People v. Cervantes CA2/3

Filed 12/31/20 P. v. Cervantes CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B298509

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. GA102221
v.

DIEGO CERVANTES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Jared D. Moses, Judge. Affirmed.
Mark S. Givens, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

Defendant Diego Cervantes, a janitorial supervisor at a
shopping mall, was convicted of sexually abusing several women
who worked as janitors at the mall. On appeal, he argues that
there is insufficient evidence of unlawful restraint to support his
sexual battery conviction and that the prosecutor committed
prejudicial misconduct by misstating the quantum of proof
required before the jury could use the charged crimes as
propensity evidence for other charged crimes. We affirm.

PROCEDURAL BACKGROUND

By second amended information filed March 25, 2019,
defendant was charged with two counts of rape (Pen. Code,1
§ 261, subd. (a)(2); counts 1 & 5); one count of sexual penetration
by object (§ 289, subd. (a)(1)(A); count 2); two counts of forcible
oral copulation (§ 288a, subd. (c)(2)(A); counts 3 & 7); two counts
of false imprisonment by violence (§ 236; counts 4 & 6); and two
counts of sexual battery by restraint (§ 243.4, subd. (d); counts 8
& 9).2 As to counts 1, 2, 3, 5, and 7, the information alleged
defendant committed the offenses against multiple victims
(§ 667.61, subds. (b) & (e)). Defendant pled not guilty and denied
the allegation.
After a jury trial at which he testified in his own defense,
defendant was convicted of counts 1–4, 6–7, and 9. The jury found

1 All undesignated statutory references are to the Penal Code.
2The information was amended during trial to conform to proof by
changing the sexual battery charge in counts 8 and 9 from section
234.4, subdivision (a) to subdivision (d) and to correct a clerical error.
The original information was filed on September 7, 2018.

2
the multiple-victim allegation true. For count 5, the jury found
defendant not guilty of rape but guilty of the lesser-included
offense of attempted rape. The jury acquitted defendant of
count 8.
The court denied defendant’s motion for a new trial and
sentenced him to an aggregate term of 64 years to life. For counts
1, 2, 3, and 7, the court imposed four consecutive indeterminate
terms of 15 years to life under the One Strike law (§ 667.61). The
court imposed four years for the determinate term—the mid-term
of three years for count 5 plus one year for count 9 (one-third the
midterm of three years), to run consecutively. The court stayed
the sentences for counts 4 and 6 under section 654.
Defendant filed a timely notice of appeal.

FACTUAL BACKGROUND

Defendant, a janitorial supervisor at a shopping mall, was
convicted of eight counts of sexual misconduct against three
women who worked as janitors at the mall. Nevertheless, we
limit our factual discussion to the facts underlying count 9, the
sexual battery of Maria Guadalupe O.D.F., which, based on our
resolution of defendant’s prosecutorial misconduct claim, is the
sole count relevant to this appeal.
In March 2013, Maria Guadalupe was working as a cleaner
at a local mall when defendant was brought on as her supervisor.
During his first few weeks on the job, defendant invited Maria
Guadalupe to have lunch with him outside of work. She always
declined, however, and defendant eventually stopped asking.
During the next three months, defendant periodically pinched
Maria Guadalupe’s ribs while he joked around with her.
Sometime that summer, defendant called Maria Guadalupe
into the storage room that served as his office. Defendant

3
grabbed her from behind and began massaging her shoulders; he
told her to relax. Maria Guadalupe could feel defendant’s erect
penis pressing against her back. She pulled away and fled the
room without getting the supplies she had come for.
That December, Maria Guadalupe had another
inappropriate run-in with defendant. As she entered a mall
restroom to clean it, defendant followed her. Again, defendant
grabbed her shoulders from behind, massaged them, and told her
to relax; again, Maria Guadalupe could feel defendant’s erect
penis pressing against her; again, she fled the area.
Six months later, in June 2014, it happened again.
Defendant called Maria Guadalupe into his office to get some
cleaning products. When she arrived, he grabbed her from
behind, massaged her shoulders, and pressed his body against
hers. Maria Guadalupe struggled to get away.
Maria Guadalupe never had the courage to confront
defendant about his behavior. Although she told some coworkers
and a union delegate about what had happened, she did not tell
anyone in management; she was afraid they wouldn’t believe her.
Maria Guadalupe had heard about coworkers who had reported
being sexually harassed by managers; the complaints were not
well-received. Moreover, the union delegate told her that she had
to have video footage and witnesses to corroborate her claim;
Maria Guadalupe didn’t have that kind of evidence.
Sometime in 2014 or 2015, defendant was promoted to
district manager at the company contracted to clean the mall.
But in September 2015, he returned to the mall where Maria
Guadalupe worked for a site visit. Defendant told her to clean a
vacant café; he claimed the mall wanted to show it to prospective
tenants. He also said one of her male colleagues would meet her

