Jose Alfredo Galindo v. State of Alaska ( 2021 )

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSE ALFREDO GALINDO,
Court of Appeals No. A-12870
Appellant, Trial Court No. 4FA-13-03428 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2690 — January 29, 2021
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Paul R. Lyle, Judge.
Appearances: Sharon Barr, Assistant Public Defender, and Beth
Goldstein, Acting Public Defender, Anchorage, for the
Appellant. Diane L. Wendlandt, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge WOLLENBERG.
Following a jury trial, Jose Alfredo Galindo was convicted of first-degree
sexual assault for penetrating J.C.’s vagina with a plastic bottle without her consent and
second-degree criminal trespass for unlawfully entering a building after the incident in
an attempt to avoid the police.1 Galindo now appeals his conviction and sentence, and
he challenges several conditions of his probation.
Why we conclude that there was sufficient evidence to support Galindo’s
conviction for first-degree sexual assault
Galindo first argues that there was insufficient evidence presented at trial
to convict him of first-degree sexual assault. To prove this charge, the State was required
to establish that (1) Galindo knowingly engaged in an act of sexual penetration of J.C.,
(2) that the sexual penetration was “without consent,” as that phrase is defined in
AS 11.41.470(8)(A), and (3) that Galindo recklessly disregarded J.C.’s lack of consent.2
On appeal, Galindo asserts that the State failed to prove that the penetration
was without J.C.’s consent and that Galindo recklessly disregarded J.C.’s lack of
consent. Galindo and J.C. had a prior dating and sexual relationship, and at trial, Galindo
argued that the act of sexual penetration was consensual. Galindo argues that J.C. was
not a credible witness and that her statements were either inconsistent or not believable.
But when this Court reviews the sufficiency of the evidence to support a
conviction, we do not weigh the credibility of witnesses, as witness credibility is
exclusively a question for the jury.3 Rather, we view the evidence, and all reasonable
1
AS 11.41.410(a)(1) and AS 11.46.330(a)(1), respectively.
2
AS 11.41.410(a)(1); AS 11.41.470(8)(A) (providing that an act of sexual penetration
is “without consent” if “a person[,] with or without resisting, is coerced by the use of force
against a person or property, or by the express or implied threat of death, imminent physical
injury, or kidnapping”); see also Inga v. State, 440 P.3d 345, 349 (Alaska App. 2019) (“[T]o
establish that sexual activity occurred without consent, the State must prove that the victim
was not willing to engage in the sexual activity, and that the victim was coerced by force or
by the threat of force.”).
3
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009) (citing Ratliff v. State, 798
(continued...)
–2– 2690
inferences from that evidence, in the light most favorable to upholding the jury’s verdict.
We then ask whether a reasonable juror could have concluded that the State had proved
its case beyond a reasonable doubt.4
Viewing the evidence, including J.C.’s testimony, in the light most
favorable to upholding the jury’s verdict, we conclude that there was sufficient evidence
to support Galindo’s conviction. J.C. gave a detailed description of the alleged assault.
She testified that Galindo forced her down on a bed and positioned himself on top of her
while he inserted something cold into her vagina. According to J.C., she jerked herself
up and looked down to discover that Galindo had shoved a plastic bottle into her vagina.
J.C. started yelling at Galindo, threw the bottle across the room, jumped off the bed, and
grabbed her clothes. J.C. then left the room and ran down the stairs, screaming for help.
A third-party witness who was sleeping downstairs testified that he awoke
to J.C.’s screaming and her footsteps on the stairs. When J.C. got downstairs, she was
agitated and distressed and stated that Galindo had “raped her with a bottle.” J.C. called
911, and when the police responded, she showed them the bottle that Galindo had used
to penetrate her. Later, in multiple calls to J.C. from the jail, Galindo admitted to
assaulting J.C., repeatedly apologized to her, and tried to convince her not to testify.
Given this evidence, a reasonable juror could conclude beyond a reasonable
doubt that Galindo penetrated J.C. without consent, and that Galindo recklessly
disregarded J.C.’s lack of consent. We therefore reject Galindo’s claim of insufficient
evidence, and we affirm Galindo’s conviction.
