8 Cal. App. 5th 309
Cal. Ct. App.2017Background
- Defendant Stanley Cook filed a Penal Code §1170.126 petition (Three Strikes Reform Act) seeking resentencing from a 25-to-life third‑strike sentence for commercial burglary.
- Cook’s prior strikes included an 1987 Kern County conviction for assault with intent to commit rape (§§220, 261) and other burglary convictions.
- The People opposed resentencing, arguing Cook was ineligible because his prior assault with intent to commit rape is a “sexually violent offense” under Welfare & Institutions Code §6600(b) when committed by force, fear, menace, duress, or threats — and they asserted the offense’s elements necessarily include force or fear.
- At the limited hearing, the trial court found Cook ineligible based on the prior conviction’s elements alone; the court did not review or discuss the specific factual record of the prior offense.
- On appeal the principal questions were: (1) whether assault with intent to commit rape necessarily involves force/fear as a matter of law for purposes of §1170.126 eligibility, and (2) whether the trial court could (or should) have relied on the record of the prior conviction to determine if force/fear were present.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether assault with intent to commit rape is necessarily committed by force, fear, menace, duress, or threats for purposes of ineligibility under §1170.126 | The elements of assault with intent to commit rape necessarily involve application of force or fear, so the conviction alone makes Cook ineligible | The offense does not require actual application of force or creation of fear; specific facts of the prior conviction must show force/fear to trigger statutory ineligibility | No — assault with intent to commit rape does not necessarily include force/fear. The trial court erred by relying on elements alone; it must examine the prior conviction record for case‑specific facts showing force/fear. |
| Whether the appellate court should presume the trial court reviewed the prior conviction record and found force/fear | The petition referenced court records, so the trial court should be presumed to have considered those records and found force/fear | No adequate record shows the trial court considered those facts; the transcript shows only legal argument and a bare ruling | No presumption. The record does not show the trial court examined the prior conviction’s factual record; remand required so the trial court can consider those records. |
Key Cases Cited
- People v. Colantuono, 7 Cal.4th 206 (1994) (assault is an attempt and does not require contact/battery)
- People v. Maury, 30 Cal.4th 342 (2003) (intent element for assault with intent to commit rape)
- People v. Soto, 51 Cal.4th 229 (2011) (contextual discussion of consent and resistance in sex‑offense cases)
- People v. Peckham, 249 Cal.App.2d 941 (1967) (explaining ‘‘force’’ need not mean bodily injury; discusses overcoming resistance)
- People v. Blakely, 225 Cal.App.4th 1042 (2014) (trial court may consult the record of conviction when determining §1170.126 eligibility)