Filed 9/17/26 P. v. Vargas CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H051770
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2108361)
v.
GREGORIO GONZALEZ VARGAS,
Defendant and Appellant.
A jury convicted defendant Gregorio Gonzalez Vargas of various crimes including
sexual penetration and oral copulation of a child 10 years old or younger. He argues on
appeal that the trial court was required to instruct the jury on the lesser included offenses
of battery and sexual battery, as well as on the specific intent required for the crime of
sexual penetration of a child. He also argues that the abstract of judgment does not
properly reflect the suspension of fines and fees. For the reasons explained here, we will
affirm the judgment.
I. TRIAL COURT PROCEEDINGS
Defendant was charged by amended information with one count of sexual
penetration of a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); count 1),
six counts of oral copulation of a child 10 years old or younger (Pen. Code, § 288.7,
subd. (b); counts 2–7), and six counts of lewd acts on a child by force or violence (Pen.
Code, § 288, subd. (b)(1); counts 8–13). All counts involved the same victim, whom we
refer to as “minor” in the interest of privacy. The amended information alleged the
aggravating factor of committing the offenses by taking advantage of a position of trust
or confidence (Cal. Rules of Court, rule 4.421(a)(11)), which was considered in a
bifurcated bench trial.
A. THE PROSECUTION’S CASE
Minor was 12 years old at the time of trial in October 2023. She lived with her
mother, younger brother and sister, aunt, and grandparents. Beginning when minor was
two years old, defendant lived in a converted garage in the same house as minor. Minor’s
grandmother testified that she knew defendant through her first husband and rented the
converted garage to defendant and his brother. Minor and her aunt would play games
with defendant in the backyard, house, or converted garage.
From the time minor was seven until she was nine years old, defendant would
touch her thighs, vagina, buttocks, chest, and lips when no one else was present. The first
incident occurred when minor was seven years old. Defendant offered to teach minor
how to dance while the family was practicing dances in the backyard to prepare for her
aunt’s quinceañera. Defendant danced close to minor, picked her up by the shoulders,
and spun her around. Defendant then moved minor’s shorts and underwear to the side
and touched her vagina with his mouth. On another occasion, minor was home alone
with defendant in the living room when defendant touched her vagina with his hand. On
one occasion when minor was helping her grandmother and defendant clean a shed,
defendant put his hand on minor’s chest over her clothing when they were alone and
grabbed minor’s wrist when she tried to get away. Defendant would also try to kiss
minor in the house and touch her upper thigh.
Defendant touched minor multiple times in the converted garage. Once after
minor delivered food to defendant there, defendant put his thumb on minor’s lips. He
also kissed minor on the lips, overcoming her attempts to get away by placing her on his
brother’s bunk bed. When minor once tried to follow her aunt out of the room, defendant
pushed minor onto the couch by pressing his hand against her chest and tried to kiss her.
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When minor was in defendant’s room, the interior of the room was visible from outside
through the screen door.
If minor refused to talk to defendant, he would knock on her bedroom window. At
trial, minor testified that defendant would knock on her bedroom window to give her
money to pass on to her grandmother. (Minor’s grandmother testified that defendant paid
rent directly to her but was giving minor money to cut his hair.) According to a portion
of minor’s preliminary hearing testimony that was read without objection into the trial
record (as past recollection recorded [see Evid. Code, § 1237]), defendant would wait by
her window until she went into his room, where he would touch her. On one occasion,
defendant knocked on minor’s window while minor and her friend were in her bedroom.
When defendant did not leave as minor requested, she ultimately went to his room where
he then inserted two fingers into her vagina. Later that day, minor and her aunt went to
defendant’s room to obtain ingredients to make slime. Defendant licked minor’s vagina
while her aunt was in the bathroom.
Minor testified at trial that defendant touched her vagina with his fingers about
15 times until she was nine years old. He would put his fingers inside minor’s vagina
after moving her clothing aside and move his fingers “up and down.” Minor estimated
defendant had touched her vagina with his mouth and tongue more than 20 times by the
time she was nine years old. He had also touched her lips with his thumb about ten times
and kissed her about ten times. Defendant touched minor’s chest with his mouth about
15 times and with his hands almost every time he touched her.
