Opinion
B269823
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. FREDRICK WAYNE KOOK, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA079985) APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Reversed and remanded. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
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Frederick Wayne Kook petitioned for recall of sentence under Proposition 36, the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126). The superior court denied the petition, finding Kook was ineligible for relief because he had a prior conviction for a sexually violent offense. On appeal Kook, whose disqualifying prior conviction was for committing a lewd or lascivious act on a child (§ 288, subd. (c)(1)), contends the court erred by reviewing the trial transcript to make its finding the offense involved the use of duress and in applying a preponderance of the evidence, rather than beyond a reasonable doubt, standard of proof. Kook also contends the evidence did not support the court's finding.
Statutory references are to this code unless otherwise stated. --------
In our original opinion, filed December 12, 2017, we rejected each of Kook's arguments and affirmed the superior court's order. On February 14, 2018 the Supreme Court granted Kook's petition for review and transferred the matter to us with directions to vacate our decision and to reconsider the cause in light of People v. Frierson (2017) 4 Cal.4th 225 (Frierson), which held that proof beyond a reasonable doubt is required to establish a petitioner is ineligible for resentencing under the Reform Act.
In supplemental briefing the People concede the superior court erred in using a preponderance of the evidence standard when finding Kook had a disqualifying prior conviction but argue the error was harmless because a review of the evidence establishes beyond a reasonable doubt that Kook used duress when committing the underlying crime. The People also contend Kook is ineligible for resentencing because he was armed with a firearm during the commitment offense, an argument advanced in the superior court but not decided by that court or addressed in our original opinion.
We agree with Kook that the superior court should reevaluate his eligibility for resentencing under Proposition 36 in the first instance, using the proper standard of proof. Accordingly, we reverse the superior court's order and remand the matter for a new hearing.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Three Strikes Reform Act of 2012
The Three Strikes Reform Act of 2012 amended the three strikes sentencing scheme by providing, in general, a recidivist is not subject to an indeterminate life term for a third felony that is neither serious nor violent unless the offense satisfies other criteria identified in the statutes. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C); see Frierson, supra, 4 Cal.5th at p. 229.) It also permitted some inmates serving a three strikes sentence to petition for the recall and modification of their current sentence on the ground they would not have been subject to an indeterminate life sentence had Proposition 36 been in effect at the time of their sentencing. (§ 1170.126, subd. (b).)
"The Act applies both prospectively and to defendants already sentenced under the prereform version of the Three Strikes law. A defendant with two prior strikes convicted of a nonserious, nonviolent felony cannot be sentenced to a third strike term unless the prosecution 'pleads and proves' that one of the Act's exceptions applies. (§ 1170.12, subd. (c)(2)(C).) For those sentenced under the scheme previously in force, the Act establishes procedures for convicted individuals to seek resentencing in accordance with the new sentencing rules. (§ 1170.126.) The procedures call for two determinations. First, an inmate must be eligible for resentencing. (§ 1170.126, subd. (e)(2).) An inmate is eligible for resentencing if his or her current sentence was not imposed for a violent or serious felony and was not imposed for any of the offenses described in clauses (i) to (iv) of section 1170.12, subdivision (c)(2)(C). (§ 1170.126, subd. (e)(2).) Those clauses describe certain kinds of criminal conduct, including [a sexually violent offense]. Second, an inmate must be suitable for resentencing. Even if eligible, a defendant is unsuitable for resentencing if 'the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.126, subd. (f).) If an inmate is found both eligible and suitable, the inmate's third strike sentence is recalled, and the inmate is resentenced to a second-strike sentence. (Ibid.; § 1170.12, subd. (c)(1).)" (People v. Estrada (2017) 3 Cal.5th 661, 667 (Estrada).)
2. Kook ' s Commitment Offenses
On September 18, 2008 Long Beach police officers searched Kook's residence pursuant to a warrant. They found firearms and ammunition in a gun safe in the corner of his garage. Kook was in jail at the time the search was conducted.
