Filed 10/29/13 P. v. Caratachea CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A134858
v.
JACK JOSE CARATACHEA, (Sonoma County
Super. Ct. No. SCR603019)
Defendant and Appellant.
Pursuant to the One Strike law, Penal Code section 667.61,1 defendant Jack Jose
Caratachea was sentenced to 25 years to life because the jury found that, in committing
the unlawful sexual penetration of Jane Doe, defendant kidnapped Doe and the
movement of her substantially increased the risk of harm to her over and above that level
of risk necessarily inherent in that sexual offense. Defendant contends there was
insufficient evidence to support the jury‟s finding. He asks that the judgment be
reversed, the One Strike law allegations be stricken, and the matter be remanded for
resentencing. We conclude there was substantial evidence to support the jury‟s finding
and affirm the judgment in its entirety.
BACKGROUND
By information filed in August 2011, the Sonoma County District Attorney
charged defendant with committing an act of sexual penetration against the will of Doe
by means of force, violence, duress, menace, and fear of immediate and unlawful bodily
injury on Doe and another person (§ 289, subd. (a)(1)). This count was accompanied by
1
All statutory references herein are to the Penal Code unless otherwise indicated.
1
the alternative allegations that defendant had kidnapped Doe and the movement of her
had substantially increased the risk of harm to her over and above that level of risk
necessarily inherent in the unlawful sexual penetration (§ 667.61, subd. (d)(2)), or had
simply kidnapped Jane Doe (§ 667.61, subd. (e)(1)). It was also alleged that defendant
had inflicted great bodily injury on Jane Doe.
Defendant was also charged with one count each of felony child abuse (§ 273,
subd. (a)) and aggravated assault by force likely to produce great bodily injury (§ 245,
subd. (a)(1)). The aggravated assault charge was accompanied by a great bodily injury
allegation as well.
It was further alleged that, as a result of the accompanying great bodily injury
allegations, the unlawful sexual penetration and aggravated assault charges were serious
felonies within the meaning of section 1192.7, subdivision (c)(8), and the aggravated
assault charge was a violent felony within the meaning of section 667.5, subdivision
(c)(8).
Defendant pled not guilty to all charges. A jury trial commenced in November
2011. We focus on the evidence relevant to the issue raised by defendant in his appeal:
whether there was substantial evidence to support the jury‟s finding that defendant
kidnapped Doe and the movement of her substantially increased the risk of harm to her
over and above the level of risk necessarily inherent in the underlying offense.
Testimony of Jane Doe
Jane Doe testified that on June 3, 2011, she was eight and a half months pregnant.
Her belly was “pretty big” and it was difficult for her to move around. About 6:15 p.m.
that day, when it was still daylight, she was out for a walk on Hearn Avenue in Santa
Rosa, California, pushing a cart that contained her two-year-old son. She was wearing
thin maternity stretch pants.
Doe said she was walking on the sidewalk, just past some railroad tracks in an area
that was lined by a fence, heading to a store to buy ice cream. She felt someone walking
behind her and yielded, moving to her right. A man, whose face Doe saw during the
attack and who she identified at trial as defendant, grabbed her from behind and wrapped
2
his arms around her waist, below her pregnant belly. He lifted her up off the ground,
carried her backwards a distance of two or three meters, and threw her down
“aggressively” to the right, “against some bushes” in a dark area located on a downward
slope of ground where there were rocks and grass, just to the right of the fencing that
lined the sidewalk. Asked, “What did you see?” when he lifted her off her feet, Doe said,
“That he wanted to take me towards the bushes.” She estimated they went backwards for
about five seconds, and said she did not remember exactly how many steps back
defendant took, although she estimated it was about two steps or half steps at one point in
her testimony.
Doe said she landed on her knees about a meter or a meter and a half from the
sidewalk and put her hands in front of her to protect her belly. She was approximately
three meters from her son, whose face she could see from her vantage point and who was
looking at her.
According to Doe, defendant hit her on her head and then said in Spanish, using
vulgar, violent words, “I just want you to suck it” or “I want you to give me a blow job.”
He repeated it again during his attack in an anxious voice. Doe screamed and asked for
help, told him she was pregnant, and asked him not to hurt her or her baby. Defendant
continued to hit her on the head while putting force on her arms and, when she turned her
head to look for her son, defendant struck her face. He told her to shut up, grabbed her
hair, and hit her on the back and top of her head. He hit her 10 to 15 times, and hit her
one time each on her nose, mouth, and eye. At one point, Doe told defendant she would
do whatever he wanted if he calmed down, hoping someone would come and take him
away from her, and she repeatedly told him not to hurt her. Defendant told her to shut up
and struck her harder whenever she screamed. Doe felt pain and became dizzy as he hit
her.