When defendant touched or kissed minor, he would say “amor,” which she
translated as “my love.” Minor thought that was “weird” because he was not a member
of her family and it was a term used by couples. Minor did not tell anyone about
defendant’s conduct because she thought something bad would happen to her and
defendant would be upset. Defendant also told minor not to tell anyone, and minor did
not understand what was happening and was scared something bad would happen. She
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was also scared of defendant because he would grab her arm. She did not inform her
grandmother due to a language barrier.
On the day leading to defendant’s arrest, he had helped minor build a swing in the
backyard. Minor eventually ended up on the sofa in defendant’s room, where he knelt
between her legs, moved her clothing to the side, and put his mouth on her vagina.
Minor’s grandmother observed them through the door as she approached the converted
garage. The grandmother grabbed minor who started crying and, with the grandmother’s
husband translating, informed her grandmother about the incidents from the preceding
years. Minor explained she had not told anyone before because she was scared. The
grandmother called minor’s mother at work and then the police.
Minor’s mother testified that her mother called her and then handed the phone to
minor, who was crying uncontrollably. Minor informed her mother that defendant
touched her that day and had been touching her for a while. Minor reported defendant
had tried to lick her vagina at some point. Minor’s mother drove home and immediately
confronted defendant but eventually allowed him to leave. She then talked to minor, who
told her the conduct started around the time of her aunt’s fifteenth birthday party and had
been ongoing. Minor stated it happened more frequently as she got older, and that
defendant told her that what he was doing was a secret and to keep quiet about it because
she would get in trouble. Minor’s mother testified that she had never noticed anything
suspicious about defendant’s behavior with the children.
The police spoke with minor and minor’s mother and took minor to the hospital
for testing and DNA swabs. Defendant was a possible contributor to the DNA found on
minor’s chest, vagina, and clothes (aside from the exterior waistband of her shorts, which
contained other DNA that excluded defendant as a possible contributor).
The investigating officer interviewed minor in her bedroom for about 30 minutes.
The interview was recorded and played for the jury. During the interview, minor said that
she and defendant were trying to build a hammock, and she was helping him look for
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drill parts in his room when he touched her buttocks and tried to pull up her shirt.
Defendant grabbed her hand and she fell onto the couch. He was on top of her, kissed
her, called her “amor,” and touched her vagina. At that point, her grandmother came into
the room. She then informed her grandmother and mother about defendant’s conduct.
Minor then said that defendant had touched her before, beginning with the dancing on her
aunt’s quinceañera. She added that defendant once touched her bottom when she was
getting lemons from a tree in the backyard of the house.
After his arrest, defendant was taken for medical treatment to a hospital where two
detectives interviewed him and obtained a DNA sample. One of the detectives then
interviewed minor, and the recorded interview was played for the jury. Minor described
the hammock incident and the quinceañera incident. Minor also described how defendant
had put his finger in her vagina a few days after the quinceañera. Minor and her aunt
were having a pillow fight with defendant in defendant’s room. When the aunt left to use
the bathroom, defendant moved minor’s shorts to the side, licked his finger, put it in her
vagina, and licked his finger again. Minor “felt like something was hurting.” Minor
stated that such incidents occurred every two to three weeks. She realized what
defendant was doing was bad and asked him to stop when she was eight years old;
defendant stopped touching her for about 10 months but then resumed the conduct.
B. THE DEFENSE CASE
Defendant testified that he had lived with his brother and minor’s family
beginning when minor was about two years old. His wife and eight children live in
Mexico. Defendant was disabled due to work-related incidents and suffered from
impaired vision due to diabetes. He testified that he was close to minor’s family and
played with the children living in the house. He paid rent in cash and handed it to minor,
minor’s aunt, or minor’s grandmother. Minor would ask defendant for help around the
house; defendant estimated that minor came to his room twice a week.
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Defendant denied ever touching minor in a sexual manner or forcing her into his
room. He testified that he only touched minor when she would run and jump on him
while playing to use him “as a horse,” toppling him over. According to defendant, minor
actually has more strength than he does. He stated he did not know why minor accused
him of abusing her. When practicing how to dance for the quinceañera, minor’s
grandmother was present, and minor jumped on defendant to dance in a similar way her
aunt was practicing with other boys. The day of his arrest, he was working on
assembling a swing. Minor and defendant went to his room to change the batteries on the
drill he was using, and defendant bent down onto the floor to look for lost drill bits while
minor lay on the sofa watching videos on his phone. The door to the room was open, but
the screen door was closed. Defendant was unable to get up due to his leg and tried to
grab a nearby table, but he could not reach it and ended up falling with his hand on the
sofa and his body leaning forward. His hands and mouth were not near minor’s vagina or
chest. At some point, minor’s grandmother came into the room and asked to borrow
$500, which defendant did not have. The grandmother took minor with her out of the
room while defendant went to retrieve his wallet from the bathroom. According to
defendant, minor was not crying at that time. Defendant did not learn about the
accusations until minor’s grandmother returned to the room with minor, who was crying.
