Opinion
A165858
01-11-2023
THE PEOPLE, Plaintiff and Respondent, v. ERICK DONTAY GRAYSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Kern County Super. Ct. No. BF173160A
GOLDMAN, J.
A jury convicted defendant Erick Dontay Grayson of rape (Pen. Code,§ 261, subd. (a)(2)) and found true the aggravated kidnapping circumstances of the One Strike Law (§ 667.1, subds. (d)(2) & (e)(1).) Following a bifurcated court trial on Grayson's prior convictions, which included two prior strikes, a five-year prior serious felony, and a five-year prison prior (§§ 667, 667.5, 1170.12), the trial court sentenced Grayson to 75 years to life, plus an additional 10 years.
All further undesignated statutory references are to the Penal Code.
Grayson contends (1) his federal and state speedy trial rights were violated; (2) he received ineffective assistance of counsel; and (3) the aggravated kidnapping provisions are void for vagueness. We agree that Grayson's trial counsel was ineffective in failing to ask the trial court to exercise its discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) to strike or dismiss one or both of the five-year enhancements. Therefore, we remand for resentencing and otherwise affirm the judgment.
BACKGROUND
A. Procedural History
In 2018, through DNA evidence, Grayson was implicated in the 2012 rape of D.M. In June 2019, the Kern County District Attorney charged Grayson by information with rape. (§ 261, subd. (a)(2)). It was also alleged that during the commission of the rape, Grayson kidnapped D.M. (§ 667.61, subds. (d)(2) &(e)(1)) and used a deadly weapon (§ 667.61, subd. (e)(3)). The information alleged that Grayson had two prior strike convictions (§ 667, subd. (e)), two prior serious felony convictions (§ 667, subd. (a)), and two prison priors (§ 667.5).
Jury trial commenced on June 18, 2020. On July 16, 2020, after an 11-day trial, the jury found Grayson guilty of forcible rape, and found the kidnapping allegations true. The jury determined Grayson had not used a deadly weapon during the commission of the rape. At a bifurcated court trial, the alleged priors were found true.
On August 20, 2020, Grayson was sentenced to an indeterminate term of 75 years to life (§§ 667, subd. (e)(2)(A)(i), 667.61), plus an additional 10-year determinate term, comprised of the two five-year enhancements.
B. Facts
1. Prosecution Evidence
On September 20, 2012, D.M., who had recently begun driving a taxi van for ABC Taxi Company, was directed by her boss to go to the Kern County Fairground to look for customers. Between 11:00 and 11:30 p.m., Grayson flagged her down. D.M., who was not fluent in English, called her boss for help in understanding where Grayson wanted to go.
Orlando Cueto testified that he used to run the ABC Taxi Company and that D.M. worked for him at the time. He also confirmed that D.M. did "not" speak English "very well" and that he would sometimes translate for her. He also confirmed that he had dispatched D.M. to the Kern County Fairgrounds that night.
After speaking to her supervisor, D.M. headed south. As she was making a right turn, Grayson told her it was a "holdup." According to D.M., Grayson pointed a gun at D.M. and told her to keep driving. He told her he would kill her if she did not cooperate. Eventually, Grayson directed D.M. to stop. He told her to get in the back of the van and take off all her clothes, repeating he would kill her if she did not comply; D.M. did as Grayson commanded. Grayson got in the driver's seat and began driving.
They arrived at an area where D.M. could see only haystacks. After a brief exchange with a man who had been outside in the hay field, Grayson drove away. D.M. could not understand what they spoke about. Neither D.M. nor Grayson ever got out of the van while Grayson talked to the man. D.M. did not scream for help because she was afraid of what Grayson would do to her if she did so.
Grayson drove to a dark place near a canal and up a small hill. Once Grayson stopped the car, he climbed to the back of the van and told D.M. he would kill her if she did not do what he said. He pulled D.M. down on the seat, kissed her on the mouth and all over her body, and inserted his penis into her vagina. When D.M. tried to push Grayson away, he hit her.
After raping her, Grayson shoved D.M. out of the van, threw her clothes at her, and drove off with D.M.'s phone, purse, and wallet inside the van. D.M. put on her clothes and began walking through a dark corn field. When she came to a road, she jumped in front of a car and cried out for help in Spanish. The driver and his wife stopped to assist her. They observed that D.M. was extremely distraught and emotional. D.M. said she had been raped and that her vehicle had been stolen; D.M. seemed very scared.
Deputies from the Kern County Sheriff's Office responded. The deputies, one of whom was Spanish-speaking, noticed that D.M. seemed distraught and disheveled. They drove her around in an effort to jog her memory, but she was not able to identify any streets, residences or locations. She was taken to the hospital for a sexual assault examination. At the hospital, D.M. was still emotional and at times hysterical. D.M. felt bad during the exam and feared she had contracted a disease. The examining nurse elaborated on the examination, which she described as "very invasive" and "very traumatic."
DNA evidence was collected and later submitted to a DNA database known as "CODIS." Police soon located the abandoned taxi van near the fairgrounds.
On May 16, 2018, Detective Mark Chambless, then part of the Sexual Assault/Crimes Unit at the Kern County Sheriff's Office, got a "CODIS hit" in the 2012 rape and obtained a DNA sample from Grayson. A criminalist opined that one DNA sample obtained from D.M.'s body during the sexual assault exam was 25 million times more likely to be Grayson's, and a sample obtained from her breast was 1.3 quintillion times more likely to be Grayson's, as compared to that of a random African-American.
On May 30, 2018, Detective Chambless spoke with D.M. about her 2012 assault. During the interview she seemed "scared" and was crying. D.M. told Detective Chambless about what had happened to her, in a manner substantially similar to her trial testimony.
At trial, D.M. testified with the assistance of an interpreter. She was emotional and crying during her testimony. Recalling the rape was so traumatizing to her that she needed to take a break to go throw up in the bathroom. On cross-examination, she vehemently denied that she propositioned Grayson to have sex with her for money. When defense counsel further pressed the issue, she replied that she took "offense" to the "absurd" question. D.M. further responded, "That for me you are just talking crap. That is just unbelievable what you're asking me. Excuse me sir, but it's beyond the pale."
