P. v. Cerros



















Filed 4/4/13 P. v. Cerros CA2/1

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE




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THE PEOPLE, Plaintiff and Respondent, v. MARTIN FERNANDO CERROS, Defendant and Appellant.

B237693 (Los Angeles County Super. Ct. No. VA117226)

APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.
Philip H. Hickok, Judge.
Affirmed.

Daniel G.
Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette and Lance E. Winters, Assistant
Attorneys General, Paul M. Roadarmel, Jr. and William N. Frank, Deputy
Attorneys General, for Plaintiff and Respondent.





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Defendant
Martin Cerros appeals from the judgment entered following a jury trial in which
he was convicted of 19 counts of sexual abuse of a child under 14 years of
age. He contends no evidence supported
the finding that he was at least seven years older than the child, the trial
court erred in not instructing the jury that it was required to reach unanimous
decisions on which instances of abuse supported the guilt finding on each
count, and his sentence of 255 years to life was excessive. We affirm.

BACKGROUND

Elizabeth L. was born in October
1996. In 2002 or 2003, defendant Martin
Cerros began a relationship with Elizabeth’s
mother, Rocio M. Defendant rented a
one-room home when Elizabeth was 12
years old, and she stayed with him even though Rocio M. for the most part did
not. Elizabeth
considered defendant to be her stepfather.
Defendant fathered two daughters with Rocio M., in 2003 and 2004. They also lived with him.

When Elizabeth
was 11 years old, defendant began to touch her vagina, buttocks and breasts,
and doing so almost every day. When she
would say no and try to push him away, he would become angry and push her back.

After Elizabeth
was 12, defendant continued to fondle her href="http://www.sandiegohealthdirectory.com/">breasts and buttocks and
began to penetrate her vagina with his fingers.
He did this four or five times per week.

When Elizabeth
was 13, defendant continued to fondle her breasts and buttocks and digitally
penetrate her vagina. He also put his
mouth on her vagina once and began to penetrate her vagina with his penis,
which he did six or seven times per week for approximately one year. Elizabeth
would cry and tell him to stop, but he would hold her down and push and kick
her.

Elizabeth
eventually reported the abuse to an aunt and her mother. When confronted, by Rocio, defendant admitted
the molestation and told Rocio he would move to Mexico. Instead, he was arrested, and in a police
interview admitted to regular intimate touching and sexual intercourse with Elizabeth
over the past five or six years.

Defendant was charged with
committing continuous sexual abuse of a child under the age of 14 years (Pen.
Code, § 288.5, subd. (a); count 1);href="#_ftn1"
name="_ftnref1" title="">^>[1]
committing a forcible lewd act upon a child (§ 288, subd. (b)(1); count 2);
three counts of aggravated sexual assault of a child by sexual penetration (§
269, subd. (a)(5); counts 3-5); aggravated sexual assault of a child by oral
copulation (§ 269, subd. (a)(4); count 6); and 13 counts of aggravated sexual
assault of a child by rape (§ 269, subd. (a)(1); counts 7-19). Defendant pleaded not guilty. Trial was by jury, and defendant was
convicted on all counts.

The trial court sentenced defendant
to the high term of 16 years on count 1 plus consecutive term of 8 years (the
high term) on count 2 and 17 terms of 15 years to life for counts 3 through 19,
for an aggregate sentence of 255 years to life.

Defendant appeals the href="http://www.mcmillanlaw.com/">judgment of conviction and sentence.

DISCUSSION

A. Sufficiency of Evidence
for Counts 3 - 19

Defendant was convicted on counts 3
through 19 of violating section 269, which proscribes sexual assault of a child
under 14 years of age who is also “seven or more years younger than” the
assailant. (§ 269, subd. (a).) Defendant does not dispute that the evidence
at trial established Elizabeth was
under 14 years of age at all pertinent times.
Instead, he contends no “testimonial or documentary evidence” was
introduced that he was seven or more years older than she was.

“‘When the sufficiency of the
evidence is challenged on appeal, the court must review the whole record in the
light most favorable to the judgment to determine whether it contains
substantial evidence—i.e., evidence that is credible and of solid value—from
which a rational trier of fact could have found the defendant guilty beyond a
reasonable doubt.’ [Citations.]” (People
v. Jennings (1991) 53 Cal.3d 334, 364.)
“When undertaking such review, our opinion that the evidence could
reasonably be reconciled with a finding of innocence or a lesser degree of
crime does not warrant a reversal of the judgment.” (People
v. Hill (1998) 17 Cal.4th 800, 849.)

