P. v. Kook

Filed 12/12/17 P. v. Kook CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
FREDRICK WAYNE KOOK,
Defendant and Appellant.
B269823
(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 not
1 Unless otherwise specified, all further statutory references
are to the Penal Code.

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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).)

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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,

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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 her

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bra 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.

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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 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 ‘scott’ [sic] 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.” The court noted,
relying on People v. Schulz (1992) 2 Cal.App.4th 999, 1005, that
“physical control can create ‘duress’ without constituting ‘force.’”
The court added that “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

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relied on [Kook] for a ride to school.” (See People v. Schulz,
supra, 2 Cal.App.4th at p. 1005.) Moreover, “[f]rom 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.” (See People
v. Arnold (1992) 6 Cal.App.4th 18, 31.) The court found it “clear
that Lacey was pressured to endure [Kook’s] inappropriate acts
because she was in fear of danger, as evidence by her repeated
testimony that she was scared. (People v. Perez (2010) 182
Cal.App.4th 231, 243 . . . .) [¶] On this record, the court ha[d] no
trouble in concluding that the prior conviction was committed by
duress, making i[t] a violen[t] sexual offense within the meaning
of Welfare and Institutions Code section 6600, subdivision (b).”
(Fn. omitted.)
The court therefore found by a preponderance of the
evidence that Kook was ineligible for resentencing under
Proposition 36. It 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 offenses.
DISCUSSION
Kook contends the trial court erred in finding he was
ineligible for resentencing under Proposition 36 for three reasons.
First, he claims the trial court erred by reviewing the record
outside of what was necessary to establish the count of conviction
and making its own eligibility findings. Second, he claims the
trial court applied the incorrect standard of proof. Finally, he
claims the record does not support a finding he committed a

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sexually violent offense. For the reasons set forth below, we
reject these claims and find no error in the determination of
ineligibility.
A. Trial Court Did Not Err By Reviewing the Record and
Making Factual Findings
Kook argues the trial court erred by reviewing the record
and making findings beyond those established by the elements of
the crime of conviction. Because he was convicted of lewd or
lascivious acts, 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 precluded from looking
beyond these specific facts to make its eligibility finding.
Recently, the California Supreme Court in Estrada, supra,
3 Cal.5th 661, determined that a trial court may deny
resentencing under Proposition 36 based on facts developed from
the preliminary hearing transcripts related to dismissed counts.
Challenging the trial court’s denial of his resentencing, the
defendant in Estrada made the very argument Kook makes here:
“Proposition 36 . . . precludes courts reviewing a petition to recall
a sentence from making a factual finding” beyond those
encompassed in the count of conviction. (Id. at p. 668.)
In 1996, Estrada pled guilty to one count of grand theft.
Under the plea agreement, the prosecution dismissed a firearm
use allegation related to the count of conviction, and robbery,
burglary and false imprisonment based upon the same incident
that led to the conviction. Estrada argued the trial court
impermissibly based its finding of ineligibility for resentencing on
conduct tied to the robbery count and firearm use, which were
dismissed pursuant to the plea agreement. The trial court found

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that Estrada was armed with a firearm or deadly weapon during
the commission of the offense. “To make this determination, the
court considered more than just the facts established by
Estrada’s guilty plea. It also considered transcripts of Estrada’s
preliminary hearing, during which the employee testified that
Estrada was armed when he stole from a Radio Shack. What is
more, the trial court considered this testimony even though it
was also connected to a robbery count and a firearm use
allegation that the prosecution dismissed pursuant to the plea
agreement.” (Estrada, supra, 3 Cal.5th at pp. 667-668.)
The Supreme Court framed the issue as follows: “The trial
court’s decision to consider this testimony raised the question we
must now resolve: whether a court may rely on facts connected to
a dismissed count to find that ‘the defendant . . . was armed with
a firearm or deadly weapon’ during the commission of a third
strike offense, which renders an inmate ineligible for Proposition
36 recall of sentence. [Citations.] To answer this question, we
must first resolve whether a court may consider facts beyond
those encompassed by the judgment when making an eligibility
determination under section 1170.12, subdivision (c)(2)(C)(iii). If
the answer is yes, we must then decide whether a court may
consider the subset of those facts connected to dismissed counts
when making that determination.” (Estrada, supra, 3 Cal.5th at
p. 668.)
The court ruled that a court considering a recall petition
may consider facts beyond those encompassed in the judgment
and may also consider the subset of facts connected to dismissed
counts. The court found no error with the trial court’s review of
the preliminary hearing transcript to determine that Estrada

