Filed 4/4/13 P. v. Cerros CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B237693

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA117226)
         v.

MARTIN FERNANDO CERROS,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County.
Philip H. Hickok, Judge. Affirmed.
         Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette and Lance E. Winters,
Assistant Attorneys General, Paul M. Roadarmel, Jr. and William N. Frank, Deputy
Attorneys General, for Plaintiff and Respondent.




                                ___________________________________
        Defendant Martin Cerros appeals from the judgment entered following a jury trial
in which he was convicted of 19 counts of sexual abuse of a child under 14 years of age.
He contends no evidence supported the finding that he was at least seven years older than
the child, the trial court erred in not instructing the jury that it was required to reach
unanimous decisions on which instances of abuse supported the guilt finding on each
count, and his sentence of 255 years to life was excessive. We affirm.
                                      BACKGROUND
        Elizabeth L. was born in October 1996. In 2002 or 2003, defendant Martin Cerros
began a relationship with Elizabeth’s mother, Rocio M. Defendant rented a one-room
home when Elizabeth was 12 years old, and she stayed with him even though Rocio M.
for the most part did not. Elizabeth considered defendant to be her stepfather. Defendant
fathered two daughters with Rocio M., in 2003 and 2004. They also lived with him.
        When Elizabeth was 11 years old, defendant began to touch her vagina, buttocks
and breasts, and doing so almost every day. When she would say no and try to push him
away, he would become angry and push her back.
        After Elizabeth was 12, defendant continued to fondle her breasts and buttocks
and began to penetrate her vagina with his fingers. He did this four or five times per
week.
        When Elizabeth was 13, defendant continued to fondle her breasts and buttocks
and digitally penetrate her vagina. He also put his mouth on her vagina once and began
to penetrate her vagina with his penis, which he did six or seven times per week for
approximately one year. Elizabeth would cry and tell him to stop, but he would hold her
down and push and kick her.
        Elizabeth eventually reported the abuse to an aunt and her mother. When
confronted, by Rocio, defendant admitted the molestation and told Rocio he would move
to Mexico. Instead, he was arrested, and in a police interview admitted to regular
intimate touching and sexual intercourse with Elizabeth over the past five or six years.




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        Defendant was charged with committing continuous sexual abuse of a child under
the age of 14 years (Pen. Code, § 288.5, subd. (a); count 1);1 committing a forcible lewd
act upon a child (§ 288, subd. (b)(1); count 2); three counts of aggravated sexual assault
of a child by sexual penetration (§ 269, subd. (a)(5); counts 3-5); aggravated sexual
assault of a child by oral copulation (§ 269, subd. (a)(4); count 6); and 13 counts of
aggravated sexual assault of a child by rape (§ 269, subd. (a)(1); counts 7-19). Defendant
pleaded not guilty. Trial was by jury, and defendant was convicted on all counts.
        The trial court sentenced defendant to the high term of 16 years on count 1 plus
consecutive term of 8 years (the high term) on count 2 and 17 terms of 15 years to life for
counts 3 through 19, for an aggregate sentence of 255 years to life.
        Defendant appeals the judgment of conviction and sentence.
                                      DISCUSSION
        A.     Sufficiency of Evidence for Counts 3 - 19
        Defendant was convicted on counts 3 through 19 of violating section 269, which
proscribes sexual assault of a child under 14 years of age who is also “seven or more
years younger than” the assailant. (§ 269, subd. (a).) Defendant does not dispute that the
evidence at trial established Elizabeth was under 14 years of age at all pertinent times.
Instead, he contends no “testimonial or documentary evidence” was introduced that he
was seven or more years older than she was.
        “‘When the sufficiency of the evidence is challenged on appeal, the court must
review the whole record in the light most favorable to the judgment to determine whether
it contains substantial evidence—i.e., evidence that is credible and of solid value—from
which a rational trier of fact could have found the defendant guilty beyond a reasonable
doubt.’ [Citations.]” (People v. Jennings (1991) 53 Cal.3d 334, 364.) “When
undertaking such review, our opinion that the evidence could reasonably be reconciled
with a finding of innocence or a lesser degree of crime does not warrant a reversal of the
judgment.” (People v. Hill (1998) 17 Cal.4th 800, 849.)

