People v. Ortiz, H036150

CourtCalifornia Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO ORTIZ, Defendant and Appellant.
Docket NumberH036150
Decision Date04 May 2012

THE PEOPLE, Plaintiff and Respondent,
JOSE ANTONIO ORTIZ, Defendant and Appellant.



Dated: May 4, 2012


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. CC941508)

Jose Antonio Ortiz appeals from his judgment of conviction of multiple sex offenses. He was sentenced to a total prison term of 120 years consecutive to 21 years. We have reviewed his contentions and will now affirm the judgment as modified.

A. Procedural History

On June 17, 2010, a third-amended information containing five counts was filed against defendant. Counts one and two charged defendant with forcible lewd or lascivious acts against A., a child under the age of 14 years, committed on or about and between January 1, 2008 and April 22, 2009. (Pen. Code, § 288, subd. (b)(1).)1 Counts three and four charged him with aggravated sexual assault against N., a child under 14 and 10 or more years younger than defendant, by the commission of rape (§ 261, subd.

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(a)(2)). (§ 269.) Count three was alleged to have occurred on or about and between January 1, 1995 and September 15, 1995. Count four was alleged to have occurred on or about and between September 15, 1995 and September 15, 1996. Count five charged defendant with a forcible lewd or lascivious act against N., a child under the age of 14 years, committed on or about and between January 1, 1996 and September 15, 1996. The information also alleged, as to each of the three forcible lewd or lascivious act counts, that defendant committed an offense set forth in section 667.61, subdivision (c) against more than one victim.2 (See § 667.61, subds. (b), (e).)

The information included a prior prison term allegation, arising from a conviction of corporal punishment of a child (§ 273 d, subd. (a)), with respect to counts one and two. (§ 667.5, subd. (b).) It also alleged a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)) based on a New York felony conviction of attempted assault in the second degree.

Following trial, a jury found defendant guilty of counts one, two, four, and five but not guilty as to count three. The jury found the multiple victim allegations true as to counts one, two, and five. After defendant waived his right to a jury trial, the court found the alleged priors to be true.

B Evidence

1. Prosecution Case

The parties stipulated that defendant was born on August 6, 1950. N. was born in September 1986. N.'s mother met defendant when N. was two years old and they married.

N., who was 23 years old at the time of the jury trial in June 2010, identified defendant at trial. At trial, N. admitted that she never had a good relationship with

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defendant and there was a lot of bickering when she was growing up. N. acknowledged that she would talk back to defendant and be sarcastic or sassy and that defendant wanted respect and wanted children to do as told.

When N. was little, she was scared of defendant because he would hurt her physically. "If [she] did something wrong in his eyes, he would grab [her] and throw [her] . . . on the bed and hit [her] with a belt." At trial, she recalled defendant often hitting her mother when she was young and yelling. Defendant started sexually touching her when she was a little girl. He touched her many times.

During one incident in the spring or summer, N. fell asleep on her bed in the living room, which also served as her bedroom in their one bedroom apartment, and she woke up to find defendant lying on top of her. She had gone to sleep wearing blue overalls and "a peachy-pink shirt," but when she awoke, her overalls and underwear were off. It was daytime and her mother was not at home. Defendant was "rubbing himself" on N., moving up and down, and she could feel him inside her. It hurt. N. was scared. The incident ended when defendant got off N. and told her to get in the shower. N. saw "white stuff," which she later realized was semen, on the floor. Defendant had told her to call it milk. Defendant warned N. not to tell her mother and N. did not tell her mother when her mother came home. Defendant said that, if she did, her mother would call the police, who would come and take her away from her mother.

N. testified that incidents involving defendant putting his penis into N.'s vagina occurred more than five times but less than 10 times. N. would tell defendant to stop and that it hurt. Sometimes he would stop and sometimes he would keep going. Sometimes N. would push defendant or kick him to try to get him away from her but that did not work. N. indicated that sexual intercourse happened more than once, when she was eight years old or in fourth grade and at least once when she was nine years old. She attended

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the same school when she was eight, nine, and 10 years old. N. turned eight years old in September 1994 and nine years old in September 1995.

In addition to incidents involving sexual intercourse, there were incidents involving other types of sexual touching by defendant. N. recalled an incident when defendant threw her onto the bed in the bedroom and she was struggling to get away and screaming. Her mother was at work. To get her to comply, defendant hit her with his hand, both with an open palm and a closed fist. He also told her to stop moving. He took off her clothes, flipped her over and started rubbing his penis on her buttocks.

N. also remembered another incident when defendant rubbed his penis on the outside of her vagina. Defendant had done that more than once.

When N. came home from school at about 3:30 p.m., her mother was still at work. N. indicated that sometimes defendant would try to bribe her by telling her she could stay home if she did not want to go to school. She remembered one time that defendant made that offer while "he was sitting really close to [N.]," "he was rubbing [her] leg" as he spoke, and N. "felt very uncomfortable."

In the summer of 1996, when N. was still nine years old, an incident occurred in which she awoke with her clothes on and defendant was naked and on top of her. Defendant was rubbing his penis on her vagina. N. was scared of him. She got away from him.

When N. was about 10 years old, defendant was in and out of their lives and not always living with them. Defendant stopped molesting N. around the time she turned 10 in September 1996.

N. could not recall talking to a social worker by the name of Maria in March 1997.

N.'s half-sister A. was born in February 1998. Defendant, who was A.'s father, was not around when A. was born; he was already in New York. The parties stipulated

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that defendant was absent from California and in New York from on or about August 6, 1997 to on or about December 6, 2001.

When N. was about 13, after defendant was no longer living with them, she wrote her mother a letter in which she revealed that defendant had touched her and she was scared that he would touch her again if he ever came back. She handed her mother the letter and later, after her mother had read it, her mother went to N. and asked if everything she had said was true. Her mother cried and held her and asked why N. had not told her before. N. had explained that defendant had scared her and told her that she would be taken away from her mother and "he would hurt her." N. said she was very scared for herself and scared for her sister and she kept repeating that she did not want him to come back.

N.'s mother subsequently spoke with defendant who said N. was lying. N. told her mother that she was not lying and her mother told N. that she did not want to talk about it anymore. Her mother never reported the molestations to police.

When N. was about 13 or 14 years old, N. told her best friend about defendant touching her. Sometime later, when she was about 14 years old, N. also told that friend's father, whom she trusted. They knew N.'s birth father.

Defendant came back to live with the family.

At trial, N. acknowledged that, in the past, police or social workers had asked her whether she was being molested by defendant and she had denied being molested. N. explained that she had been scared.

In April 2002, when she was 15, N. spoke with a social worker named Manuel Valdez. N. told him that she was not being molested by anyone and her sister A. was safe from anyone bothering her. N. said she was scared and did not want her sister to be taken away.

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In July 2002, police officers came to N.'s home to speak with her. When N. entered the room, she saw defendant sitting on the couch, holding A. "between his legs . . . ." N. became scared that defendant could hurt her sister. When she spoke privately with an officer outside the home and was asked whether she had ever been molested, she denied it. She wrote, dated, and signed a statement indicating that she did not want to speak to any officer and she had never been molested.

In early September 2002, when N. was 15 years old, she returned home and heard defendant's voice coming from the backyard. N. went inside and...

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