There has been confusion in media outlets reporting the basics facts of this case. For purposes of clarification, the San Joaquin County District Attorney's Office issues the following statement:
The People of the State of California reached a negotiated settlement/alternative resolution in this case. Based upon on assessment of the strengths and weaknesses of the evidence presented in the case, along with a review of the case facts and testimonies presented at the preliminary hearing, Defendant Burgess was offered a felony sex related charge, Penal Code § 261.5, and accepted with a plea last month. This charge was agreed upon by all parties, including the parents of the child victim.
Summary of Case Facts:
Burgess was arrested on Nov. 23, 2016 and subsequently charged with four counts of Penal Code § 288(a), lewd acts upon a child. After the preliminary hearing and a review of the investigation, the charge was later amended to a violation of Penal Code § 261.5(c), unlawful sexual intercourse with a minor, of which he was ultimately convicted.
A preliminary hearing was held on November 1, 2017. Both the victim and her mother testified. At the preliminary hearing, there were no allegations that the child had been sexually penetrated by any means. (A transcript of the preliminary hearing has been available to the public since November of 2017).
After discussions with the defense, and consultation with the family of the victim, Burgess agreed to enter a plea. Based on that representation, the charge would be amended to Penal Code § 261.5(c), despite no sexual penetration having occurred.
This decision was based on assessment of the strengths and weaknesses of the evidence in this case and the testimony at the preliminary hearing. On April 18, Burgess plead no contest to Penal Code § 261.5(c).
On May 23, 2018, Burgess was sentenced to 90 days in the county jail, with the opportunity to apply for home detention. This sentence was initiated by the San Joaquin County Court, on the basis of the defendant's age and health condition. Burgess was placed on five years of probation.
The evidence presented required the judicious use of prosecutorial discretion to achieve the best outcome under the circumstances. The San Joaquin County District Attorney's office remains committed to pursuing justice on behalf of the people of the State of California.