Filed 3/9/22 P. v. Castrejon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GABINO CASTREJON,

Defendant and Appellant.

F078934

(Super. Ct. No. F18904134)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. 

Kams, Judge.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. 

Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Franson, J. and Meehan, J.
2.

Following a jury trial, defendant Gabino Castrejon was convicted of two counts of 

forcible rape of a child over the age of 14, and one count of a lewd act with a child under 

the age of 14. Defendant now contends the trial court committed prejudicial and/or 

constitutional error when it failed to instruct the jury on the lesser crime of unlawful 

sexual intercourse with a minor, as defined by Penal Code section 261.5.1 Defendant 

further notes the sentencing minute order and the abstract of judgment both reflect an 

incorrect number of local conduct credits. While we agree there are errors in the abstract 

of judgment and the minute order, we do not agree defendant was harmed by the lack of 

an instruction for unlawful sexual intercourse. We remand for a correction of the errors 

related to sentencing and affirm in all other respects.

FACTS

Defendant and Jane Doe were related, and Jane would often visit defendant 

overnight. Jane stopped visiting defendant because of conduct he asked her to engage in. 

Eventually, defendant begged Jane to visit him again and she felt pressured to go. Each 

time she visited defendant, he would ask her to “do it” and she would tell him “ ‘No. No.

[We’re related].’ ”

Jane testified that the first time she remembered having sexual intercourse with 

defendant was when she was 15 or 16. Defendant took her to a hotel, explaining that he 

did not have a place for them to sleep. She was angry that she was being taken to a hotel. 

She testified that she just wanted to sleep, but defendant “got on top of [her],” prompting 

her to say “ ‘[n]o’ ” and to cry. Jane kept telling defendant “ ‘[n]o’ ” and to “ ‘[g]et off,’ 

” while he used force to prevent her from moving. Jane testified she was crying as 

defendant “put it in,” but she was unable to do anything, as she was in shock and scared. 

1 All subsequent statutory references are to the Penal Code.
3.

Jane testified defendant took her virginity on that day,2 but told no one because she was 

scared.

After defendant moved to a house in Fresno, this type of activity continued when 

Jane visited him overnight. When asked to go into detail about these additional episodes, 

she testified it happened a couple more times after defendant moved to the new home. 

Jane explained that on at least one occasion, defendant tried to bribe her with money to 

engage in sexual activity. Jane told law enforcement that during this time period 

defendant penetrated her vagina with his penis approximately three to five times. Officer 

Ruben Ozuna reported Jane told him about the additional sexual encounters that occurred 

at the home in Fresno.3

Jane gave birth to a baby in March 2018. A DNA test revealed there was an 

extremely high probability defendant was the biological father of the baby.4

Defense Evidence

Defendant testified he never raped Jane. He also denied using force to have sex 

with Jane. Defendant also denied bribing her for sex. While defendant admitted to one 

sexual encounter with Jane, he denied it involved violence. During the prosecution’s 

cross-examination, defendant again admitted he had sex with Jane once.

2 The record is very vague on the exact dates when these sexual encounters 

occurred. Because this incident is described as the first time when she was 15 or 16, and 

the evidence indicates it happened before he moved to Fresno, we conclude this incident 

falls within the time frame of count 1 (December 27, 2015, through December 26, 2016). 

During this time period, Jane was 15 years old.

3 Again, no exact dates were provided, but this activity seems to have occurred 

during the time frame laid out in count 2 of the information (December 27, 2016, through 

July 30, 2017). This is also consistent with the time period when defendant was living in 

the Fresno house. 

4 We note that March 2018 is approximately eight months after July 30, 2017, the 

end of the period specified in the information in count 2 alleged against defendant. 
4.

The defense provided additional testimony from Yasmin Mejia, a defense 

investigator who interviewed Jane and her mother. During an hour-long conversation 

with Jane, Jane told Mejia she “consented” to sex with defendant five times, but then 

immediately said “no” to him. Mejia also testified that Jane told her defendant would 

show up at her house and beg her to come visit him. Jane told Mejia that on one such 

visit defendant put his penis into her vagina, and that she was a virgin at that time. Jane 

felt she could not say “no” because she feared defendant would yell at her. Jane also told 

Mejia that she would occasionally hit or push defendant and tell him to stop.

