THE PEOPLE, Plaintiff and Respondent, v. DERRICK DAMON HARPER,
A152284
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 1/9/20
CERTIFIED FOR PARTIAL PUBLICATION*
(Contra Costa County Super. Ct. No. 05-152089-9)
A jury found defendant Derrick Damon Harper guilty of conspiracy to commit human trafficking and multiple kidnapping and sex
In the alternative, Harper argues his two convictions of kidnapping for extortion must be reversed, first, because his conduct did not constitute extortion and, second, because the jury instruction given, CALCRIM No. 1202, was an incorrect statement of law.
In the published portion of our opinion, we hold that the Williamson rule does not bar the convictions here, that defendant‘s conduct constituted extortion, and that although the challenged jury instruction contained an incorrect statement, it did not contribute to the jury‘s verdict.
In the unpublished portion of the opinion, we find sufficient evidence of kidnapping to support counts 12 and 21; we agree with the parties that certain enhancements were improperly imposed and therefore strike those enhancements; and we remand the matter for resentencing under recently enacted legislation.
FACTUAL AND PROCEDURAL BACKGROUND
Charges
The Contra Costa County District Attorney charged Harper, along with five codefendants (most notably, Roy Gordon and Eric Beman), with conspiracy to commit human trafficking (
Jane Doe 2
In 2007, Doe 2 was 18 years old and “in an active addiction to meth.”3 She did not have stable housing and “was back and forth between Pittsburg, Antioch, Brentwood, [and] Oakley.” During this period, Doe 2 lived with Jeff Fowler for a few months.
One day, Fowler took Doe 2 to an apartment in Pittsburg where he wanted her to perform oral sex on a man (implicitly for money). At the apartment, Doe 2 went to a back room and had sex with codefendant Roy Gordon. Afterward, Doe 2 realized Fowler had left the apartment, and she felt scared.
Gordon told Doe 2 he would take her back to Fowler, but instead he took her to a house on Dover in Pittsburg. Gordon showed Doe 2 a bedroom and told her she would be staying there. He told Doe 2 she was going to work for him, and she felt like she couldn‘t leave. Doe 2 performed three acts of prostitution during the time she was at the Dover house, and Gordon supplied her with methamphetamine.
At some point, four girls beat up Doe 2 and cut off her hair. Gordon took Doe 2 to a second house to recover from the beating. After two or three days, Doe 2 left the second house. Doe 2 testified she stayed at the Dover house for about three or four weeks.
In 2009, Doe 2 met Harper at the apartment of a woman named Candace. Harper brought methamphetamine to the apartment, Doe 2 got high with Candace and another woman, and Doe 2 had consensual sex with Harper.
A few months later, Harper offered Doe 2 a place to stay in a foreclosed house on DiMaggio. Doe 2 went to the DiMaggio house. Initially, Doe 2 felt like she was free to come and go at the DiMaggio house. But then she saw Harper “jump” Nick Chavez, and she did not feel safe.4
A few days after Doe 5 escaped, Harper called Doe 2 to the living room. He had Doe 2 take off her clothes and had another woman cut her hair off while he recorded the event on his phone.
Aiding and Abetting Forcible Rape (Counts 22-24)
Harper displayed a gun and had three men—Chavez, Rude Boy, and a man called “Ghost“—rape Doe 2. Harper had them go into a back room and rape her one by one. Harper would come in and make sure they were raping her and then he would close the door.
Forcible Sodomy (Count 9)
After the men raped Doe 2, Harper told her to take a shower. He told Doe 2 to go to her bedroom, and he anally raped her.
The next day, Harper dropped Doe 2 off with codefendant Eric Beman.5 Harper told her “a hard head makes a soft ass,” and Doe 2 understood this to mean if she “acted up” or didn‘t follow directions, she would be sodomized again or Beman would beat her.
Kidnapping for Extortion (Count 10), Kidnapping (Count 20), and Rape with Kidnapping (Count 13)
Around 2009, Doe 2 was in custody for three or four months for receiving stolen property. After she got out of custody, Doe 2 stayed with her uncle in Oakley. She believed Harper was looking for her because she heard he was offering people she knew drugs and money to tell him where she was. As a result, Doe 2 “was always watching over [her] shoulder“; she carried a knife, did not go out on the streets during the day, and was very careful about who she socialized with.
Doe 2 stayed at the Jack London house only a couple of days. Harper told her he was going to sell her to a man in Vallejo for $10,000, and this motivated Doe 2 to try to escape. She jumped over the back fence, ran a few streets away, and then called a friend to pick her up.
