Filed 4/20/16 P. v. Gonzalez CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                    2d Crim. No. B256982
                                                                            (Super. Ct. No. 2011032303)
     Plaintiff and Respondent,                                                   (Ventura County)

v.

SALVADOR MARGARITO GONZALEZ,

     Defendant and Appellant.



                   Salvador Margarito Gonzalez appeals his conviction by jury of five counts
                                                                        1
of lewd acts on a child (Pen. Code, § 288, subd. (a)) with special findings that he
engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)) and committed lewd acts
against multiple victims (§ 667.61, subd. (b)) and that the offenses were timely
prosecuted (§ 801.1, subd. (a)). The trial court sentenced appellant to consecutive 15-
year-to-life prison terms, (§ 667.61, subd. (b)), for an aggregate sentence of 75 years to
life, and ordered appellant to have no contact with the victims who are now adults. We
modify the judgment to strike the no-contact order and award appellant 1,145 days
custody credit (996 days actual custody plus 149 days conduct credit). The judgment, as
modified, is affirmed.



1
    All statutory references are to the Penal Code unless otherwise stated.
                               Facts and Procedural History
              In 2011, Ana R. (age 24) reported that appellant sexually molested her
when she was 9 to 11 years old. (Counts 1-2; 1996-1999). Ana estimated that appellant
touched her more than seven times and testified about two incidents. The first incident
occurred at 224 McKinley Avenue, Oxnard, in the garage. Appellant touched Ana's
breast, rubbed her vagina, and put his finger inside her vagina.
              A month later, appellant visited Ana's house and gestured for Ana to come
in her brother's bedroom. Appellant touched her breasts, had her kneel between his legs,
and tried to put his penis into her mouth. Ana resisted. Appellant said, "Come on, Come
On" and put her hand on his erect penis and had her stroke it. Crying, Ana ran off and
told her mother that "Chava [appellant] is in the bedroom. He's doing things he's not
supposed to." Ana's mother was busy cooking and did not respond.
                                   Marisol R. and Ruby V.
              Appellant touched Ana's cousin, Marisol R. (10 to 11 years old), when he
was living in a garage on McKinley in Oxnard. (Count 3; 1998-2000.) After appellant
started dating Marisol's older sister, Alma, the couple moved to a house on Avila Place in
Oxnard. Marisol and her sister, Ruby V., frequently visited and slept over at night. One
night, appellant touched Marisol's breast and vagina while she was sleeping on the couch.
Marisol screamed and hugged herself tightly with the sheet until appellant went back up
stairs. The incident happened in the summer between the fifth and sixth grade.
              Ruby V., Marisol's younger sister, was 10 years old and in the fourth grade
when appellant molested her. (Counts 4-5; 1998-2001.) Appellant touched her twice at
the house on Avila Place. The first incident was in the master bedroom. Ruby awoke to
appellant touching her inner thighs and vagina. Scared, Ruby started to cry. Appellant
told her to be quiet or he would hurt her sister.
              On another occasion, Ruby tried to hide under a twin bed. Appellant
grabbed Ruby by the leg, pulled her out, and rubbed her inner thighs and vagina. Ruby
cried until he stopped.



