People v. WaqaPeople v. Waqa
On appeal, Waqa claims the aggravated kidnapping circumstance cannot stand because there was insufficient evidence of its asportation element, which requires that “the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense.” (
We hold that where there is insufficient evidence of a circumstance supporting a 25-year-to-life term under the One Strike law but sufficient evidence of a lesser included circumstance supporting a 15-year-to-life term, an appellate court may reduce the sentence to the lesser term. We therefore modify the judgment here to reduce the 25-year-to-life term based on the aggravated kidnapping circumstance under
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Around 7:45 a.m. on August 16, 2019, 55-year-old Jane Doe arrived at Howarth Park in Santa Rosa, where she regularly walked for exercise. She
Doe entered the women‘s restroom, which has two stalls, a small one and a larger one for people with disabilities.3 The restroom‘s outer door is made of open bars, and it was propped open that morning. Upon entering the restroom, one must turn right and go around a corner to reach the stalls.
The two stalls are partially formed by partitions that do not extend all the way to the floor or ceiling of the restroom. The small stall is a rectangle made up of a structural wall in the back, two partitions perpendicular to the back wall, one of which is shared with the larger stall, and a stall door parallel to the back wall. The large stall is a right-angled trapezoid made up of the partition it shares with the small stall, a stall door that continues in line with this partition, and three structural walls.4 One of these walls does not extend all the way to the floor or ceiling of the restroom, creating gaps to the outdoors. The two stalls’ doors form an “L,” so when exiting the small stall, the large stall‘s door is immediately to one‘s left. Like the stall partitions, both stall doors do not extend all the way to the floor or ceiling.
Doe did not see anyone else in the women‘s restroom when she went in. She entered the small stall, closed and locked the door behind her, and used
“[S]cared out of [her] wits,” Doe tried to “dart for the door,” but she was unable “to get past” Waqa. He grabbed her arm and held her as, now outside the small stall, she screamed and struggled. Doe testified that Waqa told her “he was going to kill [her]” and made a “finger gun gesture.”
Waqa then “dragged” Doe, who was still screaming and struggling, into the large stall. He locked the stall door behind them and pushed her against the wall facing the stall door. Waqa then pushed Doe to the ground. As she attempted to “reach for the [stall] door to exit,” he grabbed her and dragged her backward, toward the toilet. She ended up on the ground in the stall‘s back corner, next to the toilet on the side farthest from the restroom exit.
Waqa pulled down Doe‘s pants and underwear, pulled down his own pants, and raped her. Doe testified that she had her eyes closed and “was gasping for breath” as he laid on her, feeling as if she was being “asphyxiated.” During the rape, Doe felt both Waqa‘s hands and penis inside her vagina, and he ejaculated into her. DNA testing later confirmed the presence of Waqa‘s semen in Doe‘s vagina. Her arm, chest, and thigh were significantly bruised.
The subsequent police investigation revealed that Waqa approached two other women in the Howarth Park parking lot, one before Doe‘s rape and one after, and persistently but unsuccessfully propositioned both women for sex. One of those women photographed the license plate of the car Waqa drove away from the park, which allowed the police to locate and eventually arrest him. Doe and one of these women identified him in photographic line-ups, and the third woman identified him at trial. Doe also identified him in an infield show-up.
Waqa was charged with a felony count of forcible rape and an accompanying aggravated kidnapping circumstance under the One Strike law.6 The jury convicted him of the charge and found true the aggravated kidnapping circumstance. As required under the One Strike law, the trial court then sentenced him to 25 years to life in prison for the rape.
DISCUSSION
A. The Aggravated Kidnapping Circumstance Cannot Stand Because There Was Insufficient Evidence that the Movement of Doe Substantially Increased Her Risk of Harm.
