Filed 9/30/26 P. v. Ortega CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A172549
v.
MANUEL ORTEGA, (San Mateo County
Super. Ct. Nos. 19SF007313A,
Defendant and Appellant.
16SF009866A)
Defendant Manuel Ortega pleaded no contest to dissuading a witness,
infliction of injury on a dating partner, and sexual battery, and the trial court
placed him on probation (case No. 16SF009866A). While on probation,
defendant was arrested and subsequently pleaded no contest to unlawful
sexual intercourse with a minor and admitted he had suffered a prior strike
(case No. 19SF007313A). After the trial court denied defendant’s motion to
dismiss the prior strike, the court sentenced him in both cases to total term of
six years in prison. Defendant appeals contending the trial court abused its
discretion in denying his Romero motion.1 We affirm the judgment but
remand for the clerk of the court to correct the minute order and abstract of
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
1
judgment in case No. 16SF009866A to conform with the court’s oral
pronouncement of judgment.
BACKGROUND
Case No. 16SF009866A
In July 2016, San Mateo County Sherriff’s officers responded to a
report of domestic violence involving sexual assault. Upon arrival, officers
found then 16-year-old Jane Doe 1 (Doe 1) who indicated then 18-year-old
defendant had physically attacked and sexually assaulted her. Doe 1
informed officers she was five weeks pregnant with defendant’s child and had
been in a “consensual romantic relationship” with defendant. Defendant
became upset when she attempted to end the relationship. He “cracked his
knuckles, grabbed [Doe 1’s] hair, pulled her off of the couch and threw her on
the floor several times,” where she remained crying. Defendant then
punched a hole in the wall, pleaded for Doe 1 to stop crying, and began
“punching himself and saying he was stupid.” Doe 1 fled the living room,
locking herself in a bedroom. Defendant grabbed a kitchen knife and forced
his way into the bedroom by using the knife to “manipulate the door lock.”
Inside the bedroom, defendant pleaded with Doe 1 not to leave him.
When she ignored him, he stated, “ ‘Ok, well if this is going to be the last
time, we’re having sex.’ ” Defendant took off all of his clothes, pulled off Doe
1’s pants and underwear, and laid on top of Doe 1. However, defendant was
“unable to force her legs open.” Doe 1 managed to flee to another bedroom,
but defendant followed her and the two began to struggle. Defendant pushed
her into a closet, where she lay on her side in the fetal position. Defendant
yelled at Doe 1 to get out of the closet and attempted to forcefully make her
leave by pulling her arms, causing bruising. He then inserted two fingers
into Doe 1’s vagina. When Doe 1 began crying, he stopped. Defendant, still
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in possession of the knife, held it to his stomach and then his throat and
threatened to kill himself if she ended the relationship. Doe 1 begged him to
leave. Defendant made Doe 1 promise she would not report the assault or he
would “return and destroy everything.” He then checked Doe 1’s phone log
history before leaving.
In 2017, the San Mateo County District Attorney filed an information
alleging one count of sexual penetration by foreign object against a minor
victim over age 14 years old (Pen. Code, § 289, subd. (a)(1)(C)—count 1),2
dissuading a witness (§ 136.1, subd. (b)(1)—count 2), infliction of injury on
someone with whom defendant had a dating relationship (§ 273.5, subd. (a)—
count 3), misdemeanor battery on someone with whom defendant had a
dating relationship (§ 243, subd. (e)(1)—count 4), misdemeanor vandalism
(§ 594, subd. (b)(2)(A)—count 5), and sexual battery by restraint (§ 243.4,
subd. (a)—count 6).
Defendant pleaded no contest to counts 2 (dissuading a witness), 3
(infliction of injury on a dating partner), and 6 (sexual battery) in exchange
for a two-year sentencing lid and dismissal of the remaining charges.
