People v. Ortegagileta CA2/3

INTRODUCTION

A jury convicted Hernan Ortegagileta (Ortega)1 of one count of sexual penetration of a child under 10 years old and six counts of committing a lewd act on a child under 14 years old. The trial court sentenced Ortega to 68 years to life in prison. On appeal, Ortega contends: (1) his lewd act conviction in Count 7 is time-barred; (2) the court erred in failing to instruct the jury on attempted sexual penetration as a lesser included offense in Count 1; and (3) the court failed to exercise its sentencing discretion with respect to his lewd act convictions in Counts 2 through 6. The People agree, and so do we, that Count 7 is time-barred and that the court failed to exercise its sentencing discretion as to Counts 2 through 6. We also conclude the court prejudicially erred when it failed to instruct the jury on attempted sexual penetration as a lesser included offense in Count 1. We therefore reverse Ortega’s convictions on Count 1 and 7, vacate his sentence, and remand the matter for further proceedings.

FACTUAL BACKGROUND

1. Prosecution Evidence 1.1. I. (Count 7) I., who was born on August 12, 1986, is Ortega’s daughter. Ortega sexually abused I. when she was…