Opinion

People v. Waqa

Court: California Court of Appeal
Filed: Jun 14, 2023
Status: Published
Cited by: 0 cases
Authority: More cited than 23.5%

The opinion

Filed 6/14/23

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

A163761

RUSIATE KOLILOA WAQA, (Sonoma County

Super. Ct. No. SCR-730833-1)

Defendant and Appellant.

A jury convicted defendant Rusiate Waqa of forcible rape after he

sexually assaulted a woman in a public restroom. Because Waqa moved the

victim from the restroom’s small stall to its large stall before raping her, the

jury also found true an aggravated kidnapping circumstance under the One

Strike law, Penal Code section 667.61 (the aggravated kidnapping

circumstance), requiring a sentence of 25 years to life in prison for the rape.1

(See § 667.61, subds. (a), (d)(2).)

On appeal, Waqa claims the aggravated kidnapping circumstance

cannot stand because there was insufficient evidence of its asportation

element, which requires that “the movement of the victim substantially

increased the risk of harm to the victim over and above that level of risk

necessarily inherent in the underlying offense.” (§ 667.61, subd. (d)(2).)

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

opinion is certified for publication with the exception of part II.B.

1 All further statutory references are to the Penal Code.

Although we agree with him, that does not end the matter because the One

Strike law requires a term of 15 years to life for qualifying sexual offenses if

the defendant commits a simple kidnapping of the victim under section 207

(the kidnapping circumstance). (§ 667.61, subds. (b), (e)(1).) By finding the

aggravated kidnapping circumstance true, the jury necessarily determined

that Waqa committed a simple kidnapping of Doe, a finding that was

supported by substantial evidence.

We hold that where there is insufficient evidence of a circumstance

supporting a 25-year-to-life term under the One Strike law but sufficient

evidence of a lesser included circumstance supporting a 15-year-to-life term,

an appellate court may reduce the sentence to the lesser term. We therefore

modify the judgment here to reduce the 25-year-to-life term based on the

aggravated kidnapping circumstance under section 667.61, subdivision (d)(2)

(section 667.61(d)(2)), to a 15-year-to-life term based on the kidnapping

circumstance under section 667.61, subdivision (e)(1) (section 667.61(e)(1)).

We reject Waqa’s remaining claim of prosecutorial error, order the correction

of the conviction date in the abstract of judgment, and otherwise affirm.2

FACTUAL AND PROCEDURAL

BACKGROUND

Around 7:45 a.m. on August 16, 2019, 55-year-old Jane Doe arrived at

Howarth Park in Santa Rosa, where she regularly walked for exercise. She

2 Waqa also contends the trial court erred by giving a modified version

of CALCRIM No. 3175, the instruction on the aggravated kidnapping

circumstance. We need not address this claim because it involves an element

of the aggravated kidnapping circumstance—a substantial increase in the

risk of harm—that is not an element of the kidnapping circumstance under

section 667.61(e)(1). In turn, we also need not address Waqa’s claim of

cumulative error, which is based on only this alleged instructional error and

the alleged prosecutorial error.

parked her car in a small lot, facing the park. She got out of the car and went

to use the public restrooms, which are in a standalone building a short

distance from the parking lot. The men’s restroom faces the parking lot and

the women’s restroom is on the building’s back side.

Doe entered the women’s restroom, which has two stalls, a small one

and a larger one for people with disabilities.3 The restroom’s outer door is

made of open bars, and it was propped open that morning. Upon entering the

restroom, one must turn right and go around a corner to reach the stalls.

The two stalls are partially formed by partitions that do not extend all

the way to the floor or ceiling of the restroom. The small stall is a rectangle

made up of a structural wall in the back, two partitions perpendicular to the

back wall, one of which is shared with the larger stall, and a stall door

parallel to the back wall. The large stall is a right-angled trapezoid made up

of the partition it shares with the small stall, a stall door that continues in

line with this partition, and three structural walls.4 One of these walls does

not extend all the way to the floor or ceiling of the restroom, creating gaps to

the outdoors. The two stalls’ doors form an “L,” so when exiting the small

stall, the large stall’s door is immediately to one’s left. Like the stall

partitions, both stall doors do not extend all the way to the floor or ceiling.

