Opinion
B298714
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. DEREK WILLIAM AMES, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, David E. Madeo and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YA096176) APPEAL from an order of the Superior Court of Los Angeles County, Alan B. Honeycutt, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, David E. Madeo and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Derek William Ames of kidnapping to commit sexual penetration by a foreign object (Pen. Code, § 209, subd. (b)(1)), among other crimes. He contends that the evidence of asportation is insufficient to support the kidnapping conviction. We reject the argument and affirm the judgment.
Subsequent statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In the afternoon of May 16, 2017, Carolina F. was standing at the corner of a street and an alley, with her back to the alley, looking at her cellular phone. Defendant grabbed her from behind and pulled her into the alley toward a space between two buildings. Carolina hit and scratched defendant and screamed for help. Defendant eventually threw Carolina to the ground near two dumpsters in the alley, got on top of her, and tried to remove her underwear from under her dress. He put a finger or fingers inside her vagina.
Carolina continued to struggle with defendant and yelled for help. Eventually, defendant stopped his assault and ran away. Carolina ran in the opposite direction. When she reached a main street, she called 911.
The day after the assault, Carolina accompanied police investigators to view the alley. Carolina found a torn piece of her underwear on the ground at the point where the assault concluded. She also showed the investigators where she was standing when defendant grabbed her. An investigator measured the distance between the spot where defendant grabbed Carolina and the spot where the torn piece of underwear was found. The distance was 38 feet.
During trial, Carolina was asked on cross-examination if she knew how far she had moved between the time defendant grabbed her and the time the assault ended. When she answered, "No," counsel introduced her testimony from the preliminary hearing that defendant had moved her "two meters." Two meters is approximately six and a half feet.
On redirect, the prosecution questioned Carolina as follows:
"Q. . . . You showed [the investigators] exactly where you were standing in the alley when the gentleman came up behind you and attacked you. Do you remember that?
"A. Yes.
"Q. And then you showed [the investigators] where your underwear was in the alley and indicated that's where the attack ended; correct?
"A. Yes."
In addition to the charge of kidnapping to commit sexual penetration, a jury convicted defendant of assault with intent to commit a felony (§ 220, subd. (a)(1)), sexual penetration by a foreign object (§ 289, subd. (a)(1)(A)), and failure to register as a sex offender (§ 290, subd. (b)). The jury also found that defendant had been previously convicted of failing to register as a sex offender. (§ 290.012, subd. (a)). Defendant admitted that he had one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12 subds. (a)-(d)) and one prior serious felony conviction (§ 667, subd. (a)(1)). The court sentenced him to 74 years to life in prison.
DISCUSSION
Section 209, subdivision (b)(1) criminalizes kidnapping to commit, among other crimes, robbery, rape, and forcible sexual penetration with a foreign object in violation of section 289. Defendant contends that the evidence is insufficient to support the kidnapping element.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
The kidnapping element of section 209, subdivision (b)(1) has two prongs: (1) the movement of the victim must be "beyond that merely incidental to the commission of " the target crime; and (2) the movement must increase "the risk of harm to the victim over and above that necessarily present in" the target crime. (§ 209, subd. (b)(2); see People v. Shadden (2001) 93 Cal.App.4th 164, 168 (Shadden).) The two prongs are interrelated and not mutually exclusive. (People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez); People v. Rayford (1994) 9 Cal.4th 1, 12 (Rayford).)
Although the distance the perpetrator moved the victim is relevant in evaluating the first prong (Dominguez, supra, 39 Cal.4th at p. 1152), "there is no minimum number of feet a defendant must move a victim." (Rayford, supra, 9 Cal.4th at p. 12.) The inquiry is a "qualitative evaluation rather than a simple quantitative assessment." (Dominguez, supra, 39 Cal.4th at pp. 1151-1152.) In addition to distance, the " 'scope and nature' of the movement" and "the context of the environment in which the movement occurred" are relevant considerations. (Rayford, supra, 9 Cal.4th at p. 12.) Forcibly moving a victim even a short distance to commit a sexual assault may constitute movement beyond that which is merely incidental to the crime. Thus, in Shadden, supra, 93 Cal.App.4th 164, the defendant's act of dragging a store clerk nine feet into a back room where he attempted to rape her was sufficient to support the jury's finding that the movement was not merely incidental to the attempted rape. (Id. at p. 169; accord, People v. Robertson (2012) 208 Cal.App.4th 965, 984.)