2. Defense Evidence
Grayson testified that, on the evening of September 20, 2012, he was sitting on a rock in front of the Bakersfield Lodge, when D.M. drove up in an ABC Taxi Company van. Grayson had been sitting with a friend who said he knew D.M. and that she was "a hoe." As she pulled in, D.M. said in English, "Hi, sexy. How does that chocolate D taste?" When Grayson responded she "would have to find out," D.M. asked where they could go to "find that out." Grayson then got in on the passenger side. D.M. said she needed money and agreed to have sex with Grayson in exchange for cash. Grayson showed D.M. what he had-"like $13 and some change"-and she said "okay."
Grayson clarified that D.M. said "dick" but he said "D" at trial because he was "just being respectful."
They stopped at a spot with hay bales and began to have sex. However, at some point Grayson "just felt something wasn't right about this situation," so he suggested that they stop having sex and just masturbate, which they did. After Grayson ejaculated on D.M., she began to suck his penis. A bit later, they got out of the van, and a man with a flashlight came "out of nowhere" and told them that they had to leave; they left with D.M. driving the van.
D.M. started crying and said that she wanted to go home. She drove to a street with what looked like a few mobile homes on it, parked, got out of the van, and said in English, "I'm going to my family's house." She then left, leaving Grayson sitting in the passenger seat of the van. He sat there for a few minutes, wondering what was going on. He saw that D.M. had walked down the street and was sitting on the sidewalk. Grayson went up to her, asked what was going on, and told her that he needed a ride home. Grayson tried to give D.M. the $13 that he was supposed to give her, but she refused to take it. D.M. said that she just wanted her family and wanted to go home. She also said something about the van being stolen. Feeling uneasy about D.M.'s behavior, Grayson decided to drive back to the Bakersfield Lodge.
Grayson denied having a gun. He never forced or threatened D.M. to do anything; it was all consensual.
On September 20, 2012, Keith Kennedy was working on a hay farm on Cottonwood Road; the farm had been experiencing thefts, so he was guarding the hay. Late that night, he saw a taxi van turn from Cottonwood Road onto a dirt road that led out to the haystacks. Two people got out: a man from the driver's seat and a lady from the passenger seat. While holding a flashlight, Kennedy called out to the pair and said they were not supposed to be there. He heard a female voice say something like, "Sorry, sir. Sorry."
Kennedy did not think he could identify either person, as it was dark and it all "happened so fast"; by the time he called out, the two people were "already turning around [and were] getting back into the vehicle." He was about 75 feet away from the van during this interaction. After telling his boss about the incident, his boss called 911. Police officers came about an hour later. Kennedy did not recall telling police that he had heard a male voice answer him with "all right" in a kind of slang. Kennedy recalled an investigator and the prosecutor coming to his house a few days before his testimony to ask him about his memory of this incident.
On cross-examination, Kennedy acknowledged that the events at issue were eight years in the past, that during the time he had this job he had approached "[a] lot" of people for stealing hay bales, and he admitted he "could be" misremembering or mixing incidents up. He also agreed that back in 2012, he had not been able to give police "a description of either the driver or the passenger." However, the ABC Taxi van stood out to him. He did not recall telling the police that the driver had been male. He remembered telling the investigator and the prosecutor that both the man and the woman in the van had been African-American. He did not "clearly" see either occupant of the taxi. He only saw "bodies" and inferred their ethnicity based on their voices. He did not actually see a woman, but inferred the gender based on the tone of voice.
3. Rebuttal Evidence
Detective Chambless described his May 2018 interview of Grayson. An audio recording of this interview was played for the jury. During the interview Grayson said various things he did not say while on the stand. Initially, when told he was being interviewed about a case involving a taxi, Grayson said he had no memory of any personal involvement in a taxi-not even when "ABC Taxi" was mentioned; he even denied ever taking a taxi in the past. Yet, before Detective Chambless mentioned the taxi was a van, Grayson asked if he had a picture of the "van." After being told that the case involved the rape of a woman and the theft of the taxi she had been driving, Grayson still maintained he had no recollection.
When Detective Chambless suggested the story that the woman had been "a hooker," and that there had been an argument about money, Grayson said: "Oh wait a minute. Oh, oh, oh, oh, oh, a white, was the van white, a white van, white ABC van? . . . Okay, yeah, I know what you're talking about now." Grayson then told his story about how D.M. drove up asking him what his penis tasted like and how they ended up having sex out by the haystacks.
Detective Chambless explained he had used various ruses during the interview, such as suggesting to Grayson that the victim had been a prostitute (which he had thought might prompt Grayson to admit that he had been present). Detective Chambless agreed that false confessions can happen. He agreed that during his interview he used ruses to try to gain Grayson's trust. Detective Chambless denied trying to "break [Grayson] down." Rather, it was "very difficult to confess to a heinous crime" and he was trying to get Grayson "comfortable" enough to give a truthful confession.
DISCUSSION
A. Speedy Trial Claim
Grayson argues that delays in prosecuting the charged offense prejudicially violated his federal and state rights to a speedy trial. The Attorney General argues that Grayson forfeited his state challenge by failing to raise it in the trial court, and that to the extent the issue has been preserved, Grayson shows no prejudice. The Attorney General argues that the federal claim fails because Grayson "suffered a one-year pretrial delay that barely suffices to trigger the relevant analysis, most of that delay cannot be attributed to the People, he asserted his speedy-trial right only once, and he fails to show any comprehensible prejudice."
1. Additional Background
On May 23, 2019, Grayson was arraigned by felony complaint. He later waived preliminary examination and was held to answer on June 5, 2019. Grayson was arraigned on the information on June 17, 2019. No time waiver was entered and jury trial was calendared for July 29, 2019.
At a readiness hearing on July 19, 2019, counsel for Grayson asked to continue the trial for almost seven months, to February 24, 2020. Counsel explained the extra time was needed because it was a cold DNA case, with an 85-years-to-life exposure. Grayson was not in agreement to the continuance and refused to waive time. The court found good cause to continue the matter over Grayson's objection and set the jury trial for February 24, 2020.
At a readiness hearing on February 19, 2020, the matter was trailed from February 24 to February 26, due to the trial schedules of both defense counsel and the prosecutor.
On February 26, 2020, the defense answered ready for trial and the matter was trailed to March 2, 2020 because the prosecutor was in trial and no courtrooms were available; the trial court stated that February 26 was "day one of ten."