                                              2
                                         Confession
               Agustin V., Marisol's and Ruby's older brother, learned about the sexual
molestation ten years later and confronted appellant at a September 3, 2011 family
meeting. Appellant said that he probably touched Ana, but denied touching Marisol or
Ruby. After the police arrived, appellant told Oxnard Police Officer Roque Rivera that
"all he did was touch them" on the breast and groin area.
               On September 7, 2011, appellant told Detectives Rachel Burr and Juanita
Suarez that he touched the girls. Appellant said that he touched Ruby two or three times,
that he touched Marisol on the breast and vagina three times and that he touched Ana at
her home on Marquita Street and in the garage on McKinley. During a break in the
interview, appellant wrote an apology letter, asking Ana, Marisol, and Ruby for their
forgiveness.
                                       One Strike Law
               Section 667.61, also known as the "One Strike" law (People v. Mancebo
(2002) 27 Cal.4th 735, 738), provides for a mandatory sentence of 15 years to life where
the prosecution pleads and proves at least one aggravating circumstance specified in
section 667.61, subdivision (d) or (e). (People v. Wutzke (2002) 28 Cal.4th 923, 930.)
"'"Unlike an enhancement, which provides for an additional term of imprisonment, [a one
strike sentence] sets forth an alternate penalty for the underlying felony itself, when the
jury has determined that the defendant has satisfied the conditions specified in the
statute."' [Citation.]" (People v. Perez (2010) 182 Cal.App.4th 231, 239.)
               Under the current version of the One Strike law, a violation of section 288,
subdivision (a) (nonaggravated lewd conduct) is subject to a one strike sentence if the
jury finds that defendant committed the offense against more than one victim. (§ 667.61,
subds. (b), (c)(8), (e)(4).) Under the One Strike law in effect at the time the offenses
were committed [between August 5, 1996 and June 19, 2001], a conviction for section
288 subdivision (a) involving multiple victims is not enough to trigger one strike
eligibility. A one strike sentence also requires a finding that the defendant is not eligible
for probation. (See § 667.61, former subd. (c)(7) and § 1203.066, former subd. (c).) To


                                              3
be eligible for probation five conditions have to be satisfied: (1) defendant must be the
victim's natural parent or a member of victim's household who has lived in the household;
(2) a grant of probation is in the best interest of the child; (3) defendant's rehabilitation is
feasible; (4) defendant has been removed from the household until the court determines
that the best interests of the victim would be served by returning defendant to the
household; and (5) there is no threat of physical harm to the child victim if probation is
granted. (See § 1203.066, former subd. (c)(1)-(5).)
               The trial court found that appellant did not qualify for probation and
imposed consecutive 15-to-life prison terms. Appellant argues that the sentence violates
his Sixth Amendment right to jury trial because the jury made no findings on probation
eligibility. (Apprendi v. New Jersey (2000) 530 U.S. 466, 488 [120 S.Ct. 2348, 2362];
Blakely v. Washington (2004) 542 U.S. 296, 301 [124 S.Ct. 2531, 2536]; Alleyne v.
United States (2013) __ U.S. __, __ [133 S.Ct. 2151, 2155].) Absent a jury finding on
probation eligibility, appellant claims that the trial can only impose a determinate
sentence of three, six or eight years state prison on each count. (Former § 288, subd. (a).)
               We reject the argument for the reasons expressed in People v. Benitez
(2005) 127 Cal.App.4th 1274, a one strike case involving the molestation of two children.
The Court of Appeal rejected the Sixth Amendment argument that a one strike sentence
requires a jury finding that defendant is ineligible for probation. (Id., at p. 1277.)
"Finding a defendant ineligible for probation is not a form of punishment, because
probation itself is an act of clemency on the part of the trial court. [Citation.] Because a
defendant's eligibility for probation results in a reduction rather than an increase in the
sentence prescribed for his offenses, it is not subject to the rule of Blakely. [Citations.]."
(Id., at p. 1278.)
               Like Benitez, the jury convicted appellant of multiple counts of lewd
conduct and found that appellant committed the offense against more than one victim,
rendering him subject to the One Strike law. There is no Sixth Amendment requirement
that the jury consider probation eligibility. "Contrary to [appellant's] contention, we find
that the proviso in Penal Code section 667.61, subdivision (c)(7) (that [appellant] is


