People v. Moreno

Decision Date26 October 2012
Docket NumberE052599
PartiesTHE PEOPLE, Plaintiff and Respondent, v. HUMBERTO ORTEGA MORENO, Defendant and Appellant.
CourtCalifornia Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
HUMBERTO ORTEGA MORENO, Defendant and Appellant.

E052599

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Dated: September 29, 2012
Dated: October 1, 2012
Filed: October 26, 2012


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v.

HUMBERTO ORTEGA MORENO, Defendant and Appellant.

E052599

(Super.Ct.No. RIF149279)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

The unpublished opinion filed in this matter on September 28, 2012, is modified as follows:

On page 7, at the end of the first full paragraph, the last sentence should read: "We disagree."

Except for this modification, the opinion remains unchanged. This modification does not effect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.

I concur:

CODRINGTON
J.

Page 2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. RIF149279)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

The unpublished opinion filed in this matter on September 28, 2012, is modified as follows:

On page 2, the second paragraph should read:

"On appeal, defendant argues that (a) there is insufficient evidence of duress to support the convictions for violations of section 288, subdivision (b)(1) in counts 1 and 2, and (b) the sentence under the one-strike (§ 667.61, subd. (e)(5)) violates ex post facto principles. We affirm."

Page 3

Except for this modification, the opinion remains unchanged. This modification does not effect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.

We concur:

RICHLI
J.

CODRINGTON
J.

Page 4

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.

THE PEOPLE, Plaintiff and Respondent,

v.

HUMBERTO ORTEGA MORENO, Defendant and Appellant.

E052599

(Super.Ct.No. RIF149279)

OPINION

APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed.

Carl Fabian, 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, James D. Dutton, and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.

Jane Does 1 and 2 disclosed to their mother that they had been touched

Page 5

inappropriately by their grandfather, defendant Humberto Ortega Moreno, in 2009. During an interview by the Riverside County Assessment Team (RCAT), Jane Doe 1 described several incidents. Jane Doe 2, the sister of Jane Doe 1, denied any actual touching, despite numerous attempts by defendant, explaining she had gotten away. At trial, both girls testified to numerous incidents of molestation. Defendant was convicted of committing two counts of lewd and lascivious acts by duress (Pen. Code,1 § 288, subd. (b)(1)) against Jane Doe 1, and two counts of lewd and lascivious acts (§ 288, subd. (a)) against Jane Doe 2, following a trial by jury. The jury also found that defendant committed the offenses against multiple victims. (§ 667.61, subd. (e)(5) ["one strike law"].) Defendant was subsequently sentenced to an aggregate term of 30 years to life, and appealed.

On appeal, defendant argues that (a) there is insufficient evidence of duress to support the convictions for violations of section 288, subdivision (b)(1) in counts 1 and 2, and (b) the sentence under the one-strike (§ 667.61, subd. (e)(5)) violates ex post facto principles. We modify the convictions for counts 1 and 2 to reflect convictions for the lesser included offense of section 288, subdivision (a) and remand for resentencing.

BACKGROUND

T.M. is the mother of Jane Doe 1, who was born in 2000, and Jane Doe 2, born in 1999. T.M. is married to the defendant's son, J.M. T.M. has three children by J.M., Jane

Page 6

Doe 1, Jane Doe 2, and J., and three other children. The defendant is the grandfather of Jane Does 1 and 2.

Between 2006 and 2007, T.M. and J.M. lived in Fontana. At some point in 2008, they lived with the defendant and his wife. They stayed with the defendant's family because T.M.'s then teenage daughter R. had been raped; R.'s boss, who knew where the family lived, had followed her home and raped her. R. suffered from anxiety attacks as a result and the family moved from San Bernardino County to T.M.'s mother's house for a time, then to the defendant's home, and in approximately June 2008, they moved to their own residence. Between 2006 and 2009, T.M. left Jane Does 1 and 2 with defendant while she was at work, or the defendant would pick them up and take them to his house.

On January 23, 2009, as T.M. drove with her daughters to her sister's house, Jane Doe 1 talked about a teacher who warned students of a person who was impersonating a police officer to pull people over. In response to these comments, T.M. talked to her daughters about strangers and asked if anyone ever touched them in a way that made them feel uncomfortable. T.M. gave an example of an inappropriate touching by a stranger pretending to be a friend, and rubbed Jane Doe 1's leg. When T.M. did this, Jane Doe 1's eyes got big, alarming T.M. Jane Doe 1 then disclosed that her grandfather (the defendant) touches her.

After further questioning, Jane Doe 1 disclosed that defendant had touched her on her "twinkie," the word she used to describe her vagina, that he put his hands in his pants and made her squeeze his "twinkie", and that while she was at her grandparents' house on

Page 7

a previous weekend, he had put her on her belly, pulled down her pants, and put his "twinkie" on her butt. When they arrived at T.M.'s sister's house, T.M. contacted the police to make a report. After T.M. obtained a restraining order against defendant, Jane Doe 2 disclosed to her older sister R. and her mother that she, too, had been inappropriately touched by defendant.

On February 10, 2009, both Jane Doe 1 and Jane Doe 2 were interviewed by Sara Walker, a Child Protective Services (CPS) interviewer for RCAT.2 During the interview, Jane Doe 1 described multiple incidents in which defendant touched her vaginal area with his hands, squeezed her "twinkie" inside her pants, and licked her ear. The first incident occurred at Jane Doe's house in Fontana. Defendant brought donuts to the house in the morning, sat Jane Doe 1 on his lap, and touched her "twinkie." A few weeks later, he fondled her again and licked her ear. On one occasion, he lay down on a couch with Jane Doe 1, pulled his pants down and made her squeeze his penis. Jane Doe 1 could not get away because he was strong, but she said she had to use the restroom and moved away.

On another occasion, in the bedroom of one of his sons, defendant put Jane Doe 1 on her tummy on the bed, pulled his penis out, and rubbed his penis against her buttocks. He stopped when Jane Doe 2 entered the room. Defendant never said anything to Jane Doe 1 about not telling anyone. Jane Doe 2 disclosed to Jane Doe 1 that something had happened to her also.

Page 8

Jane Doe 2 was also interviewed by the CPS worker. Jane Doe 2 informed Walker that defendant would attempt to touch her, but she would make up a reason to get away. Jane Doe 2 described how defendant would try to stick his hands down her pants, but indicated that she always got away. Defendant's hands got inside her pants only once.

Defendant was charged with two counts of lewd and lascivious acts by force or duress upon a child under the age of 14, respecting Jane Doe 1 (§ 288, subd. (b)(1), counts 1, 2), and two counts of lewd and lascivious acts upon a child under the age of 14,...

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