People v. Harper

Filed 1/9/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

A152284

v.

DERRICK DAMON HARPER, (Contra Costa County

Super. Ct. No. 05-152089-9)

Defendant and Appellant.

A jury found defendant Derrick Damon Harper guilty of conspiracy to commit

human trafficking and multiple kidnapping and sex offenses. Harper contends his

kidnapping and kidnapping-for-extortion convictions must be reversed because the

conduct underlying the charges could be prosecuted only under the more specific statute

Penal Code section 266a, which prohibits “tak[ing] any person against his or her will and

without his or her consent . . . for the purpose of prostitution.” This contention is based

on a doctrine known as the “Williamson rule” after our Supreme Court’s decision in In re

Williamson (1954) 43 Cal.2d 651, 654 (Williamson), which held that if a general statute

includes the same conduct as a special statute, courts infer that the Legislature intended

the conduct to be prosecuted only under the special statute.

In the alternative, Harper argues his two convictions of kidnapping for extortion

must be reversed, first, because his conduct did not constitute extortion and, second,

because the jury instruction given, CALCRIM No. 1202, was an incorrect statement of

law.

*

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is

certified for publication with the exception of parts D, E, F. G, and H of the Discussion.

1

In the published portion of our opinion, we hold that the Williamson rule does not

bar the convictions here, that defendant’s conduct constituted extortion, and that although

the challenged jury instruction contained an incorrect statement, it did not contribute to

the jury’s verdict.

In the unpublished portion of the opinion, we find sufficient evidence of

kidnapping to support counts 12 and 21; we agree with the parties that certain

enhancements were improperly imposed and therefore strike those enhancements; and we

remand the matter for resentencing under recently enacted legislation.

FACTUAL AND PROCEDURAL BACKGROUND

Charges

The Contra Costa County District Attorney charged Harper, along with five

codefendants (most notably, Roy Gordon and Eric Beman), with conspiracy to commit

human trafficking (Pen. Code,1 §§ 182, subd. (a)(1), 236.1, subd. (b); count 1) and other

offenses related to alleged coercive pimping.2

1

All undesignated statutory references are to the Penal Code.

2

When Harper’s case went to trial, the jury decided the conspiracy charge and the

following additional charges: sodomy by use of force of Jane Doe 2 (§ 286, subd. (c)(2);

count 9), two counts of kidnapping for extortion (a type of aggravated kidnapping) of

Doe 2 (§ 209, subd. (a) (hereinafter § 209(a)); counts 10 and 12), four counts of forcible

rape of Doe 2 (§ 261, subd. (a)(2); counts 13, 22, 23, and 24), human trafficking of Jane

Doe 1 (§ 236.1, subd. (b); count 15), forcible oral copulation of Doe 1 (former § 288a,

subd. (c)(2)(A), as amended by Stats. 2010, ch. 219, § 8; count 16), and two counts of

kidnapping Doe 2 (§ 207; counts 20 and 21).

As to count 13 (forcible rape), it was alleged as aggravating circumstances that

Harper kidnapped Doe 2, and the movement of Doe 2 substantially increased the risk of

harm over and above the level of risk necessarily inherent in the crime. (§ 667.61, subd.

(d)(2).) As to counts 12 (kidnapping for extortion) and 21 (kidnapping), it was alleged

that Harper personally used a firearm within the meaning of section 12022.53,

subdivision (b). Additional allegations that Harper suffered prior felony convictions were

subsequently tried by the court.

2

Trial

Jane Doe 2

In 2007, Doe 2 was 18 years old and “in an active addiction to meth.”3 She did

not have stable housing and “was back and forth between Pittsburg, Antioch, Brentwood,

[and] Oakley.” During this period, Doe 2 lived with Jeff Fowler for a few months.

One day, Fowler took Doe 2 to an apartment in Pittsburg where he wanted her to

perform oral sex on a man (implicitly for money). At the apartment, Doe 2 went to a

back room and had sex with codefendant Roy Gordon. Afterward, Doe 2 realized Fowler

had left the apartment, and she felt scared.

Gordon told Doe 2 he would take her back to Fowler, but instead he took her to a

house on Dover in Pittsburg. Gordon showed Doe 2 a bedroom and told her she would

be staying there. He told Doe 2 she was going to work for him, and she felt like she

couldn’t leave. Doe 2 performed three acts of prostitution during the time she was at the

Dover house, and Gordon supplied her with methamphetamine.

At some point, four girls beat up Doe 2 and cut off her hair. Gordon took Doe 2 to

a second house to recover from the beating. After two or three days, Doe 2 left the

second house. Doe 2 testified she stayed at the Dover house for about three or four

weeks.

In 2009, Doe 2 met Harper at the apartment of a woman named Candace. Harper

brought methamphetamine to the apartment, Doe 2 got high with Candace and another

woman, and Doe 2 had consensual sex with Harper.

A few months later, Harper offered Doe 2 a place to stay in a foreclosed house on

DiMaggio. Doe 2 went to the DiMaggio house. Initially, Doe 2 felt like she was free to

come and go at the DiMaggio house. But then she saw Harper “jump” Nick Chavez, and

she did not feel safe.4

3

Doe 2 testified that she regularly smoked methamphetamine and marijuana.

In this incident, Doe 2 observed Harper and men she knew as “Rude Boy” and

4

“Chop” beat Chavez up. They kicked Chavez and left him on the ground and drove

3

Doe 2 recalled riding in Harper’s car when he saw a woman coming out of a

building. (This woman was later identified at trial as Jane Doe 5.) Harper got out of the

car and grabbed Doe 5 by the back of the neck and put her in the backseat of his car. He

said Doe 5 owed him money, and she looked really scared. Harper took Doe 5 to the

DiMaggio house, and he had Doe 5 sign a “contract” indicating she owed Harper money.

Doe 2 was supposed to watch Doe 5, but she let Doe 5 escape through her bedroom

window.

A few days after Doe 5 escaped, Harper called Doe 2 to the living room. He had

Doe 2 take off her clothes and had another woman cut her hair off while he recorded the

event on his phone.

Aiding and Abetting Forcible Rape (Counts 22–24)

Harper displayed a gun and had three men—Chavez, Rude Boy, and a man called

“Ghost”—rape Doe 2. Harper had them go into a back room and rape her one by one.

Harper would come in and make sure they were raping her and then he would close the

door.

Forcible Sodomy (Count 9)

After the men raped Doe 2, Harper told her to take a shower. He told Doe 2 to go

to her bedroom, and he anally raped her.

The next day, Harper dropped Doe 2 off with codefendant Eric Beman.5 Harper

told her “a hard head makes a soft ass,” and Doe 2 understood this to mean if she “acted

up” or didn’t follow directions, she would be sodomized again or Beman would beat her.

away. This event “put some fear” in Doe 2 because she saw Harper “had influence like

that over other people to just get them to beat somebody up with him.”

Previously, Doe 2 met Beman at a friend’s apartment, and they got high and had

5

consensual sex. Beman had given Doe 2 a ride to the DiMaggio house before the rapes

occurred.

4

Kidnapping for Extortion (Count 10), Kidnapping (Count 20), and Rape

with Kidnapping (Count 13)

Around 2009, Doe 2 was in custody for three or four months for receiving stolen

property. After she got out of custody, Doe 2 stayed with her uncle in Oakley. She

believed Harper was looking for her because she heard he was offering people she knew

drugs and money to tell him where she was. As a result, Doe 2 “was always watching

over [her] shoulder”; she carried a knife, did not go out on the streets during the day, and

was very careful about who she socialized with.

Doe 2 was walking down the street at night in Antioch when Harper pulled up in a

white pickup truck. He grabbed Doe 2 and put something hard to her back. He told her

to get in the truck, and she complied. She saw that he had a gun. Harper took Doe 2 to a

house on Jack London in Pittsburg. He had her take a shower, and then he raped her. He

had a gun on the nightstand. The next day, Doe 2 looked at the gun while Harper was

taking a shower. She determined the gun was not operational because when she picked it

up, it rattled.

Doe 2 stayed at the Jack London house only a couple of days. Harper told her he

was going to sell her to a man in Vallejo for $10,000, and this motivated Doe 2 to try to

escape. She jumped over the back fence, ran a few streets away, and then called a friend

to pick her up.

Around this time, Doe 2 was hanging out with the CoCo County Boys, a White

criminal street gang.6 She felt they would protect her from Harper to some extent.

Kidnapping for Extortion (Count 12) and Kidnapping (Count 21)

On another occasion, Doe 2 was getting high at a drug house on Peppertree Court

in Antioch when Harper showed up. Doe 2 went with Harper because, she testified, “I

didn’t feel safe there and I didn’t feel like anybody would even try to protect me there.

So I didn’t want anybody getting hurt.”

6

An expert witness testified the gang was also called “Peckerwood” or “Wood”

for short.

5

Harper had Doe 2 dress in a skimpy skirt and heels. He mentioned again that he

was going to sell her to a man in Vallejo. Harper and Chop drove Doe 2 to perform an

act of prostitution. The client gave Chop $100, and Chop gave the money to Harper.

