People v. Jackson CA2/7

Filed 7/16/21 P. v. Jackson CA2/7
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B302635
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA140043)
v.
KYLE QUENTIN JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Tammy Chung Ryu, Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Noah P. Hill and Stephanie C.
Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Kyle Quentin Jackson pleaded guilty in Kentucky to four
counts of distribution of matter portraying a sexual performance
by a minor and four counts of possession or viewing of matter
portraying a sexual performance by a minor. A California jury
subsequently convicted Jackson of four counts of forcible lewd act
upon a child under 14 years old and two counts of lewd act upon a
child under 14 years old, and found true multiple victim
allegations. Jackson argues his Kentucky convictions barred the
subsequent California prosecution. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
The information charged Jackson with six counts of forcible
lewd act upon a child under 14 years old (Pen. Code,1 § 288, subd.
(b)(1)). The information alleged Jackson committed the crimes
between December 17, 2015 and January 11, 2016. The
information also alleged as to all counts that Jackson committed
the offenses against more than one victim (§ 667.61, subds. (b) &
(e)). Jackson pleaded not guilty to the charges and denied the
special allegations.
B. The Evidence at Trial
1. The crimes
Dorian F. was 11 years old in January 2016.2 His brother
Andy F. was eight years old, and his brother Ivan F. was two years
old.
1 All further statutory references are to the Penal Code.
2 Dorian was 15 years old when he testified at trial.
2
Dorian had an iPad on to which he downloaded the Kik,
Instagram, and Snapchat apps. Kik is a messaging app Dorian’s
friends were using. Dorian’s Kik account username included his
first name. Dorian created the accounts to send sexually explicit
material. His accounts were public so people he did not know
could contact him. He received and responded to messages from
people he did not know.
“Dancechick701” sent Dorian a message via Kik, together
with a photograph of a teenage girl who Dancechick701 purported
to be. Dancechick701 said she was 14 years old. Dorian told
Dancechick701 he was 11 years old, he lived in Los Angeles, and
he had two brothers named Andy and Ivan, ages eight and two.
Dorian believed Dancechick701 was a teenage girl.
Dorian and Dancechick701 began to exchange messages.
Dorian never had a live voice conversation with Dancechick701.
Initially Dorian and Dancechick701 corresponded about school.
Dancechick701’s messages became sexual, which was new to
Dorian. They also exchanged sexual photographs and videos.
Dancechick701 sent Dorian a video of herself masturbating, and
Dorian did the same.
Dorian also sent nude photographs of himself to other Kik
users. Dancechick701 told Dorian not to send nude photographs of
himself to other people online because the recipients could be
someone other than who they claimed to be.
Dorian asked Dancechick701 how he could be sure
Dancechick701 was not someone else. Dancechick701 told Dorian
he could confirm a person online was who he or she claimed to be
by asking for a picture of the person holding up three fingers.
Dorian asked Dancechick701 for a photograph of herself holding
up three fingers. Dancechick701 sent Dorian a photograph of the
same girl from the earlier photographs and videos holding up
3
three fingers. Dorian believed Dancechick701 was the teenage girl
in the photographs because Dancechick701 was “helping [him]
out” by warning him that people online might not be who they
claimed to be.
Dancechick701 began requesting videos from Dorian
depicting specific sexual acts. Dancechick701 asked Dorian to
send her a video of Dorian engaging in oral sex with Andy. Dorian
did not want to make the video with Andy. Dancechick701 told
Dorian that if he refused, Dancechick701 would send Dorian’s
sexual photographs and videos to people Dorian followed online,
including people at Dorian’s school. Dorian felt he had to agree to
Dancechick701’s demand because he did not want to be
“humiliated” at school.
Dorian explained the situation to Andy. Dorian told Andy
that someone was blackmailing him into making the video.
Dorian “begged” Andy to make the video, and agreed to buy Andy
Pokemon cards in exchange for Andy’s participation. Andy agreed
to make the video.3
Dorian sent Dancechick701 a video of Andy orally copulating
Dorian. Dorian ejaculated but he did not derive any pleasure from
the conduct. Dorian thought that if he made the video, “it would
be all over.”