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was armed with a firearm during the commission of the offense.
(Estrada, supra, 3 Cal.5th at p. 676.)
Given the California Supreme Court’s ruling in Estrada,
Kook’s argument that a trial court cannot consider facts beyond
the count of conviction is foreclosed.2 Consequently, the trial
court did not err by considering the underlying facts in
determining the conviction constituted a sexually violent offense
within the meaning of section 1170.12, subdivision (c)(2)(C)(IV).3
2 In support of his argument that the court’s inquiry is
limited to review of the facts related to the essential elements of
the conviction, Kook relies upon People v. Guerrero (1988) 44
Cal.3d 343 and People v. Berry (2015) 235 Cal.App.4th 1417,
disapproved in Estrada, supra, 3 Cal.5th at page 675. In
Estrada, the Supreme Court addressed both cases and rejected
this argument. With respect to Guerrero, the court observed that
nothing in Proposition 36 suggested the court is limited to a
consideration of the facts established by the judgment of
conviction. (Estrada, supra, 3 Cal.5th at p. 672; see also People v.
Cruz (2017) 15 Cal.App.5th 1105, 1110 [citing Estrada, “Guerrero
does not preclude a Proposition 36 court from considering facts
not encompassed within the judgment of conviction”].) The
Estrada court disapproved Berry “to the extent it holds that a
court is precluded from considering facts demonstrating that an
inmate was armed during a third strike offense, simply because
those facts also support a count the court dismissed.” (Estrada,
supra, at p. 675.)
3 Prior to the Supreme Court’s ruling in Estrada numerous
cases had reached the same conclusion. (See People v. Blakely
(2014) 225 Cal.App.4th 1042, 1063 [“a trial court determining
eligibility for resentencing under the Act is not limited to a
consideration of the elements of the current offense and the
evidence that was presented at the trial (or plea proceedings) at
which the defendant was convicted” but “may examine relevant,

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B. The Trial Court Properly Applied the Preponderance of the
Evidence Standard of Proof
The trial court found by a preponderance of the evidence
that Kook committed a disqualifying sexually violent offense.
Kook contends the trial court applied the wrong standard of proof
in determining his eligibility. When the trial court made its
ruling in this case in January of 2016, there was no dispute over
the standard to be applied, The standard to be used was
preponderance of the evidence. (People v. Blakely, supra, 225
Cal.App.4th at pp. 1061-1062 [preponderance of the evidence
standard applies to determination of eligibility for resentencing];
People v. Osuna (2014) 225 Cal.App.4th 1020, 1040 [same]; see
People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279,
1305 [preponderance of the evidence standard applies to finding
of dangerousness under Proposition 36].) However, in March of
2016, the court in People v. Arevalo (2016) 244 Cal.App.4th 836
(Arevalo) found otherwise and determined “the correct standard
of proof is beyond a reasonable doubt.” (Id. at p. 848.)4 Kook
reliable, admissible portions of the record of conviction to
determine the existence or nonexistence of disqualifying factors”];
see also People v. Perez (2016) 3 Cal.App.5th 812, 832 [same],
review granted Jan. 11, 2017, S238354; People v. Newman (2016)
2 Cal.App.5th 718, 725-726 [same], review granted Nov. 22, 2016,
S237491; People v. Brimmer (2014) 230 Cal.App.4th 782, 800-801
[court may rely on record of conviction including transcripts and
prior appellate opinion]; People v. White (2014) 223 Cal.App.4th
512, 524-527 [proof of disqualification may be made based on the
evidence, not the elements of the offense].)
4 While the court in People v. Bradford (2014) 227
Cal.App.4th 1322 did not reach the issue concerning the
appropriate standard of proof, one justice, in his concurring

