there are mental health processes and ways to help those unable to help themselves. We're insane.

Judy Case
Judy Case

If they don't want him in Prison then put him in an Institution for the Criminally Insane. But I sure as hell don't want him out. He knew what he was doing was Wrong otherwise why would he threaten them. Those boys he raped will be in a prison of their own for the rest of their lives, turnabout is fair play.

Josh English
Josh English

*Instant Death Penalty* - doesn't matter if he's disabled or not; you hurt a kid that way, YOU DIE. ;-)

Mike MacDuffee
Mike MacDuffee

Rape and molestation are cyclical disease of humanity. This perpetrator was himself traumatized by this when he was 6. It needs to be treated.

Andrew Nava
Andrew Nava

castration.....no penis means no pleasure...fuck the mental retardation excuse....fuckin stupid shit.....

Al Wölfhaus
Al Wölfhaus

It opens a can of worms. Who should be responsible for the mentally ill: their parents, the society they live in, or themselves? Anyway you slice it the law dictates their is no one to blame and they need understanding and medical guidance. Leaving the victims to man up and deal with it. He did it and would most likely do it again upon release. He needs to be there.

Greg Chavez
Greg Chavez

He needs to be taken out of regular society. He will do this again.

Maria A. Moffa
Maria A. Moffa

Wow! What this kid did was wrong, but he was dealt a pretty bad hand since birth. I think is have put him in a state hospital

Chris Kennedy
Chris Kennedy

If you get raped by a 14 year old disabled kid, that's on YOU.

Anthony 'Ace' Leon
Anthony 'Ace' Leon

NO,What he did those victim's I don't care what age but he knew he was doing and wrong.So if you released him how we know that he is safe our city or any where.I'm sorry i would not released him at all.

Jeff Westoby
Jeff Westoby

If he was mentally challenged then,then he still is and a danger to society...either way we have to pay for this dude...but this way he cant hurt our kids...

Matthew Cooper
Matthew Cooper

everyone loses. obviously needs something other than just being locked up. Unless he gets help he will be even more unstable at his parole hearing.

 
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