People v. Kruse CA1/3

Filed 5/27/15 P. v. Kruse CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A141912 v. RICHARD FREDERICK KRUSE, (Mendocino County Super. Ct. No. SCUKCRCR 10-15372) Defendant and Appellant.

Defendant Richard Frederick Kruse appeals a prison sentence imposed on remand following an earlier appeal in which we found insufficient evidence to support the jury’s verdict of commission of a forcible lewd act upon a child under age 14 (Pen. Code, § 288, subd. (b)(1))1 and reduced the conviction to commission of a nonforcible lewd act upon a child under age 14 (§ 288, subd. (a)). (People v. Kruse (Dec. 6, 2013, A135642) [nonpub. opn.].) When resentencing defendant, the trial court imposed the upper term of eight years in prison. Defendant contends he received ineffective assistance of counsel at the resentencing hearing and that the court abused its discretion in denying probation and selecting the upper term of imprisonment. We shall affirm the sentence. Trial Evidence The evidence presented at trial is described at length in our opinion issued on the prior appeal. (People v. Kruse (Dec. 6, 2013, A135642) [nonpub. opn.].) We briefly

1 All further section references are to the Penal Code, except as noted.

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summarize that evidence here.2 In 2008, defendant was a married 65-year-old man who babysat a girl, seven-year-old J.H., after school and on occasional sleep-overs. In May 2008, J.H. told a social worker that defendant touched her chest, buttocks, and vagina area. The police interviewed defendant. Defendant said J.H. was “definitely being molested” but not by him. He described J.H. as “a very sexual little girl” who made advances to him. Defendant admitted rubbing the child’s arms, legs, back, abdomen and chest but claimed he did so at her request and as “a loving comfort thing,” not for sexual arousal. At trial, 11-year-old J.H. testified that defendant touched her legs, chest and vagina with his hand, sometimes over her clothes and sometimes under her clothes, and did so despite her requests to stop. J.H. said that when defendant was touching her vagina he said, “If I told anybody, he would hurt me.” Trial testimony also included an adult woman’s account of being molested by defendant when she was a six-year-old child he babysat. Conviction, Sentencing and Appeal The jury convicted defendant of a forcible lewd act upon a child under age 14. (§ 288, subd. (b)(1).) The court sentenced him to an upper prison term. On appeal, we modified the judgment to reduce the conviction from a forcible to a non-forcible lewd act and remanded the case for resentencing on the lesser offense. (§ 288, subd. (a).) A nonforcible lewd act is punishable by three, six, or eight years in prison. Resentencing Hearing A supplemental probation report was prepared recommending denial of probation and imposition of the upper eight-year prison term. The probation report was a reiteration of the one presented at the original sentencing hearing, with a few additions highlighted in bold text. In addressing the possibility of probation, the report summarized the results of a psychological examination of defendant performed following conviction. The