Opinion
C083678
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN HICKMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F03015)
A jury convicted defendant Kevin Hickman of kidnapping for the purpose of rape, kidnapping of a child under 14, forcible rape, forcible oral copulation, and criminal threats, and found true kidnapping enhancement allegations. The trial court sentenced him to an indeterminate term of 100 years to life in prison, plus a determinate term of 11 years eight months.
Defendant now contends (1) there is insufficient evidence that he raped the victim a third time, (2) there is insufficient evidence of kidnapping to support the kidnapping for the purpose of rape conviction and the kidnapping enhancements, and (3) the trial court erred in imposing consecutive terms for the forcible rape conviction (count 5) and the forcible oral copulation conviction (count 6).
Finding no merit in defendant's contentions, we will affirm the judgment.
BACKGROUND
In May 2015, an older sister (born April 1999) and a younger sister (born December 2001) lived with their mother. On May 16, 2015, defendant was tasked with taking the sisters to a birthday party at a skating rink. Defendant knew their mother, and the sisters had met him the day before. But after driving to various locations, a man named Andre dropped defendant and the sisters off at a house unknown to the sisters. A man named Delaney was at the house.
The sisters were scared and wanted to run away, but they did not know where they were. Their phones were not working, so the older sister asked defendant if she could use his phone to call their mother. Defendant told them his phone was also not working.
Defendant and Delaney took the sisters to a bedroom in the back of the house. Defendant gave the younger sister a computer and told her to look for clothes and shoes. The younger sister gave the computer to the older sister, who contacted her mother on Facebook. The mother asked if they were having fun. When the older sister replied they were not, her mother instructed her to tell defendant to take them home. The older sister told defendant to take them home, but defendant did not comply. Defendant and Delaney eventually went outside through a door leading to the backyard. The sisters tried to leave the room through the door to the rest of the house, but it was locked.
Defendant and Delaney returned after about 20 minutes. Defendant asked the older sister to go outside and help him look for something. The older sister agreed and asked the younger sister to accompany her, but defendant did not allow the younger sister to come with them.
In the backyard, defendant pushed the older sister into a shed that was about 10 steps from the house. Defendant also entered the shed and tied the door shut with string. The older sister and defendant sat on a couch in the shed, and the older sister said she wanted to be with the younger sister. Defendant held the blade of an open pocketknife to her neck, and using a mean voice, told her she was going to give him what he wanted or he would kill the sisters. The older sister started crying and defendant told her to "[s]hut the fuck up and be quiet." He asked her age and she said she was 16.
Defendant pushed the older sister onto her back and pulled down her pants. As she screamed for him to stop, defendant covered her mouth with his hand and raped her. He then directed her to put on her clothes. When the older sister tried to leave the shed, defendant grabbed her by the hand and pulled her back down. He told her she could not tell anyone or he would kill her family. He made her look him in the eye and say okay.
They returned to the house and the older sister went back to the bedroom. The younger sister saw that she was scared and thought she had sustained physical harm. The older sister told the younger sister defendant raped her.
About 20 minutes later, defendant told the older sister to come outside with him. When the younger sister said she wanted to go as well, defendant told her to "[s]top acting like a fucking baby." The younger sister stayed in the room with Delaney, who was falling asleep. She was very scared.
Upon leaving the house, defendant grabbed the older sister by her waist and pulled her into the shed again. He pushed her onto the couch, pulled down her pants, and raped her a second time. When she said she did not want to do this, defendant told her he did not care. When he finished, defendant told her to put on her clothes, which she did, and he wrapped the two of them in a blanket. He told her he loved her and she could not be with anyone else. Defendant said he would bring her a cell phone the next day, and he would hurt her if she did not answer when he called. If she talked to another guy, defendant would shoot the guy, and if she told her family or her family told the police, defendant would shoot her family.
The older sister eventually returned to the bedroom, looking even more scared than the first time she returned. The sisters went to sleep next to each other, and Delaney also slept in the room.
When the sisters woke up, they asked Delaney if they could go to the bathroom. Defendant took the older sister to the bathroom and waited outside the bathroom door. After she finished, defendant took the older sister back to the bedroom, walking behind her with his arm around her. He directed Delaney to take the younger sister to the bathroom while he took the older sister outside and again forced her into the shed.
Defendant put the older sister on her stomach and pulled down her pants. He inserted his penis into her vagina from behind and raped her a third time. Defendant then orally copulated her. The older sister tried to kick defendant away, but he put his fingernails into her leg and threatened to break her leg if she kept resisting.
