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The People v. Elmer Moises Ramirez Ayala

December 23, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ELMER MOISES RAMIREZ AYALA, DEFENDANT AND APPELLANT.



Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. (Super. Ct. No. 07CF1188)

The opinion of the court was delivered by: Fybel, J.

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

INTRODUCTION

Defendant Elmer Moises Ramirez Ayala was found guilty by a jury of having committed the crimes of continuous sexual abuse and incest against his daughter, Jane Doe (Jane). Defendant contends the trial court erred by admitting a forensic scientist's testimony stating that semen found in a sample taken from Jane Doe's vagina contained defendant's DNA, because other forensic scientists involved in the testing of that sample did not testify at trial in violation of defendant's right to confrontation under the United States Constitution.

We affirm. Even if the admission of the forensic scientist's testimony was admitted in error, any such error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant's guilt presented at trial.

FACTS

At 6:20 a.m. on April 4, 2007, Marianne Guerra, a deputy probation officer, conducted an unannounced visit at defendant's six-bedroom house in Santa Ana. Guerra knocked on defendant's bedroom window. Defendant peeked out that window. He then went to the front door and opened it for Guerra.

Guerra asked defendant to show her to his bedroom so they could speak privately. Defendant "stopped" her and said that his daughter was sleeping in his bedroom. Guerra told him "that was okay" and they proceeded to his bedroom.

Guerra saw defendant's then 13-year-old daughter, Jane, alone and lying in defendant's bed; she was holding the blankets up to her neck. Guerra noticed that the bed was pushed "all the way towards the window," which meant that defendant had been on the bed at the time he peeked through the window and saw Guerra. Guerra asked her partner, deputy probation officer Christine Torres, to take defendant to the living room while Guerra spoke with Jane and conducted "a welfare check on her, make sure she was okay."

Guerra asked Jane if she had slept in defendant's bedroom; Jane said "no." Guerra asked Jane why she was in that room and Jane said she "came in to take a shower." Jane could not explain why she had no clothes or a towel with her and started to "tear up." Guerra was concerned and asked Jane to show her what she was wearing. Jane lifted up the blankets and Guerra saw that Jane was wearing lace panties and a camisole top; she was not wearing any type of shorts or pants. She covered herself up again. Jane appeared frightened and was quiet.

Guerra asked Jane if she was okay and Jane said she was. Guerra asked if anything had happened that Jane wanted to tell her about and Jane said "no." Guerra told Jane that she was there to help her, and Jane started to tear up but did not say anything. Jane met with Torres to whom she made some "disclosures."*fn1 Guerra and Torres thereafter escorted Jane to the Child Abuse Services Team (CAST) facility in Orange.

At the CAST interview, Jane seemed shy and reluctant to say anything at all, including her name. Torres entered the room where the CAST interview was taking place because it appeared she had gained Jane's trust. Jane became more forthcoming. She stated defendant had touched her on the breasts, buttocks, and vagina. The touching began over her clothing and escalated to "skin to skin" touching. She described defendant digitally penetrating her vagina. She described three separate incidents of molestation which occurred over a time period exceeding three months. Jane said defendant had placed his penis inside her vagina, described defendant ejaculating on her, and said the molestation occurred in defendant's bed at their residence. She stated she thought defendant's conduct was her fault.

After the interview, Jane was given a sexual assault examination by nurse practitioner Jennifer Yates. Yates did not find any acute or healed injuries that were suspicious at that time and could not confirm or rule out whether Jane had been sexually abused. During the examination, Yates obtained samples from Jane, consisting of four vaginal swabs, two anal swabs, two ...


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