Opinion
F076378
09-09-2019
THE PEOPLE, Plaintiff and Respondent, v. DARRYL DIJON MOORE, Defendant and Appellant.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Kathleen A. McKenna, Eric L. Christoffersen and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF165991A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Kathleen A. McKenna, Eric L. Christoffersen and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and DeSantos, J.
-ooOoo-
INTRODUCTION
Appellant Darryl Dijon Moore was convicted of multiple offenses, including rape, oral copulation by force, assault by means likely to produce great bodily injury, and battery with serious bodily injury. Penal Code section 667.61, subdivisions (d)(2) and (e)(1) allegations also were found true as to the rape and oral copulation by force counts. The trial court imposed consecutive 25-year-to-life terms for the rape and oral copulation by force offenses pursuant to section 667.61, subdivision (d)(2).
References to code sections are to the Penal Code.
Moore contends the evidence is insufficient to sustain the section 667.61, subdivision (d)(2) aggravated kidnapping true finding. In supplemental briefing, Moore contends that equal protection requires he be afforded a youth offender parole hearing under section 3051, despite section 3051, subdivision (h) excluding offenders who have been sentenced under section 667.61.
We disagree with Moore's contentions and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Then 18-year-old Jane Doe was taking classes at CLC Tech during the summer of 2016. She met Moore at CLC Tech, but Moore only attended classes for two or three weeks. After Moore stopped attending classes, Doe saw Moore at Mill Creek Park.
Moore came over to Doe and asked if she wanted to smoke marijuana later and Doe said yes. Around 12:30 a.m., on July 24, 2016, Moore sent Doe a text asking if he could come over. She replied yes and gave him her address. Moore arrived about 30 minutes later.
Moore and Doe were talking in her front yard, and Moore asked her if she found him attractive and if she wanted to be with him. Doe told him she "didn't want to be with him." Moore asked if Doe wanted "blades" and she replied yes. The two climbed into Moore's car and were going to "hot box," meaning they were going to close all the windows while they smoked marijuana.
Moore had stated he brought marijuana with him, but after they climbed into the car, Moore stated he could not find the marijuana in the car. Moore said he would drive to his house and get the marijuana; Doe told him she would wait at her house. Moore told her it would be faster if she came with him to his house to get the marijuana, so she agreed.
Doe knew Moore lived in the southwest area of town, but he did not head southwest when he drove away; Moore headed toward Oildale. Doe asked Moore where he was taking her because she knew he did not live in the direction he was driving. Moore told her not to worry. The car was at the entrance of Hart Park and Doe tried to open the door and get out; the door would not open. The child lock was engaged. Doe tried a second time to open the door and failing to do so, she tried to get out by hitting the window.
Moore told Doe to calm down. Moore continued driving past the park, onto a dirt road, and stopped the car. He told Doe to take off her pants; she started crying. Moore punched her in the face and told her to "shut up, take off your pants." Doe complied.
After Doe's pants were removed, Moore took out his penis, told her "you better not bite it," and had Doe orally copulate him. He threatened to hit her again if she disobeyed. After less than a minute, Moore climbed on top of Doe and proceeded to insert his penis in her vagina. He also placed his hands on her throat and was strangling her; Doe had trouble breathing.
Moore claimed he had a gun, but Doe never saw one. He threatened to kill her if she did not do what he told her.
When Moore climbed off her, he told Doe they were leaving. Doe asked him to take her home; she promised not to tell anyone what had happened if he would take her home. Instead Moore drove to another park. Doe was crying.
At the second park, Moore told Doe she would be living with him, would be his "hoe," and would be having sex with him and friends. Doe continued crying but tried again to escape by hitting the window with her foot while the car was stopped at the second park. Moore became angry and grabbed Doe by the neck and began shaking her head. Doe passed out.
After Doe regained consciousness, Moore stated he was taking her to her "new place." When Doe saw Moore was heading toward a freeway on-ramp, she felt she had to get out of the car. Doe asked to open the window for some air, and when Moore agreed, she lowered the window halfway. She managed to climb out of the moving vehicle through the window while Moore tried to grab her legs to keep her from fleeing.
When Doe was out of the car, she looked at the license plate and to see what type of car it was and then ran toward a gas station nearby. People at the gas station assisted Doe and called for an ambulance.
Moore was charged in count 1 with forcible rape (§ 261, subd. (a)(2)); in count 2 with forcible oral copulation (§ 288a, subd. (c)(2)(A)); in count 3 with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); and in count 4 with battery with serious bodily injury (§ 243, subd. (d)). Allegations pursuant to section 667.61, subdivisions (d)(2) and (e)(1) were alleged as to counts 1 and 2.
