State v. Lara-Vasquez

                                       99

Argued and submitted February 14, 2020; in A167432, reversed and remanded
 for resentencing, otherwise affirmed; in A167449, appeal dismissed as moot
                               March 17, 2021


                      STATE OF OREGON,
                        Plaintiff-Appellant,
                                  v.
                    IGNACIO LARA-VASQUEZ,
                      Defendant-Respondent.
                  Hood River County Circuit Court
                   17CR14075; A167432 (Control)
                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   IGNACIO LARA-VASQUEZ,
                       Defendant-Appellant.
                  Hood River County Circuit Court
                       17CR14075; A167449
                                   

    Defendant was convicted of one count of first-degree sexual abuse, ORS
163.427, and one count of third-degree sexual abuse, ORS 163.415, after an incident in which he forcibly touched the clothed buttocks of his girlfriend’s 14-year-old daughter. Under Measure 11, the mandatory prison sentence for first-degree
sexual abuse is 75 months, and a trial court lacks discretion to impose a lesser
sentence. At the same time, a court may impose a lesser sentence if, in the particular circumstances, imposing the mandatory sentence would violate Article I,
section 16, of the Oregon Constitution. Here, the trial court concluded that imposing a 75-month sentence on defendant would violate Article I, section 16, and it
instead sentenced defendant to 18 months in prison. The state appeals (A167432),
arguing that a 75-month sentence would not violate Article I, section 16, and
therefore had to be imposed. Defendant separately appeals (A167449), challenging the term of his post-prison supervision. Held: The trial court erred by not
imposing the 75-month sentence required by Measure 11. Although a 75-month
sentence may be harsh in these circumstances, it would not violate Article I, section 16, so the will of the voters must be enforced.
   In A167432, reversed and remanded for resentencing; otherwise affirmed. In
A167449, appeal dismissed as moot.


   John A. Wolf, Judge.
   In A167432, Benjamin Gutman, Solicitor General, argued
the cause for appellant. Also on the brief was Ellen F.
Rosenblum, Attorney General.
100                                State v. Lara-Vasquez

    In A167432, Bear Wilner-Nugent argued the cause and
filed the brief for respondent.
    In A167449, Bear Wilner-Nugent argued the cause and
filed the brief for appellant.
   In A167449, Benjamin Gutman, Solicitor General, argued
the cause for respondent. Also on the brief was Ellen F.
Rosenblum, Attorney General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
  AOYAGI, J.
   In A167432, reversed and remanded for resentencing;
otherwise affirmed. In A167449, appeal dismissed as moot.
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        AOYAGI, J.
         Defendant was convicted of one count of first-degree
sexual abuse, ORS 163.427, and one count of third-degree
sexual abuse, ORS 163.415, after an incident in which he
forcibly touched the clothed buttocks of his girlfriend’s
14-year-old daughter. The issues before us on appeal pertain solely to defendant’s sentence on the first-degree
sexual abuse count. Under Measure 11, the mandatory
prison sentence for first-degree sexual abuse is 75 months.
The trial court concluded that imposing that sentence on
defendant would violate Article I, section 16, of the Oregon
Constitution and, instead, sentenced defendant to 18 months
in prison, to be followed by post-prison supervision for a
term of “10 years minus time actually served pursuant to
ORS 144.103.”
         Both the state and defendant appeal. The state
contends that the trial court erred in failing to impose
the 75-month prison sentence required by Measure 11.
Defendant contends that his 18-month prison sentence
should be upheld but that the trial court erred in stating
his term of post-prison supervision in a manner other than
a determinate number of months. For the following reasons, we agree with the state that imposing the 75-month
prison sentence required by Measure 11 would not violate Article I, section 16, and that the trial court therefore
erred in imposing a different sentence. Accordingly, we
reverse and remand for resentencing. Given our disposition of the state’s appeal, we dismiss defendant’s appeal as
moot.
                           FACTS
         We describe the facts underlying defendant’s conviction in the light most favorable to the state. State v.
Smith, 