Instead Dancechick701 wanted “more and more” videos,
including a video of Dorian and Andy having sexual intercourse.
Dorian refused and offered to engage in oral sex instead. Dorian
sent Dancechick701 another video of Andy orally copulating
3 Andy testified at trial that Dorian asked him to make the
video in a “rush[ed] voice,” Dorian’s “eyes were watery,” and
Dorian looked sad. Andy did not want to make the video with
Dorian.
4
Dorian. Dorian sent Dancechick701 another set of videos in which
Andy rubbed Dorian’s stomach and chest and may have stroked
Dorian’s penis; Dorian testified he did not specifically remember
whether the latter conduct occurred.
At Dancechick701’s request, Dorian sent a photograph of his
penis with Ivan’s arm on it. On cross-examination, Dorian
acknowledged he testified at the preliminary hearing that he
rubbed his penis in Ivan’s face.
Sometimes Dancechick701 was unhappy with videos Dorian
sent her. She would demand Dorian remake the videos in a
different way.
Dorian tried to ignore Dancechick701 but she threatened to
“ruin” him by sending Dorian’s photographs and videos to his
parents and others. Dorian did not tell his parents because he was
worried they would think he was a “disgrace” and “weird” and
would not love him anymore.
Dorian blocked Dancechick701 on Kik. A different user with
a different screenname contacted Dorian saying she was
Dancechick701 and asking Dorian why he had blocked her.
Dancechick701 told Dorian she would follow every person Dorian
followed online and post photographs of Dorian; Dancechick701
also told Dorian she had found his mother’s online account.
Dorian became scared Dancechick701 might expose him, so he
unblocked her.
Dancechick701 continued to request more videos. Dorian
ultimately sent Dancechick701 five videos with which she was
satisfied.
Dorian sent Dancechick701 videos over the span of one
week. Dancechick701 told Dorian she would delete the videos.
5
2. The discovery of the crimes
On January 10, 2016 Dorian’s father Guadalupe F. found the
videos Dorian had made on Dorian’s iPad. Guadalupe confronted
Dorian the next day; Dorian was nervous and scared. Dorian
initially lied and said he had seen the sexual acts on television.
Guadalupe knew Dorian was lying because the family’s television
had parental channel blocks. Dorian told Guadalupe he had
created a webpage and befriended a girl online. Dorian told
Guadalupe the girl asked Dorian for “more and more” things.
Dorian’s parents told him what to say to Dancechick701 to
try to determine whether Dancechick701 was actually a teenage
girl. Dancechick701 accused Dorian of “acting weird.” When
Dorian asked Dancechick701 to prove her identity, Dancechick701
became suspicious because Dorian and Dancechick701 had already
exchanged the three-finger pictures. Dorian asked for a
screenshot of Dancechick701’s video gallery to confirm she had
deleted the videos Dorian had sent her. Dancechick701 made
excuses and would not send a screenshot.
Guadalupe and his brother read the messages from
Dancechick701 and sent messages back. When Guadalupe’s
brother sent a message accusing Dancechick701 of being a sexual
predator, Dancechick701 insisted she was a teenage girl. At
Guadalupe’s request, Dorian told Dancechick701 he was going to
report her to the police. Dancechick701 replied that others had
told her the same thing, but she would not be caught because
“there was nothing wrong that she was doing.” Dorian was angry
that other children were “falling into this trap.” Dorian was also
upset because he felt it would be unfair for him to be “humiliated”
while Dancechick701 would not be punished. Guadalupe went to
the police after consulting with his brother, whose son is a police
officer.
6
3. The investigation
Los Angeles County Sheriff’s Department Deputy Jesus
Jimenes met with Guadalupe, Dorian, and Andy on January 11
or 12, 2016. Dorian told Deputy Jimenes he had met someone he
believed to be a teenage girl through his Kik account and the
person had forced Dorian to send her sexually explicit videos.