According to Doe, defendant grabbed her shoulder and tried to turn her around;
her shoe was caught in the fencing momentarily, resulting in her leg being scratched.
Defendant flipped Doe over onto her back. She put her knees up, covered her stomach,
and kicked at him. He “jammed his fingers” into her thin pants, penetrating her vagina
3
and causing her pain. She tried to push him away with her knees, kicked at him, held her
stomach, and covered her face to protect herself. He pulled on Doe‟s pants, but they
were too tight to remove, and tried to lie on top of her, but she prevented him from doing
so with her knees.
Doe said some people intervened after about 5 to 10 minutes, at which point
defendant stopped pulling on her pants, got up, and ran away. The people helped Doe to
her feet. An ambulance arrived a short time later and Doe was taken to the hospital.
As a result of defendant‟s assault, Doe suffered various injuries, including pain in
her head and waist, injuries to her shoulder, leg, knee, and thumb, a bloody lip, a bruised
nose, and an injured eye, and pain around her pubic bone. After the attack, she had
contractions, had several raised bumps on her head, suffered pain in her head and
headaches for about a week, and suffered pain in her hips for about three weeks until her
baby was born. Also, her young son was scared to go out and did not want to sit in a cart
or stroller.
Testimony of Norma Garcia
Norma Garcia testified that she was driving along Hearn Avenue at the time of the
incident when she saw a baby whose mother she knew sitting in a stroller on the
sidewalk. A woman was standing next to the stroller. Garcia stopped her car right before
the railroad tracks, rolled down her window, and asked the woman where the boy‟s
mother was located. The woman answered that “he‟s hitting her, and she pointed at this
little bushy area that was close by.” Garcia looked there and “saw two persons
struggling.” All Garcia could see was defendant‟s black clothing on top, but she could
hear Doe screaming desperately for help in Spanish. Asked to clarify, Garcia said she
was in the far lane of Hearn Avenue and could see “some type of struggling going on,”
and could see the bodies moving.
Garcia drove past the railroad tracks and made a U-turn, at which point the man
stopped fighting. Garcia saw his face clearly, and identified him at trial as the defendant.
Garcia left her car and went over to Doe, who, “[a]s she was getting up and she was
coming outside from where she was from the bush area, she was holding her abdomen,
4
she was bleeding from her nose, she was bleeding from her mouth and she was really
tearful and falling apart.” The little boy was sitting a few feet away. There were other
people helping as well.
Testimony of Herbert Francis Ayers, Jr.
Herbert Francis Ayers, Jr. testified that he, his wife, and three children were
driving down Hearn Avenue at the time of the incident and, when they “hit” the railroad
tracks, he saw “a couple going into some bushes” and a baby in a stroller on an overpass,
sitting alone. The couple was “falling into the bushes.” His wife pulled the car over and
Herbert2 got out and ran back about 30 feet to where the incident was happening,
screaming. A man got up and ran away. His wife “helped [Doe] out of the bushes and I
kind of stayed there with them just to make sure everything was okay, and she came up
out of the bushes, her face was just totally bloody.”
Herbert said when he ran back to the incident, he did not know what was going on,
thought something bad was happening, and was more concerned about the baby in the
stroller. He did not see what was going on between the two people in the bushes because,
he said, from “where we were coming down Hearn, they were in the bushes, so really
couldn‟t tell what was happening.” His wife and daughter helped out the woman, and he
saw, “when they brought her up to the sidewalk,” that she “was very bloody face wise”
and was crying “big time.” The incident occurred very quickly. It was about 10 seconds
from the time he got out of the car to when he reached the area of the incident.
Testimony of Kimberlee Ayers
Kimberlee Ayers testified that she was driving along Hearn Avenue at the time of
the incident and, as she crossed over railroad tracks, saw “a gentleman in the bushes and
a girl that was being pulled backwards, and then there was a child in a stroller sitting up
on the little bridge . . . .” She first saw the man and girl on the sidewalk and, by the time
she drove by, they had gone into some bushes. The girl “definitely” did not intend to go
2
We use first names in this discussion for clarity‟s sake, and mean no disrespect
by doing so.
5
into the bushes, but was being pulled from the street backwards by the man. After they
went into the bushes, Kimberlee could not see “anything that was happening.”
Kimberlee got out of her car and ran to the baby. She could hear Doe screaming.
