The People v. Ortega
2013 Cal. App. LEXIS 669
Cal. Ct. App.2013Background
- Victim (Jane) testified defendant began weekly sexual touching (breasts, vaginal area) starting around ages 8–9 and continuing through about age 12; she disclosed a single breast touching to her mother in Jan 1996, leading to defendant’s removal from the home and a misdemeanor plea for a 1995 incident.
- Defendant moved back in 1999 and allegedly resumed touching roughly once or twice a week until about age 16, with other boundary-invasion acts (mirrors under door, holes in wall) reported.
- Full disclosure occurred in 2002 after defendant left the family; police interviews and a pretext meeting followed; defendant made partial admissions in multiple interviews (admitting pool and VapoRub incidents and that he had touched her breasts/vagina many times).
- Original criminal charges were filed in 2003 (information alleging multiple lewd acts spanning 1994–1996); defendant fled, was later extradited, tried twice (first trial hung jury), retried in 2011, convicted on amended information alleging six counts between Jan 1994 and Nov 1995, and sentenced to 16 years.
- On appeal defendant raised, inter alia, statute-of-limitations challenges to the six counts alleging acts on a child under 14 and argued trial error for failing to instruct the jury to restart deliberations after substituting an alternate juror.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Ortega) | Held |
|---|---|---|---|
| Whether prosecutions for six Penal Code §288(a) counts (charged as occurring Jan 1994–Nov 1995) were time‑barred | Victim’s testimony showed molestations occurred at least weekly through 1995; original 2003 information was timely and the amended information related back | Victim’s testimony was generic; court cannot tell whether the jurors relied on acts within the limitations period; therefore convictions on §288(a) counts are time‑barred | Affirmed: as a matter of law record shows at least weekly molestations including 1995, so six‑year limitation had not expired and the 2001 extension to a 10‑year period (and relation back) made prosecution timely |
| Whether trial court erred by failing to instruct jurors to restart deliberations after substituting an alternate juror | No prejudice: record (short pre‑substitution deliberations, defendant’s admissions, corroborating evidence) shows no reasonable probability of a different verdict | Failure to give CALCRIM No. 3575 violated state constitutional right to have every juror participate in all deliberations; verdict should be reversed unless prejudicial | Error found but harmless beyond a reasonable probability of a different outcome; conviction affirmed |
Key Cases Cited
- People v. Williams, 21 Cal.4th 335 (1999) (charging documents that reveal time‑bar on their face permit raising statute of limitations at any time; appellate review standards explained)
- People v. Smith, 98 Cal.App.4th 1182 (2002) (when victim testifies to frequent, regular molestations over a period, the record can establish commission within limitations period without jury making specific-date findings)
- People v. Angel, 70 Cal.App.4th 1141 (1999) (reversed convictions where victim’s vague testimony left open whether acts occurred inside limitations period and no statute‑of‑limitations instruction was given)
- People v. Terry, 127 Cal.App.4th 750 (2005) (discusses relation‑back and “same conduct” analysis when amended pleadings change the number of counts)
- People v. Collins, 17 Cal.3d 687 (1976) (state constitutional rule requires juror participation in all deliberations; replacement juror requires instruction to restart deliberations)
- People v. Odle, 45 Cal.3d 386 (1988) (harmless‑error analysis where alternate substituted; court balances strength of evidence and relative lengths of pre‑ and post‑substitution deliberations)