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E-mail StorySentence for illegal immigrant questioned
Punishment doesn’t fit the severity of the crime, district attorney says
| Thursday, Dec 14 2006 10:30 PM
Last Updated: Thursday, Dec 14 2006 10:56 PM
A local judge’s decision to give an illegal immigrant a light sentence, anticipating that the convict would be deported faster and save taxpayers money, drew fire Thursday from the district attorney.
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In October, Kern County Superior Court Judge Richard Oberholzer sentenced Jose Richard Leiva, who was 23 at the time of the crime, to three years in prison for having sex three times with a 13-year-old girl. Leiva committed this crime while on probation on a misdemeanor conviction of having a sexual relationship with a 14-year-old girl.
The judge reasoned that a shorter sentence would save the taxpayers money, because after Leiva is released he would be taken back to his country of origin.
"This is the most preposterous thing I've ever heard in my life," Jagels said Thursday afternoon.
Oberholzer sent word through Kern County Superior Court calendar coordinator Pam Campbell that he could not comment on this case.
Defense attorney Michael Lukehart, who is not involved in the case, said he has always found Oberholzer to be a thoughtful judge.
"On any judge, you can nitpick if you look at the entire body of work," Lukehart said.
Initially after Oberholzer imposed the sentence, Jagels considered appealing.
But after researching the law, he realized he had no hope for an appeal.
That's when he decided to take his message to the people, he said.
"It is incumbent upon the district attorney, who is elected by the people, to explain what is happening in court, and to make them aware of legitimate criticism of judges who make a decision that could hurt public safety," Jagels said.
Jagels fears Leiva could harm another child if given a shorter sentence.
"In my 30 years as a prosecutor, I thought I had seen every conceivable example of judicial wackiness, but I was wrong," Jagels wrote in a press release posted Thursday on his Web site.
Jagels said he would consider keeping Oberholzer off similar cases in the future for fear the judge would give noncitizens lesser sentences than citizens. Attorneys have the right to transfer a case from a judge with no cause, once for each case.
The Kern County Probation Department recommended Leiva receive 10 years in prison. But Oberholzer believed this would burden taxpayers, according to a transcript of the sentencing hearing, which Jagels posted on his Web site.
"This is a serious offense," Oberholzer said, according to the transcript. "And I expect him to be deported. I'm not in a position where I want to have to support him for the next five or six years or however long it takes to get him out of here."
Deputy District Attorney Chris Staiger argued to the judge at the sentencing hearing that illegal immigrants can easily return to the United States after deportation and asked for a stiffer sentence.
"The problem is that deportation is not final," Staiger said at the hearing. "If we could guarantee he wouldn't be back, I would agree with Your Honor. The problem is that we know that our border is porous. We know that we will probably see him again."
Oberholzer argued at the sentencing hearing that if Leiva returns, he would return to custody.
But Jagels fears he would molest another child first.
Leiva's attorney, Nelson Castro, said he believed Leiva deserved the lowest term because the relationship was consensual and he did not have a criminal record except for the misdemeanor.
Defense attorney H.A. Sala, who is not involved with the case, said he is sure Oberholzer considered more than the defendant's citizenship when making the sentence.
"We don't know what other factors he considered," Sala said.