3
(...continued)
P.2d 1288, 1291 (Alaska App. 1990)); Daniels v. State, 767 P.2d 1163, 1167 (Alaska App.
1989).
4
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Johnson v. State, 188
P.3d 700, 702 (Alaska App. 2008).
–3– 2690
Why we reject Galindo’s excessive sentence claim
As a first felony offender, Galindo was subject to a presumptive sentence
of 20 to 30 years for his first-degree sexual assault conviction.5 Because the jury found
an aggravating factor — that Galindo had committed a crime against a person with whom
he had a dating relationship or sexual relationship6 — the court had the authority to
sentence Galindo up to the maximum sentence of 99 years.7 Galindo faced a maximum
sentence of 10 days for the second-degree criminal trespass conviction.8
The court sentenced Galindo to 35 years with 7 years suspended for the
first-degree sexual assault and 10 days for the second-degree criminal trespass, with the
sentences to be served concurrently — a composite sentence of 35 years with 7 years
suspended (28 years to serve).
Galindo now appeals his sentence as excessive. Galindo challenges the
superior court’s findings that he had a low likelihood of rehabilitation and needed a
significant period of isolation based on his seven prior misdemeanor domestic violence
convictions and multiple probation violations and prison disciplinary infractions.9 He
argues that a shorter sentence would have adequately addressed deterrence and
community condemnation.10 Galindo also contends that the court should not have given
any weight to the aggravating factor.
5
AS 12.55.125(i)(1)(A)(ii).
6
AS 12.55.155(c)(18)(D).
7
AS 12.55.125(i)(1).
8
Former AS 12.55.135(b) (2017).
9
See AS 12.55.005.
10
See id.–4– 2690
But the sentencing judge bears primary responsibility for determining the
priority and relationship of the various sentencing objectives in a given case.11 The
sentencing judge also has discretion to determine the weight to give an aggravating or
mitigating factor.12 We will not disturb a judge’s sentencing decision unless it is clearly
mistaken.13
At the time of the offense in this case, Galindo was forty-three years old.
The court found that, although he did not have any prior felony convictions, Galindo had
“a disturbing criminal history” that was “marked primarily by domestic violence against
intimate partners.” In particular, Galindo had four prior convictions for violating a
protective order and three prior convictions for fourth-degree assault, including one
against J.C. The court also noted that Galindo had multiple prior probation violations,
and was on probation and conditions of release at the time he committed the offense in
this case. As a result, the court found that Galindo was “a persistent threat to the
community.”
The court engaged in a thorough analysis of the Chaney criteria, and
ultimately determined that the sentence imposed was necessary for public safety and to
reaffirm societal norms and the seriousness of the offense.14
11
Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973).
12
Machado v. State, 797 P.2d 677, 689 (Alaska App. 1990).
13
Pickard v. State, 965 P.2d 755, 760 (Alaska App. 1998) (citing Nicholas v. State, 477
P.2d 447, 448-49 (Alaska 1970)).
14
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005.
–5– 2690
When we review an excessive sentence claim, we independently examine
the record to determine whether the sentence is clearly mistaken.15 This standard
contemplates that “reasonable judges, confronted with identical facts, can and will differ
on what constitutes an appropriate sentence” and that a reviewing court will only modify
a sentence if it falls outside “a permissible range of reasonable sentences.”16
While some judges may have imposed a lower sentence, we cannot say that
the relative weight that the court ascribed to each of the sentencing criteria, or the
ultimate sentence imposed by the court, was clearly mistaken.
Why we reverse the portion of Special Condition of Probation No. 5 that
authorizes residential treatment if recommended
Special Condition of Probation No. 5 requires Galindo, inter alia, to enroll
in a residential mental health or substance abuse program, if such a program is
“determined [to be] necessary by an appropriate mental health or substance abuse
professional,” and to stay in the residential program “for a length of time determined
necessary by the appropriate professionals.” Galindo argues that this portion of the
condition is illegal because it fails to set a maximum term for residential treatment. We
agree with Galindo that the failure to set an upper limit for the residential treatment
15
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
16
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997) (citations and internal
quotations omitted).
