P. v. Cervantes
Filed 1/23/14 P. v. Cervantes 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and
Respondent,
v.
OSCAR CERVANTES,
Defendant and Appellant.
2d Crim. No. B246474
(Super. Ct. No. 2009002881)
(
Oscar Cervantes was
charged with (count 1) rape of Jennifer H. in violation of Penal Code
section 261, subdivision (a)(2); (count 2) assault with intent to commit a
felony against Jennifer H. in violation of section 220; (count 3) lewd act on Jacqueline
H., a child under 14 years of age in violation of section 288, subdivision (a);
and (count 4) lewd act on Tanya H., a child under 14 years of age in violation
of section 288, subdivision (a).
name="_ftnref1" title="">[1]
It was further alleged
as to counts 1, 3 and 4 that Cervantes committed an offense specified in
section 667.61, subdivision (c) against more than one victim within the meaning
of subdivisions (b) and (e)(5) of that section and that at the time of the
offense Cervantes was 14 years of age or older within the meaning of
section 602, subdivision (b)(2).
Cervantes waived a jury
and the case was tried by the court. The
court found Cervantes guilty on all charges and found all special allegations
to be true. The court sentenced Cervantes
to the middle term of four years on count 2 and three consecutive 15-year-to-life
terms on counts 1, 3 and 4 to run consecutively to the term imposed on count 2.
We affirm.
FACTS
Jennifer was born in
1992. Cervantes is her first cousin. She saw him every weekend or every two weeks.
When Jennifer was
between 13 and 14 years old, she spent the night in Cervantes's family's home
in Fillmore. When she was in the
bathroom brushing her hair, Cervantes grabbed her by the waist and forced her
into her aunt's bedroom. He pushed her
onto the bed, took off her clothes and put his penis in either her vagina or
anus. During the rape, she was trying to
push him off her. Cervantes was in high
school at the time.
Cervantes attacked
Jennifer again around Christmas 2007.
Cervantes and his family were staying with Jennifer's family in
Palmdale. Jennifer and her sister
decided to go shopping with Cervantes's girlfriend, Yesenia A. Jennifer went into her room to get a
sweater. Cervantes came into her room,
and Jennifer told him to leave.
Cervantes replied, "I'm not getting out until I get what I
want." He forced Jennifer onto the
bed, took off her clothes and penetrated her either vaginally or anally. Jennifer did not scream because she was afraid
it would cause problems in the family.
Jennifer believes Cervantes was 20 years old at the time.
At the end of December
2008, Jennifer told her pastors and mother that Cervantes had molested her. They went to the police. The police asked Jennifer to make a monitored
and recorded telephone call to Cervantes.
As a pretext for the call, Jennifer told Cervantes she was in trouble at
home and her mother was making her move in with Cervantes and his family for
two months. Jennifer said she was afraid
because "how you do stuff to me . . . ." Cervantes told her that was in the past. Jennifer recalled the 2007 rape. Cervantes said he was a changed man and that
it would not happen again.
At the time of trial,
Jacqueline was 15 years old. She is
Cervantes's cousin. When Jacqueline was
five or six years old, she attended a family gathering at Cervantes's
home. Cervantes told her there was a
puppy in the back yard. When they went
to the back yard, Cervantes pushed her to the ground and began rubbing her
breasts and buttocks over her clothing.
Tanya was born in
1997. She is Cervantes's cousin. She was at Cervantes's house when she was
five or six years old. Cervantes took
her to his room and locked the door. He
laid her on the bed, placed his hands on her legs and moved them upward. He tried to remove her pants. Tanya pushed his hands away and tried to get
out of the room. Cervantes tried to kiss
her. Tanya's mother began banging on the
bedroom door and calling for Tanya. Cervantes
told Tanya not to tell or something would happen to her. Cervantes let her out of the room. Tanya left with her family and never returned
to the house.
Yesenia A. testified she
has known Cervantes since 2003, when they were both 15 years old. They lived together in Cervantes's house from
2004 to 2009. They were married for over
a year before divorcing. She had a close relationship with
Jennifer. Jennifer never said anything
about Cervantes making advances to her.
Yesenia was at a family
gathering for Christmas 2007. The only
time she was not in Cervantes's immediate presence was when she went to the
store with Jennifer. Jennifer never went
back into the house to get a sweater before leaving to go to the store. Yesenia took photographs, some of which
include Cervantes and Jennifer.