The man popped up out of the bushes as Kimberlee got closer. After he ran away, she
“assisted Jane Doe in getting up out of the bushes[.]” Doe was in an area that was “a bit
concealed. And it drops down a little bit. So there‟s a little bit of an incline. Because
when I pulled her up, I had to pull her up because she was kind of down.” Doe “was all
bloody, her face was all bloody, her lip was bleeding, her nose was bleeding out of both
sides.” The entire incident occurred “very fast,” in a matter of seconds.
Testimony of Denise Ferguson
Denise Ferguson testified that she was driving eastbound on Hearn Avenue at the
time of the incident when she saw a “big commotion” on her left. She saw “a lady
standing outside her car yelling for someone to help them.” Ferguson slowed down and
observed “a gentleman pop up and start running down Hearn eastbound, and then a lady
came up and was holding her stomach bleeding.” The man came up from “a little
embankment type thing” near a little crossway or bridge by the railroad, and the injured
woman came up from the same area. She saw the man‟s face and later identified him to
police.
Testimony of Elmer Velasco
Elmer Velasco testified that he was driving westbound on Hearn Avenue at the
time of the incident when he saw in the distance “a blur of two bodies that kind of fell
over by the train tracks, by some grass.” As he got closer, he saw a man was “punching
down on someone else” with both hands, so he pulled up to the right side of the man and
yelled through his car window for the man to stop. He did not see who was underneath
the man, who was “just whaling down punches” in an area of tall grass; Velasco thought
it was “an unfair fight at the very least.” The man got up and Velasco saw “a woman that
stood up and her face was bloody and she yelled out in Spanish. She said my baby.” The
baby was few feet in front of Velasco. Another car pulled in front of Velasco and people
got out and came over as the man ran away. Velasco called 911 and followed the man,
6
then saw someone apprehend him. At trial, Velasco identified defendant as the attacker.
He thought about three minutes passed from the time he first saw something until he
stopped to see what was happening.
Other Relevant Testimony
Tommy McNeil, a deputy and canine handler with the Sonoma County Sheriff‟s
Department, testified that he went to the scene of the incident soon after it occurred.
According to McNeil, Hearn Avenue was “heavily traveled” by cars. Witnesses told him
the assault occurred “right off the concrete walkway” by where a fence followed a
portion of Hearn Avenue and “button hook[ed]” northward. He was told by a witness
that the incident occurred “down in the brush area,” where the ground dropped off about
two feet from the walkway.
Based on the information he received, McNeil returned to the scene and took
photographs. He took measurements based on his own observations and the information
he received from witnesses. He testified that the assault started about 20 feet from where
the two went off the roadway about six feet, into “a vegetation area” depicted in
photographs he had taken. This vegetation was trampled and smashed down, in an area
about five feet by two feet.
John Buergler, a detective with the Sonoma County Sheriff‟s Office, testified that
he met another detective at the scene of the assault on the afternoon of June 13, 2011 and
took photographs of the scene. He was told by the detective that this was the area of the
attack. Buergler observed that “there‟s a cyclone fence where this area is and there‟s like
a washout where dirt and whatever has eroded down. So it kind of made almost like a
small pit area where it washed underneath the cyclone fence. And there was some large
rocks that were still embedded into the dirt and kind of in the slope area.” He did not
measure the distance of the washout area from the sidewalk, but his “rough guess” was
that it was about 12 feet.
Defendant’s Testimony
Defendant testified that on the day of the incident, he did some cleaning up and
then collected and recycled cans. At home, he drank two 40-ounce bottles, a 32-ounce
7
bottle, and two to three cans of beer. His mother detected his drinking and yelled at him.
She was angry that he was drinking, in part because she was concerned it would cause
him to lose his new job, just as it had caused him to lose a previous one. After they
argued for about an hour, he became angry, frustrated, and “pretty stressed.” He left the
house and began walking to the store to buy more beer, listening to his iPod via
headphones.
After walking for about 5 to 10 minutes, defendant said, he saw a woman walking
in front of him who he thought was a prostitute because she had dark skin. He had seen
“a bunch of people dark skinned walking down Santa Rosa Avenue” and police pull over
and talk to women “[t]hrough Santa Rosa Avenue, through Hearn Avenue, through North
Dutton.” He did not see anyone with the woman or anything unusual about her. He
grabbed her by the waist and shoved her, and the two fell into a “little slope.” He started
to hit the woman “pretty hard,” and “kept hitting her and hitting her.” The woman
punched him two or three times, and he realized what he was doing. He ran away, but
was soon stopped by some people.
