People v. Vargas-Gonzalez CA1/4

Filed 2/10/16 P. v. Vargas-Gonzalez CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A141995 v. VICTOR VARGAS-GONZALEZ, (Sonoma County Super. Ct. No. SCR621318) Defendant and Appellant.

I. INTRODUCTION Appellant Victor Vargas-Gonzalez appeals from his convictions on seven counts of lewd and lascivious acts upon a minor under the age of 14 (Pen. Code, § 288, subd. (a)1), and three counts of aggravated sexual assault on a minor under the age of 14 (§ 269, subd. (a)(1)). The sole issue he raises on appeal is his contention that the trial court erroneously instructed the jury with a modified version of CALCRIM No. 1191, which allowed the jury to consider charged offenses it found appellant had committed in determining whether he had a predisposition to commit the other charged offenses. The instruction is based on Evidence Code section 1108. In raising this issue, appellant concedes that a similar instruction was approved several years ago by our Supreme Court in People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro), and that we are bound to follow that precedent. (Auto Equity Sales, Inc. v. 1 All further statutory references are to the Penal Code, unless otherwise indicated.

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Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).) Nevertheless, he raises the issue in order to preserve it both for federal habeas and higher court reviews. We affirm. II. PROCEDURAL AND FACTUAL BACKGROUNDS2 On April 7, 2014, the Sonoma County District Attorney filed a second amended information charging appellant with seven counts of lewd and lascivious conduct (§ 288, subd. (a)) (counts I-VI, X), and three counts of aggravated sexual assault on a minor (§ 269, subd. (a)(1)) (counts VII, VIII, and IX). The information also alleged as to counts I through VI that appellant committed the offenses against more than one victim, the offenses included substantial sexual conduct, and the statute of limitations had been extended within the meaning of section 803, subdivision (f)(1). Additionally, as to count X, it was alleged that appellant committed the offense upon more than one victim, the offense included substantial sexual conduct, the minor was under 18 when the offense was committed, and the prosecution was commenced before her 18th birthday. Jury trial commenced on April 1, 2014,and concluded on April 7, 2014, when the jury found appellant guilty of all counts as charged. On May 27, 2014, the court sentenced appellant to three terms of 15 years to life, plus a determinate 20-year term. This timely appeal was filed on May 30, 2014. The case involved two victims who were minors at the time of the alleged sexual assaults. Jane Doe No. 1, who was 25 years old at the time of trial, testified about appellant’s numerous sexual contacts with her, which began when she was three or four years old, and continued until she was 11 years old. Appellant was Jane Doe No. 1’s grandfather. These acts included touching her vagina with his hands and fingers, placing her hand on appellant’s penis, and putting his penis inside of her more than 20 times.