People v. Navarrette-Herrera

2019 IL App (2d) 170691-U

• Court: Appellate Court of Illinois
• Decided: November 13, 2019
• Docket: 2-17-0691
• Status: Unpublished

Opinion

2019 IL App (2d) 170691-U No. 2-17-0691 Order filed November 13, 2019

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 16-CF-2000 ) ASAEL NAVARRETTE-HERRERA, ) Honorable ) Daniel B. Shanes, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Presiding Justice Birkett and Justice Burke concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in sentencing defendant to a total of 30 years’ imprisonment for various sex offenses: defendant’s expressions of remorse were not strong, the lack of physical harm to the victim was unremarkable given the nature of the offenses, and his lack of a prior record was outweighed by his pattern of abuse of the victim.

¶2 After a bench trial, defendant, Asael Navarrette-Herrera, was convicted of two counts of

criminal sexual assault (720 ILCS 5/11-1.20(a)(3) (West 2016)), two counts of aggravated criminal

sexual abuse (id. § 11-1.60(d)), and one count of child pornography (id. § 20.1(a)(4)). The trial

court sentenced defendant to consecutive 10-year prison terms for criminal sexual assault; 2019 IL App (2d) 170691-U

concurrent 6-year prison terms for aggravated criminal sexual abuse, to be served consecutively

to the other sentences; and a 4-year prison term for child pornography, to be served consecutively

to the foregoing sentences. Thus, the aggregate prison term was 30 years. The court denied

defendant’s motion to reconsider his sentences, and he timely appealed. On appeal, defendant

contends that his sentences are excessive. We affirm.

¶3 I. BACKGROUND

¶4 The State filed an 18-count indictment against defendant. Counts I-XV charged criminal

sexual assault based on five separate acts, with three theories for each act. Each count alleged that

defendant inserted his penis into the mouth of his minor stepdaughter, P.C.H. Counts XVI and

XVII alleged that he committed aggravated criminal sexual abuse by touching the breasts and

vagina, respectively, of P.C.H. Count XVIII alleged that he committed child pornography by

knowingly soliciting her to appear in a photograph or other visual medium involving a lewd

exhibition.

¶5 We summarize the pertinent trial evidence. P.C.H. testified as follows. She was born

January 16, 2001. Defendant was her stepfather. She resided with her mother and little brother,

but defendant had not lived with them since 2016.

¶6 P.C.H. testified that she had had several instances of sexual contact with defendant. She

had touched his penis with her mouth. He had touched her breasts and vagina over her clothing

about five times; sometimes he touched her breasts or her vagina, and sometimes both.

¶7 P.C.H. described one time that defendant put his penis into her mouth. The date was July

13 or 14, 2016. 1 She entered his bedroom and sat in the corner. She was fully clothed. Defendant

1 According to other evidence at trial, the video was recorded July 12, 2016.

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was wearing a shirt and shorts. P.C.H. carried an iPad. She did so at the request of her friend Jose,

who wanted her to take a video so that defendant would go to jail. Because defendant had

previously touched her private parts, P.C.H. believed that he would “accept” oral sex. As P.C.H.

sat on the bed, she started hugging defendant and he started hugging her. He pulled down his

shorts, and she put her mouth over his penis. At this point, unbeknownst to defendant, she started

the videotaping. Her mouth was on his penis for almost a minute. During the encounter, she told

him that they should not be doing this; then she pushed him away and left the room. She then sent

Jose the video.

¶8 The court admitted the video into evidence and played it. We shall describe the video in

our discussion of the issue on appeal.

¶9 P.C.H. testified about the other times that defendant had touched her sexually. The first

was when she was nearly 15. She was in bed. Defendant entered and grabbed her, then touched

her breast. The second time was when they were in Florida; he touched her breasts and vagina

several times. The third time, as they were on their living room couch playing a game on his cell

phone, he grabbed her vagina; she moved away. The fourth time was about a month before her

fifteenth birthday. She was home on vacation. After her mother had left to take her brother to

school, defendant entered her room and touched her breast. The fifth time was during the incident

of July 13 or 14, 2016, when, in addition to having her perform oral sex on him, defendant touched

her breasts and vagina. Once, when the family was in Chicago, defendant tried to kiss her.