At the sentencing hearing, the People argued against probation and
requested the court sentence defendant to two years in state prison. The
prosecutor acknowledged defendant was 18 years old at the time and had no
prior criminal history but asserted “the facts of this case are egregious, and
the violence is alarming.” In particular, the victim was 16 years old and was
five weeks pregnant. Additionally, “[t]he attack” spanned multiple rooms
and involved a weapon before defendant “forcefully shoved his fingers in [the
victim’s] vagina.” The prosecution was concerned about defendant’s report
2All further statutory references are to the Penal Code, unless
otherwise indicated.
3
that he “blacked out” during the incident and that he stated he had
“separation issues with his mother when he was a child,” and that it seemed
as if he “has continued to now have these separation issues, transferring from
his mother to . . . the victim.”
Defense counsel asked the court to sentence defendant to six months’
probation. Counsel noted defendant suffered from depression and although
he had stopped treatment because of insurance, he was back receiving
counseling. Counsel reiterated that defendant admitted and took full
responsibility for the crime, and his statement to probation about “blacking
out” was “not an attempt to avoid responsibility but merely to state that he
does have these problems, and he is addressing these problems.”
Defendant also spoke, apologizing to the victim and her family. He
stated he wanted to go back to school, help his family, get counseling, and
“make sure that next time I’m in a relationship, I’m mentally stable to be in
one.”
The court found defendant’s conduct “inexcusable” but also that it was
“reflective of extraordinary immaturity and a warped sense of what the
relationship is between a man and a woman.” The court told defendant,
“You’ve got a lot of learning to do. You’re just a kid. But you have to
understand that that is completely unacceptable conduct.” The court placed
defendant on four years’ formal probation and imposed several terms and
conditions, including that he obey all laws and register as a sex offender.
Case No. 19SF007313A
Less than two years later, the Redwood City Police Department
received a report from a high school counselor of several sexual assaults that
happened to a student and occurred between January 1, and May 17, 2019.
Officers met with then 17-year-old Jane Doe 2 (Doe 2) who stated she had
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been in “consensual” dating relationship with then 21-year-old defendant
since January. Doe 2 stated she had been five weeks pregnant with
defendant’s child but had terminated the pregnancy. Doe 2’s parents were
aware of the relationship but thought defendant was 19 years old, not 21
years old.
When defendant discovered Doe 2 was still in contact with an ex-
boyfriend, he became “jealous, emotionally abusive and manipulative.” He
forced her “to block other males on social media,” required her “to send daily
screen shots of her lists of blocked contacts across various social media
platforms,” and accessed her “iPhone location so he could monitor her
whereabout at all times.” As a result of this, Doe 2 “was diagnosed with
depression.” When Doe 2 ended the relationship, defendant threatened “to
ruin the relationships between [Doe 2] and her friends and family.” He would
also “insist on moving the argument” about their relationship to Snapchat,
“knowing that messages there are automatically deleted and cannot be
saved.” In a pretext call between defendant and Doe 2, defendant “repeatedly
addressed his concern of being ‘in trouble’ aware that [Doe 2’s] parents knew
he had impregnated [her] and his true age. Towards the end of the
conversation, the defendant attempted to manipulate [Doe 2] in an attempt to
make himself the victim in this matter, stating [Doe 2] ‘had her demons too,
but at least she had the support of her family and friends.’ ” In a recorded
phone call with defendant and his mother, while defendant was in custody,
“it was discovered the defendant had lied about the age of [Doe 2] to his
family, stating she was 19.”
In July 2019, the San Mateo County District Attorney filed an
information alleging two counts of unlawful sexual intercourse with a minor
more than three years younger than defendant (§ 261.5, subd. (c)—counts 1 &
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2) and two counts of oral copulation with a person under the age of 18 years
old (§ 287, subd. (b)(1)—counts 3 & 4). It was further alleged as to count 1
that defendant inflicted great bodily injury upon Doe 2 and defendant
committed the current offense while on felony probation. The information
also alleged defendant had suffered a prior conviction of a serious felony in
case No. 16SF009866A.