–6– 2690
provision is contrary to both statute and case law,17 and thus plainly erroneous
notwithstanding his failure to object in the trial court to this portion of the condition.18
The State concedes that the omission of a maximum period of residential
treatment was erroneous, but argues that the proper remedy is to remand Galindo’s case
to the superior court for further consideration of the residential treatment condition. But
once a sentence has been meaningfully imposed, the imposition of a maximum term for
residential treatment constitutes an illegal increase in the defendant’s sentence in
violation of the prohibition against double jeopardy.19 In Christensen v. State, we
suggested that there might be an exception to this rule if the imposition of residential
treatment was integral to the trial court’s sentencing decision.20 But the record in this
case does not demonstrate that the residential treatment provision played a vital role in
the superior court’s overall sentencing decision.
We therefore reverse the portion of Special Condition No. 5 authorizing
residential treatment.21
17
See AS 12.55.100(c) (providing that a program of inpatient treatment must be
authorized, and may not exceed a maximum term of inpatient treatment specified, in the
judgment); Christensen v. State, 844 P.2d 557, 558-59 (Alaska App. 1993) (holding that a
probation condition requiring residential treatment if recommended by a substance abuse
evaluation was illegal because it failed to set a maximum period for such treatment).
18
See State v. Ranstead, 421 P.3d 15, 24 (Alaska 2018) (“[A]n illegal condition of
probation is one that is substantively erroneous — that is, actually contrary to Roman or other
applicable law.”).
19
Christensen, 844 P.2d at 558-59; see also Dodge v. Anchorage, 877 P.2d 270, 272
(Alaska App. 1994).
20
Christensen, 844 P.2d at 559.
21
See Luke v. State, 2018 WL 4490908, at *4 (Alaska App. Sept. 19, 2018)
(unpublished); Daley v. State, 2018 WL 4144978, at *2 (Alaska App. Aug. 29, 2018)
(continued...)
–7– 2690
Galindo’s remaining challenges to his probation conditions
Galindo challenges four additional probation conditions. Because Galindo
did not object to these conditions in the trial court, he must now show plain error.22
Each of the challenged conditions implicates Galindo’s constitutional
rights. When a probation condition implicates a defendant’s constitutional rights, a court
must apply special scrutiny to ensure that the condition is “narrowly tailored to avoid
unnecessary interference with the constitutional right at issue.”23 Accordingly, a court
may not impose such a condition based solely on the fact that the defendant was
convicted of a certain category of crime; rather, the court must “affirmatively consider
and have good reason for rejecting lesser restrictions.”24
We have reviewed the four conditions challenged by Galindo. Although
Galindo did not object to the conditions in the trial court, it is clear that each of the
conditions raises obvious concerns — either because the record is plainly deficient to
support the condition,25 or because there are obviously less restrictive alternatives to the
21
(...continued)
(unpublished).
22
Ranstead, 421 P.3d at 23.
23
Glasgow v. State, 355 P.3d 597, 600 (Alaska App. 2015); see also Simants v. State,
329 P.3d 1033, 1038-39 (Alaska App. 2014); Diorec v. State, 295 P.3d 409, 412 (Alaska
App. 2013).
24
Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995); see also Dawson v.
State, 894 P.2d 672, 680-81 (Alaska App. 1995).
25
See, e.g., Hauge v. State, 2019 WL 4464683, at *5 (Alaska App. Sept. 18, 2019)
(unpublished) (directing the trial court to reconsider a probation condition that precluded the
defendant from possessing a firearm, even in the absence of any objection, because the
record was “plainly devoid” of any support for the condition in that case).
–8– 2690
challenged condition.26 We therefore remand for reconsideration of all four of the
conditions.
Special Condition No. 3: This probation condition requires Galindo to
actively participate in Department of Corrections-approved programming as directed by
his probation officer and abide by all conditions of the treatment program, which may
include plethysmograph assessment. Galindo challenges the inclusion of the
plethysmograph assessment, arguing that the use of such an invasive test implicates
Galindo’s liberty interests and should be vacated because Galindo is already subject to
less restrictive testing like polygraph examinations.