On March 2, 2020, counsel for Grayson stated that he was no longer ready for trial due to "discovery issues." The prosecutor made reference to 911 calls, photographs, and reports of priors that would be presented per Evidence Code sections 1101 and 1108. Defense counsel confirmed that he had not received the reports of the priors and said he would not be ready given the serious nature of the case. That motion was denied by a different judge, in a different courtroom. Back in open court, jury trial was set for May 4, 2020; the court found good cause for the continuance based on defense counsel's representation that he needed more time for investigation and because of anticipated new discovery.
Due to the COVID-19 pandemic, the May 4, 2020 trial date was continued to June 1, 2020. Thereafter, the trial court found good cause to continue the trial to June 4, 2020, because defense counsel was not ready to proceed to trial.
On June 4, 2020, defense counsel answered ready and advised the court that the parties stipulated to start the trial on June 15. The court responded, "So if I . . . can offer you a courtroom. I can accept a stipulation that trial has started. I can send you in there on June 15th but the understanding with the stipulation will be that whatever trial in there must conclude before Mr. Grayson's trial starts." The court added, "It should not be a long time waiting but it could be anywhere from one to five or six days until that matter is concluded. We have a lot of unknowns right now with COVID-19." Defense counsel and the prosecutor agreed to the conditions. The court then addressed defendant: "Mr. Grayson, I'm giving you a courtroom. You will report on June 15th at 9:00 A.M. and you will start your trial either that morning or whenever the trial that's in that courtroom concludes. [¶] Do you stipulate that your trial has started?" Grayson replied, "Yes."
On June 15, 2020, the department to which the case was sent was still engaged in another trial, and the court ordered the parties to reconvene in two days. The matter was thereafter continued from June 17 to June 18, at which time the court heard the parties' motions in limine.
2. Constitutional and Statutory Rights
Both the state and federal Constitutions guarantee criminal defendants the right to a speedy trial (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1), "and both guarantees operate in state criminal prosecutions ...." (People v. Martinez (2000) 22 Cal.4th 750, 754 (Martinez)). Additionally, "[t]he statutory speedy trial provisions, . . . sections 1381 to 1389.8, are 'supplementary to and a construction of' the state constitutional speedy trial guarantee." (Id. at p. 766.)
The right to a speedy trial" 'serves a three-fold purpose ....'" (Barker v. Municipal Court (1966) 64 Cal.2d 806, 813.)" 'It protects the accused . . . against prolonged imprisonment; it relieves him of the anxiety and public suspicion attendant upon an untried accusation of crime; and . . . it prevents him from being "exposed to the hazard of a trial, after so great a lapse of time" that "the means of proving his innocence may not be within his reach"-as, for instance by the loss of witnesses or the dulling of memory.'" (Ibid.) The question posed in evaluating a speedy trial claim is whether the state has engaged in an unreasonable delay that prejudices these interests. (Serna v. Superior Court (1985) 40 Cal.3d 239, 249; Scherling v. Superior Court (1978) 22 Cal.3d 493, 505.) The test is necessarily a balancing one: "prejudice to the defendant resulting from the delay must be weighed against justification for the delay." (Scherling, supra, 22 Cal.3d at p. 505.)
3. Forfeiture and Ineffective Assistance of Counsel
Although the federal constitutional right to a speedy trial is not forfeited by the failure to raise it in the trial court (People v. Bradley (2020) 51 Cal.App.5th 32, 39), the state constitutional and statutory rights to a speedy trial can be forfeited. "The right to a speedy trial . . . will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss." (People v. Wilson (1963) 60 Cal.2d 139, 146 (Wilson).) "It is not enough that the defendant has objected at the time the cause was set for trial beyond the statutory period .... [Citation.] The defendant must also move to dismiss after the expiration of the allowable delay (but before the beginning of trial) so that if the court decides that the statutory period has been exceeded, that there has not been good cause for the delay, and that a proper and timely objection was made, a futile trial will be avoided." (Id. at p. 147.)
Here, although Grayson objected to the initial continuance and expressly did not waive time on two occasions, at no time did he or defense counsel move to dismiss on speedy trial grounds. We recognize that" '[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile ....'" (People v. Brooks (2017) 3 Cal.5th 1, 92.) In Wilson, however, the Supreme Court specifically held that even after a defendant has objected to a continuance, and even after that objection has been overruled, the defendant still must also move to dismiss-and that failure to do so is a forfeiture. (Wilson, supra, 60 Cal.2d at pp. 147-148.)
Thus, Grayson argues alternatively that his trial counsel rendered constitutionally ineffective assistance by failing to move to dismiss. "To establish ineffective assistance of counsel, [defendant] must show that [his] counsel's performance was deficient and that [he] suffered prejudice from the deficient performance. [Citation.] On direct appeal, if the record' "sheds no light on why counsel acted or failed to act in the manner challenged,"' we must reject the claim' "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." '" (People v. Caro (2019) 7 Cal.5th 463, 488.)
In this case, the issue of ineffective assistance boils down to whether Grayson's speedy trial rights were violated. If they were, then defense counsel rendered ineffective assistance by not moving to dismiss. On the other hand, if they were not, this failure was not deficient and not prejudicial. We therefore address the merits below.
4. State Statutory Right
Section 1382, subdivision (a)(2), as relevant here, provides that "[i]n a felony case, when a defendant is not brought to trial within 60 days of the defendant's arraignment on an . . . information," "[t]he court, unless good cause to the contrary is shown, shall order the action to be dismissed ...." (§ 1382, subd. (a)(2).) "However, an action shall not be dismissed under this paragraph if" among other things, "[t]he defendant requests or consents to the setting of a trial date beyond the 60-day period ...." (§ 1382, subd. (a)(2)(B), italics added.) The defendant's consent may be express or implied. (Ibid.) "[W]henever a case is set for trial beyond the [initial statutorily prescribed] period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.' (§ 1382[, subd.] (a)(2)(B) &(3)(B), italics added.)" (Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 965 (Barsamyan).)
Where, as here, a defendant is arraigned by information in a felony case, the statutorily-prescribed period under section 1382 is 60 days. (§ 1382, subd. (a)(2).) As such, the statute requires dismissal if trial is not commenced within 60 days of arraignment, unless good cause is found or the defendant consents to waive time, in which case he may be brought to trial on or within 10 days after the date to which defendant consented. (§ 1382, subd. (a)(2)(B), italics added; see also People v. Lewis (2001) 25 Cal.4th 610, 628-629.) Thus, "[t]he 10-day period does not begin to run until the defendant announces ready for trial on the date to which the trial was continued, or on a later date to which the defendant impliedly or expressly consented if the case was again continued." (Medina v. Superior Court (2000) 79 Cal.App.4th 1280, 1286.)
