An appellate court Tuesday reinstated 22 counts of “sex by force” against a former Cypress Boys’ Club director who had pleaded guilty to molesting three boys after the trial judge eliminated the “force” allegation from the counts.
The ruling by the 4th District Court of Appeal means that Donald Lee Lusk Jr., 43, could face a sentence ranging from three to 176 years instead of the 15-year sentence he was told by the trial court he would receive if he pleaded guilty.
The appellate court ruled Lusk must be allowed to withdraw his guilty plea since “unquestionably Lusk’s guilty plea was based on the court’s statement of the sentencing parameters.”
The appellate ruling was hailed in the Orange County district attorney’s office not just because prosecutors thought Lusk was getting off too lightly, but because the court’s ruling will affect similar child molestation cases in the future.
Lusk was arrested in 1983 after two brothers, ages 15 and 13, who were in the Cypress Boys’ Club, complained to their parents that he had molested them. The police investigation revealed allegations that Lusk had molested another 15-year-old boy, who was living with him during the time he was the Boys’ Club director.
A search of Lusk’s apartment turned up a videotape that he had made of his sexual encounters with the three victims and that was shown in a preliminary hearing in March, 1984.
Superior Court Judge James O. Perez agreed with the prosecution’s allegations that Lusk had drugged the 13-year-old victim so that he would be unconscious and thus unable to resist Lusk’s sexual advances. But Perez said there was no precedent for ruling that drugging the boy made the crime “sex by force.” Under California law, a “sex-by-force” conviction permits the court to issue a substantially higher sentence than conviction for sex with a minor.
Despite the appellate ruling Tuesday, Lusk’s attorney, Paul Wallin, said he might not change his guilty plea.
“I think Judge Perez told us what he thought this case was worth (in how much time Lusk should go to prison) and I don’t think legal jargon is going to change the judge’s mind about that,” Wallin said.
Acting Justice Linda H. McLaughlin wrote in Tuesday’s appellate opinion that use of force did not mean that physical force had to be used against the victim.
“It is immaterial whether weapons or dangerous drugs are used to violate a victim’s free will and prevent resistance,” she stated. She added that the appellate court had the benefit of two similar appellate court rulings not available to Perez when he modified the “sex-by-force” counts.
Lusk has remained in the Orange County Jail pending the appeal. Wallin said he would ask for a hearing in Perez’s court on Monday.