Opinion
B294498
04-01-2020
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, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Daniel C. Chang, Deputy Attorneys General.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a postconviction order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Daniel C. Chang, Deputy Attorneys General.
Frederick Wayne Kook, who is serving two concurrent 25-year-to-life third strike sentences, 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 one of his prior convictions was for a sexually violent offense—committing a lewd or lascivious act on a child by means of duress (§ 288, subd. (c)(1))—and, separately, because he had been armed with a firearm during the commission of the commitment offenses—unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)) and unlawful possession of ammunition (former § 12316, subd. (b)(1), now § 30305, subd. (a)(1)). On appeal Kook contends the evidence did not support either of the court's findings. We affirm.
Statutory references are to this code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Kook's Commitment Offenses
On September 18, 2008 Long Beach police officers searched Kook's residence pursuant to a warrant. They found 23 firearms as well as ammunition and gun magazines in a 1,000-pound gun safe in the corner of his garage. Kook was in jail at the time the search was conducted but had been seen near his house one week earlier.
Kook was convicted in 2009 of possession of a firearm by a felon and possession of ammunition. 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 14 or 15 years old 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. We affirmed Kook's convictions on appeal. (People v. Kook (July 28, 2010, B217798) [nonpub. opn.].)
2. The Allegedly Disqualifying Prior Sexual 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 lower abdomen and lower back. 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.
3. The Initial Hearing on 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 prior strike convictions made him ineligible for the recall of his sentence. 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 had been committed by means of duress, making the offense a sexually violent one. Kook denied there was evidence of duress and also 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 his prior felony conviction for committing a lewd or lascivious act on a child was based on conduct involving the use of duress, making it a sexually violent offense. 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.
4. Kook's First Appeal
Kook appealed the order denying his petition, arguing the superior court erred by reviewing the trial transcript to make its finding his prior sexual offense had involved the use of duress and in applying a preponderance of the evidence, rather than beyond a reasonable doubt, standard of proof. Kook also argued the evidence did not support the court's finding. We affirmed the order in a nonpublished opinion. (People v. Kook (Dec. 12, 2017, B269823).)
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.5th 225, which held that proof beyond a reasonable doubt is required to establish a petitioner is ineligible for resentencing under Proposition 36. Following receipt of supplemental briefing by Kook and the Attorney General, we reversed the superior court's order and remanded the matter for a new hearing. (People v. Kook (Mar. 28, 2018, B269823) [nonpub. opn.].)
In our opinion we explained, as we had in our original decision in the case, that the Supreme Court in People v. Estrada (2017) 3 Cal.5th 661 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.) Accordingly, we again rejected Kook's claim the superior court had erred by reviewing the trial transcript to make its finding his prior sexual offense involved the use of duress. However, we agreed with Kook the decision whether that evidence established duress beyond a reasonable doubt was properly made by the superior court in the first instance. We also held whether the circumstances underlying Kook's 2009 conviction for possession of a firearm by a felon disqualified him for relief under Proposition 36 similarly involved factual issues properly addressed in the first instance by the superior court.
5. The Second Hearing on Kook's Petition for Recall of Sentence
Following our remand the superior court scheduled a new eligibility hearing for Kook and received supplemental briefs from both Kook and the People. After taking the matter under submission following argument, the court on November 30, 2018 issued a 10-page memorandum of decision again finding Kook ineligible for recall of his sentence and resentencing.
The court found with respect to Kook's conviction for committing a lewd or lascivious act, "[T]he 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." The court noted that Kook also maintained physical control over Lacey "because she had no realistic means of escape." In addition, the court found 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, the court concluded, "Lacey's liberty was being controlled by [Kook's] words, acts and authority against her will."
As for being armed while unlawfully possessing a firearm, the court found Kook "had the weapons available for his use, either offensively or defensively, and at some point in the course of his time when he was not incarcerated."
DISCUSSION
1. Proposition 36
Proposition 36 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 People v. 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 . . . . 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, supra, 3 Cal.5th at p. 667.)
As pertinent to Kook's appeal, section 1170.126, subdivision (e)(2), makes an inmate ineligible for resentencing if his or her current sentence was imposed for any of the offenses appearing in section 667, subdivision (e)(2)(C)(i)-(iii) or section 1170.12, subdivision (c)(2)(C)(i)-(iii), which include an offense in which "the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury." Section 1170.126, subdivision (e)(3), makes an inmate ineligible for resentencing if he or she has a prior conviction for any offense appearing in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv), which includes a "sexually violent offense" as defined in Welfare and Institutions Code section 6600, subdivision (b). A felony violation of section 288, when accomplished "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 another person," is a disqualifying sexually violent offense. (See Welf. & Inst. Code, § 6600, subd. (b).)
2. Substantial Evidence Supports the Superior Court's Finding of Ineligibility Based on Kook's Use of Duress To Commit Lewd or Lascivious Acts on a Child
"Duress" as used in the context of lewd or lascivious acts involving children "means '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 would not otherwise have submitted.'" [Citations.] 'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.' [Citation.] Other relevant facts include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family." (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12; accord, People v. Thomas (2017) 15 Cal.App.5th 1063, 1072; People v. Veale (2008) 160 Cal.App.4th 40, 46; see CALCRIM No. 1111.) "Physical control can create 'duress' without constituting 'force.'" (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.)
Substantial evidence supports the superior court's finding, based on its review of the trial transcript, that Kook committed a felony violation of section 288, subdivision (c)(1), by means of duress. (See People v. Perez (2018) 4 Cal.5th 1055, 1059 ["[T]he trial court's eligibility determination may rely on facts not found by a jury . . . . A reviewing court, in turn, must defer to the trial court's determination if supported by substantial evidence"].) As the court detailed, during the third incident of molestation, instead of taking Lacey directly to school, Kook, her brother-in-law, drove her to an isolated area, a dead end in an alley; locked his truck's doors; and, after ordering her to slide closer to him, pulled her toward him with one hand while fondling her with his other hand. There is no doubt Kook exercised both physical and psychological control over Lacey, repeating his earlier sexual assaults even though Lacey had cried and told him she did not like what he was doing. The superior court properly determined Kook was ineligible for resentencing under Proposition 36.
Because we affirm the superior court's finding that Kook is ineligible for resentencing based on his prior conviction for committing a sexually violent offense, we need not consider Kook's challenge to the additional finding of ineligibility because his current sentence is for an offense during which he was armed with a firearm. --------
DISPOSITION
The postconviction order is affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.