"A waiver of statutory speedy trial rights occurs when defense counsel consents to or requests a delay in the proceedings. Consent may be express or implied (§ 1382[, subd.] (a)(2)(B) &(3)(B)), and is inferred from silence. '[F]ailure of defendant or his counsel to make timely objection to a postponement constitutes implied consent to the postponement.' ([Citations]; see also Judicial Council of Cal., Seventeenth Biennial Report (1959) p. 31; Note, Selected 1959 Code Legislation (1959) 34 State Bar J. 583, 717-718 [§ 1382, as amended in 1959, was intended to codify the rule that 'a postponement is attributable to defendant not only when he requests a continuance, but also when he . . . consents, either expressly or impliedly, to a continuance requested by the prosecution. Implied consent is the failure to object'].)" (Barsamyan, supra, 44 Cal.4th at pp. 969-970; see also Wilson, supra, 60 Cal.2d at p. 146 [consent to waiver of time is presumed for purposes of section 1382 "unless the defendant both objects to the date set and thereafter files a timely motion to dismiss"].)
"Defense counsel, as part of his or her control of the procedural aspects of a trial, ordinarily has authority to waive the statutory speedy trial rights of his or her client, even over the client's objection, as long as counsel is acting competently in the client's best interest. [Citations.] This is because statutory speedy trial rights are not among those rights that are considered so fundamental that they are 'beyond counsel's primary control.'" (Barsamyan, supra, 44 Cal.4th at p. 969.)
Returning to the issue at hand, we accept, based on the record and law set forth above, that Grayson, having been arraigned by information on June 17, 2019 and not waiving time, should have been brought to trial by August 17, 2019. However, on July 19, 2019, defense counsel, over Grayson's objection, moved to continue the trial to February 24, 2020. Although seven months is not an insignificant amount of time, we conclude the trial court did not abuse its discretion as there was good cause to continue the matter in light of the complexity of this cold DNA case, combined with the possible prison exposure of 85 years to life. It is well established that delaying trial for a defendant's benefit or due to a defendant's conduct constitutes good cause, even where the request for continuance was made by counsel over defendant's objection. (Townsend v. Superior Court (1975) 15 Cal.3d 774, 781 [defense counsel's request for continuance ordinarily constitutes good cause for delay for purposes of § 1382 unless the" 'representation by counsel is so ineffective that it can be described as a "farce and a sham"' "].) Here, nothing in the record suggests that defense counsel's requested continuance was due to laziness or indifference. (See People v. Lomax (2010) 49 Cal.4th 530, 556.)
This brings us to the two-day continuance from February 24 to February 26, 2020, which was granted because the assigned prosecutor was in another trial. (Burgos v. Superior Court (2012) 206 Cal.App.4th 817, 829831 [good cause exception where prosecutor had another trial in progress].) Defense counsel, who had not yet answered ready, agreed to trail the case. Contrary to Grayson's contention, he did not object to the two-day trailing of his case. Grayson was present at the hearing and did not lodge an objection to the continuation. This constituted implied consent to the continuation. (Barsamyan, supra, 44 Cal.4th at pp. 969-970.) To the extent Grayson appears to suggest that his initial refusal to waive time acted as a continuing objection to setting his trial beyond 60 days, the express conduct of defense counsel and Grayson's acquiescence in that conduct demonstrates his initial refusal was no longer in effect. (Ibid.)
At the February 26, 2020 hearing, defense counsel answered ready and the trial court began the prosecution's 10-day grace period within which to commence trial. However, on March 2, 2020, due to an outstanding investigation and related discovery issues, defense counsel was no longer ready to proceed to trial. Given the six-year delay between the time of the crime and the DNA match, there were bound to be investigative and discovery issues that required additional time. Good cause supported this continuance of the case to May 4, 2020. (See Townsend v. Superior Court, supra, 15 Cal.3d at p. 781.) However, due to the intervening COVID-19 pandemic, the case was continued to June 1, 2020. (See Elias v. Superior Court (2022) 78 Cal.App.5th 926, 942 [circumstances of COVID-19 pandemic provided good cause under speedy trial statute to continue trial].)
Thereafter, on June 1, 2020, the trial court found good cause to continue the matter to June 4 based on defense counsel's inability to answer ready. (See Lomax, supra, 49 Cal.4th at pp. 556-557 [good cause established where defense counsel not ready to proceed].) Grayson was present at the June 1 hearing and lodged no objection to the continuance. Finally, on June 4, defense counsel, Grayson, and the prosecutor stipulated that the trial had begun as of that date and the matter would proceed on June 15 or whenever a courtroom became available. Grayson argues defense counsel had no authority to stipulate to additional continuances over his "ongoing objection" and without a time waiver. However, as noted, Grayson implicitly agreed to the continuances leading up to the June 4th date. He also ignores that by his express stipulation, he entered a limited personal time waiver, agreeing that trial had commenced on June 4, 2020, and that it would proceed on June 15 or as soon as a courtroom became available.
In sum, we conclude Grayson's statutory speedy trial rights were not violated. Moreover, Grayson cannot establish prejudice. He argues that he was incarcerated for approximately one year while his trial was delayed. However, delay alone, even delay that is "uncommonly long," is not enough to show prejudice. (Martinez, supra, 22 Cal.4th at p. 755.) Under state law, no presumption of prejudice arises from delay after formal accusation by information. (Ibid.) Rather, in this situation, a defendant must affirmatively demonstrate prejudice. (Ibid.) To the extent Grayson argues the passage of time weakened the impact of testimony from his "key alibi" witness, Kennedy, we are not persuaded. First, Grayson fails to establish how the discrepancies in Kennedy's testimony help his case. Whether he saw two men or a man and a woman, Kennedy, from his vantage point, was in no position to see if anyone appeared to be in fear or under duress. Second, even assuming Kennedy's fading memory had some relevance, Grayson fails to establish it was due to the one-year delay in bringing the case to trial, as opposed to being caused by the six-year gap between the crime and the DNA match. In sum, Grayson has not affirmatively established prejudice.
