State v. Arguelles

2020 UT App 112

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
LUCILA RUBY ARGUELLES,
Appellant.

Opinion
No. 20190521-CA
Filed August 6, 2020

Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 181908939

W. Andrew McCullough, Attorney for Appellant
Simarjit S. Gill, Heather Lindsay, Steven L. Grayson,
and Victoria A. Turner, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.

MORTENSEN, Judge:

¶1 Lucila Ruby Arguelles was charged with a class A
misdemeanor for sexual solicitation after an encounter with an
undercover detective in a hotel room. Arguelles moved to
dismiss the case, arguing that she was entitled to be prosecuted
only for a class B misdemeanor prostitution offense under the
Shondel doctrine 1 and that the district court lacked jurisdiction

1. See State v. Arave, 2011 UT 84, ¶ 12, 268 P.3d 163 (explaining
that the Shondel doctrine “preserves the equal protection of the
laws by requiring criminal statutes to be written so that the exact
same conduct is not subject to different penalties depending
(continued…)
State v. Arguelles

over that class B misdemeanor. The district court denied the
motion. We granted Arguelles’s request for interlocutory review.
We affirm.

BACKGROUND 2

¶2 On July 26, 2018, an undercover detective (Detective)
located an advertisement on an escort-services website and
called the listed phone number to arrange a meeting with a
female at a hotel in Salt Lake City. Detective waited in the hotel
room for the escort’s arrival. When Arguelles arrived, she
knocked on the door and the two engaged in small talk for a
short time. Arguelles asked Detective for the $200 show-up fee,
and Detective promptly paid her in cash. Arguelles then told
Detective to “get comfortable” as she entered the bathroom.
Detective, understanding Arguelles’s instruction to mean that he
should undress, disrobed except for his underwear. Arguelles
emerged from the bathroom still fully clothed and asked
Detective if he “knew how this went.” Detective responded that
he understood the $200 was just for her to show up and that “she
worked and did other things off of tips” after that.

¶3 At that time, Detective indicated that “all [he] wanted was
a blowjob.” Arguelles responded by nodding her head and
stating, “My tips start at $500.” Detective then stated, “It’s a
deal” and gave Arguelles $500. Arguelles then made a statement
clearly indicating to Detective that she was not performing oral

(…continued)
upon which of two statutory sections a prosecutor chooses to
charge” (cleaned up)).

2. “Because this case comes to us on an interlocutory appeal, the
facts have yet to be determined. On interlocutory review, we
recount the facts as alleged and in a light most favorable to the
ruling below.” State v. Taylor, 2015 UT 42, ¶ 2 n.2, 349 P.3d 696.

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State v. Arguelles

sex, that it was “out of the books.” The two then engaged in a
discussion about what Arguelles would do for the $500,
ultimately agreeing that Arguelles would “dance or something
like that.” Arguelles entered the bathroom a second time and
then emerged dressed only in lingerie. Arguelles proceeded to
dance provocatively and eventually revealed the top portion of
her areolas. She also lay next to Detective on the bed and
“grazed her fingers along [his] penis over [his] underwear” a
couple of times. Arguelles then did some additional dancing, at
which time the detective signaled other detectives to intervene,
ending the encounter.

¶4 Arguelles was charged in the district court with
sexual solicitation, a class A misdemeanor under Utah Code
section 76-10-1313(1)(a), for offering or agreeing to commit a sex
act for a fee. 3 Arguelles moved to dismiss the case for lack of
jurisdiction, arguing that under her right to equal protection of
the law, as articulated by the Shondel doctrine, she should have
been charged with the lesser offense—prostitution, a class B
misdemeanor—in the justice court. The district court denied
Arguelles’s motion, concluding the Shondel doctrine did not
apply. This interlocutory appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶5 Arguelles asserts that the district court erred in denying
her motion to dismiss under the Shondel doctrine. “We review a
trial court’s application of the Shondel doctrine for correctness.”
State v. Melancon, 2014 UT App 260, ¶ 10, 339 P.3d 151.