The grandmother told defendant that minor said he had been touching her. Minor’s
mother forced her way into the room and physically assaulted him about an hour later.
Defendant’s younger brother testified that he shared the room in minor’s family’s
house with defendant. He had seen defendant interact with the children in the home and
never saw anything unusual. He did not believe the accusations but acknowledged he
had not been home the day defendant was arrested. Defendant’s best friend testified he
had known defendant for over 20 years and was a neighbor of minor’s family. He saw
defendant every day and never saw or heard defendant act inappropriately with the
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children in the house. He believed defendant was a good person, and he did not believe
the charges.
C. JURY INSTRUCTIONS, VERDICT, AND SENTENCE
The sexual penetration occurring a few days after the quinceañera was charged in
count 1, and the oral copulation occurring the day defendant was arrested was charged in
count 2. The incident that occurred on the day minor obtained slime ingredients in
defendant’s room was charged in count 3. Counts 4 through 7 stemmed from the 20
instances of oral copulation to which minor generally testified. The quinceañera incident
was charged in count 8. Count 9 consisted of the incident that occurred while minor’s
best friend was in her room, count 10 the incident in the shed, count 11 the incident
where defendant kissed minor and called her “amor” on the day he was arrested, count 12
the incidents where defendant touched minor’s bottom including when she picked lemons
and on the day he was arrested, and count 13 the incidents where defendant touched
minor’s chest including the day he was arrested. The court granted defendant’s requests
to instruct the jury on the lesser included offense of attempt as to count 1 and the lesser
included offense of lewd conduct without force (Pen. Code, § 288, subd. (a)) as to
counts 8 through 13.
Defendant’s request for instructions on simple battery as a lesser included offense
of counts 1 through 7 was denied. Defendant had argued that based on the family-like
relationship between him and minor, their shared home, their dance at the quinceañera
rehearsal, and their ongoing interactions over the years, the jury could infer that a
touching had occurred that was offensive to minor but was not sexual in nature. But the
trial court did not find sufficient evidence for a reasonable jury to find defendant guilty of
a simple battery stating, “[t]here’s been no evidence or testimony of any offensive
touching, other than the touching of a sexual nature that has been charged.”
The court instructed the jury on the mental state required for each count.
(CALCRIM No. 252.) The court also instructed on the elements of sexual penetration
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and oral copulation of a child 10 years old or younger, and on the lesser included offenses
of attempt (count 1) and lewd conduct without force (counts 8 through 13).
The jury found defendant guilty as charged as to counts 1 through 7 and 9 through
13. As to count 8, the jury convicted defendant of only the lesser offense of lewd conduct
without force or violence. (Pen. Code, § 288.7, subd. (a).) As to the bifurcated
aggravating circumstance of taking advantage of a position of trust, the court found the
allegation true.
Defendant was sentenced to 25 years consecutive to 15 years to life, consisting of
15 years to life on count 1, the same term concurrent on counts 2 through 7, a concurrent
term of six years on count 8, and fully consecutive terms of five years each on counts 9
through 13. The court also imposed fines and penalty assessments under Penal Code
sections 290.3, 1202.4, and 1202.45, which it “stayed per Dueñas” based on defendant’s
indigency and inability to pay. (We address those fines post in section II.C.)
II. DISCUSSION
A. BATTERY AND SEXUAL BATTERY INSTRUCTIONS WERE NOT REQUIRED
A jury may convict a defendant of “any offense, the commission of which is
necessarily included in that with which he is charged.” (Pen. Code, § 1159. Unspecified
statutory references are to this code.) A trial court has a sua sponte duty to “ ‘instruct a
criminal jury on any lesser offense “necessarily included” in the charged offense, if there
is substantial evidence that only the lesser crime was committed.’ ” (People v. Smith
(2013) 57 Cal.4th 232, 239.) A lesser offense is necessarily included in a greater offense
if either the statutory elements of the greater offense or the facts alleged in the accusatory
pleading include all the elements of the lesser offense “ ‘such that the greater cannot be
committed without also committing the lesser.’ ” (Id. at p. 240.)