For this same reason, anything Kennedy might have said in a 911 call, that may or may not have existed, hardly established an alibi for Grayson.
5. Federal Constitutional Right
To determine whether federal speedy-trial rights were violated, courts apply a balancing test involving four factors: length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. (Barker v. Wingo (1972) 407 U.S. 514, 530; People v. Roybal (1998) 19 Cal.4th 481, 512.) The Barker court noted that the defendant's "responsibility" to assert his right is closely interrelated to the other factors. (Barker, supra, at p. 531.) The court in Barker explained that because "[t]he more serious the deprivation, the more likely a defendant is to complain," the defendant's assertion of his speedy-trial right is entitled to strong evidentiary weight on the issue whether he is being deprived of the right. (Id. at pp. 531532.) On the other hand, the court "emphasize[d] that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." (Id. at p. 532.)
Here, the delays were for Grayson's benefit, not the result of prosecutorial negligence or bad faith. (See Doggett v. United States (1992) 505 U.S. 647, 656.) Moreover, other than the first two continuances, Grayson tacitly acquiesced to the delays. For the reasons articulated in rejecting his state claim, Grayson's federal claim similarly fails due to lack of prejudice.
Grayson argues that the length of the delay rendered it "presumptively prejudicial." The Doggett court concluded that an eight-and-one-half-year delay between indictment and trial produced a presumption of prejudice. But even there, the court was careful to note that other elements of the Barker test also indicated a deprivation of the defendant's rights; much of the delay was attributable to government negligence, and the defendant had not acquiesced. (Doggett v. United States, supra, 505 U.S. 647 at pp. 656-658.) Here, the one-year delay was not attributable to the prosecution, but was due to the complexity of the case, combined with the COVID-19 pandemic. And, despite his contention to the contrary, Grayson acquiesced to the continuances by failing to object. We cannot conclude he has established federal constitutional grounds to overturn the judgment against him.
B. Ineffective Assistance of Counsel
Grayson contends he received ineffective assistance of counsel because his trial counsel failed to object to nonresponsive testimony from Detective Chambless on cross-examination, did not move to strike it, and did not ask that the jury be admonished to disregard it. He also contends trial counsel rendered ineffective assistance by failing to file a motion to strike his priors. We reject his first contention, but agree that his attorney was ineffective in his representation of Grayson at the time of sentencing.
1. Applicable Law
"The burden of proving ineffective assistance of counsel is on the defendant." (People v. Babbitt (1988) 45 Cal.3d 660, 707.) A criminal defendant must show both deficient performance-"that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates," and prejudice-"that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Price (1991) 1 Cal.4th 324, 386; Strickland v. Washington (1984) 466 U.S. 668, 687.) In evaluating a defendant's showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms" (Strickland, supra, at p. 688), an appellate court accords "great deference to the tactical decisions of trial counsel in order to avoid 'second-guessing counsel's tactics and chilling vigorous advocacy by tempting counsel "to defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial . . . ." '" (In re Fields (1990) 51 Cal.3d 1063, 1069-1070.)" 'However, "deferential scrutiny of counsel's performance is limited in extent and indeed in certain cases may be altogether unjustified. '[D]eference is not abdication' [citation]; it must never be used to insulate counsel's performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions." '" (Id. at p. 1070.)
"Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.] . . . 'Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.'" (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) If the record on appeal" 'sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected," and the "claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th264, 266-267.)
2. Handling of Cross-Examination
Grayson argues he was denied effective assistance of counsel when his trial counsel did not object to Detective Chambless's nonresponsive answers in which he opined that Grayson's denial was a lie; that only the victim in this case deserved justice; and that false accusations are rare.
a. Additional Background
While cross-examining Detective Chambless during the prosecution's rebuttal case, the defense attempted to highlight that Detective Chambless wanted a confession and used false statements and pressure in an effort to get it. The following colloquy ensued:
"Q. Were you disappointed that he didn't confess?
"A. I was not disappointed in a lack of confession. You could hear me repeatedly say, 'If you don't want to talk, don't talk. Just don't lie to me.' I was frustrated and disappointed with the lying. [¶] . . . [¶]
"Q. Do you remember when he said . . . he wanted to apologize to this lady; correct?
"A. I believe that was the point where that came up.
"Q. At that point, you thought you got him?
"A. I thought he was
"Q. Seriously?
"A. I believe there was a change in demeanor and
"Q. You were, like
"A.-he was finally going to come clean. I did. I thought the story was going to change and he was going to come clean about everything.
"Q. You were, like, 'Wow. That's it. I got him.'
"A. I wasn't, like, 'Wow. I got him,' but I was surprised, and I was happy. I mean, you have to remember at the end of the day this is not about me getting what I want. This is about me attempting to get justice for someone else. It's not a selfish, personal thing. It's about the case. It's about the-it is. It's about victims. It's about justice.
"Q. Justice for someone else?
"A. Yes.
"Q. How about justice for him? Does he have a right for justice?
"A. He has absolute rights to it and for it, and that's why we're here.
"Q. When you say 'justice,' is it only [D.M.] that's entitled to justice in this case?
"A. My belief, in this case, yes.
"Q. She's the only one entitled to justice?
"A. Justice is-so the definition of justice-yes. Now, that doesn't mean that someone's not allowed a fair trial. That doesn't mean that someone is not given the opportunity to face their accuser and have fairness. And if a . . . court rules in that person's favor, then, sure. It would be justice for them, either side. But when I have a victim, yes, I'm not going for justice from [sic] a suspect. The justice is for the victim. It's charging the appropriate person with the crime that was committed against a victim. That is justice. [¶] . . . [¶]
"Q. Can an innocent person be arrested, charged, prosecuted for an offense they did not commit?
"A. I think there's documentaries that show that, yes. I think it's rare and very possible, though.
"Q. It's rare for an innocent person to be arrested and charged for an offense they did not commit? You said-hold on. You said it is rare in the United States of America?