Los Angeles County Sheriff’s Department Detective David
Johnson, a member of a specialized unit addressing internet
crimes against children, interviewed Dorian on January 18, 2016.
Dorian told Detective Johnson he had met someone he believed to
be a 14-year-old girl online and had exchanged nude images and
videos with the person. Dorian said the person eventually
demanded Dorian send her videos that made Dorian
uncomfortable and that Dorian did not want to make, but Dorian
relented because the person threatened to disseminate Dorian’s
photographs and videos to his family and friends. Based on a
username Dorian provided, Detective Johnson obtained search
warrants that enabled him to identify Jackson.
Detective Johnson contacted Detective Michael Nade of the
Bowling Green Police Department in Bowling Green, Kentucky on
or about March 9, 2016 to join an investigation of Jackson.
Detective Nade and others approached Jackson at his workplace in
Kentucky. Jackson did not readily hand over his cellphone,
despite being told several times the police had a search warrant
for the device. Eventually the officers handcuffed Jackson and
removed the cellphone from his back pocket. Police arrested
Jackson in Kentucky on March 9, 2016.
4. The electronic evidence
Pursuant to search warrants for Jackson’s apartment and
electronic devices found on Jackson or in his residence, officers
7
searched Jackson’s apartment and found a second cellphone and a
laptop computer. The officers later found additional electronic
devices inside a safe. The police used a software program,
Cellebrite, to extract data from the devices.
The username extracted from Jackson’s Kik account was
Prettygirl987. The email address used to register Jackson’s Kik
account was CMuddygal9@aol.com. The vanity name (i.e., the
name that appears to other users) for Jackson’s Kik account was
Dancechick701. These names and email address were linked to
Jackson’s email and electronic devices.
On March 6, 2016, in a text exchange between
Dancechick701 and a user named “Sara” (who identified himself in
one message as “Jake”), the two users described tricking underage
boys into believing they were chatting with teenage girls. The
users shared pictures and videos they had obtained from underage
boys. Dancechick701 said that he sometimes “g[o]t boys to do
some” with their brothers or their friends. The users laughed
about it. Dancechick701 told Sara several times not to share
anything Dancechick701 sent Sara.
Dancechick701 and Sara discussed Instagram and the
popular boy sites on it. They discussed how to create a profile that
allowed them to trick underage boys. Sara said that although she
had “a lot of hot guys,” unlike Dancechick701 she did not often
have “multiple boys together so you’re a bit better than me.”
When Sara asked Dancechick701 how “far” he had “got[ten] guys
to go together,” Dancechick701 responded, “Suck each other. They
were brothers. Even got him with his baby—baby bro.”
Dancechick701 asked Sara if she had ever tried blackmailing
underage boys to obtain photographs and videos. Dancechick701
said he had done so and, though it was “very uncomfortable,” it
8
worked. Dancechick701 told Sara he liked boys “under 14” the
most.
On March 7, 2016, in a chat conversation between
Dancechick701 and a user named “Sharky,” the two users swapped
child pornography and discussed blackmailing young boys to
obtain pornography.
Detective Nade testified that only Jackson had access to
Jackson’s cellphone. Detective Nade based his testimony on the
content found on the device, Jackson’s possession of the cellphone,
the fact the cellphone was password-protected, and numerous
messages found on the device in which Jackson identified himself
by his first name.
Detective Nade retrieved several hundred photographs and
videos of child pornography from Jackson’s cellphone involving
prepubescent boys engaged in sexual acts. Police also found
several photographs and videos of females, partially or fully nude
and masturbating, on Jackson’s cellphone and laptop.
In a folder labeled “Kik” officers located more than 25 videos
depicting Dorian and his brothers, as well as some still images.
