A top-ranking prosecutor with the Sonoma County District Attorney's Office said in court Thursday that her office still contemplated seeking a 10-year prison sentence in a child molestation case despite agreeing to a plea bargain that would permit probation.
Assistant District Attorney Christine Cook said the resulting distress for the 14-year-old victim and her family stemmed from a "misunderstanding" in communication over potential outcomes of the negotiated plea, which resulted in the defendant's release from jail and the possibility he would escape prison altogether.
There was no shortage of regret over the disarray that now exists in the case, which had been scheduled for sentencing Thursday but was, instead, put on hold until the court could determine if the negotiated plea deal should, or even could, be set aside as the victim requests.
In the meantime, Chief Deputy Public Defender Kristine Burk said she planned to try to bring the state Attorney General's Office in on the case. She said the District Attorney's Office should be recused from the case, given that members of the staff would now be witnesses in the matter involving the disputed plea bargain and had, in effect, joined with the victim to "wiggle out of a contract they got into."
Even as he stood by the June 25 agreement that allowed defendant Arnold M. Luz to leave jail with the promise of probation, Superior Court Judge Gary Medvigy repeatedly expressed unhappiness with whatever omissions left the young victim feeling betrayed.
"This miscommunication should never have occurred with the victim," Medvigy said. "This should never have happened."
The judge also rued the resulting uncertainty for Luz, 46, who, in what Medvigy termed an extremely "novel" case, pleaded guilty to serious criminal offenses without ever having laid a hand on his victim.
"This is a roller coaster for him, too," Burk said of her client, noting that, even with her legal training, recent developments have thrust her into "uncharted territory."
The victim and her mother have petitioned the judge to withdraw his acceptance of Luz's plea on grounds it violates their state constitutional rights as victims under Marsy's Law, a state law that, among other provisions, guarantees victims the right to be notified and heard at critical stages in all criminal cases.
They contend prosecutors told them of the intention to negotiate a plea last June, but only one that would result in prison time for Luz, even though one prosecutor in the room, Chief Deputy Bill Brockley, already had agreed three days earlier to strike special allegations excluding probation and knew the judge intended to grant probation in the case.
The girl and her mother decided against attending court the next day only to read in a newspaper story that Luz was being set free from jail with no further incarceration likely. They missed, they said, an opportunity to voice their displeasure.
The judge's willingness to hear arguments on their motion to nullify the plea, scheduled for Oct. 7, is at least "forward progress," the victim's mother said Thursday.
"The plea was not vacated today, but he was not sentenced today," her attorney, Amy Terrible, said. "Everybody hit pause, and that's a step in the right direction. People are listening."
Luz at one point faced more than two decades in prison if convicted on multiple felony counts of molesting the then-13-year-old girl, with whom he repeatedly engaged in phone sex, authorities said.
The girl testified at a preliminary hearing to near daily communication with him, sometimes several times a day, between the time they met on an adults-only chat line in April or May of last year and his Aug. 10 arrest.
She said she told Luz her real age within the first week of their communications but they continued to talk about sex, role play and masturbate.
But a year ago, after one such episode, the teen called Luz in tears and he agreed to meet her in the parking lot at Cook Middle School to help her run away, according to court testimony.
A bystander to that conversation, Wendy Martin—Miller, agreed to give him directions by phone but quickly became suspicious. She alerted police, who found Luz in the school parking lot with the girl, authorities said.
Former prosecutor Rosanne Darling, who handled the case until May, said Luz did not need to have touched the girl to be charged with child molestation.
After a preliminary hearing in November, he faced trial on 10 felony counts and two special allegations that would have prohibited a judge from giving him probation. If convicted on all charges, he faced a maximum 26-year sentence.
But Darling went on medical leave in May and had not returned to work when the case was scheduled for trial in June, she said in a court declaration.
The day she returned, she met with the victim, her mother and a victim advocate to explain plans to negotiate an agreement wherein Luz would plead to two or three molestation counts and still earn state prison time. At the time, special allegations lodged against him would have excluded probation as an option.
She said Brockley was present and never disclosed that a very different deal already had been reached and would potentially result in probation for Luz.
Still unexplained is Brockley's apparent belief that the victim did not want to testify at trial, as he noted in the departmental attorney's notes, according to Darling. Martin-Miller, who voiced discontent with the outcome of the plea negotaitions, said Brockley told her the victim and her mother supported the plea deal because the girl did not want to testify — all untrue, they and their advocates said Thursday.
District Attorney Jill Ravitch said Brockley negotiated the plea with the understanding that he could still argue in favor of the maximum 10-year prison term, even after Medvigy put on the record his intention to grant probation barring new information he hadn't received yet.
Medvigy agreed that he would still consider any relevant criminal history, Luz's willingness to accept responsibility for his conduct, the report of a court-appointed psychologist, and hear arguments before pronouncing a final sentence, however, Ravitch and Assistant District Attorney Christine Cook said.
Had Brockley successfully argued for state prison time, Luz would have had the right to withdraw his no contest plea.
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