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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              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.


                                             *               *               *
              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.

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Andres ran out of the house and never returned. He claimed he did not feel safe passing
by defendant’s house, because defendant or defendant’s brother followed him and cursed
at him. He found a knife that he began carrying with him to school. Andres was
eventually caught with the knife on campus and expelled from school.
              In addition to his problems in high school, Andres admitted he had been
expelled from elementary school for having a BB gun and acknowledged making a prank
911 telephone call. On each of these occasions, he tried to avoid punishment by lying
about what happened.
              In mid-2010, Andres was in juvenile hall after testing positive for
marijuana. During a medical examination, it was discovered he had contracted a sexually
transmitted disease. Andres then acknowledged his sexual contacts with defendant.
              Andres spoke with two police officers. Based on his statements, the
officers drew diagrams of the bedrooms where the sexual acts took place. The police
arrested defendant and he gave them permission to search the residence. During the
search, officers found a drawer containing adult videos, one of which was titled, “Latinos
100%,” and a roll of toilet paper on top of the dresser. Behind a speaker, the police found
a glass pipe and baggies containing what appeared to be methamphetamine. The officers
also noticed a surveillance camera mounted on the home’s roof.
              The police advised defendant of his Miranda rights (Miranda v. Arizona
(1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]) and he agreed to answer questions.
Defendant denied both knowing Andres and having sex with a minor.


                                      DISCUSSION


1. Background
              The prosecution made a pretrial motion to introduce evidence Andres
feared defendant because he believed defendant belonged to a street gang named Middle

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Side. The trial court ultimately agreed to admit this evidence, citing the probative value
of explaining Andres’ compliance with defendant’s sexual requests, the delay in reporting
the crimes, and any potential inconsistencies in Andres’ story. In addition, the court
declared it would give the jury a limiting instruction to “diminish the prejudice” of this
evidence and allow the defense to present evidence “there is no documented connection
between the defendant and Middle Side.”
              Before the jury, Andres expressed his fear of testifying in this case. He
stated Middle Side claimed the neighborhood where he had lived and, over a defense
objection, said he believed defendant’s house was associated with the gang. At this
point, the trial court explained to the jury “[t]here are no gang charges in this case,”
and it was “not to use this evidence in any way to suggest that the defendant is connected
with any kind of a gang. [¶] The purpose of this evidence is only to establish what this
witness . . . was thinking so that you can better assess his believability.” When Andres
asserted defendant claimed to be a gang member and that he believed defendant belonged
to the gang, the defense again unsuccessfully objected. But the trial court repeated its
admonition the evidence could be “used only to show what the witness was thinking so
that [the jury could] better assess [Andres’] believability.”
              In closing argument, the defense objected to the prosecutor’s mention of the
gang evidence. The trial court overruled the objection, noting it “has instructed the jury
as to how to use” this evidence and repeated its belief “the only testimony was that
Andres thought” defendant was a gang member.
              After argument the trial court instructed the jury, giving it the following
advisement on the gang evidence: “‘During the trial, certain evidence was admitted for a
limited purpose. You may consider that evidence only for that purpose and for no other.
[¶] ‘In this instruction I am referring to Andres’ testimony that Andres thought the
defendant and others in the defendant’s house were connected with a street gang. This
evidence was admitted for the limited purpose of helping you evaluate Andres’

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believability as a witness. You may not consider this evidence for any other purpose.
You may not conclude from this evidence that the defendant or anyone else in his house
is connected with a street gang or that the defendant is a person of bad character or has a
disposition to commit crime.’”


2. Analysis
              Noting “evidence of gang membership or affiliation is inherently and
extremely inflammatory” defendant argues the trial court erred by allowing Andres’
testimony about his gang membership because it “had nothing to do with any issue in this
case.” This argument lacks merit.
              The Supreme Court has indeed recognized that “because gang evidence
may have a highly inflammatory impact on the jury, trial courts should carefully
scrutinize such evidence before admitting it.” (People v. Montes (2014) 58 Cal.4th 809,
859.) But “[w]hile gang membership evidence does create a risk the jury will
impermissibly infer a defendant has a criminal disposition and is therefore guilty of the
offense charged [citation], ‘nothing bars evidence of gang affiliation that is directly
relevant to a material issue.’” (Ibid.) “We review a trial court’s rulings on the admission
and exclusion of evidence for abuse of discretion. [Citation.]” (People v. Chism (2014)
58 Cal.4th 1266, 1291.) “Specifically, we will not disturb the trial court’s ruling ‘except
on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice.’” (People v. Goldsmith
(2014) 59 Cal.4th 258, 266.)
              Contrary to defendant’s assertion, this is not a case where the trial court
admitted gang evidence. There was no expert testimony on the existence and nature of
criminal street gangs generally or about the Middle Side gang in particular. Further,
during the pretrial hearing the prosecutor acknowledged defendant was not a documented



