FILE
TONY RACKAUCKAS, DISTRICT ATTORNEY
COUNTY OF ORANGE, STATE OF CALIFORNIA
BY: WHITNEY BOKOSKY
Deputy District Attorney
State Bar Number 245976
POST OFFICE BOX 808
SANTA ANA, CALIFORNIA 92702
TELEPHONE: (714) 834-3600
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE
CENTRAL JUSTICk CENTSR
MAR 2 7 2015
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
)
THE PEOPLE OF THE STATE OF CALIFORNIA, ) Case No.: 14CF1874
)
Plaintiff; ) PEOPLE'S SUPPLEMENTAL
) SENTENCING BRIEF- RE: CRUEL
VS.
) AND UNUSUAL PUNISHMENT.
)
) Date: April 3, 2015
) Time: 1:30
KEVIN NIETO-ROJANO
)
)
)
Defendant(s) )
SUPPLEMENTAL STATEMENT OF FACTS
On February 6, 2015 the parties in this case were present in Department C39 for
sentencing. The victim's and Defendant's mother, Judith Nieto was present as was her husband
and various other family members. The Defendant's father and aunts were also present. Prior to
sentencing or taking the bench, Judge Kelly asked to see both attorneys in chambers. In
chambers, a brief discussion was held wherein the Judge voiced his concerns about the
mandatory sentencing attached to count 1, Penal Code section 288.7(a), which is 25 years to life.
Judge Kelly asked both parties to research the issue and brief the court on possible alternative
sentencing options.
1
1
DISCUSSION
California Constitution, article I, section 17 provides: "Cruel or unusual punishment may
not be inflicted or excessive fines imposed." Similarly, the Eighth Amendment to the United
States Constitution holds that cruel and unusual punishments shall not be inflicted. In California
a punishment may violate article 1, section 6, of our Constitution if, although not cruel or
unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks
the conscience and offends fundamental notions of human dignity. In re Lynch, 8 Cal. 3d 410,
424 (1972).
In our tripartite system of government, however, it is the function of the legislative
branch to define crimes and prescribe punishments, and that such questions are in the first
instance for the judgment of the Legislature alone. Lynch, 8 Cal. 3d at 414. The choice of fitting
and proper penalties is not an exact science, but a legislative skill involving an appraisal of the
evils to be corrected, the weighing of practical alternatives, consideration of relevant policy
factors, and responsiveness to the public will. Id. at 423. The judiciary, accordingly, should not
interfere in this process unless a statute prescribes a penalty "out of all proportion to the offense.
. . i.e. so severe in relation to the crime as to violate the prohibition against cruel or unusual
punishment." Id.
Lynch sets out the present California approach and the analytical method to determine
whether a sentence imposed is cruel or unusual punishment. The Court in Lynch set out a three
factor test for this determination: (1) The nature of offense and offender; (2) How the
punishment compares with other crimes in the jurisdiction; and (3) How the punishment
compares with the same offense in other jurisdictions. Lynch, Cal. 3d at 423. This framework has
consistently been followed in applying California Constitution's prohibition of cruel or unusual
punishment.
%
I
People v. Dillon, 35 Cal. 3d 441 (1983), expanded the first prong of the Lynch analysis.
2
The "nature of the offender" branch of the Lynch analysis examines the defendant "in the
3
concrete rather than the abstract." Id. at 479. The inquiry "therefore focuses on the particular
4
person before the court, and asks whether the punishment is grossly disproportionate to the
5
6
defendant's individual culpability as shown by such factors as his age, prior criminality, personal
7
characteristics, and state of mind." Id. In Dillon, the defendant was a 17-year-old high school
8
student convicted of first-degree felony-murder and attempted robbery. Id. at 451. While robbing
9
a marijuana farm with a group of friends the defendant panicked and shot a guard nine times. Id.
10
The court held the circumstances of the case and the punishment of life imprisonment for a
11
12
13
14
felony murder charge was unconstitutional as being cruel and unusual punishment and the
sentence was reduced to second degree murder. Id. at 489.
Although some sentences have been found excessive, there is considerable reluctance to
15
16
overturn a sentence on the grounds that it inflicts cruel or unusual punishment: "A defendant has
17
a considerable burden to overcome when he challenges a penalty as cruel or unusual. The
18
doctrine of separation of powers is firmly entrenched in the law of California and the court
19
should not lightly encroach on matters which are uniquely in the domain of the Legislature."
20
People v. Bestelmeyer, 166 Cal. App. 3d 520, 529 (1985); People v. Weddle, 1 Cal. App. 4th
21
22
1190, 1196 (1991). While sexual assault crimes carry heavy sentences, "[G]reat deference is
23
ordinarily paid to legislation designed to protect children, who all too frequently are helpless
24
victims of sexual offenses." In re Wells, 46 Cal. App. 3d 592, 599 (1975). Indeed, "[S]exual
25
abuse of a child is a most serious crime and an act repugnant to the moral instances of decent
26
27
28
people." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002).
Subsequent decisions have generally found the challenged punishment not to exceed state
constitutional limits. People v. Carmony, 127 Cal. App. 4th 1066, 1071 (2005), however, is an
exception. In this case, the defendant failed to update a sex offender registration within five days
of his birthday. The ensuing felony conviction resulted in a life term under the three strikes law.
The court posited whether "there is an offense so minor that it cannot trigger the imposition of a
recidivist penalty without violating the cruel and/or unusual punishment prohibitions of the
United States and California Constitutions." Id. at 1071. The court reversed the conviction and
found "[it is a rare case" that does, but "there must be a bottom to that well. If the constitutional
prohibition is to have a meaningful application it must prohibit the imposition of a recidivist
penalty based on an offense that is no more than a harmless technical violation of a regulatory
law." Id. at 1072. Although the violation was a felony, it was a "passive, nonviolent, regulatory
offense that posed no direct or immediate danger to society." Id. at 1078.
On the other hand, courts have upheld similar convictions under Pen. Code § 288.7(a) as
being proportional to the crime. People v. Torres, 2014 WL 2428606 (2014) involved a
challenge of a sentence of 80 years to life for multiple sexual offenses including two counts in
violation of Pen. Code § 288.7(a). The court considered the nature of the offense and the
defendant, how the punishment compares with punishments for more serious crimes in the
jurisdiction, and how the punishment compares with the punishment for the same offense in
other jurisdictions. Id. Tones, a man in his early thirties at the time of the offense with a
moderate-to-low Static 99 risk for reoffending and a limited conviction record, committed sexual
abuses of two child family members. Despite these factors, the court found his sentence was
proportionate to the crimes he committed considering the severity of the offenses and the impact
on the victims. Id. The court thus upheld his 80 years to life conviction. Id.
