gno.law

People v. Kohut CA4/1

California Court of Appeal · D075492 · 2020-10-20 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of Riverside County · No. INF055931
Trial judge
Samuel Diaz, Jr.
Outcome
reversed in part — Affirmed in part, vacated in part, and remanded with directions.
Area
criminal
Panel
O'Rourke (author), Richard D. Huffman, Sr., Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:21Z · confidence high

The trial court appointed a public defender over the defendant's request for private counsel and sentenced him to 46 years to life with consecutive terms and a prior prison term enhancement. The Court of Appeal affirmed the appointment of counsel but vacated the sentence, directing the trial court to impose a single 15-years-to-life term and strike the enhancement.

Ruling reviewedStandardThe courtThe model
Appointment of public defender instead of requested private counsel
“Here, as the public defender’s office was prepared to represent Kohut and it had no conflict of interest, the court did not err by declining to replace the public defender with private counsel of Kohut’s choosing.”
abuse of discretionnot reachedagree with court
The appellate court held the trial court did not err because the public defender was available and had no conflict, citing section 987.2 and case law requiring the use of public defenders first. The reasoning is supported by the cited authorities, which limit the appointment of private counsel to situations of unavailability or conflict.
Sentencing under the One Strike law (consecutive vs. single term)
“The facts here show Kohut committed the crimes against one victim on a single occasion; therefore, he should be sentenced to a single term of 15 years to life.”
de novoerroragree with court
The appellate court found the trial court erred by imposing consecutive terms because the 1996 version of section 667.61, subdivision (g) required a single term for offenses against a single victim on a single occasion. The court correctly applied the ex post facto clause to bar the application of the 2006 amendment that allowed consecutive sentences.
Imposition of section 667.5, subdivision (b) prior prison term enhancement
“Effective January 1, 2020, amended section 667.5 provides that a one-year prior prison term enhancement will only apply if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).”
de novoerroragree with court
The appellate court held the enhancement must be stricken because the 2020 amendment to section 667.5 limits the enhancement to prior terms for sexually violent offenses, and this amendment applies retroactively to non-final cases. The defendant's prior conviction for vehicle theft did not qualify under the new statute.

Authorities

  • relied: Joshua P. v. Superior Court (2014) 226 Cal.App.4th 957 — The trial court must first utilize the services of the public defender to provide criminal defense services for indigent defendants unless a conflict exists.
  • relied: Williams v. Superior Court (1996) 46 Cal.App.4th 320 — The trial court may not deviate from the requirement of utilizing a public defender first for indigent defendants.
  • relied: People v. Daniels (1991) 52 Cal.4th 815 — Section 987.2 limits the authority of the court to compensate assigned counsel to situations where there is no public defender or the public defender is unable to act due to conflict or other reasons.
  • relied: People v. Cole (2004) 33 Cal.4th 1158 — Section 987.2 limits the authority of the court to compensate assigned counsel to situations where there is no public defender or the public defender is unable to act due to conflict or other reasons.
  • relied: People v. Lancaster (2007) 41 Cal.4th 50 — Section 987.2 limits the authority of the court to compensate assigned counsel to situations where there is no public defender or the public defender is unable to act due to conflict or other reasons.
  • relied: Charlton v. Superior Court (1979) 93 Cal.App.3d 858 — The trial court did not err by declining to replace the public defender with private counsel of the defendant's choosing when the public defender was prepared to represent the defendant and had no conflict of interest.
  • relied: People v. Rodriguez (2012) 207 Cal.App.4th 213 — The 2006 amendment to section 667.61 eliminated former subdivision (g) and added subdivision (i), which requires consecutive sentences if the crimes involve separate victims or the same victim on separate occasions.
  • relied: People v. Jones (2001) 25 Cal.4th 98 — For the purposes of section 667.61, subdivision (g), sex offenses occurred on a 'single occasion' if they were committed in close temporal or spatial proximity.
  • relied: People v. McVickers (1992) 4 Cal.4th 81 — Ex post facto laws prohibit not just a burden but a more burdensome punishment.
  • relied: People v. Jennings (2019) 42 Cal.App.5th 664 — The 2020 amendment to section 667.5 applies retroactively to cases that were not final when the amendment took effect.
  • relied: People v. Lopez (2019) 42 Cal.App.5th 337 — The 2020 amendment to section 667.5 applies retroactively to cases that were not final when the amendment took effect.

