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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              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.



          2
         Given the limited issue involved in this appeal, we limit our recitation of the
evidence presented at trial to that necessary to make clear the context of the legal issue
raised by appellant.


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       Appellant’s son testified that he saw his father having sex with his niece, Jane Doe
No. 1, when she was 12 or 13 years old. He believed the timeframe was 1998-1999.
       Jane Doe No. 2, another of appellant’s granddaughters, was 16 years old at the
time of trial. Appellant began touching her genitals when she was about four or five
years old, and he would put his penis in her vagina from the back several times a week.
The contacts stopped when Jane Doe No. 2 went to kindergarten.
       Sergeant Ruben Martinez of the Sonoma County Sheriff’s Office, participated in
an interview of appellant on January 20, 2013. There was an investigating officer from
the sheriff’s office present, along with an investigator from the district attorney’s office.
Sergeant Martinez was there to act as an interpreter. He testified that, although appellant
initially denied any acts of molestation, ultimately he admitted touching Jane Doe No. 1’s
anus and vagina when she was about eight years old, once in the laundry room of his
home, and once in the garage. He also admitted touching Jane Doe No. 2’s vagina and
buttocks twice in his bedroom. He denied sexually penetrating either minor.
                                              III.
                                        DISCUSSION
       Among the jury instructions given to the jury by the trial court after the conclusion
of the evidence was a modified version of CALCRIM No. 1191, entitled “Evidence of
Charged Sex Offenses.” That instruction stated as follows:
       “The People have presented evidence that the defendant committed the crimes of
sexual child abuse as alleged in Counts I, II, III, IV, V, VI, and X, and aggravated sexual
assault of a child under 14 years, as alleged in Counts VII, VIII, and IX. These crimes
are defined for you in these instructions.
       “If you decide the defendant committed one of these charged offenses you may,
but are not required to, conclude from that evidence that the defendant was disposed to or
inclined to commit the other charged crimes and engaged in the conduct specified in each
of the instructions three four one zero, the statute of limitations [sic].




                                               3
       “And those are instructions that immediately follow this instruction. You’ll see
the numbers when you get into the jury room with your own copy. I don’t read them to
you when I’m reading the instructions.
       “And based on that decision, also conclude the defendant was likely to commit
and did commit the other charged crimes.
       “If you conclude that defendant committed a charged crime, that conclusion is
only one factor to consider along with all the other evidence. It is not sufficient by itself
to prove that the defendant is guilty of another charged offense. The People must still
prove each element of every charge beyond a reasonable doubt and prove it beyond a
reasonable doubt before you consider one charge as proof of another charge.”3
       The instruction is based on Evidence Code section 1108, subdivision (a), which
provides that “[i]n a criminal action in which the defendant is accused of a sexual
offense, evidence of the defendant’s commission of another sexual offense or offenses is
not made inadmissible by [Evidence Code] Section 1101, if the evidence is not
inadmissible pursuant to [Evidence Code] Section 352.” The use of prior acts of similar
sexual misconduct to proved charged offenses has been upheld as constitutional. (People
v. Falsetta (1999) 21 Cal.4th 903.) The unmodified version of CALCRIM No. 1191 has

       3
          CALCRIM No. 1191 was drafted to allow juries to infer a propensity to commit
charged sexual offenses from evidence that the defendant committed prior, similar
uncharged sexual offenses. Because the instruction here allowed the jury to consider
proven charged offenses as propensity evidence in deciding appellant’s guilt as to other
charged offenses, the principal modification to CALCRIM No. 1191 made by the court
was to delete language from the uniform instruction that deals with the burden of proof
relating to the prior uncharged offenses: “You may consider this evidence only if the
People have proved by a preponderance of the evidence that the defendant in fact
committed the uncharged offense[s]. Proof by a preponderance of the evidence is a
different burden of proof from proof beyond a reasonable doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more likely than not that the fact
is true. [¶] If the People have not met this burden of proof, you must disregard this
evidence entirely.” Appellant claims his due process right was violated in giving of the
instruction per se in a case where the propensity evidence is other charged conduct.
Therefore, the modifications adapted by the trial court are not asserted to be erroneous
themselves.


                                              4
been subsequently upheld as an accurate, and constitutional, statement of the law.
(People v. Schnabel (2007) 150 Cal.App.4th 83, 87.)
       Appellant contends it was a denial of his due process right for the court to instruct
the jury with CALCRIM No. 1191, as it can only be used in cases where the prosecution
attempts to prove a charged crime based on propensity evidence that the defendant
committed other similar, but uncharged, offenses. Yet, appellant concedes that our
Supreme Court approved use of a similar instruction in Villatoro, supra, 54 Cal.4th at
pp. 1167-1168. As appellant recognizes, it is incumbent upon us to follow this precedent
unless and until it is disapproved or reversed by a higher court. (Auto Equity Sales,
supra, 57 Cal.2d at p. 455.)
       Therefore, we conclude that it was not error for the trial court to give the modified
version of CALCRIM No. 1191 to the jury, and we accordingly affirm the judgment of
conviction and sentence.4
                                            IV.
                                     DISPOSITION
       The judgment and sentence are affirmed.




       4
          Appellant also contends that the error in instructing with CALCRIM No. 1191
was prejudicial. Because we conclude as a matter of law that there was no error in giving
the instruction, and the issue of prejudice is not address by respondent in his brief, we
need not, and do not, address the issue of whether such error was prejudicial.


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                                         _________________________
                                         RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




A141995, People v. Vargas-Gonzalez



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