A lesser included offense instruction must be given “ ‘only if there is substantial
evidence from which a jury could reasonably conclude that the defendant committed the
lesser, uncharged offense, but not the greater, charged offense.’ ” (People v. Nelson
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(2016) 1 Cal.5th 513, 538 (Nelson).) In assessing the sufficiency of the evidence to
support an instruction, we view the evidence in the light most favorable to the defendant
(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137) without evaluating the
credibility of witnesses. (People v. Wyatt (2012) 55 Cal.4th 694, 698.) While testimony
of a single witness can constitute substantial evidence requiring a lesser included offense
instruction (ibid.), evidence that is minimal, insubstantial, or would require the jury to
make speculative inferences about the case is insufficient to require an instruction on a
lesser included offense. (People v. Simon (2016) 1 Cal.5th 98, 132.) We review de novo
any purported error regarding a lesser included offense instruction. (Ibid.)
Defendant did not request an instruction on sexual battery as a lesser included
offense, and the trial court denied his request to instruct on the lesser included offense of
simple battery as to counts 1 through 7 (representing one count of sexual penetration of a
child 10 years old or younger (§ 288.7, subd. (b); count 1) and six counts of oral
copulation of a child 10 years old or younger (§ 288.7, subd. (b); counts 2–7)).
Defendant maintains on appeal that the trial court was required to instruct on the lesser
included offenses of simple battery (§ 242) as to counts 1 through 7 and sexual battery
(§ 243.4, subd. (e)) as to count 1. We need not determine whether battery and sexual
battery are lesser included offenses of section 288.7, subdivision (b) on this record,
because there is no substantial evidence from which to conclude that defendant
committed either lesser offense but not the greater charged offense.
Battery is “any willful and unlawful use of force or violence upon the person of
another” (§ 242) so long as the contact is harmful or offensive. (People v. Shockley
(2013) 58 Cal.4th 400, 404.) Minor testified in detail about the incidents charged in
counts 1 through 7. As to the sexual penetration charged in count 1, she explained
defendant licked his finger and put it in her vagina a few days after her aunt’s
quinceañera. As to the oral copulation charged in count 2, minor and her grandmother
testified that defendant put his mouth on minor’s vagina the day he was arrested. The
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slime incident was charged in count 3; minor stated in the preliminary hearing testimony
read into the trial record that defendant put his mouth on her vagina the day she gathered
ingredients from defendant’s room with her aunt to make slime. As to the remaining four
counts of oral copulation charged in counts 4 through 7, minor testified that defendant
touched her vagina with his mouth and tongue more than 20 times from the time she was
seven until she was nine years old.
Defendant testified that he never touched minor in a sexual manner. He testified
that he only touched minor when she would run and jump on him while playing “as a
horse,” but such conduct was not charged in counts 1 through 7. Defendant also testified
minor jumped on him and put her arms around his neck during the quinceañera practice,
but the quinceañera incident was charged as a lewd act under count 8. Defendant in
essence testified the incidents charged in counts 1 through 7 never occurred, not that he
touched minor’s vagina with his fingers and mouth in a nonsexual but offensive manner.
He does not provide a factual basis for the offensive contact required for the crime of
battery.
Sexual battery requires: (1) touching the intimate part of another person (the
sexual organ, anus, groin, or buttocks of any person, and the breast of a female),
(2) against the will of that person, (3) with the specific intent to cause sexual arousal,
gratification, or abuse. (§ 243.4, subds. (e)(1) & (g)(1).) Defendant argues sufficient
evidence supports a sexual battery instruction as to count 1 due to “inconsistencies in
[minor’s] testimony” and because “there were other people present” during the
quinceañera rehearsal. But as we have explained, the quinceañera conduct formed the
basis for lewd conduct under count 8, not count 1. The sexual penetration charged in
count 1 arose from a separate incident when, according to minor’s statements to the
police, defendant licked his finger, penetrated her vagina, and licked his finger again.
Defendant has not argued that a sexual battery instruction was required on count 8. As to
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count 1, he does not explain how the evidence could be interpreted as establishing the
elements of sexual battery yet not establishing penetration.