"A. If you-do you want me to-am I going to look up journalistic studies and look up ratios and statistics? My belief, without knowing those statistics, I've been involved in hundreds and hundreds and hundreds of arrests, and there's a lot of-I mean, I can't even make an arrest unless there's probable cause, which is a higher standard than reasonable suspicion. I will stand here and tell you that it is rare to have someone falsely accused. It happens. It is rare."
b. Analysis
"We need not decide whether [counsel's performance] was deficient because, even if it was, [Grayson] was not prejudiced. (See Strickland, supra, 466 U.S. at p. 697 ['If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed']." People v. Johnsen (2021) 10 Cal.5th 1116, 1168; People v. Huggins (2006) 38 Cal.4th 175, 248-249.) "Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (People v. Vines (2011) 51 Cal.4th 830, 876.) "This [prejudice inquiry] is not solely one of outcome determination. Instead, the question is 'whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.'" (In re Valdez (2010) 49 Cal.4th 715, 729.)
At the outset, we note "the jury would hardly have been surprised that [the lead investigator] had concluded that [the accused] was guilty." (People v. Woodruff (2018) 5 Cal.5th 697, 762.) "[Chambless]'s testimony that he believed defendant was guilty as charged . . . did not present any evidence to the jury that it would not have already inferred from the fact that [Chambless] had investigated the case and that defendant had been charged with the crimes." (People v. Riggs (2008) 44 Cal.4th 248, 300.) Furthermore, Chambless testified that he interviewed D.M. She appeared as a prosecution witness and her testimony incriminated defendant. (See ibid. ["There was no implication . . . that [the investigator's] opinions were based upon evidence that had not been presented to the jury"].) Finally, in its admonition, the court reminded the jury of its obligation to decide issues of credibility and guilt based on its own assessment of the evidence, not the opinion of any witnesses. (See, e.g., People v. Holt (1997) 15 Cal.4th 619, 662 ["Jurors are presumed to understand and follow the court's instructions"].) "[W]e see nothing in the record that would lead us to conclude that the jury was likely to disregard the[se] instructions ...." (People v. Riggs, supra, at p. 300.)
To the extent Grayson claims that Detective Chambless's testimony cast him in a negative light, it was no more prejudicial than Grayson's own testimony. By Grayson's account, Spanish-speaking D.M., who multiple witnesses described as very emotional and upset immediately after the incident and who remained visibly distraught while testifying at trial eight years later, was the same person who propositioned him in English, agreed to have sex with him for $13, and after voluntarily having sex with him, she abandoned her employer's taxi van, and left her purse, identification, and wallet inside. This story was a considerable stretch for any jury to accept. (See, e.g., People v. Wimberly (1992) 5 Cal.App.4th 773, 796 [rejecting defendant's statement that "a young girl whom he met on the street, invited him to her home and consented to anal sex," finding it "so incredible that its very implausibility suggests that appellant created it to conceal his guilt"].)
In contrast to this implausible version of the events, D.M., through an interpreter, testified that the sexual encounter with Grayson was not consensual. She emotionally described the rape; how she jumped in front of a moving car to get help; and the pain and humiliation of undergoing a sexual assault exam. Numerous witnesses corroborated D.M.'s testimony, including that she spoke little English. The jury was able to gauge the sincerity of D.M.'s testimony and her indignation when she was confronted with defense counsel's articulation of the defense theory. ("That is absurd .... I take offense with that question. It is offensive to me. That for me[,] you are just talking crap. That is just unbelievable what you're asking me. Excuse me, sir, but it's beyond the pale[.])"
Contrary to Grayson's contention, his case does not resemble the type of prejudice at issue in People v. Julian (2019) 34 Cal.App.5th 878 (Julian). In Julian, the court found the admission of an expert's testimony that it was statistically rare for child sexual abuse victims to make false allegations highly prejudicial because the "case was a credibility dispute" between the ten-year-old victim and the defendant. (Id. at p. 888.) The court noted the "strong defense evidence" and that the child victim "had difficulty remembering certain facts, gave some tentative responses, and some of her testimony was introduced with leading questions." (Ibid.) In addition, there were conflicts between her trial testimony and her out-of-court interview. (Ibid.) Finally, the court noted that while "a slight passing reference by the expert" to the statistics might be harmless, the jury in that case was "bombarded with it" and the prosecutor relied on the evidence heavily in closing argument. (Id. at pp. 888-889.)
While this case also presented a credibility dispute between the victim and the defendant, the similarities end there. Unlike in Julian, the defense evidence was not strong. Also, D.M.'s testimony at trial was largely consistent with her prior interviews. Here, the jury was not "bombarded" with "a mountain of prejudicial statistical data" regarding the likelihood of false allegations. (Julian, supra, 34 Cal.App.5th at pp. 888-889.) Lastly, Chambless's challenged testimony was brief and not the centerpiece of the prosecution's case. While the prosecution did discuss Chambless's testimony in closing argument, overwhelming emphasis was not placed on the challenged testimony.
On this record, we cannot say" 'there is a reasonable probability that, but for counsel's [cross-examination of Detective Chambless], the result of the proceeding would have been different.'" (People v. Jacobs (2013) 220 Cal.App.4th 67, 75.)
3. Representation at Sentencing
"[A] defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent." (People v. Scott (1994) 9 Cal.4th 331, 351.) Grayson contends his attorney was incompetent in (among other things) failing to alert the court to its new discretion under Senate Bill 1393. This law amended sections 667 and 1385 to grant courts the discretion to strike or dismiss prior serious felony convictions for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) The law went into effect January 1, 2019, 18 months before Grayson's August 2020 sentencing.
On this record, we agree with Grayson. We can conceive of no reasonable tactical purpose for his attorney's omission. (See People v. Centeno (2014) 60 Cal.4th 659, 675-676 [where there was no conceivable "reasonable tactical purpose for defense counsel's omission," defense counsel's failure to object to prosecutorial misconduct was ineffective].) Indeed, the Attorney General does not even try to offer a possible tactical reason for defense counsel's failure to ask the court to strike or dismiss the five-year enhancements for the prior serious felony and prison prior under Senate Bill 1393.
Instead, the Attorney General argues that Grayson cannot show prejudice. We disagree. In this case, Grayson received a lengthy sentence of 75 years to life. Had competent defense counsel alerted the court to Senate Bill 1393 and requested the court to strike or dismiss the five-year enhancements for the prior serious felony and prison prior, we believe there is a sufficient probability the trial court would have granted the request so as to undermine our confidence in the sentence. (People v. Jacobs, supra, 220 Cal.App.4th at p. 75.)