The prosecution played some of the videos for the jury. In the
videos Dorian and Andy were orally copulating each other and
masturbating each other. One video showed Dorian placing Ivan’s
arm near Dorian’s genitals and rubbing his groin area. Though
not shown to the jury, Detective Nade testified there were other
videos in which Dorian tried to make Ivan orally copulate him.4
C. The Kentucky Case
On May 11, 2016 a Kentucky grand jury indicted Jackson on
three counts of use of a minor in a sexual performance in violation
4 Jackson did not call any witnesses to testify at trial.
9
of Kentucky Penal Code section 531.310, subdivision (2)(b); five
counts of distribution of matter portraying a sexual performance
by a minor in violation of Kentucky Penal Code section 531.340;
five counts of possession or viewing of matter portraying a sexual
performance by a minor in violation of Kentucky Penal Code
section 531.335; and one count of unlawful use of electronic means
to induce a minor to engage in sexual or other prohibited activities
in violation of Kentucky Penal Code section 510.155.
On June 5, 2017 Jackson pleaded guilty to four counts of
distribution of matter portraying a sexual performance by a minor
in violation of Kentucky Penal Code section 531.340, and four
counts of possession or viewing of matter portraying a sexual
performance by a minor in violation of Kentucky Penal Code
section 531.335. The Kentucky court sentenced Jackson to eight
years in prison. Jackson was extradited to California following his
plea hearing in Kentucky.5
D. The Jury Verdicts and the Sentencing
The jury found Jackson guilty of two counts of forcible lewd
act upon a child (Dorian) under 14 years old (counts 1 and 2), and
two counts of forcible lewd act upon a child (Andy) under 14 years
old (counts 3 and 4). The jury found Jackson not guilty of two
counts of forcible lewd act upon a child under 14 years old, but
5 The trial court excluded audio and video recordings of
Jackson’s Kentucky plea hearing. The court ruled that evidence of
Jackson’s Kentucky plea was relevant and admissible but should
be introduced by stipulation or through a testifying detective. The
parties entered into a stipulation identifying the charges to which
Jackson pleaded guilty and the date of the plea, and stating that
following the guilty pleas Jackson was transported to California
for prosecution. The prosecutor read the stipulation to the jury.
10
guilty of two counts of the lesser included offense of lewd act upon
a child (Ivan) under 14 years old (§ 288, subd. (a); counts 5 and 6).
The jury found true the multiple victim allegations on all counts.
The trial court sentenced Jackson to an aggregate state
prison term of 75 years to life, consisting of 15 years to life on each
count. The court ordered the sentence on count 6 to run
concurrently to the sentence on count 1.6
Jackson timely appealed.
DISCUSSION
A. Jackson’s Motion To Dismiss
Jackson moved pretrial to dismiss the California charges on
the ground they fell within the prohibition on multiple
prosecutions recognized in Kellett v. Superior Court (1966) 63
Cal.2d 822 (Kellett). Jackson argued his Kentucky convictions
precluded the California prosecution.
Defense counsel asserted that “the basis of the facts which
underlie the charges in this case arise out [of] the same course of
conduct in which [Jackson] faced a prior prosecution in Kentucky
and to which he plead[ed] no contest [sic].” Defense counsel
argued that Kellett precluded the People from prosecuting Jackson
in “the same case to make [Jackson] go through the same thing
again in order to get additional punishment,” and that
“essentially” Kentucky and California had charged Jackson for the
same conduct. Defense counsel acknowledged that Jackson’s
“admission [in the Kentucky case] is not to the charges that the
6 The parties agree the abstract of judgment incorrectly states
the court imposed a consecutive sentence on count 6, and agree
this court should order the superior court to correct the abstract of
judgment to reflect the concurrent sentence on count 6.
11
district attorney in Los Angeles is now charging him with. Those
are two different things.”
The prosecutor responded that the district attorney’s office
approved extradition of Jackson to California before Kentucky
authorities arrested Jackson, but had to await the conclusion of
the Kentucky case before extraditing Jackson to California. The
prosecutor also argued the crimes charged in Kentucky and
California had different elements.
The trial court denied Jackson’s motion. The court ruled
Kellett did not apply because California authorities had
commenced the process of extraditing Jackson to face charges in
California when “Kentucky decided to arrest and charge [Jackson]
on their own, based upon their own investigation or information
they obtained.” The court further ruled Kellett did not apply
because the California charges differed from the charges to which
Jackson pleaded guilty in Kentucky.