¶ 10 P.C.H. testified that on July 25, 2016, she spoke to Lynn Aladeen at the Children’s

Advocacy Center. The court played a videotape of the interview. In the interview, P.C.H.

described the incident that she videotaped earlier that month. She also told Aladeen that she had

put defendant’s penis into her mouth more than 10 times. All were during her freshman year, with

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the videotaped incident being the final one. Asked whether she recalled the dates of any of the

other incidents, P.C.H. said that one occurred on July 4, 2016. She told Aladeen that, before she

started her freshman year, defendant had limited himself to touching her breasts and vagina. At

some point, when they were in Chicago, defendant asked her to kiss him, but she refused.

¶ 11 P.C.H. told Aladeen that, about eight months before the interview, defendant asked her to

take a picture of her vagina and send it to him. She refused his request and numerous similar ones

thereafter. Also, about eight months before the interview, defendant showed her an explicit video

on his phone and told her that he wanted them to act like the people in the video.

¶ 12 P.C.H. testified that in 2017 she spoke to defendant’s lawyers and wrote a statement saying

that defendant put his penis into her mouth only once and touched her sexually only twice. She

also admitted to the lawyers that she had lied to Aladeen about these matters.

¶ 13 Irma Fierros, a community service officer with the Vernon Hills police department,

testified that on July 25, 2016, she assisted Adam Boyd, a police detective, in interviewing

defendant. The interview was recorded. Defendant spoke primarily in Spanish, and Fierros

translated. At the end of the interview, defendant wrote a statement, which Fierros translated. The

court admitted the translated statement into evidence.

¶ 14 Boyd testified as follows. In mid-July 2016, Boyd received the videotape of P.C.H. and

defendant and copied it. He then visited P.C.H.’s home and drove her to the Children’s Advocacy

Center. There, he watched Aladeen’s interview of P.C.H. Next, Boyd drove back to the home,

where he spoke to defendant. Later that day, he interviewed defendant at the station, with Fierros

translating.

¶ 15 Boyd testified that, in the interview, defendant initially denied that he had had any

inappropriate contact with P.C.H. Eventually, he said that, in the videotaped July 2016 incident,

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she came on to him sexually. He said that she entered the room and began to put his penis into her

mouth, but he immediately rebuffed her and told her not to do that type of thing. Boyd described

the acts depicted in the video and asked defendant whether there had ever been an encounter that

matched that description. Defendant said no. Boyd then played the video for defendant.

Defendant identified himself and P.C.H. in the video. He said that she had come on to him sexually

and that he had weakened and given in.

¶ 16 Boyd testified that he told defendant that he knew he had had P.C.H. perform oral sex on

him 10 times. Defendant responded that he had put his penis into her mouth about five times. He

said that he never forced her; she always approached him. He described her as very willing and

sexually curious. Defendant said that these encounters began when she was approximately 14. He

said that he once asked P.C.H. to send him a picture of her naked but that she did not do it. He

admitted that he had touched her breasts and vagina before.

¶ 17 Boyd testified that he replayed the video. He pointed out that P.C.H. was saying no and

gagging, and he asked defendant whether that indicated that she was not a willing participant.

Defendant “didn’t really have much of a response.” After the interview ended, defendant wrote

out a statement. The court admitted a recording of the interview and played it.

¶ 18 We note further the following about the videotaped interview. Boyd pressed defendant

several times on whether he could recall the dates of the incidents, other than the videotaped one,

on which P.C.H. performed oral sex on him. Boyd mentioned July 4, 2016, specifically.

Defendant did not recall any such thing happening on July 4, 2016, and he did not give any specific

dates for any incidents. He did recall one incident occurring in his car and another in the cellar of

their home. Shown the video of the last incident, defendant admitted that he pushed P.C.H.’s head

forward to force his penis into her mouth and that she said “no” three times.

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¶ 19 The court admitted a copy of defendant’s statement, as translated by Fierros. It said that

he “want[ed] to confess” that he had “sexually offended” P.C.H. for a year, during which they

kissed, had oral sex, and hugged. He asked forgiveness from his wife, his children, and his family,

and he wrote, “I [accept] responsibility.”