Asked why he attacked the woman, defendant said his mind was not clear, he was
“just tripping at the time,” drunk, and “just angry at everything” around him. He was
“just stressed out” and thought she “was a hooker just trying to make money off of me or
something.” The woman had turned her head in a way that gave him the “illusion” she
was talking to him. He could not tell if she was because he was wearing his headphones.
Defendant further testified that he did not try to take off the woman‟s or his own
clothes, did not try to force her to touch any part of his body other than his fists, and did
not recall using his fingers to touch her vaginal area. He denied to police that he had
touched her vaginal area and told them it was a mistake if he did. He told the woman
once in Spanish to “go suck a dick,” but meant this as the equivalent of “fuck off.” He
did not try to pick up the woman and was not trying to take her anywhere. He did not
know her, felt no animosity towards her, and was not sexually excited by the incident.
He did not notice the woman‟s child or that the woman was pregnant until he stopped
hitting her. His attack went on for two or three minutes.
8
Testimony of Defendant’s Siblings
Two of defendant‟s siblings, Jesus Caratachea and America Caratachea, also
testified. They indicated that defendant had drank heavily that day, quarreled at home
with his mother about his drinking, and left the house drunk and upset.
Verdict, Sentence, and Appeal
The jury found defendant guilty of unlawful sexual penetration in violation of
section 289, subdivision (a)(1). It also found true the accompanying allegation, made
pursuant to section 667.61, subdivision (d)(2), that he kidnapped Jane Doe and the
movement of Doe substantially increased the risk of harm to her over and above that
level of risk necessarily inherent in the unlawful sexual penetration. The jury also found
true the simple kidnapping allegation made pursuant to 667.61, subdivision (e)(1). The
jury did not reach a decision regarding the accompanying great bodily injury allegations.
The jury found defendant not guilty of felony child abuse or attempted child
abuse, but guilty of the lesser misdemeanor offense of cruelty to a child in violation of
section 273a, subdivision (b). It also found defendant guilty of aggravated assault, but
did not reach a decision regarding the accompanying great bodily injury allegation.
The court sentenced defendant to 25 years to life pursuant to section 667.61,
subdivision (a), based on defendant‟s unlawful sexual penetration conviction and the
jury‟s finding that the allegation made pursuant to section 667.61, subdivision (d)(2) was
true. The court did not sentence defendant to any additional time for the misdemeanor
conviction and stayed a four-year sentence for the assault conviction. Defendant filed a
timely notice of appeal.
DISCUSSION
Defendant argues the evidence was insufficient to support the jury‟s finding that
the aggravated kidnapping allegation made pursuant to section 667.61, subdivision (d)(2)
was true. As a result of this finding, the trial court was required to set defendant‟s
sentence at 25 years to life. (§ 667.61, subds. (a), (d)(2).) Defendant also argues the
evidence was insufficient to support the jury‟s finding that the simple kidnapping
allegation made pursuant to section 667.61, subdivision (e)(1) was true. He contends the
9
court should have only been authorized to set his sentence at a maximum of eight years
pursuant to section 289, subdivision (a)(1). Based on our substantial evidence standard
of review, which includes that we construe the evidence in the light most favorable to the
judgment, we conclude the jury‟s aggravated kidnapping finding was supported by
sufficient evidence.
I. Relevant Legal Standards
Section 667.61, the One Strike law, “was added to the Penal Code in 1994.
[Citations.] Like the Three Strikes law, the One Strike law is an alternative sentencing
scheme, but it applies only to certain felony sex offenses. [Citation.] It mandates an
indeterminate sentence of 15 to 25 years to life in prison when the jury has convicted the
defendant of a specified felony sex crime [citation] and has also found certain factual
allegations to be true.” (People v. Anderson (2009) 47 Cal.4th 92, 102.) Its purpose is “
„to ensure serious and dangerous sex offenders would receive lengthy prison sentences
upon their first conviction,‟ „where the nature or method of the sex offense “place[d] the
victim in a position of elevated vulnerability.” [Citation.]‟ ” (People v. Alvarado (2001)
87 Cal.App.4th 178, 186, italics omitted.)
Section 667.61, subdivision (a) requires imposition of a sentence of 25 years to
life when a defendant is convicted of committing enumerated sexual offenses in section
667.61, subdivision (c), which includes unlawful sexual penetration in violation of
section 289, subdivision (a), under one or more of the circumstances specified in section
667.61, subdivision (d). (§ 667.61, subds. (a), (c)(5), (d).) The jury found true one of
these specified circumstances, i.e., that 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
. . . .” (§ 667.61, subd. (d)(2).)
