State v. Arguelles
| Decision Date | 06 August 2020 |
| Docket Number | No. 20190521-CA,20190521-CA |
| Citation | 473 P.3d 170 |
| Court | Utah Court of Appeals |
| Parties | STATE of Utah, Appellee, v. Lucila Ruby ARGUELLES, Appellant. |
W. Andrew McCullough, Midvale, Attorney for Appellant
Simarjit S. Gill, Heather Lindsay, Steven L. Grayson, and Victoria A. Turner, Attorneys for Appellee
Opinion
¶1 Lucila Ruby Arguelles was charged with a class A misdemeanor for sexual solicitation after an encounter with an undercover detective in a hotel room. Arguelles moved to dismiss the case, arguing that she was entitled to be prosecuted only for a class B misdemeanor prostitution offense under the Shondel doctrine1 and that the district court lacked jurisdiction over that class B misdemeanor. The district court denied the motion. We granted Arguelles's request for interlocutory review. We affirm.
¶2 On July 26, 2018, an undercover detective (Detective) located an advertisement on an escort-services website and called the listed phone number to arrange a meeting with a female at a hotel in Salt Lake City. Detective waited in the hotel room for the escort's arrival. When Arguelles arrived, she knocked on the door and the two engaged in small talk for a short time. Arguelles asked Detective for the $200 show-up fee, and Detective promptly paid her in cash. Arguelles then told Detective to "get comfortable" as she entered the bathroom. Detective, understanding Arguelles's instruction to mean that he should undress, disrobed except for his underwear. Arguelles emerged from the bathroom still fully clothed and asked Detective if he "knew how this went." Detective responded that he understood the $200 was just for her to show up and that "she worked and did other things off of tips" after that.
¶3 At that time, Detective indicated that "all [he] wanted was a blowjob." Arguelles responded by nodding her head and stating, "My tips start at $500." Detective then stated, "It's a deal" and gave Arguelles $500. Arguelles then made a statement clearly indicating to Detective that she was not performing oral sex, that it was "out of the books." The two then engaged in a discussion about what Arguelles would do for the $500, ultimately agreeing that Arguelles would "dance or something like that." Arguelles entered the bathroom a second time and then emerged dressed only in lingerie. Arguelles proceeded to dance provocatively and eventually revealed the top portion of her areolas. She also lay next to Detective on the bed and "grazed her fingers along [his] penis over [his] underwear" a couple of times. Arguelles then did some additional dancing, at which time the detective signaled other detectives to intervene, ending the encounter.
¶4 Arguelles was charged in the district court with sexual solicitation, a class A misdemeanor under Utah Code section 76-10-1313(1)(a), for offering or agreeing to commit a sex act for a fee.3 Arguelles moved to dismiss the case for lack of jurisdiction, arguing that under her right to equal protection of the law, as articulated by the Shondel doctrine, she should have been charged with the lesser offense—prostitution, a class B misdemeanor—in the justice court. The district court denied Arguelles's motion, concluding the Shondel doctrine did not apply. This interlocutory appeal followed.
¶5 Arguelles asserts that the district court erred in denying her motion to dismiss under the Shondel doctrine. "We review a trial court's application of the Shondel doctrine for correctness." State v. Melancon , 2014 UT App 260, ¶ 10, 339 P.3d 151.
¶6 Arguelles further contends that if she is entitled to prosecution for the lesser offense, the district court did not have jurisdiction and ought to have dismissed the case so that it could be brought in the justice court. "Because a trial court's grant or denial of a motion to dismiss is a question of law, the standard of review is correctness." South Jordan City v. Summerhays , 2017 UT App 18, ¶ 5, 392 P.3d 855 (cleaned up); see also Salt Lake City v. Weiner , 2009 UT App 249, ¶ 5, 219 P.3d 72 .