Moore claimed at trial that Doe willingly orally copulated him in the car while parked outside her home. He also testified that Doe voluntarily accompanied him to the park, where they smoked marijuana and engaged in a voluntary sexual act.
A jury convicted Moore of all charges and found the enhancements true. At the September 28, 2017 sentencing, the trial court imposed a term of 25 years to life for the count 1 offense and section 667.61, subdivision (d)(2) true finding and a consecutive term of 25 years to life was imposed for the count 2 offense and section 667.61, subdivision (d)(2) true finding. For the count 3 offense, a violation of section 245, subdivision (a)(4), the term was stayed pursuant to section 654. For the count 4 offense, a violation of section 243, subdivision (d), a term of four years was imposed, to be served consecutively to the terms imposed in counts 1 and 2.
Moore filed a timely notice of appeal on September 29, 2017. Subsequently, Moore filed a request to submit a supplemental brief. By order filed July 11, 2019, this court granted the motion.
DISCUSSION
Moore's opening brief contends the evidence is insufficient to sustain the section 667.61, subdivision (d)(2) aggravated kidnapping true finding. In supplemental briefing, Moore contends that equal protection requires he be afforded a youth offender parole hearing under section 3051, despite section 3051, subdivision (h) excluding offenders who have been sentenced under section 667.61.
I. Sufficiency of the Evidence
Section 667.61 is known as the "One-Strike" law. (People v. Mancebo (2002) 27 Cal.4th 735, 738.) Section 667.61, subdivision (a) provides that when an allegation pursuant to section 667.61, subdivision (d)(2) is found true, the punishment for the offense shall be 25 years to life.
Moore's contention on appeal is that the evidence is insufficient to support the section 667.61, subdivision (d)(2) true findings. Specifically, he argues that the kidnapping and movement of Doe did not substantially increase the risk of harm to her. Moore's contention is without merit.
Section 667.61
Section 667.61 is an alternative sentencing scheme that applies to certain felony sex offenses. (People v. Anderson (2009) 47 Cal.4th 92, 102.) Once a defendant has been convicted of a specified sex offense and the section 667.61, subdivision (d)(2) allegation has been found true, a sentence of 25 years to life in prison is mandated. (§ 667.61, subd. (a).) Section 667.61, subdivision (d)(2) provides that when the "defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense."
Section 667.61, subdivision (d)(2) applies when the defendant: (1) is convicted of a specified sexual offense; (2) kidnapped the victim; and (3) the movement of the victim substantially increased the risk of harm to the victim. (People v. Kelly (2016) 245 Cal.App.4th 1119, 1129 (Kelly).) Section 667.61, subdivision (d)(2) does not require specific intent on the part of the perpetrator. (People v. Jones (1997) 58 Cal.App.4th 693, 717.)
Standard of Review
On a challenge to the sufficiency of the evidence, our role is limited. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value ...." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume the existence of every fact the trier of fact could reasonably deduce from the evidence that supports the judgment. (People v. Rayford (1994) 9 Cal.4th 1, 23 (Rayford).) We do not reweigh the evidence or revisit credibility issues. (People v. Icke (2017) 9 Cal.App.5th 138, 147.) We apply the same standard of review on a challenge to the sufficiency of the evidence of an enhancement as to the sufficiency of the evidence of a conviction. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057-1058.)
Evidence of Substantially Increased Risk of Harm
Section 667.61, subdivision (d)(2) focuses on the increased risk of substantial harm to a victim by forced movement. (People v. Perkins (2016) 5 Cal.App.5th 454, 468.) When forced movement decreases the likelihood of detection, increases danger inherent in a victim's foreseeable attempts to escape, or enhances opportunity to commit additional crimes, section 667.61, subdivision (d)(2) is met. (Rayford, supra, 9 Cal.4th at p. 13.)
Evidence of a substantial increase in the risk of harm is satisfied by moving the victim a substantial distance; or moving the victim to an isolated area. (Kelly, supra, 245 Cal.App.4th at p. 1130.) The substantial increase in the risk of harm to the victim is based on foreseeable attempts by the victim to escape and the decrease in the likelihood of detection. (Ibid.) When a victim is facing an option of attempting to flee a moving vehicle, there is a substantial risk of increased harm. (Ibid.)
Initially, we note that to the extent Moore's contention on appeal relies upon his version of the facts, the jury's verdicts and true findings indicate they necessarily rejected Moore's version of events. We do not reweigh the evidence or revisit credibility issues in assessing the sufficiency of the evidence. (People v. Icke, supra, 9 Cal.App.5th at p. 147.)
