Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD224380 Frank A. Brown, Judge.
IRION, J.
A jury convicted Haydar T. Al Khafaji of kidnapping for rape (Pen. Code, § 209, subd. (b)(1)), assault with intent to commit rape (§ 220, subd. (a)) and robbery (§ 211). The trial court sentenced Al Khafaji to an indeterminate life term with the possibility of parole, plus a consecutive three-year determinate term.
Unless otherwise specified, all further statutory references are to the Penal Code.
Al Khafaji contends that (1) insufficient evidence supports the conviction of kidnapping for rape; and (2) the trial court prejudicially erred by not instructing on the lesser included offense of simple kidnapping. As we will explain, Al Khafaji's arguments lack merit, and accordingly we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On a Sunday afternoon, Paula was leaving work at a hospital where she was a doctor. As she walked through the parking lot to her car, holding her cell phone in one hand and her car keys in the other, Al Khafaji ran up to her and grabbed the keys from her hand. Al Khafaji told Paula to give him her phone or he would kill her, and she did so.
Paula was scared and offered Al Khafaji money, credit cards, her purse, her car and to take him to an ATM to retrieve cash. Al Khafaji said, "I don't want your fucking money[.] I want sex." He grabbed Paula's arm and told her to come with him as he dragged her toward a gazebo next to the parking lot. He said, "Not here[.] We're going to go somewhere else."
Pulling her arm, Al Khafaji led Paula behind buildings and through an alleyway, stopping briefly in a grassy courtyard area. He said, "No, not here, " and pulled her toward an area with garbage dumpsters. When Paula asked where they were going, Al Khafaji told her to shut up or he would kill her. Al Khafaji forced Paula down a steep slope into a secluded canyon and stopped at a plateau area.
Al Khafaji took a belt from Paula's trench coat and tied her hands and arms with it. He pushed her down and told her to lie on her back. Al Khafaji then stood over Paula's legs, facing her, and he put his hands on his belt buckle.
Paula pleaded with Al Khafaji to stop and told him again, as she had several times during the incident, that she was a doctor at the hospital. Al Khafaji asked Paula how he could confirm that she was a doctor, and Paula told him that her white coat and hospital identification were in her car. Al Khafaji stated that he didn't want to go back to the car, but he took Paula's driver's license out of her purse and looked at it. Al Khafaji then told Paula, "You'll be okay[.] I'm going to leave you here." Paula asked for Al Khafaji to give back her phone and keys. Al Khafaji kept the phone but threw the keys at Paula, and then ran off.
Paula freed herself and walked to the hospital, where someone called 911. Al Khafaji was found in the area a short time later. He had Paula's phone and driver's license in his pants pocket.
Al Khafaji was charged with kidnapping for rape (§ 209, subd. (b)(1)), assault with intent to commit rape (§ 220, subd. (a)) and robbery (§ 211).
At trial, Al Khafaji testified that at the time he encountered Paula he had been wandering around the streets for two days with psychological problems. He approached Paula and asked for her cell phone so that he could call the police, and she became scared and gave him the phone and her car keys. According to Al Khafaji, he asked Paula to walk with him so that he could make a phone call. She offered to give him anything he wanted, including sex. Al Khafaji told her he was not interested in sex. Al Khafaji claimed that he never touched Paula, even on the arm, and never threatened her. He asked Paula to sit down because he wanted to make a phone call, and then he started to "regain [his] consciousness" and realized he was doing something wrong. Paula kept telling him she was a doctor. He looked at her identification, and he ran away.
The jury convicted Al Khafaji on all counts, Al Khafaji received an indeterminate life term sentence with the possibility of parole, plus a consecutive three-year determinate sentence.
II
DISCUSSION
A. Substantial Evidence Supports a Finding That Al Khafaji Committed the Kidnapping with the Specific Intent to Rape
Al Khafaji contends that insufficient evidence supports the jury's finding that he acted with the specific intent to rape Paula when he committed the kidnapping.
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, 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.... We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.... If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.... 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)
The crime of kidnapping for rape is a type of aggravated kidnapping set forth in section 209, subdivision (b)(1). "[A]ggravated kidnapping by definition requires proof of specific intent." (People v. Dominguez (2006) 39 Cal.4th 1141, 1151, fn. 6.) The defendant must have the specific intent to commit a rape at the time the kidnapping begins. (See People v. Davis (2005) 36 Cal.4th 510, 565-566 (Davis) [discussing aggravated kidnapping for robbery].) "Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal.App.4th 413, 420.)
Section 209, subdivision (b)(1) provides: "Any person who kidnaps or carries away an individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288 or 289, shall be punished...."
Al Khafaji argues that "the evidence was insufficient to establish [he] had the specific intent to rape Paula." Specifically, Al Khafaji contends that the evidence was insufficient because he did not end up touching Paula in an intimate way, and "if [he] had the intent to rape Paula, he would have done it at the gazebo area."