Doe did not see anyone else in the women’s restroom when she went in.

She entered the small stall, closed and locked the door behind her, and used

3 A police officer’s body-camera recording of the women’s restroom

made soon after the rape was admitted and played for the jury. We reviewed

this recording.

4 Not all of the restroom’s dimensions were measured, but a police

officer testified that the large stall is seven and a half feet long and five feet

wide, and its door opening is also about five feet wide. The small stall is

about three feet long and two and one third feet wide, which is also about the

width of its door opening.

the toilet. After finishing, she opened the stall door, which opens inward, and

saw a man later identified as 23-year-old Waqa. He was facing her from

about three feet away, blocking her from exiting the stall. Doe testified that

Waqa “was big, both height-wise . . . [and] horizontally,” and “by far” larger

than she.5

“[S]cared out of [her] wits,” Doe tried to “dart for the door,” but she was

unable “to get past” Waqa. He grabbed her arm and held her as, now outside

the small stall, she screamed and struggled. Doe testified that Waqa told her

“he was going to kill [her]” and made a “finger gun gesture.”

Waqa then “dragged” Doe, who was still screaming and struggling, into

the large stall. He locked the stall door behind them and pushed her against

the wall facing the stall door. Waqa then pushed Doe to the ground. As she

attempted to “reach for the [stall] door to exit,” he grabbed her and dragged

her backward, toward the toilet. She ended up on the ground in the stall’s

back corner, next to the toilet on the side farthest from the restroom exit.

Waqa pulled down Doe’s pants and underwear, pulled down his own

pants, and raped her. Doe testified that she had her eyes closed and “was

gasping for breath” as he laid on her, feeling as if she was being

“asphyxiated.” During the rape, Doe felt both Waqa’s hands and penis inside

her vagina, and he ejaculated into her. DNA testing later confirmed the

presence of Waqa’s semen in Doe’s vagina. Her arm, chest, and thigh were

significantly bruised.

5 The jury saw Doe in person, and photographs in the record suggest

she is of smaller stature, but no evidence was presented of her specific height

or weight. One witness testified that at the time of the crime, Waqa was at

least six feet tall and over 200 pounds.

After the rape, Waqa left the women’s restroom. Doe then left as well,

returned to her car, and drove home. Around 8:15 a.m., she called 911 and

reported the crime.

The subsequent police investigation revealed that Waqa approached

two other women in the Howarth Park parking lot, one before Doe’s rape and

one after, and persistently but unsuccessfully propositioned both women for

sex. One of those women photographed the license plate of the car Waqa

drove away from the park, which allowed the police to locate and eventually

arrest him. Doe and one of these women identified him in photographic line-

ups, and the third woman identified him at trial. Doe also identified him in

an infield show-up.

Waqa was charged with a felony count of forcible rape and an

accompanying aggravated kidnapping circumstance under the One Strike

law.6 The jury convicted him of the charge and found true the aggravated

kidnapping circumstance. As required under the One Strike law, the trial

court then sentenced him to 25 years to life in prison for the rape.

6 The rape charge was brought under section 261, subdivision (a)(2),

and an enhancement for “AGGR[A]VATED KIDNAPPING” was alleged

under section 667.61, subdivisions (a) and (e). In fact, the enhancement

should have been alleged under subdivisions (a) and (d), as proving one of the

circumstances listed in subdivision (d) requires a sentence of 25 years to life

under subdivision (a), whereas proving one of the circumstances listed in

subdivision (e) requires a sentence of 15 years to life under subdivision (b).

Nonetheless, the parties and trial court proceeded as if the greater

enhancement was charged, and Waqa does not claim that the information

failed to give him “fair notice of the qualifying statutory circumstance . . .

being pled, proved, and invoked in support of One Strike sentencing.” (People

v. Mancebo (2002) 27 Cal.4th 735, 753–754 (Mancebo).)

II.