Around this time, Doe 2 was hanging out with the CoCo County Boys, a White criminal street gang.6 She felt they would protect her from Harper to some extent.
Kidnapping for Extortion (Count 12) and Kidnapping (Count 21)
On another occasion, Doe 2 was getting high at a drug house on Peppertree Court in Antioch when Harper showed up. Doe 2 went with Harper because, she testified, “I didn‘t feel safe there and I didn‘t feel like anybody would even try to protect me there. So I didn‘t want anybody getting hurt.”
Harper had Doe 2 dress in a skimpy skirt and heels. He mentioned again that he was going to sell her to a man in Vallejo. Harper and Chop drove Doe 2 to perform an act of prostitution. The client gave Chop $100, and Chop gave the money to Harper. Harper saw that the bill was fake. He drove to a gas station and asked Doe 2 to get change for the counterfeit bill from someone at the gas station. Doe 2 asked a man if he had change for a $100. The man recognized her, and Doe 2 realized she knew him; his name was Johnny. Doe 2 told Johnny that Harper was trying to sell her to a man in Vallejo and asked if he could help. Johnny told her to jump in, and she jumped in the back of his Bronco and covered herself with a towel.
Doe 2 testified there were six other times Harper attempted to kidnap her.
Around 2006, Doe 1 was working as a prostitute. At some point, she moved in with Gordon in a house on Abbott.7
Beman was Gordon‘s best friend. Occasionally, Gordon would get arrested, and Beman would monitor Doe 1 while Gordon was in custody. In 2010, Gordon was in custody on a robbery charge. Doe 1 continued to work as a prostitute and lived with a woman named Shannon.
Doe 1 met Harper through Shannon, and he invited her to live with him rent free. Doe 1 moved into Harper‘s house on Jack London. At first, Doe 1 was free to come and go as she wanted.
At some point (while Gordon was in custody), Beman told Doe 1 she had no business being at Harper‘s house. Doe 1 told Harper what Beman said, and Harper said he was going to settle it with Beman. Doe 1 and Harper met Beman at a house in Antioch, and Harper and Beman had a heated discussion. Beman hit Doe 1 over the head
with a bottle, punched her, and “stomped” her while Harper watched. Doe 1 tried to leave with Harper, but Harper left without her.
Later, Harper told Doe 1 this was intended as a trade of sorts: Harper was supposed to take Doe 1 to Beman, and Beman “was supposed to give up . . . Doe 2” to Harper.
Human Trafficking (Count 15)
Soon after Harper left Doe 1 with Beman in Antioch, Beman went to jail, and Doe 1 returned to Harper‘s house in Pittsburg. Harper made comments about making Doe 1 “his bitch,” but she thought he was joking. One day, however, she packed her things to leave, and Harper said she was not going anywhere and “I told you I was going to make you my bitch.”
After that, Doe 1 was forced to stay at the Jack London house, and she gave all the money she made from prostitution to Harper. Harper became physical with Doe 1 and hit her a lot. He told her if she ever left, he would go after her son. Harper agreed to a contract to allow Doe 1 to buy her freedom for $3,000, but when she gave him the money, he denied there was a contract.
A couple of times after he beat Doe 1, Harper “would say, [‘]okay, Come suck my dick[‘],” which Doe 1 understood to mean the beating was over. Doe 1 agreed that she “d[id] that voluntarily,” but only because she was scared after having been beaten up.
Other Prosecution Evidence
Around 2011, Alicia Hammond met Harper on the street in Antioch. She went with him to a house on Jack London and then to a bar in Antioch. Hammond left the bar by herself and waited outside for a friend to pick her up. As she was waiting outside, Harper drove up in a gold Lexus with a woman named Candace and another woman in the car. Harper had a gun on his lap and he told Hammond, “Get in the fucking car.” Hammond got in his car because she was afraid she would be hurt or killed if she did not comply. Harper took her and the other women to a Denny‘s restaurant. He told
Hammond if she did not go with him, she would have to deal with Beman. Harper and the women left, and Hammond had a friend pick her up from the restaurant.
Casey Beck knew Harper “from the streets outside.” Around 2010 or 2011, Harper told Beck that Doe 2 owed him money and had run away from him. He offered Beck $100 and an eight ball of methamphetamine to find her. Later, Beck saw Doe 2 at a friend‘s house. Doe 2 told Beck that she was raped, fed drugs, and beaten up a few times at Harper‘s house. Doe 2 said Harper was trying to force her to prostitute for him.