Harper saw that the bill was fake. He drove to a gas station and asked Doe 2 to get

change for the counterfeit bill from someone at the gas station. Doe 2 asked a man if he

had change for a $100. The man recognized her, and Doe 2 realized she knew him; his

name was Johnny. Doe 2 told Johnny that Harper was trying to sell her to a man in

Vallejo and asked if he could help. Johnny told her to jump in, and she jumped in the

back of his Bronco and covered herself with a towel.

Doe 2 testified there were six other times Harper attempted to kidnap her.

Jane Doe 1

Around 2006, Doe 1 was working as a prostitute. At some point, she moved in

with Gordon in a house on Abbott.7

Beman was Gordon’s best friend. Occasionally, Gordon would get arrested, and

Beman would monitor Doe 1 while Gordon was in custody. In 2010, Gordon was in

custody on a robbery charge. Doe 1 continued to work as a prostitute and lived with a

woman named Shannon.

Doe 1 met Harper through Shannon, and he invited her to live with him rent free.

Doe 1 moved into Harper’s house on Jack London. At first, Doe 1 was free to come and

go as she wanted.

At some point (while Gordon was in custody), Beman told Doe 1 she had no

business being at Harper’s house. Doe 1 told Harper what Beman said, and Harper said

he was going to settle it with Beman. Doe 1 and Harper met Beman at a house in

Antioch, and Harper and Beman had a heated discussion. Beman hit Doe 1 over the head

7

Doe 1 corroborated parts of Doe 2’s testimony to some extent. Doe 1 testified

that she and Gordon moved to a house on Dover and, at some point, Doe 2 came to the

house and worked as a prostitute. Doe 1 also recalled seeing Doe 2 with a shaved head at

least once.

6

with a bottle, punched her, and “stomped” her while Harper watched. Doe 1 tried to

leave with Harper, but Harper left without her.

Later, Harper told Doe 1 this was intended as a trade of sorts: Harper was

supposed to take Doe 1 to Beman, and Beman “was supposed to give up . . . Doe 2” to

Harper.

Human Trafficking (Count 15)

Soon after Harper left Doe 1 with Beman in Antioch, Beman went to jail, and Doe

1 returned to Harper’s house in Pittsburg. Harper made comments about making Doe 1

“his bitch,” but she thought he was joking. One day, however, she packed her things to

leave, and Harper said she was not going anywhere and “I told you I was going to make

you my bitch.”

After that, Doe 1 was forced to stay at the Jack London house, and she gave all the

money she made from prostitution to Harper. Harper became physical with Doe 1 and hit

her a lot. He told her if she ever left, he would go after her son. Harper agreed to a

contract to allow Doe 1 to buy her freedom for $3,000, but when she gave him the

money, he denied there was a contract.

Oral Copulation (Count 16)

A couple of times after he beat Doe 1, Harper “would say, [‘]okay, Come suck my

dick[’],” which Doe 1 understood to mean the beating was over. Doe 1 agreed that she

“d[id] that voluntarily,” but only because she was scared after having been beaten up.

Other Prosecution Evidence

Around 2011, Alicia Hammond met Harper on the street in Antioch. She went

with him to a house on Jack London and then to a bar in Antioch. Hammond left the bar

by herself and waited outside for a friend to pick her up. As she was waiting outside,

Harper drove up in a gold Lexus with a woman named Candace and another woman in

the car. Harper had a gun on his lap and he told Hammond, “Get in the fucking car.”

Hammond got in his car because she was afraid she would be hurt or killed if she did not

comply. Harper took her and the other women to a Denny’s restaurant. He told

7

Hammond if she did not go with him, she would have to deal with Beman. Harper and

the women left, and Hammond had a friend pick her up from the restaurant.

Casey Beck knew Harper “from the streets outside.” Around 2010 or 2011,

Harper told Beck that Doe 2 owed him money and had run away from him. He offered

Beck $100 and an eight ball of methamphetamine to find her. Later, Beck saw Doe 2 at a

friend’s house. Doe 2 told Beck that she was raped, fed drugs, and beaten up a few times

at Harper’s house. Doe 2 said Harper was trying to force her to prostitute for him.

Jane Doe 5 testified that she met Harper in Antioch around 2008 at a house on

DiMaggio. Doe 2 was at the house. Harper held a gun to Doe 5’s head and made her

perform oral sex on him. Then Rude Boy and a teenager called “Hog” watched Doe 5

and made her stay in a room.8 Doe 5 was told she owed Harper $300, but she had never

met him before. After a couple of days, Doe 5 was allowed to leave the DiMaggio house

when she said she was going to meet a client for sex. About five days later, Harper raped

Doe 5 in a house in Pittsburg. A girl cut Doe 5’s hair, and Harper videotaped it.

Defense

Harper testified on his own behalf. He admitted he had been convicted in 1998 of

two counts of kidnapping. After he was released from custody, he lived in Pittsburg with

his parents. It was stipulated that Harper was in custody again from August 2008 to May

2009. After he was released in 2009, he returned to his parents’ house, worked as a

security guard at a bar in Brentwood, briefly lived with a girlfriend in Antioch, and then

moved back with his parents in 2010.

Harper testified he met Doe 2 in 2010 at Candace’s apartment, and he and Doe 2

had sex in the bathroom. He ran into her later and told her about a house available for

rent on DiMaggio; Doe 2 and Candace ended up moving into the house. Harper never

lived in the DiMaggio house, but he visited often to see Candace. According to Harper,

Doe 2 was interested in a relationship with him, and they started dating. Harper testified

that, one day, he went to the DiMaggio house on his lunch break and saw Doe 2 having

8

Another witness testified Chavez went by the nickname Hog.

8

sex with his friend Nick Chavez and two other men, “Ghost and Kaze.” Harper testified

he felt “disrespected, played” and he broke up with Doe 2. He denied he told the men to

have sex with Doe 2. Harper admitted he yelled at Doe 2 when he saw her in front of the

DiMaggio house talking to Beman.

Harper was in custody for a short period in 2011. After he was released, he lived

in a house on Jack London with Candace. He met Doe 1 at the Jack London house, and

he let her move in. Harper testified he had a list of white women who were being forced

to prostitute themselves for Gordon and Beman, whom he described as his “enemies.”

Doe 1 was on this list. At some point, Harper began a sexual relationship with Doe 1.

Harper denied he had an agreement with Gordon or Beman to pimp women. He

denied pimping Doe 1 or Doe 2. He denied raping or sodomizing Doe 2 and denied ever

forcing Doe 2 to stay at his house. He denied ever asking anyone to cut Doe 2’s hair. He

denied ever forcing Doe 2 into a truck at gunpoint and denied taking her to the Jack

London house. He denied telling Doe 2 he was going to sell her for $10,000. He denied

forcing Doe 1 to perform oral sex on him. He denied kidnapping Doe 5.

Jury Verdict

The jury found Harper guilty of all of the charged counts except count 16, forced

oral copulation of Doe 1.

The jury found true the enhancement allegations that Harper used a firearm in the

commission of the second count of kidnapping for extortion of Doe 2 (count 12) and that,

in the commission of forcible rape (count 13), he kidnapped Doe 2 and the movement of

Doe 2 substantially increased the risk of harm to Doe 2 over the risk inherent in the

forcible rape.

Court Trial on Prior Convictions and Sentence

The district attorney alleged Harper suffered two prior felony convictions for

kidnapping that qualified as strikes under section 667, subdivisions (d) and (e), and as

serious felonies under section 667, subdivision (a)(1), and one of the prior convictions

was a violent felony for which he served a prison term (§ 667.5, subd. (a)). The trial

9

court took judicial notice of a prior criminal case and found the allegations of prior felony

convictions true.

The trial court ruled the two prior felony convictions for kidnapping were separate

strikes and sentenced Harper under the Three Strikes law.

Harper received an indeterminate sentence of 287 years to life for counts 9

(sodomy of Doe 2), 10 (kidnapping for extortion of Doe 2), 12 (same), 13 (forcible rape

with kidnapping of Doe 2), 15 (human trafficking of Doe 1), and 22 (forcible rape of Doe

2).9 The trial court also imposed and stayed, pursuant to section 654, terms for counts 1,

20, 21, 23, and 24.

DISCUSSION

A. The Williamson Rule

“Under the Williamson rule, if a general statute includes the same conduct as a

special statute, the court infers that the Legislature intended that conduct to be prosecuted

exclusively under the special statute.” (People v. Murphy (2011) 52 Cal.4th 81, 86

(Murphy), italics added.) Harper contends his convictions of kidnapping in violation of

section 207 (counts 20 and 21) and kidnapping for extortion in violation of section 209(a)

(counts 10 and 12) must be reversed under the Williamson rule because the conduct

underlying these convictions may be prosecuted only under section 266a, which makes it

a crime to “take[] any person against his or her will and without his or her consent . . . for

the purpose of prostitution.” We reject this contention.

9

The sentence was calculated as follows: for count 13 (forcible rape of Doe 2), 75

years to life (25 years to life tripled), plus 10 years (two consecutive 5-year terms for the

prior serious felonies under section 667, subdivision (a)); for count 9 (sodomy of Doe 2),

25 years to life, plus 10 years for the two prior serious felonies; for count 10 (kidnapping

for extortion of Doe 2), 25 years to life, plus 10 years for the two prior serious felonies;

for count 12 (kidnapping for extortion of Doe 2), 25 years to life, plus 10 years for

personal use of a firearm, plus another 10 years for the two prior serious felonies; for

count 15 (human trafficking of Doe 1), 42 years to life (middle term of 14 years tripled),

plus 10 years for the two prior serious felonies; for count 22 (forcible rape of Doe 2), 25

years to life, plus 10 years for the two prior serious felonies.