, 

, rev den, 

 (2016).
         Defendant was in a romantic relationship with Z’s
mother. In April 2015, when Z was 13 years old, defendant
moved into Z’s home. Defendant was in his 50’s at the time.
Defendant financially supported the family throughout his
relationship with Z’s mother. Defendant was also Z’s primary
102                                   State v. Lara-Vasquez

caregiver at times. For example, soon after he moved in, Z’s
mother was absent from the home for two months while in
immigration detention, and defendant was the only adult in
the home with Z and her three younger siblings. Defendant
described himself at trial as a “father figure” to Z.
        Z always felt uncomfortable with defendant. Defendant frequently gave Z “weird looks,” told Z’s mother that
Z was “really pretty” and “worth a lot,” and looked Z up
and down. Defendant often discreetly patted Z’s buttocks.
In September 2015, on or immediately after Z’s fourteenth
birthday, defendant gave Z a “birthday spanking.”
         In March 2016, Z told defendant that she was pregnant by her boyfriend. Defendant’s inappropriate touching
of Z became more insistent and more frequent after that disclosure. Defendant told Z that he would be able to tell if she
was pregnant if she showed him her breasts and, on more
than one occasion, asked Z to show him her breasts, which
she never did. On multiple occasions, defendant told Z that
he wanted to “lay down with” her, using a Spanish phrase
with a specifically sexual connotation. Defendant told her
that, now that she was not a virgin, she could “handle it.” He
once asked her to perform oral sex on him. He also told her
that if she did not “do things with him,” he would “go after”
her family or boyfriend. More than once, defendant showed
Z pornography on his cell phone. When Z told her mother
about some of defendant’s conduct, Z’s mother told Z to let
him do it.
         The incident that led to defendant’s convictions
occurred in early 2016. Defendant entered Z’s bedroom,
locked the door, grabbed her, and tried to force himself on
her. As Z tried to get away, defendant had his arm around
both her arms, and he touched her buttocks over her clothing. He whispered in Spanish that he wanted to “lay down
with” her. He kissed her neck. He whispered into her ear
in Spanish, “You turn me on.” The incident lasted about a
minute. Z fought back by scratching at defendant’s forehead
with her fingernails until he stopped and left the room. The
incident affected Z in several ways. It caused her to have
difficulty sleeping, frequent nightmares, trouble communicating with her male teachers and male peers, and anxiety
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attacks when male teachers approached her at school. Z felt
that she would never forget what defendant did to her and
that she could never forgive him.
        Defendant was indicted on multiple counts. He
waived jury and was tried to the court. The trial court convicted defendant of one count of first-degree sexual abuse
and one count of third-degree sexual abuse, sentenced him
as previously described on the first-degree count, and sentenced him to probation on the third-degree count.
                                 ANALYSIS
        The state challenges the trial court’s imposition of
an 18-month prison sentence for defendant’s first-degree
sexual abuse conviction, rather than the 75-month sentence
required by Measure 11. In the state’s view, imposing a
75-month prison sentence would not violate Article I, section
16, and the trial court was therefore required to impose it.
We review the trial court’s decision for legal error. State v.
Conrad, 

, 

 (2016), rev den,

 (2017).
         Under Measure 11, the mandatory minimum
prison sentence for first-degree sexual abuse is 75 months.
ORS 137.700(2)(a)(Q).1 Trial courts have “no discretion to
impose a lesser sentence based on the specific facts of the
case, harm to the victim, or characteristics of the defendant.” State v. Rodriguez/Buck, 

, 

(2009).2 As a practical matter, trial courts also have no discretion to impose a greater sentence. 

 (explaining why a 75-month prison sentence is both “the minimum and the maximum sentence for first-degree sexual
abuse” under Measure 11). Under Measure 11, every act of
first-degree sexual abuse is subject to the same 75-month

    1
      The statute’s subsections were renumbered after the events in this case. As
the renumbering is immaterial for our purposes, we cite the current version of
the statute.
    2
      By contrast, “before the passage of Measure 11, a person convicted of first-degree sexual abuse would have received a guidelines sentence that took into
account criminal history and other aggravating or mitigating circumstances.”
Rodriguez/Buck, 

 n 3. “The presumptive guidelines sentence for a
defendant with no prior convictions would have been 16 to 18 months in prison.”

104                                                 State v. Lara-Vasquez

sentence, with one narrow statutory exception not applicable
here.3
         Notwithstanding the lack of discretion in Measure
11 sentencing, trial courts must consider claims that a particular sentence is unconstitutional as applied in a particular case. 

. Article I, section 16, provides that
“[c]ruel and unusual punishments shall not be inflicted,
but all penalties shall be proportioned to the offense.” If the
mandatory sentence would violate Article I, section 16, a
court may impose a lesser sentence, not as a matter of discretion but to avoid a constitutional violation. 

.
          A punishment violates Article I, section 16, only if
it is so disproportionate to the offense as to “shock the moral
sense” of reasonable people. 