This particular circumstance requires proof of “two elements: (1) a simple
kidnapping (§ 207, subd. (a)); and (2) a substantial increase in the risk of harm to the
victim.” (People v. Diaz (2000) 78 Cal.App.4th 243, 246 (Diaz), fn omitted.)
10
Section 207, subdivision (a), states: “Every person who forcibly, or by any other means
of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and
carries the person into another country, state, or county, or into another part of the same
county, is guilty of kidnapping.” (§ 207, subd. (a).)
Regarding the movement necessary to satisfy the first element, “[i]t has long been
the law in California that even a simple kidnapping requires movement more than
incidental to the commission of an „associated crime.‟ [Citations.] Consequently,
. . . kidnapping within the meaning of section 667.61, subdivision (d)(2) requires
movement of the victim that is more than incidental to the underlying sex offense.”
(Diaz, supra, 78 Cal.App.4th at p. 246.) “[M]ovement is not necessarily incidental even
though it is designed to facilitate an associated crime” and it “can be incidental even
though „essential‟ to the associated crime.” (Id. at pp. 246-247.) “[I]ncidental
movements are brief and insubstantial, and frequently consist of movement around the
premises where the incident began. [Citations.] By contrast, relatively short distances
have been found not to be incidental where the movement results in a substantial change
in „the context of the environment.‟ ” (Id. at p. 247.)
Regarding both elements, section 667.61, subdivision (d)(2) has been interpreted
consistently with section 209, subdivision (b), which governs aggravated kidnapping.
(§ 209, subd. (b)(2); Diaz, supra, 8 Cal.App.4th at pp. 245-249.) As discussed by our
Supreme Court in a case cited by the People, “for 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 (Dominguez).)
In determining whether the movement of the victim substantially increased the
risk of harm, “the jury must „consider[] the “scope and nature” of the movement,‟ as well
as „the context of the environment in which the movement occurred.‟ [Citations.] This
standard suggests a multifaceted, qualitative evaluation rather than a simple quantitative
11
assessment. Moreover, whether the victim‟s forced movement was merely incidental to
the [sexual offense] is necessarily connected to whether it substantially increased the risk
to the victim. „These two aspects are not mutually exclusive, but interrelated.‟ ”
(Dominguez, supra, 39 Cal.4th at pp. 1151-1152, quoting People v. Rayford (1994) 9
Cal.4th 1, 12.)
In short, “[t][he essence of aggravated kidnapping is the increase in the risk of
harm to the victim caused by the forced movement.” (Dominguez, supra, 39 Cal.4th at
p. 1152.) The circumstances the jury should consider “whether the movement decreases
the likelihood of detection, increases the danger inherent in a victim‟s foreseeable
attempts to escape, or enhances the attacker‟s opportunity to commit additional crimes.”
(Ibid.) “[N]o minimum distance is required to satisfy the asportation requirement
[citation], so long as the movement is substantial [citation]. [¶] Measured distance,
therefore, is a relevant factor, but one that must be considered in context, including the
nature of the crime and its environment.” (Ibid.)
With these standards in mind, we consider defendant‟s insufficient evidence
contentions. In doing so, we review “the 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—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.‟ ” (People v. Watkins (2012)
55 Cal.4th 999, 1019.) “We resolve neither credibility issues nor evidentiary conflicts;
we look for substantial evidence.” (People v. Shadden (2001) 93 Cal.App.4th 164, 168.)
Reversal “is unwarranted unless it appeals „that upon no hypothesis whatever is there
sufficient substantial evidence‟ ” to support the jury‟s finding. (People v. Bolin (1998) 18
Cal.4th 297, 331.)
II. Analysis
Defendant contends there was insufficient evidence to satisfy either of the two
elements of section 667.61, subdivision (d)(2). His contentions are unpersuasive because
he largely ignores those aspects of the testimony of multiple eyewitnesses that provide
substantial evidence to support the jury‟s finding.
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Specifically, there was substantial evidence that defendant grabbed Doe on a
public sidewalk along a street heavily traveled by cars and, instead of initiating his sexual
assault there in the open, forcibly carried her about nine feet (or three meters) to 20 feet
into bushes on a downward slope of ground that was off to the side of the sidewalk and
about two feet below it, thereby at least significantly concealing them from view. Based
on this evidence, we conclude a reasonable juror could conclude beyond a reasonable
doubt that defendant‟s movement of Doe was not incidental to the charged sexual
offense, was substantial, and caused a substantial change in the context of the
environment, the result of which substantially increased the risk of harm to Doe.