10

1. The Rule and Its Application

In Williamson, the California Supreme Court explained: “ ‘It is the general rule

that where the general statute standing alone would include the same matter as the special

act, and thus conflict with it, the special act will be considered as an exception to the

general statute whether it was passed before or after such general enactment. Where the

special statute is later it will be regarded as an exception to or qualification of the prior

general one; and where the general act is later the special statute will be considered as

remaining an exception to its terms unless it is repealed in general words or by necessary

implication.’ ” (Williamson, supra, 43 Cal.2d at p. 654, quoting People v. Breyer (1934)

139 Cal.App. 547, 550.)

In that case, defendant Williamson was convicted of conspiracy, under the general

statute of conspiracy (§ 182), to commit the crime of contracting without a license in

violation of Business and Professions Code section 7028. Williamson challenged his

sentence, arguing his criminal conduct expressly had been designated a misdemeanor by

the Business and Professions Code. (Williamson, supra, 43 Cal.2d at pp. 652–653.) Our

high court agreed, concluding the Business and Professions Code statute dealt with “the

specific crime of conspiring to violate certain licensing provisions of that code” and was

clearly a “specific enactment” that barred prosecution under the general conspiracy

statute. (Id. at p. 654.)

Our Supreme Court examined and applied the Williamson rule more recently in

Murphy, supra, 52 Cal.4th 81. After defendant Murphy crashed her car into a hillside

and later falsely reported the car had been stolen, she was convicted of (among other

things) procuring or offering a false or forged instrument for filing or recording in

violation of section 115, subdivision (a), a felony.10 On appeal, Murphy argued her

prosecution under section 115 was precluded by the more specific statute applicable to

10

This subdivision provides, “Every person who knowingly procures or offers any

false or forged instrument to be filed, registered, or recorded in any public office within

this state, which instrument, if genuine, might be filed, registered, or recorded under any

law of this state or of the United States, is guilty of a felony.” (§ 115, subd. (a).)

11

her conduct, Vehicle Code section 10501, subdivision (a), which makes it “unlawful for

any person to make or file a false or fraudulent report of theft of a vehicle required to be

registered under this code with any law enforcement agency with intent to deceive” and

which is a misdemeanor for a first offense. (Id. at pp. 85, 88.)11

The Murphy court explained the Williamson rule is “ ‘designed to ascertain and

carry out legislative intent’ ” and, “[a]bsent some indication of legislative intent to the

contrary, [it] applies when (1) ‘each element of the general statute corresponds to an

element on the face of the special statute’ or (2) when ‘it appears from the statutory

context that a violation of the special statute will necessarily or commonly result in a

violation of the general statute.’ ” (Murphy, supra, 52 Cal.4th at p. 86.)

The court continued, “On the other hand, if the more general statute contains an

element that is not contained in the special statute and that element would not commonly

occur in the context of a violation of the special statute, we do not assume that the

Legislature intended to preclude prosecution under the general statute. In such situations,

because the general statute contemplates more culpable conduct, it is reasonable to infer

that the Legislature intended to punish such conduct more severely. For example, in

[People v.] Watson [(1981)] 30 Cal.3d 290 [(Watson)], the defendant was charged with

second degree implied malice murder based on a fatal automobile collision that occurred

when the defendant was intoxicated and had been driving at excessive speeds. On

appeal, the defendant argued that he could be convicted only of vehicular manslaughter

under Penal Code section 192 because that statute specifically addressed killing while

driving a vehicle, whereas the murder statute was a more general statute that addressed a

broad range of unlawful killings. We rejected that argument because a murder conviction

requires a finding of malice, while vehicular manslaughter requires only gross

negligence. Because of the different mental state required, ‘a violation of the vehicular

11

Murphy also argued Vehicle Code section 20 was a more specific statute

applicable to her conduct, but the court did not reach this argument because it concluded

Vehicle Code section 10501 precluded Murphy’s conviction. (Murphy, supra, 52 Cal.4th

at pp. 85, 95, fn. 4.)

12

manslaughter statute would not necessarily or commonly result in a violation of the

general murder statute. Thus, the Williamson rule is inapplicable.’ (Watson, supra, at p.

296.)” (Murphy, supra, 52 Cal.4th at p. 87.)

Applying the Williamson rule to Murphy’s case, the court concluded Murphy’s

conviction had to be reversed. (Murphy, supra, 52 Cal.4th at p.95.) The court found

Murphy’s conduct plainly came within the terms of Vehicle Code section 10501, section

115 was more general than Vehicle Code section 10501 because it applied to a broader

range of documents, and “[e]ach element of section 10501 has a counterpart in section

115.” (Id. at pp. 88.) Finally, the court determined, “the filing of a false vehicle theft

report would commonly violate Penal Code section 115.” (Id. at p. 94.) Accordingly, the

court inferred “that the Legislature, in specifying that such conduct constitutes a

misdemeanor, intended to create an exception to the felony punishment specified in the

more general statute.” (Id. at pp. 94–95.)

2. Analysis

Harper claims his two convictions of kidnapping for extortion of Doe 2 in

violation of section 209(a) (counts 10 and 12) and his two convictions of kidnapping of

Doe 2 in violation of section 207 (counts 20 and 21) must be reversed under the

Williamson rule because section 266a is the specific statute intended to cover the conduct

underlying those convictions. In other words, Harper argues, his criminal conduct of

grabbing Doe 2 off the street in Antioch and taking her to the Jack London house with the

intent to obtain money from her by forcing her to work as a prostitute and, on another

occasion, taking Doe 2 from a drug house in Antioch and dressing her in a skimpy skirt

and heels for an act of prostitution could be prosecuted only under section 266a. We are

not persuaded.12

12

Preliminarily, the Attorney General argues Harper’s Williamson rule claim has

been forfeited because he failed to file a motion to dismiss on this ground. Harper

responds that this court should decide the issue because it involves a pure question of law

on undisputed facts and because his claim of a Williamson rule violation in this case

resulted in an unauthorized sentence. In People v. Henry (2018) 28 Cal.App.5th 786, the

defendant offered the same reasons to consider his Williamson challenge raised for the

13

a. Section 266a

Section 266a provides in full, “Each person who, within this state, takes any

person against his or her will and without his or her consent, or with his or her consent

procured by fraudulent inducement or misrepresentation, for the purpose of prostitution,

as defined in subdivision (b) of Section 647, is punishable by imprisonment in the state

prison, and a fine not exceeding ten thousand dollars ($10,000).”13 A violation of section

266a is punishable by 16 months, two years, or three years in prison. (§ 18, subd. (a).)

People v. Mandell (1939) 35 Cal.App.2d 368 (Mandell) is the only published case

we have found in which a person was charged with violation of section 266a and the

appellate court discussed the statute. There, the victim “was induced to go with the

defendants to Isleton by a promise to secure a position for her at that place as a waitress,”

but when they arrived in Isleton, the defendants took the victim to “a house of ill-fame.”

(Id. at p. 370.) The victim “practiced prostitution” at the house for two days, and the

victim “said she was kept there as a captive.” (Id. at pp. 370–371.) The defendants

received a portion of her earnings from the proprietor of the house. Regarding section

266a, the court explained, “The offense may be committed in two ways, first, by taking a

female person for prostitution purpose, against her will; secondly, by obtaining her

consent by means of fraudulent inducement.”14 (Id. at p. 372.) The court did not have

occasion to discuss what constitutes “for the purpose of prostitution” under section 266a.

first time on appeal, and the Court of Appeal believed it was appropriate to address the

merits of the Williamson issue. (Id. at p. 791, fn. 3.) We agree with Henry and consider

the merits of Harper’s Williamson argument.

13

Section 647, subdivision (b)(4), provides that “ ‘prostitution’ includes any lewd

act between persons for money or other consideration.”

14

When Mandell was decided, section 266a provided that it was a crime to take

“ ‘any female person.’ ” (Mandell, supra, 35 Cal.App.2d at p. 372.) The statute now

applies to the taking of “any person.” (§ 266a.)

14

b. Kidnapping in Violation of Section 207

Section 207, subdivision (a), provides, “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.” Kidnapping is punishable by imprisonment

in state prison for three, five, or eight years. (§ 208, subd. (a).)

“Generally, to prove the crime of kidnapping, the prosecution must prove three

elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the

movement was without the person’s consent; and (3) the movement of the person was for

a substantial distance.”15 (People v. Jones (2003) 108 Cal.App.4th 455, 462 (Jones).)

The third element is called the “asportation” element. (People v. Bell (2009) 179

Cal.App.4th 428, 435.) The defendant’s purpose or motive is not generally an element of

a kidnapping crime. (Jones, supra, at p. 462.)

Harper concedes that section 266a does not meet the elements test of the

Williamson rule. It is plainly not the case that each element of section 207 (the purported

general statute) corresponds to an element on the face of section 266a (the purported

special statute).

