               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44913

STATE OF IDAHO,                                )    2017 Unpublished Opinion No. 655
                                               )
       Plaintiff-Respondent,                   )    Filed: November 30, 2017
                                               )
v.                                             )    Karel A. Lehrman, Clerk
                                               )
CODY D. HERRERA,                               )    THIS IS AN UNPUBLISHED
                                               )    OPINION AND SHALL NOT
       Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       Judgment of conviction, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Cody D. Herrera appeals from the district court’s judgment of conviction. Herrera argues
the district court abused its discretion by imposing an excessive sentence. The district court’s
judgment of conviction is affirmed.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Herrera pleaded guilty to statutory rape, Idaho Code § 18-6101, based on his sexual
contact with a fourteen-year-old. The victim’s mother testified at sentencing, stating that she
believed Herrera was “a predator looking for young girls to take advantage of and manipulate.”
The psychosexual evaluation (PSE) recommended the district court take “into account how
opportunistic or predatory the examinee[’]s past sexual history and instant offense was” and
noted that Herrera previously had thirty-four different sexual relationships. The district court
stated it had “never, never seen that level of sexual activity between a 19-year-old.” The State

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recommended a unified sentence of five years, with three years indeterminate. Herrera requested
no specific underlying sentence but asked that he be placed on probation. In imposing sentence,
the court considered the factors of I.C. § 19-2521; the policy factors of retribution, rehabilitation,
deterrence, and the protection of society; Herrera’s presentence investigation report (PSI);
Herrera’s PSE; the statement from the victim’s mother; the arguments of the parties; and the
district court’s experience with similar cases. Thereafter, the district court imposed a unified
sentence of fifteen years, with five years determinate, but retained jurisdiction. Herrera timely
appeals.
                                                 II.
                                   STANDARD OF REVIEW
       Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the sentence are well established and
need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-
15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App.
1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing
the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho
722, 726, 170 P.3d 387, 391 (2007).
       When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the
issue as one of discretion, acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it, and reached its decision by an
exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
                                                 III.
                                            ANALYSIS
       Herrera claims the district court abused its discretion by failing to sentence him according
to an exercise of reason. First, Herrera argues the district court improperly discounted expert
findings in the PSE which stated Herrera was an opportunistic offender, accepting instead the
statement of the victim’s mother that Herrera was a predator. Second, Herrera argues the district
court improperly used the fact that Herrera had a large number of sexual partners to conclude
that Herrera used young children for sexual gratification. Third, Herrera contends the district
court failed to consider various mitigating factors, namely his immaturity, age, lack of any

