People v. Sindorf, C045737 (Cal. App. 12/11/2007), C045737
| Decision Date | 11 December 2007 |
| Docket Number | C045737 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. KURT EUGENE SINDORF, Defendant and Appellant. |
Appeal from the Super. Ct. No. YKCRBF03539.
This is now our third time to consider this case. In our original opinion we rejected defendant's claim of error under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) based on People v. Black (2005) 35 Cal.4th 1238 (Black I). The United States Supreme Court granted a petition for writ of certiorari, vacated the judgment of this court and remanded the case to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ (Cunningham). After such consideration, we concluded the trial court committed Cunningham error in imposing the upper term on defendant for one of his convictions for unlawful sexual intercourse with a minor. (Pen. Code, § 261.5, subd. (d).)1 We rejected defendant's claim of Cunningham error with respect to the imposition of consecutive sentences. We vacated defendant's sentences in toto and remanded the case for resentencing pursuant to Cunningham, but otherwise affirmed the judgment. The California Supreme Court subsequently decided People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). The California Supreme Court granted review in this case and has transferred the matter back to us for consideration of Black II and Sandoval. The time for supplemental briefing pursuant to California Rules of Court, rule 8.200(b) has expired without our receiving anything from the parties. We now reissue our previous opinion with a further modification of the section dealing with defendant's claim of Cunningham error.
After a court trial, defendant Kurt Eugene Sindorf was convicted of three counts of committing a lewd and lascivious act on a child aged 15, defendant being at least 10 years older than the child (§ 288, subd. (c)(1)), six counts of unlawful sexual intercourse with a minor (§ 261.5, subd. (d)), one count of oral copulation with a minor (§ 288a, subd. (b)(2)), and two counts of attempting to dissuade a witness. (§ 136.1, subd. (a)(2).) Defendant was sentenced to state prison for the upper term of four years for one of his convictions of unlawful sexual intercourse, given consecutive one-third of the middle term or one-year sentences for two of his other convictions of unlawful sexual intercourse, given a two-year consecutive term for one of his convictions of attempting to dissuade a witness and concurrent middle terms for the remainder of his convictions, for a total prison sentence of eight years.
On appeal defendant contends (1) the loss of the district attorney's files and the resulting failure to provide the defense with exonerating information from those files violated defendant's state and federal constitutional rights to due process, to confront witnesses and to present a defense, (2) he has been denied meaningful appellate review of the trial court's order denying his motion to compel discovery, (3) the trial court erred in allowing the district attorney's investigator to render an expert opinion on the usual behavior of underage girls who have been molested by older men with whom they are romantically involved, (4) the circumstances underlying the victim's testimony were so inherently conducive to perjury and her testimony was so inherently unreliable that her testimony could not support the verdicts as a matter of law, and (5) defendant's waiver of his right to jury trial was not knowing and intelligent because he was not informed he was giving up the right to have factors affecting his sentence heard by a jury pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely, supra, 542 U.S. 296 , and Cunningham, supra, 549 U.S. __ . Defendant claims his jury trial waiver was invalid in its entirety and that he is entitled to reversal and a remand for a new trial.
We reject defendant's contentions. As to the last issue, we conclude the scope of defendant's waiver of his right to jury trial was limited to the trial on his guilt or innocence of the charged offenses and did not include his right to have a jury determine the factors relevant to the imposition of an upper term. Therefore, his jury waiver was not invalid in its entirety and we shall affirm the judgment of conviction, but based on Cunningham we shall remand for resentencing.
C.M. was 10 years old when she first met defendant who was one of her mother's coworkers. She became more familiar with defendant when she was 15 years old. Defendant often came into the market where C.M. worked.
In September 2000, when C.M. was 15 years old, defendant, who was 37 years old at the time, began a sexual relationship with her. After a day of hunting in Redding with defendant and his five-year-old son, C.M. invited them over to her house for dinner. Her mother was not at home. After dinner, when they were sitting on the couch watching TV and defendant's son had fallen asleep, defendant said, "I don't know if I should do what I'm about to do." Not knowing what he was talking about, C.M. replied, "You don't know until you try." Defendant reached over and started to kiss her. Defendant reached under C.M.'s shirt and touched her breasts over her bra. He laid her down on the couch and continued to touch her. C.M. did not refuse him as she had some feelings for him. They moved to her bedroom where defendant undressed her and himself. Defendant laid C.M. down on her bed and got on top of her. He put first his fingers, then his penis into her vagina. After about 15 minutes of sex, they got dressed and went back out to the living room. Defendant did not spend the night.
The next day C.M. got an e-mail message that said:
Approximately a week later, C.M. had sex again with defendant, this time at his house. Defendant again penetrated her vagina with his fingers and penis. She spent the night with him in his bed.
A couple of weeks later, while C.M.'s mother was in the hospital, C.M. and defendant had sex again at defendant's house. Defendant touched her breasts and placed his fingers in her vagina. Then they had intercourse. C.M. spent the night in defendant's bed.
Around this time, defendant and C.M. went to J.C. Penney's where defendant bought her an engagement ring, costing $1,000, to replace the promise ring he had earlier given her. Defendant talked to C.M. about marriage and wanted to go to Hawaii where it was legal to get married before she turned 18. They discussed her current age. Defendant told C.M. not to wear the ring in public or in front of her mother.
C.M. and defendant made another trip to Redding within a month after defendant bought her the engagement ring. On the way home in the car, defendant asked C.M. to give him a "blow job" while he was driving. She told him she was uncomfortable, but he wanted her to do it. Defendant undid his belt, unzipped his pants, and pulled them down. C.M. sucked on his penis for maybe two minutes. She was really uncomfortable and stopped. Defendant put his arm around her and said it was okay.
On another occasion, between November and December 2000, C.M. was up by defendant's house. Defendant's son was sleeping in the truck and defendant asked C.M. to go into the house with him to have sex. Although she felt bad because defendant's son was sleeping in the truck, they went inside and had sex.
During November 2000 C.M., her mother S., defendant and defendant's son went on a trip to Canada. One evening S. was not feeling well and wanted to stay at the motel. C.M. and defendant drove to a restaurant for something to eat. Defendant sat next to C.M. and they were holding hands when C.M. saw her mom standing at the window of the restaurant watching them. S. came into the restaurant and yelled at C.M. She demanded to know what was going on. She wanted C.M. to walk back to the motel and pack her stuff to go. C.M. defied her mother and refused. Later, when they were back in their motel room, S. threatened to "call the cops" if C.M. would not leave with her. Defendant came to their room and told C.M. to go with her mom. C.M. refused. Her mother called the police, who came and took C.M. and her mother to another hotel.
In December 2000, defendant sent C.M. an e-mail to an address he had set up for her, stating:
C.M. and defendant had a meeting spot by the elementary school by C.M.'s house, which they referred to as "the rock." Defendant set it up as a place to meet and leave each other letters. After returning from Canada, around March of 2001, C.M. and defendant were at the rock. Defendant laid his jacket on the ground and wanted to have sex. C.M. told him that she did not want to. There was snow on the ground. Defendant told her everything would be okay and just to do what he told her. He laid her down on his jacket and they had sex even though she told him no.
The last time C.M. had sex with defendant was in March 2001 when C.M. was supposed to meet defendant on the hill. When he failed to show up, she started walking home. Defendant drove up and asked C.M. to get in his truck. C.M. got in and they had sex.
C.M....
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