                                               4
unqualified for probation) is not an element of the [one-strike] enhancement to be
negated upon proof to a jury. Rather, it is a legislative grant of authority to the trial court
to entertain a request for probation (should [appellant] satisfy the criteria in section
1203.066, subd. (c)) despite eligibility otherwise for sentencing under section 667.61."
(Benitez, supra, 127 Cal.App.4th at p. 1278.)
              Apprendi/Blakley/Alleyne is not implicated where all the factual findings
for imposition of the "statutory maximum" sentence are made by the jury, i.e., a guilty
verdict on a section 228, subdivision (a) count and a true finding that appellant
committed the offense against multiple victims. The probation eligibility factors listed in
former section 1203.066, subdivision (c) do not increase the maximum sentence but may
in the trial court's discretion, reduce the sentence. We accordingly reject the argument
that one strike sentence violates appellant's constitution rights. (Benitez, supra, 127
Cal.App.4th at p. 1278.)
              Appellant argues that the trial court abused its discretion in concluding that
he was ineligible for probation. In People v. Wills (2008) 160 Cal.App.4th 728, the child
victim was 22 years old at time of sentencing, which rendered the defendant ineligible for
probation. The Court of Appeal held that the trial court had "no authority, and thus no
legal discretion, to grant probation" to a presumptively ineligible defendant "in a case in
which the molestation victim is no longer a child at time of sentencing." (Id., at p. 740.)
Stated another way, the trial court could not find that probation "'is in the best interest of
the child' for the simple reason that there is no child." (Id., at pp. 737-738.)
              The same principle applies here. All the victims were adults at time of
sentencing and the jury found that appellant engaged in "substantial sexual conduct"
which, under present law, rendered appellant ineligible for probation. (§ 1203.066, subd.
(a)(8).) Under the law in effect at the time of the offenses (§ 1203.066, former subd. (c)),
appellant was presumptively ineligible for probation but, in the discretion of the
sentencing court, could be placed on probation if, and only if, appellant established all the
factors set forth in former section 1203.066, subdivision (c). (See People v. Groomes
(1993) 14 Cal.App.4th 84, 89 [eligibility for probation must be shown by defendant].)


                                               5
The trial court considered appellant's circumstances, the nature of the offenses,
appellant's failure to take responsibility for his crimes, the victims' best interests, and the
potential for further harm to the victims. The record shows that appellant was a poor
candidate for probation. Before sentencing, appellant told the probation officer that he
was only playing and never touched the victims inappropriately. Appellant questioned
why the victims took so long to report the molestation. The trial court found that
appellant "is not a suitable candidate for probation, and even assuming he met the section
1203.066, subdivision (c) criteria, the court would deny probation . . . ." Appellant
makes no showing that the trial court abused its discretion. Probation is not a matter of
right but an act of clemency and grace. (People v. Giordano (2007) 42 Cal.4th 644, 663,
fn. 7.) Absent a showing that the sentence is irrational or arbitrary, it is presumed that the
trial court acted to achieve legitimate sentencing objectives. (People v. Superior Court
(Du) (1992) 5 Cal.App.4th 822, 825.) Only in an extreme case should an appellate court
interfere with the discretion of the trial court when it denies probation. (People v.
Rodriguez (1990) 51 Cal.3d 437, 443.)

                         Substantial Sexual Conduct - Masturbation
              Appellant argues that the trial court erred in instructing that substantial
sexual conduct with a child includes masturbation which is defined as "any touching or
contact, however slight, either on the bare skin or through the clothing, of the genitals of
                                                                                               2
either the victim or the offender." (CALCRIM No. 1193.1 Substantial Sexual Conduct.)
Appellant contends that the instruction misstates the law because "substantial sexual


2
 Special Instruction CALCRIM 1193.1 stated in pertinent part that "the People must
prove: (1) The defendant engaged in substantial sexual conduct with a child; [¶] AND
[¶] (2) When he did so, the child was under the age of 14 years. [¶] Substantial sexual
conduct means oral copulation or masturbation of either the child or the perpetrator . . .
with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires
of the defendant or the child. [¶] Masturbation is any touching or contact, however
slight, either on the bare skin or through the clothing, of the genitals of either the victim
or the offender."