We see no substantial evidence to show that defendant committed simple battery
or sexual battery but not sexual penetration or oral copulation of a child. (Nelson, supra,
1 Cal.5th at p. 538.) Given the absence of instructional error, we need not consider
prejudice.
B. NO ERROR IN INSTRUCTIONS ON SPECIFIC INTENT
A trial court has a sua sponte duty to correctly instruct the jury on all elements of
any charged offenses but is not required to revise an accurate statement of law without a
request from counsel. (People v. Sta Ana (2021) 73 Cal.App.5th 44, 60.) We may review
an erroneous instruction even without a request or objection in the trial court if it affected
the substantial rights of the defendant (§ 1259) by misleading the jury or infringing on
due process. (People v. Johnson (2016) 62 Cal.4th 600, 639.) In our de novo review of a
claimed instructional error (People v. Posey (2004) 32 Cal.4th 193, 218), we presume the
jurors understood and followed the court’s instructions and we “assess the instructions as
a whole, viewing the challenged instruction in context with other instructions, in order to
determine if there was a reasonable likelihood the jury applied the challenged instruction
in an impermissible manner.” (People v. Wilson (2008) 44 Cal.4th 758, 803 (Wilson).)
A violation of section 288.7, subdivision (b) is a specific intent crime when the
violation of the statute is based on sexual penetration. (People v. Saavedra (2018)
24 Cal.App.5th 605, 613 (Saavedra).) Defendant argues CALCRIM No. 1128 is
misleading because it does not include the phrase “specific intent” in the elements of the
crime, and the trial court therefore had a sua sponte duty to modify CALCRIM No. 1128
to state that section 228.7, subdivision (b) as charged in count 1 requires specific intent.
The trial court instructed the jury that defendant was charged in count 1 with
engaging in sexual penetration with a child 10 years old or younger in violation of
section 288.7, subdivision (b) and read CALCRIM No. 1128, which defines sexual
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penetration as being “for the purpose of sexual abuse, arousal, or gratification.” That
language describes the specific intent required at the time of penetration. (Saavedra,
supra, 24 Cal.App.5th at p. 615; see also People v. Ngo (2014) 225 Cal.App.4th 126,
161–162.)
The jury was also instructed with CALCRIM No. 252 as to all counts and lesser
included offenses. CALCRIM No. 252 instructs that the crimes and allegations charged
“require proof of the union, or joint operation, of act and wrongful intent.” The trial court
informed the jury that sexual penetration of a child 10 years old or younger as charged in
count 1 requires specific intent and referred the jury to the instruction for the particular
offense to explain the corresponding act, specific intent, or mental state. The prosecutor
explained in closing argument that sexual penetration under count 1 requires penetration
for sexual purposes like abuse, arousal, or gratification such that a gynecologist could not
be convicted for performing an examination. The prosecutor then argued that defendant
penetrated minor’s vagina with his finger for no other purpose than sexual arousal or
gratification, distinguishing defendant’s conduct from that of a medical examination or
changing a diaper. Considering the instructions as a whole, there is no reasonable
likelihood that the instructions allowed the jury to misapply the law. (Wilson, supra,
44 Cal.4th at p. 803.)
C. THE ABSTRACT OF JUDGMENT DOES NOT REQUIRE CORRECTION
Defendant asks that the fines imposed be struck and a new abstract of judgment
issue to reflect the court’s determination of his inability to pay. Although a reviewing
court has the authority to order correction of an abstract of judgment to remedy a clerical
error (People v. Mitchell (2001) 26 Cal.4th 181, 185), we see no discrepancy here
between the trial court’s oral pronouncement and the abstract of judgment. The trial court
orally imposed a fine and penalty assessment under section 290.3, which it suspended
given defendant “is indigent and will be spending likely the rest of his life in prison and
cannot pay fines and fees.” The court also orally imposed a restitution fine of $300 under
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section 1202.4, stayed that fine based on inability to pay, and imposed and suspended a
parole revocation fine under section 1202.45. According to the minute order and abstract
of judgment, all fines and fees were “stayed per Dueñas.” Because the abstract of
judgment already reflects the trial court’s finding regarding defendant’s inability to pay
and its effect, there is no need for any correction to the abstract of judgment.
III. DISPOSITION
The judgment is affirmed.
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____________________________________
Grover, Acting P. J.
WE CONCUR:
____________________________
Lie, J.
____________________________
Wilson, J.
H051770
The People v. Gonzalez Vargas