A state Court of Appeal, ruling in a notorious 1982 child molestation case, has upheld the convictions of two men for the sexual abuse of a 2-year-old girl who was abducted and held prisoner for 10 months in a filthy van.
But the panel overturned the 208-year sentence of Alex Cabarga, who was a teen-ager when the crimes were committed. The court found that Cabarga, now 22, had been dominated and abused by co-defendant Luis Reynaldo (Tree Frog) Johnson who taught him that child molesting was "normal" and struck him when he disobeyed orders.
The court affirmed all but 64 years of a 527-year term imposed on Johnson, 39, who was convicted of 100 counts of sex offenses and other crimes involving the girl, and a boy, then 10, who escaped and led police to the van where the girl was being held.
The court also upheld the conviction of Cabarga, who the panel noted had been turned over by his parents to Johnson as a youngster. But the court overturned Cabarga's sentence as cruel and unusual.
"A sentence of life imprisonment for Cabarga, who the evidence overwhelmingly discloses was Johnson's 'third victim,' is constitutionally excessive," Appellate Justice Jerome A. Smith wrote in an opinion joined by Appellate Justice Allison M. Rouse.
In dissent, Appellate Justice J. Anthony Kline, while agreeing that Cabarga's conviction should be upheld, said Cabarga should never have been tried as an adult and that he was entitled to a new hearing to challenge a ruling that he was legally sane.
"If the record makes anything clear it is that Alex Cabarga is as tragic a victim as (the 2-year-old girl); a victim not just of Tree Frog Johnson but of the misguided parents who delivered him to that monstrous pedophile at the age of about 10," Kline wrote.
Alan M. Caplan of San Francisco, Cabarga's attorney, said he was "ecstatic" that the court had overturned the sentence. "It's about time someone in the system recognized Alex was a victim too," he said.
Caplan said that in future proceedings, he will ask a trial court here to issue a short sentence that will allow for parole or release of Cabarga immediately under stringent conditions in which he would receive mental therapy. Cabarga is being held in Soledad State Prison.
The girl, now 9, was kidnaped from a shopping center in February, 1982, while her parents were in a store. Two months after the girl was kidnaped, the boy moved into the van with Johnson to escape his parents, according to testimony in the case. After his escape, the boy told authorities that he and the girl had been kept prisoner and repeatedly abused, with the girl being forced to perform sex acts in exchange for food.