4
there to help her. The colleague never showed up; defendant
arrived instead. No one else was there.
As Maria Guadalupe began to clean the vacant café,
defendant approached her from behind and grabbed her
shoulders as he had in the past. But this time, he was more
forceful—and this time, he grabbed her hand, forced it behind her
back, and pressed it against his erect penis, which she could feel
through his pants. As Maria Guadalupe struggled to get away,
defendant held her more tightly, forcing her to “caress his legs
and the groin” with her hand. Maria Guadalupe eventually broke
free and resumed cleaning.
They soon left the café, but Maria Guadalupe “was very
scared” and “didn’t have the courage to confront him.” Nor did
Maria Guadalupe have the courage to report defendant to
management: She was afraid she’d lose her job if they didn’t
believe her. And indeed, the next time defendant saw Maria
Guadalupe, he tried to get her disciplined at work.

DISCUSSION

Defendant contends there is insufficient evidence to
support the unlawful restraint element of count 9 because the
prosecution did not prove that he used more force than necessary
to commit the sexual battery. He also argues that the prosecutor
committed prejudicial misconduct by misstating the quantum of
proof required before the jury could use the charged sex crimes as
propensity evidence of other charged sex crimes under Evidence
Code section 1108.

5
1. There is sufficient evidence of unlawful restraint to
support defendant’s conviction for count 9.
A criminal defendant may not be convicted of any crime
unless the prosecution proves every fact necessary for conviction
beyond a reasonable doubt. (U.S. Const., 5th & 14th Amends.;
Cal. Const., art. I, §§ 7, 15; In re Winship (1970) 397 U.S. 358,
364; People v. Tenner (1993) 6 Cal.4th 559, 566.) “This cardinal
principle of criminal jurisprudence” (Tenner, at p. 566) is so
fundamental to the American system of justice that criminal
defendants are always “afforded protection against jury
irrationality or error by the independent review of the sufficiency
of the evidence undertaken by the trial and appellate courts.”
(United States v. Powell (1984) 469 U.S. 57, 67.)
Defendant contends there is insufficient evidence of
unlawful restraint to support his conviction for sexual battery of
Maria Guadalupe. We disagree. We conclude there is substantial
evidence from which a jury could reasonably infer that defendant
used his authority to compel Maria Guadalupe to stay in a room
in which she did not wish to remain, and that compulsion was
sufficient to constitute unlawful restraint.
1.1. Standard of Review
In assessing the sufficiency of the evidence to support a
conviction, we review the entire record to determine whether any
rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th
47, 59–60.) “The record must disclose substantial evidence to
support the verdict—i.e., evidence that is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find

6
the defendant guilty beyond a reasonable doubt.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.)
In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978,
1053.) We may not reweigh the evidence or resolve evidentiary
conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The
same standard applies where the conviction rests primarily on
circumstantial evidence. (People v. Thompson (2010) 49 Cal.4th
79, 113.)
Deference is not abdication, however, and substantial
evidence is not synonymous with any evidence. (People v.
Johnson (1980) 26 Cal.3d 557, 576–577.) “ ‘A decision supported
by a mere scintilla of evidence need not be affirmed on appeal.’
[Citation.] Although substantial evidence may consist of
inferences, those inferences must be products of logic and reason
and must be based on the evidence.” (In re James R. (2009) 176
Cal.App.4th 129, 135.) Likewise, we “may not … ‘ “go beyond
inference and into the realm of speculation in order to find
support for a judgment.” ’ ” (People v. Franklin (2016) 248
Cal.App.4th 938, 947; accord People v. Waidla (2000) 22 Cal.4th
690, 735.)
1.2. Elements of Sexual Battery by Restraint
To convict defendant of count 9, the prosecution was
required to prove:
◦ Defendant unlawfully restrained Maria
Guadalupe;

