Criminal
Aug. 14, 2002
Live-In Sex Molester Not Family
SAN FRANCISCO - A man who is not related to four young girls whom he molested but served as the "functional equivalent" of a grandfather cannot qualify for a lenient probation sentence, the California Supreme Court ruled Monday.
In a unanimous decision, the high court held that probation is an option only for family and household members convicted of child molestation. People v. Wutkze, 2002 DJDAR 9129.
The ruling means that a convicted molester, affectionately known to his victims as "Grandpa" and "Papa Jim," must serve a sentence of 15 years to life in prison.
The defendant, James B. Wutzke, was accused by four granddaughters of his live-in girlfriend of fondling them under their clothing while they visited on weekends and during vacations.
Wutzke was convicted of four counts of committing lewd acts and sentenced by a San Diego County Superior Court judge to four concurrent terms to 15 years to life under the state's one-strike sex offense law.
Wutzke's argument that he qualified for probation under a loose definition of "relative" did not fly with Judge Wesley R. Mason III, but it had won him a reversal by the 4th District Court of Appeal in San Diego.
In 2000, the three-judge appellate panel held that probation was appropriate because Wutkze had a quasi-familial relationship with his girlfriend, Ruth, for nearly 20 years, had known the victims all their lives, had assumed the role of a paternal grandfather and had established a position of trust in the family. In its partially published opinion, the panel concluded that under a broad construction of the term "relative," Wutkze fell within the terms of Penal Code Section 1203.66 (c)(1).
The probation option was enacted by the Legislature in 1981 to address the problem that putting incest perpetrators in prison breaks up families. The law was written to include both blood relatives and others who, by dint of living in the same household, would have established close emotional ties with their victims. The statute states that in order to be eligible for probation, the defendant must be "a relative or ... a member of the victim's household who has lived in the victim's household."
Analyzing the case in the context of statutory construction and case law, the Supreme Court concluded that the Legislature intended a narrow reading of the statute.
Writing for the court, Justice Marvin Baxter rejected the defendant's claim that he should be treated as if he had married into the family.
"Expanding the definition of 'relative' to include molesters who claim nothing more than an emotional bond with the victim defies common usage, and contravenes the history of the applicable sentencing schemes," Baxter wrote. "Such a construction of 'relative' in Section 1203.066(c)(1) would also swallow the adjacent 'household member' provision, which was clearly intended as the catchall for 'nontraditional and quasi-familial."'
Baxter also rejected the contention that his reading of the statute undermines the Legislature's aim of encouraging young victims and other loved ones to break the silence concerning household sexual abuse.
"The pressures that might otherwise cause a victim to shun disclosure - damage to the family name, loss of the family breadwinner, and disruption in living arrangements and marital relationships - are either missing or muted where the defendant is neither a 'relative' nor a 'household member' under Section 1203.066(c)(1)," he wrote. "In addition, surrogate or quasi-relatives are in a unique position to 'attach' themselves to families with young children for an improper sexual purpose."
Deputy Attorney General Meagan J. Beale called Monday's ruling a triumph for common sense, although she said the circumstances of the case are not likely to crop up in many more prosecutions.
"To me, it seemed that the Court of Appeal ruling didn't really conform with the statute, and I thought the trial court ruling was a more fair and reasonable reading, as confirmed by the Supreme Court," she said.
Wutzke's appellate attorney, Cynthia Sorman of San Diego, could not be reached for comment Monday.
Peter Blumberg
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