Looking at convictions of defendants similar in age to Defendant, courts have upheld life
sentences without the possibility for parole for defendants as young as 18 years old. In People v.
Abundio, 221 Cal. App. 4th 1211, 1219 (2013), Jose Abundio stabbed a marijuana dealer to
death in order to rob him and was convicted of first degree murder and sentenced to life in prison
without the possibility of parole. Even though the defendant was 18 years old and had minor
juvenile history, the court based its reasoning on People v. Argeta, 210 Cal. App. 4th 1478, 1482
(2012) where it was ill-advised to make "an exception for a defendant who committed a crime
just five months past his 18th birthday" since it "opens the door for the next defendant who is
only six months into adulthood. Such arguments would have no logical end, and so a line must
be drawn at some point. We respect the line our society has drawn and which the United States
Supreme Court has relied on for sentencing purposes." Id.; Abundio, 221 Cal. App. 4th at 1221.
The court found the punishment not to exceed the standards for cruel and unusual punishment.
Abundio, 221 Cal. App. 4th at 1221.
(1) NATURE OF OFFENSE AND OFFENDER
A court will likely determine the nature of the offense and the Defendant weighs against
finding the sentence cruel and unusual punishment. In looking at the nature of the offense and
offender, courts look to the "degree of danger both present to society." Lynch, 8 Cal. 3d at 425.
Courts consider "not only the offense in the abstract—i.e., as defined by the legislature—but also
the facts of the crime in question. People v. Rhodes, 126 Cal. App. 4th 1374, 1390 (2005). This
entails an examination of the totality of the circumstances surrounding the commission of the
offense in the case at bar, including such factors as its motive, the way it was committed, the
extent of the defendant's involvement, and the consequences of his acts. Id. When assessing
proportionality, courts consider whether or not the offense was violent in nature. Id. Courts also
5
consider whether the offense was passive or regulatory in nature. Carmony, 127 Cal. App. 4th at
1078. For example, recidivism statutes triggered by a regulatory violation are deemed to be
examples of situations where the punishment is vastly out of proportion to the crime. See id.
Furthermore, courts consider the maturity of the defendant. Dillon, 35 Cal. 3d at 486. In
assessing the age of defendant, however, as long as the defendant is over 18 years of age and has
thus reached majority, he should be treated like an adult. People v. Abundio, 221 Cal. App. 4th
1211, 1219 (2013). Also relevant is a consideration of the penological purposes of the prescribed
punishment. In re Foss, 10 Cal. 3d 910, 920 (1974). The gravity of the offense is still an
important consideration, and "[a] prior clean record and age", however, "are far from
determinative" when "seriousness of the crime and the circumstances surrounding its
commission substantially outweigh these factors." People v. Szadziewicz, 161 Cal. App. 4th 823,
845 (2008).
For example, the court in Torres determined the defendant's sentence of 80 years for
committing sodomy with a child 10 years of age or younger in violation of Penal Code §
288.7(a) was not cruel and unusual. Torres, 2014 WL 2428606 at 2. The court reasoned that
despite the fact that defendant was in his thirties at the time of the offense, had a low Static 99
rating, and a limited conviction record, the severity of his offenses and the circumstances
surrounding its commission suggested the 80 years-to-life sentence was proportionate to the
crime. Id.
In contrast, the court in Dillon determined the 17-year-old defendant's felony murder
conviction was cruel and unusual and reduced his sentence to second degree murder. Dillon, 34
Ca1.3d at 489. The court considered the defendant's lack of majority status, immaturity, and lack
of a prior criminal history. Id. at 488. The court took sympathy with the circumstances
6
1
surrounding his firing nine bullets at the approaching victim, who was armed with a shotgun, and
2
attributed this to defendant's panic and immaturity. Id. Also important was the defendant's harsh
3
sentence relative to his co-conspirators—none was sentenced to state prison for any crime. Id.
4
5
(a) Nature of the Offense
6
Defendant was 19 years old when he committed the crime of sodomizing his 3-year-old
7
8
half-sister in the garage of the home they shared. First, Pen. Code § 288.7(a), indicates that "any
person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is
9
10
10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the
11
state prison for a term of 25-years-to-life." The law enacting Pen. Code § 288.7(a), S.B. 1128,
12
was written with the purpose of providing "a comprehensive, proactive approach to preventing
13
the victimization of Californians by sex offenders. . . .[B]y taking this comprehensive approach,
14
this bill will make all of California's communities safer from all sexual predators, not just some."
15
16
The bill was introduced as Proposition 83 in 2006 and was enacted by 70.5% of California's
17
voters. Jessica's Law, California Propsition 83 (2006)
18
ballotpedia.org/Jessica's_Law,_California_Proposition_83J2006).
19
20
Looking at the nature of the offense, Defendant committed sexual abuse of a 3-year-old
21
child who was also a family member. The age of Jane Doe and circumstances of the encounter
22
suggest this was a forcible sexual encounter and by no means a consensual interaction. During
23
the assault, Defendant pulled down Jane Doe's underwear to her knees and covered her mouth
24
25
while her mother called out to her. Subsequent medical examinations of Jane Doe indicated a
26
tear above the anus in the perianal area consistent with trauma that would have likely been very
27
painful to Jane Doe. She also complained of pain to her mother immediately following the
28
attack. As a 3-year-old female, Jane Doe would be in no capacity to physically resist an attack,
7
nor would she be able to understand what Defendant was attempting to do, nor would consent be
legally possible.
Like the Defendant in Torres, Defendant occupied a position of trust and familiarity with
Jane Doe. The circumstances surrounding the sodomy are necessarily nonconsensual, being that
Jane Doe was 3 years old at the time of the attack, the sodomy was achieved by force, and the
attack caused an anal tear. Removing her underwear and covering her mouth also suggest the
forcible nature of the attack and highlight the emotional trauma Jane Doe must have felt.
Considering the violation of trust of his 3-year-old half-sister, along with the gravity of
forcibly sodomizing a 3-year-old, indicates the heinous nature of the offense and deplorable
conduct by Defendant. This is reflected in the California Legislature's condemnation of the
offense per Pen. Code § 288.7(a). The gravity of the offense weighs against finding this
punishment cruel and unusual.
