Orange County’s Paul Avila III celebrated July 4, 2014, by stealing the employee’s tip jar off a counter inside a Hong Kong Express restaurant in Fullerton and within minutes committed more crimes that eventually landed him inside a California prison for an 18-year sentence.
Avila began formally protesting his case late last year with hopes that sympathetic federal judges would view his plight as constitutionally unfair and offer him a new trial.
But swiping the tip jar isn’t part of the controversy. Avila dropped the loot while restaurant customer Silas Perkins chased him down and tackled him, a scenario that prompted jurors to vote him not guilty of shoplifting.
The dispute centers on what happened after Perkins held Avila face-down for five minutes on hot asphalt while waiting for police to respond to a 911 call. Hearing Avila’s complaints of troubled breathing, bystanders—unaware of what was happening—demanded that Perkins take his weight off the man.
This is where stories diverge greatly.
Perkins claims that once freed Avila began swinging a black knife or boxcutters at his stomach but didn’t land any blows before running down the street.
Next, an African-American man wearing blue scrubs exited his vehicle, yelled “stop” and impeded Avila’s flight. From about 30-feet away, witnesses saw the thief making swinging motions with the knife but didn’t see any blows land. Instead, they said they heard the man, known only as John Doe in police reports, scream that he’d been stabbed in the arm.
By the time police arrived, detained Avila at gunpoint and recovered a bloody black knife in a nearby underpass, Doe had disappeared.
A 2015 jury found Avila guilty of two counts of felony assault with a deadly weapon.
On appeal, the inmate attacked the Perkins’ related conviction by insisting he’d acted merely in self-defense after being painfully held down.
He labeled the victim’s testimony as “dubious . . . untrustworthy [and] insufficient evidence” to surpass the reasonable doubt hurdle because his accuser hadn’t been wearing his eyeglasses during the incident and couldn’t precisely describe the weapon.
According to Avila, he shouldn’t have been convicted of assault when the intent of him swinging “the object” had been to merely scare people away, not cause harm.
He also believes the second assault with a deadly weapon conviction is worse because it didn’t happen, calling Doe a fictitious character and noting the man was never found and didn’t testify.
In his appeal, he said his constitutional right to confront his accuser had been trampled during the trial in Superior Court Judge James Stotler’s courtroom.
“Without any questioning of the alleged victim, by police or at trial, the spontaneous shout-out [that he’d been stabbed] lacked credibility and is not of solid value,” the inmate’s lawyer wrote in a brief. “No corroborating evidence of this hearsay was introduced. The man never fell down. No injury was seen. The most that could result from these alleged actions would be simple assault when the only evidence that could be considered substantial is the eyewitness testimony that appellant swung at the African-American man. The hearsay evidence is not substantial to indicate appellant actually slashed that man.”
U.S. Magistrate Judge Alicia G., Rosenberg in downtown Los Angeles this year studied Avila’s complaints. Legally obligated to view the case in a light most favorable to the prosecution, Rosenberg opined that he’d failed to “make the requisite showing” that the jury’s findings were “so unsupported as to fall below the threshold of bare rationality.” On July 30, she recommended that the appeal be denied, a move supported by the California Attorney General.
U.S. District Court Judge Jesus G. Bernal this month accepted the findings and blocked Avila from trying to relitigate his complaints.
As a result, the 47-year-old inmate will remain locked up at Mule Creek State Prison in Ione near Sacramento.
There’s no doubt Avila’s exceptionally lengthy rap sheet, which includes armed robbery, thefts, trespassing and illegal narcotics use, prompted the severity of his punishment.
CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; and hailed by two New York Times Magazine writers for his “herculean job” exposing Southern California law enforcement corruption.