A. The Movement Was Substantial
Defendant contends he merely “plucked” Doe up, “hefted her sideways one or two
paces and then dropped her face-forward onto the ground; the only additional movement
coerced by [defendant] was to flip her over before he committed his act of penetration.”
He acknowledges that Herbert Ayers referred to a “tumble into the bushes” (which
defendant characterizes as a “generic reference”), Kimberlee Ayers testified that the
bushes were in a down slope and a “bit concealed,” Doe referred to being moved two to
three meters by defendant, and McNeil estimated the movement as 20 feet backwards and
6 feet off the road. According to defendant, “[u]nder these circumstances, no version of
the facts (including the one involving the “twenty critical feet” [as referred to by the
prosecutor]) is sufficient to support the verdict.” Defendant contends “the movement was
intrinsic for the offense which occurred: to beat [Doe‟s] face, or solicit oral sex or flip
her and penetrate her vagina, [defendant] had to tackle her, and her movement of a few
feet in the process would appear to be incidental to it.”
Defendant‟s contentions ignore significant, substantial evidence to the contrary.
Doe, for example, testified that when defendant picked her up off the ground and carried
her backwards it seemed to her he “wanted to take me towards the bushes.” He then
threw her “against the bushes” in a dark area located on a downward slope of ground.
This downward slope was later measured by Deputy McNeil as dropping about two feet
13
from the walkway. Denise Ferguson and John Buergler also provided testimony
indicating this area sunk below the sidewalk.
Defendant cites testimony by Kimberlee Ayers to indicate the concealment was
only “a bit,” but ignores other testimony, including from Kimberlee, that the concealment
of Doe was complete, or at least significant. Kimberlee testified that after she saw a man
and a woman go into some bushes, she could not see “anything that was happening”
between them. A man then “popped out” of the bushes and Kimberlee assisted Doe “in
getting up out of the bushes,” from an area that she only then indicated was “a bit
concealed.”
Herbert Ayers testified that after he saw the two fall into some bushes, he got out
of the car and ran over to the area of the incident, but could not see what was going on
between the two people because “they were in the bushes, so really couldn‟t tell what was
happening.” Herbert said his wife helped Doe “out of the bushes,” which was when he
saw that Doe‟s face was “just totally bloody.”
Norma Garcia indicated she first noticed only that Doe‟s son was in his stroller
alone on the Hearn Avenue sidewalk. She did not notice any struggling until a woman by
the stroller directed her to look in the area of the assault and, even then, could only see
defendant‟s black clothing on top and bodies moving and struggling. Garcia further
indicated she did not clearly observe Doe until after defendant fled, when Garcia saw
Doe “getting up” and “coming outside from where she was from the bush area.”
Elmer Velasco testified that after he saw two bodies “fall over by the train tracks,
by some grass” he saw a man punching down on someone else in some tall grass, but
could not see who was underneath the man.
A reasonable juror could rely on this evidence to conclude beyond a reasonable
doubt that defendant deliberately moved Doe from a public sidewalk easily viewed by
passerby‟s to a dark, concealed area inside some bushes that facilitated his unlawful
sexual penetration of Doe. As we have indicated, “movement is not necessarily
incidental even though it is designed to facilitate an associated crime” and “relatively
short distances have been found not to be incidental where the movement results in a
14
substantial change in „the context of the environment.‟ ” (Diaz, supra, 78 Cal.App.4th at
pp. 246, 247.) No minimal distance is required. (Dominguez, supra, 39 Cal.4th at p.
1152.) Based on this law and the evidence we have cited, we conclude there was
substantial evidence that defendant‟s movement of Doe, rather than be intrinsic to the
sexual offense charged, was substantial and substantially changed the context of the
environment in which the unlawful sexual penetration occurred.
B. The Movement Substantially Increased the Risk of Harm to Doe
Defendant also argues that “it is plain that there was no increase” in the risk of
harm to Doe from defendant‟s actions. Defendant contends that, “[u]nlike cases where
increased risk of harm is discerned despite very minimal movement because the
movement occurred indoors,” “[t]he exterior location makes a significant difference in
the analysis” because there was less danger of harm outside. Among other things,
defendant contends that it “simply is untrue” that the site of the offense was secluded. He
contends that photographs introduced into evidence indicate that the “camera easily was
able to photograph well into the scene areas,” and that the visible area of one photograph
is six times the distance Doe testified she was moved off the sidewalk. He further
contends that at least four of the eyewitnesses—including Herbert Ayers and Norma
Garcia—saw the struggle, and that Doe indicated she could still see her baby from the
area of the assault. He concludes, the assault area “was feet from a busy roadway and so
visible that no fewer than four people were able to observe the brief incident and, by
running quickly to the scene, prompt [defendant] to abate his assault before seriously
injuring the victim.”
