People v. Ortega
| Decision Date | 22 September 2016 |
| Docket Number | G050328 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. VICTOR TEODORO ORTEGA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAppeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
* * * The trial court sentenced defendant Victor Teodoro Ortega to two consecutive state prison terms of 25 years-to-life after a jury found him guilty on two counts of forcible rape with findings that he personally used a weapon in committing each crime and committed the offense against multiple victims. On appeal, defendant contends the trial court committed reversible error in allowing the prosecution to elicit from one complaining witness on direct examination that she had no criminal record. We conclude any error in admitting this testimony was, at most, harmless error and affirm the judgment.
Around midnight one evening in late October 2007, A.D. was working as a prostitute along Harbor Boulevard near Hazard Avenue. A man driving a white truck with a camper shell pulled to the curb. A.D. opened the passenger-side door, asked the man if he "wanted a date," and began to enter the vehicle. The man reached over and pulled her into the truck and then drove off at a high rate of speed. According to A.D., the man held an ice pick to her neck and said, "I want your panocha." After driving for several minutes, the man pulled into a deserted commercial area, walked around the vehicle, reentered it, and raped A.D as she sat in the truck's passenger seat. During the rape the man held either an ice pick or a knife against her. At one point he also choked A.D. After ejaculating, the man then ordered A.D. to get out of the truck and drove away. A. D. flagged down another motorist who called the police.
Several police officers interviewed A.D. and then transported her to a hospital where a nurse conducted a sexual assault examination. At trial, A.D. admitted lying to the officers by claiming to be a tourist accosted and dragged into the truck at the corner of Harbor Boulevard and Katella Avenue as she returned to her hotel from a convenience store.
A.D. described the man who raped her as Hispanic, short with black, curly hair in a pony-tail. She failed to identify anyone as the man who raped her when shown a photographic lineup in 2011 and was unable to identify defendant as the perpetrator at trial.
The parties stipulated that in 2013, A.D. paid to use a public shower stall at a travel plaza in Wesley, California. After several minutes A.D. began banging on the shower stall door. She told the employee and a police officer that she heard the voice of a man named Jackson in the stall next to her and that Jackson was attempting to kill her. No one was found in the adjacent shower stalls and the concrete walls separating them prohibited sound from passing between the stalls.
The woman named as the complaining witness in the second rape charge was M.S. She was an unwilling participant at trial. The court had to issue a bench warrant to obtain her appearance in court.
On the stand, M.S. testified that in the early morning hours one day in late May 2009, she and her then boyfriend went to a strip club located on Harbor Boulevard in Santa Ana. Upon their arrival the couple learned the club was closed. The two argued for a short time and then went in separate directions looking for their car. A police officer who later questioned M.S., testified she did not mention the strip club and told him she was walking northbound along Harbor Boulevard at a location approximately 50 yards from the club's location.
According to M.S., as she walked along the street, a truck she variously described as tan, beige, or white in color, pulled up cutting her off. She identified defendant as the person driving the truck. He forced M.S. into the vehicle. Claiming she was "buzzed" from drinking that night and because she blocked out some of the incident, M.S. initially was unclear on how defendant forced her into the truck. On further questioning, she testified that she believed he reached over, grabbed her jacket, and pulled her into the vehicle. The police officer who questioned M.S. testified she said thetruck pulled into the driveway of a parking lot and, after she walked in front of it, the passenger door swung open and the driver pulled her into the vehicle.
After dragging M.S. into the truck, defendant drove off at a high rate of speed. He held a sharp metal object against her ribs. Although M.S. never saw the object, she believed it was a knife. M.S. testified she attempted to open the passenger door a few times, but defendant threatened her and placed the knife against her neck. According to the officer who interviewed M.S., she said the suspect was not driving fast and she denied attempting to get out of the truck.
M.S. claimed defendant parked the vehicle, said "I want some pussy," climbed over the center console, and raped her. During the rape, defendant also choked her. M.S. repeatedly denied consenting to having sex with defendant.
After the rape, M.S. claimed she grabbed her jacket, jumped out of the truck, and locked herself in the bathroom at a nearby gas station. She then called her boyfriend who picked her up. M.S. testified that she wanted to go home, but her boyfriend insisted on taking her to a hospital. According to M.S., the two drove to two hospitals, one being the Los Alamitos Medical Center, but found each hospital's emergency room closed. They eventually ended up at Long Beach Memorial Hospital. At trial, the parties stipulated that in May 2009, the Los Alamitos Medical Center's emergency room was open 24 hours a day.
Officers from the Santa Ana Police Department took M.S. to Anaheim Memorial Hospital where a sexual assault examination was conducted. M.S. testified she became upset with the police officers because they repeatedly asked her if she was raped. The officer who interviewed M.S. agreed she became "upset" during the questioning, and described her as "a little short tempered," and "bothered by some of the questions" he asked.
A nurse who examined M.S. at the hospital testified M.S. denied that she consumed any alcohol within the past 12 hours. The nurse did not see any abrasions, scratches, cuts, or bruises on M.S.'s body.
Forensic scientists with the Orange County Crime Laboratory obtained DNA profiles from semen samples collected from A.D. and M.S. The results were entered into a data base and it was then determined the semen was provided by the same man. Subsequently, the results from both cases matched the DNA profile obtained from defendant.
In late 2012, the police questioned defendant. He admitted once owning a white truck that he had recently sold to a cousin. Although he initially denied it, defendant eventually acknowledged he picked up prostitutes along Harbor Boulevard in Santa Ana. But he continued to deny forcing any woman to have sex with him. After further questioning, defendant admitted engaging in sexual intercourse with A.D. in return for $80. He claimed that during intercourse she became upset because he was taking too long. Defendant acknowledged he then used a screwdriver to force A.D. to continue having intercourse.
The defense called two witnesses. A clinical psychologist concluded defendant's IQ placed him in "the mild mental retardation stage," explaining that meant he had "impaired judgment" and was "subject to misinterpret[ing] information." An obstetrician/gynecologist who reviewed the sexual assault reports and photographs of both A.D. and M.S., testified the pictures did not show any bruising on either woman and A.D.'s wounds were not consistent with being cut by a knife. He also claimed the photographs of M.S. did not indicate a weapon was used on her.
The defense's theory of the case was that defendant's sexual encounters with A.D. and M.S. were consensual and the complaining witnesses were lying about being forcibly raped by him. During opening statement, defense counsel summarized what he believed would be the testimony of each complaining witness, emphasizing the discrepancies in their descriptions of the sexual encounters. He then concluded:
During direct examination, M.S. testified without objection that she was not a prostitute or working "as a street girl." Over a relevancy objection, the prosecutor asked M.S. if she had any convictions for prostitution. M.S. responded, "I have no convictions for nothing." The prosecutor then asked, "You have no criminal history, do you?" Defense counsel again objected and requested a side bar conference where he moved for a mistrial on the same ground. The trial court overruled the objection and denied the motion for the following reason: ...
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