SANTA ANA : Conviction Reversed in Sexual Abuse Case

An appeals court has overturned the conviction of a Santa Ana man sentenced to 44 years in prison on charges of sexually abusing his daughter.

The 4th District Court of Appeal ruled that a judge erred in denying a request to have an expert on sexually transmitted diseases testify in the trial of Javier Gutierrez Cortez.

During the trial, prosecutors alleged that Cortez began having sex with his daughter when she was 10 and continued until she was 16.

Cortez was convicted of sexual abuse, sexual battery and lewd conduct with a child. He was found not guilty on nine related counts.

Cortez, who denied the charges, claimed that he began receiving treatment for genital herpes when his daughter was 11 years old, and that his condition was so severe that it would have created a high risk of passing on the virus during sex.

But Orange County Superior Court Judge Kazuharu Makino denied Cortez’s request for an expert to explain the statistical likelihood of Cortez’s daughter contracting herpes under the circumstances.

Cortez’s lawyers had predicted that the jury would have acquitted Cortez had they known there was a very good chance his daughter should have contracted the virus if he was guilty.

Justice Sheila Prell Sonenshine, who wrote the opinion for the unanimous three-judge panel, agreed, saying expert testimony might have undermined the prosecution’s case by discrediting the daughter’s testimony.

Cortez is serving his sentence at Calipatria State Prison in Imperial County.

Richard Schwartzberg, a Santa Ana attorney who argued Cortez’s appeal, said the state attorney general’s office has 41 days to appeal the court’s ruling to the state Supreme Court.

If prosecutors decide not to pursue an appeal, they have up to another 60 days to grant Cortez a new trial, Schwartzberg said.