Defendant‟s contentions are based on his own interpretation of the evidence.
There is nothing definitive about the evidence he cites; in particular, we cannot draw his
conclusion from the black and white paper copies of photographs which are contained in
the record.
More importantly, defendant ignores the substantial evidence that Doe was
completely, or at least significantly, concealed after defendant moved her into some
bushes. As we have already indicated, Herbert and Kimberlee Ayers saw the two as they
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went into the bushes; Garcia stopped because she noticed only that Doe‟s son was sitting
in his stroller on the sidewalk; and Velasco saw the two fall over. While Garcia and
Velasco indicated they could see some aspect of the struggle, neither saw Doe clearly
until after the assault was completed. While Garcia, once pointed to the location of the
assault, heard Doe‟s screams, defendant was able to punch Garcia 10 to 15 times in his
efforts to silence her. Most importantly, the Ayers both testified that they could not see
what occurred after the two went into the bushes, which was substantial evidence that
defendant‟s physical concealment of Doe was complete. Also, there was no evidence
these witnesses stopped because of what they witnessed or heard after defendant took
Doe into the area of the assault.
Furthermore, defendant‟s relatively short movement of Doe did not necessarily
make it less dangerous. “[W]here a defendant moves a victim from a public area to a
place out of public view, the risk of harm is increased even if the distance is short.”
(People v. Shadden, supra, 93 Cal.App.4th at p. 169 [defendant moved rape victim from
front area of a store in public view nine feet into a closed back room].)
Defendant‟s characterization of the evidence, and his relative disregard of
material, inculpatory aspects of testimony by multiple witnesses, in effect asks us to
reweigh the evidence in his favor. This is not within our province when applying a
substantial evidence standard of review. (People v. Martinez (2003) 113 Cal.App.4th
400, 412.) We conclude there was substantial evidence from which a reasonable juror
could conclude beyond a reasonable doubt that defendant‟s movement of Doe
substantially increased the risk of harm to her over and above that level of risk
necessarily inherent in his unlawful sexual penetration of her.
C. Supporting Case Law
Defendant‟s arguments, particularly that the outdoor location of his assault makes
a significant difference in the analysis, are fatally undermined by three cases cited by the
People.
In Dominguez, defendant, in the middle of the night, forced the victim to move
from the shoulder of a road, down a 10- to 12-foot embankment, and partially into a
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walnut orchard about 25 feet away from the road. (Dominguez, supra, 39 Cal.4th at pp.
1150-1151.) Because of the embankment‟s steepness and orchard‟s trees, it was unlikely
a driver on the road could see the victim where she was moved. (Id. at p. 1153.) Thus,
despite the short distance, our Supreme Court found, the movement “changed the
victim‟s environment from a relatively open area alongside the road to a place
significantly more secluded, substantially decreasing the possibility of detection, escape
or rescue.” (Ibid.) The court concluded that, “considering the context of the forced
movement of the victim . . . and viewing the evidence in the light most favorable to the
People,” there was sufficient evidence that the movement was more than incidental to the
commission of the rape involved and substantially increased the risk of harm to the
victim over and above that necessarily present in its commission. (Id. at p. 1155.)
Similarly, in People v. Aguilar (2004) 120 Cal.App.4th 1044 (Aguilar), the
defendant, Aguilar, forcibly moved his victim 133 feet down a sidewalk at night, from an
area illuminated by a porch light to “an „extremely dark‟ area,” where he pulled her down
the sidewalk, threw her to the ground, grabbed her neck, choked her, bit her, slammed her
onto a car hood, held her face down and held a knife near her neck. (Id. at p. 1049.) He
also put his hands down her pants and inserted his fingers in her vagina. (Id. at p. 1047.)
A resident in the area heard the victim‟s screaming and turned on his porch light. (Ibid.)
He saw Aguilar attacking the victim and told him to release her; Aguilar got up and ran,
but was shortly apprehended by the resident and the resident‟s brother. (Ibid.)