According to the probation report,
defendant was born in 1970, making him 26 years older than Elizabeth, 41 years
old at the time of trial. But neither
the probation report nor any other document stating defendant’s age was shown
to the jury, and no witness testified and no stipulation was entered as to his
age. Defendant is therefore correct that
no testimonial or documentary evidence
directly stated his age.

But testimony and documentation are
not the only means by which a defendant’s age may be established: a view of the defendant by the trier of fact
may in an appropriate case be sufficient to support a finding that he is within
a certain age range. (See >People v. Montalvo (1971) 4 Cal.3d 328,
335.) “‘Experience teaches us that
corporal appearances are approximately an index of the age of their bearer,
particularly for the marked extremes of old age and youth. In every case such evidence should be accepted
and weighed for what it may be in each case worth. . . .’ [Citations.]”
(Ibid; People v. Castaneda (1994) 31 Cal.App.4th 197, 203-204 [“In all
jurisdictions, the defendant’s presence, subject to the jury’s view is
relevant, circumstantial evidence of age”].)

Here, defendant was present in
court and visible to the jury during trial.
The prosecutor noted that he appeared to be “middle aged,” and defense
counsel argued that he was a “grown man” in appearance. Furthermore, there was testimony that he had
fathered children with Elizabeth’s mother in 2002 and 2003 and that he rented a
one-room home when Elizabeth was 12 years old.
And an audio recording of defendant’s interview with police was played
for the jury, in which he stated he began working at a record store in 1999,
when Elizabeth was three years old.

The guilty verdict reflects the
jury’s conclusion that defendant was seven or more years older than
Elizabeth. This apparent age
differential was corroborated by other testimony. Although the evidence was not conclusive by
itself, the jury could reasonably infer the requisite age differential existed.


B. Unanimity Instruction

Defendant contends the trial court erred in failing sua sponte to give
the jury a unanimity instruction such as CALJIC No. 17.01.href="#_ftn2" name="_ftnref2" title="">[2] We disagree.

In People v. Russo (2001) 25 Cal.4th 1124, our Supreme Court said, “In
a criminal case, a jury verdict must be unanimous. [Citations.]
. . . . Additionally, the jury
must agree unanimously the defendant is guilty of a specific crime. [Citation.]
Therefore, cases have long held that when the evidence suggests more
than one discrete crime, either the prosecution must elect among the crimes or
the court must require the jury to agree on the same criminal act. [Citations.]
[¶] This requirement of unanimity
as to the criminal act ‘is intended to eliminate the danger that the defendant
will be convicted even though there is no single offense which all the jurors
agree the defendant committed.’
[Citation.] For example, in >People v. Diedrich [(1982)] 31 Cal.3d
263, the defendant was convicted of a single count of bribery, but the evidence
showed two discrete bribes. We found the
absence of a unanimity instruction reversible error because without it, some of
the jurors may have believed the defendant guilty of one of the acts of bribery
while other jurors believed him guilty of the other, resulting in no unanimous
verdict that he was guilty of any specific bribe. [Citation.]
‘The [unanimity] instruction is designed in part to prevent the jury
from amalgamating evidence of
multiple offenses, no one of which has been proved beyond a reasonable doubt,
in order to conclude beyond a reasonable doubt that a defendant must have done >something sufficient to convict on one
count.’ [Citation.]” (People
v. Russo, supra, 25 Cal.4th at p.
1132.)

Failure to give a unanimity instruction is error when
“there is evidence based on which reasonable jurors could disagree as to which
act the defendant committed. If there is
such evidence, the failure to give [a unanimity instruction] will most often,
though not necessarily, be prejudicial.”
(People v. Schultz (1987) 192
Cal.App.3d 535, 539-540, fn. omitted.)

But a unanimity instruction is not required in all
cases where the evidence shows that more than one act could suffice for a
conviction of a particular offense. “‘“A
unanimity instruction is required only if the jurors could otherwise disagree
which act a defendant committed and yet convict him of the crime charged.” [Citations.]
“Where the acts were substantially identical in nature, so that any
juror believing one act took place would inexorably believe all acts took place,
the instruction is not necessary to the jury’s understanding of the case.”’ [Citations.]”
(People v. Champion (1995) 9
Cal.4th 879, 932 [court did not err in not giving unanimity instruction on
single charge of rape supported by two acts of penetration when the evidence
supporting the acts was “virtually identical” and theory of defense was that
defendant had not participated in any of the acts].) “[T]he possibility of disagreement exists
where the defendant is accused of a number of unrelated incidents, such as
alleged rapes at different times or places, leaving the jurors free to believe
different parts of the testimony and yet convict the defendant. [Citations.]”
“Disagreement may also exist where the defendant offers a defense which
could be accepted or rejected as to some but not all of the acts. In this situation, the jurors again may
disagree as to which act the defendant was guilty of and yet convict him. [Citations.]
[¶] If under the evidence
presented such disagreement is not reasonably possible, the instruction is
unnecessary.” (People v. Gonzalez (1983) 141 Cal.App.3d 786, 791-792, fns. omitted
[failure to give CALJIC No. 17.01 not error when record showed that two acts of
penetration involved the same victim, occurred at the same location within
minutes of each other, and the defense argument that victim had consented to
one of the rapes was not supported by the evidence]; see also >People v. Mota (1981) 115 Cal.App.3d
227, 233 [prosecutor not required to elect three specific acts supporting the
three rape charges when victim testified to “many continuous acts of forced
sexual intercourse”]; but see People v.
Madden (1981) 116 Cal.App.3d 212, 218-219 [prejudicial error for court to
fail to give unanimity instruction when number of sex acts exceeded number of
sex offenses charged and the record did not demonstrate that the jury had
unanimously agreed on the acts].)