The appellate opinion: sound — The opinion correctly applies the statutory requirements for appointing counsel and the ex post facto clause to the sentencing issues. It relies on appropriate authorities to support its conclusions regarding the availability of the public defender and the retroactive application of the 2020 amendment to section 667.5.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence medium

A Riverside County jury convicted Kohut of forcible oral copulation, sodomy, and rape committed in 1996 with a burglary One Strike finding, and the trial court, having denied his request to appoint private attorney Eckhardt instead of the public defender, sentenced him to 46 years to life (three consecutive 15-to-life terms plus a one-year prior prison term enhancement). The Court of Appeal held the appointment of the public defender under section 987.2 was not error, but accepted the People's concessions that the 1996 version of section 667.61, subdivision (g) required a single 15-to-life term and that the section 667.5, subdivision (b) enhancement must be stricken under amended section 667.5, so it affirmed the convictions, vacated the sentence, and remanded for resentencing.

Ruling reviewedStandardThe courtThe model
Denial of indigent defendant's motion to appoint private counsel (Eckhardt) in place of the public defender under Penal Code section 987.2
“Here, as the public defender’s office was prepared to represent Kohut and it had no conflict of interest, the court did not err by declining to replace the public defender with private counsel of Kohut’s choosing.”
abuse of discretioncorrectagree with court
Section 987.2, subdivision (e) directs the court to first utilize the public defender absent a conflict or unavailability, and Williams and Joshua P. support the result where the public defender was available and conflict-free. The result is defensible, but the opinion does not engage Harris v. Superior Court (1977) 19 Cal.3d 786, which held a court may abuse its discretion by refusing to appoint counsel with a prior relationship with the defendant—the very basis of Kohut's request—and the opinion contains citation errors (Joshua P. pinpoint 'p. 1164' is outside that case's pages; Daniels is in Cal.3d, not Cal.4th). These gaps do not show the conclusion is wrong.
Imposition of three consecutive 15-years-to-life One Strike terms rather than a single term under former section 667.61, subdivision (g) in effect in 1996
“The facts here show Kohut committed the crimes against one victim on a single occasion; therefore, he should be sentenced to a single term of 15 years to life.”
de novoerror (law misapplied)agree with court
Former section 667.61, subdivision (g) required a single One Strike term for offenses against a single victim on a single occasion, and People v. Jones (2001) 25 Cal.4th 98 defines 'single occasion' as close temporal or spatial proximity; the 10-to-15-minute attack in one bedroom plainly qualifies. Applying the 2006 amendment (subdivision (i)) would increase punishment for a 1996 offense, which ex post facto principles bar per McVickers. The People's concession and the authorities support the result.
Imposition of a one-year prior prison term enhancement under section 667.5, subdivision (b) for a Vehicle Code section 10851 conviction
“The statutory amendment applies retroactively to cases, like this one, that were not final when the amendment to section 667.5 took effect.”
de novoerror (statutory interpretation)agree with court
Senate Bill No. 136 limited section 667.5, subdivision (b) enhancements to prior terms for sexually violent offenses effective January 1, 2020, and courts of appeal (Jennings, Lopez) uniformly hold the ameliorative amendment applies retroactively to nonfinal judgments under Estrada principles. A vehicle-taking prior does not qualify, so striking the enhancement is correct.

Authorities

  • relied: Joshua P. v. Superior Court (2014) 226 Cal.App.4th 957 — Under section 987.2 the trial court must first utilize the public defender for indigent defendants unless the public defender is unavailable or has a conflict; the opinion's pinpoint 'p. 1164' is outside this case's page range.
  • relied: Williams v. Superior Court (1996) 46 Cal.App.4th 320 — Trial court may not deviate from section 987.2's requirement to use the public defender first; no error in refusing to appoint private counsel of an indigent defendant's choosing when the public defender is available.
  • relied: Charlton v. Superior Court (1979) 93 Cal.App.3d 858 — Indigent defendant has no right to appointment of a particular private attorney when the public defender is available to represent him.
  • relied: People v. Daniels (1991) 52 Cal.3d 815 — Supreme Court declined to decide whether unavailability of the public defender is the only circumstance permitting appointment of private counsel; the opinion miscites the reporter as 52 Cal.4th 815.
  • relied: People v. Cole (2004) 33 Cal.4th 1158 — Declined to address whether unavailability of the public defender is the only circumstance in which a court may appoint private counsel.
  • relied: People v. Lancaster (2007) 41 Cal.4th 50 — Declined to address whether unavailability of the public defender is the only circumstance in which a court may appoint private counsel.
  • relied: People v. Jones (2001) 25 Cal.4th 98 — For former section 667.61, subdivision (g), sex offenses occurred on a 'single occasion' if committed in close temporal or spatial proximity, so only one One Strike term may be imposed.
  • relied: People v. Rodriguez (2012) 207 Cal.App.4th 213 — Discusses the 2006 amendment to section 667.61 eliminating former subdivision (g) and adding subdivision (i).
  • relied: People v. McVickers (1992) 4 Cal.4th 81 — Ex post facto clause prohibits applying a law that makes punishment more burdensome than when the crime was committed.
  • relied: People v. Jennings (2019) 42 Cal.App.5th 664 — Senate Bill No. 136's amendment to section 667.5, subdivision (b) applies retroactively to judgments not final when it took effect.
  • relied: People v. Lopez (2019) 42 Cal.App.5th 337 — Amended section 667.5, subdivision (b) applies retroactively to nonfinal cases; prior prison term enhancements for non-sexually-violent offenses must be stricken.
  • missed: Harris v. Superior Court (1977) 19 Cal.3d 786 — A trial court's discretion in appointing counsel for an indigent defendant may be abused where it refuses, without good reason, to appoint an attorney who has an established relationship with and prior knowledge of the defendant's case.
  • missed: Drumgo v. Superior Court (1973) 8 Cal.3d 930 — An indigent defendant has no constitutional right to appointment of a particular attorney of his choosing; the selection rests in the trial court's sound discretion.