Kook was convicted in 2009 of possession of a firearm by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)) and possession of ammunition (former § 12316, subd. (b)(1), now § 30305, subd. (a)(1)). The court found true the special allegations Kook had two prior strike convictions for robbery (§§ 211, 667, subds. (b)-(i), 1170.12) and one prior conviction for committing lewd or lascivious acts with a child over the age of 14 when Kook was at least 10 years older than the child (§ 288, subd. (c)(1)). The court sentenced Kook under the three strikes law to two concurrent indeterminate terms of 25 years to life.
3. The Allegedly Disqualifying Prior Offense
In 2001 Kook was charged with three felony counts of committing lewd or lascivious acts on a 14-year-old child in violation of section 288, subdivision (c)(1). On October 11, 2001, after a bench trial, the court found Kook guilty on all three charges. On November 9, 2001 the court exercised its discretion and reduced two of the counts to misdemeanors, but the third count remained a felony. Kook was sentenced to four years in state prison.
The evidence at the 2001 trial established that in March 2000 Kook was married to the older sister of 14-year-old Lacey L. Lacey lived at her father's house. One day in March Kook drove to Lacey's house and told her he was going to bring her back to his house because her sister wanted her to babysit. They stopped along the way at a drugstore to purchase medicine for Kook's wife, who was feeling ill. After leaving the drugstore, Kook drove to a parking lot next to a baseball field. Kook asked Lacey if she wanted to practice parallel parking. Lacey had driven Kook's truck once before and enjoyed it. Kook had Lacey scoot over next to him. When she started to drive, he began stroking the inner and outer portions of her thighs all the way up to her vagina. He made soft noises as he did so. Lacey told Kook she did not like what he was doing, and he took his hand away. Kook "tried to play it off as if nothing had happened."
After Lacey finished driving, they parked on the street under a large tree. Kook again scooted Lacey close to him and resumed rubbing her thigh area. Lacey started crying and told Kook to take her home. Kook drove Lacey to his house instead. No one else was home. Kook showed Lacey his computer and photographed her with his web-cam. Kook tried to get her to pose by touching her in different places. He took more pictures of her and told her she had "an awesome body and . . . should do modeling work."
The next morning Kook drove Lacey to school. Lacey rode the bus home after school. She returned to Kook's house that night to babysit because her sister needed to go to the doctor. Lacey spent the night at Kook's house.
The following day Kook once again drove Lacey to school. They were early, and Kook drove past the school. Lacey asked if they were going to the school; Kook said he thought they would go for a ride first. Lacey testified Kook backed into an alley, "[a]nd he locked the doors and he told me to scoot over, and so I was scared so I did what he told me to." Kook pulled Lacey close to him, pushed up her skirt and started rubbing her thighs; she kept trying to pull her skirt down. Kook placed his other hand under her bra and began touching her breast. Kook did not say anything, just moaned. Crying, Lacey told Kook she felt uncomfortable and wanted to go home or to school. Kook took her to school.
Lacey did not tell her sister about Kook's actions because she was afraid of what might happen to her sister if she did. Lacey was worried her sister might get a divorce like their parents or be traumatized. She waited until June 2001 to tell an adult friend of her father's what Kook had done to her.
4. Kook's Petition for Recall of Sentence
On February 27, 2013 Kook petitioned for recall of his 2009 three strikes sentence under Proposition 36, requesting he be resentenced as a second strike offender. Kook maintained that neither his commitment offenses nor his two prior strikes rendered him ineligible for the recall of his sentence. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C), 1170.126, subd. (e).) On March 26, 2013 the superior court issued an order to show cause why the petition should not be granted.
The People opposed the petition, asserting Kook was ineligible for resentencing under section 1170.126, subdivision (e)(2), because "[d]uring the commission of the current offense, the defendant . . . was armed with a firearm or deadly weapon . . . ." (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) In response Kook argued he had not been present when the firearms and ammunition were found in his garage and, therefore, he was not armed during the commission of the offenses.