(a) Nature of Offender
Defendant is a 19 year-old, single male with a date of birth of March 20, 1995. Before the
time of arrest he was employed on a full-time basis as a bagger at a market with aspirations to
join the military. His family life as a youth appeared to be tumultuous. He indicated some
instances of physical abuse by his father and poor performance in school causing him to move
back to California with his mother. While he indicated some school discipline, there is no record
of prior convictions or deviant sexual behavior. Defendant would play video games often and did
not appear to abuse drugs or alcohol as a teenager. He would watch pornography (apparently not
involving children) on a regular basis and did not appear to have a particular proclivity to young
children. He had age-appropriate girlfriends in the past, but had never engaged in sexual
8
intercourse with an age-appropriate partner. Risk assessment data by a clinical psychologist
suggests he has a low rate of recidivism. All things considered, Defendant appeared to be a
relatively normal 19-year-old, aside from the crime of which he is convicted.
Under the Dillon approach, courts must view the nature of the offender "in the concrete
rather than the abstract." Dillon, 34 Cal. 3d 441 at 479. This branch focuses on the particular
person before the court and asks whether the punishment is grossly disproportionate to the
defendant's individual culpability as shown by such factors as his age, prior criminality, personal
characteristics, and state of mind.
Like the defendant in Dillon, Defendant is relatively immature and seemed to not
understand the gravity of his actions. Defendant is older (albeit 2 years older) than the defendant
in Dillon, has reached majority, but similarly has no prior criminal record. When looking at the
circumstances of the offense, however, the differences arise. Whereas the defendant in Dillon
was undertaking an ill-advised and poorly planned armed-robbery of a marijuana farm,
Defendant forcibly sodomized his 3-year-old half-sister. The former is reserved for the
misguided and immature, the latter is reserved for the pedophilic or predatory. In addition, the
defendant in Dillon was acting as part of a group and reacted out of fear and panic. His illusions
of grandeur were supported by peer pressure and his immaturity. Here, Defendant was the sole
actor whose apparent motivations were impulsive sexual gratification. The act of sodomizing a
3-year-old necessarily indicates the pedophilic and predatory characteristics of Defendant and
sheds light on Defendant's true nature.
Defendant indicated he "started having sexual thoughts" before sodomizing his 3-yearold half-sister and has said he was "stupid" and an "idiot" for having done what he did. As a 19-
year-old, Defendant appears to be mentally immature and sexually inexperienced. It is difficult
to explain away Defendant's actions, however, as sexual frustration. A normal 19-year-old under
similar circumstances would not forcibly sodomize his 3-year-old half-sister on the basis of
sexual frustrations. This suggests that if given the opportunity, there would be a risk of
recidivism. Furthermore, Defendant's young age is a factor increasing the risk of recidivism.
Adult males with pedophilic tendencies are still a risk to society long past sexual incompetency
and old age. As such, Defendant poses a great danger to society and probably will for the
majority of his life.
Therefore, the 25-year-to-life term is commensurate with Defendant's crimes. Looking at
the circumstances of the sodomy, the anal tear in Jane Doe and use of force in the attack, and the
impact this event will have on the Jane Doe's life lends credence to the gravity of this offense
and its commensurate condemnation by the California Legislature. Looking at the nature of
Defendant and his propensity to pedophilic behavior influences the notion that Defendant is a
risk to society and will pose a risk to society for quite some time. Therefore, the 25-year-to-life
sentence is not cruel and unusual punishment.
(2) HOW THE PUNISHMENT COMPARES WITH OTHER SERIOUS CRIMES IN
THE JURISDICTION
A court will likely determine a comparison of Pen. Code § 288.7(a) to other serious
crimes indicates that this provision is not unusual in its severity when compared with
punishments imposed in California upon perpetrators of more serious crimes. The second
technique set forth in Lynch involves a comparison of the questioned punishment with
punishments imposed within the same jurisdiction for offenses which may be deemed more
serious than that for which the questioned punishment is imposed. Foss, 10 Cal. 3d 910 at 920.
The underlying assumption behind this test "appears to be that although isolated excessive
penalties may occasionally be enacted, e.g., through 'honest zeal' generated in response to
transitory public emotion, the Legislature may be depended upon to act with due and deliberate
regard for constitutional restraints in prescribing the vast majority of punishments set forth in our
statutes." Id.; Weems v. United States, 217 U.S. 349, 373 (1910). The latter may therefore be
deemed illustrative of constitutional degrees of severity, and if among them are found more
serious crimes punished less severely than the offense in question, the challenged penalty is to
that extent suspect. Lynch, 8 Cal. 3d at 426.
California notoriously allows capital punishment for its most serious offenses, but last
executed a prisoner on death row in 2006. Under Pen. Code § 190, every person guilty of murder
in the first degree shall be punished by death, imprisonment in the state prison for life without
the possibility of parole, or imprisonment in the state prison for a term of 25-years-to-life. Under
Pen. Code §§ 189-190, every person guilty of murder in the second degree shall be punished in
the state prison for a term of 15 years to life. Looking at other sex crimes, rape (§ 261) is
punishable by imprisonment in the state prison for 3, 6, or 8 years, while rape upon a child who
is under 14 years of age (§ 269) shall be punished by imprisonment in the state prison for life.
Looking at more violent crimes, the crime of voluntary manslaughter (§ 193) has a sentence of
up to 15 years, kidnapping with the intent to commit a sex offense (§ 209) has a sentence of life
and assault with intent to commit a sex offense during a residential burglary (§220(b)) has a
sentence of life.
While these are all grave offenses, "[G]reat deference is ordinarily paid to legislation
designed to protect children, who all too frequently are helpless victims of sexual offenses."
Wells, 46 Cal. App. 3d. at 599. Children and offenses against children are held in special regard
11
with the legislature, and while one may think that some type of aggravated assault with the intent
to commit murder is a much more heinous offense than sodomy of a child, statutes that protect
children and that impose harsh sentences for sexual abuse of children are strongly favored in the
legislature. Considering the fact that sexual assault of a young child robs the child of her
childhood supports the harsh punishments for this offense.
A developing child has infinite potential. These acts of sexual assault by Defendant will
stay with 3-year-old Jane Doe throughout her entire life, and will likely cause severe
psychological difficulties later in life. The fact that the victim will carry this burden with her the
rest of her life is sufficient evidence of the gravity of the offense and commensurate treatment by
the California Legislature.