Similarly, “[t]he unanimity instruction is not
required when the acts alleged are so closely connected as to form part of one
transaction. [Citations.] The ‘continuous conduct’ rule applies when
the defendant offers essentially the same defense to each of the acts, and
there is no reasonable basis for the jury to distinguish between them. [Citation.]”
(People v. Stankewitz (1990)
51 Cal.3d 72, 100.)

Count 1

Defendant was convicted on count 1
of committing continuous sexual abuse of a child under the age of 14
years. (§ 288.5, subd. (a).) Subdivision (b) of section 288.5 states that
“To convict under this section the trier of fact, if a jury, need unanimously
agree only that the requisite number of acts occurred not on which acts
constitute the requisite number.”
Because a jury need not unanimously agree which act constituted the
sexual abuse, no unanimity instruction would be proper.

Count 6

Defendant was convicted on count 6
of aggravated sexual assault of a child by oral copulation. (§ 269, subd. (a)(4).) Elizabeth testified defendant orally
copulated her one time. Because the
evidence showed only one criminal act, no unanimity instruction was
required. (People v. Benavides (2005) 35 Cal.4th 69, 101 [when the evidence
“shows only a single discrete crime but leaves room for disagreement as to
exactly how that crime was committed, the jury need not unanimously agree on
the theory under which the defendant is guilty”].)

Counts 2-5 and 7-19

In the remaining counts, defendant
was charged with committing a forcible lewd act upon a child (§ 288, subd.
(b)(1); count 2); aggravated sexual assault of a child by sexual penetration (§
269, subd. (a)(5); counts 3-5), and aggravated sexual assault of a child by
rape (§ 269, subd. (a)(1); counts 7-19).


As to each of these crimes, the href="http://www.fearnotlaw.com/">undisputed testimony was that defendant
committed countless forcible lewd acts upon Elizabeth, and sexually penetrated
her and raped her countless times.
Elizabeth testified defendant touched her vagina, buttocks and breasts
every day for approximately three years beginning when she was 11 years
old. When she was 12, defendant began to
penetrate her vagina with his fingers, doing so four or five times per week for
approximately two years. When Elizabeth
turned 13, defendant began to penetrate her vagina with his penis. He did this six or seven times per week for
approximately one year.

Defendant offered essentially the
same defense to each of these acts, and there was no reasonable basis for the
jury to distinguish between them. In
such a circumstance, no unanimity instruction is required. (People
v. Stankewitz, supra, 51 Cal.3d
at p. 100.)

C. Cruel and Unusual
Punishment

Defendant contends his
255-years-to-life sentence violates both the federal and state prohibition
against cruel and/or unusual punishment because it is “grossly
disproportionate” to his crime. We
disagree.

Article I, section 17 of the
California Constitution prohibits cruel
or unusual punishment. (Cal. Const.,
art. I, § 17.) “‘Punishment is cruel and
unusual if it is so disproportionate to the crime committed that it shocks the
conscience and offends fundamental notions of human dignity.’ [Citation.]”
(People v. Sullivan (2007) 151
Cal.App.4th 524, 568.) To determine
whether a sentence is cruel or unusual, we consider the circumstances of the
offense and the defendant’s age, prior criminality, and mental capability. (People
v. Cole (2004) 33 Cal.4th 1158, 1235.)
The state must punish criminals while maintaining respect for their
human worth. (In re Lynch (1972) 8 Cal.3d 410, 424.) “Punishment which is so excessive as to
transgress [the limits of civilized standards] and deny that worth cannot be
tolerated.” (Ibid.) Because we judge the
constitutional validity of an indeterminate prison term by the maximum term
provided, we consider the proportionality of a life sentence. (Id.
at p. 416.)