Instead, Harper seems to rely on the second part of the Williamson test, that “ ‘it

appears from the statutory context that a violation of the special statute will necessarily or

commonly result in a violation of the general statute.’ ” (Murphy, supra, 52 Cal.4th at p.

86.) His entire argument is as follows: “It does not matter that kidnapping includes an

element of force or fear that a violation of section 266a does not because the Williamson

test does not require that the elements of the general and special offenses be identical.

The difference is not significant here because the act of taking a person against her will

under section 266a presupposes the use of force or fear.” This argument is unconvincing.

15

Since 1999, the third element of simple kidnapping is that the movement of the

victim is “ ‘ “substantial in character” ’ ” under the totality of the circumstances. (People

v. Martinez (1999) 20 Cal.4th 225, 237 (Martinez) overruled on another point by People

v. Fontenot (2019) 8 Cal.5th 57, 70; People v. Johnson (2015) 61 Cal.4th 734, 771.)

15

Even if we assume for the sake of argument that “tak[ing] any person against his

or her will and without his or her consent” under section 266a requires the use of force or

fear,16 this assumption does not show that violating section 266a in this way “ ‘will

necessarily or commonly result in’ ” a kidnapping in violation of section 207, subdivision

(a). (Murphy, supra, 52 Cal.4th at p. 86.) This is because, as the Attorney General points

out, kidnapping requires that the defendant’s movement of the victim be substantial in

character—the asportation element. Section 266a has no similar asportation requirement.

A person could take a victim without consent and against the victim’s will for the

purpose of prostitution in violation of section 266a without moving the victim

substantially. Accordingly, a violation of section 266a will not necessarily or commonly

result in a violation of section 207, and the Williamson rule does not bar Harper’s

prosecution for kidnapping. (Cf. Jones, supra, 108 Cal.App.4th at pp. 463–464 [rejecting

argument that the child abduction statute was a specific statute precluding a noncustodial

parent’s conviction of kidnapping because “a violation of the child abduction statute by a

noncustodial parent will not necessarily result in a violation of the kidnapping statute”];

People v. Vasquez (1991) 226 Cal.App.3d 988, 993–994 [rejecting argument that

abduction for defilement in violation of section 265 was a specific statute precluding a

conviction of kidnapping because “a violation of the ‘special’ statute, section 265, does

not necessarily or commonly result in a violation of the ‘general’ statute, section 207”].)

In his reply, Harper asserts for the first time, “Taking a victim for prostitution, like

simple kidnapping, necessarily involves movement that is ‘substantial.’ ” Harper,

16

As we have seen, a violation of section 266a “may be committed in two ways”

(Mandell, supra, 35 Cal.App.2d at p. 372), first, by taking the victim “against his or her

will and without his or her consent” for the purpose of prostitution or, second, taking the

victim “with his or her consent procured by fraudulent inducement or misrepresentation”

for the purpose of prostitution (§ 266a). When the purported special statute can be

violated in two ways, we apply the Williamson rule focusing on the way the defendant

claims his conduct violated the statute. (Murphy, supra, 52 Cal.4th at p. 91.) Therefore,

in this case, we focus on the first way of violating section 266a, taking the victim against

his or her will and without his or her consent.

16

however, cites no authority for his assertion that section 266a necessarily requires

movement of a substantial character, and we see no reason to import that element into the

statute.17

Essentially, Harper’s position is that we should interpret section 266a as requiring

a violation of section 207 (i.e., the commission of a kidnapping) with the added element

that the kidnapping be committed “for the purpose of prostitution.” But section 266a

uses neither the word “kidnapping” nor the word “carry,” it does not specify that there

must be “substantial” movement of the victim, and the statute does not otherwise refer to

section 207. Further, kidnapping is punishable by imprisonment for three, five, or eight

years, while a violation of section 266a is punishable for a term of 16 months, two years,

or three years. Of course, a “common theme” of criminal statutes is “increased

punishment for increased culpability.” (People v. Fuller (1975) 53 Cal.App.3d 417, 421.)

If, as Harper urges, a violation of section 266a (where the victim is taken without consent

rather than by fraud) necessarily constitutes a kidnapping in violation of section 207 plus

a criminal intent that the offense be committed for the purpose of prostitution, we would

normally expect the punishment for section 266a to be greater, not lesser, than the

punishment for kidnapping alone. But, under Harper’s argument that the Williamson rule

applies, we would have to conclude that the Legislature intended to punish the

commission of a kidnapping more leniently solely because the perpetrator committed the

17

We have seen that the kidnapping statute contains three distinct elements: (1)

the use of physical force or fear, (2) movement of the victim without the victim’s

consent, and (3) movement of the victim is substantial in character. (Jones, supra, 108

Cal.App.4th at p. 462; Martinez, supra, 20 Cal.4th at p. 237) These three elements would

appear to correspond to the language of section 207, subdivision (a), as follows:

“forcibly, or by any other means of instilling fear” goes to the first element of force or

fear, “steals or takes, or holds, detains, or arrests any person in this state” goes to the

second element of moving the victim, and “carries the person into another country, state,

or county, or into another part of the same county” goes to the third element of

asportation. (Italics added.) Thus, it is the phrase “carries the person into” at least

“another part of the same county” that signifies the movement is substantial in character.

The word “takes” as used in the Penal Code does not, by itself, imply substantial

movement as Harper claims.

17

kidnapping “for the purpose of prostitution.” We think a more sensible interpretation of

section 266a is that it does not require every element of kidnapping. Therefore, we reject

Harper’s argument that “takes” as used in section 266a necessarily requires movement of

the victim of a substantial character.

c. Kidnapping for Extortion in Violation of Section 209(a)

Section 209(a) provides in relevant part, “Any person who seizes, confines,

inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by

any means whatsoever with intent to hold or detain, or who holds or detains, that person

for ransom, reward or to commit extortion or to exact from another person any money or

valuable thing, or any person who aids or abets any such act, is guilty of a felony . . . .”

(Italics added.)

Before 2018, section 518 defined extortion as “the obtaining of property from

another, with his consent, or the obtaining of an official act of a public officer, induced by

a wrongful use of force or fear, or under color of official right.” (Former § 518, italics

added, as amended by Stats.1939, ch. 601, ch. 1, p. 2017; see, e.g., Cross v. Cooper

(2011) 197 Cal.App.4th 357, 387, fn. 18 [quoting the language of former section 518].)18

Section 518’s definition of extortion applies to kidnapping for extortion under section

209(a). (People v. Kozlowski (2002) 96 Cal.App.4th 853, 864 (Kozlowski); 1 Witkin &

Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against the Person, § 302, p. 1139.)

A violation of section 209(a) in which “no . . . person suffers death or bodily

harm,” is punishable by “imprisonment in the state prison for life with the possibility of

parole.” (§ 209(a).)

In this case, the prosecution’s theory for the kidnapping for extortion charges was

that Harper seized and held Doe 2 with the intent to extort money from Doe 2, where the

money was to be obtained by forced prostitution, that is, by inducing Doe 2 to work as a

18

As we discuss in section B., below, section 518 was amended effective January

1, 2018. The former version of section 518 applies because Harper’s criminal conduct all

occurred prior to 2018.

18

prostitute “by a wrongful use of force or fear.” (§ 518.) In her closing argument

addressing the kidnapping for extortion counts, the prosecutor reminded the jury of

Beck’s testimony19 and emphasized, “It’s all about money through the forced

prostitution.” (Italics added.)

The elements of section 209(a) do not correspond to the elements of section 266a.

So the question again is whether “ ‘it appears from the statutory context that a violation

of the special statute will necessarily or commonly result in a violation of the general

statute.’ ” (Murphy, supra, 52 Cal.4th at p. 86.) Here, we acknowledge we have little

guidance on what section 266a precisely requires and what a typical offense might look

like; there are few cases that discuss the statute and no CALCRIM jury instruction on the

offense. But for Harper’s Williamson argument to prevail, we would have to interpret the

phrase “for the purpose of prostitution” as used in section 266a to mean “for the purpose

of inducing the victim to commit acts of prostitution by wrongful use of force or fear with

the further intent to take property obtained through the victim’s forced prostitution.”

Harper offers no authority for this interpretation of section 266a, and we decline to read

the statute in that manner. Instead, we think section 266a could be violated by a person

taking a victim without consent and against the victim’s will for the purpose of

prostitution without the person using force or fear to obtain property from the victim.20

19

Beck testified that Harper was looking for Doe 2 because she owed him money

and ran away from him, and that Harper offered him money and drugs for information on

her location. Beck also testified that Doe 2 told him Harper was trying to force her to

work as a prostitute for him.

20

For example, a person could take a victim against the victim’s will and commit

an act of pandering against the victim in violation of section 266i (an offense which

includes “[p]rocur[ing] another person for the purpose of prostitution” (italics added)).

This conduct would constitute a violation of section 266a even though pandering does not

require the use of force or violence (e.g., People v. Almodovar (1987) 190 Cal.App.3d

732, 746), does not require that the panderer receive money (People v. Hashimoto (1976)

54 Cal.App.3d 862, 866), and does not require that the panderer intend to procure the

victim to engage in lewd acts with anyone other than the panderer himself (People v.