(3) HOW THE PUNISHMENT COMPARES WITH THE SAME OFFENSE IN OTHE
JURISDICTIONS
A court will likely determine a comparison of Pen. Code § 288.7(a) to the same offense
in other jurisdictions weighs against finding the sentence cruel and unusual punishment. The
third measure of disproportionality described in Lynch involves a comparison of the challenged
penalty with punishments prescribed in other jurisdictions for the same offense. Here, the
assumption is that the vast majority of those jurisdictions will have prescribed punishments for
this offense that are within the constitutional limit of severity; if the challenged penalty is found
to exceed the punishments decreed for the offense in a significant number of those jurisdictions,
the disparity is a further measure of its excessiveness. Lynch, 8 Cal. 3d at 427.
Most jurisdictions appear to classify the act that occurred here: forcible sodomy of a child
under 10 years of age as some kind of felony rape or aggravated sexual assault. The jurisdictions
12
differ upon the definitions and sometimes have a charge for rape that encompasses anal contact
and another for sodomy. Generally, the sentencing is the same in that this crime is considered a
serious felony with maximum sentences of life in prison and death. In Kennedy v. Louisiana, 554
U.S. 407, 408 (2008), however, the Supreme Court held the Eighth Amendment prohibits the
death penalty for the rape of a child where the crime did not result, and was not intended to
result, in death of the victim. At the time of the Kennedy decision, 6 states authorized the death
penalty for child rape, while 45 jurisdictions did not. Id. at 408.
Many jurisdictions do not differentiate between vaginal or anal penetration and simply
use the term "sexual penetration". In these jurisdictions, the offense of rape is often aggravated
because of the age of the victim. This typically involves a lengthy sentence as the felony offense
of rape already carries a significant punishment. Of the 50 states, 18 states: Arkansas, California,
Delaware, Florida, Georgia, Kentucky, Louisiana, Massachusetts, Michigan, Missouri, Nevada,
North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, Virginia, and Washington all
have some type of life component similar to California's § 288.7(a). Of the jurisdictions without
a life component, jurisdictions impose a minimum of 10 years with a maximum of up to 99
years. Colorado seems to be the one outlier, with Sexual Assault on a Child being punishable
only by 4 — 8 years' imprisonment. Below is an alphabetical sampling of how this offense would
be classified in the 50 states, with the commensurate punishment:
• Alabama
o Ala. Code § 13A-6-63. Sodomy in the First Degree. The actor engages in deviate
sexual intercourse if: (1) the actor uses forcible compulsion; (2) the other person
is incapable of consent by reason or being physically helpless or mentally
13
incapacitated; or (3) he is 16 years or older and the person is less than 12 years
old.
o Punishments: Class A felony and is punishable by imprisonment of not more than
99 years and not less than 10 years as well as a fine not exceeding $60,000.
•
Alaska
o AS § 11.41.410. Sexual Assault in the First Degree. A person can commit 1st
degree sexual assault in 4 ways: (1) the offender engages in sexual penetration
with another person without consent; (2) the offender attempts to engage in sexual
penetration with another person without consent and causes serious physical
injury to that person; (3) the offender engages in sexual penetration with another
person (a) the offender knows the person is mentally incapable and (b) and the
person is in the offender's care by authority of law or in a facility or program that
is required to be licensed by the state; or (4) the offender engages in sexual
penetration with a person who the offender knows is unaware that a sexual act is
being committed.
o Punishments: Sexual assault in the first degree is an unclassified felony and is
punishable by 20 to 30 years imprisonment for a first offense. If the victim is less
than 13 years of age: 25 to 35 years.
o Also may be defined as Statutory Rape § 12.55.125 where: sexual abuse of a
minor in the first degree is an unclassified felony. Prison sentences vary from 20
years to 99 years depending on the victim's age, the offender's conviction history,
and whether a weapon was used.
14
1
• Arizona
o § 13-702 Sexual assault: a person commits sexual assault by intentionally or
2
3
knowingly engaging in sexual intercourse or oral sexual contact with any person
4
without consent of such person.
5
6
o Punishments: The range of incarceration permissible ranges from 5.25 years as a
7
minimum for general first offenders, to life imprisonment for dangerous crimes
8
against children under 12 years old.
9
10
• Arkansas
o § 5-14-103 Rape. A person commits rape if he or she engages in sexual
11
12
intercourse or deviate sexual activity with another person: (1) By forcible
13
compulsion; (2) The person (victim) is incapable of consent because he or she is:
14
(A) Physically helpless; (B) Mentally defective; or (C) Mentally incapacitated; (3)
15
16
The person (victim) is less than 14 years of age and the offender was at least three
17
years of age older. Consent is not a defense in this instance.
18
o Punishments: Rape is a class Y felony and carries a sentence of between 10 and
19
40 years, or life incarceration. If the victim is less than 14 years of age the
20
offender is sanctioned to a minimum of 25 years' incarceration. (§ 5-4-401)
21
22
23
24
•
California
o § 288.7(a) Sexual intercourse or sodomy with child 10 years of age or younger.
o Punishment: any person 18 years of age or older who engages in sexual
25
intercourse or sodomy with a child who is 10 years of age or younger is guilty of
26
27
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a felony and shall be punished by imprisonment in the state prison for a term of
25 years to life.
15
•
Colorado
o Colo. Rev. Stat. Ann. § 18-3-405. Sexual Assault on a Child. An actor who
knowingly subjects a person who is not the offender's spouse to sexual contact
commits sexual assault on a child if the victim is less than fifteen (15) years of
age and the actor is at least four (4) years older than the victim
o Punishment: Sexual assault on a child is a class 4 felony, punishable by 2-4 years'
incarceration and 1 year parole, and up to $500,000 fine. Sexual assault on a child
becomes a class 3 felony punishable by 4-8 years' incarceration and 1 year parole
and up to $750,000 fine if: the actor applies force against the victim in order to
accomplish or facilitate sexual contact.
•
Connecticut
o Conn. Gen. Stat. Ann. § 53a-70. Sexual Assault in the First Degree. A person
commits sexual assault in the first degree when such person: engages in sexual
intercourse with another person and such other person is under thirteen years of
age and the actor is more than two years older than such person (class A felony
subject to a sentencing enhancement).
o Punishment: Sexual assault in the first degree is a class B felony punishable by 120 years' imprisonment. If the victim of the offense is under ten years of age, ten
years of the sentence imposed may not be suspended or reduced by the court.