 1   Undesignated statutory references are to the Penal Code.


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       According to the probation report, defendant was born in 1970, making him 26
years older than Elizabeth, 41 years old at the time of trial. But neither the probation
report nor any other document stating defendant’s age was shown to the jury, and no
witness testified and no stipulation was entered as to his age. Defendant is therefore
correct that no testimonial or documentary evidence directly stated his age.
       But testimony and documentation are not the only means by which a defendant’s
age may be established: a view of the defendant by the trier of fact may in an appropriate
case be sufficient to support a finding that he is within a certain age range. (See People v.
Montalvo (1971) 4 Cal.3d 328, 335.) “‘Experience teaches us that corporal appearances
are approximately an index of the age of their bearer, particularly for the marked
extremes of old age and youth. In every case such evidence should be accepted and
weighed for what it may be in each case worth. . . .’ [Citations.]” (Ibid; People v.
Castaneda (1994) 31 Cal.App.4th 197, 203-204 [“In all jurisdictions, the defendant’s
presence, subject to the jury’s view is relevant, circumstantial evidence of age”].)
       Here, defendant was present in court and visible to the jury during trial. The
prosecutor noted that he appeared to be “middle aged,” and defense counsel argued that
he was a “grown man” in appearance. Furthermore, there was testimony that he had
fathered children with Elizabeth’s mother in 2002 and 2003 and that he rented a one-
room home when Elizabeth was 12 years old. And an audio recording of defendant’s
interview with police was played for the jury, in which he stated he began working at a
record store in 1999, when Elizabeth was three years old.
       The guilty verdict reflects the jury’s conclusion that defendant was seven or more
years older than Elizabeth. This apparent age differential was corroborated by other
testimony. Although the evidence was not conclusive by itself, the jury could reasonably
infer the requisite age differential existed.




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       B.     Unanimity Instruction
       Defendant contends the trial court erred in failing sua sponte to give the jury a
unanimity instruction such as CALJIC No. 17.01.2 We disagree.
       In People v. Russo (2001) 25 Cal.4th 1124, our Supreme Court said, “In a criminal
case, a jury verdict must be unanimous. [Citations.] . . . . Additionally, the jury must
agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore,
cases have long held that when the evidence suggests more than one discrete crime, either
the prosecution must elect among the crimes or the court must require the jury to agree on
the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal
act ‘is intended to eliminate the danger that the defendant will be convicted even though
there is no single offense which all the jurors agree the defendant committed.’ [Citation.]
For example, in People v. Diedrich [(1982)] 31 Cal.3d 263, the defendant was convicted
of a single count of bribery, but the evidence showed two discrete bribes. We found the
absence of a unanimity instruction reversible error because without it, some of the jurors
may have believed the defendant guilty of one of the acts of bribery while other jurors

 2  Unanimity instructions are set forth in CALJIC Nos. 4.71.5 and 17.01. CALJIC No.
4.71.5 provides: “Defendant is accused [in Count[s] ___] of having committed the crime
of ________, a violation of section _____ of the Penal Code, on or about a period of time
between _____ and _____. [¶] In order to find the defendant guilty, it is necessary for
the prosecution to prove beyond a reasonable doubt the commission of [a specific act [or
acts] constituting that crime] [all of the acts described by the alleged victim] within the
period alleged. [¶] And, in order to find the defendant guilty, you must unanimously
agree upon the commission of [the same specific act [or acts] constituting the crime] [all
of the acts described by the alleged victim] within the period alleged. [¶] It is not
necessary that the particular act or acts committed so agreed upon be stated in the
verdict.”
    CALJIC No. 17.01 provides: “The defendant is accused of having committed the
crime of ________ [in Count ___]. The prosecution has introduced evidence for the
purpose of showing that there is more than one [act] [or] [omission] upon which a
conviction [on Count ____ ] may be based. Defendant may be found guilty if the proof
shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts]
[or] [omissions]. However, in order to return a verdict of guilty [to Count ____ ], all
jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or]
[omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be
stated in your verdict.”

                                             5
believed him guilty of the other, resulting in no unanimous verdict that he was guilty of
any specific bribe. [Citation.] ‘The [unanimity] instruction is designed in part to prevent
the jury from amalgamating evidence of multiple offenses, no one of which has been
proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a
defendant must have done something sufficient to convict on one count.’ [Citation.]”
(People v. Russo, supra, 25 Cal.4th at p. 1132.)
       Failure to give a unanimity instruction is error when “there is evidence based on
which reasonable jurors could disagree as to which act the defendant committed. If there
is such evidence, the failure to give [a unanimity instruction] will most often, though not
necessarily, be prejudicial.” (People v. Schultz (1987) 192 Cal.App.3d 535, 539-540, fn.
omitted.)
       But a unanimity instruction is not required in all cases where the evidence shows
that more than one act could suffice for a conviction of a particular offense. “‘“A
unanimity instruction is required only if the jurors could otherwise disagree which act a
defendant committed and yet convict him of the crime charged.” [Citations.] “Where the
acts were substantially identical in nature, so that any juror believing one act took place
would inexorably believe all acts took place, the instruction is not necessary to the jury’s
understanding of the case.”’ [Citations.]” (People v. Champion (1995) 9 Cal.4th 879,
932 [court did not err in not giving unanimity instruction on single charge of rape
supported by two acts of penetration when the evidence supporting the acts was “virtually
identical” and theory of defense was that defendant had not participated in any of the
acts].) “[T]he possibility of disagreement exists where the defendant is accused of a
number of unrelated incidents, such as alleged rapes at different times or places, leaving
the jurors free to believe different parts of the testimony and yet convict the defendant.
[Citations.]” “Disagreement may also exist where the defendant offers a defense which
could be accepted or rejected as to some but not all of the acts. In this situation, the
jurors again may disagree as to which act the defendant was guilty of and yet convict
him. [Citations.] [¶] If under the evidence presented such disagreement is not
reasonably possible, the instruction is unnecessary.” (People v. Gonzalez (1983) 141