Jane Doe 5 testified that she met Harper in Antioch around 2008 at a house on DiMaggio. Doe 2 was at the house. Harper held a gun to Doe 5‘s head and made her perform oral sex on him. Then Rude Boy and a teenager called “Hog” watched Doe 5 and made her stay in a room.8 Doe 5 was told she owed Harper $300, but she had never met him before. After a couple of days, Doe 5 was allowed to leave the DiMaggio house when she said she was going to meet a client for sex. About five days later, Harper raped Doe 5 in a house in Pittsburg. A girl cut Doe 5‘s hair, and Harper videotaped it.
Defense
Harper testified on his own behalf. He admitted he had been convicted in 1998 of two counts of kidnapping. After he was released from custody, he lived in Pittsburg with his parents. It was stipulated that Harper was in
Harper testified he met Doe 2 in 2010 at Candace‘s apartment, and he and Doe 2 had sex in the bathroom. He ran into her later and told her about a house available for rent on DiMaggio; Doe 2 and Candace ended up moving into the house. Harper never lived in the DiMaggio house, but he visited often to see Candace. According to Harper, Doe 2 was interested in a relationship with him, and they started dating. Harper testified that, one day, he went to the DiMaggio house on his lunch break and saw Doe 2 having
sex with his friend Nick Chavez and two other men, “Ghost and Kaze.” Harper testified he felt “disrespected, played” and he broke up with Doe 2. He denied he told the men to have sex with Doe 2. Harper admitted he yelled at Doe 2 when he saw her in front of the DiMaggio house talking to Beman.
Harper was in custody for a short period in 2011. After he was released, he lived in a house on Jack London with Candace. He met Doe 1 at the Jack London house, and he let her move in. Harper testified he had a list of white women who were being forced to prostitute themselves for Gordon and Beman, whom he described as his “enemies.” Doe 1 was on this list. At some point, Harper began a sexual relationship with Doe 1.
Harper denied he had an agreement with Gordon or Beman to pimp women. He denied pimping Doe 1 or Doe 2. He denied raping or sodomizing Doe 2 and denied ever forcing Doe 2 to stay at his house. He denied ever asking anyone to cut Doe 2‘s hair. He denied ever forcing Doe 2 into a truck at gunpoint and denied taking her to the Jack London house. He denied telling Doe 2 he was going to sell her for $10,000. He denied forcing Doe 1 to perform oral sex on him. He denied kidnapping Doe 5.
Jury Verdict
The jury found Harper guilty of all of the charged counts except count 16, forced oral copulation of Doe 1.
The jury found true the enhancement allegations that Harper used a firearm in the commission of the second count of kidnapping for extortion of Doe 2 (count 12) and that, in the commission of forcible rape (count 13), he kidnapped Doe 2 and the movement of Doe 2 substantially increased the risk of harm to Doe 2 over the risk inherent in the forcible rape.
The district attorney alleged Harper suffered two prior felony convictions for kidnapping that qualified as strikes under
court took judicial notice of a prior criminal case and found the allegations of prior felony convictions true.
The trial court ruled the two prior felony convictions for kidnapping were separate strikes and sentenced Harper under the Three Strikes law.
Harper received an indeterminate sentence of 287 years to life for counts 9 (sodomy of Doe 2), 10 (kidnapping for extortion of Doe 2), 12 (same), 13 (forcible rape with kidnapping of Doe 2), 15 (human trafficking of Doe 1), and 22 (forcible rape of Doe 2).9 The trial court also imposed and stayed, pursuant to
DISCUSSION
A. The Williamson Rule
“Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute.” (People v. Murphy (2011) 52 Cal.4th 81, 86 (Murphy), italics added.) Harper contends his convictions of kidnapping in violation of
In Williamson, the California Supreme Court explained: “‘It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment. Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.‘” (Williamson, supra, 43 Cal.2d at p. 654, quoting People v. Breyer (1934) 139 Cal.App. 547, 550.)
In that case, defendant Williamson was convicted of conspiracy, under the general statute of conspiracy (
Our Supreme Court examined and applied the Williamson rule more recently in Murphy, supra, 52 Cal.4th 81. After defendant Murphy crashed her car into a hillside and later falsely reported the car had been stolen, she was convicted of (among other things) procuring or offering a false or forged instrument for filing or recording in violation of
her conduct,
The
The court continued, “On the other hand, if the more general statute contains an element that is not contained in the special statute and that element would not commonly occur in the context of a violation of the special statute, we do not assume that the Legislature intended to preclude prosecution under the general statute. In such situations, because the general statute contemplates more culpable conduct, it is reasonable to infer that the Legislature intended to punish such conduct more severely. For example, in People v. Watson (1981) 30 Cal.3d 290 [(Watson)], the defendant was charged with second degree implied malice murder based on a fatal automobile collision that occurred when the defendant was intoxicated and had been driving at excessive speeds. On appeal, the defendant argued that he could be convicted only of vehicular manslaughter under
manslaughter statute would not necessarily or commonly result in a violation of the general murder statute. Thus, the Williamson rule is inapplicable.’ (Watson, supra, at p. 296.)” (Murphy, supra, 52 Cal.4th at p. 87.)