Cervantes's mother
recalled a photograph from Christmas 2007 that depicted Cervantes crawling on
all fours and Jennifer trying to hit him on his buttocks.
Cervantes's sister does
not remember Jennifer ever confiding in her that Cervantes did anything bad to
her. Cervantes's sister took pictures at
the Christmas 2007 gathering. Jennifer
did not appear upset in any of them.
Jennifer also made
allegations against Cervantes's father and brother, and they were convicted in
connection with those allegations.
DISCUSSION
I.
Cervantes contends the
trial court erred in failing to suspend criminal proceedings and conduct an
examination into Cervantes's age at the time of the offense involving
Jacqueline H. Cervantes argues the
evidence suggests he may have been 13 years old at the time. He concludes that he should have been tried
as a juvenile for that offense.
Jacqueline testified the
offense occurred when she was five or six year old. By Cervantes's calculation, he was 13 years
old for the first 3 months of that 24-month period.
Cervantes did not
request a hearing on the matter before or during trial. Cervantes raised the issue for the first time
in a motion for a new trial prior to sentencing. The trial court denied the motion, stating,
"There's no evidence that [the offense against Jacqueline] occurred during
the period when [Cervantes] was under 14 and he was certainly over 14 for all
the others. So I think [the counts] were
appropriately joined."
Cervantes concedes in
his reply brief that he waived the issue for the purposes of trial by failing
to raise it. But he argues he preserved
it for the purposes of sentencing. He
points out his motion for a new trial was made prior to sentencing. Cervantes's concession necessarily means
there is no merit to his claim that the trial court erred in failing to stop
the trial to conduct a hearing.
The trial court
expressly found the special allegation that Cervantes was 14 years or older to
be true. In addition, the trial court
held a hearing on Cervantes's motion for a new trial at which the issue was
raised. Cervantes offered no new evidence
or offer of proof. The trial court in
denying the motion found there was no evidence Cervantes was under 14 at the
time he molested Jacqueline.
The defendant has the
burden of proof by a preponderance of the evidence that he meets the age
criterion for filing in juvenile court. (People
v. Blackwell (2011) 202 Cal.App.4th 144, 153;
People v. Nguyen (1990) 222
Cal.App.3d 1612, 1618-1619.) Here
Cervantes failed to carry his burden of proof.
Indeed, he points to no evidence, as opposed to speculation, that the
offense occurred when he was 13 years old.
Even if the trial court were to consider statistical probabilities, the
chance the offense occurred during the first three months out of the
twenty-four months that Jacqueline was five and six years old, is less than 15
percent. That is not close to a
preponderance of the evidence.
II.
Cervantes contends the
trial court erroneously believed that consecutive terms are required by
statute.
Cervantes relies on the
statement of the trial court, "As for Counts 1, 3 and 4, the terms is 15 years
to life. Those are to run consecutive to
Count 2 and to each other. Those are
separate victims on separate occasions, and I don't believe that there's any
sentencing rule that would justify making those concurrent terms given the
situation. So consecutive to the four
years is 45 years to life for Counts 1, 3 and 4."
But the trial court did
not say that consecutive terms were mandated by statute. The court simply recognized that its
discretion is not unbridled. The court
noted that the offenses involve separate victims on separate occasions, and
stated that concurrent terms could not be justified "given the
situation." Separate victims and
separate occasions are factors the court must consider in exercising its
discretion. (See Cal. Rules of Court,
rule 4.425(a).) Clearly, the court
understood consecutive sentences are discretionary.
III.
Cervantes contends three
consecutive 15 year-to-life sentences constitute cruel and unusual
punishment. Cervantes does not contest
the consecutive four-year term imposed on count 2. Cervantes was not a minor when he committed
that offense.
Cervantes argues the
sentences amount to life without the possibility of parole. He claims he will not be eligible for parole
until he is 74 years old. He admits the
life expectancy of a Hispanic male is 78.9 years. But asserts that life in prison considerably
shortens one's life.
The People point out,
however, that Cervantes was 24 years old when sentenced. They also point out that he was given credit
for over four years presentence custody.
