People v. Cervantes, A140464

CourtCalifornia Court of Appeals
Writing for the CourtStreeter, J.
Citation215 Cal.Rptr.3d 174,9 Cal.App.5th 569
Parties The PEOPLE, Plaintiff and Respondent, v. Alexander CERVANTES, Defendant and Appellant.
Decision Date09 March 2017
Docket NumberA140464

9 Cal.App.5th 569
215 Cal.Rptr.3d 174

The PEOPLE, Plaintiff and Respondent,
v.
Alexander CERVANTES, Defendant and Appellant.

A140464

Court of Appeal, First District, Division 4, California.

Filed March 9, 2017
As Modified April 10, 2017


Certified for Partial Publication.*

215 Cal.Rptr.3d 179

Arnold & Porter, Peter Obstler, Ginamarie Caya, San Francisco, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Joan Killeen, Deputy Attorney General for Plaintiff and Respondent.

Streeter, J.

9 Cal.App.5th 579

Alexander Cervantes was 14 years old when he attacked a 13-year-old girl and her 20-month-old brother, who were the younger siblings of one of his friends. After breaking into their home in the middle of the night, he stabbed them repeatedly as they slept, raped and sodomized the girl, forced her to orally copulate him, and ultimately passed out during the attack. He had been drinking heavily that evening and his defense rested on voluntary intoxication to negate specific intent. He was convicted of 15 charges, including various sex offenses, first-degree burglary, and two counts each of attempted murder, torture, and aggravated mayhem. He received a prison sentence of 50 years to life under the one-strike law (Pen. Code,1 § 667.61 ), a consecutive 11-year determinate term for one attempted murder (§§ 187, 664), plus a consecutive life term for the other attempted murder.

We divide our discussion into three parts. Only an overview of the first part shall be published, but the remaining two parts are certified for publication in their entirety

First, Cervantes argues that the representation he received was so far below the minimum threshold of constitutionally effective assistance of counsel as to amount to no defense at all. Pointing to dozens of shortcomings—beginning with an incomplete investigation of his mental state, which he says guaranteed his counsel either had no basis for strategic choices she made or simply failed to recognize choices she should have made—he asks that we reverse outright, and remand for a new trial. While we reject that argument, we agree there were a number of serious deficiencies in counsel's performance, enough to leave us without confidence in the outcome of the trial on most of the specific intent crimes. We therefore reverse on eight specific intent counts, while affirming as to the remaining seven counts, including the convictions for burglary and all of the general intent crimes (four of the six sex offenses, and two counts of assault with a deadly weapon).

9 Cal.App.5th 580

Second, our conclusion that we must reverse and remand for retrial on eight of 15 counts presents some novel issues under recently-passed Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Prop 57). Cervantes argues Prop 57 requires that the case be remanded for a "fitness hearing" to the juvenile court, which he contends has "exclusive jurisdiction" over any trial of the offenses charged in this case until and unless it determines that the case should be transferred to adult criminal court, and further, that a remand for retrial on any of the counts of which he was convicted requires vacatur of all the convictions and retrial of all charges. He argues that Prop 57 is retroactive, but that this result is mandated even applying Prop 57 prospectively to any proceedings on remand after a partial reversal. We do not agree that Prop 57 is retroactive. Nor do we agree that a partial reversal requires that all convictions must

215 Cal.Rptr.3d 180

be vacated. But we do agree that Prop 57 requires a remand to the juvenile court for a "fitness hearing," and that the outcome of that hearing will determine which department of the Superior Court—adult criminal court, or juvenile court—will handle any retrial on the reversed counts and sentencing.