•
Delaware
16
o Del. Code Ann. tit. § 773. Rape in the First Degree. Intentionally engaging in
1
2
sexual intercourse with another person and: the victim is not yet 12 years of age,
3
and defendant is at least 18 years of age.
4
o Punishment: Defendant may be charged with, convicted of, and sentenced for any
5
separate crime in the Delaware Code in addition to this crime. Rape (1st degree)
6
7
is a Class A felony. A person convicted of a class A felony may be sentenced to
8
life imprisonment. Defendant is sentenced to life imprisonment without benefit of
9
probation, parole, or any other reduction if: the victim is less than 16 years of age
10
at the time of the offense and the defendant inflicts serious physical injury to the
11
victim.
12
13
•
14
Florida
o Fla. Stat. § 794.011. Sexual Battery. (A) if defendant is 18 years of age or older
15
and commits sexual battery upon, or during an attempt to commit sexual battery
16
injures the sexual organs of, a person less than 12 years of age.
17
o Punishment: a defendant convicted of (A) commits a capital felony, which is
18
19
punishable by death or life imprisonment, with no possibility of parole. (§
20
775.082 and § 921.141).
21
•
Georgia
22
23
24
o Ga. Code Ann. § 16-6-2. Aggravated Sodomy. Committing sodomy with force
and against the will of the other person or the person is less than 10 years of age.
25
o Punishment: Defendant will be punished by imprisonment for life or by a split
26
sentence that is a term of imprisonment for not less than 25 years and not
27
exceeding life imprisonment, followed by probation for life.
28
17
1
• Hawaii
2
o Haw. Rev. Stat. § 707-730. Sexual assault, first degree. This crime is a class A
3
felony. A person commits the offense of sexual assault in the first degree if: (a)
4
the person knowingly subjects another person to an act of sexual penetration by
5
strong compulsion; (b) the person knowingly engages in sexual penetration with
6
another person who is less than fourteen years old.
7
8
o Punishment: A class A felony is punishable by up to 20 years' imprisonment and
9
10
a fine of up to $50,000.
•
Idaho
11
o Idaho Code Ann. § 18-6101. Rape. The penetration, however slight, of the oral,
12
13
anal or vaginal opening with the perpetrator's penis accomplished with a female
14
under any of the following circumstances: where the female is under the age of 16
15
years and the perpetrator is 18 years of age or older.
16
o Punishment: Rape is punishable by imprisonment in the state prison for a term not
17
18
less than one year. The District Judge, at her discretion, may extend the
19
imprisonment to life.
20
21
•
Illinois
o Ch. 720 Ill. Comp. Stat. 5/11-1.40. Predatory Criminal Sexual Assault of a Child.
22
23
24
25
26
Committing an act of sexual penetration when defendant is 17 years of age or
older, and: the victim is under 13 years of age.
o Punishment: A defendant convicted under (1) commits a Class X felony, for
which defendant shall be sentenced to a term of imprisonment of not less than 6
27
years and not more than 60 years.
28
18
•
Indiana
•
Ind. Code § 35-42-4-1. Rape. Knowingly or intentionally having sexual intercourse with
another person or knowingly or intentionally causing another person to perform or submit
to other sexual conduct when: the other person is compelled by force or imminent threat
of force; the other person is unaware that the sexual intercourse is occurring; or the other
person is so mentally disabled or deficient that consent to sexual intercourse cannot be
given. (this is dependent upon the 3 year old being deemed mentally deficient to consent,
which is likely)
o Punishment: Rape is a level 3 felony between 3 and 20 years in prison and a fine
of up to $10,000.
•
Iowa
o Iowa Code § 709.3, Sexual Abuse in the Second Degree. Committing sexual
abuse under any of the following circumstances: The person is under the age of
12.
o Punishments: Sexual Abuse 2d degree is a Class B felony. A class B felony is
punishable by up to 25 years in prison. (Depending on whether the victim was
considered to have suffered a 'serious injury' under the statute, this could be
considered a class A felony, with penalties of life imprisonment).
•
Kansas
o Kan. Stat. Ann. § 21-5503. Rape. Engaging in sexual intercourse with a child
under 14 years of age.
o Punishment: Sexual intercourse with a child under 14 is a severity level 1, person
felony. Kanas utilizes a grid approach, but 25 years to life.
19
• Kentucky
o Ky. Rev. Stat. Ann. § 510.070. Sodomy in the First Degree. Deviate sexual
intercourse with another person who cannot consent because: the victim is under
12 years old.
o Punishment: Sodomy in the 1st Degree is a Class B felony. It becomes a Class A
felony if: the victim is younger than 12. A Class A felony is punishable by 20 to
50 years in prison, or life imprisonment.
•
Louisiana
o La. Rev. Stat. Ann. § 14:42. Aggravated Rape. Aggravated rape is a rape
committed upon a person 65 or older or where the anal, oral, or vaginal sexual
intercourse is deemed to be without lawful consent of the victim because it is
committed under any one or more of the following circumstances: When the
victim is under 13. Lack of knowledge of the victim's age shall not be a defense.
o Punishments: Life imprisonment at hard labor without benefit of parole,
probation, or suspension of sentence. If victim was under 13, and if the district
attorney seeks a capital verdict, the offender shall be punished by death or life
imprisonment at hard labor without benefit of parole, probation, or suspension of
sentence, in accordance with the determination of the jury; or life imprisonment.
20
. **This was preempted by Kennedy v. Louisiana, 554 U.S. 407 (2008),
holding that the Eighth Amendment prohibits death penalty for the rape of
a child where the crime did not result, and was not intended to result, in
death of the victim. The statute still appears to be current, although section
(D)(2) is unconstitutional.**
• Maine
o Me. Rev. Stat. tit. 17A, § 253. Gross Sexual Act. Sexual act with another person
and: the other person, not the actor's spouse, is under 12.
o Punishment: A sexual act with someone under 12 is a class A crime. Class A
crimes are punishable by up to 30 years in prison and a fine of up to $50,000.
• Maryland
o Md. Code Ann., Criminal Law § 3-306 (West 2013). Sexual Offense in the
Second Degree. Engaging in a sexual act with another: if the victim is under the
age of 14 years, and the defendant is at least 4 years older than the victim.
o Punishment: If the defendant is 18 years of age or older and the victim is under
the age of 13 years, defendant is subject to imprisonment for not less than 15
years and not exceeding life. A court may not suspend any part of the mandatory
minimum of 15 years; defendant is not eligible for parole during the mandatory
minimum sentence.