Jacobo (2019) 37 Cal.App.5th 32, 45). We do not mean to imply that a violation of

section 266a requires an act of pandering. (On the contrary, any act of solicitation in

19

Thus, we cannot say a violation of section 266a will necessarily or commonly result in a

violation of section 209(a).

Since kidnapping for extortion in violation of section 209(a) contemplates more

culpable conduct (the wrongful use of force or fear to obtain property) than is required

for a violation of section 266a, “it is reasonable to infer that the Legislature intended to

punish such conduct more severely.” (Murphy, supra, 52 Cal.4th at p. 87.) The

Williamson rule is, after all, a rule for inferring the Legislature’s intention, and we find it

difficult to believe the Legislature would have intended Harper’s conduct underlying

counts 10 and 12 to be prosecuted under section 266a to the exclusion of section 209(a).

Accordingly, we reject Harper’s challenge to his convictions of kidnapping for extortion

under the Williamson rule.

B. Sufficiency of the Evidence of Kidnapping for Extortion

Harper next argues insufficient evidence supports his convictions of counts 10 and

12 because the conduct relied on by the prosecution did not qualify as extortion under

section 518.

Section 209(a) “describes four different types of aggravated kidnapping: (1) for

ransom; (2) for reward; (3) to commit extortion; and (4) to exact from another person any

money or valuable thing. The crime of extortion (Pen. Code, § 518) does not require that

the fruits of the extortion be obtained from a third party.” (People v. Ibrahim (1993) 19

Cal.App.4th 1692, 1696 (Ibrahim).) Only the fourth type of kidnapping in violation of

section 209(a) (“to exact from another person any money or valuable thing”) requires

both a primary victim (the one who is seized) and a secondary victim (the one from

whom money or a valuable thing is exacted). (Ibid.; Kozlowski, supra, 96 Cal.App.4th at

p. 871.)

violation of section 647, subdivision (b)(2), would likely qualify as “for purpose of

prostitution” under section 266a.) Our only point is to suggest there may be many ways

to violate section 266a that do not amount to a violation of section 209(a).

20

The prosecution’s theory of kidnapping for extortion was that Harper twice seized

Doe 2 with the intent to obtain money from her through forced prostitution. On appeal,

Harper concedes he kidnapped Doe 2 “for purposes of prostituting her,” but he argues

neither Doe 2’s “body nor her sexual conduct” qualified as “property” under section 518

at the times Harper kidnapped Doe 2.21 Harper relies on an amendment to section 518

that went into effect on January 1, 2018. The statute now provides that extortion “is the

obtaining of property or other consideration from another . . .” and “ ‘consideration’

means anything of value, including sexual conduct . . . or an image of an intimate body

part . . . .” (§ 518, subds. (a) and (b), italics added.) Although he twice kidnapped Doe 2

to obtain “sexual conduct” from Doe 2, Harper argues these actions did not qualify as

kidnapping for extortion before the 2018 amendment to the extortion statute.

The Attorney General responds, “[Harper] did not kidnap [Doe 2] to have sex with

her (though he did that too) or even to have her engage in sexual conduct with others, but

to obtain money by hiring her out as a prostitute. Money has always qualified as property

for purposes of extortion. . . . The amendment to section 518 is directed to those who

seek to obtain sexual conduct as their end goal; such conduct, in and of itself, does not

constitute property, and thus did not previously qualify as an object of extortion. Here,

however, Jane Doe 2’s ‘sexual conduct’ was not the object of the extortion. The object of

the extortion was the money [Doe 2] could earn by working as a prostitute; her sexual

conduct was only an intermediate step necessary to acquire the money. This money was

capable of being extorted within the meaning of section 209, subdivision (a) at the time

of [Harper’s] crime[s].” We agree with the Attorney General. The prosecution’s theory

was that Harper’s purpose in kidnapping Doe 2 was to obtain money from her. As the

prosecutor argued to the jury, “It’s all about money through the forced prostitution.”

21

Again, at the relevant times, section 518 defined extortion as “the obtaining of

property from another, with his consent, or the obtaining of an official act of a public

officer, induced by a wrongful use of force or fear, or under color of official right.”

(Former § 518.)

21

(Italics added.) Using force or fear to obtain money from a victim with her consent

qualified as extortion prior to the amendment to section 518.

We note that Harper does not claim there was insufficient evidence that he

kidnapped Doe 2 to force her to work as a prostitute so he could obtain money. To the

contrary, he asserts he kidnapped her “to obtain prostitution services from Jane Doe 2.”

Because Harper ultimately wanted money from Doe 2’s forced prostitution services, his

conduct qualified as extortion prior to the amendment to section 518.22

C. The Jury Instruction on Kidnapping for Extortion

Harper next contends his convictions of kidnapping for extortion (counts 10 and

12) must be reversed because CALCRIM No. 1202 is an incorrect statement of law. The

Attorney General claims Harper forfeited this contention. But “the forfeiture rule ‘does

not apply when . . . the trial court gives an instruction that is an incorrect statement of the

law.’ ” (People v. Gomez (2018) 6 Cal.5th 243, 312 (Gomez).) Since that is what Harper

contends happened in this case, we address the merits of his contention. (See ibid.)

1. CALCRIM No. 1202

CALCRIM No. 1202 describes five elements of aggravating kidnapping in

violation of section 209(a). Harper argues the third element is incorrect. After describing

in the first two elements the conduct against a victim the defendant must commit,

CALCRIM No. 1202 provides, “3. The defendant did so (for ransom[,]/ [or] for

reward[,]/ [or] to commit extortion[,]/ [or] to get money or something valuable.”23

22

We also note that Harper argues there was insufficient evidence to support the

fourth type of aggravated kidnapping under section 209(a), “to exact from another person

any money or valuable thing.” The Attorney General does not dispute this, but the fourth

type of aggravated kidnapping was not alleged or argued by the prosecution. This

argument has no effect on the verdict.

23

The first element is that the defendant kidnapped, abducted, seized, confined,

concealed, carried away, inveigled, enticed, or decoyed another person; the second

element is that defendant held or detained the other person, or intended to hold or detain

that person; the fourth element is that the other person did not consent to being

kidnapped, abducted, seized, confined, concealed, carried away, inveigled, enticed, or

22

This sentence corresponds to the four different types of aggravated kidnapping

under section 209(a). The statutory language for the fourth type of aggravated

kidnapping is “to exact from another person any money or valuable thing” (§ 209(a),

italics added), which means there must be a primary kidnap victim and a secondary

victim (“another person”). (Ibrahim, supra, 19 Cal.App.4th at p. 1696; Kozlowski, supra,

96 Cal.App.4th at p. 871.) CALCRIM No. 1202 omits the phrase “from another person.”

Harper argues, “By omitting the requirement of a secondary victim, CALCRIM

[No.] 1202 relieves the prosecution of its burden of proving the element that the

kidnapper intended to use the kidnapping victim to exact some kind of consideration

from a third party or secondary victim.” We agree that CALCRIM No. 1202’s

description of the fourth type of aggravated kidnapping is incomplete, and we urge the

Advisory Committee on Criminal Jury Instructions to consider adding language to the

pattern instruction on the fourth type of aggravated kidnapping so that it is clear the

defendant must act for the purpose of exacting money or something valuable from

another person, that is, from a person other than the kidnap victim.

2. Jury Instruction Given

The relevant issue on appeal, however, is whether the challenged instruction given

to the jury was misleading to Harper’s prejudice in the context of the instructions as

whole and the arguments made at trial. (Gomez, supra, 6 Cal.5th at p. 313 [“ ‘ “When an

appellate court addresses a claim of jury misinstruction, it must assess the instructions as

a whole, viewing the challenged instruction in context with other instructions, in order to

determine if there was a reasonable likelihood the jury applied the challenged instruction

in an impermissible manner.” ’ ”]); People v. Young (2005) 34 Cal.4th 1149, 1202 [“The

reviewing court also must consider the arguments of counsel in assessing the probable

impact of the instruction on the jury”].)

decoyed; and the fifth element is that defendant did not actually and reasonably believe

the other person so consented. (See CALCRIM No. 1202.)

23

Here, the trial court gave an adapted version of CALCRIM No. 1202 that began,

“The defendant [is] charged in Counts Ten and Twelve with Kidnapping for Extortion or

Getting Money or Something Valuable in violation of Penal Code section 209(a)” and

provided, as relevant to Harper’s argument: “To prove that the defendant is guilty of this

crime, the People must prove beyond a reasonable doubt that: [¶] 1. The defendant

kidnapped, abducted, seized, confined, concealed, or carried away Jane Doe #2 . . .; [¶] 2.

The defendant held or detained Jane Doe #2 . . .; [¶] 3. The defendant did so to commit

extortion or to get money or something valuable . . . .” (Italics added.)

The instruction also provided a definition of extortion: “Someone intends to

commit extortion if he or she intends to: (1) obtain a person’s property with the person’s

consent and (2) obtains the person’s consent through the use of force or fear. When a

person is charged with kidnapping for Extortion the crime is completed when the

kidnapping or confinement was accomplished. It is not required that the People prove

that the intended extortion was accomplished.”