                                              6
Cal.App.3d 786, 791-792, fns. omitted [failure to give CALJIC No. 17.01 not error when
record showed that two acts of penetration involved the same victim, occurred at the
same location within minutes of each other, and the defense argument that victim had
consented to one of the rapes was not supported by the evidence]; see also People v.
Mota (1981) 115 Cal.App.3d 227, 233 [prosecutor not required to elect three specific acts
supporting the three rape charges when victim testified to “many continuous acts of
forced sexual intercourse”]; but see People v. Madden (1981) 116 Cal.App.3d 212, 218-
219 [prejudicial error for court to fail to give unanimity instruction when number of sex
acts exceeded number of sex offenses charged and the record did not demonstrate that the
jury had unanimously agreed on the acts].)
       Similarly, “[t]he unanimity instruction is not required when the acts alleged are so
closely connected as to form part of one transaction. [Citations.] The ‘continuous
conduct’ rule applies when the defendant offers essentially the same defense to each of
the acts, and there is no reasonable basis for the jury to distinguish between them.
[Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
       Count 1
       Defendant was convicted on count 1 of committing continuous sexual abuse of a
child under the age of 14 years. (§ 288.5, subd. (a).) Subdivision (b) of section 288.5
states that “To convict under this section the trier of fact, if a jury, need unanimously
agree only that the requisite number of acts occurred not on which acts constitute the
requisite number.” Because a jury need not unanimously agree which act constituted the
sexual abuse, no unanimity instruction would be proper.
       Count 6
       Defendant was convicted on count 6 of aggravated sexual assault of a child by oral
copulation. (§ 269, subd. (a)(4).) Elizabeth testified defendant orally copulated her one
time. Because the evidence showed only one criminal act, no unanimity instruction was
required. (People v. Benavides (2005) 35 Cal.4th 69, 101 [when the evidence “shows
only a single discrete crime but leaves room for disagreement as to exactly how that



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crime was committed, the jury need not unanimously agree on the theory under which the
defendant is guilty”].)
       Counts 2-5 and 7-19
       In the remaining counts, defendant was charged with committing a forcible lewd
act upon a child (§ 288, subd. (b)(1); count 2); aggravated sexual assault of a child by
sexual penetration (§ 269, subd. (a)(5); counts 3-5), and aggravated sexual assault of a
child by rape (§ 269, subd. (a)(1); counts 7-19).
       As to each of these crimes, the undisputed testimony was that defendant
committed countless forcible lewd acts upon Elizabeth, and sexually penetrated her and
raped her countless times. Elizabeth testified defendant touched her vagina, buttocks and
breasts every day for approximately three years beginning when she was 11 years old.
When she was 12, defendant began to penetrate her vagina with his fingers, doing so four
or five times per week for approximately two years. When Elizabeth turned 13,
defendant began to penetrate her vagina with his penis. He did this six or seven times per
week for approximately one year.
       Defendant offered essentially the same defense to each of these acts, and there was
no reasonable basis for the jury to distinguish between them. In such a circumstance, no
unanimity instruction is required. (People v. Stankewitz, supra, 51 Cal.3d at p. 100.)
       C.     Cruel and Unusual Punishment
       Defendant contends his 255-years-to-life sentence violates both the federal and
state prohibition against cruel and/or unusual punishment because it is “grossly
disproportionate” to his crime. We disagree.
       Article I, section 17 of the California Constitution prohibits cruel or unusual
punishment. (Cal. Const., art. I, § 17.) “‘Punishment is cruel and unusual if it is so
disproportionate to the crime committed that it shocks the conscience and offends
fundamental notions of human dignity.’ [Citation.]” (People v. Sullivan (2007) 151
Cal.App.4th 524, 568.) To determine whether a sentence is cruel or unusual, we consider
the circumstances of the offense and the defendant’s age, prior criminality, and mental
capability. (People v. Cole (2004) 33 Cal.4th 1158, 1235.) The state must punish

