The People v. Jorge Alfonso Ayala Et. Al

• Decision Date: 22 December 2010
• Docket Number: No. NA073260,B216952,NA073260
• Citation: People v. Ayala, B216952, No. NA073260 (Cal. App. Dec 22, 2010)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JORGE ALFONSO AYALA et. al. Defendants and Appellants.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.JORGE ALFONSO AYALA et. al. Defendants and Appellants.

B216952

No. NA073260

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

Filed 12/22/10

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEALS from judgments of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Affirmed as modified.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Alfonso Ayala.

Richard T. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant Oscar Camilo Escobar.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

Jorge Alfonso Ayala (Ayala), also known as Jorge Ayala Bribiesca, and Oscar Camilo Escobar (Escobar) appeal from the judgments entered upon their convictions by jury of first degree murder (Pen. Code, § 187, subd. (a), count 1), ¹ kidnapping to commit another crime (robbery) (§ 209, subd. (b)(1), count 2), kidnapping for carjacking (§ 209.5, subd. (a), count 3), kidnapping (§ 207, subd. (a), count 4), and second degree robbery (§ 211, count 5). As to both appellants, the jury found to be true as to count 1 the special circumstance allegations that the murder was committed (1) while engaged in a robbery (§ 190.2, subd. (a)(17)(A)), (2) while engaged in a kidnapping (§ 190.2, subd. (a)(17)(B)) and (3) while engaged in carjacking (§ 190.2, subd. (a)(17)(L)) and, as to counts 2 through 5, the allegations that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1) and appellants personally inflicted great bodily injury within the meaning of section 12022.7. Ayala admitted the allegation that, at the time of the charged offenses, he was out of custody on bail within the meaning of section 12022.1. The trial court sentenced Ayala to an aggregate state prison term of life without the possibility of parole, plus two consecutive life sentences, plus six years eight months and Escobar to an aggregate state prison term of life without the possibility of parole, plus two consecutive life sentences, plus four years eight months.

Each appellant joins in the contentions of the other to the extent applicable. (Cal. Rules of Court, rule 8.200(a)(5); People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.) They contend that (1) admission of testimonial hearsay violated their right to confrontation under the Sixth Amendment; (2) if the claim in number (1) is forfeited, then they suffered ineffective assistance of counsel, (3) the trial court erred in allowing admission of (a) gang-related evidence, (b) speculative evidence of the location of the murder weapon, and (c) evidence of weapons and ammunition unrelated to the charged offenses, (4) they suffered ineffective assistance of counsel by reason of their attorneys' failure to object to (a) prosecutorial misconduct, (b) admission of evidence of unrelatedweapons and ammunition, and (c) on constitutional grounds to testimonial hearsay, (5) the erroneous admission of evidence on rebuttal violated their rights to due process, (6) the trial court committed reversible error in finding a witness unavailable so as to allow into evidence his prior testimony, (7) admission of Ayala's incriminating statement constituted Aranda² /Bruton³ error, violating Escobar's right to confront and crossexamine a key witness against him, (8) the cumulative effect of the combined errors prejudiced their right to a fair trial, (9) the matter must be remanded for several sentencing errors, including that (a) the kidnapping conviction must be reversed because it is a lesser included offense of kidnapping for robbery, (b) the trial court erred in failing to stay sentencing on counts 2 and 3 pursuant to section 654, (c) the parole revocation fine must be stricken, (d) the penalty under section 1464 was inappropriate, (e) the security fee must be recalculated, and (10) the abstract of judgment must be corrected to reflect the actual sentence imposed. Escobar adds that (11) he is entitled to an extra day of presentence credit.

The judgments are modified and affirmed.

FACTUAL BACKGROUND

The prosecution's evidence

The charged offenses

On January 24, 2007, Pedro Soto (Soto), a drug dealer, received a telephone call from Susan Swancutt (Swancutt), a drug addict, wanting to purchase drugs. She asked Soto to send Jose Macias (Macias), one of her regular "connect[s]," to meet her. Soto telephoned Macias and told him to go to a doughnut shop in the 2600 block of Firestone Boulevard, in the City of South Gate, to make the drug sale.

