People v. Ortiz CA5

INTRODUCTION

Defendant Jose Pantoja Ortiz contends that he received ineffective assistance of counsel because his defense counsel failed to introduce expert testimony on the effects of alcohol on his ability to form the specific intent required to commit rape and sexual penetration by impersonation. We reject defendant’s claim and affirm the judgment.

PROCEDURAL SUMMARY

Defendant was charged with rape by impersonation (Pen. Code, § 261, subd. (a)(5);1 count 1) and sexual penetration by impersonation (§ 289, subd. (f); count 2). A jury found defendant guilty of both counts. Defendant was sentenced to the lower term of three years in state prison for each count, to be served concurrently.

FACTUAL SUMMARY

I. Prosecution Evidence

F.O. and defendant are brothers. On November 15, 2019, F.O. had his two brothers and their families over for a large dinner and to drink beer. F.O. and defendant started drinking around 5:00 p.m. or 6:00 p.m. At the end of the night, all the guests left except defendant. F.O. and defendant continued drinking in the garage and F.O.’s wife, G.E., went to sleep in her own bed in the master bedroom around 2:00 a.m. or 3:00 a.m. F.O. estimated that he…