People v. Cervantes

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEXANDER CERVANTES,

Defendant and Appellant.

No. A140464

(Solano County

Super. Ct. No. FCR281334)

California Courts of Appeal

First Appellate District

Division Four

Filed April 10, 2017

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on March 9, 2017, be modified as follows:

1. On page 2, in the last sentence of the first paragraph, add ?counts? to the phrase: ?affirming as to the remaining seven, including the convictions for burglary,? so that the sentence reads:

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).

2. On page 9, in the first full paragraph, in the sentence that begins, ?Another recent criminal case in town also involved,? change the placement of the word ?also? so that the sentence reads:

Another recent criminal case in town involved a defendant named Richard Calkins, who also took psilocybin mushrooms and then shot and killed two of his best friends and maimed a third while they were watching television, with no preceding argument or other provocation.

3. On page 43, in the first sentence beginning, ?Having concluded,? delete the words, ?in the unpublished portion of our opinion,? so that the sentence reads:

Having concluded that we must reverse eight counts of conviction that required specific intent and will affirm seven counts, including the burglary conviction, we now turn to the impact on our disposition of Prop 57, which was passed by the voters on November 8, 2016.

4. On page 46, delete the last sentence in the partial paragraph at the top of the page: ?Mandatory direct filing had first been instituted by the Legislature for juveniles age 16 or older effective January 1, 2000 (Stats. 1999, ch. 996, § 12.2, p. 7560), but Prop 21 reduced the age to 14.?

5. On page 53, in the last full sentence on the page, which begins ?Thus, the phrase,? add ?upon the filing of a transfer motion? to the end of the phrase set off by dashes, so that the full sentence reads:

Thus, the phrase, ?tried in adult court?---or the prospect of being tried in adult court upon the filing of a transfer motion---appears to be the trigger for a juvenile?s right to a fitness hearing.

6. On page 57, add the word ?considered? to the end of the first sentence of the last paragraph, which begins ?By excising,? so the sentence reads:

By excising subdivision (b) of Section 602, the voters determined that every juvenile facing trial in criminal court should first have his or her fitness for treatment under the juvenile court law considered.

7. On page 61, break the sentence that begins ?By our understanding of jeopardy principles,? into two sentences by putting a period after ?subdivision (a)(1),? changing the word ?since? to ?And,? and capitalizing the first letter of the word ?section? in the second sentence.  The new text shall read:

By our understanding of jeopardy principles, if we instruct the trial court to transfer the case to juvenile court for a fitness hearing before commencing any retrial, the district attorney will have an opportunity to request a transfer to adult court ?prior to the attachment of jeopardy? within the meaning of Section 707, subdivision (a)(1).  And by obtaining the benefit of Section 707 in that circumstance, the defendant implicitly waives any right to object to a transfer motion.

8. On page 65, in the second sentence of the second paragraph beginning, ?Thus, a juvenile disposition must realistically be considered,? change ?Thus? to ?As a result,? so that the sentence will read:

As a result, a juvenile disposition must realistically be considered a more advantageous disposition than a criminal sentence for the same offense.

9. On page 66, in the last sentence of the page that starts with ?We note that,? add ?when he is resentenced and? to the middle of the sentence so it reads:

We note that, even if Cervantes is ultimately transferred back to criminal court, the fitness hearing will also serve the purpose of making a record of any mitigating factors that may apply when he is resentenced and eventually comes up for parole.

10. On page 70, in the first sentence of the first full paragraph, beginning ?But it   was not,? add ?nonhomicide? after the word ?juvenile,? so the sentence reads:

But it was not ultimately the severity of the eventual punishment that inspired the Supreme Court to declare LWOP sentences unconstitutional for juvenile nonhomicide offenders; it was the lack of opportunity for parole release.

11. On page 76, in the sentence starting with ?Assuming a 50-year to life sentence, add ?it? to the phrase, ?without offending the Constitution, would be error of constitutional dimension,? so the new sentence reads:

Assuming a 50-year to life sentence ultimately passes constitutional muster, and although the parole authorities or the juvenile court may decide to keep Cervantes in prison for the remainder of his life without offending the Constitution, it would be error of constitutional dimension under Graham and Caballero for a sentencing judge to write him off as irredeemable at the time of initial sentencing.

There is no change in the judgment. 

Dated:

P.J.