44 Cal.App.5th 172
Cal. Ct. App.2020Background
- Defendant Derrick Harper was convicted by jury of conspiracy to commit human trafficking, multiple counts of kidnapping and kidnapping-for-extortion (§ 209(a)), forcible sexual offenses, and related charges based largely on testimony of multiple female victims (notably "Doe 2" and "Doe 1") who described abduction, coercion, forced prostitution, rape, and other violence.
- Doe 2 testified to at least two kidnappings by Harper: (1) being grabbed from the street, taken to a house (Jack London), raped, and threatened with sale for $10,000; (2) taken from a drug house on Peppertree Court, dressed for prostitution, a prostitution transaction involving a counterfeit $100, and escape at a gas station with help from an acquaintance.
- Jury found true a personal firearm-use enhancement as to one kidnapping count and the court found prior kidnapping convictions, resulting in a Three Strikes sentence of 287 years to life.
- On appeal Harper argued (1) the Williamson rule required reversal of kidnapping and kidnapping-for-extortion convictions because section 266a (taking for prostitution) is the specific statute, (2) his conduct did not constitute extortion under pre-2018 law, (3) CALCRIM No. 1202 contained incorrect law re: kidnapping-for-extortion, and (4) insufficiency of evidence for some kidnapping counts and of the firearm enhancement.
- The Court of Appeal affirmed the convictions on the Williamson and extortion issues, found the CALCRIM instruction technically inaccurate but harmless beyond a reasonable doubt, reversed the firearm enhancement for lack of evidence, struck certain five-year prior-serious-felony enhancements for human-trafficking counts, and remanded for resentencing under S.B. 1393.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Harper) | Held |
|---|---|---|---|
| Application of Williamson rule (whether §266a precludes §207 and §209(a) prosecutions) | §266a is narrower and does not preclude prosecutions under general kidnapping/209(a) when elements differ | §266a is the specific statute covering taking a person for prostitution, so kidnapping and kidnapping-for-extortion convictions must be reversed under Williamson | Rejected: Williamson inapplicable because §266a lacks the asportation and other elements of kidnapping and does not commonly or necessarily result in a §207 or §209(a) violation |
| Sufficiency of extortion element for kidnapping-for-extortion (pre‑2018 §518) | Harper kidnapped Doe 2 to obtain money from her forced prostitution; money is property and satisfies extortion under former §518 | Harper argues Doe 2’s body/sexual conduct were not "property" pre‑2018 and thus extortion element failed | Held sufficient: prosecution proved intent to obtain money from Doe 2’s forced prostitution, which met extortion as then‑defined; the 2018 amendment was not required to prove this case |
| CALCRIM No. 1202 instruction (omission of ‘‘from another person’’ for the fourth 209(a) theory) | Instruction read in context and counsel argued only kidnapping-for-extortion theory; any ambiguity was harmless | Instruction omitted required secondary‑victim language and could relieve burden on prosecution | Court: Instruction was technically incomplete but, viewed in context of instructions and arguments, there is no reasonable likelihood it misled jury; error was harmless beyond a reasonable doubt |
| Sufficiency of evidence for second kidnapping (counts 12 & 21) | Testimony and circumstantial evidence (prior violence, gun, threats, coerced dress/transport, escape at gas station) support forcible taking by fear | Harper claims Doe 2 didn’t testify to express force/orders and prosecutor misstated some details in closing | Held sufficient: jury could infer force/fear from prior conduct and circumstances; prosecutor’s imprecise closing remarks did not render verdict unsupported or nonunanimous |
| Firearm enhancement (§12022.53(b)) | Jury found personal use; prosecution argued gun evidence supported enhancement | Harper argued lack of evidence he used a gun in the Peppertree/gas‑station incident underlying that enhancement | Reversed: AG concedes and court finds no evidence Harper used a firearm in the second kidnapping; 10‑year enhancement stricken |
| Resentencing issues (S.B. 1393 and five‑year enhancements under §667(a)(1)) | Remand for sentencing discretion under S.B.1393 appropriate; five‑year enhancements for human‑trafficking counts improper | Requests remand; argues relief should be granted | Court remanded for resentencing under S.B.1393 (retroactive) and struck two five‑year prior‑serious enhancements tied to human‑trafficking counts |
Key Cases Cited
- In re Williamson, 43 Cal.2d 651 (Sup. Ct. 1954) (establishes rule that a special statute may preclude prosecution under a general statute)
- People v. Murphy, 52 Cal.4th 81 (Cal. 2011) (clarifies Williamson test and when special statute precludes general statute)
- People v. Jones, 108 Cal.App.4th 455 (Cal. Ct. App. 2003) (elements of kidnapping and asportation requirement)
- People v. Alcala, 36 Cal.3d 604 (Cal. 1984) (circumstantial evidence can establish force or fear for kidnapping)
- People v. Dagampat, 167 Cal.App.2d 492 (Cal. Ct. App. 1959) (force/fear for kidnapping may be shown by orders or circumstances)
- People v. Kozlowski, 96 Cal.App.4th 853 (Cal. Ct. App. 2002) (application of extortion definition to kidnapping‑for‑extortion)
- People v. Gomez, 6 Cal.5th 243 (Cal. 2018) (harmless‑error review for erroneous jury instructions)
- People v. Brown, 11 Cal.App.5th 332 (Cal. Ct. App. 2017) (prosecutorial election and unanimity concerns)