                                               6
conduct" under section 1203.066 requires something more than "any touching of the
genitals, however slight."
              Appellant forfeited the error by not objecting or requesting that the
instruction be modified or clarified. (People v. Dement (2011) 53 Cal.4th 1, 45-46.) A
trial court has no sua sponte duty to give an amplifying or pinpoint instruction. (People
v. Hughes (2002) 27 Cal.4th 287, 361.) On the merits, masturbation for purposes of
section 1203.066, subdivision (b) has been interpreted to encompass any touching or
contact, however slight, of the genitals of the victim or the offender and includes
touching through the clothes without skin-to-skin contact. (People v. Terry (2005) 127
Cal.App.4th 750, 771-772.) This definition of masturbation was first formulated in cases
under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600.1) which includes
the same definition of "substantial sexual conduct" as section 1203.066, subdivision (b).
(See People v. Lopez (2004) 123 Cal.App.4th 1306, 1312-1313; People v. Chambless
(1999) 74 Cal.App.4th 773, 786-787.) In Chambless, supra, the court held that "[a]ny
contact, however slight of the sexual organ of the victim or the offender would be
sufficient to qualify for masturbation and in turn as substantial sexual conduct under the
Act." (Id., at p. 787.)
              Appellant argues that touching one's genitals is normal adolescent behavior
and that a juror could have a reasonable doubt that a slight touching constitutes
masturbation. Based on the age of the victims, appellant's sexual conduct, and the
victims' responses to the sexual assaults, no reasonable juror would have doubted that
appellant's acts of masturbation were substantial sexual conduct.
              The jury was instructed on a well-established definition of masturbation.
(People v. Terry, supra, 127 Cal.App.4th at pp. 771-772; People v. Chambless, supra, 74
Cal.App.4th at p. 783.) Appellant acknowledges the instruction is consistent with case
precedent, but argues that masturbation, as defined, should be narrowed to exclude "slight
touching." We do not consider the touching of a child's vagina or appellant's attempt to
put his penis in a child's mouth to be anything other than "substantial sexual conduct" for


                                             7
purposes of section 1203.066, subdivision (a)(8). "[T]he term 'masturbation' includes any
touching or contact of the genital or either the victim or the offender, whether over or
under clothing, with the requisite intent. Skin-to-skin contact is not required." (People v.
Lopez, supra, 123 Cal.App.4th at p. 1312.)
              Appellant contends that the use of terms like "manipulation" and
"excitation" in the dictionary definitions of masturbation suggests that something more
than slight touching or fondling is required to establish substantial sexual conduct. A
similar argument was rejected in People v. Lopez, supra, 123 Cal.App.4th at pp. 1313-
1314: "Words such as 'manipulation' and 'excitation' do not provide the basis for
including a quantitative element to the amount of touching that would constitute
masturbation. Moreover, since the instruction in this case told the jury that the touching
had to be done with the 'requisite specific intent to arouse, appeal to, or gratify the sexual
desires of either party,' the component of manipulation or excitation was acknowledged."
              Here the jury was instructed that the prosecution had to prove that appellant
willfully touched any part of a child's body either on the skin or through the clothing, and
was twice instructed that the prosecution had to prove that appellant "committed the act
with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires
of [defendant] or the child . . . ." (CALCRIM 1110, Special Instruction CALCRIM
1193.1.) Appellant makes no showing that the instruction on masturbation misstated the
law or denied appellant a fair trial. "[N]ot every ambiguity, inconsistency, or deficiency
in a jury instruction rises to the level of a due process violation." (Middleton v. McNeil
(2004) 541 U.S. 433, 437 [158 L.Ed.2d 701, 707]; People v. Huggins (2006) 38 Cal.4th
175, 192.)
                      CALCRIM 226 Instruction on Good Character
              Appellant argues that the trial court erred in giving a pattern instruction that
stated: "If the evidence establishes that a witness's character for truthfulness has not been
discussed among the people who know him or her, you may conclude from the lack of
discussion that the witness's character for truthfulness is good." (CALCRIM 226.)