                                             8
criminals while maintaining respect for their human worth. (In re Lynch (1972) 8 Cal.3d
410, 424.) “Punishment which is so excessive as to transgress [the limits of civilized
standards] and deny that worth cannot be tolerated.” (Ibid.) Because we judge the
constitutional validity of an indeterminate prison term by the maximum term provided,
we consider the proportionality of a life sentence. (Id. at p. 416.)
       “‘Whether a punishment is cruel or unusual is a question of law for the appellate
court, but the underlying disputed facts must be viewed in the light most favorable to the
judgment.’ [Citation.]” (People v. Em (2009) 171 Cal.App.4th 964, 971.) Only in very
rare cases could we declare the length of imprisonment mandated by the Legislature to be
unconstitutionally excessive. (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
       Defendant’s sentence is not disproportionate to the crimes committed. “California
has recognized, and reasonably so, that sex offenders present a serious danger to society
because of their tendency to repeat their sexual offenses. Sexual offenses not only invade
the deepest privacies of a human being, and thereby may cause permanent emotional
scarring, but they frequently result in serious physical harm to, or death of, the victim.”
(People v. Meeks (2004) 123 Cal.App.4th 695, 709.) Section 288.5, subdivision (a),
prescribes a maximum sentence of 16 years for continuous sexual abuse of a child.
Section 288, subdivision (a), mandates a maximum sentence of eight years for the
commission of a lewd or lascivious act upon the body of a child under the age of 14
years. Section 269, subdivisions (b) and (c), prescribe a separate, consecutive prison
term of 15 years to life on each count on which an offender is convicted of aggravated
sexual assault of a child where the separate offenses involved the same victim on separate
occasions. Thus, for the 19 offenses as defendant committed them, the Penal Code
mandates a maximum sentence of 255 years to life.
       To demonstrate that the legislatively mandated sentence is cruel or unusual within
the meaning of the California Constitution, defendant must meet the three-prong test of In
re Lynch, supra, 8 Cal.3d at pp. 425-427. Under that test, the court first looks at the
nature of the crime and evaluates the degree of danger the offender presents to society.
Second, the court compares the sentence at issue with sentences imposed for more serious

                                              9
crimes in California. Third, the court compares punishments for more serious crimes in
other jurisdictions.
       Defendant makes little attempt to address, much less satisfy, the Lynch test. He
adduces no mitigating factors and offers no comparison between California’s legislative
scheme and that prescribed in other states. His sole argument is that the sentence for
multiple sex abuse crimes is disproportionate because he would have received a lesser
sentence for murder. We reject the comparison.
       “When the fundamental nature of the offense and the offender differ, comparison
for proportionality is not possible. The seriousness of the threat a particular offense
poses to society is not solely dependent on whether it involves physical injury.
Consequently, the commission of a single act of murder, while heinous and severely
punished, cannot be compared with the commission of multiple felonies.” (People v.
Cooper (1996) 43 Cal.App.4th 815, 826.)
       Our own analysis confirms what defendant tacitly admits—he cannot meet even
the first prong of the Lynch test. Defendant molested and raped Elizabeth, who was in his
care, several times per week for many years. Nothing in the record suggests he would
have stopped had he not been confronted by Rocio. When confronted, he offered to solve
the problem by moving to Mexico, which suggests he failed to grasp the nature and
consequences of his conduct. The continuous molestation of a young child is a very
serious crime, involving severe psychological harm to the victim even when no physical
harm is inflicted. The psychological aberration evidenced by defendant’s behavior and
the casual and opportunistic nature of his sexual assaults against a child in his care seem
to us precisely the sort of sexual offense that warrants harsh punishment. (People v.
Alvarado (2001) 87 Cal.App.4th 178, 199-200.) In any event, having failed to satisfy any
prong of the Lynch test, or even to address the first and third prongs, defendant’s state
claim fails.
       With respect to defendant’s federal claim, the United States Supreme Court has
upheld sentences of 25 years-to-life for one count of felonious grand theft with several
felony and misdemeanor prior convictions, and 50-years-to-life for two counts of petty

                                             10
theft with prior theft convictions with a similar prior record, against claims that the
sentences constituted cruel and unusual punishment. (Ewing v. California (2003) 538
U.S. 11, 14; Lockyer v. Andrade (2003) 538 U.S. 63, 70-77; see also Rummel v. Estelle
(1980) 445 U.S. 263, 266, 285 [life sentence after three separate convictions for theft of
$80, $28.36 and $120.75 does not constitute cruel and unusual punishment].)
       Defendant’s crimes were significantly more serious than those committed by the
defendants in Ewing and Andrade. Thus, we reject his claim that his sentence constitutes
cruel and unusual punishment under the federal Constitution.3
       On this record, defendant’s sentence does not shock the conscience or offend
fundamental notions of human dignity. It therefore violates neither the California nor
federal Constitution.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.




                                                                 CHANEY, J.

We concur:



              MALLANO, P. J.



              JOHNSON, J.




 3  Because we reject defendant’s contention on the merits, we decline to address the
Attorney General’s argument that defendant waived the constitutional issues by not
raising them below.


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