State v. Valenzuela, DA 20-0032

CitationDA 20-0032
Case DateSeptember 28, 2021
CourtUnited States State Supreme Court of Montana

2021 MT 244

STATE OF MONTANA, Plaintiff and Appellee,

CARLOS VALENZUELA, Defendant and Appellant.

No. DA 20-0032

Supreme Court of Montana

September 28, 2021

Submitted on Briefs: September 22, 2021

Appeal From: District Court of the Fifth Judicial District, In and For the County of Beaverhead, Cause No. DC-18-3842 Honorable Luke Berger, Presiding Judge

For Appellant: Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Jed C. Fitch, Beaverhead County Attorney, Dillon, Montana



¶1 Carlos Valenzuela was convicted by a jury in the Fifth Judicial District Court, Beaverhead County, of sexual assault and incest involving his biological son, C.J.V. Valenzuela appeals, contending sexual assault is a lesser included offense of incest and that his convictions for both violate double jeopardy. Valenzuela presents the following issues for review:

1. Whether Valenzuela's convictions for sexual assault and incest violate the double jeopardy clause of the United States Constitution, the Montana Constitution, and § 46-11-410, MCA.
2. Whether Valenzuela's counsel was ineffective for failing to object to Valenzuela's convictions based on a double jeopardy violation.

¶2 We affirm.


¶3 In April 2011, C.J.V. reported to his kindergarten teacher that he was inappropriately touched by his father, Valenzuela. His teacher informed law enforcement about the incident and indicated C.J.V. had engaged in sexually inappropriate behavior towards other children. Law enforcement and the Montana Department of Public Health and Human Services, Child and Family Services Division, investigated the allegation and prohibited Valenzuela from returning home. C.J.V. then told his mother that the incident had not occurred and his mother relayed C.J.V.'s recantation through a letter that she provided to law enforcement. Thereafter, Valenzuela was allowed to return home and law enforcement closed the investigation.

¶4 In September 2012, Valenzuela was sentenced to prison for an unrelated offense of sexual intercourse without consent. He received a sentence of twenty years to the Department of Corrections with fifteen years suspended. While Valenzuela was serving his sentence, C.J.V. and his mother moved to Idaho and C.J.V.'s mother obtained a divorce from Valenzuela. Valenzuela was released from prison in August 2017 and relocated to California. In 2018, C.J.V.'s mother planned a trip to California to attend a funeral and visit Valenzuela. C.J.V. said he did not want to go to California and elected, instead, to stay with relatives. When C.J.V.'s mother returned, C.J.V. told her he did not want to visit his father because the abuse he had alleged in 2011 had actually occurred. His mother reported the disclosure to law enforcement in Idaho and the investigation-which was transferred back to the Beaverhead County Police Department in Montana-was reopened.

¶5 In 2018, the State charged Valenzuela with sexual assault and incest for the incident which C.J.V. had initially reported back in 2011. A jury trial was held on July 11 and 12, 2019. At trial, C.J.V., then fourteen years old, testified that Valenzuela touched his penis, over his underwear, on one occasion for several minutes. C.J.V. also indicated that Valenzuela told him that he would hurt him if he told anyone. C.J.V. confirmed his recantation of the incident was due to his fear of being hurt by Valenzuela. C.J.V. also testified that Valenzuela would watch pornography and masturbate in front of him. The jury found Valenzuela guilty of both sexual assault and incest. The District Court imposed two concurrent sentences of 100 years to the Montana State Prison, with credit for 438 days served and a forty-year parole restriction.

¶6 On appeal, Valenzuela contends that sexual assault is an included offense of incest and his statutory and constitutional protections against double jeopardy were therefore violated when he was convicted and sentenced for both offenses. Valenzuela asserts this Court should exercise plain error review because his convictions for both sexual assault and incest, which arose out of the same occurrence, produced a manifest miscarriage of justice. Finally, Valenzuela also claims he was denied effective assistance of counsel when his counsel failed to raise these alleged double jeopardy violations.