¶6 Arguelles further contends that if she is entitled to
prosecution for the lesser offense, the district court did not have

3. Notably, Arguelles is only “charged with offering or agreeing
to commit a sex act for a fee . . . [and] is not charged with
anything else,” including actually engaging in a sex act.

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jurisdiction and ought to have dismissed the case so that it could
be brought in the justice court. “Because a trial court’s grant or
denial of a motion to dismiss is a question of law, the standard of
review is correctness.” South Jordan City v. Summerhays, 2017 UT
App 18, ¶ 5, 392 P.3d 855 (cleaned up); see also Salt Lake City v.
Weiner, 2009 UT App 249, ¶ 5, 219 P.3d 72 (“Whether the district
court has jurisdiction is a question of law that we review for
correctness . . . .” (cleaned up)).

ANALYSIS

¶7 Under Utah’s constitutional guarantee of uniform
operation of the laws, the Shondel doctrine “preserves the equal
protection of the laws by requiring criminal statutes to be
written so that the exact same conduct is not subject to different
penalties depending upon which of two statutory sections a
prosecutor chooses to charge.” State v. Arave, 2011 UT 84, ¶ 12,
268 P.3d 163 (cleaned up); see State v. Williams, 2007 UT 98,
¶¶ 20–21, 175 P.3d 1029; State v. Shondel, 453 P.2d 146, 147 (Utah
1969); see also Utah Const. art. I, § 24. Shondel is only “implicated
at the intersection of duplicative criminal statutes” that invite a
“risk of arbitrary prosecutorial discretion.” State v. Ainsworth,
2017 UT 60, ¶ 22, 423 P.3d 1229; see also State v. Fedorowicz, 2002
UT 67, ¶ 48, 52 P.3d 1194 (“Shondel does not preclude a
prosecutor from choosing between two different crimes in
charging an individual for particular conduct; rather, it requires
that a prosecutor who elects to charge an individual with a crime
carrying a higher penalty or classification do so knowing that the
prosecutor will be required to prove at least one additional or
different element to obtain a conviction for the higher-penalty
crime.”). When “statutes define two crimes having precisely the
same elements with different penalties,” a defendant is
“sentenced only on the lesser offense” under the Shondel
doctrine. Arave, 2011 UT 84, ¶ 12 (cleaned up).

¶8 In 2017, our supreme court clarified the two-step inquiry
used to determine whether there is a Shondel problem. See

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Ainsworth, 2017 UT 60, ¶ 26. First, as a threshold matter, we
inquire whether the two statutes, at the time of the charged
offense, were wholly duplicative as to the facts and elements of
the crime. Id. ¶ 25; see also Fedorowicz, 2002 UT 67, ¶ 50 (looking
to provisions at time of charged offense). If the threshold
question reveals that “each statute requires proof of some fact or
element not required to establish the other, there is no Shondel
problem” and the inquiry ends. Ainsworth, 2017 UT 60, ¶ 25
(cleaned up). In undertaking the threshold inquiry, we “treat[] as
irrelevant the conduct of a particular defendant; only the content
of the statutes matters.” Williams, 2007 UT 98, ¶ 14. Second, if
necessary, we determine whether the two statutes have identical
effective dates. Ainsworth, 2017 UT 60, ¶ 27; Shondel, 453 P.2d at
147. If the dates differ, “the later-enacted provision will be
deemed to impliedly repeal the earlier one.” Ainsworth, 2017 UT
60, ¶ 27. However, if the dates are the same, Shondel “require[s] a
reduction to the lesser offense.” Id.

¶9 We begin the Shondel inquiry by comparing the plain
language of the relevant provisions as a matter of statutory
construction. See Fedorowicz, 2002 UT 67, ¶ 49. The prostitution
statute at the time of the charged offense provided in relevant
part that

(1) An individual is guilty of prostitution when the
individual:

(a) engages, offers, or agrees to engage in any
sexual activity with another individual for a fee, or
the functional equivalent of a fee;

....

(2)(a) Except as provided . . . , prostitution is a class
B misdemeanor.

Utah Code Ann. § 76-10-1302 (LexisNexis 2017). And the sexual
solicitation statute provided in relevant part that

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State v. Arguelles

(1) An individual is guilty of sexual solicitation
when the individual:

(a) offers or agrees to commit any sexual activity
with another individual for a fee, or the functional
equivalent of a fee;

....