Waqa claims that the aggravated kidnapping circumstance must be reversed because there was insufficient evidence either that the movement of Doe was substantial or that it substantially increased her risk of harm. We disagree with the first point, but agree with the second. There was substantial evidence that forcing Doe into the large stall involved movement of a substantial distance (i.e., enough evidence to support the kidnapping circumstance), but there was insufficient evidence that the movement substantially increased her risk of harm (i.e., not enough evidence to support the aggravated kidnapping circumstance), even if it may have slightly increased the risk in some respect. Thus, we reduce the sentence to 15 years to life based on the lesser kidnapping circumstance.7
1. General legal standards
In evaluating a claim of insufficient evidence, ” ‘we review the whole record to determine whether . . . [there is] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87.) ” ’ ” ‘If the circumstances reasonably justify the trier of fact‘s
We begin with an overview of the law pertaining to asportation, the only element of kidnapping at issue here. In doing so, we focus on three statutes:
The asportation elements of these forms of kidnapping overlap, with the aggravated kidnapping circumstance requiring the greatest showing. Simple kidnapping, and thus the kidnapping circumstance, requires movement of a substantial distance.8 Kidnapping for robbery or rape requires that the movement increased the risk of harm to the victim. And the aggravated kidnapping circumstance requires that the movement
The One Strike law “provides an alternative, more severe set of penalties for certain sex offenses committed under certain enumerated circumstances.” (People v. Anderson (2020) 9 Cal.5th 946, 954 (Anderson).) A One Strike term is ” ’ “an alternate penalty for the underlying felony itself,” ’ ” not a sentence enhancement that adds ” ’ ” ‘an additional term of imprisonment’ . . . to a ‘base term.’ ” ’ ” (People v. Salvador (2017) 11 Cal.App.5th 584, 592–593, italics omitted.) The statute is designed “to ensure serious sex offenders receive lengthy prison sentences upon their first conviction when their crimes are committed under circumstances elevating their victim‘s vulnerability.” (People v. Kelly (2016) 245 Cal.App.4th 1119, 1128 (Kelly).) Forcible rape, the crime of which Waqa was convicted, is a qualifying sexual offense under the statute. (
The aggravated kidnapping circumstance requires that “[t]he defendant kidnapped the victim of the present [sexual] offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense.” (
The kidnapping circumstance may be proven by showing that “the defendant kidnapped the victim of the present [sexual] offense in violation of
The asportation element of these three forms of kidnapping tied to the commission of another crime (simple kidnapping committed in conjunction with another offense; kidnapping for rape or robbery; and the aggravated kidnapping circumstance) requires that the movement be ” ‘more than that which is merely incidental to the commission or attempted commission of [the associated crime].’ ” (Dominguez, supra, 39 Cal.4th at p. 1150; Martinez, supra, 20 Cal.4th at p. 237; People v. Rayford, supra, 9 Cal.4th at p. 12; Perkins, supra, 5 Cal.App.5th at pp. 469–470;
Kidnapping for robbery or rape and the aggravated kidnapping circumstance also require that the movement increased the risk of harm to the victim beyond that inherent in the underlying offense, with the aggravated kidnapping circumstance further requiring that the increase was substantial.9 (
2. No substantial evidence supports the finding that the movement substantially increased the risk of harm to Doe.
Beginning with the second prong, we agree with Waqa that there was insufficient evidence that his movement of Doe from the small stall to the large stall “substantially increased the risk of harm” to her above that inherent in the rape.10 (
Although the movement of Doe from the small stall to the large stall may have made it easier for Waqa to complete the rape, there was insufficient evidence that the change substantially increased Doe‘s risk of harm. Perkins is instructive. There, the defendant committed sex crimes against his 11-year-old stepdaughter, and the jury also found true aggravated kidnapping and kidnapping circumstances under the One Strike law. (Perkins, supra, 5 Cal.App.5th at pp. 459–460, 463.) The victim was asleep in the living room of their apartment when the defendant awakened her and asked her to feed her baby sister, who was in the bedroom. (Id. at pp. 459–460.) The defendant told the victim to go to the bathroom, where he sodomized her. (Id. at p. 460.) He then told her to go back to the bedroom, which was 10 to 30 feet away. (Id. at pp. 460, 470.) The victim complied
The Third District Court of Appeal reversed the One Strike findings, concluding there was insufficient evidence that by ordering the victim from the bathroom to the bedroom the defendant moved her “a substantial distance and in a manner that substantially increased the risk of harm.” (Perkins, supra, 5 Cal.App.5th at p. 464.) The movement did not decrease the likelihood of detection, since neither room‘s doors were closed during the crimes and the victim was not visible from either room. (Id. at p. 470.) Nor did it increase the danger from the victim‘s foreseeable attempts to escape, since the “defendant‘s significant size” made it “unlikely the victim could have escaped from him in either the bathroom or the bedroom. The bedroom, assuming it was larger, may have actually given her more of an opportunity.” (Ibid.) Finally, the movement did not enhance the defendant‘s opportunity to commit other crimes, because “[n]othing show[ed] [he] could not have committed rape in the bathroom” or was prevented from committing “whatever crime he wanted in both rooms.” (Ibid.)