“‘Whether a punishment is cruel or
unusual is a question of law for the appellate court, but the underlying
disputed facts must be viewed in the light most favorable to the
judgment.’ [Citation.]” (People
v. Em (2009) 171 Cal.App.4th 964, 971.)
Only in very rare cases could we declare the length of imprisonment
mandated by the Legislature to be unconstitutionally excessive. (People
v. Martinez (1999) 76 Cal.App.4th 489, 494.)

Defendant’s sentence is not
disproportionate to the crimes committed.
“California has recognized, and reasonably so, that sex offenders
present a serious danger to society because of their tendency to repeat their
sexual offenses. Sexual offenses not
only invade the deepest privacies of a human being, and thereby may cause
permanent emotional scarring, but they frequently result in serious physical
harm to, or death of, the victim.” (>People v. Meeks (2004) 123 Cal.App.4th
695, 709.) Section 288.5, subdivision
(a), prescribes a maximum sentence of 16 years for continuous sexual abuse of a
child. Section 288, subdivision (a),
mandates a maximum sentence of eight years for the commission of a lewd or
lascivious act upon the body of a child under the age of 14 years. Section 269, subdivisions (b) and (c),
prescribe a separate, consecutive prison term of 15 years to life on each count
on which an offender is convicted of aggravated sexual assault of a child where
the separate offenses involved the same victim on separate occasions. Thus, for the 19 offenses as defendant
committed them, the Penal Code mandates a maximum sentence of 255 years to
life.

To demonstrate that the
legislatively mandated sentence is cruel or unusual within the meaning of the
California Constitution, defendant must meet the three-prong test of >In re Lynch, supra, 8 Cal.3d at pp. 425-427.
Under that test, the court first looks at the nature of the crime and
evaluates the degree of danger the offender presents to society. Second, the court compares the sentence at
issue with sentences imposed for more serious crimes in California. Third, the court compares punishments for
more serious crimes in other jurisdictions.

Defendant makes little attempt to
address, much less satisfy, the Lynch
test. He adduces no mitigating factors
and offers no comparison between California’s legislative scheme and that
prescribed in other states. His sole
argument is that the sentence for multiple sex abuse crimes is disproportionate
because he would have received a lesser sentence for murder. We reject the comparison.

“When the fundamental nature of the
offense and the offender differ, comparison for proportionality is not
possible. The seriousness of the threat
a particular offense poses to society is not solely dependent on whether it
involves physical injury. Consequently,
the commission of a single act of murder, while heinous and severely punished,
cannot be compared with the commission of multiple felonies.” (People
v. Cooper (1996) 43 Cal.App.4th 815, 826.)

Our own analysis confirms what
defendant tacitly admits—he cannot meet even the first prong of the >Lynch test. Defendant molested and raped Elizabeth, who
was in his care, several times per week for many years. Nothing in the record suggests he would have
stopped had he not been confronted by Rocio.
When confronted, he offered to solve the problem by moving to Mexico,
which suggests he failed to grasp the nature and consequences of his
conduct. The continuous molestation of a
young child is a very serious crime, involving severe href="http://www.sandiegohealthdirectory.com/">psychological harm to the
victim even when no physical harm is inflicted.
The psychological aberration evidenced by defendant’s behavior and the
casual and opportunistic nature of his sexual assaults against a child in his
care seem to us precisely the sort of sexual offense that warrants harsh
punishment. (People v. Alvarado (2001) 87 Cal.App.4th 178, 199-200.) In any event, having failed to satisfy any
prong of the Lynch test, or even to
address the first and third prongs, defendant’s state claim fails.

With respect to defendant’s federal
claim, the United States Supreme Court has upheld sentences of 25 years-to-life
for one count of felonious grand theft with several felony and misdemeanor
prior convictions, and 50-years-to-life for two counts of petty theft with
prior theft convictions with a similar prior record, against claims that the
sentences constituted cruel and unusual punishment. (Ewing
v. California (2003) 538 U.S. 11, 14; Lockyer
v. Andrade (2003) 538 U.S. 63, 70-77; see also Rummel v. Estelle (1980) 445 U.S. 263, 266, 285 [life sentence
after three separate convictions for theft of $80, $28.36 and $120.75 does not
constitute cruel and unusual punishment].)


Defendant’s crimes were significantly more serious than those
committed by the defendants in Ewing and
Andrade. Thus, we reject his claim that his sentence
constitutes cruel and unusual punishment under the federal Constitution.href="#_ftn3" name="_ftnref3" title="">[3]

On this record, defendant’s
sentence does not shock the conscience or offend fundamental notions of human
dignity. It therefore violates neither
the California nor federal Constitution.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.







CHANEY,
J.



We concur:







MALLANO,
P. J.







JOHNSON,
J.