- Published on Monday, 18 February 2013 16:18
- Written by David Greenwald
This story first appeared in the the Davis Vanguard
It was one of the more controversial cases that the Vanguard has covered, where a Yolo County Jury found Michael Artz, a graduate of Davis High School, not guilty of forced oral copulation in a case involving another Davis High Student who was 16 at the time.
However, they did find him guilty of two felonies, oral copulation with a person under 18 and contact and communication with a minor with the intent to have sexual relations. Ultimately, Mr. Artz was ordered to undergo counseling and spent six months in the Yolo County Jail.
Mr. Artz was found guilty of PC section 288a(b)(1), non-forcible oral copulation with a person under 18 years of age and of contacting or communicating with a minor in violation of PC section 288.3(a).
In addition to the jail time, Mr. Artz was required to comply with mandatory registration as a sex offender pursuant to PC section 290 et al.
The appellate court yesterday issued forth a ruling that reverses Mr. Artz' conviction under PC section 288.3, subdivision (a).
The court writes, "Defendant argues his equal protection rights were violated because section 288.3 makes it a crime to contact a minor with the intent to commit non-forcible oral copulation, but does not make it a crime to contact a minor with the intent to commit non-forcible unlawful sexual intercourse."
The court writes, "The People concede this argument, and we shall accept the concession. The equal protection violation also affects defendant's mandatory sex offender registration requirement for count 2, non-forcible oral copulation with a minor."
According to the opinion filed by the Third Appellate District Court of Appeals, Michael Artz, 18 at the time, invited the 16-year-old to a party at his house. However, when she arrived there was no one else there. She would eventually orally copulate Mr. Artz while he took photos.
Writes the court, "On May 18, 2009, defendant contacted YM on Facebook and told her he would keep her secret that she had a girlfriend if she would orally copulate him again. Defendant contacted YM a couple of days later and wanted to know if she had thought about the deal he had proposed. He continued to text and call YM, threatening to release the pictures he had taken if she did not agree to meet him. YM went to the police."
The victim made two pretext calls to the defendant where she "asked to buy the photos from defendant, but he said he wanted her to do "what we did last time." When YM pressed him to specify exactly what he wanted he said, 'Sex.' "
In a second call, the victim said that she did not want to have sex with him, "and asked if there were any other way to get the pictures he had of her. He told her he could not think of any other way. They arranged that he would pick her up at her house after school the next day (May 27, 2009). Defendant was apprehended as he neared YM's house."
The Vanguard covered this case more than a dozen times due to the lengthy sentencing hearing process and a controversy involving the DA's press release that received regional attention, (key articles: August 30, 2010, August 31, 2010, June 11, 2011).
The defense conceded the second count of statutory rape.
"Count two is a statutory rape charge which means an 18-year-old boy had sex with a 16-year-old girl. The jury had no choice but to convict him of that and they said so - the jurors I talked to said so," Defense Attorney Katheryn Druliner told the Vanguard in August 2011. "The ones I talked to said they really felt bad about that. They had no choice but to convict him of that, and I'm not that concerned about that. Because it is stat-rape and it's not registrable under Megan's Law."
Ms. Druliner was more concerned with count three, which also carried with it lifetime sex offender status.
"Count three, which they also had no choice about because it's statutory, is the one I'm concerned about because that one carries a lifetime registration as a sex offender," Ms. Druliner told the Vanguard. "Of course I could not tell the jury that it carries a lifetime registration as a sex offender, but the jurors I talked to said they figured it did. But they also felt they couldn't do anything about it because it was a statutory requirement. Once they determined that he had contact with her and he fulfilled the other requirements of the statute - which he did."
According to the jury instructions on Count 3, to prove 288.3, he had to contact a minor in this case with the intent to orally copulate. To prove that, they had to show both that he he contacted or communicated with a minor, and that he intended to commit 288a(b)(1), oral copulation with a minor, and that he knew or reasonably should have known that the person was a minor.
"The important thing about count three is it's unconstitutional and it will be reversed on appeal," Ms. Druliner explained. "It was enacted three years ago by initiative. It never went through the legislature. It was never vetted by any legislature in California. It's my understanding that California is the only state that can put an initiative directly on the ballot by the people without running it through the legislature."
As we noted in June 2011, Ms. Druliner argues that there is insufficient evidence with respect to the third count. She cites the fact that Mr. Artz never got closer than 800 feet from the alleged victim's door and that we do not know that he would have acted upon their discussion.
As Ms. Druliner notes, he "could have changed his mind, abandoned the plan, she could have said no and he, having no weapon or photos, would have had to use physical force at her front door - something that is beyond speculation based on the evidence."