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previous felonies, family and friend support, remorse he expressed at the sentencing hearing,
how he took responsibility for his actions, and how he completed a treatment program prior to
sentencing.
A.      The District Court Did Not Abuse Its Discretion by Considering the PSE’s
        Inconsistency With the Rest of the Evidence Before It
        During the sentencing hearing, the district court considered various sources of
information, including the PSI, the PSE, the statement of the victim’s mother, Herrera’s sexual
history, and the facts of this case. In some instances, these sources of information conflicted
with each other, even internally. In the PSI, for instance, Herrera stated he was seventeen years
old when he had sex with the victim in this case, but admitted elsewhere that he was eighteen at
the time. Also within the PSI, Herrera stated he had not used drugs for over a year, but admitted
elsewhere he used marijuana and cocaine during that same period. Herrera was also inconsistent
about suicidal thoughts (claiming he had never had any, but then disclosed an admission to a
hospital for suicidal ideation), ADHD, insomnia, and the number of his past sexual partners
(either thirty-four or thirty-six).
         Herrera argues the district court improperly resolved one particular contradiction against
Herrera by discounting the examiner’s findings in the PSE which characterized Herrera as
opportunistic, accepting instead the statement of the victim’s mother calling Herrera a predator.
        In the mother’s statement, she wrote that Herrera:
        harassed, manipulated, and even threatened to kill [victim], several members of
        my family, and numerous friends of our family. [Herrera] is a predator looking
        for young girls to take advantage of and manipulate. This is not the first time
        [Herrera] has done this. [Herrera] preys on young vulnerable girls, and even
        protection orders don’t help keep him away. [Herrera] proved that with his 17-
        year-old girlfriend, who also has filed a protection order against him.
        In the PSE, however, an examiner stated Herrera’s “offending behaviors were perceived
to be opportunistic, involved mild grooming and coercion to gain sexual advantage.” While
making a recommendation regarding supervision, the examiner advised, “It should be taken into
account how opportunistic or predatory the examinee[’]s past sexual history and instant offense
was.”
        The district court, attempting to synthesize the various sources of information, stated that
all the information before it:
        tells me what [the victim’s mother] is trying to tell me is that there is a level that
        this--an attitude that this defendant has that, well, I’m going to use young children
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       for sexual gratification. That does not seem to be consistent with what the
       psychosexual report says because I don’t think they didn’t--as I read it, [the
       examiner] did not designate Mr. Herrera as a, quote, sexual predator, even though
       there is certainly an argument that can be made for that. So I’m having a little
       trouble understanding why this evaluation came out the way it came out.
The district court also observed “[t]hough there certainly can be some quibbling over the
ultimate evaluation of [the examiner] in this case, I read this report as saying that this defendant
is a moderate risk of reoffense.”
       Although Herrera claims “the district court concluded that the psychosexual evaluation
was mistaken in not designating Mr. Herrera as a ‘sexual predator,’” the district court made no
such designation. The district court noted that the examiner had not designated Herrera a sexual
predator. At no point did the district court designate Herrera a sexual predator. Additionally,
the district court never rejected the conclusions of the PSE and or adopted the opinion of the
victim’s mother. Instead, the district court queried whether the PSE correctly classified Herrera
based on the conflicting information before the district court.
       To the extent that the PSE’s conclusion about Herrera’s method of offense (opportunistic
or predatory) created an inconsistency with the other information before the district court, it was
reasonable for the district court to compare the various sources of information and reach a
conclusion about which source to rely on. Such is the district court’s prerogative in sentencing,
taking all available information under consideration and then, pursuant to its discretion, imposing
a sentence that best meets the sentencing goals and complies with the statutory parameters.
Doing so does not evidence a lack of reason.
B.     The District Court Did Not Abuse Its Discretion by Considering the Number of
       Herrera’s Sexual Partners
       Herrera claims the number of his sexual partners (either thirty-four or thirty-six) should
be irrelevant to the district court’s sentencing decision, that the record is “devoid of any facts”
that these partners were young children, and that the district court’s related discussion of
morality was inappropriate.
       During the sentencing hearing, the district court stated:
       I have seen dozens, if not hundreds, of sex cases since I’ve been on this bench.
       Our society has come to a point of, I don’t even know how to explain it, you
       know? I am 66 years of age. When I was 19 years of age, the sexual proclivities
       of young people wasn’t anything, anything like I see today. I think it is a direct
       consequence of the social media system that we have in this country, which I
       can’t tell you how many times I have seen these cases, “How did this happen?”
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       “Well, I met somebody on social media.” While that may not be the reasons why
       sex offenses occur, I can tell you that the vast majority of the cases that come
       before the Court have their origination from that. I can’t change that. If I had my
       way, I would eliminate the internet, and we’d all have better lives, but I can’t do
       that either.
               It also says something about, I guess, the level of morality in this country.
       I can’t change morality. People are going to do what they’re going to do.
The district court later continued, stating that Herrera, “by his own admission, has had 34, count
them, 34 sexual encounters with separate individuals. I have never, never seen that level of
sexual activity between a 19-year-old, in this court system, and I’ve been doing this for 15, 16
years now.” The district court touched again on the topic, stating, “I understand, again, that in
today’s society and with the hormones that rage between young people, that sexual encounters
can happen, but this defendant’s level of activity is way beyond that, as far as I’m concerned.
And that concerns me.”
       The district court’s discussion about Herrera’s sexual partners and the state of society’s
morality does not indicate the district court failed to reach its decision by an exercise of reason.
Rather, it indicates the district court found Herrera’s sexual history to be particularly worrisome.
Indeed, the district court commented that its “view of life is that what you do in the past is a
good indication of what you’re going to do in the future” and that “the level of partners, I’m
going to call it, for lack of a better way to put it, that [Herrera] had is simply significant, and
frankly, it scares me because [Herrera] say[s] it’s not going to happen anymore. Well, that’s not
what history shows. It’s not what history shows.”
       The record reveals that the district court’s concerns were legitimate. The PSE states that
Herrera had dozens of sexual encounters with individuals aged sixteen, seventeen, and older with
some sexual contact occurring with individuals as young as fourteen. Additionally, the PSI
contains evidence that while this case was pending sentencing, a different victim, who was
seventeen years old, filed a protection order against Herrera.
       While some may not view a sixteen or seventeen-year-old as a young child, the fact
remains that they are children. The PSE’s recitation of Herrera’s sexual history and the PSI’s
mention of a different victim’s protection order make clear that Herrera has engaged extensively
in sexual relationships with minors. While we note that Herrera was likely a minor during many
of these encounters, it does not change the fact that the victims were minors. This fact, along



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with the multiple other sources of information the district court considered, contributed to the
sentence the district court imposed, which was reached by an exercise of reason.
C.     The District Court Properly Considered All Mitigating Factors
       During the sentencing hearing, the district court heard argument from Herrera’s counsel
about Herrera’s age, lack of maturity, criminal history, family support, and treatment Herrera
completed. The district court then heard from Herrera who expressed remorse and accepted
responsibility for his actions. The district court also considered the mitigating evidence offered
in the PSI, PSE, and other evidence presented at the sentencing hearing. Thus, the district court
considered all the mitigating factors Herrera claims it overlooked.
       Because the district court conducted a comprehensive review and consideration of the
information before it, the district court exercised reason in imposing Herrera’s sentence, and
consequently, did not abuse its discretion.
                                               IV.
                                         CONCLUSION
       The district court did not abuse its discretion in considering the PSE’s inconsistency with
the rest of the evidence before it or the number of Herrera’s sexual partners; they were part of a
larger consideration made under the district court’s exercise of reason. Additionally, the district
court properly considered all relevant mitigating factors.      The district court’s judgment of
conviction and sentence are affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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