(3) Except as provided . . . an individual who is
convicted of sexual solicitation under this
section . . . is guilty of a class A misdemeanor.

Id. § 76-10-1313 (Supp. 2018).

¶10 The challenged provisions—subsections 1(a) of the
prostitution and sexual solicitation statutes—bear striking
similarities. However, the subsections do not contain identical
language. As relevant here, the prostitution statute prohibits
offering or agreeing to engage in sexual activity, while the sexual
solicitation statute prohibits offering or agreeing to commit
sexual activity. Arguelles suggests that this “slightly different
language” lacks significance. The State does not contest the
point. And we agree that the slight difference of wording in each
provision lacks significance because it does not create a
distinction between the facts or elements required to prove the
offenses. See Ainsworth, 2017 UT 60, ¶ 26. Both statutes require
proof that an individual (1) offers or agrees to (2) participate in
any sexual activity (3) with another individual (4) for a fee or the
functional equivalent of a fee. Thus, under the plain language of
the statutes, there is a complete overlap in the facts and elements
required to be proved. See Fedorowicz, 2002 UT 67, ¶ 51 (looking
to the actus reus and the mens rea to determine if the
statutes were wholly duplicative); State v. Wolf, 2014 UT App 18,
¶¶ 37–38, 319 P.3d 757 (assessing whether the contested
provisions contain the same elements).

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State v. Arguelles

¶11 The State maintains on appeal that the Shondel doctrine
does not apply because elements of the variations of the crimes
do not fully overlap. We acknowledge that the sexual solicitation
statute prohibits only the offer or agreement to commit sexual
activity, while the prostitution statute prohibits offers,
agreements, and the act itself of engaging in sexual activity. But
we do not agree that all variations of an offense must overlap
with the elements of another offense before Shondel is implicated.
See Williams, 2007 UT 98, ¶ 14 (“The Shondel doctrine limits its
inquiry to the elements of the criminal statutes which the
defendant claims overlap . . . .”); see also Ainsworth, 2017 UT 60,
¶ 28 (discussing only the variants of the DUI and measurable
substance provisions implicated in the Shondel inquiry).
Inasmuch as the prostitution statute additionally prohibits the
act of engaging in sexual activity, the statute implicates a
variation of the prostitution offense that is not properly
considered in this Shondel inquiry, where Arguelles is only
“charged with offering or agreeing to commit a sex act for a fee.”
Indeed, the focus of Shondel and its progeny is on what elements
would need to be proved at trial for a conviction. Here, the
elements to be proved in the context of this charge are wholly
duplicative.

¶12 Because the provisions are wholly duplicative as to the
offense charged, the first step of the Shondel inquiry is met. We
proceed to discuss whether the two provisions have identical
effective dates because “[e]ven if two statutes are wholly
duplicative, Shondel does not necessarily require a reduction to
the lesser offense.” Ainsworth, 2017 UT 60, ¶ 27. Rather, the
“requirement is triggered only as to two provisions with
identical effective dates. Otherwise the later-enacted provision
will be deemed to impliedly repeal the earlier one.” Id. This is
premised on “the generally-recognized rule that where there is
conflict between two legislative acts the latest will ordinarily
prevail.” Shondel, 453 P.2d at 147.

¶13 The “offers or agrees” language appearing in the
prostitution statute was removed in 1993 by the very bill that the

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legislature used to enact the sexual solicitation statute. See H.B.
24, 50th Leg., 1993 Gen. Sess. (Utah 1993). However, that same
language was reintroduced to the prostitution statute in 2017,
and it remained in the sexual solicitation statute. See S.B. 230, 62d
Leg., 2017 Gen. Sess. (Utah 2017) (effective date May 9, 2017).
The 2017 amendment to the prostitution statute created some
overlap, but no Shondel problem existed at that time because
both crimes were punishable as a class B misdemeanor; there
was no lesser offense. However, an amendment to the sexual
solicitation statute in 2018 changed sexual solicitation from a
class B misdemeanor to a class A misdemeanor offense, creating
a potential Shondel problem because the statutes thereafter
applied to the same conduct but with disparate penalties. See
S.B. 214, 62d Leg., 2018 Gen. Sess. (Utah 2018) (effective date
May 8, 2018). 4 The prostitution provision was not amended in
2018, causing the sexual solicitation provision to be the later-
enacted provision at the time of the charged offense.