The Verdict

On February 4, 2019, the jury returned verdicts of guilt on counts 1 and 2 (forcible 

rape of a child 14 years or older; § 264, subd. (c)(2)), and count 4 (lewd act on a child 

under the age of 14; § 288, subd. (a)).5

DISCUSSION

Defendant raises several issues, which are interconnected. Most issues raised by 

defendant concern the question of whether there was a need for a jury instruction on 

unlawful sexual intercourse. Defendant specifically contends the trial court was required 

to provide this instruction, because it was a necessarily included lesser offense in this 

case. Moreover, the failure to give the instruction violated his constitutional right to due 

process and to present a defense under both federal and state law, ultimately impacting 

his right to a fair trial. Defendant believes this error cannot be deemed harmless and 

requires a reversal of his conviction. Finally, defendant challenges the accuracy of the 

abstract of judgment prepared in this case, arguing it misstates the number of local 

conduct credits he has earned while in custody.

5 Defendant has not challenged the jury verdict on count 4.
5.

I. Unlawful Sexual Intercourse Is Not a Necessarily Included Lesser Offense of 

Forcible Rape

Defendant contends the trial court was required to instruct sua sponte on the 

offense of unlawful sexual intercourse with a minor (§ 261.5) because it qualified as a 

necessarily included lesser offense of forcible rape (§ 261, subd. (a)(2)) under the 

accusatory pleading test. Defendant correctly notes we apply a de novo standard of 

review when considering whether a trial court failed to instruct on a necessarily included 

lesser offense. (People v. Licas (2007) 41 Cal.4th 362, 366.) 

A. Applicable Law

Even without a request from the defense,6 a trial court is required to provide an 

instruction for a lesser offense “ ‘necessarily included in the charged offense’ ” when 

substantial evidence exists in the record showing the defendant is guilty only of the lesser 

crime. (People v. Alvarez (2019) 32 Cal.App.5th 781, 786 (Alvarez).) A court will 

decide whether a crime is a necessarily included lesser offense by either considering the 

statutory elements of the greater offense, or by considering the facts alleged in the 

accusatory pleading. (People v. Smith (2013) 57 Cal.4th 232, 240 (Smith).) When using 

either test, the court must conclude the greater offense cannot be committed without also 

committing the lesser offense. (Ibid.)

1. The Elements Test

When applying the elements test, it is easy to conclude unlawful sexual 

intercourse, as defined in section 261.5, is not a necessarily included lesser offense of 

forcible rape, as defined in section 261. Forcible rape “is an act of sexual intercourse 

accomplished ... [with] a person who is not the spouse of the [perpetrator]” when 

“accomplished against a person’s will by means of force, violence, duress, menace, or 

6 The record lacks any evidence defendant ever requested the court give an 

instruction on unlawful sexual intercourse.
6.

fear of immediate and unlawful bodily injury on the person or another.” (§ 261, 

subd. (a)(2).) Unlawful sexual intercourse is “an act of sexual intercourse accomplished 

with a person who is not the spouse of the perpetrator, if the person is a minor.”

7

 

(§ 261.5, subd. (a).) 

The greater offense of forcible rape does not require that the victim be a minor. 

As a result, forcible rape can be committed without also committing the lesser crime of 

unlawful sexual intercourse as defined by section 261.5. (See Smith, supra, 57 Cal.4th at 

pp. 240–241.) Accordingly, under the elements test, the trial court in this case had no sua 

sponte duty to instruct the jury on the crime of unlawful sexual intercourse.

2. The Accusatory Pleading Test

To be successful here, defendant must show the crime of unlawful sexual 

intercourse is a necessarily included lesser crime of forcible rape under the “accusatory 

pleading” test. When considering this test, the court is only required to examine the 

accusatory pleading—in this case, the information. (People v. Woods (2015) 241 

Cal.App.4th 461, 473.) 

As explained by the Supreme Court in People v Montoya (2004) 33 Cal.4th 1031 

(Montoya), when using the “ ‘accusatory pleading’ ” test, the court considers only 

whether the charging allegations contain language “ ‘ “ ‘describing the offense in such a 

way that if committed as specified,’ ” ’ ” a lesser offense is necessarily committed at the 

same time. (Id. at p. 1035.) Courts have noted over the years that this test protects a 

defendant’s right to due process by providing the accused with adequate notice before 

being convicted of a lesser offense. (Id. at p. 1035; see Alvarez, supra, 32 Cal.App.5th at 

p. 788 [discussing the dangers of reaching beyond the accusatory pleading].) However, a 

trial court must only look to the accusatory pleading when applying the accusatory 

7 Under § 261.5, a “minor” is defined as a person under the age of 18 years. 
7.

pleading test. (Smith, supra, 57 Cal.4th 232, 244.) The test “does not require or depend 

on an examination of the evidence adduced at trial.” (Ibid.) 

