Age of defendant is still an element of Jessica’s Law offense

Rachel Pickering won in State v. Gonzales, No. 99,657 (Kan. July 24, 2009), reversing a life sentence in a Sedgwick County Jessica’s Law prosecution for aggravated indecent liberties with a child. The court affirmed the trial court’s denial of Mr. Gonzales’ motion for new trial regarding Mr. Gonzales’ convictions (aggravated indecent liberties with a child under 14, aggravated indecent liberties with a child between 14 and 16 years of age, rape, and violation of a protective order).

The court reversed the life sentence based upon the recent holding in State v. Bello, No. 99,225 (Kan. July 2, 2009), blogged about here. The court held:

[I]n Gonzales' case, the State failed to present evidence of his age at trial, and the jury was not instructed to make a finding regarding Gonzales' age. Under the reasoning in Bello, when a defendant is charged with an off-grid severity level offense of aggravated indecent liberties with a child, the element of the defendant's age must first be submitted to the jury and proved beyond a reasonable doubt in order for a defendant to be sentenced for an off-grid severity level offense under K.S.A. 21-4643. Accordingly, the sentence imposed on Gonzales under K.S.A. 21-4623 [sic] is vacated and the case is remanded for resentencing on Count II as a felony on the KSGA nondrug sentencing grid.

Here is the KC Star’s coverage of the case.