Likewise, the movement of Doe from the small stall to the large stall did not appreciably “decrease[] the likelihood of detection.” (Perkins, supra, 5 Cal.App.5th at p. 470.) Generally, this factor is supported when the offender moves the victim from a public or open area to a private or secluded area. (See, e.g., Dominguez, supra, 39 Cal.4th at p. 1153 [victim moved from road to embankment below road “where it was unlikely any passing driver would see her“]; People v. Shadden (2001) 93 Cal.App.4th 164, 167, 169–170 (Shadden) [victim moved from store‘s front counter to back room]; People v. Salazar (1995) 33 Cal.App.4th 341, 348 [victim moved from exterior walkway to motel room‘s bathroom].) “[A] rape victim is certainly more at risk when
Here, however, the degree of concealment each stall offered did not significantly differ. Both stalls have locking doors and partitions that do not extend to the floor or ceiling. Although the small stall is a few feet closer to the restroom entrance, we do not think that Doe‘s movement to the large stall made it substantially less likely that someone entering the restroom would hear or see the rape. Moreover, only the large stall has openings to the outdoors, so if anything the movement to that stall made it more likely that someone outside would notice the crime.
The movement also did not substantially “increase[] the danger in the victim‘s foreseeable attempts to escape.” (Perkins, supra, 5 Cal.App.5th at p. 470.) Neither stall afforded a realistic opportunity to escape over or under a wall or door. Although committing the rape in the small stall would have placed Doe nearer to the stall door than she was in the large stall, the additional space in the large stall theoretically gave her more room to maneuver and would make it easier to unlock the door if she was able to reach it. (See ibid.) Nor was a potential escape from the large stall any more dangerous than one from the small stall. (Compare, e.g., Kelly, supra, 245 Cal.App.4th at p. 1130 [movement put victim at increased risk of harm because her “only option to escape was to exit a moving vehicle“].)
In arguing that the movement did “decrease[] the likelihood of detection and escape,” the Attorney General relies on an unconvincing premise: that because of his size, Waqa “would not be able to fit inside the small stall with the victim and still be able to close the door behind him and lock it.” We agree with Waqa that the jury could not have reasonably inferred that it was impossible for him and Doe to both fit in the small stall
More generally, the risk of harm beyond that inherent in the rape was not clearly increased in the large stall compared to the small stall. The large stall itself did not pose any danger of bodily harm that the small stall did not. (Compare, e.g., Vines, supra, 51 Cal.4th at p. 871 [victims at substantially increased risk of harm because they were moved into store‘s freezer].) Both spaces had fixtures, including the toilets, with which Doe could have collided. Indeed, she was arguably at higher risk of such injury in the more enclosed space.
Nor did the movement to the large stall clearly enhance Waqa‘s ability to “gain control over [Doe] and ensure[] her compliance.” (Robertson, supra, 208 Cal.App.4th at p. 985 [movement of victim next to deep tub was implicit threat to drown her if she resisted].) True, in the large stall Waqa was able to lie on top of Doe, which he likely would not have had room to do in the small stall. In turn, his weight made it hard for her to breathe, which it is reasonable to infer prevented her from screaming. But rape does not require a prone position, and there is no apparent reason Waqa could not have restrained Doe and prevented her from screaming while they were upright. (See Perkins, supra, 5 Cal.App.5th at p. 470.)
Finally, we conclude there was insufficient evidence that the movement to the large stall enhanced Waqa‘s “opportunity to commit additional crimes” such that it substantially increased the risk of harm to Doe. (Perkins, supra, 5 Cal.App.5th at p. 470.) The Attorney General claims that “having the larger space could have allowed [Waqa] to, for example, orally copulate the victim, which he would not have been able to accomplish in the smaller stall.” Although we disagree with Waqa that this factor is not met because there was no evidence he intended to commit such a crime, there is no substantial evidence that he would have been unable to orally copulate Doe or accomplish “whatever crime he wanted” in the small stall. (Ibid.) It may have been easier for him to sexually assault her in the larger space, but either way he had essentially the same opportunity to commit other crimes, particularly since the two stalls did not significantly differ in the opportunities they afforded for detection or escape.
3. There was sufficient evidence of simple kidnapping.
Having concluded there was insufficient evidence of the second prong of the aggravated kidnapping circumstance‘s asportation element, we turn to consider the evidence supporting the first prong. Again, this prong, like a
The parties agree that the actual distance Doe was moved was approximately eight to ten feet. Although this is relatively short, no minimum distance is required (Dominguez, supra, 39 Cal.4th at p. 1152), and similar distances have been found sufficient. (See, e.g., People v. Singh, supra, 42 Cal.App.5th at pp. 187–188 [10 feet]; People v. Corcoran (2006) 143 Cal.App.4th 272, 278–279 [same]; Shadden, supra, 93 Cal.App.4th at p. 167 [nine feet].) And while the evidence bearing on the factors already discussed—such as whether the movement decreased the likelihood of detection and increased the opportunity to commit other crimes—is not strong, it is sufficient. A reasonable juror could conclude that dragging Doe from the small stall to the large stall was movement of a substantial distance because it took her farther from the restroom‘s exit and gave Waqa more room to maneuver, facilitating the rape and other potential crimes.