Defendant relies on People v. Ortega (2015) 240 Cal.App.4th 956 to argue a 

preliminary hearing transcript may be considered when applying the accusatory pleading 

test. (Id. at p. 969.) The Ortega court felt the transcript was an “integral” part of the 

accusatory procedure because it was consistent with a defendant’s due process right to 

notice, which may also be developed during the preliminary hearing. (Ibid.) 

However, in 2019 the Alvarez court concluded the analysis in Ortega was contrary 

to language provided by our Supreme Court in Montoya, which held when using the 

accusatory pleading test, the court should consider only the pleading for the greater 

offense. (Alvarez, supra, 32 Cal.App.5th at pp. 787–788; Montoya, supra, 33 Cal.4th at 

p. 1036.) This conclusion is also consistent with People v. Hicks (2017) 4 Cal.5th 203,

which held there is no requirement that “every possible crime a defendant may have 

committed be presented to the jury as an alternative.” (Id. at p. 211.) Instead, a jury must 

only be instructed on offenses charged by the prosecution, either explicitly or implicitly.8 

(Ibid.) We agree with Alvarez, and thus decline to follow the approach taken by the 

Ortega court. (See Alvarez, supra, 32 Cal.App.5th at p. 788; People v. Macias (2018) 26 

Cal.App.5th 957, 964; People v. Munoz (2019) 31 Cal.App.5th 143, 158.)

B. Application of the Accusatory Pleading Test

Because we are bound by the precedent provided by the Supreme Court in 

Montoya and Hicks when applying the accusatory pleading test, we will limit our review 

8 The Supreme Court in People v. Birks (1998) 19 Cal.4th 108, 129 recognized the 

important role the prosecution plays in making decisions about charging a crime, and the 

strategic chances taken when pursuing a greater offense alone, without the security of a 

lesser related offense that might be easier to prove.
8.

to the charging allegations contained in the information. (Auto Equity Sales, Inc. v. 

Superior Court (1962) 57 Cal.2d 450, 455.) 

The information filed on November 1, 2018, alleged defendant committed rape in 

violation of sections 261, subdivision (a)(2) and 264, subdivision (c)(2) when he 

“willfully and unlawfully ... [committed] an act of sexual intercourse with 

Jane Doe, a minor 14 years of age or older, not his spouse, and did 

accomplish said act against said victim’s will, by means of force, violence, 

duress, menace or fear of immediate or unlawful bodily injury on said 

person ....”

Count 1 of the information used this language to charge the commission of this crime 

between December 27, 2015, and December 26, 2016. Count 2 of the information used 

the same language to charge the commission of this crime between December 27, 2016, 

and July 30, 2017. Both counts alleged the crime was committed with “force, violence, 

duress, menace or fear of immediate or unlawful bodily injury ....”

Again, language in the information charging both counts 1 and 2 address Jane’s 

age, but says nothing about defendant’s age. The reference to Jane’s age is in connection 

to the punishment defendant would receive if he was found guilty of committing forcible 

rape, as defined by section 261, subdivision (a)(2). (§ 264, subd. (c)(2).) Nowhere in the 

information is defendant’s age alleged, which is necessary for the lesser crime of 

unlawful sexual intercourse.9 (§ 261.5; People v. Woods, supra, 241 Cal.App.4th 461, 

473.) 

Using the accusatory pleading test, we find unlawful sexual intercourse, as defined 

by section 261.5, was not a necessarily included lesser offense of forcible rape as defined 

by section 261, or as alleged in the information in counts 1 and 2. Any evidence 

defendant may have offered during his testimony to support the lesser charge did not 

9 Section 264, which was cited in the information, makes no reference to 

section 261.5. Instead, it defines the punishment only for the crimes committed under 

section 261 (forcible rape) or former section 262 (rape of a spouse). 
9.

trigger any responsibility by the court to instruct the jury on the crime of unlawful sexual 

intercourse. (See People v. Hicks, supra, 4 Cal.5th at p. 211.) 

Because we find the trial court did not err, we must also conclude defendant was 

not denied due process under either the federal or state constitutions to present a defense 

or to receive a fair trial.

10

C. Even If the Court Was Required to Provide an Instruction on a Lesser 

Offense, the Error Was Harmless.