DISCUSSION

A. The Aggravated Kidnapping Circumstance Cannot Stand Because

There Was Insufficient Evidence that the Movement of Doe

Substantially Increased Her Risk of Harm.

Waqa claims that the aggravated kidnapping circumstance must be

reversed because there was insufficient evidence either that the movement of

Doe was substantial or that it substantially increased her risk of harm. We

disagree with the first point, but agree with the second. There was

substantial evidence that forcing Doe into the large stall involved movement

of a substantial distance (i.e., enough evidence to support the kidnapping

circumstance), but there was insufficient evidence that the movement

substantially increased her risk of harm (i.e., not enough evidence to support

the aggravated kidnapping circumstance), even if it may have slightly

increased the risk in some respect. Thus, we reduce the sentence to 15 years

to life based on the lesser kidnapping circumstance.7

1. General legal standards

In evaluating a claim of insufficient evidence, “ ‘we review the whole

record to determine whether . . . [there is] substantial evidence to support the

verdict . . . such that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt. [Citation.] In applying this test, we review the

evidence in the light most favorable to the prosecution and presume in

support of the judgment the existence of every fact the jury could reasonably

have deduced from the evidence.’ ” (People v. Manibusan (2013) 58 Cal.4th

40, 87.) “ ‘ “ ‘If the circumstances reasonably justify the trier of fact’s

7 At our request, the parties submitted supplemental briefing on the

propriety of this disposition, as well as the error in the information discussed

in footnote six, supra.

findings, the opinion of the reviewing court that the circumstances might also

be reasonably reconciled with a contrary finding does not warrant a reversal

of the judgment.’ ” ’ ” (In re George T. (2004) 33 Cal.4th 620, 631.) Thus, we

must affirm “ ‘ “unless it appears ‘that upon no hypothesis whatever is there

sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (Manibusan,

at p. 87.)

We begin with an overview of the law pertaining to asportation, the

only element of kidnapping at issue here. In doing so, we focus on three

statutes: section 207, subdivision (a), which establishes the crime of simple

kidnapping; section 209, subdivision (b), which establishes the crime of

kidnapping for robbery, rape, or other sex crimes (kidnapping for robbery or

rape); and the One Strike law, under which Waqa was sentenced, which

requires an increased term for convictions of certain sexual offenses if the

defendant kidnapped the victim. In particular, if the defendant committed a

simple kidnapping of the victim under section 207, subdivision (a), the

required term for the sexual offense is 15 years to life (§ 667.61, subds. (b),

(e)(1)), and if the movement also substantially increased the risk of harm to

the victim, the required term is 25 years to life (§ 667.61, subds. (a), (d)(2)).

The asportation elements of these forms of kidnapping overlap, with

the aggravated kidnapping circumstance requiring the greatest showing.

Simple kidnapping, and thus the kidnapping circumstance, requires

movement of a substantial distance.8 Kidnapping for robbery or rape

requires that the movement increased the risk of harm to the victim. And

the aggravated kidnapping circumstance requires that the movement

8 The kidnapping circumstance may be established by forms of

kidnapping other than simple kidnapping, such as kidnapping during a

carjacking under section 209.5. (§ 667.61(e)(1).) Still, a common element of

all kidnappings is movement of a substantial distance.

substantially increased the risk of harm to the victim. In analyzing the

sufficiency of the evidence here, we rely on authorities discussing all three of

these different asportation elements.

The One Strike law “provides an alternative, more severe set of

penalties for certain sex offenses committed under certain enumerated

circumstances.” (People v. Anderson (2020) 9 Cal.5th 946, 954 (Anderson).) A

One Strike term is “ ‘ “an alternate penalty for the underlying felony

itself,” ’ ” not a sentence enhancement that adds “ ‘ “ ‘an additional term of

imprisonment’ . . . to a ‘base term.’ ” ’ ” (People v. Salvador (2017)

11 Cal.App.5th 584, 592–593, italics omitted.) The statute is designed “to

ensure serious sex offenders receive lengthy prison sentences upon their first

conviction when their crimes are committed under circumstances elevating

their victim’s vulnerability.” (People v. Kelly (2016) 245 Cal.App.4th 1119,

1128 (Kelly).) Forcible rape, the crime of which Waqa was convicted, is a

qualifying sexual offense under the statute. (§ 667.61, subd. (c)(1).)

