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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

JONATHAN JOSEPH KOHUT,

Defendant and Appellant.

 D075492

 (Super. Ct. No. INF055931 )

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. 
2

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.
3

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, 
4

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.
5

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 one3 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].)
6

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.