7
 ◦ While Maria Guadalupe was restrained, defendant
caused her to touch an intimate part of defendant;
◦ The touching was against Maria Guadalupe’s will;
and
◦ The touching was done for the specific purpose of
sexual arousal, sexual gratification, or sexual
abuse.
(§ 243.4, subd. (d); see CALCRIM No. 935.)
Unlawful restraint requires “something more than the
exertion of physical effort required to commit the prohibited
sexual act.” (People v. Pahl (1991) 226 Cal.App.3d 1651, 1661.)
But it doesn’t necessarily require physical force. A victim is
unlawfully restrained within the meaning of section 243.4 when
his or her liberty is controlled by the words, acts, or authority of
another, and the restraint is against his or her will. (People v.
Arnold (1992) 6 Cal.App.4th 18, 28 (Arnold).) Put another way,
the defendant doesn’t have to tie the victim up; it is enough for a
defendant to use his authority to coerce a victim to go where she
does not wish to go or to remain where she does not wish to
remain. (Id. at pp. 27–28.)
1.3. There is substantial evidence defendant
unlawfully restrained Maria Guadalupe.
To be sure, “a restraint is not unlawful if it is accomplished
by lawful authority and for a lawful purpose … .” (Arnold, supra,
6 Cal.App.4th at p. 28; People v. Alford (1991) 235 Cal.App.3d
799, 802–804.) And in this case, it was within the scope of
defendant’s duties to tell Maria Guadalupe to clean the empty
café—even if she didn’t want to. But if an otherwise-lawful
restraint occurs for an unlawful purpose, it becomes an unlawful

8
restraint. (Arnold, at p. 28; Alford, at pp. 803–804.) That is, it
would be unlawful for defendant to order Maria Guadalupe to
clean the café if he did so to facilitate a sexual battery.
Here, defendant summoned Maria Guadalupe to a vacant
café, ostensibly so it could be shown to prospective tenants. But
the jury could reasonably infer from defendant’s claim that a
coworker would join her, the coworker’s failure to materialize,
defendant’s subsequent actions, and the negligible cleaning that
was ultimately accomplished, that this was merely a ruse to
isolate Maria Guadalupe.
The jury could also reasonably infer Maria Guadalupe was
there against her will. The fact that Maria Guadalupe stayed and
continued to clean after the battery indicates that she did not feel
free to leave. Although she had fled after defendant’s previous
assaults, Maria Guadalupe had even less power in 2015 than she
did during the previous two years. She knew that her coworkers
had complained about sexual harassment—and the company not
only failed to take responsive action, but instead promoted
defendant to district supervisor.
Thus, as in Arnold, a “reasonable jury could have concluded
that the coercive atmosphere created by defendant was such that
[the victim’s] liberty was being controlled by defendant’s words,
acts and authority against her will and that she was unlawfully
restrained.” (Arnold, supra, 6 Cal.App.4th at p. 31.) Accordingly,
there is substantial evidence to support defendant’s conviction for
count 9.
2. Defendant forfeited his claim of prosecutorial conduct,
but counsel was not ineffective for failing to object.
Under Evidence Code section 1108, when a defendant is
charged with a sex crime, a jury may use consider his propensity

9
for committing sex offenses as evidence of his guilt. Before the
jury may consider defendant’s past sex crimes as propensity
evidence to support the current charges, however, the prosecution
must prove that the defendant committed them. If the evidence
involves an act that isn’t charged in the current case, the
prosecution must prove its truth by a preponderance of the
evidence. (People v. Reliford (2003) 29 Cal.4th 1007, 1012–1016;
People v. Carpenter (1997) 15 Cal.4th 312, 382.) If the act is
charged in the current case, however, the prosecution must prove
it beyond a reasonable doubt. (People v. Villatoro (2012) 54
Cal.4th 1152, 1160–1161, 1167–1169.)
Defendant argues that the prosecutor committed
prejudicial misconduct by misstating the quantum of proof
required before the jury could use the charged sex crimes as
propensity evidence of other charged sex crimes under Evidence
Code section 1108. Although he concedes this issue has been
forfeited by his failure to object below, and further concedes that
a timely admonition would probably have cured the harm, he
contends defense counsel provided constitutionally defective
representation by failing to object. Because counsel may have had
a strategic reason not to object, we reject this claim.
2.1. Proceedings Below
Using CALJIC No. 2.50.01, the court instructed the jury
about the use of charged and uncharged sex crimes as propensity
evidence as follows:
In determining whether the defendant has been
proven guilty of any sexual crime of which he is
charged, you should consider all relevant evidence,
including whether the defendant committed any

