A 14-year-old Santa Rosa girl and her mother claim their constitutional rights as victims were violated when a man who engaged in repeated phone sex with the teen was permitted without their knowledge to plead no contest to related criminal charges in exchange for probation.
The defendant, who was freed from jail in June with credit for the 10 months he already had served, is to be sentenced to probation in the case Thursday unless his victim and her advocates can persuade Judge Gary Medvigy to withdraw his acceptance of the plea.
Their attorney argues that the surprise resolution of the case violated the 2008 California Victims' Bill of Rights Act. The act, known as Marsy's Law, in part guarantees the right of victims be notified and heard during critical stages of criminal proceedings.
In this case, the girl's mother said she learned by reading on The Press Democrat web site that Arnold M. Luz, 46, was headed back out into the world and would escape state prison time, even though she and her daughter met with prosecutors one day earlier and was led to believe he would be sentenced to state prison.
"I don't understand it," the girl's mother said through tears Tuesday. "I feel I was lied to and deceived by officials that I trusted."
Her attorney, Amy Terrible, additionally disputed the prosecutor's license to negotiate a plea in the first place, given legal limitations on plea bargains in serious crimes.
"A plea in California is not final until the time of sentencing, so nothing that has been done cannot be undone at this point," Terrible said.
Luz's defense lawyer, Deputy Public Defender Kristine Burk, argued the contrary, saying Terrible and her clients had no standing to intervene in the sentencing beyond their right to address the court during the hearing.
She said it was the judge who indicated he intended to sentence Luz to probation during a hearing four days before he changed his plea to "no contest," and said a pre-sentencing report produced by the Sonoma County Probation Department agreed probation was an appropriate disposition.
"I don't think that Marsy's Law confers upon anyone the right or the remedy to interfere with and undo a plea agreement that was lawfully achieved in court," Burk said.
Luz, an Alameda resident, was arrested Aug. 10 in the parking lot at Cook Middle School after agreeing to meet the victim, then 13, so he could help her run away from home.
The girl said they had until then been in virtually daily telephone contact after meeting on an adults-only chat line in April or May and exchanging phone numbers.
The teen said she told Luz in the first week that she was only 13, but they engaged in extensive phone sex during the ensuing months that included role-playing and masturbation, though there was no evidence he ever actually touched her.
Then-Deputy District Attorney Rosanne Darling, who initially prosecuted the case as leader of the sexual assault team, submitted a declaration on behalf of the victim and her mother supporting their bid to nullify the plea deal.
Darling wrote that she never contemplated probation as an appropriate resolution to the case and, in fact, charged Luz with special allegations that precluded any outcome but state prison.