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Justices OK ‘Harsh’ Formula for Sentencing of Sex Offenders

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Times Staff Writer

The state Supreme Court on Monday opened the way for longer prison terms for certain sex crimes, ruling that a defendant may be convicted and sentenced for each sexual penetration that occurs in a single incident.

The court unanimously upheld a sentence of three separate terms totaling 12 years imposed on a San Diego man for three identical, separate penetrations--each lasting only a few seconds--during a violent, 10-minute assault on a legally blind female acquaintance in June, 1985.

The justices found that the Legislature, in devising a “distinctly harsh” sentencing formula for sex offenses, had intended to permit separate punishment for each penetration, however slight and however limited its duration.

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“There is no legal or logical bar to separate punishment where, as here, each of the defendant’s ‘re-penetrations’ were clearly volitional, criminal and occasioned by separate acts of force,” Justice David N. Eagleson wrote for the court.

“(The) defendant should also not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his sexually assaultive behavior.”

The ruling, resolving conflicting decisions by appellate courts, could result in substantially increased prison terms in rape, sodomy and other sex crimes. For example, a maximum sentence of eight years for rape could be expanded to 24 years if three separate penetrations were proved.

E. Stephen Temko of San Diego, attorney for the defendant in the case, voiced dismay with the ruling, saying it could frequently allow sentences for sex offenses beyond the 25-year minimum for first-degree murder and the 15-year minimum for second-degree murder.

“This is a serious crime that deserves serious punishment,” he said. “But does the public really want terms that exceed the penalty for murder? If that’s what they want, that’s what they’re going to get.”

New Leverage

Temko also predicted that the decision would give prosecutors unfair new leverage in plea bargaining. Now, he said, the prosecution will be able to charge several counts in a single incident with the aim of forcing a defendant to plead guilty to fewer counts.

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State prosecutors were not immediately available for comment.

In the case before the court, Daryl Harrison was charged with three counts of rape by a foreign object in the forcible genital penetration with his finger of a woman in her apartment in San Diego.

The woman alleged that Harrison assaulted her in her bedroom and that during a violent struggle she was penetrated three times, for about five seconds each, before she was able to escape and call for help.

Harrison denied the charges, saying he had stopped by the woman’s apartment to return a magazine and that in fact, she had tried to sexually entice him.

He was convicted and sentenced to a total of 17 years--an eight-year maximum for one count of genital penetration, two years each for the other two penetration counts and a five-year enhancement, later set aside, for a previous conviction.

In a 2-1 decision, a state Court of Appeal upheld the multiple charges and punishment, finding that each penetration represented a new crime. The high court, in a 28-page opinion, upheld the ruling on Monday.

The justices rejected Harrison’s contention that although there were multiple penetrations, there was only one crime, extending from the initial penetration to final withdrawal.

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State statutes defining rape, sodomy and rape by a foreign object all say that any penetration, “however slight,” is sufficient to complete the crime, Eagleson wrote. Any time a new and separate penetration is completed, a new violation occurs, he said.

The language of the law, Eagleson wrote, “confirms that this peculiar outrage is deemed to occur each time the victim endures a new, unconsented sexual insertion.”

“The Legislature, by devising a distinctly harsh sentencing scheme, has emphasized the seriousness with which society views each separate unconsented sexual act, even when all are committed on a single occasion.”

Nor, he said, was there any merit to Harrison’s claim that a separate law against multiple punishments for a single act barred him from being sentenced for each penetration.

Arguments Rejected

Even if the penetrations were “closely connected in time,” it is the defendant’s “intent and objective” that determines the crime, so Harrison may be punished three separate times, the court said. The justices also rejected Harrison’s claim that he was entitled to a shorter sentence because, had the victim not struggled, there would have been only one penetration.

“It is not surprising that a victim would struggle after she has been suddenly awakened from an early morning sleep by an intruder who rushes through the bedroom door, and begins to beat and sexually assault her,” Eagleson wrote.

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Eagleson’s opinion was joined by Chief Justice Malcolm M. Lucas and Justices Edward A. Panelli, John A. Arguelles and Marcus M. Kaufman. Justice Allen E. Broussard agreed separately in the judgment, but did not join the opinion. Justice Stanley Mosk issued a concurring opinion, agreeing with the result but disagreeing with the reasoning in the majority opinion.

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