10
other sexual crimes, whether charged or uncharged,
about which evidence has been received. The crimes
charged in Counts 1, 2, 3, 5, 7, 8 and 9 may be
considered by you in that regard.
“Sexual offense” means a crime under the laws of a
state or of the United States that involves any of the
following:
Any conduct made criminal by Penal Code sections
261(a)(2) (rape), 664/261(a)(2) (attempted rape),
289(a)(l)(A) (penetration by foreign object),
288a(c)(2)(A) (unlawful oral copulation), and
243.4(b) (sexual battery by restraint). The elements
of these crimes are set forth elsewhere in these
instructions.
Evidence of an uncharged sexual offense has been
received. If you find by a preponderance of the
evidence that the defendant committed an
uncharged sexual offense, you may, but are not
required to, infer that the defendant had a
disposition to commit sexual offenses. If you find
that the defendant had this disposition, you may,
but are not required to, infer that he was likely to
commit and did commit the sexual crime or crimes
of which he is accused.
However, even though you find by a preponderance
of the evidence that the defendant committed an
uncharged sexual offense, that is not sufficient by
itself to prove beyond a reasonable doubt that he
committed the charged crimes you are determining.

11
 If you determine an inference properly can be
drawn from this evidence, this inference is simply
one item for you to consider, along with all other
evidence, in determining whether the defendant has
been proved guilty beyond a reasonable doubt of the
charged crime that you are determining.
As to any charged sexual crime, [i]f you find beyond
a reasonable doubt that the defendant committed
that crime, you may, but are not required to, infer
that the defendant had a disposition to commit
sexual offenses. If you find that the defendant had
this disposition, you may, but are not required to,
infer that he was likely to commit and did commit
any other sexual crimes of which he is accused.
(Italics added.) The court then gave the jury two more
instructions about the meaning of preponderance of the
evidence.3
During closing argument, the prosecutor used these
principles to explain how the jury should evaluate testimony from
Rita C., who testified about an uncharged sexual battery:
If you believe Rita, what do you do with this
information?
Well, first of all, unlike the other cases—or the other
charges—where you have to find beyond a
reasonable doubt, with Rita, you just have to find a
preponderance of the evidence. Is it more likely
than not that what she’s telling us is true? If you

3 CALJIC Nos. 2.50.1 and 2.50.2.

12
find by a preponderance of the evidence that it’s
more likelier than not that what she’s telling us is
true, you can infer that the defendant has a
disposition to commit sexual offenses.
Essentially what that means is, you can find that
he’s the kind of person to commit a sexual offense.
And you can infer, if you find that he’s the kind of
person to commit a sexual crime, if he was likely to
commit and did commit the sexual crimes of what
he was accused of. You may infer, but you’re not
required to.
So it’s kind of like, well, you know I was— The way
you use this information, let’s say you were right on
the line with one of them, let’s say with Estela.
You’re right on the line with Estela. You think,
there’s probably he did something, it’s right there,
but now that I know it happened to Rita, now that I
see past behaviors, patterns, yeah, now I believe
beyond a reasonable doubt that he is the kind of
person that would do this and that he did do this.
Not only can you use that with Rita’s, you can use it
with the others. So all of the other crimes, the crime
as to Estela, the crime as to Maria Guadalupe, the
crimes as to Esther, Maria Isabel, you can use this
instruction.
So if you think even, hey, you know, I believe more
likely than not that something happened with
Estela, you can use that to say, well, now I think
that he is the kind of person that would do this, that

13
 he is the kind of person that secludes women to take
advantage of. He is the kind of person to take
advantage of who are his subordinates and isolate
them and rape them and force them to orally
copulate him. You can use all of the witnesses, all of
the victims in this way.
(Italics added; grammatical errors original.) Defense counsel did
not object. Then, after asking the jurors to find defendant guilty,
the prosecutor concluded her argument.
Defense counsel began his closing argument by explaining,
“Even for seasoned lawyers, some of these instructions are
perplexing.” He stressed that the jurors would “have a copy of all
these jury instructions in the jury room, so you can read them
and review them and talk about them.” During his argument,
however, counsel did not address Rita’s testimony or explain how
the jury could use propensity evidence.
After the prosecutor’s rebuttal argument, the court reread
CALJIC No. 2.50.1, which explained that “the prosecution has
the burden of proving by a preponderance of the evidence that the
defendant committed a crime other than those for which he is on
trial.” The court then paused to clarify: “And this is the
instruction, just so it’s clear—I think the prosecutor argued—
relates directly to the testimony of Rita C.”
2.2. Defendant forfeited this issue by failing to object.
“ ‘To preserve a claim of prosecutorial misconduct for
appeal, a defendant must make a timely and specific objection
and ask the trial court to admonish the jury to disregard the
improper argument. [Citation.]’ [Citation.] A failure to timely
object and request an admonition will be excused if doing either