Applying the Williamson rule to Murphy‘s case, the court concluded Murphy‘s conviction had to be reversed. (Murphy, supra, 52 Cal.4th at p.95.) The court found Murphy‘s conduct plainly came within the terms of
Harper claims his two convictions of kidnapping for extortion of Doe 2 in violation of
a. Section 266a
People v. Mandell (1939) 35 Cal.App.2d 368 (Mandell) is the only published case we have found in which a person was charged with violation of
b. Kidnapping in Violation of Section 207
“Generally, to prove the crime of kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person‘s consent; and (3) the movement of the person was for a substantial distance.”15 (People v. Jones (2003) 108 Cal.App.4th 455, 462 (Jones).)
The third element is called the “asportation” element. (People v. Bell (2009) 179 Cal.App.4th 428, 435.) The defendant‘s purpose or motive is not generally an element of a kidnapping crime. (Jones, supra, at p. 462.)
Harper concedes that
Instead, Harper seems to rely on the second part of the Williamson test, that “‘it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.‘” (Murphy, supra, 52 Cal.4th at p. 86.) His entire argument is as follows: “It does not matter that kidnapping includes an element of force or fear that a violation of
Even if we assume for the sake of argument that “tak[ing] any person against his or her will and without his or her consent” under
In his reply, Harper asserts for the first time, “Taking a victim for prostitution, like simple kidnapping, necessarily involves movement that is ‘substantial.‘” Harper,
however, cites no authority for his assertion that
kidnapping “for the purpose of prostitution.” We think a more sensible interpretation of
c. Kidnapping for Extortion in Violation of Section 209(a)
Before 2018,
A violation of
In this case, the prosecution‘s theory for the kidnapping for extortion charges was that Harper seized and held Doe 2 with the intent to extort money from Doe 2, where the money was to be obtained by forced prostitution, that is, by inducing Doe 2 to work as a
prostitute “by a wrongful use of force or fear.” (
The elements of
Thus, we cannot say a violation of
Since kidnapping for extortion in violation of
B. Sufficiency of the Evidence of Kidnapping for Extortion
Harper next argues insufficient evidence supports his convictions of counts 10 and 12 because the conduct relied on by the prosecution did not qualify as extortion under
The prosecution’s theory of kidnapping for extortion was that Harper twice seized Doe 2 with the intent to obtain money from her through forced
The Attorney General responds, “[Harper] did not kidnap [Doe 2] to have sex with her (though he did that too) or even to have her engage in sexual conduct with others, but to obtain money by hiring her out as a prostitute. Money has always qualified as property for purposes of extortion. . . . The amendment to
We note that Harper does not claim there was insufficient evidence that he kidnapped Doe 2 to force her to work as a prostitute so he could obtain money. To the contrary, he asserts he kidnapped her “to obtain prostitution services from Jane Doe 2.” Because Harper ultimately wanted money from Doe 2’s forced prostitution services, his conduct qualified as extortion prior to the amendment to
Harper next contends his convictions of kidnapping for extortion (counts 10 and 12) must be reversed because CALCRIM No. 1202 is an incorrect statement of law. The Attorney General claims Harper forfeited this contention. But “the forfeiture rule ‘does not apply when . . . the trial court gives an instruction that is an incorrect statement of the law.’ ” (People v. Gomez (2018) 6 Cal.5th 243, 312 (Gomez).) Since that is what Harper contends happened in this case, we address the merits of his contention. (See ibid.)
1. CALCRIM No. 1202
CALCRIM No. 1202 describes five elements of aggravating kidnapping in violation of
This sentence corresponds to the four different types of aggravated kidnapping under
Harper argues, “By omitting the requirement of a secondary victim, CALCRIM [No.] 1202 relieves the prosecution of its burden of proving the element that the kidnapper intended to use the kidnapping victim to exact some kind of consideration from a third party or secondary victim.” We agree that CALCRIM No. 1202’s description of the fourth type of aggravated kidnapping is incomplete, and we urge the Advisory Committee on Criminal Jury Instructions to consider adding language to the pattern instruction on the
2. Jury Instruction Given
The relevant issue on appeal, however, is whether the challenged instruction given to the jury was misleading to Harper’s prejudice in the context of the instructions as whole and the arguments made at trial. (Gomez, supra, 6 Cal.5th at p. 313 [“ ‘ “When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.” ’ ”]; People v. Young (2005) 34 Cal.4th 1149, 1202 [“The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury”].)