¶7 Under Utah's constitutional guarantee of uniform operation of the laws, the Shondel doctrine "preserves the equal protection of the laws by requiring criminal statutes to be written so that the exact same conduct is not subject to different penalties depending upon which of two statutory sections a prosecutor chooses to charge." State v. Arave , 2011 UT 84, ¶ 12, 268 P.3d 163 (cleaned up); see State v. Williams , 2007 UT 98, ¶¶ 20–21, 175 P.3d 1029 ; State v. Shondel , 22 Utah 2d 343, 453 P.2d 146, 147 (1969) ; see also Utah Const. art. I, § 24. Shondel is only "implicated at the intersection of duplicative criminal statutes" that invite a "risk of arbitrary prosecutorial discretion." State v. Ainsworth , 2017 UT 60, ¶ 22, 423 P.3d 1229 ; see also State v. Fedorowicz , 2002 UT 67, ¶ 48, 52 P.3d 1194 (). When "statutes define two crimes having precisely the same elements with different penalties," a defendant is "sentenced only on the lesser offense" under the Shondel doctrine. Arave , 2011 UT 84, ¶ 12, 268 P.3d 163 (cleaned up).
¶8 In 2017, our supreme court clarified the two-step inquiry used to determine whether there is a Shondel problem. See Ainsworth , 2017 UT 60, ¶ 26, 423 P.3d 1229. First, as a threshold matter, we inquire whether the two statutes, at the time of the charged offense, were wholly duplicative as to the facts and elements of the crime. Id. ¶ 25 ; see also Fedorowicz , 2002 UT 67, ¶ 50, 52 P.3d 1194 (). If the threshold question reveals that "each statute requires proof of some fact or element not required to establish the other, there is no Shondel problem" and the inquiry ends. Ainsworth , 2017 UT 60, ¶ 25, 423 P.3d 1229 (cleaned up). In undertaking the threshold inquiry, we "treat[ ] as irrelevant the conduct of a particular defendant; only the content of the statutes matters." Williams , 2007 UT 98, ¶ 14, 175 P.3d 1029. Second, if necessary, we determine whether the two statutes have identical effective dates. Ainsworth , 2017 UT 60, ¶ 27, 423 P.3d 1229 ; Shondel , 453 P.2d at 147. If the dates differ, "the later-enacted provision will be deemed to impliedly repeal the earlier one." Ainsworth , 2017 UT 60, ¶ 27, 423 P.3d 1229. However, if the dates are the same, Shondel "require[s] a reduction to the lesser offense." Id.
Id. § 76-10-1313 (Supp. 2018).
¶10 The challenged provisions—subsections 1(a) of the prostitution and sexual solicitation statutes—bear striking similarities. However, the subsections do not contain identical language. As relevant here, the prostitution statute prohibits offering or agreeing to engage in sexual activity, while the sexual solicitation statute prohibits offering or agreeing to commit sexual activity. Arguelles suggests that this "slightly different language" lacks significance. The State does not contest the point. And we agree that the slight difference of wording in each provision lacks significance because it does not create a distinction between the facts or elements required to prove the offenses. See Ainsworth , 2017 UT 60, ¶ 26, 423 P.3d 1229. Both statutes require proof that an individual (1) offers or agrees to (2) participate in any sexual activity (3) with another individual (4) for a fee or the functional equivalent of a fee. Thus, under the plain language of the statutes, there is a complete overlap in the facts and elements required to be proved. See Fedorowicz , 2002 UT 67, ¶ 51, 52 P.3d 1194 (); State v. Wolf , 2014 UT App 18, ¶¶ 37–38, 319 P.3d 757 ().
¶11 The State maintains on appeal that the Shondel doctrine does not apply because elements of the variations of the crimes do not fully overlap. We acknowledge that the sexual solicitation statute prohibits only the offer or agreement to commit sexual activity, while the prostitution statute prohibits offers, agreements, and the act itself of engaging in sexual activity. But we do not agree that all variations of an offense must overlap with the elements of another offense before Shondel is implicated. See Williams , 2007 UT 98, ¶ 14, 175 P.3d 1029...
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