We disagree. Numerous facts support a finding that Al Khafaji forced Paula through the parking lot, behind the buildings and into the canyon with the intent to rape her. At the beginning of the incident, Al Khafaji told Paula that he wanted sex and refused her offers of money and personal property. When they had reached a secluded location, Al Khafaji tied up Paula and had her lie down on her back. He was touching his belt buckle — presumably preparing to take off his pants — when Paula finally convinced him to stop. In light of these facts, a reasonable juror could conclude that Al Khafaji had the intent to rape Paula at the time he kidnapped her, even though he abandoned that plan before performing the sex act. Moreover, we reject Al Khafaji's contention that the only reasonable inference from the facts is that he would have raped Paula at the gazebo area had he formed a specific intent to rape her. As Paula testified, after dragging her to the gazebo area, Al Khafaji appeared to be looking for a suitable place to perform the rape, telling her, "Not here[.] We're going to go somewhere else." He then took her to the canyon, which was a far more secluded area. A reasonable inference from these facts is that Al Khafaji decided not to rape Paula at the gazebo area because the location was insufficiently secluded, not because he hadn't formed the specific intent to commit rape.
Kidnapping for rape also requires a finding that "the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying [rape]." (§ 209, subd. (b)(2).) In his opening brief, Al Khafaji did not challenge the sufficiency of the evidence to support such a finding. However, in his reply brief, Al Khafaji makes a cursory argument that his act in "moving Paula to the gazebo was merely incidental to the rape and did not increase the risk of harm to her beyond that inherent in the underlying rape and thus he did not commit an aggravated kidnapping." To the extent this argument is intended as a challenge to the sufficiency of the evidence to support the finding required by section 209, subdivision (b)(2), we reject it because it is improperly raised for the first time in the reply brief. (People v. Zamudio (2008) 43 Cal.4th 327, 353 [" 'Normally, a contention may not be raised for the first time in a reply brief.' "].)
We therefore conclude that sufficient evidence supports the jury's finding that in committing the kidnapping, Al Khafaji acted with the specific intent to rape Paula.
B. The Trial Court Did Not Err in Failing to Give a Lesser Included Offense Instruction for the Kidnapping for Rape Count
Al Khafaji's second contention is that the trial court prejudicially erred in not giving an instruction on simple kidnapping as a lesser included offense to kidnapping for rape.
" '[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and]... an erroneous failure to instruct on a lesser included offense constitutes a denial of that right....' " (People v. Haley (2004) 34 Cal.4th 283, 312.) Even without a request from defense counsel, the trial court is required to instruct the jury, "sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "[A] trial judge need not instruct the jury as to all lesser included offenses, just those that find substantial support in the evidence. [Citation.] ' "Substantial evidence" in this context is " 'evidence from which a jury composed of reasonable [persons] could... conclude[]' " that the lesser offense, but not the greater, was committed.' " (Haley, at p. 312.) Because substantial evidence is required, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense." (Breverman, at p. 162.)
As we have explained, as a type of aggravated kidnapping, the crime of kidnapping for rape is committed only if the defendant formed the specific intent to commit a rape at the time the kidnapping begins. (See Davis, supra, 36 Cal.4th at pp. 565-566.) Accordingly, the jury was instructed that the People were required to prove that when the "movement began" that constituted the kidnapping, "the defendant already intended to commit rape."
In contrast, the crime of simple kidnapping generally requires the same elements as the crime of kidnapping for rape under section 209, subdivision (b), but does not require that the defendant have the intent to commit a rape at the time the kidnapping began. (§ 207, subd. (a); compare CALCRIM No. 1203 with CALCRIM No. 1215; People v. Jones (2003) 108 Cal.App.4th 455, 462 ["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."].) The parties do not dispute that simple kidnapping is a lesser included offense of aggravated kidnapping, including kidnapping for rape. (See People v. Lewis (2008) 43 Cal.4th 415, 518 [simple kidnapping is a necessarily included offense of the aggravated kidnapping offense of kidnapping to commit robbery].)
Al Khafaji argues that the trial court should have instructed with the lesser included offense of simple kidnapping because "there was substantial evidence from which the jury could reasonably infer Paula was kidnapped before [Al Khafaji] formed the intent to allegedly rape her" (italics added), and therefore the record could support a finding that he committed simple kidnapping, but not kidnapping for rape. As we will explain, the facts do not support Al Khafaji's argument.
Paula testified that Al Khafaji informed her that he wanted sex at the very inception of the incident, before taking any action to grab her and drag her toward the gazebo. Therefore, according to Al Khafaji's own words, he had the intent to rape Paula before he took any action that could support a kidnapping conviction. The only evidence contradicting this version of events was Al Khafaji's own testimony, during which he denied committing any kidnapping at all, in that he claimed he did not touch or threaten Paula and only asked her to accompany him while he used her phone. Therefore, if the jury was to find that any type of kidnapping occurred — whether simple or aggravated — it would have to credit Paula's version of events. Under that version of events, Al Khafaji expressed his intention to have sex before grabbing Paula and dragging her away to initiate the kidnapping. Further, the record does not reveal any reasonable explanation, other than the intention to commit rape, for why Al Khafaji dragged Paula away to a secluded location and tied her up. Accordingly, the only type of kidnapping established by the facts is kidnapping for rape, not simple kidnapping. The trial court thus did not err in omitting an instruction on the lesser included offense of simple kidnapping.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.