Third, Cervantes argues that the sentence imposed on him is the functional equivalent of life without possibility of parole and therefore violates the Eighth Amendment under Graham v. Florida (2010) 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (Graham ) and People v. Caballero (2012) 55 Cal.4th 262, 268, 145 Cal.Rptr.3d 286, 282 P.3d 291 (Caballero ). Since the sentencing choices made on the convictions we affirm, even without conviction on the counts we reverse, could produce another indeterminate life sentence with a lengthy minimum term, this Eighth Amendment issue will be relevant to the proceedings on remand whether Cervantes's case is handled in adult criminal court or stays in juvenile court. Thus, we address it and conclude that a sentence requiring Cervantes to serve at least 66 years in prison before he would first become eligible for parole, is constitutionally infirm. Because that term exceeds his life expectancy, it is the functional equivalent of life without parole and violates the Eighth Amendment under Graham , at p. 74, 130 S.Ct. 2011 and Caballero, at p. 268, 145 Cal.Rptr.3d 286, 282 P.3d 291. Where, exactly, the constitutional line lies below the 66 years to life imposed in this case has yet to be addressed by our Supreme Court, although we note that some guidance on the issue will likely be forthcoming in a case now pending before it. In the meantime, the Prop 57 "fitness hearing" we order today will rectify any constitutional concerns about the length of whatever term of confinement is imposed on Cervantes for the convictions we affirm here, as well as for any other offenses that may be tried on remand.

9 Cal.App.5th 581

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts Disclosed at Trial

1. Prosecution's Case

On the evening of December 11, 2010, Cervantes attended a party, where witnesses saw him drinking from 6:00 p.m. to 9:00 p.m. One of the partygoers described him as "really drunk" at 10:20 p.m.

At approximately 1:30 or 2:00 a.m. on December 12, 2010, Cervantes entered the Vacaville home of his sometime friend, Gabriel T. (Gabriel).2 He carried a steak knife he had brought from home and had a condom with him. Gabriel was not at home because he was in juvenile hall. The only occupants were Gabriel's younger sister, 13-year-old A.P., and their 20-month-old brother, I.A. A.P. was babysitting I.A. while their mother and another sister were out of the house.

As the evening progressed, A.P. and I.A. fell asleep on their mother's bed. A.P. awoke to the sensation of a sharp pain in her back like someone was punching her, and she saw blood underneath her on the bed. Looking in the mirror, she saw someone else in the room. Turning, she recognized Cervantes as a friend of her older brother's. A.P. testified he was wearing

215 Cal.Rptr.3d 181

black gloves and a black jacket.3 She asked Cervantes why he was there. "He said that it was revenge for my brother, against Richard—something with an R," or "revenge for [her] brother for snitching on ... Richard...." A.P. did not know what he was talking about. As A.P. tried to unlock her cell phone to call 911, she fell off the bed. While she was on the floor, Cervantes stabbed her repeatedly in her head, back, and shoulders. A.P. suffered defensive wounds on her wrists and elbow when she tried to shield her head. She begged Cervantes to stop and eventually he did. After Cervantes stopped stabbing her, A.P. heard her baby brother "squeal," but she could not move to help him. Then the screaming stopped.

Cervantes came back over to A.P. and "started getting into [her] pants." He put his hand down the back of her pants and "was feeling on [her] butt."

9 Cal.App.5th 582

Cervantes told A.P. to get on the bed and she complied out of fear. Cervantes got on top of her and put his penis in her vagina. After a couple of minutes, he told A.P. to moan and call him "daddy." When A.P. did not comply, Cervantes threatened to kill her brother, by which A.P. thought he meant Gabriel. A.P. complied with Cervantes's demands. Cervantes "finally stopped" and told her to "turn around." A.P. rolled onto her stomach, and Cervantes sodomized her. Cervantes "finally stopped," then told A.P. she "was going to suck his dick." Cervantes "kind of put his penis up into [her] mouth" and "pulled [her] head down." When A.P. saw Cervantes starting to doze off, she tried to get away, but he grabbed her hair and "yanked [her] back down." Eventually, Cervantes fell asleep.

A.P. grabbed her phone and her little brother and quickly got out of the room. Entering the kitchen, she noticed the door to the garage was standing open, as was the door leading from the garage to the outside of the house. Both doors had been closed earlier and the external door was normally kept locked. Once outside, A.P. called 911 and went across the street to a neighbor's house.