¶ 20 The State rested. Defendant put on no evidence.

¶ 21 The court found defendant guilty of two counts of aggravated criminal sexual abuse (one

for touching the breasts, the other for touching the vagina); six counts of criminal sexual assault,

based on two separate acts (the videotaped incident and the July 4, 2016, incident); and one count

of child pornography (based on defendant’s admission that he solicited an explicit photograph of

P.C.H.). The court entered judgment on two of the counts of criminal sexual assault and the

remaining three counts.

¶ 22 The cause proceeded to sentencing. The presentencing investigation report (PSIR)

revealed that defendant had no juvenile adjudications, criminal convictions, or other pending

charges. He had married his current wife in 2015, and they had one child together. Defendant

owned and operated a cleaning company.

¶ 23 At the sentencing hearing, defendant spoke in allocution. In his statement (as translated),

he asked forgiveness from his wife and family. He added, “So—and what happened, it came out

of my hands. Nobody’s perfect. We all make mistakes.”

¶ 24 The State requested that the court impose an aggregate sentence of 40 years or more. The

State noted that the sentence for child pornography was mandatorily consecutive, as were those

for criminal sexual assault. The State argued that defendant had not accepted the blame for his

offenses but had shifted the blame to the child, who had been under his supervision and authority.

Moreover, the videotaped sexual assault had not been her choice: the tape showed her crying and

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gagging as defendant forced his penis into her mouth. Further, she was facing long-term effects

from the pressure that she had been under in reporting and pursuing the charges.

¶ 25 Defendant requested an aggregate sentence of 15 to 18 years. He argued that he had

admitted his wrongdoing and shown remorse for his acts. Moreover, he had no prior offenses or

adjudications and he had had no disciplinary problems in jail.

¶ 26 The trial court stated as follows. In mitigation, defendant had no prior record. His

employment history and good behavior in jail were also to his credit. However, the court disagreed

with defendant’s characterization of his offenses. Addressing him, the court stated, “You told me

nobody’s perfect, we all make mistakes. Certainly that is true, but a person can be far, far, far

from perfect before his penis ends up in his step-daughter’s mouth. That’s not just a mistake.

What you did *** violated the law—violated her body, her spirit, and her soul.” Defendant’s acts

had not been induced by P.C.H.; they were “100 percent on [defendant].”

¶ 27 Further, the court stated, defendant’s acts were not the result of circumstances that were

unlikely to recur, and it could not be said that his character and attitude indicated that he was

unlikely to commit further offenses. Clearly, defendant’s offenses were not isolated incidents. He

had started with fondling the victim and progressed to sexual penetration.

¶ 28 The court sentenced defendant to consecutive 10-year prison terms for criminal sexual

assault; two 6-year terms for aggravated criminal sexual abuse, to run concurrently to each other

but consecutively to the remaining sentences; and 4 years for child pornography, to run

consecutively to the other sentences. Thus, the aggregate term was 30 years.

¶ 29 Defendant moved to reconsider his sentences, contending primarily that the court had

placed too little weight on the mitigating circumstances of his offenses, such as the lack of physical

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harm to the victim and the degree to which his acts were facilitated by her. The court denied the

motion. Defendant timely appealed.

¶ 30 II. ANALYSIS

¶ 31 Defendant’s sole contention on appeal is that the trial court abused its discretion in

sentencing him to a total of 30 years’ imprisonment. Defendant notes that the sentencing range

for criminal sexual assault, a Class 1 felony (see 720 ILCS 5/11-1.20(b)(1) (West 2016)), is 4 to

15 years (see 730 ILCS 5/5-4.5-30(a) (West 2016)) and that the range for aggravated criminal

sexual abuse, a Class 2 felony (see 720 ILCS 11-1.60(g) (West 2016)), is 3 to 7 years (see 730

ILCS 5/5-4.5-35(a) (West 2016)). Thus, his sentences for these offenses are closer to the

maximums than to the minimums. Defendant concedes that his sentence for child pornography,

a Class 1 felony (see 720 ILCS 5/11-20.1(c) (West 2016)), was the minimum, but he notes that it

must be served consecutively to the other sentences.