•
Massachusetts
o Mass. Gen. Laws. Ann. ch. 265, § 23A. Aggravated Statutory Rape of a Child.
Sexual intercourse or unnatural sexual intercourse with a child under 16 and: (1)
21
there exists more than a 5 year age difference between the defendant and victim
1
and the victim is under 12.
2
3
o Punishment: Imprisonment in the state prison for life or any term of years but not
4
less than 10 years.
5
6
7
8
• Michigan
9
o Mich. Comp. Laws An. § 750.520b. Criminal Sexual Conduct in the First Degree.
10
Sexual penetration with another person and if any of the following circumstances
11
exists: That person is under 13 years of age.
12
o Punishment: For a violation that is committed by an individual 17 years of age or
13
14
older against an individual less than 13 years of age by imprisonment for life or
15
any term of years, but not less than 25 years.
16
17
•
Minnesota
o Minn. Stat. § 609.342. Criminal Sexual Conduct in the First Degree. Sexual
18
19
penetration or sexual contact with a person under 13, and complainant is under 13
20
years of age, and actor is more than 36 months older than the complainant.
21
o Punishments: Imprisonment for not more than 30 years, or payment of a fine of
22
not more than $40,000, or both.
23
24
25
•
Mississippi
26
27
28
22
o Miss. Code Ann. § 97-3-95. Sexual Battery. A person is guilty of sexual battery if
he or she engages in sexual penetration with: a child under 14 years of age, if the
person is 24 or more months older than the child.
o Punishment: First offense — imprisonment for not more than 30 years. Penalties
may be harsher under Statutory Rape: life sentence.
• Missouri
o Mo. Rev. Stat. § 566.061. Sodomy in the First Degree. Such person has deviate
sexual intercourse with another person who is incapacitated, incapable of consent
or lacks the capability to consent, or by the use of forcible compulsion.
o Punishment: Sodomy in the first degree is a felony for which the authorized term
of imprisonment is life imprisonment or a term of years not less than 5 unless: the
victim is a child less than twelve years of age, in which case the required term of
imprisonment is life imprisonment without eligibility for probation or parole until
the defendant has served 30 years of such sentence, or unless the defendant has
reached the age of 75 and has served at least 15 years.
• Montana
o Mont. Code Anno. § 45-5-503. Statutory Rape. "Statutory rape" is commonly
used to refer to sexual penetration that is illegal because it involves a youth.
Montana has no specific statutory rape statute, but 'statutory rape' is captured
under the above section. If the victim was 12 years of age or younger and the
offender was 18 years of age or older at the time of the offense.
23
o Punishment: offender shall be punished by imprisonment for a term of 100 years.
The court shall not suspend execution or defer imposition of the first 25 years,
except as provided otherwise. During the first 25 years, the offender is not eligible
for parole.
• Nebraska
o R.R.S. Neb. § 28-319. Sexual Assault in the First Degree. Any person who
subjects another person to sexual penetration without the consent of the victim, or
who knew or should have known that the victim was mentally or physically
incapable of resisting or appraising the nature of his conduct.
o Punishment: Sexual assault in the first degree is a Class II felony. The sentencing
judge shall consider whether the actor caused serious personal injury to the victim
in reaching the decision on the sentence. A class II felony carries punishment of
between 1 to 50 years in prison.
• Nevada
o Nev. Rev. Stat. Ann. § 200.366. Sexual Assault. A person is guilty of sexual
assault if the person subjects another person to sexual penetration.
o Punishments: Category A felony and shall be punished if substantial bodily harm
to the victim results from the actions of the defendant committed in connections
with or as a part of the sexual assault, by imprisonment in the state prison for life
without the possibility of parole; or for life with the possibility of parole after a
minimum of 15 years has been served. If no substantial bodily harm to the victim
results, by imprisonment for life with the possibility of parole after a minimum of
10 years has been served.
24
1
• New Hampshire
2
o RSA 632-A:2. Aggravated Felonious Sexual Assault. A person is guilty of the
3
felony of aggravated felonious sexual assault if such person engages in sexual
4
penetration when: the victim is less than 13 years of age.
5
o Punishments: In general, those found guilty of aggravated felonious sexual assault
6
7
may be imprisoned for 10 to 20 years with the possibility of longer sentences and
8
lifetime supervision if they have been previously convicted under these statutes.
9
10
11
• New Jersey
12
o N.J.S.A. 2C:14-2(a). Aggravated Sexual Assault in the First Degree. Committing
13
14
an act of sexual penetration with another person under any one of the following
15
circumstances: the victim is less than 13 years old.
16
17
o Punishments: 10 to 20 years in prison.
• New Mexico
18
o N.M. Stat. Ann. § 30-9-11(D). Criminal Sexual Penetration in the First Degree.
19
All criminal sexual penetration perpetrated: on a child under thirteen years of age.
20
21
o Punishments: If the felony does not result in a death, the penalty is 15 years in
22
prison and a possible fine up to $15,000.
23
24
25
•
New York
o N.Y. Penal Law § 130.96. Predatory Sexual Assault Against a Child. Committing
26
the crime of rape in the first degree, criminal sexual act in the first degree,
27
aggravated sexual abuse in the first degree, or course of sexual conduct against a
28
25
child in the first degree, as defined in this article, and the victim is less than 13
years old, when the person is eighteen years old or more.
o Punishment: 10 to 25 years in prison (indeterminate sentence).
•
North Carolina
o N.C. Gen. Stat. Ann. § 14-27.4. Sexual Offense in the First Degree. Engaging in a
sexual act: with a victim who is a child under the age of 13 years and the
defendant is at least 12 years old and is at least 4 years older than the victim.
o Punishment: The length of sentence in N.C. is based on prior criminal history.
The penalty for this crime ranges from 144 months (12 years) to life without
parole.
•
North Dakota
o N.D. Cent. Code Ann. § 12.1-20-03. Gross Sexual Imposition. Engaging in a
sexual act with another, or causing another to engage in a sexual act, if: the victim
is less than fifteen years old.
o Punishment: the maximum sentence is 20 years in prison, a fine of $20,000, or
both. The court may deviate from the mandatory sentence if the court finds that
the sentence would impose a manifest injustice and the defendant has accepted
responsibility for the crime or cooperated with law enforcement. However, a
defendant convicted under this section may not be sentenced to serve less than
five years of incarceration.