That makes him eligible for parole at age 65. Moreover, "life expectancy" in
context of a cruel and unusual punishment analysis means the normal life
expectancy of a healthy person of defendant's age and gender living in the United States. (People v. Caballero (2012) 55 Cal.4th 262, 267, fn. 3.) The sentence here is not the functional
equivalent of life without the possibility of parole.
Cervantes argues that
his sentence is greatly disproportionate to both the offense and the offender. The Eighth Amendment's cruel and unusual
punishment prohibition contains a narrow proportionality principal that applies
to noncapital sentences. (
695, 707.) The principal prohibits
sentences that are grossly disproportionate to the severity of the crime (Ibid.) A proportionality analysis requires
consideration of three criteria: "'(i) the gravity of the offense and the
harshness of the penalty; (ii) the sentence imposed on other criminals in the
same jurisdiction; (iii) the sentences imposed for the same crime in other
jurisdictions.' [Citation.]" (Ibid.) It is only in the rare case where a
comparison of the crime and the sentence imposed leads to an inference of gross
disproportionality that the second and third criteria come into play. (Ibid.)
This is not that rare
case. Forty-five years to life is a
harsh punishment. But child molestation
is one of the most heinous noncapital offenses.
Here the sentence arises from multiple molestations against three
victims. The sentence is not
disproportionate to the offense.
Nor is the sentence
disproportionate to the offender.
Cervantes's offenses extended over a multiple of years, into his
adulthood. His crimes involved more than
a single period of aberrant behavior mitigated by a youthful lack of
judgment. Instead, they show a serious
flaw in Cervantes's character.
Cervantes argues his
sentence is unreasonable in light of Graham
v. Florida (2010) 560 U.S. 48 and People
v. Caballero, supra, 55 Cal.4th
262.
In Graham, a 16-year-old was convicted of armed burglary and attempted
armed robbery. He was granted
probation. But when he committed other
crimes, the court revoked his probation and sentenced him to life in prison for
the burglary. Because Florida had
abolished its parole system, Graham had no possibility of parole. The Supreme Court held that for a juvenile
offender convicted of a nonhomicide offense the Eighth Amendment requires the
state to afford the offender a "meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation." (Graham
v. Florida, supra, 560 U.S. at p.
75.)
In Caballero, the trial court sentenced a 16-year-old defendant to
three consecutive 15-year-to-life terms for nonhomicide offenses. With firearm enhancements the total sentence
was 110 years to life. The People argued
that Graham does not apply because
each of the sentences taken separately included the possibility of parole
within the defendant's lifetime. Our
Supreme Court rejected that argument.
The court held that a 110-year minimum term violates
provide a juvenile offender some realistic opportunity to obtain release. (People
v. Caballero, supra, 55 Cal.4th
at p. 268.)
Here Cervantes was not
sentenced to life without the possibility of parole, as in Graham. Nor does the 45-year
aggregate minimum term Cervantes must serve exceed his expected life span, as
in Caballero. Cervantes sentence does not constitute cruel
and unusual punishment.
IV.
The People identify two
errors in the abstract of judgment.
First, count 1 is erroneously described as assault with intent to commit
a felony. It should be forcible rape. Second, the abstract erroneously lists count
2, assault with intent a felony, as count 1.
When we encounter mistakes in the abstract of judgment we should order
the trial court to correct the abstract.
(People v. Mitchell (2001) 26
Cal.4th 181, 188.)
The trial court is
directed to correct the abstract of judgment and to send a corrected copy to
the Department of Corrections and Rehabilitation Services. The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P. J.
We concur:
YEGAN, J.
PERREN, J.
>
Charles W. Campbell, Jr., Judge
Superior Court County of Ventura
______________________________
Julie Sullwold, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title=""> [1]
All statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title=""> [2] Cervantes claims that Blackwell is
not citable because the United States Supreme Court granted certiorari and
vacated the judgment. (
837; 184 L.Ed.2d 646].) But the case was
remanded to the Court of Appeal for further consideration in light of
[132 S.Ct. 2455; 183 L.Ed.2d 407], a case involving a mandatory life
sentence without the possibility of parole for juvenile offenders. Unlike cases in which the California Supreme
Court has granted review, there is no prohibition against citing a case in
which the United States Supreme Court has granted certiorari and vacated the
judgment. (See Cal. Rules of Court, rule
8.1105(e)(1).)