3. Analysis

The problem with the challenged instruction is that it contained additional

language, “or to get money or something valuable,” which is supposed to be given when

the prosecution relies on the fourth type of aggravated kidnapping, but the prosecution in

this case did not allege or argue that Harper committed this type of aggravated

kidnapping.

Harper argues the instruction had the effect of relieving the prosecution of its

burden of proving each element of the charged offenses beyond a reasonable doubt. This

claim is premised on the theory that the jury would have understood that it was being

instructed on two alternative theories of liability for the aggravated kidnapping charges of

counts 10 and 12, so that it could convict if it found Harper guilty of either kidnapping

for extortion or kidnapping to exact from another person any money or valuable thing.

The question is whether there is a reasonable likelihood the jury applied the instruction in

this manner. (Gomez, supra, 6 Cal.5th at p. 313.)

24

Harper claims the jury only could have understood the sentence as describing two

different theories of liability for aggravated kidnapping. The Attorney General maintains

the jury most likely understood the phrase “or to get money or something valuable” as a

partial explanation of extortion, not as an alternative theory of liability. We believe the

Attorney General has the better argument.

First, the jury was never told that there are four different types of aggravated

kidnapping, so the jury had no reason to think that more than one type of aggravated

kidnapping might be applicable in the case. Second, the jury’s understanding of the

instruction would have been informed by the attorneys’ arguments, and the prosecutor

and the defense attorney in this case discussed only kidnapping for extortion in their

closing arguments.24

Third, the word “or” has more than one meaning. Although “or” is used to

indicate “an alternative between different or unlike things, states, or actions,” the word

“or” can also be used to indicate “the synonymous, equivalent, or substitutive character

of two words or phrases,” such as in the example “lessen or abate.” (Webster’s Third

New Internat. Dict. (1961) p. 1585.) Considering the sentence in the context of the

overall instructions and argument, the jury would have understood the initial “or” in the

sentence “The defendant did so to commit extortion or to get money or something

valuable” as indicating a synonymous, equivalent or substitutive phrase. That is, the jury

would have understood the phrase “to get money or something valuable” to be an

equivalent or substitute phrase for the previous phrase “to commit extortion,” not an

alternative theory of liability for aggravated kidnapping.

24

Harper claims the prosecutor relied on the challenged jury instruction to argue

he could be guilty of the fourth type of aggravated kidnapping while omitting the

requirement that money be extracted from another person. We disagree with Harper’s

characterization of the prosecutor’s closing argument. The prosecutor argued only that

Harper committed kidnapping for extortion. She never suggested Harper could be found

guilty of counts 10 and 12 absent proof beyond a reasonable doubt that he seized and held

Doe 2 to commit extortion. Likewise, defense counsel discussed only kidnapping for

extortion because that was the sole type of aggravated kidnapping at issue.

25

Given the evidence presented at trial and the arguments made by counsel, the jury

would not have interpreted the challenged instruction as describing two different theories

of liability for aggravated kidnapping, one of which was never mentioned at trial. As the

Attorney General observes, “Such an interpretation would be nonsensical in the context

of this case.” We conclude there is no reasonable likelihood the jury applied the

challenged instruction in an impermissible manner (Gomez, supra, 6 Cal.5th at p. 313),

and, consequently, we reject Harper’s argument that his convictions of kidnapping for

extortion must be reversed because the jury instruction given included an incorrect

statement of law. Stated differently, we are satisfied beyond a reasonable doubt that the

challenged instruction did not contribute to the jury’s verdict on counts 10 and 12. (See

ibid., citing People v. Wilson (2008) 44 Cal.4th 758, 803–804; Wilson at p. 804 [finding

technical error in written instructions harmless beyond a reasonable doubt].)

D. Sufficiency of the Evidence of the Second Kidnapping (Counts 12 and 21)

Count 12 (kidnapping for extortion) and count 21 (kidnapping) were based on Doe

2’s account of Harper taking her from a drug house on Peppertree Court in Antioch. Doe

2 later escaped from Harper at a gas station with the help of an acquaintance named

Johnny. This was the second kidnapping by Harper that Doe 2 testified about.25

On appeal, Harper argues there was insufficient evidence to support these counts,

first, because the prosecutor misdescribed the evidence in her closing argument and,

second, because there was simply insufficient evidence that Harper kidnapped Doe 2

from Peppertree Court. We consider these arguments in reverse order.

1. Evidence of the Second Kidnapping

After Doe 2 testified about the first kidnapping, Doe 2 mentioned there were six

other times Harper attempted to kidnap her. The prosecutor then asked, “And was there

another time that he was successful in kidnapping you again?” Doe 2 said yes and

25

In the first kidnapping (counts 10 and 20), Harper pulled up in a white pickup

truck and grabbed Doe 2 off the street in Antioch. He put something hard to her back,

and Doe 2 saw that he had a gun. Harper took her to the Jack London house and raped

her.

26

continued, “I was at this drug house that is on—Peppertree Court. And I was there

getting high or whatever. And he showed up. And I didn’t—I didn’t feel safe there and I

didn’t feel like anybody would even try to protect me there. So I didn’t want anybody

getting hurt. [¶] He came in there so I went with him. And that’s—that’s when he

brought up again that he was going to sell me to the man from Vallejo . . . .”

Doe 2 testified that Harper drove her to a location for an act of prostitution. Chop

was there, too, and he took a hundred dollars from the prostitution client. Doe 2 was not

sure if the client handed Chop a “fake hundred or if Chop switched it out with the fake

hundred,” but Chop gave a counterfeit hundred dollar bill to Harper. Harper was angry

that the bill was counterfeit. He drove to a gas station and asked Doe 2 to get change for

the counterfeit bill from somebody. Doe 2 was wearing a “skimpy skirt” and heels, and

she was dressed this way “Because [Harper] was going to sell me.”

Doe 2 testified she saw Johnny at the gas station. She told him that Harper was

trying to sell her to a man in Vallejo and asked for help. Johnny told her, “Jump in the

car and don’t mess up my speaker,” and Doe 2 got in the back of his Bronco. Doe 2 was

wearing a coat with a hood and she put the hood up and covered herself with a wet,

greasy towel. She testified that Harper and Chop looked around the gas station for her.

Harper asked Johnny if he’d seen “a little girl about this height,” and Johnny said no and

turned up the music playing in his car. Harper looked in the tinted window of Johnny’s

car. Johnny drove away and then Doe 2 went “[b]ack to Bruce’s house.” (Doe 2 had

gone to his house after the first time Harper kidnapped her.)

In cross-examination, Doe 2 further testified, “So you have the gas station incident

occurred [sic26], I was at the house on Peppertree Court. And he showed up there. With

the previous—knowing that he carries a gun and things like that in the previous traumas,

he came in the house and was looking for me and I went with him. I didn’t want anybody

to get hurt. And then he said that he had a date and that’s when Chop was there as well

26

This is how the reporter’s transcript reads. It seems likely that Doe 2 said, “So

after the gas station incident occurred . . . .”

27

and the Mexican man came.” (Apparently, the Mexican man was the person who paid

for a sex act with Doe 2.) Doe 2 also testified that this incident occurred after the first

kidnapping.

2. Sufficiency of the Evidence

Harper argues Doe 2’s testimony was insufficient to support counts 12 (aggravated

kidnapping for extortion) and 21 (simple kidnapping) because she did not expressly

testify that Harper “did or said anything that could be characterized as seizing, confining,

inveigling, enticing, decoying, abducting concealing, or carrying her away” and she “did

not testify that he used force or instilled fear in her to compel her to come with him, or

that he ordered her to go with him.”27 He claims the evidence here established only that

he showed up at the drug house and nothing more. We disagree. Even without express

testimony that Harper ordered or forced Doe 2 to go with him, there was sufficient

evidence to support counts 12 and 21.

“ ‘When the sufficiency of the evidence to support a conviction is challenged on

appeal, we review the entire record in the light most favorable to the judgment to

determine whether it contains evidence that is reasonable, credible, and of solid value

from which a reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt.’ [Citation.] Our review must ‘presume in support of the judgment the existence

of every fact the jury could reasonably have deduced from the evidence.’ [Citation.] . . .

[O]ur task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire

whether the evidence might ‘ “be reasonably reconciled with the defendant’s innocence.”

’ [Citations.] The relevant inquiry is whether, in light of all the evidence, a reasonable

trier of fact could have found the defendant guilty beyond a reasonable doubt.” (Gomez,

supra, 6 Cal.5th at p. 278.)

27

Recall that aggravated kidnapping under section 209(a) requires the defendant to

“seize[], confine[], inveigle[], entice[], decoy[], abduct[], conceal[], kidnap[] or carr[y]

away” the victim and simple kidnapping under section 207 requires the defendant to use

force or “any other means of instilling fear” to “steal[] or take[], or hold[], detain[], or

arrest[]” the victim (§ 207, subd. (a)).

