P. v. Cervantes

Filed 5/23/06  P. v. Cervantes CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Kern County.  Kenneth C. Twisselman, Judge.

            Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

            A jury convicted appellant, Fermin Cervantes, on two counts of lewd and lascivious conduct with a child under the age of 14 (counts 1 and 2/Pen. Code, § 288, subd. (a)).^[1]  On May 2, 2005, the court denied Cervantes probation and sentenced him to prison for the middle term of six years on count 1 and a concurrent term of six years on count 2.  On appeal, Cervantes contends the court: 1) committed instructional error; and 2) abused its discretion when it denied him probation.  We will affirm.

FACTS

The Trial

            The evidence at trial showed that Cervantes molested L. R. while he lived with her and her family, including her mother Norma and her brothers Samuel and Eliseo, in a house in Bakersfield.  L. R. was 12 years old when she testified at Cervantes's trial which began on January 5, 2005.  According to L. R., on August 2, 2004, she was in the living room when Cervantes entered the room, kissed her on the neck, and tried to put his hands on her chest.  L. R. got away from Cervantes and ran into her mother's bedroom.

            Sometime in September 2004, L.R. was in the laundry room getting clothes to take a shower when Cervantes approached her and began kissing her on the mouth and touching her with his hands on her chest over her clothes.  The incident ended when L. R. went in the restroom and locked the door.

            On another occasion in September 2004, L. R. was in the kitchen when Cervantes began kissing her on her neck and touching her chest and pubic area over her clothes.

            On November 11, 2004, L. R. went to bed at 9:00 p.m.  Later that night Cervantes entered her room, pulled her shirt up and her bra down, and fondled her breasts.  Cervantes also kissed L. R. on the neck and chest and touched her leg and private parts under her underwear.  The touching stopped when Norma walked into the room and turned the lights on.  At that point, her mother began crying and screaming at Cervantes and L. R. heard Cervantes say that he did not want to do it.   

            Norma testified that, by the time she went to bed at 10:00 p.m. on November 11, 2004, Cervantes was already asleep.  However, at approximately 1:30 a.m., she got up after noticing that he was not in bed.  She then walked into the hallway, looked into

L. R.'s room, and saw Cervantes bending over L. R. kissing her on the mouth.  L. R. was laying on her back on the bed with her sweater pulled up to her neck and the blanket pulled down halfway.  Norma immediately hit Cervantes and started screaming asking him what he was doing.  As Cervantes tried to hug Norma, he asked her to forgive him and said he did not know why he was doing that.  Norma told him to leave and again asked him what he was doing.  While Norma called the police, Cervantes went to change.  However, after he sat down on a bed, one of Norma's sons would not let him leave.

            Lourdes Rangel testified that she was sleeping with Eliseo when they were awakened by Norma's screaming.  They went into L. R.'s room and saw Cervantes hugging Norma and heard him telling her that he was sorry.  Cervantes told Eliseo that he did not â€