. It is not the role of
the courts to establish penalties for violations of criminal
statutes; that is the province of the legislature and of the
people acting through the initiative process. State v. Allen,

, 

 (2018). As such, in applying the protections of Article I, section 16, courts are not
to “second-guess” the penalties chosen by the legislature or
the people. See Rodriguez/Buck, 

. It is “only in
rare circumstances” that a statutory penalty will be deemed
so disproportionate as to violate Article I, section 16. 

 At
least three factors bear on whether a punishment is so disproportionate that it would shock the moral sense of reasonable people: comparing the severity of the penalty and the
gravity of the offense; comparing the penalties imposed for
other, related crimes; and the criminal history of the defendant. 

        In this case, we agree with the state that, although
the mandatory sentence for defendant’s crime may be somewhat harsh in these circumstances, it is not so disproportionate as to shock the moral sense of all reasonable people. That is, imposing a 75-month sentence for the crime
     3
       As a statutory exception to the 75-month mandatory prison sentence for
first-degree sexual abuse, a court may apply the sentencing guidelines (instead
of Measure 11 sentencing) if the victim was 12 or 13 years old at the time of the
offense, the defendant was no more than five years older than the victim, the victim’s lack of consent was due solely to incapacity to consent by reason of age, the
offense did not involve sexual contact with any other minor, and the defendant
meets certain criminal-history criteria. ORS 137.712(2)(e).
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of first-degree sexual abuse in this case—as required by
Measure 11—would not rise to the level of an Article I, section 16, violation. It follows that the trial court erred by not
imposing the mandatory minimum sentence.
          We first compare the severity of the penalty and
the gravity of the offense, which is a “difficult, but … not
impossible” task. Id. at 63. The severity of the penalty here
is 75 months’ imprisonment. See id. at 60 (length of imprisonment is “the primary determinant of the severity of a
penalty”). As for the gravity of the offense, relevant factors
include the general definition of the crime, the specific circumstances and facts of defendant’s conduct, characteristics of defendant and the victim, the harm to the victim, the
relationship between defendant and the victim, and other
case-specific factors. Id. at 62.
          “An as-applied proportionality analysis that considers the facts of an individual defendant’s specific criminal
conduct is particularly significant when the criminal statute at issue covers a broad range of activity, criminalizing
a variety of forms and intensity of conduct.” Id. at 61. First-degree sexual abuse encompasses a broad range of activity.
It is first-degree sexual abuse (1) to subject another person
to “sexual contact” if that person is less than 14 years of age,
is subjected to forcible compulsion by the actor, or is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless; or (2) to intentionally cause a person under 18 years of age to touch or contact
the mouth, anus, or sex organs of an animal for the purpose
of arousing or gratifying the sexual desire of a person. ORS
163.427. “Sexual contact” includes “any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor
for the purpose of arousing or gratifying the sexual desire of
either party.” ORS 163.305(6).
        At one end of the spectrum of first-degree sexual
abuse are cases like State v. Padilla, in which the defendant
rubbed his bare penis against the 11-year-old victim’s hand,
clothed genital area, and clothed buttocks. 

, 

, rev den, 

 (2016) (describing that conduct as “on the serious end” of the spectrum of
106                                    State v. Lara-Vasquez

first-degree sexual abuse). At the other end are cases like
Rodriguez/Buck, in which one defendant pressed the back
of a 13-year-old boy’s head against her clothed breasts for
about a minute while they were standing in a room with 30
to 50 other people, and the other defendant failed to move
his hand away when a 13-year-old girl leaned her clothed
buttocks against it two or three times while they were out
fishing and, later, used his hand to brush dirt off the back of
the girl’s shorts. 

 (describing such conduct as
being at the “outer edge” of first-degree sexual abuse).

         Other cases fall in between. In State v. Camacho-Garcia, the defendant twice touched the 12- or 13-year-old
victim’s breasts, once over her clothing while commenting
on her physical development and once under her clothing
while making a sexually suggestive remark. 

, 

 (2014), rev den, 

 (2015)
(describing that conduct as graver than that in Rodriguez/
Buck). And, in State v. Sills, the defendant grabbed the
clothed breast of a 13-year-old girl for several seconds, as
she and her friends passed him on the street. 

, 

 (2013), rev den, 

(2014) (describing the defendant’s “forceful conduct in grabbing the victim’s breast on the street” as more serious than
the conduct in Rodriguez/Buck).

        In all of the foregoing cases, except Rodriguez/Buck,
a 75-month sentence for first-degree sexual abuse was held
not disproportionate under Article I, section 16.