They went back into the house as the sun was rising. The sisters once again slept next to each other, but thirty minutes later, defendant woke them up and told them their ride was coming.
Defendant and Delaney had a violent verbal argument as the sisters sat together on the living room couch. It spilled outside and involved other people. Eventually police officers arrived at the front door. The older sister told the police she had been raped, and the police arrested defendant.
The results of a sexual assault examination of the older sister were consistent with forced sexual penetration. Defendant's DNA was found on vaginal and cervical swabs, as well as on her underwear.
Testifying on his own behalf, defendant claimed he started communicating with the mother on a dating website, first meeting the older sister when he went to the mother's house. He said he later received the mother's permission to take the older sister out. Andre asked defendant if there was any place he could drop them off so he could run an errand and then pick them back up after he was done; defendant suggested a house and Andre took them there. According to defendant, the sisters did not object or ask to go home. When Andre did not return to the home as promised, defendant and the sisters went inside with Delaney. Defendant claimed he did not know the older sister was a minor, and went to the shed to smoke methamphetamine with her. He said they started to kiss and eventually engaged in consensual intercourse.
The jury convicted defendant of kidnapping for the purpose of rape (Pen. Code, § 209, subd. (b)(1) -- count 1), kidnapping of a child under 14 (§ 208, subd. (b) -- count 2), forcible rape (§ 261, subd. (a)(2) -- counts 3, 4, & 5), forcible oral copulation (§ 288a, subd. (c)(2) -- count 6), and criminal threats (§ 422 -- count 7), and found true kidnapping enhancement allegations (§ 667.61, subds. (d)(2), (e)(1)). The trial court sentenced defendant to an indeterminate term of 100 years to life in prison, plus a determinate term of 11 years eight months.
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
Defendant contends there is insufficient evidence that he raped the victim a third time.
During her direct examination, the older sister described, among other things, the third time in the shed. She testified defendant orally copulated her, but when asked if defendant also raped her, she replied: "Not that I remember." However, during cross-examination, the following exchange occurred regarding the third time in the shed:
"Q. What happened once he got you to the shed?
"A. He did what he did the other two times.
"Q. Did he do anything different this third time than he did the first two times?
"A. Yes.
"Q. What did he do that was different?
"A. Hmm, he didn't just use his penis. He used his tongue."
Based on our review of the record, it appears the older sister at first testified she did not remember a third rape, but then testified on cross-examination that defendant did to her what he had done to her the prior two times in the shed. She had previously testified that he raped her the prior two times in the shed. Moreover, on cross-examination she testified that during the third time in the shed, he did even more: he did not "just" use his penis, he used his tongue.
In addition to that testimony, Detective Jenny Wirtz of the Sacramento Police Department testified that in a police interview hours after the older sister's sexual assault examination, the older sister told the detective defendant raped and orally copulated her the third time she was in the shed.
Defendant claims the older sister's trial testimony failed to establish a third rape, and the only evidence of the third rape came from the detective's testimony. However, he misquotes the older sister's testimony in his appellant's opening brief. He claims the older sister testified, " 'He didn't use his penis, he used his tongue.' " But in fact, she testified, "Hmm, he didn't just use his penis. He used his tongue." (Emphasis added.) Leaving out the word "just" in that sentence is a significant omission.
In determining the sufficiency of the evidence, the relevant question is whether, " 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.) We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' [Citation.]" (People v. Casares (2016) 62 Cal.4th 808, 823-824.) Thus, reversal is not warranted unless there is no hypothesis on which there exists substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Based on our review of the record, we conclude there is substantial evidence to support the third rape conviction.
II
Defendant next claims there is insufficient evidence of kidnapping to support the kidnapping for the purpose of rape conviction and the kidnapping enhancements.
Aggravated kidnapping occurs when a person kidnaps or carries away any individual to commit rape or another enumerated crime. (§ 209, subd. (b)(1).) The kidnapping is aggravated only "if 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).) Section 667.61 incorporates the standard for aggravated kidnapping by requiring 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 . . . ." (§ 667.61, subd. (d)(2); see People v. Rayford (1994) 9 Cal.4th 1, 11-12, 22.)