¶7 Determinations regarding Montana's statutory double jeopardy protections under § 46-11-410, MCA, present questions of law that this Court reviews for correctness. State v. Williams, 2010 MT 58, ¶ 13, 355 Mont. 354, 228 P.3d 1127 (citing State v. Becker, 2005 MT 75, ¶ 14, 326 Mont. 364, 110 P.3d 1). A legal question on the double jeopardy clause is reviewed de novo to determine whether the district court's interpretation of the law is correct. State v. Guillaume, 1999 MT 29, ¶ 7, 293 Mont. 224, 975 P.2d 312. Unpreserved issues alleging violations of a fundamental constitutional right are reviewable under the common law plain error doctrine. State v. Barrows, 2018 MT 204, ¶ 8, 392 Mont. 358, 424 P.3d 612. Plain error review is appropriate when failure to review the alleged error "may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process." Barrows, ¶ 8 (citations omitted).

¶8 A claim of ineffective assistance of counsel constitutes a mixed question of law and fact that this Court reviews de novo. State v. Brandt, 2020 MT 79, ¶ 10, 399 Mont. 415, 460 P.3d 427. Where ineffective assistance of counsel claims are based on facts of record in the underlying case, they must be raised in the direct appeal. Brandt, ¶ 10.


¶9 1. Whether Valenzuela's convictions for sexual assault and incest violate the double jeopardy clause of the United States Constitution, the Montana Constitution, and § 46-11-410, MCA.

¶10 Preliminarily, we must address whether it is appropriate to consider Valenzuela's double jeopardy claim. Although Valenzuela did not raise a double jeopardy objection at trial, this Court may nonetheless discretionarily review an issue not raised at trial which concerns a fundamental constitutional right. We have said:

The purpose of the plain error doctrine is to correct an error not objected to at trial that affects the fairness integrity, and public reputation of judicial proceedings. The plain error doctrine may be used in situations that implicate a defendant's fundamental constitutional rights, and where failing to review the alleged error may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process

Barrows, ¶ 11 (quoting State v. Lawrence, 2016 MT 346, ¶ 9, 386 Mont. 86, 385 P.3d 968). We must first determine whether Valenzuela's fundamental constitutional rights have been implicated.

¶11 The Fifth Amendment to the United States Constitution and Article II, Section 25, of the Montana Constitution protect citizens from being placed twice in jeopardy for the same offense. U.S. Const. amend. V ("[n]or shall any person be subject for the same offence to be twice put in jeopardy . . . ."); Mont. Const. art. II, § 25 ("No person shall be again put in jeopardy for the same offense previously tried in any jurisdiction."). The prohibition against double jeopardy "was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223 (1957).

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty

Green, 355 at 187-88, 78 S.Ct. at 223.

¶12 Valenzuela asserts his convictions for sexual assault and incest, which arose out of the same offense and the same occurrence, violate his constitutional right against being placed twice in jeopardy, thus necessitating plain error review. Assessing the validity of the alleged error, i.e., conducting the review, must be distinguished from the threshold determination that plain error review is appropriate. Here, Valenzuela has asserted a claim that, if valid, would implicate a significant constitutional right. Nothing could be more egregious than being convicted and punished for a crime not allowed by law. Standing convicted and sentenced for two offenses, if one offense were indeed a lesser included offense of the other, would constitute a manifest miscarriage of justice. Accordingly, we conclude Valenzuela's claim implicates a fundamental constitutional right and that plain error review is appropriate to determine if his constitutional right against double jeopardy has, in fact, been violated.

¶13 Valenzuela asserts that sexual assault is an included offense of incest and his convictions for both offenses, arising out of the same incident, violate his constitutional and statutory double jeopardy rights. Valenzuela's double jeopardy rights are protected by the Fifth Amendment of the United States Constitution, enforceable in Montana through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 794-95, 89 S.Ct. 2056, 2062-63 (1969), as well as under Article II, Section 25 of the Montana Constitution,...

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