         In this case, defendant locked the 14-year-old victim’s bedroom door, physically restrained her arms, and
grabbed her clothed buttocks while kissing her neck and
telling her that he wanted to “lay down with” her in a sexual way and that she turned him on. That conduct is less
grave than the conduct in Padilla, in that it did not involve
skin-to-skin contact with genitalia—although we note that
it is unknown what would have happened if Z had not successfully fought off defendant by scratching at his face. It
is graver than the conduct in Rodriguez/Buck, however,
because it involved the use of physical force (forcible compulsion). See Rodriguez/Buck, 

 (describing the
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difference between offenses involving forcible compulsion
and the defendants’ offenses as “obvious to any reasonable
person”); see also Padilla, 

 (treating the
defendant’s use of physical force to compel the victim’s hand
to make sexual contact with his penis as a relevant factor).4
It is also graver than the conduct in Rodriguez/Buck because
of the groping nature of the conduct and defendant’s unambiguous sexual intent. See Rodriguez/Buck, 

(distinguishing “fondling, stroking, rubbing, or palpating”
from more passive touching); Camacho-Garcia, 268 Or at
82 (“The touching was also preceded by a sexually suggestive remark—and thus was unlikely to have been perceived
by the victim as inadvertent.”). And it is graver than the
conduct in Sills, 

, because defendant
attempted to force himself on Z to a greater degree and as
part of a larger pattern of inappropriate touching, conduct,
comments, and threats.

         Defendant’s relationship with the victim and the
harm that she suffered also increased the gravity of the
offense. Defendant lived in the victim’s home, was romantically involved with her mother, was four decades older
than her, and was a de facto stepfather to her. See Camacho-Garcia, 268 Or at 82-83 (the fact that the defendant lived in
the victim’s home and was her de facto stepfather made the
offense graver, because he breached a trust relationship; his
sexual contact with the victim was “more likely to be psychologically damaging because it was repeated and because
of the parties’ relationship”). We agree with defendant that
a parent-like relationship is not dispositive; however, it is
relevant. The victim also was significantly traumatized by
the event, including losing sleep, having nightmares, and
fearing male teachers and male peers. See State v. Sokell,

, 

 (2015), aff’d, 

,

 (2016) (considering trauma to the victim as relevant to gravity of the offense).

     4
       Defendant views the state as arguing that the use of forcible compulsion
is, in and of itself, dispositive. We understand the state’s position on appeal to be
somewhat less stark. In any event, we do not consider that one fact to be dispositive. Every case in which a mandatory sentence is challenged as unconstitutional
as applied must be decided on the totality of the facts regarding the particular
defendant, the particular victim, and the particular offense.
108                                     State v. Lara-Vasquez

         On the whole, comparing the severity of the penalty to the gravity of the offense, there is no question that
75 months in prison is a harsh penalty for touching a person’s clothed buttocks. However, in full context, the gravity
of defendant’s offense falls much closer to the middle of the
spectrum than it does to the “outer edge” of conduct represented by Rodriguez/Buck.
         We next consider the penalties imposed for other,
related crimes. If more severe crimes carry less severe sentences, that may be an indicator of disproportionality, particularly when considering “the penalties imposed for other
crimes that have similar characteristics to the crime at issue.”
Rodriguez/Buck, 

. Here, as the state points
out, there are certainly some more serious sexual crimes subject to more severe penalties, such as first-degree rape, first-degree sodomy, and first-degree unlawful sexual penetration,
all of which carry mandatory minimum prison sentences of
100 months. See ORS 137.700(2)(a)(K), (M), (O). However,
as the trial court emphasized, there are also more serious
sexual crimes subject to the same 75-month penalty, including second-degree rape, second-degree sodomy, and second-degree sexual penetration. ORS 137.700(2)(a)(L), (N), (P);
see Rodriguez/Buck, 

 (considering relevant that
the defendants would have received the same 75-month sentence for anal sodomy, sexual intercourse, or sexual penetration of their victims).
         In concluding that it would be constitutionally disproportionate to impose a 75-month sentence on defendant
in this case, the trial court relied heavily on the fact that the
same sentence would apply if defendant had subjected Z to
skin-to-skin contact with genitalia, had committed second-degree rape of Z, or had committed second-degree sodomy of
Z. We agree with the state that the trial court put too much
weight on the fact that the same 75-month mandatory sentence applies to worse sexual offenses.
         Our precedent establishes that, unless a defendant’s conduct falls at the “outer edge” of what constitutes first-degree sexual abuse, the fact that worse conduct would be subject to the same mandatory sentence is
not enough to make a 75-month sentence constitutionally
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disproportionate. See, e.g., State v. Buckendahl, 