Here, the trial court gave an adapted version of CALCRIM No. 1202 that began, “The defendant [is] charged in Counts Ten and Twelve with Kidnapping for Extortion or Getting Money or Something Valuable in violation of
The instruction also provided a definition of extortion: “Someone intends to commit extortion if he or she intends to: (1) obtain a person’s property with the person’s consent and (2) obtains the person’s consent through the use of force or fear. When a person is charged with kidnapping for Extortion the crime is completed when the kidnapping or confinement was accomplished. It is not required that the People prove that the intended extortion was accomplished.”
3. Analysis
The problem with the challenged instruction is that it contained additional language, “or to get money or something valuable,” which is supposed to be given when the prosecution relies on the fourth type of aggravated kidnapping, but the prosecution in this case did not allege or argue that Harper committed this type of aggravated kidnapping.
Harper claims the jury only could have understood the sentence as describing two different theories of liability for aggravated kidnapping. The Attorney General maintains the jury most likely understood the phrase “or to get money or something valuable” as a partial explanation of extortion, not as an alternative theory of liability. We believe the Attorney General has the better argument.
First, the jury was never told that there are four different types of aggravated kidnapping, so the jury had no reason to think that more than one type of aggravated kidnapping might be applicable in the case. Second, the jury’s understanding of the instruction would have been informed by the attorneys’ arguments, and the prosecutor and the defense attorney in this case discussed only kidnapping for extortion in their closing arguments.24
Third, the word “or” has more than one meaning. Although “or” is used to indicate “an alternative between different or unlike things, states, or actions,” the word “or” can also be used to indicate “the synonymous, equivalent, or substitutive character of two words or phrases,” such as in the example “lessen or abate.” (Webster’s Third New Internat. Dict. (1961) p. 1585.) Considering the sentence in the context of the overall instructions and argument, the jury would have understood the initial “or” in the sentence “The defendant did so to commit extortion or to get money or something valuable” as indicating a synonymous, equivalent or substitutive phrase. That is, the jury would have understood the phrase “to get money or something valuable” to be an equivalent or substitute phrase for the previous phrase “to commit extortion,” not an alternative theory of liability for aggravated kidnapping.
D. Sufficiency of the Evidence of the Second Kidnapping (Counts 12 and 21)
Count 12 (kidnapping for extortion) and count 21 (kidnapping) were based on Doe 2’s account of Harper taking her from a drug house on Peppertree Court in Antioch. Doe 2 later escaped from Harper at a gas station with the help of an acquaintance named Johnny. This was the second kidnapping by Harper that Doe 2 testified about.25
On appeal, Harper argues there was insufficient evidence to support these counts, first, because the prosecutor misdescribed the evidence in her closing argument and, second, because there was simply insufficient evidence that Harper kidnapped Doe 2 from Peppertree Court. We consider these arguments in reverse order.
1. Evidence of the Second Kidnapping
After Doe 2 testified about the first kidnapping, Doe 2 mentioned there were six other times Harper attempted to kidnap her. The prosecutor then asked, “And was there another time that he was successful in kidnapping you again?” Doe 2 said yes and continued, “I was at this drug house that is on—Peppertree Court. And I was there getting high or whatever. And he showed up. And I didn’t—I didn’t feel safe there and I didn’t feel like anybody would even try to protect me there. So I didn’t want anybody getting hurt. [¶] He came in there so I went with him. And that’s—that’s when he brought up again that he was going to sell me to the man from Vallejo . . . .”
Doe 2 testified that Harper drove her to a location for an act of prostitution. Chop was there, too, and he took a hundred dollars from the prostitution client. Doe 2 was not sure if the client handed Chop a “fake hundred or if Chop switched it out with the fake hundred,” but Chop gave a counterfeit hundred dollar bill to Harper. Harper was angry that the bill was counterfeit. He drove to a gas station and asked Doe 2 to get change for the counterfeit bill from somebody. Doe 2 was wearing a “skimpy skirt” and heels, and she was dressed this way “Because [Harper] was going to sell me.”