Plethysmograph testing is a procedure that “involves placing a
pressure-sensitive device around a man’s penis, presenting him with an array of sexually
stimulating images, and determining his level of sexual attraction by measuring minute
changes in his erectile responses.”27 As the Ninth Circuit has noted, plethysmograph
testing “not only encompasses a physical intrusion but a mental one, involving not only
a measure of the subject’s genitalia but a probing of his innermost thoughts as well.”28
We have previously held that plethysmograph testing is sufficiently intrusive and
26
See, e.g., Powell v. State, 2018 WL 3660226, at *2-3 (Alaska App. Aug. 1, 2018)
(unpublished) (directing the trial court to reconsider a probation condition that limited the
defendant’s contact with his mother and brother, even in the absence of any objection, when
it was readily apparent that reasonable, lesser restrictions were available).
27
United States v. Weber, 451 F.3d 552, 554 (9th Cir. 2006) (internal quotations
omitted).
28
Id. at 562-63 (citation omitted).
–9– 2690
demeaning as to implicate a liberty interest, and we have repeatedly vacated this
condition, or remanded for application of special scrutiny.29
The State acknowledges that the current record is inadequate to support the
imposition of plethysmograph assessment, but given Galindo’s failure to object in the
superior court, the State argues that we should allow the superior court to reconsider this
portion of the condition, applying special scrutiny. Although we agree that a remand is
appropriate under these circumstances, we question whether such an intrusive
requirement could ever satisfy special scrutiny.30 It is also unclear whether Alaska
currently employs such testing in its supervision of sex offenders, an issue that the court
may wish to address on remand.
Special Condition No. 6: This probation condition requires Galindo to
“comply with [the] use of prescribed medications, if any.” Galindo argues that there is
no indication in the record that he has a history of not taking or abusing prescription
medication, and thus this condition has no connection to his convictions or to his
rehabilitation. Galindo also argues that the condition is overbroad, since it requires him
to take any prescribed medication, regardless of its purpose, and that it is unconstitutional
because it lacks any judicial oversight.
29
See, e.g., Gardner v. State, 2018 WL 6418086, at *4 (Alaska App. Dec. 5, 2018)
(unpublished); Luke v. State, 2018 WL 4490908, at *4 (Alaska App. Sept. 19, 2018)
(unpublished); Daley v. State, 2018 WL 4144978, at *1 (Alaska App. Aug. 29, 2018)
(unpublished); Giddings v. State, 2018 WL 3301624, at *4-5 (Alaska App. July 5, 2018)
(unpublished); Kon v. State, 2018 WL 480454, at *5 (Alaska App. Jan. 17, 2018)
(unpublished).
30
See, e.g., United States v. McLaurin, 731 F.3d 258, 261-62 (2d Cir. 2013) (vacating
a plethysmography condition because the procedure was not “narrowly tailored to serve a
compelling government interest” and noting that “[t]here is a line at which the government
must stop. Penile plethysmography testing crosses it.”) (internal quotations omitted).
– 10 – 2690
We have repeatedly vacated or remanded similar conditions — either
because they lacked any factual grounding in the record demonstrating that a particular
medication was necessary to facilitate a defendant’s rehabilitation31 or because the
condition failed to include a mechanism for judicial review of the forced medication.32
The State concedes that the record is inadequate to support this condition,
but requests an opportunity to present evidence and argument in support of the condition
on remand. Given the absence of an objection in the trial court, we conclude that it is
appropriate to remand this condition to the superior court to afford the State an
opportunity to present evidence in support of the condition and — if the State elects to
present evidence — for the court to apply special scrutiny to the proposed condition.33
We note, however, that to the extent Special Condition No. 6 requires
Galindo to take any medication that is prescribed to him, without any connection to his
31
See Dere v. State, 444 P.3d 204, 226 (Alaska App. 2019) (noting that the sentencing
judge failed to take any testimony or enter findings to justify the need for forced medication);
see also Abarca v. State, 2020 WL 7238380, at *1-2 (Alaska App. Dec. 9, 2020)
(unpublished).