¶ 32 Defendant argues that the aggregate term of 30 years is excessive in view of several

significant factors in mitigation. These include his acceptance of responsibility and expressions

of remorse for his actions; the fact that his conduct did not cause or threaten serious physical harm

to the victim; his lack of a prior criminal or juvenile record; and his good behavior while he was

in jail. For the following reasons, we conclude that the sentences must stand.

¶ 33 A trial court’s sentencing decisions are entitled to great deference on review, and we may

not disturb a sentence that is within the statutory range unless the court abused its discretion.

People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). A sentence may not be deemed an abuse of

discretion unless it is greatly at variance with the spirit and purpose of the law or manifestly

disproportionate to the nature of the offense. Id. at 210. We may not disturb a sentence merely

because we would have balanced the factors in aggravation and mitigation differently. Id. at 209.

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¶ 34 Here, in essence, defendant requests that we reweigh the sentencing factors and assign

greater force to several that favor him. However, we decline to do so, especially as defendant’s

treatment of these factors is unpersuasive.

¶ 35 On the first factor in mitigation, his remorse and acceptance of responsibility, defendant’s

discussion is highly selective. First, although he notes his expressions of regret to Boyd in the

interview and to the trial court in his allocution, he ignores important aspects of both of these

encounters. During the interview, and immediately afterward, defendant did express regret. But

this was only after he first denied that he had engaged in any sexual conduct with P.C.H.—an

admitted lie—and next claimed that she had initiated the encounters, including the one that was

captured on the video, and participated in them willingly—another lie. When Boyd showed him

the video and noted that it proved that P.C.H. had been coerced and traumatized, defendant could

not avoid reality any longer. Only after exhausting his potential for denial and minimization did

defendant adopt a penitent spirit.

¶ 36 Defendant’s statement in allocution was, if anything, even worse. Although he did ask his

family for forgiveness, he also said, “what happened, it came out of my hands. Nobody’s perfect.

We all make mistakes.” There could hardly be a more blatant attempt to minimize the seriousness

of an offense (or here multiple ones) than uttering such dismissive and inappropriate banalities.

The trial court recognized this and reasonably considered defendant’s attitude toward his offenses

as scarcely if at all mitigating.

¶ 37 Defendant’s argument that his offenses did not cause the victim physical harm appears to

be true, but it proves little. Sexually abusing minors does not usually cause great bodily harm but

the trial court here properly considered the severe psychological harm that defendant’s repeated

mistreatment of his minor stepdaughter caused her. This harm was evident in the videotape of

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the second criminal sexual assault. It showed not only that defendant initiated the act against her

will but that he forced her by standing over her, pushing her head down, and persisting in forcing

his penis into her mouth even as she cried, gagged, and repeatedly tried to tell him to stop. Further,

in the recording of Aladeen’s interview of P.C.H., the minor’s trauma is shown by her demeanor,

including crying at several points.

¶ 38 Defendant correctly notes that he had no prior record and no disciplinary problems while

he was in jail. But the trial court duly noted these factors and gave them some weight in its

decision. The court was not required to give these considerations more weight than it gave the

seriousness of defendant’s conduct. See People v. Hernandez, 204 Ill. App. 3d 732, 740 (1990)

(most important sentencing factor is the seriousness of the offense). In this regard, it is important

to observe that the court rightly considered that defendant’s mistreatment of his stepdaughter was

both long-standing and recurrent. By his own admission to Boyd, he committed several criminal

sexual assaults for which he did not incur convictions, and these took place over the course of

approximately one year before he committed the two offenses for which he was actually punished.

Moreover, by his admission and P.C.H.’s testimony and out-of-court statements, defendant

committed numerous acts of sexual abuse against her, dating back even further, and made at least

one other unwanted sexual advance when he insisted that he kiss her.

¶ 39 Summing up, we cannot say that defendant’s sentences were manifestly at variance with

the spirit and purpose of the law, grossly disproportionate to the nature of his offenses, or

insufficiently considerate of his questionable remorse or rehabilitative potential. Therefore, we

decline to disturb them.

¶ 40 III. CONCLUSION

¶ 41 We affirm the judgment of the circuit court of Lake County.

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¶ 42 Affirmed.

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