In January 2020, counsel declared doubt as to defendant’s competency,
and the trial court suspended proceedings and appointed experts to examine
defendant pursuant to section 1368. Three years later, after reviewing the
experts’ reports and holding a hearing, the trial court found defendant
competent to stand trial and reinstated proceedings. Four months thereafter,
in August 2023, counsel moved to redeclare doubt as to defendant’s
competency, and the trial court denied the motion. Eight months later still,
counsel again moved to redeclare doubt as to defendant’s competency, and
the trial court again denied the motion. The entirety of the competency
proceedings took over four and half years.
Defendant eventually pleaded no contest to unlawful sexual intercourse
(count 1) and admitted his prior conviction was a strike, with an
understanding he could receive a maximum sentence of six years in prison for
the two cases (case Nos. 16SF009866A, 19SF007313A), that the judge would
consider a Romero motion, and that the remaining charges would be
dismissed. Defendant also admitted that he violated probation in case
No. 16SF009866A.
Ahead of sentencing, defendant filed a Romero motion. Defendant
noted in the instant case, case No. 19SF007313A, there had not been any
physical abuse, and he had since been free on bail for almost four years,
demonstrating he “can live a non-criminal life,” while maintaining
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employment and continuing his therapy. Defendant maintained he was the
“product of a dysfunctional household, fueled by abusive behavior of his
father toward his mother and [defendant] when he was a child, and an
overprotective ‘helicopter’ mother, whose behavior stunted [his] emotional
and social development.” Defendant suffered from “depression and anxiety,
in addition to being hampered by a borderline IQ of 89.” At 27 years old,
defendant asserted he was a “different guy than he was at 21 and 18” when
he committed his crimes.
The People opposed the motion, arguing that at 27 years old, defendant
“stands before this court having been convicted of sex crimes against two
different minors.” “Both victims report[ed] Defendant exhibiting extreme
control issues and being manipulative and demeaning.” “[T]he circumstances
of the offense, the way in which he took advantage of the victim, and the
impact his actions have had on the victim all demonstrate what a serious
offense this was.” Defendant was not halfway through his four-year
probation, when he reoffended, and he “lack[ed] insight into his criminality.”
At the sentencing hearing, the court first heard from counsel regarding
the Romero motion. Defense counsel argued defendant’s youth (that he was
18 years old when he committed the prior strike) was a mitigating
circumstance. Additionally, defendant was not “dealt a very good hand,” in
terms of his upbringing, as he was raised in a “tumultuous household” and
his mother “was overly protective of him,” which “affected him profoundly.”
Finally, defendant’s “anxiety makes it very difficult for him to process and
understand what is being said to him on things that are of a highly-emotional
content to him.” However, since he reoffended, he had been out of custody for
almost five years and had not committed any crimes, and he had maintained
employment and continued his therapy for his depression and anxiety.
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Counsel also noted the two cases were different in nature, and while the first
case “involved illicit and forceful sex acts,” this case involved having sex with
a minor more than three years younger. Defendant had done “everything
that was asked of him” while on probation the past five years, “certainly with
his therapy and trying to understand himself better.”
The People responded that defendant was on probation when he went
on “to victimize yet another child.” The prosecutor argued defendant
“consistently targeted girls that are younger than him,” “consistently
victimized them,” “impregnated them, [and] exposed them to violence.”
Counsel urged the court to sentence defendant to six years in prison.
The court also heard from Doe 2 and her parents, who expressed
frustration over the length of the process—almost six years had passed
between commitment of defendant’s crime and sentencing3—and a wish that
defendant be “held accountable for his wrongdoing and serve his time.”
Finally, defendant spoke and apologized to the victim and her family.
He stated when he “started this case, I was not a good man, that’s why I
decided to start going to therapies and seeing a psychiatrist, and they’ve
helped me realize the things that I need to change as a man to become a
better man.”