The asportation element "involves two prongs. First, the defendant must move the victim and this asportation must not be 'merely incidental to the [rape].' [Citations.] Second, the movement must increase 'the risk of harm to the victim over and above that necessarily present in the [rape].' [Citation.] The two are not mutually exclusive, they are interrelated. [Citation.] [¶] For the first prong, the jury considers the distance the defendant moved the victim and the 'scope and nature' of the movement. [Citations.] For the second, it considers whether the movement gave the defendant 'the decreased likelihood of detection' and an 'enhanced opportunity to commit additional crimes.' [Citation.]" (People v. Shadden (2001) 93 Cal.App.4th 164, 168 (Shadden).)
Defendant argues that because the older sister "voluntarily" went into the backyard the first time, and defendant only pushed her a few feet into the shed that time, her movement was incidental to the first rape. He also argues the distance from the bedroom to the shed was not substantial.
"In determining 'whether the movement is merely incidental to the [underlying] crime . . . the jury considers the 'scope and nature' of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.' [Citations.]" (People v. Martinez (1999) 20 Cal.4th 225, 233.)
We begin by disagreeing with defendant's characterization of the older sister's movement toward the shed as "voluntary." The record reflects that the sisters were held against their will from the moment they arrived at the house. Just because defendant was able to lure the older sister into the backyard the first time did not make her movement voluntary. Moreover, photographs of the backyard showing the area between the house to the shed were admitted into evidence and are part of the appellate record. While there is no evidence of the measured distance the older sister was moved, our examination of the record convinces us the distance was not trivial or minor. We also conclude the movement was not incidental to the first rape. (See Shadden, supra, 93 Cal.App.4th at p. 169; People v. Salazar (1995) 33 Cal.App.4th 341, 347-348 & fn. 8; see People v. Robertson (2012) 208 Cal.App.4th 965, 984, 986.) In Shadden, the court found that moving the victim nine feet from the front counter to a backroom, which was hidden from open view, was sufficient to support a conviction for kidnapping to commit rape under section 209, subdivision (b). (Shadden, at p. 167.) Defendant's reliance on People v. Hoard (2002) 103 Cal.App.4th 599 and its criticism of Salazar and Shadden is misplaced because Hoard is inapposite. Hoard involved a conviction for aggravated kidnapping in which defendant robbed a store and moved the victims within the store's interior. (Hoard, at pp. 601-602; cf. People v. Corcoran (2006) 143 Cal.App.4th 272, 279-280 [distinguishing Hoard].)
Here, moving the older sister to the back shed enhanced defendant's opportunity to commit crimes and substantially increased the older sister's danger. Defendant lured, and then forced, the older sister from an area where Delaney and the younger sister could see them. He took the older sister to a place where he could tie the door closed and sexually assault her in privacy. On this record, there is no question the older sister suffered increased harm because she was lured and forced into the shed. (People v. Tuan Van Nguyen (2000) 22 Cal.4th 872, 885-886 [the increased risk of harm may be either physical or psychological].)
Substantial evidence supports the kidnapping for the purpose of rape conviction and the kidnapping enhancements.
III
In addition, defendant argues the trial court erred in imposing consecutive terms for the forcible rape conviction (count 5) and the forcible oral copulation conviction (count 6).
The trial court stayed sentence on the count 1 conviction (kidnapping for the purpose of rape) pursuant to section 654, designated the count 2 conviction (kidnapping of a child under 14) as the principal term, designated the count 3 through 7 convictions as subordinate terms, and imposed consecutive sentences on the subordinate counts. Among other things, the trial court referenced rule 4.425 of the California Rules of Court, stating that the crimes involved separate acts of violence or threats of violence. (Rule 4.425(a)(2).) The trial court also referenced rule 4.426, stating that counts 3 through 6 were committed against the same victim at separate times where the defendant had a reasonable time to reflect on his actions yet decided to continue to assault the victim.
Undesignated rule references are to the California Rules of Court. --------
Defendant claims the count 5 rape and the count 6 forcible oral copulation, which both occurred during the third time in the shed, did not arise from separate occasions, and thus it was error to impose consecutive terms. He further asserts that the trial court did not understand it had discretion to impose concurrent terms for those crimes. We disagree. Based on our review of the record, including the trial court's comments at sentencing, we are confident the trial court understood its sentencing discretion. And although defendant challenges the trial court's finding that the crimes occurred on separate occasions, he does not assert that the third rape and the oral copulation did not involve separate acts of violence. Because the trial court may rely on the presence of only one criterion favoring consecutive sentencing, defendant's argument that one of the two criteria was not present does not establish an abuse of discretion. In other words, the trial court did not abuse its discretion in sentencing consecutively because the crimes involved separate acts of violence, a criterion defendant does not challenge. (Rule 4.425(a)(2).)
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
RENNER, J.