People v. Kook

• Decision Date: 12 December 2017
• Docket Number: B269823
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FREDRICK WAYNE KOOK, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. FREDRICK WAYNE KOOK, Defendant and Appellant.

B269823

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

December 12, 2017

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Affirmed.

California Appellate Project, Jonathan B. Steiner and Richard B. Lennon for Defendant and Appellant.

Kamala D. Harris, Attorney 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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INTRODUCTION

Defendant Fredrick Wayne Kook appeals from a postconviction order denying his petition for recall of sentence under Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36 or the Act) (Pen. Code, § 1170.126).¹ The trial court denied the petition on the ground Kook committed a sexually violent offense, an enumerated exclusion under Proposition 36, making him ineligible for relief. Kook argues that because he was convicted for lewd or lascivious acts and not a sexually violent offense, the court erred by reviewing the trial transcript to make its finding that he committed a sexually violent offense. Kook also contends the trial court applied the wrong standard of proof and the evidence did not support the court's conclusion. None of the arguments have merit. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Act

In November 2012, California voters enacted Proposition 36, which revised the three strikes law to preclude indeterminate life sentences unless the current offense (i.e., the third strike) is a serious or violent felony or is a disqualifying offense. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) Proposition 36 also authorized individuals to file petitions for the recall of previously imposed third strike sentences on the ground that they would nothave 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).)

B. 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 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 allegations Kook had two prior strike convictions of robbery (§§ 211, 667, subds. (b)-(i), 1170.12) and one prior conviction of lewd or lascivious acts with a child over the age of 14 where Kook was at least 10 years older than the child (§ 288, subd. (c)(1)). The court sentenced Kook to concurrent three strikes terms of 25 years to life.

C. The Disqualifying Prior Offense of Lewd or Lascivious Acts

In 2001, Kook was charged with three felony counts of lewd or lascivious acts on a 14-year-old, in violation of section 288, subdivision (c)(1). On October 11, 2001, after a court trial, the judge found Kook guilty of all three counts. On November 9, 2001, the court exercised its discretion and reduced counts 1 and 2 to misdemeanors, but count 3 remained a felony. Kook was sentenced to four years in state prison.

The evidence at trial established that in March 2000, Kook was married to Jeannie, 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 drug store to get some medicine for Jeannie,who was feeling ill. After leaving the drug store, Kook drove to the parking lot of a park next to a baseball field. Kook asked Lacey if she wanted to drive the car so she could learn to parallel park. Lacey had driven his 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. She told him she didn't like it, 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, and Kook scooted Lacey close to him again and began rubbing her thigh area again. Lacey started crying and told him to take her home. Kook took Lacey to his house instead. No one else was home. Kook showed Lacey his computer and took a picture of 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 took 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 next day, Kook drove Lacey to school. They were early, and Kook drove past the school. Lacey asked if they were going to the school, and Kook said he thought they would go for a ride first. Lacey testified that 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 then pulled Lacey close to him. He pulled up her skirt and started rubbing her thighs; she kept trying to pull her skirt down. Kook put his other hand under herbra and began touching her breast. Kook did not say anything, just moaned. Lacey was crying and told him she felt uncomfortable and wanted to go home or to school. Kook took her to school.

Lacey did not tell her sister what Kook had done because Lacey was afraid of what might happen to her sister if she did. She was afraid that her sister would get a divorce like their parents or be traumatized. Lacey waited until June to tell an adult friend of her father's what Kook had done to her.

D. Proposition 36 Petition

On February 27, 2013, Kook filed a petition for recall of the sentence under Proposition 36, requesting that he be resentenced as a second strike offender. Kook claimed 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 trial court issued an order to show cause why the petition should not be granted.

The People submitted opposition to 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 was not ineligible for resentencing on this basis, because he was not 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 supplemental opposition to the petition, claiming Kook was 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 committed a sexually violent offense.

Following a hearing, the trial court found Kook ineligible for resentencing under Proposition 36 because he had committed a sexually violent offense. The court explained "[t]he totality of the record...