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People v. Ortega

California Court of Appeals, Fourth District, Second Division

August 21, 2013

THE PEOPLE, Plaintiff and Respondent,
v.
ENRIQUE ORTEGA, Defendant and Appellant.

CERTIFIED FOR PARTIAL PUBLICATION [*]

APPEAL from the Superior Court of Riverside County, Super. Ct. No. RIF105398, Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).

Daniel J. Kessler, 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, and Kevin Vienna and Heidi T. Salerno, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RICHLI, J.

Around 1993, when his daughter was about nine years old, defendant Enrique Ortega started groping her breasts and vaginal area. In 1996, when she was 12 years old, she made a partial disclosure to her mother, stating only that defendant had touched her breast once. As a result, her mother made defendant move out of the house. In 1999, when his daughter was 15 years old, defendant moved back in and started groping her again. In 2002, when she was 18 years old, defendant left the family to live with another woman. At that point, his daughter finally disclosed the full scope of the molestation.

In 2003, defendant was charged with nine counts of a nonforcible lewd act on a child under 14 (Pen. Code, § 288, subd. (a)) and 13 counts of a lewd act on a child under 16 (Pen. Code, § 288, subd. (c)(1)). He fled the country. In 2010, he was located and extradited. In 2011, his trial on these charges resulted in a hung jury.

The prosecution then filed an amended information charging defendant with six counts of a nonforcible lewd act on a child under 14 and six counts of a lewd act on a child under 16. In defendant’s second trial, the jury found him guilty as charged. He was sentenced to a total of 16 years in prison, plus the usual fines and fees.

Defendant now contends (among other things) that, with respect to the six counts of a lewd act on a child under 14, the statute of limitations had run. In the published portion of this opinion, we will hold that, as a matter of law, the statute of limitations had not run, because the evidence showed that the molestations continued to occur at least once a week throughout 1995, and because the limitations period, initially six years, was extended to 10 years before the six-year period had expired. In the nonpublished portion, we find no other prejudicial error. Hence, we will affirm.

I

FACTUAL BACKGROUND

A. Sexual Touchings: 1993-1996.

Defendant and his wife had two children—Jane Doe[1] and Jane’s younger brother. Jane was born in January 1984.

Starting when Jane was eight or nine and in fourth or fifth grade, [2] defendant began touching her sexually. Typically, when Jane was lying down, in bed or on a couch, defendant would approach her and start massaging her back. He would touch her breasts or her buttocks. Then he would rub her vaginal area, under her clothing. This happened at least once a week. Jane wanted to tell her mother, but she was too embarrassed, and she thought she would get in trouble.

In January 1996, when Jane was 12 and in sixth grade, she was upset about something (by the time of trial, she no longer remembered what), so she told her mother that defendant had touched her breast; she did not disclose any of the other sexual touching. Her mother immediately confronted defendant and “kicked him out.”

The family started going to counseling. The counselor reported the breast touching to the police. As a result, in August 1996, defendant pleaded guilty to one count of child molestation in violation of Penal Code section 647.6, a misdemeanor, allegedly committed in December 1995.

B. Renewed Sexual Touchings, Mirrors, and Holes in the Wall: 1999-2002.

In early 1999, Jane’s mother let defendant move back in. About six months later, defendant started touching Jane sexually again. Typically, when Jane was in bed, asleep, defendant would rub her back, then touch her breasts and buttocks and rub her vagina on the outside of her clothes. At first, Jane felt frozen and could not move. Then she would pretend she was just waking up, and he would stop. This happened about once or twice a week, though some weeks, it did not happen at all. Jane did not tell anybody about it because she was afraid of breaking up the family again.

When Jane was about 16, she had a lock put on her bedroom door. After that, the touchings “pretty much stopped.” “[A] couple [of] times, ” however, when Jane was getting dressed for school, she saw a small mirror slide under the door. It was a mechanic’s mirror on a pole, such as defendant used in his work. This stopped after she stuffed a towel under the door.

One time, Jane looked into an uncovered cable outlet between her room and her brother’s room and saw defendant looking back at her. She moved her nightstand to cover the outlet.

Jane started finding holes in the walls of her room. She blocked them with toilet paper or plaster. Jane told her mother that she thought defendant was watching her through holes in the wall, but her mother did not believe her.

C. Disclosure: 2002.

In January or February 2002, defendant moved out. The family soon realized that he was having an affair with his wife’s 23-year-old niece, Patricia.

Patricia promptly became pregnant. Patricia would telephone Jane and other family members and mock them; she said that Jane and her family would have to leave their house because it belonged to her now. In response, Jane told Patricia that she was going to beat her up. Meanwhile, defendant told Jane that he did not want her or her brother to visit him at work or telephone him.

Jane felt betrayed because “[she] had kept quiet to keep [her] family together” and now it was “pointless.” Hence, on February 11, 2002, Jane called the police. At this point, she was 18.

Deputy Timothy Cleary conducted a preliminary interview of Jane. She told him that in 1996, she had reported that defendant had touched her breast, but actually, there had been additional incidents of sexual abuse; when she was between 9 and 12, defendant had touched her breast and vaginal area on a regular basis.

Jane also said that defendant was no longer touching her sexually; however, he would caress her hair and rub her back, supposedly to wake her up. She said she had put a lock on her door because she was afraid he would start touching her again. She did not say that defendant had in fact resumed touching her sexually. She mentioned the mirror under her door but did not mention the holes in the wall.

In April 2002, Officer Matthew Aveling, a trained child sex crime investigator, conducted a follow-up interview. Jane’s statement to him was essentially consistent with her testimony at trial.

D. Pretext Meeting.

In May 2002, at Officer Aveling’s suggestion, Jane engaged in a pretext meeting with defendant.

During the meeting, Jane never explicitly accused defendant of a sexual offense. For example, she started by saying she wanted to talk “[a]bout everything that’s happened.” However, she did say, “I’m not talking about the divorce.” She asked him to say he was sorry.

Defendant said: “You know I’m sorry what I did. I—I’m not really sorry for what I did, I’m really sorry that I hurt you. I didn’t think you were gonna take it like that.” Similarly, he said: “I am sorry. Not for what happened, I’m sorry... that you got hurt.”

Jane did say: “And you think I never fuckin’ saw you? With a mirror under my door?” Defendant replied: “Hey. I’m not talking about that.” She accused him of making holes in the walls, but he denied this.

Jane also said: “I was like, asleep in my room, and you would come in and try to wake me up. And you thought I was asleep. I wasn’t asleep.” Defendant responded: “Why didn’t you ever answer?” “Why didn’t you ...


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