Doe 2 testified she saw Johnny at the gas station. She told him that Harper was trying to sell her to a man in Vallejo and asked for help. Johnny told her, “Jump in the car and don’t mess up my speaker,” and Doe 2 got in the back of his Bronco. Doe 2 was wearing a coat with a hood and she put the hood up and covered herself with a wet, greasy towel. She testified that Harper and Chop looked around the gas station for her. Harper asked Johnny if he’d seen “a little girl about this height,” and Johnny said no and turned up the music playing in his car. Harper looked in the tinted window of Johnny’s car. Johnny drove away and then Doe 2 went “[b]ack to Bruce’s house.” (Doe 2 had gone to his house after the first time Harper kidnapped her.)
In cross-examination, Doe 2 further testified, “So you have the gas station incident occurred [sic26], I was at the house on Peppertree Court. And he showed up there. With the previous—knowing that he carries a gun and things like that in the previous traumas, he came in the house and was looking for me and I went with him. I didn’t want anybody to get hurt. And then he said that he had a date and that’s when Chop was there as well
and the Mexican man came.” (Apparently, the Mexican man was the person who paid for a sex act with Doe 2.) Doe 2 also testified that this incident occurred after the first kidnapping.
2. Sufficiency of the Evidence
Harper argues Doe 2’s testimony was insufficient to support counts 12 (aggravated kidnapping for extortion) and 21 (simple kidnapping) because she did not expressly testify that Harper “did or said anything that could be characterized as seizing, confining, inveigling, enticing, decoying, abducting concealing, or carrying her away” and she “did not testify that he used force or instilled fear in her to compel her to come with him, or that he ordered her to go with him.”27 He claims the evidence here established only that he showed up at the drug house and nothing more. We disagree. Even without express testimony that Harper ordered or forced Doe 2 to go with him, there was sufficient evidence to support counts 12 and 21.
“ ‘When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Our review must ‘presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.’ [Citation.] . . . [O]ur task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might ‘ “be reasonably reconciled with the defendant’s innocence.” ’ [Citations.] The relevant inquiry is whether, in light of all the evidence, a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” (Gomez, supra, 6 Cal.5th at p. 278.)
For kidnapping under
Alcala demonstrates that circumstantial evidence can be sufficient evidence of the element of force or fear necessary for simple kidnapping. In that case, defendant Alcala was found guilty of murder and kidnapping after the remains of the 12-year-old victim were found in a remote area. Evidence showed that on the day the victim went missing, Alcala approached the victim and her friend at the beach and took their pictures with their permission. Alcala walked or ran away quickly when an adult acquaintance approached. The victim and her friend went to the friend’s apartment, the victim then left by bicycle to go to her ballet lesson, but the victim never arrived at her scheduled lesson. (Alcala, supra, 36 Cal.3d at pp. 613–616.) A forest service worker also testified that she saw a man and a small girl with their backs to her on the evening the victim disappeared. The man appeared to be forcefully steering the girl up the gully. This sighting occurred near where the victim’s remains were later found. (Id. at p. 616.)
On appeal, Alcala argued there was no proof of force or fear to support the kidnapping conviction, but our high court rejected this argument. Citing evidence that the victim “was a responsible child, highly motivated to meet her late-afternoon ballet appointment,” the forest worker’s “claim[] to have seen her in defendant’s company at the scheduled time, some 40 miles distant from both her home and the dance studio,” the fact that Alcala was a virtual stranger to the victim, and a witness’s testimony that the victim found Alcala “strange,” the court concluded, “The jury could reasonably infer that [the victim] had not accompanied him voluntarily.” (Alcala, supra, 36 Cal.3d at p. 622.)
Dagampat is also instructive. There, kidnap victim Stanley witnessed Contreras stab a person. A few days later, Stanley was outside walking when three boys in a convertible pulled up to him and stopped. Defendant Dagampat was the driver, Contreras sat in the back seat, and a third boy, Valencia, got out of the car and went to a drug store. Dagampat told Stanley, “ ‘Get into the car. I want to talk to you about the fight.’ ” (Dagampat, supra, 167 Cal.App.2d at p. 493.) Contreras and Dagampat gave Stanley a dirty look, and Valencia approached Stanley from behind. Stanley testified that he went with the boys because he was scared, although they displayed no weapons and made no threats. After Stanley got in the car, Contreras asked if he had witnessed the stabbing. When Stanley said yes, Contreras and Valencia started hitting him. The car stopped in an alley, and the boys continued to beat Stanley until he was able to run away. (Ibid.) Stanley admitted he did not ask to be let out of the car and did not attempt to leave the car or call for help. (Id. at p. 494.)