•
Ohio
o Ohio Rev. Code Ann. § 2907.02. Rape in the First Degree. Engaging in sexual
conduct with another who is not the spouse of the offender or who is the spouse o
26
the offender but is living separate and apart from the offender, when any of the
1
2
following applies: (b) the other person is less than thirteen years of age, whether
3
or not the offender knows the age of the person.
4
o Punishment: If the offender violates (1)(b) above, the penalty is life in prison. If
5
the offender (who has been who has been convicted or pled guilty to violating
6
7
(1)(b) above) was less than 16 at the time of the violation, did not cause serious
8
physical harm to the victim, the victim was at least 10 years old, and the offender
9
has not previously been convicted or pled guilty to a violation of this section or
10
similar state or federal law, he will be sentenced to a minimum of 25 years (if
11
rape occurred after 1/2/07) or 20 years (if rape occurred before 1/2/07), but will
12
not receive life in prison.
13
14
•
15
Oklahoma
o Okla. Stat. Ann. tit. 21, § 1114. Rape in the First Degree. Rape in the first degree
16
shall include: (1) rape committed by a person over eighteen (18) years of age
17
upon a person under fourteen (14) years of age.
18
o Punishment: 5 years to life in prison without parole, or death.
19
20
21
•
Oregon
22
23
o Or. Rev. Stat. § 163.405. Sodomy in the First Degree. Engaging in deviate sexual
24
intercourse with another person or causing another to engage in deviate sexual
25
intercourse if: the victim is under 12 years of age.
26
27
o Punishment: Class A felony, maximum 20 years imprisonment and maximum
$375,000 fine.
28
27
1
2
•
3
Pennsylvania
o 18 Pa. Cons. Stat. § 3121. Rape. Sexual intercourse: with a person who is less
4
than 13 years of age.
5
o Punishment: First degree felony, maximum 20 years' imprisonment. For a rape of
6
7
a child less than 13 years of age, maximum 40 years' imprisonment. For rape of a
8
child with serious bodily injury, the maximum sentence is life imprisonment.
9
10
11
12
13
•
14
Rhode Island
o R.I. Gen. Laws §§ 11-37-6, 11-37-8.1. Child molestation sexual assault in the first
15
degree: sexual penetration with a person under 14 years old.
16
o Punishment: Child molestation sexual assault in the first degree: 25 years to life
17
imprisonment (plus GPS monitoring).
18
19
•
20
South Carolina
o S.C. Code Ann. § 16-3-655. Statutory Rape. Criminal sexual conduct with a
21
minor in the first degree: Sexual battery when the victim is less than 11 years old.
22
o Punishment: If victim is under lithe minimum sentence is 25 years
23
24
imprisonment and the maximum sentence is life. **the statute provides for a
25
possible penalty of death, but the Supreme Court has held that the death penalty
26
as punishment for rape is unconstitutional**
27
28
•
South Dakota
o S.D. Codified Laws § 22-22-1(1). Rape in the First Degree. An act of sexual
penetration if the victim is under 13 years old.
o Punishments: Class C Felony. Minimum penalty of fifteen years imprisonment
for the first offense. Maximum penalty of life imprisonment and $50,000 fine.
The court, in the event the victim is a child, may as part of the sentence, order that
the defendant not reside within 1 mile of the victim's residence, knowingly or
willfully come within 1,000ft of the victim, attend the same school as the victim,
or have any contact with the victim, whether direct or indirect or through a third
party. Conditions will no longer apply once the victim reaches the age of
majority. Violation of such a condition is a Class 6 felony: maximum penalty of 2
years imprisonment and $4,000 fine. S.D. Codified Laws § 22-22-7.5.
•
Tennessee
o Tenn. Code Ann. § 39-13-522. Rape of a child. Rape of a child is the unlawful
sexual penetration of a victim by the defendant or the defendant by a victim, if the
victim is more than three years of age but less than thirteen years of age.
o Punishment: Rape of a child is a Class A Felony. A person convicted of a
violation of this section shall be punished as a Range II offender. May be required
to wear GPS tracker. Class A felonies are punishable by 15 to 60 years in prison
and a fine up to $50,000.
•
Texas
o Tex. Penal Code Ann. § 22.021. Intentionally or knowingly causing any one of
the following or acts in concert with one who intentionally or knowingly causes:
29
penetration of the anus or sexual organ of another by any means without that
person's consent and the victim is under 14 years of age.
o Punishment: First degree felony: 5-99 years' imprisonment; maximum fine of
$10,000. Minimum sentence increased to 25 years imprisonment if: the victim is
under 6 years old.
•
Utah
o Utah Code Ann. § 76-5-402.1 Rape of a child. A person commits rape of a child
when the person has sexual intercourse with a child who is under the age of 14.
o Punishment: First degree felony. Imprisonment not less than 5 years, may be for
life.
• Vermont
o 13 V.S.A. §§ 3252 & 3254. Sexual Assault. No person shall engage in a sexual
act with a child under the age of 16 if: the actor is at least 18 years of age, resides
in the victim's household.
o Punishment: Imprisonment not less than 3 years; maximum imprisonment for life.
• Virginia
o Va. Code Ann. § 18.2-67.1. Forcible Sodomy. Engaging in cunnilngus, fellatio,
anilingus, or anal intercourse with a victim, whether or not his/her spouse, or
causing a victim, whether or not his/her spouse, to engage in such acts with any
other person, and: the complaining witness is less than 13 years of age.
o Punishment: Felony punishable by imprisonment for life or for any term not less
than 5 years; and if the victim is under the age of 13 years and defendant was 18
30
years of age or older at the time of the offense, the punishment must include a
mandatory minimum term of life imprisonment.
•
Washington
o Wash. Rev. Code. § 9A.44.073. Engaging in sexual intercourse with another who
is less than 12 years old, not married to the defendant, and the defendant is at least
24 months older than the victim.
o Punishment: Rape of a Child is a Class A felony. Punishable by up to life in
prison, a fine of up to $50,000, or both a fine and imprisonment.
•
West Virginia
o W. Va. Code § 61-8B-3. A person is guilty of sexual assault in the first degree
when: The person, being 14 years old or more, engages in sexual intercourse or
sexual intrusion with another person who is younger than 12 years old and is not
married to that person.
o Punishment: Imprisonment of not less than 15 years. Maximum imprisonment not
more than 35 years.