B. Standard of Review
“When the double jeopardy question requires the trial court
to resolve disputed facts, the appellate court reviews the case
under the substantial evidence standard. [Citation.] But, when
the facts are uncontradicted and different inferences cannot be
drawn, the question of former jeopardy is one of law for the court
to decide. [Citation.] Moreover, determination of whether double
jeopardy applies in a case involving separate prosecutions of the
same or similar conduct in different jurisdictions requires the
court to compare and construe the applicable criminal statutes
from both jurisdictions. [Citations.] The construction of a statute
is also a question of law. [Citation.] On appeal, we review
questions of law de novo.” (People v. Davis (2011) 202 Cal.App.4th
429, 438.)
12
C. The Trial Court Did Not Err in Denying Jackson’s Motion To
Dismiss
Jackson contends Kellett and sections 654, 656 and 793
barred his prosecution in California following his convictions in
Kentucky. Neither Kellett nor section 654’s bar on multiple
prosecutions applies to separate prosecutions by different
jurisdictions. Further, the California crimes of which Jackson was
convicted required proof of conduct different from that required for
the Kentucky crimes to which Jackson pleaded guilty. The trial
court did not err in denying Jackson’s motion to dismiss.
Section 654 provides, “An act or omission that is punishable
in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished
under more than one provision. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or
omission under any other.” In Kellett, supra, 63 Cal.2d 822 the
Supreme Court addressed section 654’s bar on multiple
prosecutions and held: “When . . . the prosecution is or should be
aware of more than one offense in which the same act or course of
conduct plays a significant part, all such offenses must be
prosecuted in a single proceeding unless joinder is prohibited or
severance permitted for good cause. Failure to unite all such
offenses will result in a bar to subsequent prosecution of any
offense omitted if the initial proceedings culminate in either
acquittal or conviction and sentence.” (Kellett, at p. 827.)
The Supreme Court has explained that section 654’s bar on
multiple prosecutions “does not apply in the context of successive
prosecutions in separate jurisdictions.” (People v. Belcher (1974)
11 Cal.3d 91, 98 (Belcher).) The Kellett “rule is based on the
assumption that the state has the opportunity to charge all
13
offenses that may arise out of a single course of criminal conduct,”
an assumption that “cannot be made where, as here, one of the
prosecutions occurred in another jurisdiction.” (Belcher, at p. 97,
fn. 5.)
Section 656 states, “Whenever on the trial of an accused
person it appears that upon a criminal prosecution under the laws
of the United States, or of another state or territory of the United
States based upon the act or omission in respect to which he or she
is on trial, he or she has been acquitted or convicted, it is a
sufficient defense.” Section 793 similarly states, “When an act
charged as a public offense is within the jurisdiction of the United
States, or of another state or territory of the United States, as well
as of this state, a conviction or acquittal thereof in that other
jurisdiction is a bar to the prosecution or indictment in this state.”
Section 656 provides “‘greater double jeopardy protection than the
United States Supreme Court has determined to be available
under the Fifth Amendment of the United States Constitution.’”
(People v. Homick (2012) 55 Cal.4th 816, 838 (Homick).) “[S]ection
793’s protective scope [i]s the same as that of section 656, though
the former provision act[s] to bar prosecution and the latter as a
defense against conviction.” (Id. at p. 842.)
Section 656 “applies when the physical conduct required for
the California charges has previously been the subject of an
acquittal or conviction in another jurisdiction, regardless of
whether the two charges have different requirements as to intent
or other nonact elements.” (Homick, supra, 55 Cal.4th at p. 840.)
Section 656 does not apply “‘where the offense committed is not
the same act but involves [conduct] not present in the prior
prosecution.’” (Id. at p. 843; see ibid. [“The application of section
656 thus turns on whether the California charges against
defendant required proof of conduct that was not required for
14
conviction of the earlier federal charges.”]; People v. Bellacosa
(2007) 147 Cal.App.4th 868, 874 [“If . . . the offenses require proof
of different physical acts, then the California prosecution is not
barred even though some of the elements of the offenses may
overlap.”].)