The People filed a supplemental opposition to the petition, contending Kook was also ineligible for resentencing because he had a prior conviction for a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b). (§§ 667, subd. (e)(2)(C)(iv)(I), 1170.12, subd. (c)(2)(C)(iv)(I), 1170.126, subd. (e)(3).) They argued the evidence was sufficient to support a finding the lewd or lascivious acts against Lacey were committed by means of duress, making the offense a sexually violent one. Kook denied there was evidence of duress and argued he was entitled to a jury trial on the question whether he had committed a sexually violent offense.
Following a hearing, the superior court found by a preponderance of the evidence that Kook was ineligible for resentencing because he had committed a sexually violent offense. The court explained, "The totality of the record demonstrates that [Kook] asserted physical control over Lacey by driving her to a dead end in an alley, locking the vehicle doors, ordering her to [scoot] closer to him, and pulling Lacey closer to him with one hand while he groped her using his other hand. Lacey was scared and she cried throughout the incident. Lacey repeatedly pulled her skirt down, which implied she did not want her upper thighs to be exposed. Lacey expressly told [Kook] that '"I don't like that"' and '"please don't do that."' [Kook] also maintained physical control over Lacey because she had no realistic means of escape. . . . [P]hysical control can create 'duress' without constituting 'force.'"
The court added, "Lacey was particularly vulnerable because [Kook] was her brother-in-law, he was 37 years older than Lacey, Lacey was concerned that reporting [Kook's] actions could result in a divorce between [Kook] and her sister, and she relied on [Kook] for a ride to school. . . . [¶] From the perspective of a 14-year-old girl, [Kook] created a coercive atmosphere such that Lacey's liberty was being controlled by [Kook's] words, acts and authority against her will. . . . [I]t is clear that Lacey was pressured to endure [Kook's] inappropriate acts because she was in fear of danger, as evidence[d] by her repeated testimony that she was scared."
Based on the record before it, the court concluded, it had no trouble finding the prior conviction was committed by duress, making it a violent sexual offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b). The court discharged the order to show cause and denied Kook's petition. It did not decide whether Kook was also ineligible for resentencing because he was armed with a firearm in the commission of the 2008 offenses.
DISCUSSION
1. The Superior Court Did Not Err by Reviewing the Trial Record and Making Factual Findings Beyond Those Encompassed by the Judgment
Kook argues the superior court erred by reviewing the record of his 2001 conviction and making findings beyond those established by the elements of the crime itself. Because he was convicted of committing lewd or lascivious acts upon a child, Kook contends, "the only things that the verdict and evidence reflect are that [he] briefly touched [Lacey's] breast." According to Kook, the court was foreclosed from looking beyond those specific facts to determine he was ineligible for resentencing based on trial testimony.
In Estrada, supra, 3 Cal.5th 661, decided after briefing was completed in this case, the Supreme Court held a superior court may deny resentencing under Proposition 36 based on facts developed from preliminary hearing transcripts, including facts related to dismissed counts. (Id. at pp. 672, 676.) "Precluding a court from considering facts not encompassed within the judgment of conviction would be inconsistent with the text, structure, and purpose of sections 1170.12, subdivision (c)(2)(C)(iii) and 1170.126, subdivision (e)(2)—and would, by consequence, impose an unnecessary limitation." (Estrada at p. 672.) Estrada requires that we reject this claim of error.
2. The Superior Court Employed the Incorrect Standard of Proof
The superior court found by a preponderance of the evidence that Kook had committed a disqualifying sexually violent offense. Following most other courts of appeal that had decided the issue, in our original decision we rejected Kook's contention the superior court erred and the correct standard was proof beyond a reasonable doubt. The Supreme Court in Frierson, supra, 4 Cal.5th 225, agreed with Kook's position: "Although the resentencing provision of section 1170.126 does not expressly reference a standard of proof, . . . we conclude that the parallel construction of the prospective and retrospective portions of the Reform Act [Proposition 36] reflects an electoral intent to apply the same standard for proof of ineligibility for second strike sentencing in both contexts. As such, the Reform Act 'otherwise provide[s]' for a different standard of proof, beyond a reasonable doubt, and the default preponderance standard does not apply." (Frierson, at p. 236.)