•
Wisconsin
o Wis. Stat. § 948.02. Sexual Assault of a Child. First Degree. Whoever has sexual
intercourse with a person who has not attained the age of 12 years is guilty of a
Class B felony.
o Punishment: Class B felony: imprisonment not to exceed 60 years.
•
Wyoming
31
1
o Wyo. Stat. Ann. §§ 6-2-314, 6-2-315, 6-2-316, 6-12-317. Sexual abuse of a minor
2
in the first degree. Sexual intrusion when the actor is 16 or older and the victim is
3
under 13 years old.
4
o Punishment: Maximum sentence of 50 years imprisonment. Minimum sentence o
5
6
7
8
25 years if the actor is over 21 and the victim is under 13.
The sampling of the 50 states shows that California is not alone in condemning the
forcible sexual assault of a young child. California and Georgia actually have the youngest age
9
10
qualifier for victims (10 years old), with the victim typically having to be 12 — 14 years old or
11
less at the time of the assault in other jurisdictions. Some jurisdictions impose a statutory rape
12
component, with the actor having to be 3 or 4 years older than the victim. This is in contrast to
13
California, where the actor must be over 18 years old. In addition, other jurisdictions do not
14
require a force component to the sexual abuse, and typically just require sexual penetration and a
15
16
17
specific age requirement.
Looking at Pen. Code § 288.7(a), it does not appear that this statute is a particular
18
19
injustice when compared to similar offenses and their respective sentences in other jurisdictions.
20
California has the lowest age requirement of 10 years of age or younger to trigger Pen. Code §
21
288.7(a). The age gap is also a significant 8 years. This distinguishes between statutory rape
22
scenarios where there may be a consensual, sexual relationship between a 17-year-old male an
23
13-year-old female. This would be a crime in Arkansas, Colorado, Kansas, Maryland,
24
25
26
Mississippi, North Dakota, Rhode Island, and Utah.
Here, the victim was 3 years old and Defendant was 19 years old at the time of the
27
assault. This is a 16 year gap. In addition, the victim and Defendant are far removed from the 10
28
32
years old minimum age and 18 year old minimum age required by Pen. Code § 288.7(a).
Considering the fact that this statute primarily captures pedophilic conduct in nature, and not
statutory rape scenarios, the statute appears to be fair at its face. Looking at California's age
requirement of 10 years shows that Pen. Code § 288.7(a) is less inclusive than most comparable
offenses in the United States. In addition, considering the fact that 18 jurisdictions include some
type of life component similar to California's suggests that this punishment is not overly severe.
Some jurisdictions could even use the death penalty for this offense before the Kennedy decision
in 2008.
Some deviance from the norm, however, should not be penalized. "It is one of the happy
incidents of the federal system that a single courageous state may, if its citizens choose, serve as
a laboratory; and try novel social and economic experiments without risk to the rest of the
country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932). The California Legislature
has decided to codify harsh punishments for child molesters. The resulting punishments are not
unduly excessive or out of line with the other states, and should be considered reasonable under
this analysis. Therefore, a court would likely find this comparison weighs against finding the
sentence cruel and unusual punishment.
(4) OTHER OPTIONS
The legislature is thus accorded the broadest discretion possible in enacting penal statutes
and in specifying punishment for crime, but the final judgment as to whether the punishment it
decrees exceeds constitutional limits is a judicial function. People v. Anderson, 6 Cal. 3d 628,
640 (1972). However, "mere doubt does not afford sufficient reason for a judicial declaration of
invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and
unmistakably appears." In re Dennis M., 70 Cal. 2d 444, 453 (1969).
33
1
Trial judges, as well as appellate courts, are authorized and required to apply the Dillon
2
analysis. See People v. Leigh, 168 Cal. App. 3d 217, 223 (1985). The trial judge is uniquely
3
suited to do the kind of balancing factors enunciated in Dillon. Id. It is the trial judge who
4
observes the witnesses, determines their credibility, and weighs the evidence. Id. Thus, he has a
5
6
first-hand opportunity to analyze the panoply of factors that must be considered in determining
7
the offender's "state of mind," "personal characteristics," and the degree of danger the offender
8
poses to society. Id. Like other decisions under the cruel and unusual punishment provisions, the
9
determination is to be made by the court, not by a jury. See People v. Williams, 180 Cal. App. 3d
10
922, 926 (1986).
11
12
13
It is difficult to determine the options a trial judge may have if he were to determine the
imposition of Penal Code § 288.7(a) on Defendant was cruel and unusual punishment. In Dillon,
14
although the court held that the punishment of the defendant by a sentence of life imprisonment
15
16
as a first degree murderer violated article 1, section 17, of the Constitution, the defendant
17
nevertheless killed the victim without legally adequate provocation, and thus was sentenced as a
18
second degree murderer. Dillon, 34 Cal. 3d. at 489. In Foss, the Supreme Court of California
19
invalidated Health and Safety Code section 11501, precluding parole consideration for petitioner
20
21
for a minimum of ten years. Foss, 10 Cal. 3d 910 at 920. The Adult Authority was directed to
22
grant parole consideration to petitioner at such time that was appropriate under the laws of
23
California. Id.
24
25
26
CONCLUSION
27
28
34
I
It does not seem to be the case that this punishment is so disproportionate to the crime for
2
which it is inflicted that it shocks the conscience and offends fundamental notions of human
3
dignity. In re Lynch, 8 Cal. 3d 410, 424 (1972). Seeing as "[G]reat deference is ordinarily paid to
4
legislation designed to protect children, who all too frequently are helpless victims of sexual
5
6
offenses", a court should not interfere in the legislative condemnation of the punishment set forth
7
in Penal Code § 288.7(a). Wells, 46 Cal. App. 3d, at 599. The special treatment of sexual
8
offenses and the harsh penalties for violations are justified in protecting a class of Californians
9
that cannot protect itself. This statute both acts as a deterrent for sexual offenders and removes
10
at-risk offenders from the community. To hold any differently would be to allow Defendant the
11
12
opportunity to satiate his pedophilic appetite for the children of our community.
13
14
15
16
17
18
19
20
21
22
23
24
TONY RACKAUCKAS, DISTRICT ATTORNEY
COUNTY OF ORANGE, STATE OF ALIFORNIA
,
By:
/
WHO' EY BOKOSKDeputy District Attorney
25
26
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35