Waqa argues that the movement was merely incidental to the rape because “[i]t did not have any purpose other than to provide [him with] more room to engage in the act of forced sexual intercourse.” Courts have struggled to articulate the meaning of “incidental” in this context, and the concept is “difficult to capture in a simple verbal formulation that would
That Waqa did not need to move Doe to rape her further supports the conclusion that the movement was not merely incidental. ” ‘[A] rape . . . does not necessarily require movement to complete the crime.’ [Citation.] Where a defendant drags a victim to another place, and then attempts a rape, the jury may reasonably infer that the movement was neither part of nor necessary to the rape” such that the movement was not incidental. (Shadden, supra, 93 Cal.App.4th at p. 169; see People v. Aguilar, supra, 120 Cal.App.4th at pp. 1050–1052 [explaining why movement‘s necessity to committing rape is relevant to whether movement was incidental to rape].) Here, there is no dispute that Waqa could have raped Doe in the small stall. Thus, even though the movement to the large stall facilitated the rape, there
4. We may reduce Waqa‘s sentence to 15 years to life.
Having concluded that substantial evidence supports the kidnapping circumstance but insufficient evidence supports the aggravated kidnapping circumstance, we turn to the appropriate disposition. The question we must resolve is whether we may modify the judgment to reflect a 15-year-to-life sentence based on the kidnapping circumstance instead of reversing the aggravated kidnapping circumstance outright. The Attorney General argues that we can, and Waqa argues that we cannot. We agree with the Attorney General.
To begin with, Waqa cannot be retried on the aggravated kidnapping circumstance. ” ‘The constitutional protection against double jeopardy unequivocally prohibits a second trial’ . . . when a conviction is reversed or set aside because of insufficient evidence.” (People v. Anderson (2009) 47 Cal.4th 92, 104.) This principle applies not just to convictions but also, “with the sole exception of facts relating to a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum.’ ” (Id. at pp. 105–107, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Because “a One Strike allegation exposes a defendant to greater punishment than would be authorized by a verdict on the offense alone,” it is treated as “the functional equivalent of an element of a greater offense” that cannot be retried after a reversal for insufficient evidence. (Anderson, at pp. 106–108; People v. Carbajal (2013) 56 Cal.4th 521, 534 [“double jeopardy principles . . . apply to allegations under the One Strike law“].)
Under
Since the One Strike law provides for punishment,
To determine whether a lesser enhancement is necessarily included within a greater enhancement, we ask whether ” ‘the statutory elements of the greater [enhancement], or the facts actually alleged in the accusatory pleading, include all the elements of the lesser [enhancement], such that the greater cannot be committed without also committing the lesser.’ ” (People v. Dixon (2007) 153 Cal.App.4th 985, 1001–1002.) The aggravated kidnapping
Focusing on subdivision (e) of
Waqa also claims that “unlike weapons enhancements,” the One Strike law “is not subject to the rules pertaining to lesser included offenses.” The two primary authorities on which he relies do not support his position. First, in Mancebo, the Supreme Court held that the One Strike law‘s pleading and proof requirements were violated where the trial court imposed multiplevictim circumstances that were not alleged. (Mancebo, supra, 27 Cal.4th at pp. 744-745, 754.) Although the information alleged crimes against two victims, the only One Strike circumstances alleged were gun use and kidnapping as to one crime, and gun use and tying or binding as to the other. (Id. at pp. 738, 740;
In Anderson, supra, 9 Cal.5th 946, the Supreme Court reversed firearm enhancements imposed “in connection with counts as to which [they] had not
Waqa claims that reducing the aggravated kidnapping circumstance to the kidnapping circumstance would “not be in conformity with principles of pleading and proof and the holdings in Anderson and [Mancebo].” But as he recognizes, Anderson and Mancebo are distinguishable because the uncharged enhancements in those decisions “would have resulted in a greater sentence than was charged.” Here, in contrast, given Waqa‘s effective concession that the aggravated kidnapping circumstance was adequately pled despite the reference to subdivision (e) of
Waqa also suggests that alleging circumstances requiring a 25-year-to-life term under
In sum, we see no reason that Waqa should avoid a One Strike sentence where the jury necessarily made a factual finding that satisfies a circumstance requiring a term of 15 years to life, that circumstance is a lesser included circumstance of the one found true, and that circumstance is supported by substantial evidence. Because a 15-year-to-life sentence is mandatory if a simple kidnapping is committed in conjunction with forcible rape and Waqa was not convicted of any other charges or enhancements, there is no need to remand for resentencing. Accordingly, we order the judgment modified to reflect a sentence of 15 years to life for the rape under