Finally, although not raised by the Attorney General, we pause briefly to consider the rule that absent evidence to the contrary, we must presume the trial court knew and applied the governing law at sentencing. Although we do not disagree with that principle, that argument does not correctly frame the question we must answer on appeal. Even where there is no trial court error, counsel's deficient performance may prejudice an outcome. (Cf. United States v. Carthorne (4th Cir. 2017) 878 F.3d 458, 465-466 [the ineffective assistance inquiry does not involve the correction of an error by the trial court, but focuses more broadly on the duty of counsel to raise critical issues for that court's consideration; and even when a trial court has not committed error, counsel can have rendered ineffective assistance when counsel's errors were the result of a misunderstanding of the law].) In other words, even when we presume the trial court was aware of its discretion under Senate Bill 1393, the court had no duty to raise the issue sua sponte for defendant's benefit. The duty was counsel's, and prejudice emanating from the omission is not necessarily obviated by the court's silence on the matter. (Cf. People v. De Soto (1997) 54 Cal.App.4th 1, 9 [defense counsel has the "obligation to formulate specific" arguments at sentencing, because in "making sentencing choices, the trial judge is confronted with a maze of statutes and rules"].) Accordingly, we will remand the matter for resentencing.
Grayson argues that his attorney was also ineffective in failing to move the court to strike his prior strike convictions under People v. Superior Court (1996) 13 Cal.4th 497 (Romero) and section 1385. On remand, Grayson is free to make the arguments he believes his attorney should have made. (See People v. Hill (1986) 185 Cal.App.3d 831, 834 ["When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme"].)
C. Vagueness Challenge
The jury found that Grayson kidnapped the victim and that his movement of the victim substantially increased the risk inherent in the rape (§ 667.61, subd. (d)(2)). The jury also determined that Grayson kidnapped the victim within the meaning of sections 207 (kidnapping), 209 (aggravated kidnapping), and 209.5 (kidnapping during carjacking) (§ 667.61, subd. (e)(1)). Grayson contends that the aggravated kidnapping findings must be reversed on the ground that section 667.61 is void for vagueness.
Before delving into this constitutional claim, a bit of clarification is needed. Section 667.61 is not, as the parties contend, a kidnapping sentence enhancement. Rather, section 667.61 is part of the One Strike Law, which" 'sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes' when a defendant commits one of those crimes under specified circumstances." (People v. Acosta (2002) 29 Cal.4th 105, 118-119.) With this distinction in mind, we now turn to Grayson's vagueness challenge.
"The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of 'life, liberty, or property without due process of law,' as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7). Under both Constitutions, due process of law in this context requires two elements: a criminal statute must' "be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt." '" (Williams v. Garcetti (1993) 5 Cal.4th 561, 567; see Kolender v. Lawson (1983) 461 U.S. 352, 357 ["the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement"].)
Aggravated kidnapping under section 209, subdivision (b) is defined as kidnapping or carrying away an individual to commit robbery, rape, oral copulation, or other specified sex crime where "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 offense." (§ 209, subd. (b)(2).)
Similarly, the One Strike Law aggravated kidnapping circumstance of section 667.61, subdivision (d)(2) applies when a defendant has committed rape, oral copulation, or other specified sex crime with the additional circumstance that the "defendant kidnapped the victim . . . 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 movement required for the aggravated kidnapping circumstance must "not [be] merely incidental to the commission of the" underlying offense. (People v. Perkins (2016) 5 Cal.App.5th 454, 466.)
Grayson claims section 667.61 is unconstitutionally vague under Johnson v. United States (2015) 576 U.S. 591 (Johnson) because "there are too many unanswerable questions to ponder in determining whether 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." He acknowledges this contention was rejected in People v. Ledesma (2017) 14 Cal.App.5th 830, 839 (Ledesma) and in People v. McInnis (2021) 63 Cal.App.5th 853 (McInnis), but argues Ledesma and McInnis were wrongly decided.
In Johnson, the United States Supreme Court declared a portion of the federal Armed Career Criminal Act (ACCA) to be unconstitutionally vague. (Johnson, supra, 587 U.S. at p. 597.) The residual clause in question imposed increased penalties for the federal crime of felon in possession of a firearm if the defendant had three or more prior convictions for a violent felony and included in the definition of" 'violent felony'" one that" 'involves conduct that presents a serious potential risk of physical injury to another .'" (Johnson, supra, at p. 593, italics added.) Johnson found that the italicized language was too imprecise to give fair notice about what conduct fell within the purview of the statute. (Id. at pp. 594, 606.) What made this language unconstitutionally vague, Johnson reasoned, was that this assessment was to be made categorically-that is, by looking to "the kind of conduct that [the felony at issue] involves in 'the ordinary case,' and to judge whether that abstraction presents a serious potential risk of physical injury." (Id. at p. 596.) Because the categorical approach "tie[d] the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, [and] not to real-world facts or statutory elements," Johnson held, it left "grave uncertainty about how to estimate the risk posed by a crime." (Id. at p. 597.) Johnson was careful to telegraph that "the application of a qualitative standard . . . to real-world conduct" was not impermissibly vague (id. at pp. 603-604), and subsequent cases have reaffirmed that there are no "vagueness problem[s] with asking a jury to decide whether a defendant's' "real-world conduct'" created a substantial risk of physical violence." (United States v. Davis (2019) 139 S.Ct. 2319, 2327; see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1143-1144).
In Ledesma, the court rejected the claim that the offense of aggravated kidnapping under section 209, subdivision (b) and the One Strike Law aggravated kidnapping circumstance of section 667.61, subdivision (d)(2) were unconstitutionally vague under Johnson. (Ledesma, supra, 14 Cal.App.5th at p. 835.) The Ledesma court explained, "[u]nlike the . . . clause at issue in Johnson, California's asportation requirement compels juries and courts to apply a legal standard to real-world facts. As Johnson itself recognizes, this difference is crucial." (Ledesma, supra, 14 Cal.App.5th at p. 838.) The court in Ledesma reasoned that Johnson distinguished the imprecise clause from other federal and state criminal laws that use terms like "substantial risk," "grave risk," and "unreasonable risk," which are constitutional because they gauge the riskiness of conduct on a particular occasion. (Ledesma, at p. 838.) The Ledesma court found the Supreme Court in Johnson did" 'not doubt the constitutionality of [such] laws that call for the application of a qualitative standard such as "substantial risk" to real-world conduct.'" (Id.)
