Teen Avoids Strike Under One Strike Law in Sex Crime
In the following case, however, the prosecutorial mistake was not excused. In fact, the twenty-six year to life portion of a fifty-two year to life sentence was vacated. This meant the sentence was still potentially twenty-six years to life, but for a sixteen year old defendant, this meant a great change in his date for possible release from prison.The Reader’s Digest Version: Twenty-six years to life portion of a fifty-two years to life sentence is vacated in a One Strike sex case because of how the conduct was alleged in the complaint, voiding application of the One Strike sentencing structure for a conviction on a certain charge.
When age sixteen, Eduardo Lalo Perez kidnapped Raquel Doe at knifepoint while she was walking home at night. The events happened in Los Angeles. He then digitally penetrated her, placed his penis against her mouth and attempted to rape her from behind. A jury found him guilty of six crimes arising from this and the judge sentenced him to 52 years to life.
Raquel immediately contacted the police after Perez left her. Forensic technicians collected DNA of Perez from Raquel’s body in several areas.
Approximately one year later, police collected Mr. Perez’s DNA and matched it to the samples collected from Raquel Doe. Perez was then arrested, taken into custody, tried and convicted.
The complaint against Perez was interesting insofar as it was undisputed that Perez personally used a dangerous or deadly weapon throughout the events. Yet the complaint only alleged this took places as to the counts related to the kidnapping and sexual penetration by a foreign object. The complaint did not allege this as to the forcible oral copulation count, however, the jury was instructed to consider this and found that he had.
The judge then imposed a base sentence of twenty-five years to life under the “One Strike Law” (Penal Code § 667.61) as to the sexual penetration by a foreign object count. However, the People never pled as to the forcible oral copulation count any circumstances triggering application of § 667.61 and never moved to amend the information (the complaint after the preliminary hearing) to allege any such circumstance.
As to the sexual penetration count, the trial court also imposed a one year weapon enhancement (the knife) under Penal Code § 12022(b)(1). The court then imposed a consecutive sentence of 25 years to life on the forcible oral copulation count under the One Strike Law, as well as a consecutive one-year sentence on the attempted forcible rape count.
The court then imposed a concurrent, three year sentence on the second degree robbery count (Raquel’s cell phone). It then stayed the sentences on the remaining two counts under Penal Code § 654. It also stayed the deadly weapon enhancement on all counts except the sexual penetration by a foreign object count.
Perez appealed the 25 year sentence component under the One Strike Law, which sets forth harsher sentences for specified sex crimes. Perez argued that, under People v. Mancebo (2002) 27 Cal. 4th 735, the information did not allow application of the One Strike Law because no qualifying circumstances were alleged to invoke such “One Strike” sentencing. Perez argued, as People v. Wutzke (2002) 28 Cal. 4th 923, 930 stated, that such an outcome was dictated by due process notice requirements.
The Second Appellate District agreed with Perez, noting that such pleading is essential for defendant to assess his sentencing “exposure” and is “necessary for the defendant to know what he must admit to if he elects to enter a plea.” Mancebo, pp. 746-747, 750, 752.
Accordingly, the sentence was modified by striking the twenty-five year consecutive term and striking the one year weapons enhancement on the sexual penetration by a foreign object.
For more information about sentencing in serious juvenile offenses, click on the following articles:
- Twenty Years of California Law Changed: Juveniles Who Commit Certain Serious Crimes Should Not Receive Presumptive Life Sentences.
- Life In Prison Without Possibility of Parole Is Unconstitutional For Juvenile Nonhomicide Offenders
- Sentence for Juvenile of 100 Years Is Cruel And Unusual Punishment For Aiding and Abetting Murder