People v. Orduno CA6

Filed 11/24/14 P. v. Orduno CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039421 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1100431)

v.

JORGE GONZALES ORDUNO,

Defendant and Appellant.

Defendant Jorge Gonzales Orduno appeals a judgment of conviction following jury trial. He was convicted of four counts of aggravated sexual assault on a child under the age of 14 (Pen. Code, § 269),1 six counts of committing a lewd and lascivious act on a child by force, violence, duress, menace, or fear (§ 288, subd. (b)(1)), and four counts of committing lewd or lascivious acts on a child (§ 288, subd. (a)). On appeal, defendant asserts that because the alleged conduct for counts 11 through 14 occurred more than 20 years ago, the trial court erred by not instructing the jury that corroborating evidence was necessary to find him guilty.

1 All further statutory references are to the Penal Code.

STATEMENT OF THE FACTS AND CASE This case involves sexual abuse of two separate victims over a period of years. Counts 1 through 10 involved defendant’s daughter, M.D., and counts 11 through 14 involved defendant’s step-sister, J.D. Counts 1 Through 10 - Victim M.D. When she was 19 years old, defendant’s daughter, M.D., went to the San Jose Police Department to report that she had been physically abused and sexually molested as a child by defendant. M.D. told the police that she did not report the abuse earlier because defendant threatened that if she told anyone about the molestations she would never see her mother again. M.D. decided to go to the police when she was 19 years old because defendant came to her house to see her daughter, and M.D. was afraid that defendant would molest her. M.D. told police that defendant began molesting her around the time she was five years old. Defendant would touch her vagina and breasts, digitally penetrate her vagina, and penetrate her vagina with his penis. M.D. would attempt to resist defendant by trying to push him away and/or kicking him or yelling at him to stop. He would push her back or tell her “to shut up or put his hand on [her] mouth.” He also repeatedly held her down to prevent her from resisting. Defendant eventually stopped molesting M.D. when she was 10 or 11 years old and in the seventh grade, because she told defendant that if he did not stop, she would tell the police or a teacher. After M.D. reported the molestations to police, they asked her to make a “pretext call” to defendant. During her conversation with defendant, M.D. asked defendant why he molested her, and defendant admitted he had “fucked up.” Defendant also told M.D. he did not “want to remember,” referring to the molestation.