The Ledesma court reasoned, "Unlike the categorical analysis courts were required to engage in under the ACCA, the asportation requirements in sections 209 and 667.61 require no hypothetical case of the underlying crime that determines the statutes' applicability. Rather, the jury in this case (and in all aggravated kidnapping cases) assessed whether [the defendant's] movement of [the victim] was merely incidental to the rape and whether that movement substantially increased the risk of harm over and above the risk of harm inherent in rape. This is precisely the type of determination that Johnson held was beyond the void-for-vagueness problem presented by the residual clause." (Ledesma, supra, 14 Cal.App.5th at p. 838.) The court also observed that "appellate courts have routinely assessed the validity of aggravated kidnapping convictions in published decisions without suggestion that the section 209, subdivision (b)(2) asportation requirement is unworkable or too vague to be constitutional." (Id. at p. 836.)
The McInnis court, relying on Johnson and Ledesma, rejected a similar vagueness challenge to the crime of aggravated kidnapping (§ 209) and the aggravated kidnapping circumstance under the One Strike Law (§ 667.61, subd. (d)(2)). (McInnis, supra, 63 Cal.App.5th at p. 862.)
We agree with Ledesma and McInnis that "Johnson does not require us to find the crime and special circumstance of aggravated kidnapping unconstitutionally vague. The Johnson majority "d[id] not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct" (Johnson, supra, 576 U.S. at pp. 603-604), and that is what the aggravated kidnapping statutes involve, the application of a qualitative standard to real-world conduct." (McInnis, supra, 63 Cal.App.5th at p. 862.)
Grayson offers three reasons he believes Ledesma and McInnis were wrongly decided. First, he asserts the courts "ignored the reality of what section 667.61 requires. A jury cannot apply the provision at issue here by reference to real world facts. The jury must assess and compare the risk of harm involved in two different scenarios (1) what actually happened; and (2) what would have happened if the underlying rape had occurred without any movement. Only the first of those two scenarios is informed by real world facts; there are no real world facts that can be called upon to tell a jury how much risk would have been inherent in just the underlying rape, without movement-because that never happened." The McInnis court rejected a similar premise. "Johnson did not condemn the comparison of real world facts to hypothetical offenses. It found fault with asking courts to imagine how an idealized ordinary version of a crime would play out as the test for determining whether the crime qualified as a violent felony under the residual clause. (Johnson, supra, 576 U.S. at p. 597.) Aggravated kidnapping does not suffer from this fault. As our high court has explained, '[F]or aggravated kidnapping, the victim must be forced to move a substantial distance, the movement cannot be merely incidental to the target crime, and the movement must substantially increase the risk of harm to the victim. Application of these factors in any given case will necessarily depend on the particular facts and context of the case.' (People v. Dominguez (2006) 39 Cal.4th 1141, 1153, italics added and original italics deleted.)" (McInnis, supra, 63 Cal.App.5th at p. 863.)
Second, Grayson argues Ledesma and McInnis misread Johnson's recognition that valid statutes often use qualitative standards like "substantial risk" and ignore that the aggravated kidnapping provisions require "a jury to imagine what the crime would have looked like without any movement-'an imaginary condition other than the facts.'" We disagree. Ledesma and McInnis did not ignore the qualitative standard articulated in Johnson. Rather, they concluded the aggravated kidnapping provisions were not vague as they involved the application of a qualitative standard to real world conduct. The aggravated kidnapping provisions are not concerned with a hypothetical "ordinary case" of kidnapping, but instead require the trier of fact to assess whether a defendant's real world conduct (moving the victim) increased the victim's harm above and beyond the rape. Evaluation of this real world conduct takes into consideration the"' "scope and nature" of the movement. [Citation.] This includes the actual distance a defendant must move a victim in order to satisfy the first prong.' [Citations.] [¶] 'The second prong . . . refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as 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. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.'" (Ledesma, supra, 14 Cal.App.5th at p. 836.) As the Johnson court explained, its holding did not place "in constitutional doubt" the "dozens of federal and state criminal laws [which] use terms like 'substantial risk,' 'grave risk,' and 'unreasonable risk' ...." (Johnson, supra, 576 U.S. at p. 603.) This is so because those laws, unlike the residual clause at issue in Johnson, "require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion." (Ibid.) No abstraction is necessary. Johnson was clear to state that it did not "doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real world conduct ...." (Ibid.)
Third, Grayson suggests Ledesma and McInnis overlook the historical struggle to understand the aggravated kidnapping provision and consistently apply it. He focuses on a passage of Johnson which noted that courts had failed, despite repeated efforts, to establish "a principled and objective standard" under which to judge statutes against the residual clause. (Johnson, supra, 576 U.S. at p. 598.) Johnson concluded that "[n]ine years' experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise." (Id. at pp. 601-602.) Grayson infers from this language that a history of apparently contradictory opinions is a basis for concluding unconstitutional vagueness. Armed with this premise, he sets forth a lengthy history of California court opinions which reach apparently contradictory results when considering only the distances the victims have been moved, or whether the movement was between an enclosed and an open area. (See, e.g. People v. Daniels (1988) 202 Cal.App.3d 671 and cases cited therein.) Based on this history, Grayson argues that there has been a hopeless lack of uniformity in application of the asportation standard, establishing unconstitutional vagueness. Ledesma and McInnis, relying on Johnson, squarely address this issue and reject the notion that divergent outcomes suggested unconstitutional vagueness. (Ledesma, supra, 14 Cal.App.5th at p. 839; McInnis, supra, 63 Cal.App.5th at pp. 863-864.) In holding the residual clause vague, the Johnson court explained, "The most telling feature of the lower courts' decisions is not division about whether the residual clause covers this or that crime (even clear laws produce close cases); it is, rather, pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider." (Johnson, supra, 576 U.S. at p. 601.) As McInnis noted, "California appellate court decisions on aggravated kidnapping do not demonstrate a similar pervasive disagreement or difficulty regarding the nature of the inquiry." (McInnis, supra, at p. 863.)
In sum, the two-element test for asportation sufficient to establish aggravated kidnapping is clear; the factors which are considered with respect to each element are well-established. Those factors are applied to the alleged crimes actually before the jury. Disputes in application from case to case do not render the statute unconstitutionally vague when the inquiry itself is clear.
DISPOSITION
The matter is remanded for resentencing consistent with this opinion. In all other respects, the judgment of conviction is affirmed.
WE CONCUR: STREETER, Acting P. J. BROWN, J.