28

For kidnapping under section 207, “[t]he requisite force or compulsion need not

consist of the use of actual physical force or of express threats; the taking is forcible

where it is accomplished through the giving of orders which the victim feels compelled to

obey because he fears harm or injury from the accused, and his apprehension is not

unreasonable under the circumstances.” (People v. Dagampat (1959) 167 Cal.App.2d

492, 495 (Dagampat).) Further, “[e]ven if the victim’s initial cooperation is obtained

without force or the threat of force, kidnaping occurs if the accused ‘ “subsequently

restrains his victim’s liberty by force and compels the victim to accompany him

further.” ’ ” (People v. Alcala (1984) 36 Cal.3d 604, 622 (Alcala)), abrogated by statute

on another ground, as recognized in People v. Hovarter (2008) 44 Cal.4th 983, 1017, fn.

14.)

Alcala demonstrates that circumstantial evidence can be sufficient evidence of the

element of force or fear necessary for simple kidnapping. In that case, defendant Alcala

was found guilty of murder and kidnapping after the remains of the 12-year-old victim

were found in a remote area. Evidence showed that on the day the victim went missing,

Alcala approached the victim and her friend at the beach and took their pictures with their

permission. Alcala walked or ran away quickly when an adult acquaintance approached.

The victim and her friend went to the friend’s apartment, the victim then left by bicycle

to go to her ballet lesson, but the victim never arrived at her scheduled lesson. (Alcala,

supra, 36 Cal.3d at pp. 613–616.) A forest service worker also testified that she saw a

man and a small girl with their backs to her on the evening the victim disappeared. The

man appeared to be forcefully steering the girl up the gully. This sighting occurred near

where the victim’s remains were later found. (Id. at p. 616.)

On appeal, Alcala argued there was no proof of force or fear to support the

kidnapping conviction, but our high court rejected this argument. Citing evidence that

the victim “was a responsible child, highly motivated to meet her late-afternoon ballet

appointment,” the forest worker’s “claim[] to have seen her in defendant’s company at

the scheduled time, some 40 miles distant from both her home and the dance studio,” the

fact that Alcala was a virtual stranger to the victim, and a witness’s testimony that the

29

victim found Alcala “strange,” the court concluded, “The jury could reasonably infer that

[the victim] had not accompanied him voluntarily.” (Alcala, supra, 36 Cal.3d at p. 622.)

Dagampat is also instructive. There, kidnap victim Stanley witnessed Contreras

stab a person. A few days later, Stanley was outside walking when three boys in a

convertible pulled up to him and stopped. Defendant Dagampat was the driver, Contreras

sat in the back seat, and a third boy, Valencia, got out of the car and went to a drug store.

Dagampat told Stanley, “ ‘Get into the car. I want to talk to you about the fight.’ ”

(Dagampat, supra, 167 Cal.App.2d at p. 493.) Contreras and Dagampat gave Stanley a

dirty look, and Valencia approached Stanley from behind. Stanley testified that he went

with the boys because he was scared, although they displayed no weapons and made no

threats. After Stanley got in the car, Contreras asked if he had witnessed the stabbing.

When Stanley said yes, Contreras and Valencia started hitting him. The car stopped in an

alley, and the boys continued to beat Stanley until he was able to run away. (Ibid.)

Stanley admitted he did not ask to be let out of the car and did not attempt to leave the car

or call for help. (Id. at p. 494.)

The Court of Appeal held the evidence and reasonable inferences “amply

established a forcible taking.” (Dagampat, supra, 167 Cal.App.2d at p. 495.) The court

explained, “It is contended that Stanley had no reason for fear except the ‘dirty looks’ he

observed and that these could not reasonably induce fear of harm. But there was much

more for Stanley to think about. He was outnumbered and with one of the group behind

him. He was faced by another who was a knife carrier and who might have a knife in his

belt. They wished to talk with him as a supposed witness to a fight. It is difficult for us

to see how it was unreasonable for Stanley to fear harm that might come from his refusal

to enter the car in view of the fact that he was assaulted soon after entering it.” (Ibid.)

Here, Doe 2 had seen Harper and his associates jump Chavez, which “put some

fear” in her. She was with Harper when he grabbed Doe 5 off the street and made her

sign a contract that she owed him money. Harper had made a woman cut Doe 2’s hair

while he recorded the incident. More importantly, by the time he showed up at the drug

house, Harper had already raped Doe 2 more than once, he had already kidnapped her,

30

and Doe 2 had seen him with a gun on more than one occasion. Doe 2 testified she went

with Harper from the drug house because she “didn’t want anybody getting hurt” and

Harper mentioned “again that he was going to sell [her] to the man from Vallejo.” This

was evidence from which the jury could infer that Doe 2 did not go with Harper

voluntarily and therefore Harper must have used force or fear to induce her to accompany

him. (See Alcala, supra, 36 Cal.3d at p. 622.) Evidence that Harper expressly threatened

Doe 2 was not required to establish the use of force or fear given what Harper had done

to Doe 2 and others previously. (See Dagampat, supra, 167 Cal.App.2d at p. 495.)

3. The Prosecutor’s Closing Argument

Harper also argues counts 12 and 21 must be reversed because the incidents the

prosecutor relied on to support those counts “did not occur.” His argument is based on

the prosecutor’s closing argument, in which she gave a garbled recounting of the second

kidnapping testified to by Doe 2. Even so, the prosecutor’s misdescription of some of the

facts of the second kidnapping does not warrant reversal of Harper’s convictions.

The prosecutor discussed the evidence supporting counts 12 and 21 in her closing

argument as follows: “In your next set of crimes will be the second kidnapping of (*Jane

Doe 2) off the streets. Again, we have the kidnapping for extortion and the kidnapping

itself. The [sic] Derrick Harper seizing her with the intent that she be basically forced to

give him money from prostitution again and that he moves her.

“And with regard to those counts (*Jane Doe 2) testified to you that she was by the

bingo hall in Antioch in the FoodMaxx parking lot. That Mr. Harper pulled up in the

gold Lexus with his hands on his lap, got out, ordered her into the car. He took her back

to the Jack London house and that the following day he had her dress in high heels and

short skirt and took her into Brentwood. There was a forced act of prostitution there.

“And then there was the exchange with Chop with counterfeit hundred dollars

[sic] bill and with Mr. Harper telling (*Jane Doe 2) to get change for that hundred dollar

bill at the gas station. When she seen [sic] Johnny, one of the [W]oods, if you will, one

of the white boys and she hides under the greasy towels in the back of his truck to escape.

So that’s our second kidnapping for extortion and kidnapping.”

31

But Doe 2 never mentioned a bingo hall, a FoodMaxx parking lot, or a gold Lexus

when she testified about the second kidnapping. She did not testify that Harper ordered

her into his car or took her back to the Jack London house. Nor did Doe 2 testify that

Harper took her to Brentwood.28

Nevertheless, the kidnapping events to which the prosecutor was referring would

have been clear to the jury. The prosecutor correctly identified the salient details that

Doe 2 was dressed in “high heels and short skirt” (Doe 2 testified she was wearing heels

and a “skimpy skirt”), that Doe 2 was forced to commit an act of prostitution, that there

was an exchange with Chop involving a counterfeit hundred dollar bill, that Harper took

her to a gas station to get change, and that Doe 2 escaped from the gas station with

Johnny by hiding under a greasy towel in the back of his truck (Doe 2 testified she

“covered [herself] with a wet, greasy towel that was back there”).29

We also note that in cross-examination of Doe 2, defense counsel referred to the

second kidnapping as the “gas station” incident and asked whether it occurred after the

28

In our review of Doe 2’s testimony, we found no mention of a bingo hall or

FoodMaxx parking lot. Doe 2 did testify that Harper drove a Lexus, but that came up

when she was describing the time he and his associates jumped Chavez. It was in the

first kidnapping incident, not the second one, that Harper told her to get in his truck and

took her to the Jack London house. Witness Hammond, not Doe 2, testified that Harper

drove up in a gold Lexus with a gun on his lap and told her to get in his car. Hammond

mentioned seeing Harper at a bingo hall. Doe 2 testified that Gordon, not Harper, took

her to a “date” (i.e., act of prostitution) in Brentwood.

29

Harper points out that the prosecutor described Johnny as “one of the [W]oods,”

and he argues there was no evidence of this. But there was evidence from which it could

be inferred the man who helped Doe 2 get away from Harper at the gas station was

associated with the Woods. Doe 2 testified she was hanging out with a White criminal

street gang, the CoCo Country Boys (also referred to as Peckerwoods or Woods), because

she thought they would protect her from Harper to some extent. During cross-

examination, defense counsel asked about houses associated with the CoCo Country

Boys, and Doe 2 responded, “Bruce’s house. Johnny’s house.” Given that Johnny

helped Doe 2 escape from Harper, it could be inferred this was the same Johnny whose

house was associated with the CoCo Country Boys, the gang from whom Doe 2 sought

protection from Harper.

32

Jack London incident (the first kidnapping). Doe 2 adopted defense counsel’s

nomenclature and testified the “gas station incident” was when she “was at the house on

Peppertree Court.” Thus, when the prosecutor described the second kidnapping as

relating to the events at the gas station, the jury would have recognized this was the

kidnapping that began at the drug house on Peppertree Court.30

Moreover, “the prosecutor’s argument is not evidence and the theories suggested

are not the exclusive theories that may be considered by the jury.” (People v. Perez

(1992) 2 Cal.4th 1117, 1126.) We have already concluded there was sufficient evidence

to support counts 12 and 21. Our conclusion does not change merely because the

prosecutor’s description of the evidence was off in some of the details.