The court commenced its ruling by observing the prior strike “is
extremely concerning misconduct,” a “felony committed against a minor” who
was sexually assaulted by the defendant and who he also attempted to
dissuade. As a result, he was given a “probationary sentence” and required
to register as a sex offender. While on probation, he began a new sexual
relationship with another minor, which resulted in another pregnancy. He
3Defendant committed his crimes on or between February and May
2019 and was sentenced on January 31, 2025.
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attempted to conceal the relationship, “showing some sophistication
concerning the type of messaging that is going to take place,” using a
platform “that allowed for immediate and permanent deletion of
communications between the two of them.” He “certainly knew throughout
the entire course of his conduct that he was victimizing a minor.” The court
could not find defendant was outside the spirit of the three strikes law and
denied the Romero motion.
Next, the court turned to sentencing and addressed the aggravating
and mitigating circumstances. In mitigation, the court found defendant had
a “documented mental health history with certain diagnoses,” and he “was
under 26” years of age at the time of the offense. In aggravation, the court
found defendant was a section “290 registrant, and he, again, was victimizing
a minor,” and he was on felony probation. On balance, the court determined
the appropriate sentence was six years in prison, which consisted of the
midterm of two years for the count of unlawful sexual intercourse with a
minor, doubled to four years pursuant to the strike in case No. 19SF007313A,
and a consecutive sentence of two years, the midterm for the count of
dissuading a witness in case No. 16SF009866A. The court further imposed
two, three-year terms for the sexual battery and infliction of injury counts
(also in case No. 16SF009866A) to run concurrently.
DISCUSSION
Romero motion
Section 1385, subdivision (a) gives a trial court the discretion to dismiss
an “ ‘ “action” ’ ” in the furtherance of justice. (People v. Williams (1998)
17 Cal.4th 148, 158; ibid. [“a trial court may strike or vacate an allegation or
finding under the Three Strikes law that a defendant has previously been
convicted of a serious and/or violent felony, on its own motion, ‘in furtherance
9
of justice’ pursuant to Penal Code section 1385(a)”].) A trial court may do so
if, “ in light of the nature and circumstances of his present felonies and prior
serious and/or violent convictions, and the particulars of [the defendant’s]
background, character, and prospects,” striking the prior strike would further
the interests of justice. (Id. at p. 161.)
We review the denial of a Romero motion for abuse of discretion.
(People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) “Abuse of
discretion in failing to strike a prior conviction occurs in limited
circumstances: where the trial court is not aware of its discretion; where the
trial court considers impermissible factors; or where applying the Three
Strikes law would produce an arbitrary, capricious, or patently absurd result
under the specific facts of a particular case.” (People v. Dryden (2021)
60 Cal.App.5th 1007, 1029 (Dryden).)
The record demonstrates the trial court properly exercised its
discretion. Before denying the motion, the court began by noting it had
“reviewed the case history for the defendant.” The court then highlighted the
nature and circumstances of defendant’s conduct noting the strike involved
“extremely concerning conduct” committed against a minor. Additionally,
while defendant was on probation and required to register as a sex offender,
he began a “new sexual relationship with another minor” that resulted in
another pregnancy. Defendant attempted to conceal the relationship,
including by using a messaging App that “allowed for immediate and
permanent deletion of communications between the two of them” showing
both “sophistication” and that he “knew throughout the entire course of his
conduct that he was victimizing a minor.”
Under these circumstances, we cannot conclude the “specific facts” of
defendant’s case render application of the three strikes law “arbitrary,
10
capricious, or patently absurd.” (Dryden, supra, 60 Cal.App.5th at p. 1029;
see Carmony, supra, 33 Cal.4th at p. 378 [“ ‘[w]here the record demonstrates
that the trial court balanced the relevant facts and reached an impartial
decision in conformity with the spirit of the law, we shall affirm the trial
court’s ruling’ ”].)
