Filed 4/20/16 P. v. Gonzalez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 8.111.5. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

SALVADOR MARGARITO GONZALEZ,

 Defendant and Appellant.

2d Crim. No. B256982

(Super. Ct. No. 2011032303)

(Ventura County)

Salvador Margarito Gonzalez appeals his conviction by jury of five counts 

of lewd acts on a child (Pen. Code, § 288, subd. (a))1with 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. 
2

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. 
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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 
4

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 
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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].) 
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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 

either the victim or the offender." (CALCRIM No. 1193.1 Substantial Sexual Conduct.)2 

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." 
7

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 
8

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.) 
9

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-
10

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 
11

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.
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.