, 

 (2020); Padilla, 

;
Camacho-Garcia, 

; Sills, 

. Indeed, given the breadth of sexual offenses subject to
mandatory 75-month sentences under Measure 11, to conclude otherwise would make it more of the rule than the
exception for such sentences to be deemed constitutionally
disproportionate. See Rodriguez/Buck, 

 (disproportionality under Article I, section 16, is “rare”). In requiring 75-month mandatory sentences for a fairly broad range
of sexual offenses, including nearly all acts of first-degree
sexual abuse, the voters who enacted Measure 11 evinced
their intent that courts not be allowed to fine-tune prison
sentences to the particular offense. Measure 11 functions
more like a bludgeon than a scalpel, but that is the intention
of the voters, and Article I, section 16, cannot be used to
change it. Rather, Article I, section 16, protects only against
disproportionality in its most extreme form, where a sentence is so disproportionate that it would shock the moral
sense of reasonable people. As such, the fact that more
serious conduct than defendant’s would also be subject to a
75-month mandatory sentence weighs somewhat in defendant’s favor, but it does not carry nearly as much weight as
the trial court gave it.
         That brings us to defendant’s criminal history.
Prior criminal convictions may demonstrate that previously imposed sentences have not deterred a defendant from
returning to criminal behavior. 

; see also Sills, 

 (relying in part on the defendant’s prior
convictions for sexual offenses in holding that 75-month
sentence was not disproportionate). Instances of uncharged
wrongful conduct may also be relevant. Rodriguez/Buck, 

 (stating same, and noting that first-degree sexual
abuse cases commonly involve contact that “has occurred
multiple times,” whereas, in both Rodriguez and Buck, the
“brief touching occurred on a single occasion”).5 At the same

    5
      Defendant argues that, as part of considering his “criminal history,” the
trial court could have considered factors such as defendant’s “advanced age,”
years of employment, and status as a lawful permanent resident, all of which, in
his view, weigh in favor of disproportionality. Defendant provides no authority for
the court to consider those factors, and we are aware of none.
110                                    State v. Lara-Vasquez

time, a lack of prior convictions alone has never been found
to be enough to render an otherwise constitutional penalty
disproportionate. State v. Shaw, 

, 

, rev den, 

 (2010) (“Although criminal history is one factor that could, along with the other factors,
demonstrate that a penalty is disproportionate under the
circumstances, the lack of prior convictions alone has never
been sufficient to render an otherwise constitutional penalty disproportionate under Article I, section 16.”).

         In this case, defendant has no prior criminal convictions. However, there is evidence that he engaged in multiple acts of uncharged wrongful conduct toward Z, including touching Z’s buttocks more than 10 times, showing Z
pornography more than once, making sexual comments to
Z, and threatening to harm Z’s family and boyfriend if she
did not do as he wished. Under the circumstances, defendant’s lack of prior convictions does not make the mandatory 75-month sentence unconstitutional as applied.
Cf. Padilla, 

 (concluding that, on the particular facts, the defendant having no prior convictions did “not
lead to a conclusion that his sentence would shock the moral
senses of reasonable people”); Camacho-Garcia, 268 Or at
83-84 (where the defendant had engaged in two instances of
escalating conduct that constituted sexual abuse, his lack of
prior convictions did “not alter our conclusion”).

         In sum, we agree with the state that, given existing
precedent and all of the relevant considerations, sentencing
defendant to 75 months in prison for his act of first-degree
sexual abuse against Z is not a sentence that would shock the
moral sense of reasonable people. A sentence may be harsh
without being unconstitutionally disproportionate, and that
is the case here. We also reject defendant’s suggestion that
we should “defer to the circuit court’s judgment about the
relative weight of the facts by affirming the prison sentence
that it imposed.” Such an approach would be contrary to the
standard of review. We rely on the facts as found by the trial
court, but the question whether a mandatory minimum sentence would violate Article I, section 16, as applied in the
particular case is a question of law. Conrad, 

. We cannot simply “defer” to the trial court’s conclusion.
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For the reasons discussed, the 75-month prison sentence
required by Measure 11 would not violate Article I, section
16, and the trial court therefore was required to impose it
and erred in imposing a lesser prison term.
        In A167432, reversed and remanded for resentencing; otherwise affirmed. In A167449, appeal dismissed as
moot.