In California, when the defendant in a noncapital case challenges a court’s failure 

to provide an instruction for a lesser included offense, the defendant must show the error 

resulted in a miscarriage of justice after reviewing the entire record of the trial. (People 

v. Breverman (1998) 19 Cal.4th 142, 173.) An error warrants reversal only if after a 

review of the entire record a reasonable probability exists the defendant would have 

received a more favorable result without the error. (Id. at pp. 174–176; People v. Watson 

(1956) 46 Cal.2d 818, 836.) In this setting, a “ ‘ “reasonable probability” ’ ” means a 

“ ‘reasonable chance, more than an abstract possibility.’ ” (People v. Ross (2007) 155 

Cal.App.4th 1033, 1055.)

Arguing reversible error, defendant contends his testimony provided “substantial 

evidence,” supporting the need for the instruction to the jury on the crime of unlawful 

sexual intercourse. Defendant testified he engaged in only one act of sexual intercourse 

with Jane, and that it was consensual. Defendant additionally points to testimony 

provided by Mejia, who interviewed Jane. However, a reading of that testimony shows 

that while Jane told Mejia she initially consented to defendant’s request about five times, 

10 If the theory that Jane consented to sexual intercourse was so central to 

defendant’s defense, why was no request made to the court for the instruction on 

unlawful sexual intercourse? Both parties submitted requests for jury instructions, yet the 

record provided to this court shows that no request was made by defendant for the 

instruction he now contends was necessary. 
10.

she also told Mejia she then said “no” immediately thereafter. It is not possible to focus 

on just one part of the testimony Mejia provided without also considering the larger 

context of the testimony, in which Mejia reported Jane said she withdrew her consent 

each time.

By convicting defendant of both counts of forcible rape, the jury necessarily 

rejected defendant’s characterization that he and Jane only engaged in consensual sexual 

intercourse once, and found instead that defendant engaged in unconsented, forced sexual 

intercourse with Jane at least twice. The lack of consent and the use of force were 

necessary elements of the crime of forcible rape. (§ 261.) Additionally, the jury was 

specifically instructed it would have to acquit defendant of any charge for which 

evidence did not support an element of the crime as charged, such as the lack of consent. 

(CALCRIM No. 3500.)

Based on our review of the entire record as required by the court in Breverman, we 

cannot conclude there was a reasonable probability defendant would have received a 

more favorable result had an instruction on the lesser offense of unlawful sexual 

intercourse been given. Any resulting error, therefore, was harmless.

IV. The Errors in the Abstract of Judgment and the Minute Order Must Be 

Corrected.

On March 6, 2019, defendant was sentenced to 20 years in prison as follows: 

nine years each for counts 1 and 2, and two years for count 4. Defendant correctly notes 

the trial court also awarded him 259 days of presentence confinement credit, with another

38 days of local conduct credit,11 resulting in a total of 297 days of credit.12

11 The abstract of judgment and the minute order in this case use different names for 

this type of good conduct credit. To avoid confusion, we will use the phrase “local 

conduct credit” as it appears in the abstract of judgment. 

12 Defendant’s ability to earn these credits is capped at 15 percent under 

section 2933.1, because he was convicted of a violent felony.
11.

Our review of this issue focuses on the “FIRST AMENDED ABSTRACT OF 

JUDGMENT” filed and dated on March 8, 2019, and the “Second Corrected Minute 

Order.” While both documents list defendant’s sentence correctly as equaling 20 years, 

both also contain the same error listing only three days instead of 38 days for local 

conduct credits earned at the time of sentencing. 

An appellate court may direct a trial court to correct this type of error. (People v. 

Mitchell (2001) 26 Cal.4th 181, 185.) We will, therefore, remand with instructions to 

correct the “FIRST AMENDED ABSTRACT OF JUDGMENT,” and the “Second 

Corrected Minute Order,” to reflect the proper number of local conduct credits earned by 

defendant at the time he was sentenced on March 6, 2019. 

DISPOSITION

This matter is remanded to the trial court with instructions to correct the “FIRST 

AMENDED ABSTRACT OF JUDGMENT” filed on March 8, 2019, and the “Second 

Corrected Minute Order” from March 6, 2019, to accurately reflect defendant earned 

38 days of local conduct credit at the time he was sentenced. Once these corrections are 

made, the trial court shall forward an amended abstract of judgment to the appropriate 

authorities. In all other respects, the judgment is affirmed.