Defendant contends the court abused its discretion because it did not
adequately consider the circumstances of his offenses or the particulars of his
background, character, or prospects. Namely, he asserts the court “gave no
weight” to his “troubled childhood”; that by the time of sentencing, his “prior
strike was committed almost nine years earlier when he was of diminished
culpability due to his age”; that his new felony was not violent and he “has
not engaged in any violent conduct, during the nine years since”; “[h]is most
recent offense was connected to his youth and mental health issues, and is
essentially a status offense”; and that he “has taken action to address his
mental health issues, and has been a productive member of society for almost
five years after being released” on bail and while awaiting sentencing.
In “the absence of an affirmative record to the contrary,” we presume
the trial court considered the relevant factors in ruling on a Romero motion.
(People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) Although,
defendant contends the court did not consider his youth, background, and the
time spent without an offense, the record shows defense counsel presented
briefing, a psychological evaluation, and numerous letters in support of
defendant’s request to dismiss the strike, and argued factors relating to
defendant’s youth, family background, mental health, and his lack of
criminality between the second offense and sentencing.
In response, the People noted that defendant “consistently targeted
girls that are younger than him,” “consistently victimized them,”
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“impregnated them, [and] exposed them to violence.” The People discounted,
the intervening time between his last offense and sentencing. Counsel
stated, “[o]f course he’s been on his best behavior” and is saying he is
“remorseful and saying the rights things,” but at his prior sentencing hearing
when the judge admonished him, defendant “went along” and he “said all the
right things,” but “he didn’t learn from that, and he hasn’t learned yet.” The
People also reminded the court defendant was on probation for the strike
offense when he committed the current offense.
The court, in turn, noted both at the beginning of sentencing and again
after listening to counsels’ arguments that it had reviewed all the sentencing
memoranda filed by counsel. And the mere fact that the court discussed
certain factors “does not mean that it considered only” those factors. (Myers,
supra, 69 Cal.App.4th at p. 310.) In short, defendant fails to point to
anything in the record affirmatively demonstrating the trial court
misunderstood the law. To the contrary, the record reflects that the court
properly considered whether defendant was “outside the spirit of the Three
Strikes law,” and found he was not.
For a trial court to dismiss a strike conviction under section 1385, it
must find extraordinary circumstances; for a reviewing court to find that no
reasonable person “could disagree that the criminal falls outside the spirit of
the three strikes scheme[, those circumstances] must be even more
extraordinary.” (Carmony, supra, 33 Cal.4th at p. 378.) We cannot say
defendant’s circumstances are “even more extraordinary” (ibid.) such that his
prior strike must be dismissed as a matter of law.
People v. Avila (2020) 57 Cal.App.5th 1134 (Avila), on which defendant
relies, does not convince us otherwise. In Avila, the defendant harassed two
different roadside fruit vendors, demanding payment for them to sell at a
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freeway off-ramp. When the vendors did not pay, the defendant threw bags
of oranges on the ground and stomped on them. (Id. at p. 1139.) After a jury
convicted him of attempted second degree robbery and attempted extortion,
the trial court denied his Romero motion and sentenced him to 25 years to life
plus 14 years. (Id. at p. 1139.) The Court of Appeal reversed, concluding the
trial court had erred in multiple respects. First, although the trial court
appeared to agree the prior strikes were remote in time—28 and 26 years
prior—it seemed to question whether it could consider such remoteness. (Id.
at p. 1141.) Second, the trial court mistakenly believed it could not consider
the defendant’s youth at the time of the prior strikes as a mitigating factor.
(Id. at pp. 1141–1142.) Third, the court considered impermissible factors
when it speculated about what might have occurred in the attempted
robbery/extortion offenses if the police had not been called, and the court
mischaracterized the offenses as violent crimes. (Id. at pp. 1142–1143.)