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contends, based upon Arevalo, that the trial court erred by
applying the preponderance of the evidence standard.
The issue concerning the correct standard of proof is
currently before the California Supreme Court in People v.
Frierson (2016) 1 Cal.App.5th 788, review granted October 19,
2016, S236728.5 In Frierson, Division Four of this district
observed that once a defendant makes a prima facie showing that
a conviction qualifies for resentencing under the Act, the burden
shifts to the prosecutor to prove disqualification, and it has
generally been accepted that the standard of proof is by a
preponderance of the evidence. (Id. at p. 793.) The court
explained that “[p]reponderance is the general standard under
California law, and there is no showing that trial courts will be
unable to apply it fairly and with due consideration. Nor is there
a showing that they have failed to do so. We do not believe that a
higher standard, let alone proof beyond a reasonable doubt, the
highest standard possible, is constitutionally required.” (Id. at
p. 794).
opinion, discussed the three standards of proof (preponderance,
clear and convincing, and beyond a reasonable doubt) and
expressed his view that “a heightened burden of proof by clear
and convincing evidence” (id. at p. 1346, conc. opn. of Raye, J.)
appeared to be appropriate in light of the important rights at
stake. (Id. at pp. 1350-1351.)
5 In its grant of review, the Supreme Court stated, “The issue
to be briefed and argued is limited to the following: What is the
standard of proof for a finding of ineligibility for resentencing
under Proposition 36?” (People v. Frierson (2016) 2016 Cal.
LEXIS 8793.)

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Since Arevalo, appellate courts have continued to affirm the
use of the preponderance of the evidence standard. “[T]he battle
lines have been drawn with beyond a reasonable doubt, on one
side, and preponderance of the evidence, on the other. The
published appellate court opinions espousing a standard of proof
thus far have all come down on the side of preponderance of the
evidence, except for one, Arevalo . . . , in which the court
embraced the beyond a reasonable doubt standard of proof.”
(People v. Newman, supra, 2 Cal.App.5th at p. 728; see People v.
Valdez (2017) 10 Cal.App.5th 1338, 1346, review granted Aug. 9,
2017, S242240.6
Until the Supreme Court decides this issue, we believe the
appropriate standard to be applied is preponderance of the
evidence. The beyond a reasonable doubt standard is not
statutorily nor constitutionally required. Proposition 36 does not
include within its language the applicable standard of proof. “As
a statutory matter, preponderance of the evidence therefore is the
appropriate standard. Evidence Code section 115 provides in
pertinent part: ‘Except as otherwise provided by law, the burden
of proof requires proof by a preponderance of the evidence.’”
(People v. Newman, supra, 2 Cal.App.5th at pp. 728-729.) Nor is
such a standard constitutionally required. “As a general matter,
beyond a reasonable doubt, the highest standard of proof,
implicates issues regarding guilt or innocence of a charged crime
but not sentencing.” (Id. at p. 731.) Citing the United States
6 The order granting the petition for review stated, “Further
action is this matter is deferred pending consideration and
disposition of a related issue in [Frierson] . . . , or pending further
order of the court.” (People v. Valdez (2017) 2017 Cal. LEXIS
6196.)

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Supreme Court’s opinion in United States v. Watts (1997) 519
U.S. 148 [117 S.Ct. 633, 136 L.Ed.2d 554], the Newman court
observed the “‘application of the preponderance standard at
sentencing generally satisfies due process.’” (Newman, supra, at
p. 732; see also People v. Towne (2008) 44 Cal.4th 63, 86
[“‘constitutional requirement of a jury trial and proof beyond a
reasonable doubt applies only to a fact that is “legally essential to
the punishment,”’” but “[f]acts relevant to sentencing need be
proved only by a preponderance of the evidence”].) Moreover,
because Proposition 36 operates to decrease a defendant’s
punishment, not to increase the penalty for a crime beyond the
prescribed statutory maximum, the Sixth Amendment does not
require that findings be made by a jury or that they be
determined beyond a reasonable doubt.7 (Newman, supra, at
p. 732; accord, People v. Osuna, supra, 225 Cal.App.4th at p. 1040
[“Because a determination of eligibility under section 1170.126
does not implicate the Sixth Amendment, a trial court need only
find the existence of a disqualifying factor by a preponderance of
the evidence”]; see also People v. Frierson, supra, 1 Cal.App.5th
at p. 793, [“there is no right to a jury trial on issues going to the
defendant’s entitlement to a sentence reduction”].)
7 Under federal constitutional law, any finding which
increases a penalty beyond the statutory maximum must be
proven beyond a reasonable doubt. (See Cunningham v.
California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856];
Blakely v. Washington (2004) 542 U.S 296 [124 S.Ct. 2531, 159
L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466 [120
S.Ct. 2348, 147 L.Ed.2d 435].) Proposition 36 reduces rather
than increases criminal penalties. Thus, federal constitutional
law does not require findings on a Proposition 36 petition to be
proved beyond a reasonable doubt.