B. Waqa‘s Claim of Prosecutorial Error Fails.
Waqa also claims that the prosecutor misstated the law governing the “substantial distance” prong of the aggravated kidnapping circumstance in her closing argument. Specifically, he contends that the prosecutor
1. Additional facts
The jury was instructed under a modified version of CALCRIM No. 3175 that one element of the aggravated kidnapping circumstance was that using force or fear, Waqa “moved Jane Doe or made her move a substantial distance.” The instruction further stated, “As used here, Substantial distance means more than a slight or trivial distance. The movement must have increased the risk of physical or psychological harm to the person beyond that necessarily present in the rape. The movement must be more than merely incidental to the commission of [the rape]. In deciding whether the distance was substantial and whether the movement substantially increased the risk of harm, you must consider all the circumstances relating to the movement.”
In closing argument, the prosecutor defined “substantial distance” as “something more than slight or trivial. . . . It‘s about the quali[t]y of the movement, not the quantity. [¶] The quantity, the amount of distance, 5 feet or 500 feet or 5 miles isn‘t as relevant as the value of the movement. What did the movement accomplish? That‘s what we‘re looking at. What‘s its purpose and what does it accomplish?” The prosecutor argued that Waqa had “[a] specific intent to move [Doe] to facilitate the rape that he intended.” According to the prosecutor, “[h]ad there been no kidnapping, [Waqa] would
The prosecutor also addressed the requirement that the movement not be incidental to the rape. She stated, “What are we talking about when we talk about incidental? Sex by definition is a dynamic act. It requires some amount of movement. There is movement natural in sexual intercourse. [¶] Movement incidental to sexual intercourse would be the movement that is natural to the act, okay?” According to the prosecutor, although Doe‘s struggling during the rape was incidental to the rape, “[m]oving her for purposes of accomplishing [Waqa‘s] act is not incidental to the crime. It‘s separate and apart. The above and beyond. It‘s more than what was necessary to rape her. . . . [¶] It was movement that is above and beyond to accomplish the psychological or physical goals.”
2. Analysis
Prosecutorial error is established, “as a matter of state law, when a prosecutor ‘engage[s] in deceptive or reprehensible tactics in order to persuade the trier of fact to convict.’ [Citation.] Federal constitutional error occurs only when the prosecutor‘s actions ‘comprise a pattern of conduct that is serious and egregious, such that the trial is rendered so unfair that the resulting conviction violates the defendant‘s right to due process of law.’ ” (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 854.) ” ’ ” ‘It is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie
” ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor‘s statements.’ ” (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
We agree with the Attorney General that Waqa forfeited this claim by failing to object below. Usually, to preserve a claim of prosecutorial error, ” ‘a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.’ ” (People v. Friend (2009) 47 Cal.4th 1, 29.) The failure to object or request an admonition may also be excused if doing so would have been futile. (People v. Fayed (2020) 9 Cal.5th 147, 204.) Waqa does not contest that he failed to object below, and he states only in passing that an objection would have been futile. Therefore, the claim is forfeited.
Even if we were to consider the claim on the merits, we would reject it. Waqa fails to convince us that the prosecutor misstated the law governing the substantial-distance prong of the aggravated kidnapping circumstance. The prosecutor correctly stated that the movement had to be more than trivial and more than that inherent in the rape itself. (People v. Gomez, supra, 6 Cal.5th at p. 304; Dominguez, supra, 39 Cal.4th at p. 1150.) She also correctly argued that the movement was substantial because it increased the risk of physical and psychological harm. (Gomez, at p. 304.) We do not see how the prosecutor‘s stray statement that the movement “facilitated the
III.
DISPOSITION
The judgment is modified to reduce the sentence imposed for the rape of 25 years to life under
Humes, P.J.
WE CONCUR:
Margulies, J.
Bowen, J.*
*Judge of the Superior Court of the County of Contra Costa, assigned by the Chief Justice pursuant to
Trial Judge: Hon. Shelly J. Averill
Counsel: Peter F. Goldscheider, for Defendant and Appellant, under appointment by the Court of Appeal
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Charlotte Woodfork, Deputy Attorney General, for Plaintiff and Respondent