People v. Ayala
| Decision Date | 23 April 2021 |
| Docket Number | C090819 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CARLOS GALLO AYALA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a seven-count information, defendant Carlos Gallo Ayala (defendant) was charged with infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a); count 1),1 false imprisonment by force (§§ 236, 237, subd. (a); count 2), assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4); count 3), second degree robbery (§§ 211, 212.5, subd. (c); count 4), stalking (§ 646.9, subd. (a); count 5),dissuading a witness (§ 136.1, subd. (b)(1); count 6), and bribery to influence the information given to a law enforcement official (§ 137, subd. (a); count 7). After a jury trial, defendant was found guilty of counts 1, 2, 3, 6, and 7. On count 4, defendant was found guilty of the lesser included offense of misdemeanor theft (§ 484). Defendant was found not guilty on count 5. The court denied defendant's request for probation and sentenced him to a six-year term of imprisonment.
On appeal, defendant argues: (1) the trial court erred in admitting the victim's out-of-court statements under Evidence Code section 1390; (2) the court abused its discretion in denying his request for probation; (3) a remand for resentencing is required because the trial court failed to recognize its discretion to sentence him concurrently on counts 6 and 7; and (4) the matter must be remanded for a hearing on defendant's ability to pay the fines and fees ordered by the court under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We agree only with the third contention that the court failed to recognize its sentencing discretion on counts 6 and 7. Thus, we shall vacate the sentence, remand for resentencing, and otherwise affirm the judgment.
A little after 5:00 a.m. on April 28, 2019, a 911 dispatcher received a call from the victim, O.A. O.A. was distraught, sobbing, and out of breath. O.A. told the dispatcher that defendant, her husband of 20 years, had just beaten her and taken her keys. O.A. said that defendant waited outside her home in the dark and ambushed her. She said defendant punched her repeatedly in the head and face, and covered her nose and mouth, making it difficult for her to breathe. O.A. said she had bruises, cuts, swollen lips, and a bump on her head. She stated that her head hurt "really bad." O.A. told the dispatcher that during the attack she thought she was going to die. The dispatcher asked if defendant had done things like this before, and O.A. said that he had. At one point during the call, O.A. told the dispatcher that defendant was trying to call her and offer hera bribe. She also told the dispatcher that defendant had left a message on her answering machine offering her $1,000 if she did not call law enforcement.
At approximately 6:25 a.m., Deputy Tonya Oropeza arrived at the scene to relieve the officers who initially responded to the 911 call. By the time Oropeza arrived, emergency medical personnel had left and O.A. was lying on a sofa in her home. She was upset, appeared to have been crying, and was having trouble catching her breath. Oropeza observed some bruising and swelling on O.A.'s face and bottom lip. O.A. appeared to have dried blood on the right side of her mouth. O.A.'s left ear had an earring hook with no earring, and O.A. had a large swath of blood behind her ear. O.A. said that she was in pain.
Oropeza asked O.A. about her relationship with defendant. O.A. related that she and defendant had been in a relationship since 2000 and had three children together. They were married, but did not live together. O.A. said that defendant had committed prior acts of domestic violence against her. O.A. stated that she filed for divorce two years earlier, but never followed through.
Oropeza asked O.A. to describe the attack. Consistent with the 911 call, O.A. told Oropeza that at about 5:00 a.m., she walked out to her vehicle to retrieve some items. On her way back to the house, defendant emerged from the shadows and charged at her. He forced her to the ground and straddled her. He held his hand over her nose and mouth so that she was unable to breathe or scream. As she struggled, he punched her in the face and head about 10 times with a closed fist. O.A. described the blows as what would be expected in a fight between two men. Defendant then placed both his hands on her neck, causing her to be unable to breathe. After some time, he got up and walked away. He then returned, took her keys, and left again. O.A. went inside and called the sheriff's department.
