Filed 11/24/14 P. v. Orduno CA6
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               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.



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       Counts 11 Through 14 - Victim J.D.
       Appellant’s step-sister, J.D. who is nine years younger than he, stated that when
she was in the first grade, defendant began to touch her sexually and that this would
happen often. By the time J.D. was in the second grade, “it was happening all the time.”
Defendant would touch her genitals over her underwear, digitally penetrate her vagina,
and place J.D.’s hands on his penis and then control her hands with his hands until he
ejaculated. J.D. said that defendant continued to molest her regularly until she was
11 years old.
       J.D. stated that she never reported defendant’s molestation to her mother because
defendant told her if she did so, her mother would have a heart attack and die. When she
eventually told her mother about the molestations when she was 15 or 16 years old, J.D.’s
mother sided with defendant and did not believe her.
       When J.D. was in third or fourth grade, defendant walked into a room where J.D.
was sitting on a couch with defendant’s father, Francisco Gonzalez. At the time, J.D. had
her hand inside Francisco’s pants. Defendant told J.D. to go outside and asked her,
“‘Does my dad touch you?’” J.D. responded, “[y]es,” and defendant asked her, “‘Does he
touch you like I touch you?’”
       In January 1992, J.D. told a school nurse that her stepfather, Francisco Gonzalez
Martinez, had sexually molested her when she was four years old. The authorities were
notified and Jessica was placed in protective custody.
       Defendant was charged by information in 2011 with aggravated sexual assault on
a child under 14 (Pen. Code, § 269; counts 1-4), lewd or lascivious act on a child by
force, violence, duress, menace or fear (§ 288, subd. (b)(1); counts 5-10); non-forcible
lewd or lascivious acts on a child (§ 288, subd. (a); counts 11-14). The information also
alleged an enhancement based on the fact that defendant committed the acts alleged in
counts 5 through 10 against multiple victims (§667.61, subds. (b) & (e)).

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       The information alleged that counts 11 through 14 occurred between
January 1, 1988 and June 10, 1991. The alleged victim in these counts, J.D., was 34
years old at the time of trial.
       Defendant was tried by a jury in 2012. During trial, the prosecution presented
propensity evidence of uncharged molestation of defendant’s nephew, E.D., under
Evidence Code section 1108. E.D. testified that when he was in kindergarten, defendant
began touching him “in a sexual way.” This conduct continued for about two years.
During that two-year period, appellant repeatedly fondled E.D.’s genitals, groped him,
orally copulated him, and/or pulled down his pants and inserted his erect penis inside
E.D.’s buttocks.
       The jury convicted defendant of all 14 counts alleged in the information. The
court sentenced appellant to state prison for a total term of 90 years to life, plus 14 years
for the multiple victim enhancement.
                                         DISCUSSION
       Defendant argues that the court erred in failing to instruct the jury that
corroborating evidence was necessary in order to find him guilty of the counts 11 through
14 that related to the victim, J.D. Specifically, defendant asserts the court should have
instructed the jury that it needed to find clear and convincing evidence that testimony
regarding those counts was corroborated, because the allegations supporting those counts
were more than 20 years old.
       The statute of limitations for sex offenses is six years. (§ 800) However, an
exception to this general rule is set forth in section 803, subdivision (g), which allows
prosecution of specified sexual offenses beyond the statute of limitations if the filing
occurs within one year of the victim’s report to law enforcement, the crime involves
substantial sexual conduct, and there is independent evidence that clearly and
convincingly corroborates the victim’s allegations.