In evaluating whether, under the second prong, the movement increased the risk of harm to the victim, the jury may consider "the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes." (Rayford, supra, 9 Cal.4th at p. 13.)
Defendant questions the inference that can be drawn concerning the distance Carolina was moved. Defendant grabbed Carolina at the corner of a street and an alley and pulled her some distance into the alley while Carolina resisted. Defendant acknowledges the 38-foot measurement taken by police investigators the day after the assault, but suggests that the measurement is inaccurate because of the 23-hour gap between the assault and the time Carolina found the torn piece of her underwear—a period during which the crime scene had not been secured and wind or traffic through the alley may have moved the piece of fabric. He also points to Carolina's preliminary hearing testimony in which she described the movement as a distance of "two meters"—about six and a half feet. He asserts that the difference between that distance and the investigator's 38-foot measurement reflects movement attributable to "the struggle between" defendant and Carolina, not defendant's "intentional movement of Carolina."
Defendant's interpretation of the evidence would be appropriate as argument to a trier of fact. On appeal, however, we must "view the evidence in the light most favorable to the judgment and resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." (People v. Aguilar (2004) 120 Cal.App.4th 1044, 1048.) Under that standard, the arguable conflict between Carolina's preliminary hearing testimony and her confirmation that the assault ended 38 feet into the alley must be resolved in favor of the latter, and the jury could reasonably infer from Carolina's testimony of her physical struggle with defendant that she had been moved to the point of the assault in spite of her resistance, not as a function of it. In short, the record, viewed in its entirety, supports a reasonable inference that defendant moved Carolina 38 feet into the alley.
Whether the movement was beyond that which was merely incidental to the crime requires consideration of more than the distance; the nature and "the context of the environment in which the movement occurred" are also relevant. (Rayford, supra, 9 Cal.4th at p. 12) Here, defendant forcibly pulled Carolina into an alley that was less open to public view than the location on the street from where she had been grabbed. We agree with the cases that have held that movement of the victim out of public view to a more secluded location is more than merely incidental to sexual assault crimes (see, e.g., id. at p. 23; Shadden, supra, 93 Cal.App.4th at p. 169; People v. Diaz (2000) 78 Cal.App.4th 243, 248; People v. Smith (1995) 33 Cal.App.4th 1586, 1594), although it may be merely incidental to robbery (see People v. Washington (2005) 127 Cal.App.4th 290, 303; People v. Hoard (2002) 103 Cal.App.4th 599, 607). The jury, therefore, could reasonably find that defendant's movement of Carolina 38 feet into the alley was not merely incidental to the commission of the crime itself, even if it was "incidental to [his] particular plan" for committing the crime. (See People v. Salazar (1995) 33 Cal.App.4th 341, 347.)
The movement into the alley also supports an inference that the movement increased "the risk of harm to the victim over and above that necessarily present in" the sexual assault. (§ 209, subd. (b)(2).) Specifically, the movement made defendant's assault less visible to passersby, Carolina's screams less likely to be heard, her escape more difficult, and the opportunity for defendant to commit additional crimes against Carolina more likely. (See Shadden, supra, 93 Cal.App.4th at p. 169 ["where a defendant moves a victim from a public area to a place out of public view, the risk of harm is increased even if the distance is short"]; People v. Aguilar, supra, 120 Cal.App.4th at p. 1049 [movement away from illuminated area to dark area made it harder for victim to escape and enhanced the attacker's opportunity to commit additional crimes].)
For the foregoing reasons, the evidence was sufficient to support the kidnapping element of the crime of kidnapping to commit forcible sexual penetration.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------