People v. Calva

Decision Date23 December 1993
Docket NumberNo. 1-91-2663,1-91-2663
Citation256 Ill.App.3d 865,628 N.E.2d 856,195 Ill.Dec. 392
Parties, 195 Ill.Dec. 392 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ruben CALVA, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Office of the State Appellate Defender, Chicago (Debra R. Salinger, of counsel), for defendant-appellant.

State's Attorney of Cook County, Chicago (Renee Goldfarb, Christine Cook, Linda J. Jakubs, of counsel), for plaintiff-appellee.

Presiding Justice GORDON delivered the opinion of the court:

Defendant, Ruben Calva, was charged with nine counts of aggravated criminal sexual assault, twelve counts of criminal sexual assault, and two counts of aggravated criminal sexual abuse as a result of sexual acts committed on January 5, 1987 against his girlfriend's six year old daughter, A.G. Defendant pleaded guilty in the circuit court of Cook County to six counts of aggravated criminal sexual assault. The remaining counts were nol prossed. Defendant was sentenced to concurrent 40 year extended terms of imprisonment for each of the six convictions with three years' mandatory supervisory release. Defendant appeals three of the convictions and his sentence.

Facts

Defendant was arrested on March 24, 1987 and charged with the offenses enumerated above. In September, 1988, during conferences the trial court indicated it would be amenable to an eight year sentence if defendant would plead guilty. Defendant declined, indicating a desire to go to trial. In April, 1989, immediately before jury selection was to begin, defendant expressed his desire to plead guilty to six of the aggravated criminal sexual assault counts, Counts I, II, III, VII, VIII, and IX of the indictment. The State agreed to drop the remaining 17 counts upon defendant's guilty plea to the six counts. The court advised defendant that his plea must be blind, i.e., no agreement as to sentencing existed, despite earlier discussions of possible sentences.

It should be noted that, although defendant understands some English, he is more comfortable with Spanish, the language of his native country of Mexico. The record reflects that the services of an interpreter were provided during all of the proceedings. The record also reflects that defendant's attorney spoke both English and Spanish.

The trial judge then read all six aggravated criminal sexual assault counts (Counts I through III and VI through IX) in their entirety. In summary, Count I alleged that defendant committed an act of sexual penetration consisting of contact between his penis and A.G.'s mouth by the use of force or threat of force and caused bodily harm by giving A.G. the sexually transmitted disease of chlamydia. Counts II and III were identical to Count I except that the contact in Count II was between defendant's penis and A.G.'s vagina and the contact in Count III was between defendant's penis and A.G.'s anus. Counts VII, VIII, and IX charged sexual penetration by contact between defendant's penis and A.G.'s mouth, vagina, and anus, respectively. Instead of charging bodily harm, Counts VII, VIII, and IX stated that defendant was 17 or older and A.G. was under age 13.

Defendant pleaded guilty to all six counts. In presenting the factual basis for the plea, the prosecutor stated that, if called, the victim, A.G., would testify to the following facts: She was six years old on January 5, 1987 and she lived at that time with her mother, her brothers, and defendant, who was her mother's boyfriend. At 3 p.m. on that date, while her mother was at work, A.G. was watching television with defendant and her brothers. At that time, defendant rubbed his penis on her rectum and inserted his penis into her vagina and into her mouth. Defendant also pulled down her underpants and forced her to lick his penis.

The prosecutor also stated that, if Dr. Sharon Hart were called, she would testify that she examined A.G. on March 24, 1987 and that cultures taken from A.G.'s throat, vagina, and anus during that examination all tested positive for the presence of chlamydia, a sexually transmitted disease. Next, the prosecutor stated that if Assistant State's Attorney Susan Sussman were called, she would testify that she spoke with defendant through an interpreter on March 24, 1987 and reduced defendant's statements to writing. Officer Sarabia of the Chicago Police Department would testify that he translated the statement into Spanish for the defendant.

Defendant's signed statement of March 24, 1987, was then read into the record. According to that statement, defendant, A.G., and A.G.'s two brothers, aged seven and eight, were watching television at home at 3 p.m. on January 5, 1987. As they did so, A.G. touched defendant's penis with her hands and licked and kissed his penis. Defendant rubbed his penis on A.G.'s rectum, between her legs, and in her vagina, all in the presence of A.G.'s brothers.