The Aguilar court concluded these facts were sufficient to sustain the jury‟s
conclusion that defendant had committed aggravated kidnapping because the movement
decreased Aguilar‟s likelihood of detection, and a reasonable trier of fact could infer this
increased the risk to the victim by making it harder for her to escape and enhanced
Aguilar‟s opportunity to commit further crimes. (Aguilar, supra, 120 Cal.App.4th at p.
1049.) Furthermore, “ „[a]n increased risk of harm was manifested by appellant‟s
demonstrated willingness to be violent . . . .‟ ” (Ibid.)
The defendant in Diaz demanded property from a woman standing at a bus stop in
the early morning darkness, by a lighted intersection. (Diaz, supra, 78 Cal.App.4th at p.
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248.) When the woman said she had none, the defendant forced her toward a nearby
park. Before reaching there, he pushed her to the ground in a grassy area next to the
sidewalk, but when a passerby stopped her car and said something, he covered the
victim‟s mouth, pushed her up a stairway, into the park, and around to the back side of a
large recreation center building, where it was completely dark, and sexually assaulted
her. (Ibid.) An officer summoned by the passerby could not see the defendant and the
victim in the darkness, but located them based on the victim‟s cries, and detained
defendant. (Ibid.) The victim was moved at least 150 feet, and perhaps twice that
distance or more. (Ibid.)
The Diaz court concluded these facts more than adequately supported the jury
finding that the movement of the victim was substantial. It noted that the defendant
“could have sexually assaulted the victim in the sidewalk area where he first accosted
her; indeed, he was in the process of doing so until distracted by the passing citizen. He
quite obviously moved the victim in order to complete the attack and avoid detection.
The scope and nature of the movement dramatically changed the environmental context.”
(Diaz, supra, 78 Cal.App.4th at p. 248.) The court also concluded this movement created
a substantial risk of increased harm to the victim. It stated, “We can only speculate as to
what would have become of the victim had the passing citizen not taken prompt action,
and had the police response not been quick. Clearly, the risk to the victim in the dark and
isolated location of the attack increased significantly as compared to the lighted sidewalk
near the bus stop where the incident began.” (Id. at p. 249.)
The present circumstances are similar to the facts in each of these three cases. As
we have discussed, substantial evidence indicated defendant moved Doe from a public
sidewalk to a dark, significantly or totally concealed area inside some bushes, thereby
substantially changing the context of the environment so as to reduce the risk of
detection. Each of the three cases involved incidents that occurred outside and involved
movement of relatively short distances, as little as 25 feet, to a darkened area in the
vicinity of the initial encounter. Indeed, Aguilar remained out in the open; the context of
the environment changed only because he moved from a lit to an unlit area. Diaz
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involved vegetation analogous to the bushes in the present case—orchard trees—that, the
court concluded, partially, but significantly, concealed the victim and her attacker from
drivers going by, substantially reducing the risk of detection.
Also, like Doe, the victims in Aguilar and Diaz could be heard screaming.
However, this did not alter that their movement was substantial and substantially
increased the risk to them over and above that necessary for the commission of the crimes
involved.
Furthermore, Aguilar involved a risk of harm that was manifested by the attacker‟s
willingness to be violent, even though he was in an open area and was seen by a
neighborhood resident who turned on his porch light. A reasonable juror could conclude
defendant‟s willingness to be violent in the present case, punching Doe 10 to 15 times,
manifested the same risk.
Defendant argues that Diaz actually supports his position because, as the Diaz
court noted, movement of the victim “from the sidewalk to the grassy strip could easily
be characterized as incidental, in that it effected no substantial change in the
surroundings, and may have been a short distance from where defendant first made
contact with the victim.” (Diaz, supra, 78 Cal.App.4th at p. 248-249.) Defendant
contends the circumstances here are practically the same. We disagree. There was no
indication in Diaz that the grassy strip created any concealment or other change in the
environment, unlike the present case.
In short, based on substantial evidence, we conclude that a reasonable juror could
conclude beyond a reasonable doubt that defendant moved Doe from a public sidewalk to
inside some bushes, thereby significantly or completely concealing them from passersby,
substantially increasing the risk of harm to her. A reasonable juror could conclude
beyond a reasonable doubt that this movement decreased the likelihood of detection,
increased the danger inherent in Doe‟s attempts to escape, and enhanced defendant‟s
opportunity to commit additional crimes. Whether or not these dangers fully materialized
“ „does not, of course, mean that the risk of harm was not increased. [Citations.]‟ ”
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(People v. Martinez (1999) 20 Cal.4th 225, 233.) Defendant‟s appellate claim lacks
merit.
DISPOSITION
The judgment is affirmed in its entirety.
_________________________
Brick, J.*
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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