The Supreme Court explained, "Applying a reasonable doubt standard to proof of ineligibility for resentencing preserves the parallel structure between the prospective and retroactive application of the Three Strikes law as contemplated by the Reform Act. Simultaneously, the trial court's discretion to deny resentencing to a defendant who poses an unreasonable danger to the public acts as a safeguard in cases where the record does not establish ineligibility criteria beyond a reasonable doubt. In exercising its discretion, the court may consider a wide variety of factors, such as the petitioner's whole criminal history, including 'the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes,' a petitioner's 'disciplinary record and record of rehabilitation while incarcerated,' and any other relevant evidence. [Citation.] Placing on the People a burden of proof beyond a reasonable doubt to establish ineligibility for resentencing, while permitting the court to exercise its broader discretion to protect public safety, is an approach that comports with the overall structure and language of the Act and its dual intent." (Frierson, supra, 4 Cal.5th at pp. 239-240.)
3. The Matter Must Be Remanded for a New Hearing Using the Correct Standard of Proof
The People concede the superior court erred when it employed a preponderance standard of proof in determining Kook was ineligible for relief under section 1170.126, subdivision (e)(3), but contend the error was harmless because the materials from his 2001 record of conviction establish beyond a reasonable doubt he used duress when molesting Lacey and thus committed a sexually violent offense. In addition, the People argue, even if the duress finding was made in error, it was harmless because Kook was armed with a firearm during the 2008 offenses (his current commitment offenses) and, therefore, was ineligible for resentencing under Proposition 36.
For purposes of Proposition 36, a sexually violent offense is one "committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person." (Welf. & Inst. Code, § 6600, subd. (b).) In People v. Schulz (1992) 2 Cal.App.4th 999, 1005, the court explained that "[p]hysical control can create 'duress' without constituting 'force.' 'Duress' would be redundant in the cited statute[] if its meaning were no different than 'force,' 'violence,' 'menace,' or 'fear of immediate and unlawful bodily injury.' [Citation.] 'Duress' has been defined as 'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' [Citation.] . . . [D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] 'Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim' is relevant to the existence of duress." In determining the existence of duress, a court must look at the totality of the circumstances, including the victim's age, her relationship to the defendant, and physical control over the victim if she attempts to resist. (People v. Veale (2008) 160 Cal.App.4th 40, 46.)
Although, as the People emphasize in their supplemental respondent's brief, in our original opinion we found the evidence of Kook's conduct sufficient to support the superior court's finding of duress, we cannot say the evidence compelled that finding as a matter of law, nor is it necessarily the case that the evidence establishes duress beyond a reasonable doubt when viewed by a finder of fact authorized to weigh credibility, which we are not. That determination is properly made by the superior court in the first instance. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 [appellate court should defer to factual determinations made by trial court when the evidence is in conflict; "[t]his is true whether the trial court's ruling is based on oral testimony or declarations"]; Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, 1183 [appellate court properly defers to trial court's determination of witness credibility whether based on affidavits or declaration or following oral testimony].)
Similarly, whether the circumstances underlying Kook's 2009 conviction for possession of a firearm by a felon, viewed in the light of governing case law (see, e.g., People v. Cruz (2017) 15 Cal.App.5th 1105, 1109-1110 [armed with a firearm has been statutorily defined and judicially construed to mean having a firearm available for use either offensively or defensively]), disqualify him for relief under Proposition 36 involves resolution of factual issues properly addressed in the first instance by the superior court.
DISPOSITION
The postconviction order is reversed, and the matter remanded with directions to conduct a new evidentiary hearing utilizing the proper standard of proof as established in Frierson, supra, 4 Cal.5th 225.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.