The parties stipulated that defendant was age 27 at the time of the incident. Defendant, present during all of the prosecutor's statements, made no objection to any of the information offered. Defendant told the judge that he understood all of the charges and all that had been said.

The trial court, finding that defendant's guilty plea was voluntarily and knowingly made and that there was a factual basis, accepted the guilty plea as to Counts I through III and Counts VII through IX.

The court then proceeded to hear evidence in aggravation and mitigation for sentencing. In aggravation, the State pointed out the necessity of deterring others from similar crimes and protecting children in our society and the position of trust or supervision held by defendant who served as a baby-sitter to the victim and her brothers. The State requested an extended term sentence based on the victim's age and on the transmission of chlamydia which it considered to be brutal and heinous. At that point, defendant's counsel objected, stating there had been no testimony that defendant had transmitted the disease to A.G. He stated that defendant had tested negative for the disease. Defendant conceded, however, that the test was administered more than two and one-half months after the incident and that the disease can be cleared up quickly by administering penicillin.

In mitigation, defense counsel stated that defendant was 27 years old, had no criminal record, and was an illegal alien who will be deported to Mexico after his release.

The trial judge, in imposing sentence, then stated that she found the crime heinous, "hateful, odious, wicked, infamous, gravely reprehensible", that only murder was more abhorrent. She cited defendant's position of trust with the victim. She told defendant that he had physically and psychologically injured and scarred A.G. for life. She then stated:

"So to heap insult upon reprehensible injury you have pled guilty to transmitting a sexual disease to this innocent, defenseless baby, to threatening her life, to threaten her in any case. To threaten her with physical harm, and taking all of these things into consideration the Court feels that definitely an extended term is advisable under these considerations."

The judge then cited the extended term statute sections dealing with exceptionally brutal and heinous behavior indicative of wanton cruelty, victims under age 12, and victims under age 18. (See Ill.Rev.Stat.1989, ch. 38, pars. 1005-5-3.2(b)(2), 3.2(b)(4)(i), 3.2(b)(5), (c).) The judge then sentenced defendant to concurrent 40 year sentences followed by three years' mandatory supervisory release. Defendant's subsequent motion to vacate his guilty plea was denied after a hearing.

Opinion

On appeal defendant makes the following contentions: (1) that three of the six counts must be vacated because there were only three acts of sexual penetration; (2) that there was no factual basis for the guilty plea as to Counts I, II, and III; (3) that the sentence imposed by the trial court should be reduced or the case remanded for resentencing by a different judge.

There is no dispute as to whether three of the six counts of aggravated criminal sexual assault to which defendant pleaded guilty must be vacated because the six counts are based on only three acts of sexual penetration. The State concedes that in the present case defendant committed three acts of aggravated criminal sexual assault and, therefore, only three convictions can stand. The other three convictions must be vacated.

The question is which three counts should stand and which three should be vacated. The rule in Illinois is that where only one conviction can stand, it should be the conviction for the most serious offense. (People v. Hood (1989), 191 Ill.App.3d 129, 134, 138 Ill.Dec. 470, 547 N.E.2d 637.) Where the two convictions are for the same class of offense, one looks to whether one offense requires a more culpable mental state than the other. (See People v. Hosty, 146 Ill.App.3d 876, 886, 100 Ill.Dec. 356, 497 N.E.2d 334.) For example, in People v. Hosty, the first conviction was for murder based on intentional killing while the second conviction for murder was based on acting with the knowledge that the shooting created a strong probability of death. The reviewing court found that the first conviction which was based on intentional killing was the more serious crime because intentional killing involves a more culpable mental state than the knowledge of a strong probability of death. The court, therefore, affirmed the first conviction and vacated the second conviction. (Hosty, 146 Ill.App.3d at 886, 100 Ill.Dec. 356, 497 N.E.2d 334. Accord, Hood, 191 Ill.App.3d at 134, 138 Ill.Dec. 470, 547 N.E.2d 637.) See also, People v. Bone (1982), 103 Ill.App.3d 1066, 1068, 59 Ill.Dec. 745, 432 N.E.2d 329 (vacating a felony murder conviction because it involved a less culpable mental state than the murder conviction based on intentional killing).

In the present case, the six aggravated criminal...

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