After speaking to O.A., Oropeza searched the area where the attack occurred. On the ground, Oropeza found the earrings that O.A. said she was wearing during the attack.One of the earrings was missing a hook. Oropeza also found a small black flashlight and a baggie containing 16.8 grams of methamphetamine (meth). O.A. told Oropeza that the meth and the flashlight did not belong to her and that defendant used meth.
Later that day, defendant was apprehended while driving and arrested. The arresting officer observed that defendant's knuckles were red and swollen. The officer found $1,961 in defendant's wallet. In defendant's vehicle, the officer found a black hooded jacket consistent with one reportedly worn during the attack. The officer also found a blue backpack containing a Leatherman knife, two flashlights, binoculars, and a set of gloves. Inside one of the gloves, the officer found O.A.'s keys.
A search of defendant's cell phone revealed that on the day of the incident, between approximately 8:00 a.m. and 10:45 a.m., defendant made five calls to O.A. using a feature that blocked his number. Defendant also sent O.A. more than 75 text messages between approximately 8:00 a.m. and 11:30 a.m. In the text messages, defendant wrote that he was "sorry," that he would "do anything," repeatedly asked O.A. whether she had called the cops, and asked to meet with her "face to face."2 In several text messages, defendant offered her $1,000.
On April 29, 2019, while defendant was in custody, Oropeza spoke with O.A. a second time. O.A. reiterated that defendant had committed many prior acts of domestic violence against her. O.A. said that she only reported about 10 percent of the incidents to law enforcement. O.A. told Oropeza that it was not uncommon for defendant to wait outside her home and either confront her or physically assault her. Oropeza helped O.A. secure an emergency temporary protective order.
On May 7, 2019, in a recorded jail call with his mother, defendant discussed the possibility that the charges would be dropped if O.A. refused to testify. Defendant explained, "[T]hat's why I want to get out mom because . . . if she does not talk or does not say anything Ma, they will drop everything." He continued, His mother responded, Defendant then said,
On May 21, 2019, after defendant was released on bail, Oropeza met with O.A. again to discuss the attack. This time, O.A. refused to cooperate. O.A. told Oropeza that she did not want to talk about the incident and refused to answer any questions. A day or two later, when Oropeza returned to O.A.'s house, defendant was there. O.A. told Oropeza that she did not want to speak with her. O.A. also told Oropeza that she had the protective order changed to allow defendant to be around her.
The prosecution's case-in-chief
O.A. refused to provide any testimony at the preliminary hearing or at trial. The trial court therefore found O.A. to be unavailable as a witness and allowed the prosecution to admit out-of-court statements that O.A. made to law enforcement. Through Oropeza and others, the prosecution elicited testimony consistent with the facts described above. The jury heard an audio recording of the 911 call, as well as the recorded jail call between defendant and his mother. The prosecution introduced photographs (1) showing the injuries to O.A.'s face and head, and (2) showing the redness and swelling on defendant's knuckles at the time of his arrest.
The jury also heard testimony from law enforcement officers regarding three prior incidents of uncharged domestic violence involving defendant and O.A. With respect to the first incident, Deputy Myles Torres testified that he responded to a domestic violence call at O.A.'s residence on March 24, 2015. When he arrived, O.A. told him that there had been an argument and defendant punched her multiple times in the head. O.A. toldTorres that defendant had threatened her and been abusive to her in the past. Torres did not see any visible injuries to O.A., but he observed broken skin on one of defendant's knuckles, which he photographed. Torres helped O.A. obtain an emergency temporary protective order.
Deputy Kyle Leonard testified to a second domestic violence call at O.A.'s residence on September 26, 2015. When Leonard arrived, he observed cuts and scratches on O.A.'s hands, arms, and torso. O.A. told Leonard that she caught defendant using meth in the bathroom. When she confronted him, defendant punched her in the stomach. The argument escalated. O.A. stated that at one point defendant put her in a choke hold and she could not breathe and felt like she was going to pass out. She escaped and then ran inside and called 911. Defendant was arrested and taken to...
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