We acknowledge that Doe initially climbed into Moore's car voluntarily, although her actions were based on Moore's false representation that they were going to drive to his home to obtain marijuana. Doe quickly became suspicious of Moore's actions when he drove off in the opposite direction of his home and Doe tried to get out of the car. She was prevented from doing so by child locks. Doe consented to accompanying Moore to his home to retrieve marijuana; however, she did not consent to being driven in the opposite direction to a dirt road past Hart Park. Moore clearly coerced Doe into his car under false pretenses and any initial voluntary cooperation on Doe's part ended when Moore headed in the opposite direction and compelled her to continue to accompany him. (See People v. Alvarez (2016) 246 Cal.App.4th 989, 1002.)
In Kelly, the victim was moved several miles and this was found to have substantially increased the risk of harm to the victim such that the movement satisfied section 667.61, subdivision (d)(2). (Kelly, supra, 245 Cal.App.4th at p. 1130.) Here, Doe testified she lived near Jefferson Park in Bakersfield and Moore initially drove from her home to Hart Park. Thus, a reasonable inference can be drawn that Moore moved Doe a significant distance against her will and substantially increased the risk of harm to Doe.
Additionally, Moore moved Doe from a residential area familiar to her to an isolated area, which also substantially increased the risk of harm to Doe. (Kelly, supra, 245 Cal.App.4th at p. 1130.) Moore arrived at Doe's home around 1:00 a.m. in the morning. Moore argues that transporting Doe to an isolated area did not substantially increase the risk of harm to her because everywhere was "deserted" at that hour. This contention is specious. Even if the residents of Doe's neighborhood were asleep, people were likely to hear Doe cry out for help and render assistance, and Doe would have been able to easily rouse someone to assist her, perhaps by honking the car's horn or more easily facilitating an escape from the car and knocking on a door. She might also have been able to readily escape to the safety of her own home. Taking Doe to an isolated dirt road past Hart Park substantially increased the risk of harm to Doe; increased Moore's opportunity to commit additional crimes; and decreased Moore's likelihood of detection. (Rayford, supra, 9 Cal.4th at p. 13.) It is likely that Moore transported Doe to an isolated area, miles away from her home, for precisely these reasons.
Moore also argues that Doe's attempt to escape from a moving vehicle was so "extreme it should not be deemed foreseeable." On the contrary, attempts to escape from a moving vehicle are to be expected when the victim has no other option. (Kelly, supra, 245 Cal.App.4th at p. 1130.)
In sum, sufficient evidence supports the section 667.61, subdivision (d)(2) true finding.
II. Section 3051
Moore, who was an adult when he committed the offenses but under the age of 25 years (§ 3051, subd. (a)(1)), contends equal protection requires that he be afforded a youth offender parole hearing, despite the fact section 3051, subdivision (h) specifically excepts from such hearings persons who are sentenced pursuant to section 667.61.
Statutory Provisions
The Legislature passed Senate Bill No. 260, which became effective January 1, 2014, and enacted sections 3051, 3046, subdivision (c) and 4801, subdivision (c). The express purpose of the legislation was to provide a parole eligibility mechanism for juvenile offenders. (People v. Franklin (2016) 63 Cal.4th 261, 277 (Franklin); Stats. 2013, ch. 312, § 1; see Historical and Statutory Notes, 51B pt. 2, West's Ann. Pen. Code (2019 supp.) foll. § 3041, p. 106.)
"At the heart of Senate Bill No. 260 was the addition of section 3051, which requires the Board [of Parole Hearings] to conduct a 'youth offender parole hearing' during the 15th, 20th, or 25th year of a juvenile offender's incarceration. (§ 3051, subd. (b).) The date of the hearing depends on the offender's ' "[c]ontrolling offense," ' which is defined as 'the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.' (Id., subd. (a)(2)(B).) A juvenile offender whose controlling offense carries a term of 25 years to life or greater is 'eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions.' (Id., subd. (b)(3).) The statute excludes several categories of juvenile offenders from eligibility for a youth offender parole hearing: those who are sentenced under the 'Three Strikes' law (§§ 667, subds. (b)-(i), 1170.12) or Jessica's Law (§ 667.61), those who are sentenced to life without parole, and those who commit another crime 'subsequent to attaining 23 years of age ... for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison' (§ 3051, subd. (h); see Stats. 2015, ch. 471, § 1 [changing the age after which malice aforethought crimes are disqualifying from 18 to 23])." (Franklin, supra, 63 Cal.4th at pp. 277-278.)
