Two men were originally convicted by a judge sitting without a jury in June 2021, but the Alberta Court of Appeal ruled that a retrial was warranted
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Calgarian Joshua Cervantes is heading back to jail for the second time in connection with his involvement in the gang rape of a runaway teen.
But Cervantes’ latest time behind bars may be short-lived, as his lawyer has appealed his conviction and will be seeking his release pending that hearing.
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Defence counsel Jillian Williamson said she has filed an appeal of Cervantes’ conviction in January by a Calgary Court of King’s Bench jury in connection with a Feb. 6, 2020, incident at his parents’ southeast home.
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The lawyer’s comments came after Justice Joanna Price handed Cervantes the same five-year sentence she gave his co-accused, Chngkouth John Makuag in March for their roles in the gang attack on their 15-year-old victim.
Crown prosecutor Donna Spaner had sought a six-year term for Cervantes, arguing there were aggravating factors that differentiated him from his co-accused, but the judge said those hadn’t been established beyond a reasonable doubt.
Williamson had proposed a sentence in the four- to five-year range.
Price did find there were significant aggravating features in the crime to elevate the sentence above the starting point for major sexual assaults of three years.
“Mr. Cervantes was aware (the victim) was a young, vulnerable high school student,” Price said.
“He took advantage of her naivety and her vulnerable state to engage in unlawful sexual touching of her.”
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The judge noted the assaults included both sexual touching and intercourse with the victim, who the two men and a youth had earlier met at Chinook Centre.
“Mr. Cervantes participated in forced sexual intercourse that was a group endeavour and gang in nature,” Price said.
The girl had run away from home and was looking for a place to stay for the night and was taken to Cervantes’ parents’ residence.
The two men were originally convicted by a judge sitting without a jury in June 2021, but the Alberta Court of Appeal ruled last year that a retrial was warranted.
After their first trial Makuag, who was 20 at the time of the assault, was handed a five-year term while Cervantes, who was 19 during the crime, was sentenced to 5½ years.
But Price noted Cervantes has been on release for much of the time since he was charged and now has a live-in girlfriend, a two-year-old daughter and a steady job.
Makuag, who remains in custody, has also filed an appeal of his second conviction.
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