THE PEOPLE, Plaintiff and Respondent, v. RUBEN CERVANTES, Defendant and Appellant.
B330271
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
June 14, 2024
Rehearing Denied June 14, 2024
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. (Los Angeles County Super. Ct. No. BA174590). 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed on May 15, 2024, is modified as follows:
On page 2, line six of the first full paragraph, in the parenthetical immediately after the words “committed multiple murders“, delete “§ 192” and replace it with “§ 190.2“.
At the top of page 5, delete the heading, “Due Process“, and replace the heading with ”Equal Protection“.
On page 5, line 6 of the first full paragraph, end the paragraph after the first sentence, and then insert a new paragraph as follows:
“Cervantes‘s argument that there is not a rational basis for distinguishing between juveniles under the age of 18 who are serving LWOP sentences and youthful offenders between the ages of 18 and 25 who are serving LWOP sentences has been rejected by every Court of Appeal that has considered it. (People v. Bolanos (2023) 87 Cal.App.5th 1069, 1079; People v. Sands (2021) 70 Cal.App.5th 193, 204; In re Murray (2021) 68 Cal.App.5th 456, 463-465; People v. Morales (2021) 67 Cal.App.5th 326, 347; People v. Jackson (2021) 61 Cal.App.5th 189, 196-198; People v. Acosta (2021) 60 Cal.App.5th 769, 779-780.) In light of the United States Supreme Court precedent holding that there is a rational basis for treating juveniles and nonjuveniles differently in the context of criminal sentencing, we see no reason to diverge from the other Courts of Appeal. (Miller v. Alabama (2012) 567 U.S. 460, 471 [“children are constitutionally different from adults for purposes of sentencing“]; Roper v. Simmons (2005) 543 U.S. 551, 574 [“The age of 18 is the point where society draws the line for many purposes between childhood and adulthood“].)”
Following this newly inserted paragraph, begin the next paragraph with the sentence that starts “The issue“, and after the words “The issue” and before the words “is one that had divided the Courts of Appeal,” insert the following language: “of
On page 8, line 3 in the sentence under the heading “DISPOSITION“, delete “1203.1” and replace it with “1203.01“.
The petition for rehearing filed on May 30, 2024, by defendant and appellant is denied.
There is no change in judgment.
MOOR, Acting, P. J. KIM, J. LEE, J.*
* Judge of the Superior Court of San Bernardino County, assigned by the Chief Justice pursuant to
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Noah P. Hill, Deputy Attorneys General for Plaintiff and Respondent.
In 2023, Cervantes moved for a hearing to preserve evidence for use at a future youth offender parole hearing pursuant to
On appeal, Cervantes contends that excluding from youth offender parole consideration defendants like himself, who were between the ages of 18 and 26 years old at the time of the offenses for which they were sentenced to LWOP, violates the constitutional right to equal protection of the laws and the prohibition on cruel and unusual punishment.
We affirm the trial court‘s order.
At the time of the offenses, Cervantes was a member of a street gang known as 36th Street. The 36th Street gang was “at war” with the Clanton gang. Members of the Clanton gang had been shooting at 36th Street members. Cervantes told a large group of 36th Street members that he believed it was time to retaliate. Cervantes was armed with a nine-millimeter handgun. He said that he wanted to shoot Clanton members. Cervantes and other 36th Street gang members drove into Clanton territory looking for targets.
A Clanton member rode his bicycle in front of the car that defendant was riding in. One of the 36th Street gang members said “36th Street” and the person on the bicycle responded, “Clanton.” Cervantes and another gang member fired shots at the person on the bicycle, hitting him in the leg and the ankle.
That evening around 9:00 p.m., Elizabeth Juarez, who was hosting a party for a friend who was a Clanton gang member, heard gunshots and saw a car go by her house. The front passenger was shooting and someone yelled “36th Street.” Jaurez‘s aunt, who was standing on the corner, was shot, as was a neighbor. The car was the same make and model of the car Cervantes was riding in earlier that day when he shot the person on the bicycle.
