People v. Cervantes CA2/6

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 2d Crim. No. B246474 (Super. Ct. No. 2009002881) Plaintiff and Respondent, (Ventura County)

v.

OSCAR CERVANTES,

Defendant and Appellant.

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).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

1 All statutory references are to the Penal Code unless otherwise stated.

offense Cervantes was 14 years of age or older within the meaning of Welfare and Institutions Code 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 H. 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