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gang member. And before the jury the prosecutor agreed “there are no gang charges in
this case.”
                What the trial court allowed the prosecution to introduce was Andres’s
belief that defendant belonged to Middle Side. The purpose of this testimony was to
explain why Andres feared defendant, why he repeatedly returned to defendant’s
bedroom, why he delayed reporting the sexual encounters, and why Andres was afraid to
testify at trial.
                The primary focus of this case concerned Andres’ credibility. The factors a
trier of fact “may consider in determining the credibility of a witness” include “[h]is
demeanor while testifying and the manner in which he testifies,” “[t]he existence or
nonexistence of a bias, interest, or other motive,” and “[h]is attitude toward the action in
which he testifies or toward the giving of testimony.” (Evid. Code, § 780, subds. (a), (f)
& (j); see People v. Merriman (2014) 60 Cal.4th 1, 84; People v. Mendoza (2011) 52
Cal.4th 1056, 1084.) Thus, it is now settled, “‘Evidence that a witness is afraid to testify
or fears retaliation for testifying is relevant to the credibility of that witness and is
therefore admissible.’ [Citations.] Evidence of any explanation of the basis for such fear
is likewise relevant to the jury’s assessment of the witness’s credibility and admissible
for that nonhearsay purpose, but not for the truth of any matters asserted. [Citation.]”
(People v. Chism, supra, 58 Cal.4th at pp. 1291-1292; see People v. Burgener (2003) 29
Cal.4th 833, 869; Evid. Code, § 780.)
                Defendant argues gang evidence is only admissible where the case includes
a gang charge or enhancement, or if fear is an element of one of the charged offenses. He
cites no authority for this proposition and it is contrary to the previously cited authorities.
In People v. Sanchez (1997) 58 Cal.App.4th 1435, the court rejected a claim the
defendant had failed to receive the effective assistance of counsel because his trial
attorney failed to object to the admission of gang evidence. The Sanchez court
acknowledged “there was no evidence that the motive for the murder was in any way

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gang related,” and that the defendant’s gang membership “had only limited probative
value to corroborate the witnesses’ identification of him” as the perpetrator. (Id. at
p. 1449.) Nonetheless, the court concluded “the gang evidence had significant probative
value on the issue of the[] witnesses’ credibility to assist the jury in determining when
they were in fact telling the truth” (id. at p. 1450), and therefore “the evidence was
properly admissible on the issue of witness credibility” (id. at p. 1449). As a
consequence, defendant’s reliance on the fact that this case does not include gang charges
or allegations and fear was not an element of any the crimes for which he was prosecuted
is unavailing.
                 Nor can defendant complain Andres was allowed to testify to the basis for
his fear during direct examination. “The[] authorities make clear that a trial court has
discretion, within the limits of Evidence Code section 352, to permit the prosecution to
introduce evidence supporting a witness’s credibility on direct examination, particularly
when the prosecution reasonably anticipates a defense attack on the credibility of that
witness.” (People v. Mendoza, supra, 52 Cal.4th at p. 1085; People v. Merriman, supra,
60 Cal.4th at p. 86 [“The prosecutor reasonably could anticipate . . . that the defense
would vigorously challenge these witnesses’ credibility” and “was entitled to present
evidence of the witnesses’ reluctance to testify to preemptively counter such an effort”].)
The prosecutor sought to corroborate Andres in part through the testimony of the officers
who arrested defendant and searched his residence. But, in addition, the prosecutor had
Andres testify to his fear of testifying against defendant to explain what otherwise might
be deemed inconsistent behavior in returning to defendant’s home and then not reporting
the incidents for over a year.
                 The cases on which defendant relies held the trial court erred in admitting
gang evidence because it was either introduced on an undisputed fact or merely
cumulative to other, less prejudicial proof of the same fact. But, as noted, Andres’
credibility was the focus of the trial and his demeanor and attitude on the witness stand

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and his explanation of how he behaved during the sexual encounters and afterwards was
not merely cumulative to other evidence. Further, as noted, the court limited the gang
testimony to Andres’ belief that defendant was a gang member and that his house was a
Middle Side gang hangout.
              Finally, we note the trial court repeatedly informed the jury of the limited
purpose for which it could consider Andres’ testimony about his belief that defendant
belonged to a gang. “Because the gang evidence was highly probative in this case, and
the trial court gave a limiting instruction designed to lessen the risk of undue prejudice,
we cannot say the trial court’s decision to allow the gang affiliation evidence exceeded
the bounds of reason.” (People v. Montes, supra, 58 Cal.4th at pp. 859-860.)


                                      DISPOSITION


              The judgment is affirmed.




                                                  RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




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