Filed 7/20/21 P. v. Cotton CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B306685
Plaintiff and Respondent, (Los Angeles County Super.
Ct. No. GA031646-01)
v.
DUANE COTTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
Cindy Brines, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Nicholas J. Webster and Noah P. Hill, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
INTRODUCTION
Appellant Duane Cotton appeals from the trial court’s
denial of his second petition for three strikes resentencing under
Penal Code section 1170.126 (Proposition 36).1 We affirm
because appellant has forfeited the argument he makes on appeal
by failing to raise it in the trial court.
FACTS AND PROCEDURAL BACKGROUND
In February 1998, appellant was charged with eight counts:
stalking, forced oral copulation, two counts of making terrorist
threats, assault with a taser gun, two counts of misdemeanor
vandalism, and one count of eavesdropping with an electronic
recording device during a confidential communication. The oral
copulation count alleged that appellant was armed with a deadly
weapon, a box cutter, during the commission of the offense. The
information alleged that appellant had suffered three prior
convictions for robbery within the meaning of sections 667,
subdivisions (b) through (i) and 1170.12, subdivisions (a) through
(e) (the Three Strikes Law), and that he had suffered prior prison
terms within the meaning of section 667.5, subdivision (b).
Appellant pled not guilty to all counts and denied the special
allegations.
At trial, the victim testified that she had been in a
relationship and lived with appellant, but he moved out in
November 1996 after he threatened her with a knife. A month
later, appellant returned to retrieve something from the home,
held a box cutter to her throat, threatened to cut her, and forced
her to orally copulate him. On March 24, 1997, pursuant to a
search warrant, police searched the apartment where the
incident had occurred and found a box cutter in a wallet on a
1 All further undesignated statutory references are to the
Penal Code.
2
closet shelf. Appellant testified to surreptitiously recording the
sexual encounter with the victim. He denied committing the
other charged crimes, and specifically denied threatening the
victim with the box cutter. Appellant also testified he carried a
box cutter in his wallet because he used it to unwrap boxes while
working for a food distribution company.
A jury convicted appellant of electronic eavesdropping, and
found true the prior conviction and prison term allegations. The
jury acquitted appellant of one of the vandalism counts, and hung
on all remaining counts. The trial court declared a mistrial on
the remaining counts and dismissed them.
The trial court sentenced appellant to 25 years to life under
the Three Strikes law for eavesdropping, plus one year for one
prior prison term. This court affirmed the conviction and
sentence. (People v. Cotton (July 12, 1999, B121762) [nonpub.
opn.].)
In December 2012, following the enactment of the Three
Strikes Reform Act of 2012 (Proposition 36), appellant filed his
first petition for recall of sentence pursuant to section 1170.126.
He sought resentencing as a second strike offender. The People
opposed the petition on the ground that appellant was armed
with a deadly weapon (the box cutter) during the commission of
the commitment offense, thereby rendering him ineligible for
resentencing pursuant to sections 1170.126, subdivision (e)(2)
and 1170.12, subdivision (c)(2)(C)(iii).
The trial court found that appellant was armed even
though the jury had not made that particular finding. Relying on
the record of conviction, the trial court concluded that it was
more likely than not that appellant had ready access to the box
cutter for offensive or defensive use at the time he lured the
victim into the bedroom where the electronic eavesdropping took
3
place. Therefore, appellant did not qualify for Proposition 36
relief.
We affirmed the trial court’s order. (People v. Cotton
(June 27, 2016, B260222) 2016 WL 3595545, **1-2 [nonpub.
opn.].) The California Supreme Court granted appellant’s
petition for review (case No. S236276), but deferred briefing
pending its decision in People v. Estrada (2017) 3 Cal.5th 661
(Estrada). On March 28, 2018, following its decision in Estrada,
the Supreme Court dismissed review in appellant’s case.
On May 12, 2020, more than seven years after he filed his
first resentencing petition, appellant filed with the trial court his
“Second Petition for Resentencing” pursuant to section 1170.126.
Petitioner claimed that he was entitled to a new hearing, based
on a “change and[/]or modification or clarification in the law.”
Appellant relied on the decisions in People v. Stutelberg (2018)
29 Cal.App.5th 314 (Stutelberg) and People v. Bradford (2014)
227 Cal.App.4th 1322 (Bradford) in arguing that a the trial
court’s denial of his first petition for resentencing “is not
supported by current law.”
On June 11, 2020, the trial court deemed the second
petition a motion for reconsideration of its 2012 ruling and denied
appellant’s request because appellant had not cited any relevant
change in law, facts, or circumstance to support his request. In
its memorandum of decision, the trial court also stated:
“although a box cutter is not a deadly weapon per se, the record
of conviction establishes that it was capable of being used, in a
‘ “dangerous or deadly” ’ manner, and that [appellant] in fact
intended to use it in such a manner.”
DISCUSSION
On appeal, appellant does not argue the issues he raised in
his “Second Petition for Resentencing.” Rather, appellant asserts
the trial court applied the incorrect standard of proof in making
4
its 2012 decision. He states that the People must prove his
ineligibility for resentencing beyond a reasonable doubt based
under People v. Frierson (2017) 4 Cal.5th 225 (Frierson), but the
trial court instead applied a preponderance of the evidence
standard in 2012.2
Appellant did not make this argument in the trial court.
He admits as much but contends, without citation to authority,
that “requiring appellant to file a new petition for reconsideration
based on Frierson would not serve any purpose at this stage of
the proceedings.” That is a non sequitur – our task here is to
decide whether appellant properly raised before the trial court
the point he is now pursuing in the appellate court. He has not,
and his argument on appeal is forfeited.
“The purpose of the waiver doctrine is to bring errors to the
attention of the trial court so they may be corrected or avoided.
[Citation.] The rule that contentions not raised in the trial court
will not be considered on appeal is founded on considerations of
fairness to the court and opposing party, and on the practical
need for an orderly and efficient administration of the law.”
(People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.)
DISPOSITION
The judgment is affirmed.
RUBIN, P.J.
WE CONCUR:
BAKER, J. KIM, J.
2 Respondent argues the order is not appealable, and
defendant argues that even if the order is not appealable we have
discretion to treat the appeal as a petition for habeas corpus.
Because it does not change our disposition on the merits, we
proceed to resolve the issue defendant presents.
5