People v. Gallardo

Filed 11/26/25 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D084845

Plaintiff and Respondent,

v. (Super. Ct. No. SCD297077)

RUBEN PARAMO GALLARDO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Laura H. Parsky, Judge. Affirmed. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Chief Assistant Attorneys General, Robin Urbanski and Anastasia Sagorsky, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Ruben Paramo Gallardo guilty of rape of an unconscious

person (Pen. Code, § 261, subd. (a)(4); count 1),1 and assault with intent to commit rape (§ 220, subd. (a)(1); count 2). The trial court sentenced Gallardo

1 All further statutory references are to the Penal Code.

to the middle term of four years for count 2 and stayed a concurrent low term of three years for count 1 in accordance with section 654. On appeal from the judgment of conviction, Gallardo argues assault with intent to commit rape is a lesser included offense of rape of an unconscious person and, therefore, his conviction for assault with intent to commit rape must be reversed. On the record presented here, we reject this contention and hold assault with intent to commit rape of an unconscious person is not a lesser included offense of rape of an unconscious person. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND A. Prosecution Case One evening in November 2022, D.L. hosted a group of friends at her apartment. A.S. was the first to arrive. The two women drank vodka and Four Loko, another alcoholic beverage, and smoked marijuana while they got ready for the evening. Around 10:00 p.m., Gallardo and his friend, C.C., arrived at D.L.’s apartment. Gallardo and D.L. had known each other for three or four years, and she saw him as a brother. C.C. and D.L. were in a relationship. D.L. testified that once the men got to her apartment, A.S. was “getting really kind of slurry” and was “in and out of consciousness.” The group played a drinking game and hung out in the living room. C.C., Gallardo, and D.L. continued drinking alcohol and smoking marijuana. A.S. continued drinking, but did not smoke marijuana after Gallardo and C.C. arrived. At trial, A.S. estimated that she consumed about six shots of liquor, a tall can of Four Loko, and smoked two “bowls” of marijuana. While the group continued playing games, A.S. had to be carried to the bathroom multiple times to vomit. Due to A.S.’s state of inebriation,