For his contrary argument, Harper relies on People v. Brown (2017) 11

Cal.App.5th 332, 341 (Brown), in which the Court of Appeal recognized “ ‘if one

criminal act is charged, but the evidence tends to show the commission of more than one

such act, “either the prosecution must elect the specific act relied upon to prove the

charge to the jury, or the court must instruct the jury that it must unanimously agree that

the defendant committed the same specific criminal act.” ’ ” The purpose of this rule is

to protect the constitutional right to a unanimous jury. (Ibid.)

The Brown court further held, “when the prosecution has made an election, under

circumstances where a unanimity instruction would otherwise have been required, then

we, too, are bound by that election. Thus, if the defendant raises a substantial evidence

challenge, our review is limited to whether there is sufficient evidence to support a

conviction based exclusively on the act elected by the prosecution. [Citation.]

Otherwise, we may only be finding sufficient evidence to support a nonunanimous

verdict.” (Brown, supra, 11 Cal.App.5th at pp. 341–342.)

30

And one of the jury’s questions during deliberations further shows it understood

the second kidnapping involved the drug house on Peppertree Court. The jury sent a note

asking the court reporter to read Doe 2’s testimony about count 12 “From the Peppercorn

Drughouse.” Given Doe 2’s testimony, the jury’s question could only have referred to

the kidnapping from the drug house at Peppertree Court.

33

In Brown, evidence was presented of two potential rapes by defendant Brown, one

rape was committed by four men in a bedroom and a second rape may have occurred in a

vacant apartment after the victim passed out; Brown was found guilty of rape in concert

and forcible rape, among other offenses. (Brown, supra, 11 Cal.App.5th at pp. 334, 336–

337.) The Court of Appeal found there was sufficient evidence that force was used in

connection with the rapes in the bedroom to support the rape in concert and forcible rape

convictions (and there was sufficient evidence Brown was one of the four men who

committed those rapes), but there was not sufficient evidence of the use of force or fear in

connection with the rape in the vacant apartment. (Id. at pp. 339–340.)

At trial, however, the prosecutor in closing argument posited only that Brown

arrived after the rapes in the bedroom (so he was not one of the four men who committed

those rapes) and that he took the victim to the vacant apartment and raped her there.

(Brown, supra, 11 Cal.App.5th at p. 340.) The Brown court reasoned, “In closing

argument, the prosecutor elected to rely solely on a rape in the vacant apartment. . . . As a

result of that election, . . . in reviewing the sufficiency of the evidence of force, we are

limited to considering a rape in the vacant apartment.” (Id. at p. 342.) The court reversed

Brown’s convictions of rape in concert and forcible rape because there was insufficient

evidence to support those convictions in connection with the rape in the vacant

apartment, the incident the prosecutor elected to rely on. (Ibid.)

We fail to see how Brown applies in this case. Here, the evidence showed two

kidnappings, and Harper was charged with both. The purpose of the Brown rule is to

ensure a unanimous verdict. But there is no risk that the jury came to a nonunanimous

verdict here because the jury found Harper guilty of both sets of kidnapping charges.31

31

To be clear, we do not believe there is any likelihood that the jury was confused

about which kidnapping evidence was connected with which counts. The prosecutor in

her closing argument correctly described the evidence supporting the first kidnapping,

recounting that Harper approached Doe 2 in a white truck when she was walking in

Antioch at night, that he put something hard to her back and told her to get in the truck,

that he took her to the Jack London house and raped her, and that Doe 2 escaped by

hopping a back fence. The jury would not have been confused about which evidence was

34

E. Firearm Enhancement

The jury found true the enhancement allegation that Harper personally used a

handgun in the commission of count 12 (the second kidnapping for extortion), pursuant to

section 12022.53, subdivision (b). The Attorney General concedes this finding must be

reversed for lack of evidence. We accept the concession because Doe 2 did not testify

that Harper used a gun when he took her from the drug house on Peppertree Court and

later had her dress in a skimpy skirt and heels for an act of prostitution. The true finding

on the firearm enhancement allegation for count 12 is reversed, and the 10-year

enhancement the trial court imposed under section 12022.53 is stricken.32 Although the

trial court announced at sentencing that it was imposing a 10-year enhancement under

section 12022.53 as to count 12, the minute order and abstract of judgment inaccurately

show that the firearm enhancement is tied to count 15. Since we are remanding the case

for resentencing (see below), we simply note that no 10-year enhancement under section

12022.53 may be imposed at resentencing.

F. Senate Bill 1393

The trial court sentenced Harper in August 2017. “Prior to 2019, trial courts had

no authority to strike a serious felony prior that is used to impose a five-year

enhancement under section 667, subdivision (a)(1).” (People v. Jones (2019) 32

connected with the first kidnapping (counts 10 and 20) and which evidence was

connected with the second kidnapping (counts 12 and 21). (And see fn. 30.) But even

assuming for the sake of argument that some of the jurors were confused on this issue,

Harper still received unanimous verdicts because the jury found him guilty of both sets of

kidnappings. It would not matter if some of the jurors mistakenly thought the drug house

on Peppertree Court/gas station incident was the first kidnapping and the kidnapping

involving a white truck and the Jack London house was the second kidnapping because

those jurors still found him guilty of both sets of crimes.

32

Harper argues in the alternative that we should remand the case for resentencing

under Senate Bill No. 620 (2017–2018 Reg. Sess.) (Stats. 2017, ch. 682), which “vests

sentencing courts with discretion to strike or dismiss firearm enhancements” (People v.

McDaniels (2018) 22 Cal.App.5th 420, 423). Because we are reversing the only firearm

enhancement imposed in this case, this argument is moot.

35

Cal.App.5th 267, 272.) Senate Bill No. 1393 (2017–2018 Reg. Sess.) (S.B. 1393), which

became effective January 1, 2019, granted trial courts such authority. (Ibid.; Stats. 2018,

ch. 1013, §§ 1, 2.)

Harper seeks remand for the trial court to exercise its newly-authorized discretion

under S.B. 1393. The Attorney General agrees the new sentencing law applies

retroactively to Harper, but he argues remand is not necessary in this case because the

record shows that remand would be futile. In an abundance of caution, however, we will

remand for resentencing. (See People v. McDaniels, supra, 22 Cal.App.5th at pp. 428-

429 [“nothing in the record rules out the possibility that the court would exercise its

discretion” to strike an enhancement that was mandatory at the time of sentencing].) We

express no opinion on how the court should exercise its discretion on remand.

G. Five-year Enhancements for Human Trafficking Offenses

The trial court imposed an additional 10 years (two five-year terms) for prior

serious felonies for count 1 (conspiracy to commit human trafficking) and for count 15

(human trafficking of Doe 1). The parties agree that these enhancements must be

stricken because human trafficking is not a “serious felony” for purposes of section 667,

subdivision (a)(1), which provides for the five-year enhancements. A “serious felony”

under section 667 means a serious felony listed in section 1192.7, subdivision (c) (§ 667,

subd. (a)(4)), but human trafficking and conspiracy to commit human trafficking are not

on the list of serious felonies (§ 1192.7, subd. (c)). Accordingly, the two five-year

enhancements under section 667 imposed for count 1 and the two five-year enhancements

under section 667 imposed for count 15 are stricken.

H. Corrections to the Record

Finally, we decline to order various corrections to the clerk’s minutes and abstract

of judgment requested by Harper. We see no reason to order the court to correct the

current abstract of judgment given that we are remanding for resentencing. When Harper

is resentenced under S.B. 1393 on remand, no firearm enhancement under section

12022.53 will be imposed because we are reversing the finding of personal use of a

firearm. Thus, it does not matter that the current abstract of judgment inaccurately

36

reflects that the enhancement is attached to count 15 rather than count 12. And, while we

agree with Harper that the clerk’s minutes should accurately reflect the sentence

pronounced by the court, it strikes us as a waste of judicial resources to order the clerk to

correct the minutes of the August 2017 sentencing when Harper is going to be

resentenced.

DISPOSITION

The true finding on the firearm enhancement allegation for count 12 is reversed.33

The 10-year enhancement imposed under section 12022.53 is stricken. The

enhancements for prior serious felonies are stricken as to count 1 (conspiracy to commit

human trafficking) and count 15 (human trafficking). The matter is remanded for

resentencing pursuant to sections 667, subdivision (a), and 1385, subdivision (b), as

amended by S.B. 1393. The judgment is otherwise affirmed.

33

We again note that the abstract of judgment filed November 3, 2017, incorrectly

reflects that the firearm enhancement was attached to count 15. To be clear, the only

firearm enhancement in this case was attached to count 12, and we are reversing it. The

jury did not find a firearm enhancement for count 15. When Harper is resentenced, there

should be no firearm enhancement attached to any count.

37

_________________________

Miller, J.

We concur:

_________________________

Richman, Acting P.J.

_________________________

Stewart, J.

A152284, People v. Harper

38

Trial Court: Superior Court of Contra Costa County

Trial Judge: Hon. Charles B. Burch

Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and

Appellant

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,

Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan and Moona

Nandi, Deputy Attorneys General, for Plaintiff and Respondent

A152284, People v. Harper

39