¶14 Arguelles, however, contends that subsequent
amendments to the provisions at issue caused them to have the

4. According to the legislative hearing held to discuss the
bill, the legislator who sponsored it indicated the
amendment was designed to increase the punishment for
sexual solicitation to match that of prostitution, see
Solicitation Amendments, S.B. 214, 2018 Gen. Sess. (Utah
2018), https://le.utah.gov/av/floorArchive.jsp?markerID=103436
—perhaps meaning to reference the offense of patronizing a
prostitute, see Utah Code Ann. § 76-10-1303 (2017), which
became a class A misdemeanor in 2017, see S.B. 230, 62d Leg.,
2017 Gen. Sess. (Utah 2017). Prostitution remains a class B
misdemeanor, see Utah Code Ann. § 76-10-1302(2) (2020), except
for second and all subsequent convictions, in which case it is
elevated to a class A misdemeanor, see id.; see also State v.
Williams, 2007 UT 98, ¶ 21, 175 P.3d 1029 (quoting a legal treatise
to suggest Shondel problems will arise as a likely consequence of
legislative mistakes).

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same effective date, entitling her to the lesser offense under
Shondel. Indeed, both provisions have since been amended and
now share the same effective date. See H.B. 40, 63d Leg., 2019
Gen Sess. (Utah 2019) (amending the sentencing provisions of
both prostitution and sexual solicitation in Utah Code
sections 76-10-1302(2) and -1313(3), respectively, effective date
May 14, 2019); H.B. 291, 63d Leg., 2020 Gen Sess. (Utah 2020)
(amending both Utah Code sections 76-10-1302(1) and -1313(1),
effective date May 12, 2020). However, the Shondel doctrine seeks
to remedy the problem of “arbitrary prosecutorial discretion” in
charging by ensuring the exact same conduct is not subject to
disparate penalties based on that discretion. Ainsworth, 2017 UT
60, ¶ 22; see Arave, 2011 UT 84, ¶ 12 (“[Shondel] preserves the
equal protection of the laws by requiring criminal statutes to be
written so that the exact same conduct is not subject to different
penalties depending upon which of two statutory sections a
prosecutor chooses to charge.” (cleaned up)); see also Fedorowicz,
2002 UT 67, ¶ 50 (analyzing provisions at time of charged
offense). Shondel also fulfills its purpose by “permit[ting] a
defendant to be sentenced only on the lesser offense.” Arave,
2011 UT 84, ¶ 12; see also State v. Melancon, 2014 UT App 260,
¶ 25, 339 P.3d 151 (“Where two statutes define exactly the same
penal offense, a defendant can be sentenced only under the
statute requiring the lesser penalty.” (cleaned up)). Because the
Shondel inquiry considers the provisions only at the time of the
charged offense or at the time of sentencing, the subsequent
amendments, which occurred in the interim, have no bearing on
our Shondel analysis at this stage. 5 In the context of this
interlocutory appeal, only Shondel’s effect at the time of charging is
at issue.

¶15 Because the sexual solicitation statute was the later-
enacted provision at the time of the charged offense, it is deemed

5. In so holding, we offer no opinion as to any effect the
amendments may have at the time of sentencing.

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to have impliedly repealed the earlier prostitution provision.
Accordingly, there is no Shondel issue in this case at this time.

¶16 Inasmuch as Arguelles’s claim under Shondel fails, so too
does her contention that the district court lacked jurisdiction
over her case—a contention that hinged on securing a reduced
offense under Shondel. We therefore do not address her
jurisdictional claim further.

CONCLUSION

¶17 We hold that the Shondel doctrine does not apply to the
charged offense at this time and that the district court therefore
retains jurisdiction over Arguelles’s case.

¶18 Affirmed.

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