The aggravated kidnapping circumstance requires that “[t]he

defendant kidnapped the victim of the present [sexual] 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(d)(2); see People v. Perkins (2016) 5 Cal.App.5th 454, 465

(Perkins).) Similarly, kidnapping for rape or robbery requires a simple

kidnapping in which the movement “increase[d] the risk of harm to the victim

over and above that necessarily present in . . . the intended underlying

offense.” (§ 209, subd. (b)(1)–(2); see People v. Rayford (1994) 9 Cal.4th 1, 11–

12.)

The kidnapping circumstance may be proven by showing that “the

defendant kidnapped the victim of the present [sexual] offense in violation of

Section 207,” e.g., committed a simple kidnapping. (§§ 667.61(e)(1), 207,

subd. (a).) For simple kidnapping, the asportation element requires that the

defendant moved the victim “a ‘ “substantial distance” ’ [citation], not a

distance that is ‘ “trivial.” ’ ” (People v. Gomez (2018) 6 Cal.5th 243, 304.)

Originally, this standard depended exclusively on the actual distance moved.

(Ibid.) But in 1999, our state Supreme Court held that a factfinder “should

instead consider the ‘totality of the circumstances’ in determining whether

the victim was moved for a ‘ “substantial distance,” ’ including factors such as

‘whether that movement increased the risk of harm above that which existed

prior to the asportation, decreased the likelihood of detection, and increased

both the danger inherent in a victim’s foreseeable attempts to escape and the

attacker’s enhanced opportunity to commit additional crimes.’ ” (Ibid.,

quoting People v. Martinez (1999) 20 Cal.4th 225, 237 (Martinez).) Thus,

under current law, “no minimum distance is required to satisfy the

asportation requirement,” and the precise distance need not be proven.

(People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez); see People v.

Nieto (2021) 62 Cal.App.5th 188, 200; People v. Singh (2019) 42 Cal.App.5th

175, 187–188.)

The asportation element of these three forms of kidnapping tied to the

commission of another crime (simple kidnapping committed in conjunction

with another offense; kidnapping for rape or robbery; and the aggravated

kidnapping circumstance) requires that the movement be “ ‘more than that

which is merely incidental to the commission or attempted commission of [the

associated crime].’ ” (Dominguez, supra, 39 Cal.4th at p. 1150; Martinez,

supra, 20 Cal.4th at p. 237; People v. Rayford, supra, 9 Cal.4th at p. 12;

Perkins, supra, 5 Cal.App.5th at pp. 469–470; § 209, subd. (b)(2).)

“[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.’ ” (People v. Diaz (2000) 78 Cal.App.4th 243, 247.)

Kidnapping for robbery or rape and the aggravated kidnapping

circumstance also require that the movement increased the risk of harm to

the victim beyond that inherent in the underlying offense, with the

aggravated kidnapping circumstance further requiring that the increase was

substantial.9 (§§ 209, subd. (b)(2), 667.61(d)(2); Robertson, supra,

208 Cal.App.4th at p. 982.) “[T]he increased risk may be of either physical or

psychological harm.” (Robertson, at p. 984.) In contrast, for simple

kidnapping an increase in the risk of harm to the victim is relevant to

whether the victim was moved a substantial distance, but the crime does not

require “an increase in harm, or any other contextual factors.” (Martinez,

supra, 20 Cal.4th at p. 237; People v. Bell (2009) 179 Cal.App.4th 428, 436.)

Thus, compared to simple kidnapping, the “essence” of both kidnapping for

robbery or rape and the aggravated kidnapping circumstance “is the increase

in the risk of harm to the victim caused by the forced movement.”

(Dominguez, supra, 39 Cal.4th at p. 1152.)