Fourth, the appellate court noted the defendant’s long history of drug
addiction, which he had never addressed. (Id. at pp. 1143–1144.) Finally,
the court observed the defendant’s sentence meant “he will likely die in
prison,” which was an “unjust” consequence the trial court appeared not to
consider. (Id. at p. 1144.) The Avila court thus concluded “no reasonable
person could agree that the sentence imposed on Avila was just.” (Id. at
p. 1145.)
The instant record is not remotely comparable to that in Avila. In
Avila a quarter of a century had passed between the defendant’s most recent
strike and his commitment offense; here, only two years had passed between
defendant’s strike offense and the current offense. Indeed, defendant was
still on probation when he committed the current offense. Nor is this a case
where the defendant is being sentenced to life in prison for merely
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“squash[ing] oranges.” (Avila, supra, 57 Cal.App.5th at p. 1147.) The
circumstances of the prior strike and underlying offense are, as we have
recounted, far more serious. Defendant committed multiple felony sexual
offenses against minor victims. Defendant is also not facing a life sentence.
Rather, he was sentenced to six years in prison, and at the time of sentencing
he was 27 years old. Moreover, unlike in Avila, the record does not suggest
that the trial court misunderstood the factors it could consider and that were
urged by defendant in ruling on the motion to strike. (See People v. Czirban
(2021) 67 Cal.App.5th 1073, 1097 [sentencing error not presumed from a
silent record].)
While some of the factors defendant identified might have supported
the court’s ruling if it had decided to dismiss his prior strike, the court ruled
to the contrary. A “ ‘ “decision will not be reversed merely because reasonable
people might disagree. ‘An appellate tribunal is neither authorized nor
warranted in substituting its judgment for the judgment of the trial
judge.’ ” ’ ” (Carmony, supra, 33 Cal.4th at p. 377.) Since “[n]o error occurs if
the trial court evaluates all relevant circumstances to ensure that the
punishment fits the offense and the offender,” we conclude the trial court did
not abuse its discretion when it denied defendant’s Romero motion. (People v.
Shaw (2020) 56 Cal.App.5th 582, 587.)
Abstract of Judgment and Minute Order in Case No.
16SF009866A
The trial court sentenced defendant, in accordance with the plea
agreement, to six years in prison, consisting of the midterm of two years for
unlawful sexual intercourse with a minor, doubled to four years for the prior
strike in case No. 19SF007313A, and a consecutive two-year term for
dissuading a witness and two, concurrent three-year terms on the remaining
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two counts in case No. 16SF009866A. The minute order and abstract of
judgment in case No. 19SF007313A both correctly reflect the sentence as
pronounced by the court.
However, while the minute order and abstract of judgment, in case
No. 16SF009866A correctly lists the two-year consecutive term on count 2
(dissuading a witness) and the three-year concurrent terms for counts 3
(infliction of injury on a dating partner) and 6 (sexual battery) imposed by the
court, they incorrectly list the total time as three years instead of two years.
The People concede the record should be corrected, and we agree.
“Where there is a discrepancy between the oral pronouncement of
judgment and the minute order or abstract of judgment, the oral
pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380,
385; People v. Mitchell (2001) 26 Cal.4th 181, 185–186 [same].) A minute
order or abstract of judgment that does not accurately reflect the oral
judgment of the trial court may be corrected on appeal (Mitchell, at p. 185),
and we shall direct the trial court to correct the minute order and abstract of
judgment in case No. 16SF009866A to reflect a total prison term of two years,
which runs consecutive to the four-year term imposed in case
No. 19SF007313A.
DISPOSITION
The matter is remanded to the trial court for correction of the minute
order and abstract of judgment in case No. 16SF009866A. The corrected
abstract of judgment shall be forwarded to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.
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_________________________
Banke, Acting P. J.
We concur:
_________________________
Langhorne Wilson, J.
_________________________
Smiley, J.
A172549, People v. Ortega
16