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Based on the foregoing, and consistent with the majority of
the decisions on the issue, we conclude the trial court correctly
employed the preponderance of the evidence standard of proof.
C. Substantial Evidence Supports the Trial Court’s Finding of
Ineligibility
“We review the factual basis for the trial court’s finding of
resentencing ineligibility under the substantial evidence test. We
review the whole record in a light most favorable to the order to
determine whether it contains substantial evidence, i.e., evidence
that is credible and of solid value, from which a rational trier of
fact could find ineligibility by a preponderance of the evidence.
[Citations.]” (People v. Valdez, supra, 10 Cal.App.5th at p. 1346;
accord, People v. Perez, supra, 3 Cal.App.5th at pp. 821-822; see
People v. Osuna, supra, 225 Cal.App.4th at p. 1040.)
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, supra, 2 Cal.App.4th at page
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

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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. [Citation.]” In determining
the existence of duress, we 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.)
In Schulz, “[t]he victim, then nine years old, was crying
while defendant, her adult uncle, restrained and fondled her. On
this occasion he took advantage not only of his psychological
dominance as an adult authority figure, but also of his physical
dominance to overcome her resistance to molestation. This
qualifies as duress. [Citations.]” (People v. Schulz, supra, 2
Cal.App.4th at p. 1005.) In People v. Veale, supra, 160
Cal.App.4th 40, the seven-year-old victim was molested by her
stepfather, an authority figure in the household, when they were
alone together in a locked room. The victim was afraid of the
defendant and afraid that if she told anyone about the
molestation, he would kill her or her mother. The court found
this constituted sufficient evidence of duress. (Id. at pp. 46-47.)
The situation here is similar. Kook, who was 37 years older
than Lacey and Lacey’s brother-in-law, drove Lacey to his house
and along the way took advantage of the situation to touch
Lacey’s thighs. She told him she did not like it; nonetheless, a
short time later, he did it again. She started crying and asked to

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go home. Instead he took her to his house, where he
complimented her appearance, told her she should be a model,
and physically positioned her body while he photographed her.
Two days later, Kook drove Lacey to school after she again
babysat for her sister. He took her for a ride, backed into an
alley, locked the doors and told her to move closer to him. She
was scared and complied out of fear. He pulled her closer, raised
her skirt and touched her thighs, and touched her breast under
her bra. Lacey tried to pull her skirt down. She was crying and
told him she felt uncomfortable and wanted to go. Lacey did not
report these incidents because she was afraid her sister would get
a divorce or be traumatized if she did.8
Kook took advantage of his psychological dominance as an
adult authority figure married to Lacey’s sister, who was sick and
8 We note that Kook does not dispute the facts, but merely
whether, as a matter of law, they constitute duress. For example,
Kook argues that after he parked the truck and locked the car by
pressing the automatic lock button, Lacey “admitted that she
could have still gotten out had she so chosen.” On cross-
examination, Lacey was asked:
“Q And by locking the doors, you’re talking about he hit
the automatic lock on his side?
“A Yes.
“Q So the knob next to you went down?
“A Yes.
“Q Such that you could have picked it up and opened it
up if you wanted to?
“A Yes, that’s true.”
The proposition that she could have physically pulled open the
pin of the locked door misses the operative point that she did not
do so because she was alone in Kook’s truck, tucked away in an
alley, scared and afraid.

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needed Lacey to babysit. Kook placed her in situations where he
was alone with her and could take advantage of her. In the
incident in question, Kook isolated Lacey in an alley and locked
the doors to his truck, taking advantage of his physical
dominance, age, and family relationship to commit the crime. As
in Schulz, “[t]his qualifies as duress.” (People v. Schulz, supra, 2
Cal.App.4th at p. 1005; see also People v. Perez, supra, 182
Cal.App.4th at p. 243 [substantial evidence of coercion where the
victim was afraid the defendant, who lived with her and her
grandmother, would report an incident to her grandmother];
People v. Veale, supra, 160 Cal.App.4th at pp. 48-49 [substantial
evidence of duress based on victim’s relationship to defendant,
disparity in their sizes, and her fear he would kill her or her
mother if she reported the molestation]; People v. Arnold, supra,
6 Cal.App.4th at p. 31 [psychological coercion where teacher
blocked door and isolated student victim].)

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DISPOSITION
The order is affirmed.
BENSINGER, J.*
We concur:
PERLUSS, P. J.
ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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