THE PEOPLE OF THE STATE OF CALIFORNIA, ) Case No.: 14CF1874. ) AND UNUSUAL PUNISHMENT. ) Date: April 3, 2015 Time: 1:30 KEVIN NIETO-ROJANO

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1 TONY RACKAUCKAS, DISTRICT ATTORNEY COUNTY OF ORANGE, STATE OF CALIFORNIA BY: WHITNEY BOKOSKY Deputy District Attorney State Bar Number POST OFFICE BOX 808 SANTA ANA, CALIFORNIA TELEPHONE: (714) FILE SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICk CENTSR MAR 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

2 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.

3 % I People v. Dillon, 35 Cal. 3d 441 (1983), expanded the first prong of the Lynch analysis. The "nature of the offender" branch of the Lynch analysis examines the defendant "in the concrete rather than the abstract." Id. at 479. The inquiry "therefore 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." Id. In Dillon, the defendant was a 17-year-old high school student convicted of first-degree felony-murder and attempted robbery. Id. at 451. While robbing a marijuana farm with a group of friends the defendant panicked and shot a guard nine times. Id. The court held the circumstances of the case and the punishment of life imprisonment for a 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 overturn a sentence on the grounds that it inflicts cruel or unusual punishment: "A defendant has a considerable burden to overcome when he challenges a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California and the court should not lightly encroach on matters which are uniquely in the domain of the Legislature." People v. Bestelmeyer, 166 Cal. App. 3d 520, 529 (1985); People v. Weddle, 1 Cal. App. 4th 1190, 1196 (1991). While sexual assault crimes carry heavy sentences, "[G]reat deference is ordinarily paid to legislation designed to protect children, who all too frequently are helpless victims of sexual offenses." In re Wells, 46 Cal. App. 3d 592, 599 (1975). Indeed, "[S]exual abuse of a child is a most serious crime and an act repugnant to the moral instances of decent people." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002). 28

4 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 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 Although the violation was a felony, it was a "passive, nonviolent, regulatory offense that posed no direct or immediate danger to society." Id. at 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 (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.

5 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 The court found the punishment not to exceed the standards for cruel and unusual punishment. Abundio, 221 Cal. App. 4th at (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

6 consider whether the offense was passive or regulatory in nature. Carmony, 127 Cal. App. 4th at 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 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

7 surrounding his firing nine bullets at the approaching victim, who was armed with a shotgun, and attributed this to defendant's panic and immaturity. Id. Also important was the defendant's harsh sentence relative to his co-conspirators none was sentenced to state prison for any crime. Id. (a) Nature of the Offense Defendant was 19 years old when he committed the crime of sodomizing his 3-year-old 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 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25-years-to-life." The law enacting Pen. Code 288.7(a), S.B. 1128, was written with the purpose of providing "a comprehensive, proactive approach to preventing the victimization of Californians by sex offenders....[b]y taking this comprehensive approach, this bill will make all of California's communities safer from all sexual predators, not just some." The bill was introduced as Proposition 83 in 2006 and was enacted by 70.5% of California's voters. Jessica's Law, California Propsition 83 (2006) ballotpedia.org/jessica's_law,_california_proposition_83j2006). Looking at the nature of the offense, Defendant committed sexual abuse of a 3-year-old child who was also a family member. The age of Jane Doe and circumstances of the encounter suggest this was a forcible sexual encounter and by no means a consensual interaction. During the assault, Defendant pulled down Jane Doe's underwear to her knees and covered her mouth while her mother called out to her. Subsequent medical examinations of Jane Doe indicated a tear above the anus in the perianal area consistent with trauma that would have likely been very painful to Jane Doe. She also complained of pain to her mother immediately following the attack. As a 3-year-old female, Jane Doe would be in no capacity to physically resist an attack, 7

8 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, 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

9 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-

10 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.

11 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 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 , 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

12 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

13 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 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

14 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 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 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

15 Arizona o Sexual assault: a person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person. o Punishments: The range of incarceration permissible ranges from 5.25 years as a minimum for general first offenders, to life imprisonment for dangerous crimes against children under 12 years old. Arkansas o Rape. A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person: (1) By forcible compulsion; (2) The person (victim) is incapable of consent because he or she is: (A) Physically helpless; (B) Mentally defective; or (C) Mentally incapacitated; (3) The person (victim) is less than 14 years of age and the offender was at least three years of age older. Consent is not a defense in this instance. o Punishments: Rape is a class Y felony and carries a sentence of between 10 and 40 years, or life incarceration. If the victim is less than 14 years of age the offender is sanctioned to a minimum of 25 years' incarceration. ( ) 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 intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life. 15

16 Colorado o Colo. Rev. Stat. Ann 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 1-20 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

17 o Del. Code Ann. tit Rape in the First Degree. Intentionally engaging in sexual intercourse with another person and: the victim is not yet 12 years of age, and defendant is at least 18 years of age. o Punishment: Defendant may be charged with, convicted of, and sentenced for any separate crime in the Delaware Code in addition to this crime. Rape (1st degree) is a Class A felony. A person convicted of a class A felony may be sentenced to life imprisonment. Defendant is sentenced to life imprisonment without benefit of probation, parole, or any other reduction if: the victim is less than 16 years of age at the time of the offense and the defendant inflicts serious physical injury to the victim. Florida o Fla. Stat Sexual Battery. (A) if defendant is 18 years of age or older and commits sexual battery upon, or during an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age. o Punishment: a defendant convicted of (A) commits a capital felony, which is punishable by death or life imprisonment, with no possibility of parole. ( and ). Georgia o Ga. Code Ann Aggravated Sodomy. Committing sodomy with force and against the will of the other person or the person is less than 10 years of age. o Punishment: Defendant will be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life. 17

18 Hawaii o Haw. Rev. Stat Sexual assault, first degree. This crime is a class A felony. A person commits the offense of sexual assault in the first degree if: (a) the person knowingly subjects another person to an act of sexual penetration by strong compulsion; (b) the person knowingly engages in sexual penetration with another person who is less than fourteen years old. o Punishment: A class A felony is punishable by up to 20 years' imprisonment and a fine of up to $50,000. Idaho o Idaho Code Ann Rape. The penetration, however slight, of the oral, anal or vaginal opening with the perpetrator's penis accomplished with a female under any of the following circumstances: where the female is under the age of 16 years and the perpetrator is 18 years of age or older. o Punishment: Rape is punishable by imprisonment in the state prison for a term not less than one year. The District Judge, at her discretion, may extend the imprisonment to life. Illinois o Ch. 720 Ill. Comp. Stat. 5/ Predatory Criminal Sexual Assault of a Child. 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 years and not more than 60 years. 18

19 Indiana Ind. Code 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 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

20 Kentucky o Ky. Rev. Stat. Ann 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

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