Local News RSS Feed
Print Story
E-mail StoryD.A.'s office offered man same sentence
| Wednesday, Dec 27 2006 10:05 PM
Last Updated: Thursday, Dec 28 2006 7:29 AM
Kern County District Attorney Ed Jagels slammed a local judge earlier this month for giving a convicted child molester three years in prison because he is in this country illegally, even though Jagels' team offered the man the same deal before trial.
Our readers recommend:
Loading Stories
Photos:
Kern County District Attorney Ed Jagels is scheduled to weigh in on medical marijuana at Tuesday's meeting.
Jagels said Wednesday his office is forced to offer lesser sentences before trial in an effort to alleviate overcrowding in courts.
"It's not the way it should be," Jagels said. "It's the way it is."
But once the court has spent the time and money on a trial and the victim has gone through the pain of testifying, the judge should sentence the defendant to the prison term he deserves, Jagels said.
Jagels was furious earlier this month that Kern County Superior Court Judge Richard Oberholzer in October sentenced Jose Richard Leiva to three years in prison for having sex with a 13-year-old girl. Leiva was 23 at the time of the crime.
The judge reasoned that if Leiva received three years in prison, instead of the 10 years recommended by the probation department, he could be deported sooner, saving taxpayer money.
Jagels had called the judge's decision "judicial wackiness" and noted he feared Leiva could hurt more children if given a shorter sentence.
Deputy District Attorney Chris Staiger argued Leiva could return quickly because the border isn't secure and pleaded with the judge to keep the man in prison longer.
Staiger said Wednesday his office offered Leiva a three-year prison term when the case first went to court to save the victim the pain of testifying.
Jagels said his office is forced to offer such deals because the courts are overcrowded.
But he blasted the judge for using Leiva's immigration status to lessen the sentence after the courts went through the time and expense of trying him.
The top prosecutor argued the judge is not shackled by money and time considerations after trial the same way that he is when the case first goes to court.
Jagels decried Leiva's sentence because the judge based the sentence on Leiva's status as an illegal immigrant.
"What the judge did was illegal," Staiger said. "The law is very clear. You're not allowed to give a non-citizen a better deal, conversely you're not allowed to give a citizen a heavier sentence."
He cited a 1988 decision from the 4th District Court of Appeals that specifically states a judge should not rely on a person's citizenship status when considering sentencing.
That sentence was tossed out and the court was asked to resentence the man without considering his citizenship status.
Oberholzer has declined to comment.
Jagels said he could not appeal the Leiva case because the prosecution has no right to appeal.
Leiva's attorney, Deputy Public Defender Nelson Castro, agreed the prosecution typically makes a comparatively low initial offer when the case first comes to court in an effort to take care of less important cases.
Leiva was offered three years in prison in the beginning stages of the case, and he refused.
As the case neared trial, the prosecutor's office offered Leiva six years, which he also rejected.
Kern County Superior Court Judge Lee Felice said when the second offer for six years was made, he would not accept a three-year sentence, Staiger said.
Castro wouldn't say whether he believed the judge should use citizenship to determine the sentence.
But he said he does not believe that was the only factor Oberholzer considered when sentencing Leiva.
Castro said lower-than-expected sentences don't usually raise the ire of the prosecutor's office.
"If it weren't for the illegal issue, I wouldn't have heard about this," Castro said.