By 4:00 a.m. the next morning, there were between 80 and 100 people congregating in Juarez‘s back yard. Many of the party-goers were Clanton gang members. Yesenia Zaldivar was in Jaurez‘s backyard when she heard between eight and thirteen
The next day Cervantes told a fellow 36th Street member that he had jumped over a wall and started shooting his nine-millimeter handgun at the people attending Juarez‘s party. He said that he “‘took care of them fools.‘”
DISCUSSION
“California‘s youth offender parole statute offers opportunities for early release to certain persons who are incarcerated for crimes they committed at a young age. (
Cervantes first contends, as he did in the trial court, that
“Cervantes‘s argument that there is not a rational basis for distinguishing between juveniles under the age of 18 who are serving LWOP sentences and youthful offenders between the ages of 18 and 25 who are serving LWOP sentences has been rejected by every Court of Appeal that has considered it. (People v. Bolanos (2023) 87 Cal.App.5th 1069, 1079; People v. Sands (2021) 70 Cal.App.5th 193, 204; In re Murray (2021) 68 Cal.App.5th 456, 463-465; People v. Morales (2021) 67 Cal.App.5th 326, 347; People v. Jackson (2021) 61 Cal.App.5th 189, 196-198; People v. Acosta (2021) 60 Cal.App.5th 769, 779-780.) In light of the United States Supreme Court precedent holding that there is a rational basis for treating juveniles and nonjuveniles differently in the context of criminal sentencing, we see no reason to diverge from the other Courts of Appeal. (Miller v. Alabama (2012) 567 U.S. 460, 471 [“children are constitutionally different from adults for purposes of sentencing“]; Roper v. Simmons (2005) 543 U.S. 551, 574 [“The age of 18 is the point where society draws the line for many purposes between childhood and adulthood“].)”
The issue of whether there is a rational basis for distinguishing between young adult offenders between the ages of 18 and 25 years old who are serving LWOP sentences and young adult offenders serving non-LWOP sentences is one that had divided the Courts of Appeal, but after briefing in this case was complete, the California Supreme Court resolved the conflict by holding that
Cruel and Unusual Punishment
Cervantes next contends that the amendments to
“A punishment may violate
Whether a punishment is cruel or unusual in violation of the California Constitution under the legal principles set forth in Lynch, supra, 8 Cal.3d 410, 424 through 427, “presents a question of law subject to independent review; it is ‘not a discretionary decision to which the appellate court must defer.’ [Citation.]” (People v. Felix (2003) 108 Cal.App.4th 994, 1000.) The reduction of a sentence based on the determination it is cruel or unusual under the California Constitution “‘is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels.’ [Citation.]” (Ibid.) Furthermore, such a reduction “’ “must be viewed as representing an exception rather than a general rule” ‘” and “‘[i]n such cases the punishment is reduced because
Cervantes acknowledges that his sentence “may not meet the three-part test set forth in Lynch, supra,” and does not attempt to argue any of the factors set forth above. Instead, he asserts that, because he was 23 years old at the time he committed the offenses, he—like any other person under the age of 26—was immature and less culpable than a person 26 years old or older, regardless of the crimes he committed. Cervantes argues that his reduced culpability essentially renders the circumstances of the crimes and the fact that he committed two murders irrelevant. This is simply incorrect. The number and nature of the crimes Cervantes committed cannot be ignored—
In this case, Cervantes told others that he wanted to shoot members of a rival gang in retaliation for earlier shootings committed by its members. He jumped over a wall and fired between eight and thirteen shots into a group of party-goers, fatally wounding two of his victims. The next day he bragged that he “‘took care of them fools.‘” Even taking into account his diminished culpability as a 23 year old, Cervantes‘s crimes are such that the sentence does not exceed the constitutional limit.
We affirm the trial court‘s order denying Cervantes‘s motion for a youth offender parole hearing pursuant to
NOT TO BE PUBLISHED.
MOOR, Acting, P. J.
WE CONCUR:
KIM, J.
LEE, J.
Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to