"Section 3051 thus reflects the Legislature's judgment that 25 years is the maximum amount of time that a juvenile offender may serve before becoming eligible for parole. Apart from the categories of offenders expressly excluded by the statute, section 3051 provides all juvenile offenders with a parole hearing during or before their 25th year of incarceration. The statute establishes what is, in the Legislature's view, the appropriate time to determine whether a juvenile offender has 'rehabilitated and gained maturity' (Stats. 2013, ch. 312, § 1) so that he or she may have 'a meaningful opportunity to obtain release' (§ 3051, subd. (e))." (Franklin, supra, 63 Cal.4th at p. 278.)
As the Supreme Court noted in Franklin, certain defendants are excluded from section 3051 youth offender parole hearings, including defendants sentenced pursuant to section 667.61. Section 3051, subdivision (h) specifically excludes offenders, such as Moore, that were sentenced under section 667.61, from eligibility for a youth offender parole hearing. Subdivision (h) of section 3051 provides: "This section shall not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or Section 667.61, or to cases in which an individual is sentenced to life in prison without the possibility of parole .... This section shall not apply to an individual to whom this section would otherwise apply, but who, subsequent to attaining 26 years of age, commits an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison."
Equal Protection Claim Forfeited
Regardless, Moore's claim of a violation of equal protection has been forfeited. "[S]ection 1259 provides: 'Upon an appeal taken by the defendant, the appellate court may ... review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant.' (Italics added.) Thus, as a general rule, 'the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.' [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights." (In re Seaton (2004) 34 Cal.4th 193, 197-198.)
The forfeiture doctrine specifically "applies in the context of sentencing ...." (In re Sheena K. (2007) 40 Cal.4th 875, 881.) For instance, "[a] defendant's failure to contemporaneously object that his sentence constitutes cruel and unusual punishment forfeits the claim on appellate review." (People v. Speight (2014) 227 Cal.App.4th 1229, 1247.) Case law also provides many examples of appellate courts finding equal protection claims to be untimely and thus forfeited. (See, e.g., People v. Rogers (2006) 39 Cal.4th 826, 854; People v. Burgener (2003) 29 Cal.4th 833, 860, fn. 3; People v. Hall (2002) 101 Cal.App.4th 1009, 1024.) Accordingly, we deem Moore's claim to be forfeited and decline to exercise discretion to consider it.
No Equal Protection Violation
In People v. Contreras (2018) 4 Cal.5th 349, the Supreme Court stated, "[a] youth offender parole hearing is not available to juveniles convicted under the One Strike law," citing section 3051, subdivision (h). Contreras does not directly address an equal protection challenge.
In People v. Edwards (2019) 34 Cal.App.5th 183, the First District addressed equal protection and the application of section 3051 to One Strike defendants. The Edwards court holds that equal protection requires One Strike offenders be afforded a youth offender parole hearing. (Id. at p. 197.) The Edwards court concluded there was "no rational relationship between the disparity of treatment and a legitimate government purpose." (Ibid.) We believe Edwards was wrongly decided.
Generally, if the classification does not involve an established suspect class, legislation is presumed to be valid under the equal protection clause if the statutory classification is rationally related to a legitimate state interest. (People v. Wilkinson (2004) 33 Cal.4th 821, 836.) The One Strike law, under which Moore was sentenced, is intended to ensure a lengthy sentence upon a first conviction because the group of offenders it targets "preys on women and children, cannot be cured of its aberrant impulses, and must be separated from society to prevent reoffense." (People v. Wutzke (2002) 28 Cal.4th 923, 929-930.)
Also, in general, offenders who commit different crimes are not similarly situated. (People v. Macias (1982) 137 Cal.App.3d 465, 472-473.) A criminal defendant has no fundamental interest in a specific term of imprisonment and the Legislature has traditionally been accorded broad discretion in defining crimes and specifying punishment. (People v. Wilkinson, supra, 33 Cal.4th at p. 838.)
In People v. Bell (2016) 3 Cal.App.5th 865, 876-880 (Bell), issued by the Second District, the contention that equal protection required a youth offender parole hearing for a One Strike defendant was addressed and rejected. The Bell opinion held that section 3051 does not violate equal protection principles because "the threat of recidivism gives rise to a rational basis for the Legislature's decision to exclude one strike offenders ...." (Id. at p. 879.) The defendant in the Bell case was a juvenile sex offender sentenced under section 667.61.
Review granted on other grounds January 11, 2017, S238339, vacated and transferred on June 13, 2018.
The Legislature, in enacting section 3051 clearly made a rational determination that the public should be protected from violent sex offenders, and that violent sex offenders be incarcerated for longer periods of time. Courts do not have "free license to judge the wisdom or desirability of statutes or to act as a super-Legislature." (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 880, fn. 5.)
Were we inclined to consider Moore's claim on the merits, we would follow Bell and Contreras and reject it accordingly.
DISPOSITION
The judgment is affirmed.