At approximately 5:30 p.m., after receiving Soto's call, Macias left his house, wearing a gold necklace and crucifix, that he always wore. His live-in girlfriend, Karina Medrano (Medrano), had given it to him. The pendant had belonged to Medrano's exhusband, and the chain had a distinctive thin area as a result of repairs. Macias drove Soto's pickup truck (Soto's truck), with Soto's permission.

Swancutt asked Rebecca Fuller (Fuller) to go with her to meet Macias because Swancutt was suffering drug withdrawal symptoms and feared Macias would force her to perform sex acts in return for selling her drugs. As they were leaving, they came across Ayala and Escobar, who Swancutt knew as "Trips" and "Listo," respectively. Swancutt gave them a ride and dropped them off near where she was to meet Macias. She parked and, while Fuller remained in the car, walked to a white pickup truck in which Macias was waiting. Swancutt was sick from drug withdrawal, had blurred vision, anxiety, depression, pain and was vomiting. Fuller saw Swancutt get into the truck and saw someone she could not identify in the driver's seat, but she saw no one else because the truck had tinted windows. She did not see appellants enter the truck.

According to Swancutt, appellants approached the van from both sides, each holding a gun. One pointed a gun at the driver and the other at her, ordering her into the backseat.⁴ Escobar got into the front passenger seat and Ayala into the back, behind Macias, who was ordered to drive. Macias told the men, "Take whatever you want[.] [T]ake the car. Just leave me." Swancutt saw appellants take a wallet and necklace from Macias. She asked appellants to let her out. At first they refused, but later did so, some blocks away. Swancutt testified at trial that appellants, the same men to whom she had given a ride, were the robbers.⁵

Approximately 45 minutes later, in need of a fix, Swancutt ran back to her car and told Fuller that she and Macias had been robbed by appellants, with guns.⁶ Swancutt telephoned Soto and told him that she had been robbed of the $100 she brought with her for the drug purchase by two men with guns.⁷ Swancutt then drove Fuller home.

Discovery of Macias's body

On January 24, 2007, at approximately 7:45 p.m., a security guard on patrol at a dark, secluded pumping station saw a white truck with its back parking lights on and shattered front passenger window. At 8:40 p.m., during a second round of the pumping station, the guard saw that the truck had been moved, the rear passenger door on the driver's side was open, and a person under a blanket inside, moved. The reverse lights came on. At 10:18 p.m., a second security guard saw the white truck with its brake lights on, and a dead "body thrown on the chair." The police were called. Macias was in the truck, had been shot 20 times from a distance of one foot or less and died from his wounds. The cluster of wounds appeared to be traveling from back to front, left to right, and upwards.

Investigation

Near 12:45, a.m., January 25, 2007, Detective Hugo Cortes and his partner, Detective Mark McGuire, arrived at the crime scene, an area that "is basically a dirt lot that's... used for the residents who own horses." Detective Cortes noticed "CVS" (Compton Varrio Segundo) gang graffiti in the area. Approximately 20 bullet casings and one projectile were found in and around Soto's truck. All of the casings were ninemillimeter. The truck had been rifled through, the keys were still in the ignition, the truck was in drive, and the lights were on, but dim. A pair of sunglasses was recovered from the rear floorboard of the truck, underneath the seat, on the driver's side, and a set of keys that included "two Dodger keys" was recovered from the rear right side of thetruck's bench seat The detective tested the keys at a number of locations, including Ayala's grandmother's residence. They did not open the doors at any of the locations. Detective Cortes also recovered a cell phone in the street, near the truck, and another from inside the truck.

Within weeks after the murder, appellants were identified in photographic lineups. Fuller identified Listo (Escobar) from a six-pack and selected two people. Swancutt picked "Listo" from a photographic six-pack, stating, "I think its him, Listo, but I'm not 100 percent certain." She also picked "Trips" (Ayala) in another six-pack. She said they were the robbers.

Ayala's phone calls from jail were monitored and recorded. He placed four calls to his grandmother's house, speaking with different individuals each time. In each call, he referred to a white sock in his green backpack. In the first call, he told the person to remove it from the house and to get his pants "just in case." He was told that his mother had taken the clothes. In the second call, he told someone to look in his green backpack, and was told that his mother had already taken care of it. In the third...