The appellate opinion: sound with gaps — The opinion reaches defensible results: the sentencing corrections are compelled by former section 667.61, subdivision (g), Jones, McVickers, and the retroactive Senate Bill No. 136 cases, and the counsel ruling is supported by section 987.2 and Williams. It skips the Supreme Court's Harris and Drumgo decisions, which frame the discretion at issue given Kohut's reliance on Eckhardt's prior relationship, and it contains citation errors (an impossible Joshua P. pinpoint and a wrong reporter for Daniels).

How this analysis was made · dispute it

Opinion

Filed 10/20/20 P. v. Kohut CA4/1 NOT TO BE PUBLISHED IN 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D075492

Plaintiff and Respondent, v. (Super. Ct. No. INF055931 )

JONATHAN JOSEPH KOHUT,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Samuel Diaz, Jr., Judge. Affirmed in part, vacated in part, and remanded with directions. Mark A. Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina, Annie Featherman Fraser and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Jonathan Joseph Kohut of forcible oral copulation (Pen. Code,1 § 288a, subd. (c)(2)), forcible sodomy (§ 286, subd. (c)(2)), and forcible rape (§ 261, subd. (a)(2)). It found true allegations that he committed the crimes during the course of a residential burglary (§ 667.61, subd. (e)(2)). Kohut admitted he served one prior prison term within the meaning of section 667.5, subdivision (b). The court sentenced Kohut to prison for 46 years to life as follows: consecutive terms of 15 years to life on each of the three convictions, plus one year for the prior prison term. Kohut contends: (1) The court abused its discretion by appointing a public defender rather than private counsel of Kohut’s preference; (2) the court should have sentenced him to a total of 15 years to life under the version of section 667.61, subdivision (g) in effect when he committed the crimes; and (3) the judgment must be modified to strike the section 667.5, subdivision (b) enhancement. We conclude the court did not err in appointing a public defender, and the People properly concede that Kohut’s other contentions are meritorious; therefore, we affirm in part, vacate in part, and remand with directions set forth below. FACTUAL AND PROCEDURAL HISTORY The victim, Jane Doe, testified that in 1996, she awakened to find a stranger in her bedroom. The man jumped on top of her, pinned her to the bed, put a pillow over her face and told her to stop screaming or he was going to kill her. The man shoved a weapon-like object against her neck and throat. He sat on Doe's chest with his knees pinning her shoulders. He then forced Doe to orally copulate him, raped and sodomized her, and again forced her to orally copulate him. He ejaculated on Doe's face and neck. He put Doe in a closet, took her purse from her car, and left. Doe testified the incident 1 Undesignated statutory references are to the Penal Code. 2 lasted between 10 and 15 minutes. Doe was taken to the hospital and examined. In August 2006, two Riverside County Sheriff Department officers learned from federal law enforcement authorities that Kohut's blood and saliva samples matched the DNA from the semen found during Doe’s medical exam. In December 2006, sheriff deputies interviewed Kohut and told him about the DNA results. He said he was sorry for what he had done and asked the deputies to apologize to Doe for him. At the start of trial, Kohut, who was indigent, moved the court to appoint private counsel Thomas Eckhardt to represent him. Attorney Eckhardt stated in a declaration that he was thoroughly familiar with Kohut’s case and had a trusting relationship with Kohut, who feared that different counsel would treat the case as inconsequential. The People argued in opposition that the court had properly appointed the public defender under section 987.2, and the underlying facts were not so complicated as to require appointment of private counsel instead. The People pointed out attorney Eckhardt was then involved in a death penalty case that was scheduled to end in six weeks. The court ruled: “[Kohut] asked for counsel to be appointed and the public defender's office was appointed. They do not have a conflict. I have not been told that they have a conflict. . . . [¶] . . . [¶] The public defender's office has the resources to do what is necessary to defend him. And it would be inappropriate for me to not appoint the public defender and to put at [sic] taxpayer's expense to represent him. [¶] There is nothing in my mind that