It should be noted that the idea of the exchange of photos for sex was first proposed by the victim, under the direction of the police, suggesting the possibility of entrapment.
Ms. Druliner argued that the statute itself, which was passed by the voters following the highly publicized series on NBC Dateline "To Catch a Predator," is unconstitutional "on its face" as it "attempts to criminalize communication, not action."
The court notes a 2006 case in which "the defendant, who was 22, pleaded guilty to oral copulation with a person under the age of 18. He challenged the requirement that he register as a sex offender, claiming it violated equal protection because he would not have been subject to mandatory registration had he been convicted of unlawful sexual intercourse with a minor under section 261.5."
The court in that case observed, "Apart from the mandatory lifetime registration requirement, voluntary sexual acts between a 22-year-old and a 16-year-old -- whether oral copulation or sexual intercourse -- are treated identically."
They add, "The only difference between the two offenses is the nature of the sexual act. Thus, persons convicted of oral copulation with minors and persons convicted of sexual intercourse with minors 'are sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment.' "
The court rules, "Consequently, section 288.3 is unconstitutional as applied to a defendant who contacts a minor with the intent of accomplishing non-forcible oral copulation."
The Appellate Court here notes, "In this case, it is impossible to tell whether the jury convicted defendant on count 3 because it found he contacted the victim with the intent to commit rape or with the intent to engage in oral copulation." The court adds, "The jury was not instructed to specify defendant's intent in committing the crime, and it did not do so."
This was, in fact, a key dispute between the defense, the DA and ultimately Judge Mock.
The court writes, "Because it is unclear which theory the jury used to convict defendant, we must reverse." They note: "[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand."
The court adds, "In a case such as this we cannot affirm the conviction unless we conclude beyond a reasonable doubt that the jury based its verdict on a legally valid theory."
They write, "That means that we can sustain the conviction only if the verdict rested on the theory that defendant contacted YM with the intent to rape her. Because we cannot conclude beyond a reasonable doubt that the jury relied on that valid theory in finding defendant guilty, the conviction in count 3 must be reversed."
However, Mr. Artz is not completely off the hook. The defendant argues that "he should not be subject to mandatory registration for his count 2 conviction pursuant to section 288a, subdivision (b)(1), non-forcible oral copulation with a minor."
The court notes, "The People concede that the mandatory registration requirement cannot stand, but argue this court should adopt the remedy employed in Hofsheier and remand the case to the trial court to determine whether defendant is subject to discretionary registration pursuant to section 290.006."
The court decides to follow that precedent and remands for the court to decide in its discretion whether to impose a registration requirement on defendant for count 2.
That is unfortunate for Mr. Artz because Judge Mock actually showed a good deal of prejudice toward him and his attorney (see story where the Vanguard chronicled Judge Mock's conduct during this trial).
In the appellate brief, Ms. Druliner argued that Judge Mock showed prejudice against herself and her client.
She alleged, as we have noted, "Unequal and unfair treatment of parties, court acting as advocate for prosecution during trial including but not limited to: making objections, granting objections without grounds having been stated, limiting closing argument of defense attorney after evening recess when defense attorney had outlined her argument and argued for approximately 1.5 hours."
She goes on to say, "The prosecutor had previously asked the court if the court intended to impose limits on counsel during arguments and the court said, 'I never do.' And then words to the effect of 'One time, we had to sit here for 10 hours and suffer through the arguments of an attorney ...' "
However, the next morning, "The court told counsel as she was standing at the podium waiting for the jury to enter the courtroom, 'Counsel you have one hour to finish your closing argument.' (This belies the fact that the court and counsel had agreed the afternoon before that this was all that was needed)."
During the trial we had noted the treatment the defense attorney had received from Judge Mock, who at various times yelled at her in front of the jury.
Wrote Ms. Druliner, "Court treating defense attorney in hostile manner, raising its voice in angry manner in the presence of the jury and not allowing the defense attorney to approach to make its offer of proof."
Judge Mock also sided with the prosecutor on the critical issue of whether the third count conviction was based on force or voluntary sexual contact.
The appellate court continued, noting that the defense argues, "His felony punishment for the convictions in counts 2 and 3 violated equal protection. The People concede the issue. We agree as to count 2, and need not address the argument as to count 3 because we are reversing that count."
"Defendant's conviction was treated as a felony," the court writes. "By contrast, non-forcible sexual intercourse with a minor in violation section 261.5 where, as here, the perpetrator is no more than three years older than the minor is a misdemeanor."
The court therefore rules, that the conviction in count two should be reduced to a misdemeanor.
---David M. Greenwald reporting for the Davis Vanguard