The same conduct does not underlie Jackson’s California
charges and his Kentucky convictions. Indeed, Jackson concedes
the Kentucky charges to which he pleaded guilty did not “alleg[e]
conduct similar to the California charges.” To prove Jackson
violated section 288, subdivision (a) (lewd act upon a child under
14 years old), the People were required to prove Jackson willfully
caused a child to touch his own body, the defendant’s body, or the
body of someone else, either on the bare skin or through the
clothing. (CALCRIM No. 1110; § 288, subd. (a).) To prove Jackson
violated section 288, subdivision (b)(1) (forcible lewd act upon a
child under 14 years old), the People were required to prove
Jackson willfully caused a child to touch his own body, the
defendant’s body, or the body of someone else, either on the bare
skin or through the clothing, and did so using force, violence,
duress, menace or fear of immediate and unlawful bodily injury to
the child or someone else. (CALCRIM No. 1111; § 288, subd.
(b)(1).) Neither of the Kentucky offenses to which Jackson pleaded
guilty required proof of such conduct.7
7 Kentucky Penal Code section 531.340 provides, “(1) A person
is guilty of distribution of matter portraying a sexual performance
by a minor when, having knowledge of its content and character,
he or she: [¶] (a) Sends or causes to be sent into this state for sale
or distribution; or [¶] (b) Brings or causes to be brought into this
state for sale or distribution; or [¶] (c) In this state, he or she: [¶] 1.
Exhibits for profit or gain; or [¶] 2. Distributes; or [¶] 3. Offers to
distribute; or [¶] 4. Has in his or her possession with intent to
15
Jackson argues this court should extend Kellett to bar
Jackson’s California prosecution despite the Supreme Court’s
instruction that section 654’s bar on multiple prosecutions does
not apply to successive prosecutions in separate jurisdictions.
(Belcher, supra, 11 Cal.3d at p. 98; see ibid. [“[t]here exists good
reason for declining to apply section 654” to successive
prosecutions by different jurisdictions].) As an intermediate
appellate court, we are bound to follow the Supreme Court’s
directions. (See K.R. v. Superior Court (2017) 3 Cal.5th 295, 308
[“‘it is established that a holding of the Supreme Court binds all of
the lower courts in the state, including an intermediate appellate
court’”]; People v. Johnson (2012) 53 Cal.4th 519, 527-528; Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Moreover, Jackson’s contention that the interstate law
enforcement cooperation and the resulting Kentucky and
California prosecutions constituted harassment warranting
extension of Kellett is not on this record persuasive.8
distribute, exhibit for profit or gain or offer to distribute, any
matter portraying a sexual performance by a minor.”
Kentucky Penal Code section 531.335 provides, “(1) A person
is guilty of possession or viewing of matter portraying a sexual
performance by a minor when, having knowledge of its content,
character, and that the sexual performance is by a minor, he or
she: [¶] (a) Knowingly has in his or her possession or control any
matter which visually depicts an actual sexual performance by a
minor person; or [¶] (b) Intentionally views any matter which
visually depicts an actual sexual performance by a minor person.”
8 Jackson also implies that when he entered his guilty pleas in
Kentucky he was unaware he would be prosecuted in California.
The Kentucky plea form Jackson signed belies this claim. The
plea form expressly states Kentucky “will dismiss counts 1-3
16
DISPOSITION
The judgment is affirmed. The superior court is directed to
prepare a corrected abstract of judgment reflecting that the
sentence on count 6 runs concurrently with the sentence on count
1 and to forward it to the Department of Corrections and
Rehabilitation.
McCORMICK, J.*
We concur:
PERLUSS, P. J.
FEUER, J.
without prejudice due to deferring the prosecution of the charges
by the Los Angeles County Sheriff’s Department,” and “California
has [a] detainer on the defendant for similar charges.”
* Judge of the Orange County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
17