                                              8
Appellant argues that the evidence does not support the instruction and that he was
prejudiced because the instruction directed the jury to presume that the victims' character
for truthfulness was good.
              CALCRIM 226 states that it only applies "[i]f the evidence establishes that
a witness's character for truthfulness has not been discussed among the people who know
him or her . . . ." The instruction is irrelevant because no character witness testified about
anyone's reputation for honesty. Absent evidence that such a discussion occurred, the
instruction, by its own terms, does not apply. The jury was further instructed to disregard
instructions that do not apply. (CALCRIM 200.) The trial court instructed: "Do not
assume just because I give a particular instruction that I am suggesting anything about the
facts. After you have decided what the facts are, follow the instructions that do apply to
the facts as you find them." (CALCRIM 200.) It is presumed that the jury understood
and followed the instructions. (People v. Carey (2007) 41 Cal.4th 109, 130; People v.
Delgado (1993) 5 Cal.4th 312, 331.) The alleged error in giving a pattern instruction on
good character was harmless in light of the limiting language in the CALCRIM 226
instruction, (only applies "if the evidence establishes that a witness's character for
truthfulness has not been discussed") and the CALCRIM 200 instruction to disregard
inapplicable instructions. The bracketed portion of CALCRIM 226 instruction was
erroneously given but did not rise to constitutional error or deny appellant a fair trial.
(See People v. Thornton (2007) 41 Cal.4th 391, 443 [criminal defendant's attempt "'to
inflate garden-variety evidentiary questions into constitutional ones'" is unpersuasive].)
                                     No-Contact Order
              Appellant argues that the trial court erred in ordering appellant to have no
contact, "either direct or indirect" with the victims who were adults. Section 1202.05
provides that the trial court may prohibit visitation when the defendant is sentenced to
state prison for a specified sex crime and the victim is a child under the age of 18 years.
The statute was not intended to prohibit visitation where the victim has reached the age of
18 years at time of sentencing. (People v. Scott (2012) 203 Cal.App.4th 1303, 1317-


                                              9
1319; People v. Ponce (2009) 173 Cal.App.4th 378, 382-383 [protective orders are
limited to the pendency of trial or probationary period; discussing § 136.2].) The trial
court had no statutory authority to impose a no-contact order effective beyond the
pendency of the criminal proceeding. (People v. Hamlin (2009) 170 Cal.App.4th 1412,
1478; People v. Robertson (2012) 208 Cal.App.4th 965, 996.) "[E]ven where a court has
inherent authority over an area where the Legislature has not acted, this does not
authorize its issuing orders against defendants by fiat or without any valid showing to
justify the need for the order. [Citation.]" (People v. Ponce, supra, 173 Cal.App.4th at p.
384.) Because the no-contact order is unauthorized, it must be stricken. (Id., at pp. 385-
386.)
                               Presentence Conduct Credits
              Appellant contends, and the Attorney General agrees, that he is entitled to
149 days presentence conduct credits. The trial court awarded 996 days actual custody
but was under the mistaken impression that it was precluded from awarding presentence
conduct credits because appellant was receiving an indeterminate sentence. Adopting the
recommendation of the probation report, the trial court awarded "zero days [conduct]
credit under Penal Code section 3046."
              It is settled that a defendant who receives an indeterminate life sentence is
entitled to presentence conduct credits. (People v. Brewer (2011) 192 Cal.App.4th 457,
461-464; People v. Philpot (2004) 122 Cal.App.4th 893, 907.) Because appellant was
convicted of a lewd act on a minor (§ 288, subd. (a)), a violent felony, he cannot earn
more than 15 percent conduct credits. (§§ 2933.1, subd. (c); 667.5, subd. (c)(6).)
Appellant was awarded 996 days custody credit and is entitled to 149 days conduct credit
(15 percent of 996 days actual custody), for a total award of 1,145 days.
                                         Conclusion
              The no-contact order is stricken. (People v. Ponce, supra, 173 Cal.App.4th
at pp. 384-386 [trial court has no inherent power to impose a no-contact order where
victim is an adult at time of sentencing].) Appellant is awarded 149 days conduct credit


                                             10
plus 996 days actual custody, for a total of 1,145 days presentence credits. The clerk of
the superior court is directed to amend the May 29, 2014 sentencing minute order and
abstract of judgment to reflect the sentence changes and to forward certified copies of the
amended minute order and abstract of judgment to the Department of Corrections and
Rehabilitation.
              As modified, the judgment is affirmed.
              NOT TO BE PUBLISHED.



                                                        YEGAN, J.
We concur:



              GILBERT, P. J.



              PERREN, J.




                                            11
                                Kevin G. Denoce, Judge

                           Superior Court County of Ventura

                          ______________________________


             Tanya Dellaca, under appointment by the Court of Appeal, for Defendant
and Appellant.
              Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney
General, for Plaintiff and Respondent.