32
See Love v. State, 436 P.3d 1058, 1060-61 (Alaska 2018) (discussing Kozevnikoff v.
State, 433 P.3d 546, 547-48 (Alaska App. 2018)); see also Dere, 444 P.3d at 226; Huff v.
State, 2019 WL 2451009, at *3-4 (Alaska App. June 12, 2019) (unpublished); Clifton v.
State, 2019 WL 11093436, at *2-3 (Alaska App. Feb. 6, 2019) (unpublished); Wilson v.
State, 2018 WL 4492289, at *3 (Alaska App. Sept. 19, 2018) (unpublished).
33
See Glasgow v. State, 355 P.3d 597, 600 (Alaska App. 2015) (recognizing the right
to make independent medical choices and the need to narrowly tailor probation conditions
related to medical treatment so as to not infringe on this right unnecessarily); see also
Huffman v. State, 204 P.3d 339, 346 (Alaska 2009) (holding that “the right to make decisions
about medical treatments for oneself . . . is a fundamental liberty and privacy right in
Alaska”); Rollins v. Ulmer, 15 P.3d 749, 752, 754 (Alaska 2001) (recognizing a
“constitutional right to make independent medical choices,” grounded in the right to privacy).
– 11 – 2690
rehabilitation, it cannot survive special scrutiny.34 Over the course of a probationer’s
supervision, the probationer may make numerous medical decisions that are unrelated
to his crime or to his potential for future criminality; these types of decisions should not
subject the probationer to incarceration for failing to follow medical advice.35
To the extent the condition merely precludes Galindo from abusing any
prescribed medication that he elects to take, there is no evidence currently in the record
to suggest that Galindo has a history of not taking or abusing prescription medication,
or that such a condition is otherwise reasonably related to his rehabilitation or to the
protection of the public.36
If the superior court determines on remand that a modified version of this
condition is appropriate and necessary, the court should clarify the meaning of the
condition and provide a clear mechanism for judicial review prior to the compelled
administration of any medication.37
34
See Baker v. State, 2003 WL 21663992, at *1-2 (Alaska App. July 16, 2003)
(unpublished) (vacating a probation condition requiring the defendant to take any
medications prescribed by a licensed practitioner as there was no evidence in the record that
the condition would protect the public or serve to rehabilitate the defendant).
35
See, e.g., In re Luis F., 177 Cal.App.4th 176, 184, 99 Cal.Rptr.3d 174, 181 (Cal. App.
2009) (“We agree with Luis that if the medication requirement were intended to subject him
to future incarceration for failing to treat his toenail fungus as prescribed by a doctor, it
would be impermissibly overbroad — not to mention unreasonable and arbitrary.”).
36
See Bedwell v. State, 2018 WL 2277363, at *8 (Alaska App. May 16, 2018)
(unpublished).
37
See Dere v. State, 444 P.3d 204, 226 (Alaska App. 2019) (citing Kozevnikoff v. State,
433 P.3d 546 (Alaska App. 2018)).
– 12 – 2690
Special Conditions Nos. 13 & 14: Special Condition No. 13 prohibits
Galindo from possessing any sexually explicit material without prior permission of the
probation office and Galindo’s sex offender treatment provider. Special Condition No.
14 requires Galindo to submit to a search for any such material. “Sexually explicit
material” is defined as “materials depicting conduct set forth in AS 11.41.455(a),
regardless of whether the conduct depicted involves adults or minors.”
The court’s reliance on AS 11.41.455(a) to define “sexually explicit
material” appears to be an attempt to comply with our decision in Diorec v. State, a case
in which the defendant was convicted of unlawful exploitation of a minor.38 In Diorec,
we held that the term “sexually explicit material” in a similar probation condition was
unconstitutionally vague, and we directed the superior court to revise the condition to
provide the defendant with constitutionally adequate notice of the materials he was
prohibited from possessing.39 In doing so, we suggested that the definition set out in
AS 11.41.455(a) — which establishes the crime of unlawful exploitation of a minor and
contains a list of sexual conduct involving a child under eighteen years of age — could
provide a useful reference point.40
At the same time, since Diorec, we have also recognized that when the
definition set out in AS 11.41.455(a) is expanded to include adults, it is “likely to include
depictions of sexual activity . . . that ‘[are] now relatively commonplace within
38
Diorec v. State, 295 P.3d 409 (Alaska App. 2013).