make[s] me believe that [Kohut] is not going to be adequately represented by the public defender's office.” The court continued, “I will give [the public defender] and the public defender's office as long as they need to get ready, 3 because I know what is involved in this case. I think that is all that is required.”2 DISCUSSION I. We reject Kohut’s contention the court abused its discretion by refusing his request to appoint attorney Eckhardt, his private counsel who had represented him in prior proceedings related to this case. There is no basis to reverse the judgment and remand the matter for a new trial. Under section 987.2, subdivision (e), “the court shall first utilize the services of the public defender to provide criminal defense services for indigent defendants. . . . Nothing in this subdivision shall be construed to require the appointment of counsel in any case in which the counsel has a conflict of interest.” The trial court must “ ‘first utilize the services of the public defender to provide criminal defense services for indigent defendants’ ” unless the public defender is unavailable or a conflict exists. (Joshua P. v. Superior Court (2014) 226 Cal.App.4th 957, 964, 967; Williams v. Superior Court (1996) 46 Cal.App.4th 320, 326 [concluding the trial court may not deviate from the requirement of utilizing a public defender first].) “[S]ection 987.2 ‘clearly limits the authority of the court to compensate assigned counsel to situations in which there is no public defender, or the public defender is unable because of a conflict of interest or other reasons to act.’ ” (Joshua P. v. Superior Court, at p. 1164; but see People v. Daniels (1991) 52 Cal.4th 815, 844-845 [declining to address question of whether unavailability of public defender is only circumstance in which court can appoint private counsel]; People v. Cole (2004) 33 Cal.4th 1158, 1186 [same]; People v. Lancaster (2007) 41 Cal.4th 50, 71, fn. 6 [same].) Here, as the public defender’s office was 2 The parties point out that attorney Eckhardt has since died. 4 prepared to represent Kohut and it had no conflict of interest, the court did not err by declining to replace the public defender with private counsel of Kohut’s choosing. (Williams v. Superior Court, supra, 46 Cal.App.4th at pp. 328-329; Charlton v. Superior Court (1979) 93 Cal.App.3d 858, 862-863.) II. The People concede that the court erred by not sentencing Kohut in accordance with the “One Strike” law in effect in 1996 when Kohut committed the offenses. In 1996, section 667.61, subdivision (g) provided: “The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.” In 2006, the Legislature amended the law, eliminating former subdivision (g) and adding subdivision (i), which requires consecutive sentences “if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.” (See People v. Rodriguez (2012) 207 Cal.App.4th 213; People v. Jones (2001) 25 Cal.4th 98, 107 [holding that “for the purposes of [] section 667.61, subdivision (g), sex offenses occurred on a ‘single occasion’ if they were committed in close temporal or spatial proximity”].)3 The facts here show Kohut committed the crimes against one victim on a single occasion; therefore, he should be sentenced to a single term of 15 years to life. III. The People also concede that Kohut’s prior conviction for driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) no longer qualifies for the one- 3 Because Kohut committed the crimes before the amendment took effect, ex post facto principles bar applying the amended legislation to him. (See People v. McVickers (1992) 4 Cal.4th 81, 84 [ex post facto laws prohibit not just a burden but a more burdensome punishment].)

5 year prison term and should be stricken. Effective January 1, 2020, amended section 667.5 provides that a one-year prior prison term enhancement will only apply if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). The statutory amendment applies retroactively to cases, like this one, that were not final when the amendment to section 667.5 took effect. (E.g., People v. Jennings (2019) 42 Cal.App.5th 664, 680-682; People v. Lopez (2019) 42 Cal.App.5th 337, 340-342.) DISPOSITION We affirm the judgment of conviction but remand with directions for the trial court to vacate Kohut’s sentence, strike the section 667.5 enhancement, resentence Kohut consistent with this opinion, and forward a certified amended copy of the abstract of judgment to the Department of Corrections and Rehabilitation.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

Cites, in this corpus