People v. Cerda CA5

INTRODUCTION

A jury convicted appellant Macario Vasquez Cerda of 12 felonies, including forcible rape, kidnapping to commit rape, and forcible lewd acts upon a child. Two victims were involved, and both were minors when some of these crimes occurred. Appellant received a determinate prison sentence of 11 years, and a consecutive indeterminate prison sentence of 340 years to life, plus 50 years. Appellant raises claims of insufficiency of the evidence, instructional and sentencing errors, and prosecutorial misconduct. We reject a vast majority of his claims. However, we agree with appellant that his sentence in count 4 (making criminal threats) must be stayed pursuant to Penal Code section 654 because those threats were the means of accomplishing the forcible rape in count 1. 1 We remand this matter for resentencing but otherwise affirm the judgment.

BACKGROUND

Appellant sexually assaulted two victims in this matter, E.G. and C.G. Their mother, Yolanda M., was in a romantic relationship with appellant from 2008 to 2011. Yolanda and appellant’s relationship ended following an incident of domestic violence in 2011.2 Appellant and Yolanda have two children together. Appellant moved…