14
would have been futile, or if an admonition would not have cured
the harm.” (People v. Linton (2013) 56 Cal.4th 1146, 1205.) Here,
defendant concedes he failed to object to the prosecutor’s
misstatement and to request an admonition; he also
acknowledges that an admonition would probably have cured the
harm. As such, the issue is forfeited. Defendant contends,
however, that defense counsel’s failure to object constituted
ineffective assistance of counsel.
2.3. On this record, defense counsel did not provide
constitutionally defective representation.
Under either the federal or state Constitution, the
“benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as
having produced a just result.” (Strickland v. Washington (1984)
466 U.S. 668, 686 (Strickland).) To establish ineffective
assistance of counsel, defendant must satisfy two requirements.
(Id. at pp. 690–692.)
First, he must show his attorney’s conduct was “outside the
wide range of professionally competent assistance.” (Strickland,
supra, 466 U.S. at p. 690.) Then, he must demonstrate that the
deficient performance was prejudicial—i.e., there is a reasonable
probability that but for counsel’s failings, the result of the
proceeding would have been different. (Id. at p. 694.) “It is not
sufficient to show the alleged errors may have had some
conceivable effect on the trial’s outcome; the defendant must
demonstrate a ‘reasonable probability’ that absent the errors the
result would have been different.” (People v. Mesa (2006)
144 Cal.App.4th 1000, 1008.)

15
 Claims of ineffectiveness must usually be “raised in a
petition for writ of habeas corpus [citation], where relevant facts
and circumstances not reflected in the record on appeal, such as
counsel’s reasons for pursuing or not pursuing a particular trial
strategy, can be brought to light to inform” the inquiry. (People v.
Snow (2003) 30 Cal.4th 43, 111.) “There may be cases in which
trial counsel’s ineffectiveness is so apparent from the record that
appellate counsel will consider it advisable to raise the issue on
direct appeal. There may be instances, too, when obvious
deficiencies in representation will be addressed by an appellate
court sua sponte.” (Massaro v. United States (2003) 538 U.S. 500,
508.) But those cases are rare.
Typically, if “the record does not shed light on why counsel
acted or failed to act in the challenged manner, we must reject
the claim on appeal unless counsel was asked for and failed to
provide a satisfactory explanation, or there simply can be no
satisfactory explanation. [Citations.]” (People v. Scott (1997) 15
Cal.4th 1188, 1212.) These arguments should instead be raised
on collateral review. (People v. Mendoza Tello (1997) 15 Cal.4th
264, 266–267.)
Here, the prosecutor spent comparatively little time
discussing propensity evidence—and when she did, her primary
focus was on Rita’s testimony; her reference to the jury’s use of
charged crimes was fleeting. As such, defense counsel could have
reasonably decided that objecting and asking for an admonition
would only highlight to the jurors that they could use the charged
crimes in this way.
The very structure of the parties’ arguments suggests that
strategy may have come into play. The prosecutor’s misstatement
came at the end of her first argument. Then, defense counsel

16
began his response by emphasizing to the jurors that even
seasoned lawyers find these instructions confusing and inviting
the jurors to read the instructions themselves. Thus, to the extent
the jurors noticed the prosecutor’s comment, defense counsel
alerted them that they should confirm its accuracy. But, if any
jurors didn’t catch it, defense counsel ensured it wasn’t pointed
out to them.
Such a strategy is especially plausible given the court’s use
of CALJIC in this case. As defendant notes, CALJIC Nos. 2.50.01,
2.50.1, and 2.50.2 accurately state the law. But they are wordy,
often written in the passive voice, and not, overall, a model of
clarity. They also focus on uncharged offenses. Accordingly,
defense counsel could have reasoned that the jurors would not
focus on the ways in which they could use the charged crimes as
propensity evidence of each other—and concluded that if they
did, they would have an accurate instruction to guide them. If
counsel had objected and requested an admonition, however, he
would have ensured that the jury realized they could use charged
crimes as propensity evidence of each other.
Because defense counsel had a plausible tactical reason not
to object, we conclude defendant has not established that he
received constitutionally inadequate representation.

17
 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

DHANIDINA, J.

18