Shortly after 4:00 a.m....

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82 practice notes
  • People v. Suarez, F070210
    • United States
    • California Court of Appeals
    • December 4, 2017
    ...Mendoza(2017) 10 Cal.App.5th 327, 216 Cal.Rptr.3d 361, review granted July 12, 2017, S241647 (Mendoza ); and People v. Cervantes(2017) 9 Cal.App.5th 569, 215 Cal.Rptr.3d 174, review granted May 17, 2017, S241323.18 "Although parole constitutes a distinct phase from the underlying prison sen......
  • People v. Brewer, F070564
    • United States
    • California Court of Appeals
    • November 17, 2017
    ...People v. Mendoza(2017) 10 Cal.App.5th 327, 216 Cal.Rptr.3d 361, review granted July 12, 2017, S241647; and People v. Cervantes(2017) 9 Cal.App.5th 569, 215 Cal.Rptr.3d 174, review granted May 17, 2017, S241323.11 "Although parole constitutes a distinct phase from the underlying prison sent......
  • People v. Khan, H045524
    • United States
    • California Court of Appeals
    • October 28, 2019
    ...310, 313, 228 Cal.Rptr.3d 394, 410 P.3d 22 ["we believe remedies like those provided in Vela [I ] and [People v. ] Cervantes [ (2017) 9 Cal.App.5th 569, 215 Cal.Rptr.3d 174] are readily understandable, and the courts involved can implement them without undue difficulty"].) The Supreme Court......
  • People v. Blay, A138380
    • United States
    • California Court of Appeals
    • September 16, 2019
    ...[816]; People v. Mendoza (2017) 10 Cal.App.5th 327; but see People v. Vela (2017) [11] Cal.App.5th [68]; People v. Cervantes (2017) 9 Cal.App.5th 569, review granted May 17, 2017, S241323.)" The Supreme Court has now resolved the issue. Prior to passage of Proposition 57 in November 2016, t......
  • Request a trial to view additional results
82 cases
  • People v. Suarez, F070210
    • United States
    • California Court of Appeals
    • December 4, 2017
    ...Mendoza(2017) 10 Cal.App.5th 327, 216 Cal.Rptr.3d 361, review granted July 12, 2017, S241647 (Mendoza ); and People v. Cervantes(2017) 9 Cal.App.5th 569, 215 Cal.Rptr.3d 174, review granted May 17, 2017, S241323.18 "Although parole constitutes a distinct phase from the underlying prison sen......
  • People v. Brewer, F070564
    • United States
    • California Court of Appeals
    • November 17, 2017
    ...People v. Mendoza(2017) 10 Cal.App.5th 327, 216 Cal.Rptr.3d 361, review granted July 12, 2017, S241647; and People v. Cervantes(2017) 9 Cal.App.5th 569, 215 Cal.Rptr.3d 174, review granted May 17, 2017, S241323.11 "Although parole constitutes a distinct phase from the underlying prison sent......
  • People v. Khan, H045524
    • United States
    • California Court of Appeals
    • October 28, 2019
    ...310, 313, 228 Cal.Rptr.3d 394, 410 P.3d 22 ["we believe remedies like those provided in Vela [I ] and [People v. ] Cervantes [ (2017) 9 Cal.App.5th 569, 215 Cal.Rptr.3d 174] are readily understandable, and the courts involved can implement them without undue difficulty"].) The Supreme Court......
  • People v. Blay, A138380
    • United States
    • California Court of Appeals
    • September 16, 2019
    ...[816]; People v. Mendoza (2017) 10 Cal.App.5th 327; but see People v. Vela (2017) [11] Cal.App.5th [68]; People v. Cervantes (2017) 9 Cal.App.5th 569, review granted May 17, 2017, S241323.)" The Supreme Court has now resolved the issue. Prior to passage of Proposition 57 in November 2016, t......
  • Request a trial to view additional results

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