The Court of Appeal held the evidence and reasonable inferences “amply established a forcible taking.” (Dagampat, supra, 167 Cal.App.2d at p. 495.) The court explained, “It is contended that Stanley had no reason for fear except the ‘dirty looks’ he observed and that these could not reasonably induce fear of harm. But there was much more for Stanley to think about. He was outnumbered and with one of the group behind him. He was faced by another who was a knife carrier and who might have a knife in his belt. They wished to talk with him as a supposed witness to a fight. It is difficult for us to see how it was unreasonable for Stanley to fear harm that might come from his refusal to enter the car in view of the fact that he was assaulted soon after entering it.” (Ibid.)
Here, Doe 2 had seen Harper and his associates jump Chavez, which “put some fear” in her. She was with Harper when he grabbed Doe 5 off the street and made her sign a contract that she owed him money. Harper had made a woman cut Doe 2’s hair while he recorded the incident. More importantly, by the time he showed up at the drug house, Harper had already raped Doe 2 more than once, he had already kidnapped her, and Doe 2 had seen him with a gun on more than one occasion. Doe 2 testified she went with Harper from the drug house because she “didn’t want anybody getting hurt” and Harper mentioned “again that he was going to sell [her] to the man from Vallejo.” This was evidence from which the jury could infer that Doe 2 did not go with Harper voluntarily and therefore Harper must have used force or fear to induce her to accompany him. (See Alcala, supra, 36 Cal.3d at p. 622.) Evidence that Harper expressly threatened Doe 2 was not required to establish the use of force or fear given what Harper had done to Doe 2 and others previously. (See Dagampat, supra, 167 Cal.App.2d at p. 495.)
3. The Prosecutor’s Closing Argument
Harper also argues counts 12 and 21 must be reversed because the incidents the prosecutor relied on to support those counts “did not occur.” His argument is based on the prosecutor’s closing argument, in which she gave a garbled recounting of the second kidnapping testified to by Doe 2. Even so, the prosecutor’s misdescription of some of the facts of the second kidnapping does not warrant reversal of Harper’s convictions.
The prosecutor discussed the evidence supporting counts 12 and 21 in her closing argument as follows: “In your next set of crimes will be the second kidnapping of (*Jane Doe 2) off the streets. Again, we have the kidnapping for extortion and the kidnapping itself. The [sic] Derrick Harper seizing her with the intent that she be basically forced to give him money from prostitution again and that he moves her.
“And with regard to those counts (*Jane Doe 2) testified to you that she was by the bingo hall in Antioch in the FoodMaxx parking lot. That Mr. Harper pulled up in the gold Lexus with his hands on his lap, got out, ordered her into the car. He took her back to the Jack London house and that the following day he had her dress in high heels and short skirt and took her into Brentwood. There was a forced act of prostitution there.
“And then there was the exchange with Chop with counterfeit hundred dollars [sic] bill and with Mr. Harper telling (*Jane Doe 2) to get change for that hundred dollar bill at the gas station. When she seen [sic] Johnny, one of the [W]oods, if you will, one of the white boys and she hides under the greasy towels in the back of his truck to escape. So that’s our second kidnapping for extortion and kidnapping.”
But Doe 2 never mentioned a bingo hall, a FoodMaxx parking lot, or a gold Lexus when she testified about the second kidnapping. She did not testify that Harper ordered her into his car or took her back to the Jack London house. Nor did Doe 2 testify that Harper took her to Brentwood.28
Nevertheless, the kidnapping events to which the prosecutor was referring would have been clear to the jury. The prosecutor correctly identified the salient details that Doe 2 was dressed in “high heels and short skirt” (Doe 2 testified she was wearing heels and a “skimpy skirt”), that Doe 2 was forced to commit an act of prostitution, that there was an exchange with Chop involving a counterfeit hundred dollar bill, that Harper took her to a gas station to get change, and that Doe 2 escaped from the gas station with Johnny by hiding under a greasy towel in the back of his truck (Doe 2 testified she “covered [herself] with a wet, greasy towel that was back there”).29
We also note that in cross-examination of Doe 2, defense counsel referred to the second kidnapping as the “gas station” incident and asked whether it occurred after the Jack London incident (the first kidnapping). Doe 2 adopted defense counsel’s nomenclature and testified the “gas station incident” was when she “was at the house on Peppertree Court.” Thus, when the prosecutor described the second kidnapping as relating to the events at the gas station, the jury would have recognized this was the kidnapping that began at the drug house on Peppertree Court.30
Moreover, “the prosecutor’s argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury.” (People v. Perez (1992) 2 Cal.4th 1117, 1126.) We have already concluded there was sufficient evidence to support counts 12 and 21. Our conclusion does not change merely because the prosecutor’s description of the evidence was off in some of the details.