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       Here, the jury was not instructed that J.D.’s allegations to support counts 11
through 14 needed corroborating evidence. The jury was instructed with CALCRIM
No. 301: “The testimony of only one witness can prove any fact. Before you conclude
that the testimony of one witness proves a fact, you should carefully review all the
evidence.” This is an accurate instruction in general, but with regard to counts 11 through
14, there is a predicate requirement that there exist independent corroborating evidence
for the statute of limitations extension to apply. (§ 803, subd. (f)(2)(C).)
       Defense counsel did not request a corroborating instruction at trial, but did argue
to the jury that the molestation allegations lacked corroboration. Citing People v.
Thomas (2007) 146 Cal.App.4th 1278, 1281-1282 (Thomas) (disapproved on other
grounds in People v. Shockley (2013) 58 Cal.4th 400), the Attorney General asserts
defendant’s failure to request the instruction waived his right to raise it on appeal.
Defendant asserts he did not waive the issue for the purpose of appeal, because his
counsel argued that the allegations of the molestation were false, and that they lacked
corroboration.
       Defendant argues that regardless of whether he raised the issue at trial, the court
had a sua sponte duty to instruct the jury that corroboration was required for counts 11
through 14. However, based on our review of the evidence presented at trial, we find that
even if instructional error occurred, defendant’s convictions here must be affirmed
because court’s alleged error was harmless under People v. Watson (1956) 46 Cal.2d 818,
836 (Watson).2




       2
        We do not apply the more stringent standard for prejudicial error under
Chapman v. California (1967) 386 U.S. 18, because instructional error regarding
corroboration is not equivalent to an element under Apprendi v. New Jersey (2000) 530
U.S. 466. (See Thomas, supra, 146 Cal.App.4th at pp. 1289–1291.)


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       Under Watson, we examine the “entire cause, including the evidence” and
determine whether it is “ ‘reasonably probable’ defendant would have obtained a ‘more
favorable’ outcome had the instructional error not occurred.” (People v. Moye (2009) 47
Cal.4th 537, 541.)
       Here, there was ample evidence of additional molestation in the form of the
uncharged sexual conduct against E.D. to satisfy the corroboration requirement of
section 803, subdivision (f)(2)(C). Evidence of similar sexual misconduct against an
uncharged victim, standing alone, can constitute sufficient corroboration for purposes of
section 803, subdivision (f)(2)(C). (People v. Mabini (2001) 92 Cal.App.4th 654, 659
(Mabini); see also People v. Ruiloba (2005) 131 Cal.App.4th 674, 683 [“Evidence of a
person’s propensity to do what the victim has alleged corroborates the victim’s
allegation. [Citation.] Further, the corroboration does not have to be sufficient to support
a conviction.”].) Here, the prosecutor introduced evidence of uncharged sexual conduct
involving defendant and his nephew when his nephew was in kindergarten, and
continuing for two years. Although E.D. was a boy and J.D. was a girl at the time that
defendant is alleged to have molested them, defendant’s conduct toward them, both in
their ages at the time of the abuse and the sexual acts that occurred, was strikingly
similar.
       Moreover, in addition to the uncharged conduct involving E.D., which alone
provides corroboration of J.D.’s testimony (Mabini, supra, 92 Cal.App.4th at p. 659),
there was also corroborating evidence in the form of defendant’s molestation of M.D.
Here, the jury convicted defendant of 10 counts of molestation as to M.D., a victim that
did not require corroboration. (See Thomas, supra, 146 Cal.App.4th at p. 1290 [the court
concluded that critical corroboration was the evidence that defendant committed sexual
offenses against three other victims besides the victim that required corroboration. The
fact that the jury found true beyond a reasonable doubt that the three other victims were

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also molested by the defendant was sufficient corroboration of the additional victim’s
testimony].) In addition, defendant’s abuse of all three children in this case was similar
in many respects. All three victims were related to defendant, and he was in a position to
care for them. With regard to M.D. and J.D., defendant forced them to submit to his
sexual behavior through threats, and ensured their silence would be maintained through
threats of future consequences.
       In this case, the court’s failure to instruct the jury sua sponte on the need for
corroboration, even if error, was harmless because it is not reasonably probable defendant
would have obtained a better outcome had the court properly instructed the jury.
(Thomas, supra, 146 Cal.App.4th at p. 1291 [finding any error in failing to instruct the
jury regarding section 803, subdivision (f), was not prejudicial].)
                                        DISPOSITION
       The judgment is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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