People v. Ayala CA4/3

Filed 10/30/14 P. v. Ayala CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048892

v. (Super. Ct. No. 10CF1592)

JERRY AYALA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

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The trial court sentenced defendant Jerry Ayala to 9 years in prison after a jury found him guilty of sodomy and oral copulation of a person under 16 years of age, plus exhibiting pornography to a minor. Defendant also admitted three prior prison term allegations. The sole issue on appeal, is whether the court committed reversible error by allowing the victim to testify he feared defendant because he believed defendant belonged to a gang. Given the relevance of this testimony to the victim’s credibility and the court’s admonitions limiting the jury’s use of the evidence, we conclude no error occurred and affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Andres lived a short distance from defendant’s residence. On four occasions in late 2008 and early 2009, when Andres was 15 years old and defendant 42 years of age, Andres visited defendant’s home where the two engaged in the acts of sodomy and oral copulation. During the sexual activity, defendant played videotapes of men and women having sex. Andres provided a general description of the interior of defendant’s home and a detailed account of the two bedrooms defendant occupied where the sexual encounters occurred. Blankets were hung over the windows and doors. Defendant also kept a roll of toilet paper in the room to clean up after the sexual activity. In the second bedroom defendant occupied, Andres noticed defendant could watch the front of the residence because his television was connected to a security camera mounted on the roof. Andres testified one of the adult videos defendant played was entitled either “Latinas 100 percent” or “100 percent Latinas.” In addition to smoking marijuana, Andres claimed defendant produced a glass pipe the two used to smoke methamphetamine. On direct examination, Andres testified he was afraid of defendant. After the fourth encounter, defendant attempted to block Andres when he started to leave.