For his contrary argument, Harper relies on People v. Brown (2017) 11 Cal.App.5th 332, 341 (Brown), in which the Court of Appeal recognized “ ‘if one criminal act is charged, but the evidence tends to show the commission of more than one such act, “either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.” ’ ” The purpose of this rule is to protect the constitutional right to a unanimous jury. (Ibid.)
The Brown court further held, “when the prosecution has made an election, under circumstances where a unanimity instruction would otherwise have been required, then we, too, are bound by that election. Thus, if the defendant raises a substantial evidence challenge, our review is limited to whether there is sufficient evidence to support a conviction based exclusively on the act elected by the prosecution. [Citation.] Otherwise, we may only be finding sufficient evidence to support a nonunanimous verdict.” (Brown, supra, 11 Cal.App.5th at pp. 341–342.)
In Brown, evidence was presented of two potential rapes by defendant Brown, one rape was committed by four men in a bedroom and a second rape may have occurred in a vacant apartment after the victim passed out; Brown was found guilty of rape in concert and forcible rape, among other offenses. (Brown, supra, 11 Cal.App.5th at pp. 334, 336–337.) The Court of Appeal found there was sufficient evidence that force was used in connection with the rapes in the bedroom to support the rape in concert and forcible rape convictions (and there was sufficient evidence Brown was one of the four men who committed those rapes), but there was not sufficient evidence of the use of force or fear in connection with the rape in the vacant apartment. (Id. at pp. 339–340.)
At trial, however, the prosecutor in closing argument posited only that Brown arrived after the rapes in the bedroom (so he was not one of the four men who committed those rapes) and that he took the victim to the vacant apartment and raped her there. (Brown, supra, 11 Cal.App.5th at p. 340.) The Brown court reasoned, “In closing argument, the prosecutor elected to rely solely on a rape in the vacant apartment. . . . As a result of that election, . . . in reviewing the sufficiency of the evidence of force, we are limited to considering a rape in the vacant apartment.” (Id. at p. 342.) The court reversed Brown’s convictions of rape in concert and forcible rape because there was insufficient evidence to support those convictions in connection with the rape in the vacant apartment, the incident the prosecutor elected to rely on. (Ibid.)
We fail to see how Brown applies in this case. Here, the evidence showed two kidnappings, and Harper was charged with both. The purpose of the Brown rule is to ensure a unanimous verdict. But there is no risk that the jury came to a nonunanimous verdict here because the jury found Harper guilty of both sets of kidnapping charges.31
E. Firearm Enhancement
The jury found true the enhancement allegation that Harper personally used a handgun in the commission of count 12 (the second kidnapping for extortion), pursuant to
F. Senate Bill 1393
The trial court sentenced Harper in August 2017. “Prior to 2019, trial courts had no authority to strike a serious felony prior that is used to impose a five-year enhancement under
Harper seeks remand for the trial court to exercise its newly-authorized discretion under S.B. 1393. The Attorney General agrees the new sentencing law applies retroactively to Harper, but he argues remand is not necessary in this case because the record shows that remand would be futile. In an abundance of caution, however, we will remand for resentencing. (See People v. McDaniels, supra, 22 Cal.App.5th at pp. 428-429 [“nothing in the record rules out the possibility that the court would exercise its discretion” to strike an enhancement that was mandatory at the time of sentencing].) We express no opinion on how the court should exercise its discretion on remand.
G. Five-year Enhancements for Human Trafficking Offenses
The trial court imposed an additional 10 years (two five-year terms) for prior serious felonies for count 1 (conspiracy to commit human trafficking) and for count 15 (human trafficking of Doe 1). The parties agree that these enhancements must be stricken because human trafficking is not a “serious felony” for purposes of
H. Corrections to the Record
Finally, we decline to order various corrections to the clerk’s minutes and abstract of judgment requested by Harper. We see no reason to order the court to correct the current abstract of judgment given that we are remanding for resentencing. When Harper is resentenced under S.B. 1393 on remand, no firearm enhancement under
DISPOSITION
The true finding on the firearm enhancement allegation for count 12 is reversed.33 The 10-year enhancement imposed under
Miller, J.
We concur:
Richman, Acting P.J.
Stewart, J.
A152284, People v. Harper
Trial Court: Superior Court of Contra Costa County
Trial Judge: Hon. Charles B. Burch
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan and Moona Nandi, Deputy Attorneys General, for Plaintiff and Respondent
A152284, People v. Harper
Notes
As to count 13 (forcible rape), it was alleged as aggravating circumstances that Harper kidnapped Doe 2, and the movement of Doe 2 substantially increased the risk of harm over and above the level of risk necessarily inherent in the crime. (