39
Id. at 417.
40
Id. at 417-18. Alaska Statute 11.41.455(a) — the crime of unlawful exploitation of
a minor — refers to the following actual or simulated conduct engaged in by a child under
18 years of age: (1) sexual penetration; (2) the lewd touching of another person’s genitals,
anus, or breast; (3) the lewd touching by another person of the child’s genitals, anus, or
breast; (4) masturbation; (5) bestiality; (6) the lewd exhibition of the child’s genitals; and (7)
sexual masochism or sadism.
– 13 – 2690
mainstream media, cable television shows, and movies.’”41 This is potentially
problematic because the right to possess sexually explicit material involving adults is
constitutionally protected under the First Amendment.42
Galindo has been convicted of a crime against an adult. And Special
Conditions Nos. 13 and 14 — which restrict Galindo’s possession of “sexually explicit
material” — define this phrase by reference to a statute that captures conduct involving
minors, but the definition has been expanded to include conduct involving adults. These
conditions therefore implicate the overbreadth concerns we have previously identified.
The State contends that the conditions are appropriate because Galindo was
convicted of a sexual felony. In addition, the State notes that J.C. testified at trial that —
when she announced that she was calling the police — Galindo told her that he had taken
intimate photographs of her without her knowledge, and he threatened to send them to
her family members and post them online if she reported the sexual assault. This
evidence might support a more restrictive condition — for example, a condition
prohibiting Galindo from taking or distributing sexually explicit photos or videos. But
there is no evidence currently in the record that Galindo’s rehabilitation would be
41
Whiting v. State, 2014 WL 6713200, at *2 (Alaska App. Nov. 26, 2014) (unpublished)
(quoting Johnston v. State, 2013 WL 4780812, at *3 (Alaska App. Sept. 4, 2013)
(unpublished)).
42
See United States v. Williams, 553 U.S. 285, 288 (2008) (right to possess sexually
explicit material involving adults); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240
(2002) (“As a general rule, pornography can be banned only if obscene, but . . . pornography
showing minors can be proscribed whether or not the images are obscene” under the Court’s
definition of obscenity.); Smith v. State, 349 P.3d 1087, 1094 (Alaska App. 2015)
(recognizing that probation conditions limiting the defendant’s access to sexually explicit
material potentially infringed on the defendant’s First Amendment rights); see also Ackerman
v. State, 2019 WL 856724, at *11 (Alaska App. Feb. 20, 2019) (unpublished); Johnston,
2013 WL 4780812, at *2; Timm v. State, 2000 WL 1745221, at *3 (Alaska App. Nov. 29,
2000) (unpublished).
– 14 – 2690
hampered by possessing or viewing the type of mainstream media or images that the
broad definition of “sexually explicit material” in these conditions seemingly includes.
We therefore remand Special Conditions Nos. 13 and 14 for the superior
court to determine whether the conditions are reasonably related to the goals of probation
and “narrowly tailored to avoid unnecessary interference” with Galindo’s constitutional
rights,43 and if so, to reconsider the definition of “sexually explicit material” employed
in the conditions.
Conclusion
We REMAND Galindo’s case to the superior court for reconsideration of
the plethysmograph provision in Special Condition of Probation No. 3, as well as Special
Conditions of Probation Nos. 6, 13, and 14, in accordance with the guidance provided
in this opinion. We REVERSE the residential treatment provision in Special Condition
of Probation No. 5. With those exceptions, we AFFIRM the judgment of the superior
court.
43
See Simants v. State, 329 P.3d 1033, 1039 (Alaska App. 2014) (internal quotations
omitted).
– 15 – 2690