People v. Gonzalez-Machorro CA2/6

── People v. Gonzalez-Machorro CA2/6 ── Court: California Court of Appeal Date: May 19, 2026 Category: General Filed 5/19/26 P. v. Gonzalez-Machorro CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX THE PEOPLE, 2d Crim. No. B337031 (Cons. w/ B342774) Plaintiff and Respondent, (Super. Ct. No. 20CR01403) (Santa Barbara County) v. HIGINIO GONZALEZ- MACHORRO, Defendant and Appellant. Appellant Higinio Gonzalez-Machorro challenges his conviction of rape of an intoxicated woman in violation of Penal Code1 section 261, subdivision (a)(3). He contends his conviction must be reversed because of two instructional errors. We disagree and will affirm. 1 Further undesignated statutory references are to the Penal Code.  FACTUAL AND PROCEDURAL BACKGROUND Appellant and Jane Doe were 21 and 19 years old, attending a Fourth of July party at a fraternity house. Both drank heavily. Appellant believes he was in a “brownout” (a partial blackout), but he was able to testify in detail regarding his conduct with Doe at the party. Doe does not remember the period between 8:00 p.m. and 12:40 a.m. The first thing she remembers is waking up in a bed with two men and believing she had been raped. The next thing she remembers is standing in the street screaming that she had been raped. Her shoes were gone, her clothes were undone, and her personal items were missing. Doe suffered multiple injuries, including a cut on her left thigh, an abrasion on her lower right thigh, bruising on her lower thigh and her left scapula, and redness in the center of her back. She suffered from severe pain in her anus lasting several weeks. Doe submitted to a SART exam. Swabs taken from her vagina, rectum, and lower back were sent for DNA analysis. Her boyfriend and three other men who attended the party were excluded as contributors. Appellant was included as a contributor. Appellant was charged by amended information with rape while the victim was prevented from resisting by any intoxicating or anesthetic substance (count 1; § 261, subd. (a)(3)), rape of unconscious person (count 2; § 261, subd. (a)(4)(B)), sodomy of an intoxicated person (count 3; § 286, subd. (i)), and sodomy of an unconscious victim (count 4; § 286, subd. (f)). As to each count, it was alleged the victim was particularly vulnerable. (Cal. Rules of Court, rule 4.421(a)(3).) Appellant pled not guilty. A jury found him guilty as charged on count 1, acquitted him on counts 2 2 through 4, and found the aggravating factor not true. The trial court sentenced appellant to six years in state prison. DISCUSSION CALCRIM No. 1002 Correctly States the Law Appellant contends CALCRIM No. 1002 as given to the jury failed to adequately identify the standard of criminal negligence required for a conviction under section 261, subdivision (a)(3) because “the instruction’s ‘reasonably should have been known’ language improperly suggests that ordinary negligence is sufficient for [a] conviction.” We review de novo whether jury instructions are correct, consider the instructions as a whole, and examine whether the instructions fully and fairly instructed the jury on the applicable law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) Section 261, subdivision (a)(3) provides: “Rape is an act of sexual intercourse accom