9 Until 1997, kidnapping for robbery or rape also required that the

movement substantially increase, not just increase, the risk to the victim

beyond that inherent in the underlying crime. (Perkins, supra, 5 Cal.App.5th

at pp. 466–467 & fn. 4; People v. Robertson (2012) 208 Cal.App.4th 965, 979–

980 (Robertson).) Thus, we rely on cases applying the pre-1997 standard for

kidnapping for robbery or rape in determining whether Waqa’s movement of

Doe substantially increased the risk of harm to her (see Perkins, at p. 466,

fn. 4), as well as later decisions addressing that crime to the extent they

elucidate what an increase in the risk of harm requires.

To summarize, the asportation element of the aggravated kidnapping

circumstance requires proof that “(1) the movement was substantial in

character, and not merely incidental to the commission of the sex crime

[citation], and (2) ‘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’ sex offense.” (Perkins, supra, 5 Cal.App.5th at

p. 466, quoting § 667.61(d)(2); Dominguez, supra, 39 Cal.4th at p. 1150;

CALCRIM No. 3175.) These two prongs “are not distinct, but interrelated,

because a trier of fact cannot consider the significance of the victim’s changed

environment without also considering whether that change resulted in an

increase in the risk of harm to the victim.” (Martinez, supra, 20 Cal.4th at

p. 236.) As we now explain, here evidence of the second prong is lacking, but

there is sufficient evidence of the first prong, which is all that is required to

establish asportation for the kidnapping circumstance.

2. No substantial evidence supports the finding that the

movement substantially increased the risk of harm to Doe.

Beginning with the second prong, we agree with Waqa that there was

insufficient evidence that his movement of Doe from the small stall to the

large stall “substantially increased the risk of harm” to her above that

inherent in the rape.10 (§ 667.61(d)(2).) Even assuming the minor differences

between the stalls supported a finding of some increase in the risk of harm to

Doe, there was no evidence from which to reasonably infer that the

movement substantially increased that risk.

10The record is ambiguous about Doe’s location when Waqa began

moving her, as some of her testimony suggests he did not grab her arm until

she was outside the small stall. The parties agree that the relevant

movement of Doe was from the small stall to the large stall, however, and

Doe’s precise location when the movement began does not affect our ultimate

conclusions.

“ ‘Substantial’ is a relative term[;] its measure [is] to be gauged by all

the circumstances surrounding the matter in reference to which the

expression has been used.” (Atchison etc. Ry. Co. v. Kings Co. Water Dist.

(1956) 47 Cal.2d 140, 144.) When describing an increase, “substantially” is

defined as “[f]ully, amply; to a great extent or degree; considerably,

significantly, much.” (Oxford English Dictionary Online

<https://www.oed.com/view/Entry/193055> [as of June 13, 2023].) In

determining whether a movement increased the risk of harm to the victim,

the jury considers “ ‘ “such factors as the decreased likelihood of detection, the

danger inherent in a victim’s foreseeable attempts to escape, and the

attacker’s enhanced opportunity to commit additional crimes. [Citations.]

The fact that these dangers do not in fact materialize does not . . . mean that

the risk of harm was not increased.” ’ ” (People v. Vines (2011) 51 Cal.4th

830, 870 (Vines).)

Although the movement of Doe from the small stall to the large stall

may have made it easier for Waqa to complete the rape, there was

insufficient evidence that the change substantially increased Doe’s risk of

harm. Perkins is instructive. There, the defendant committed sex crimes

against his 11-year-old stepdaughter, and the jury also found true aggravated

kidnapping and kidnapping circumstances under the One Strike law.

(Perkins, supra, 5 Cal.App.5th at pp. 459–460, 463.) The victim was asleep in

the living room of their apartment when the defendant awakened her and

asked her to feed her baby sister, who was in the bedroom. (Id. at pp. 459–

460.) The defendant told the victim to go to the bathroom, where he

sodomized her. (Id. at p. 460.) He then told her to go back to the bedroom,

which was 10 to 30 feet away. (Id. at pp. 460, 470.) The victim complied

because she was afraid the defendant would hurt her otherwise, and he

sodomized and raped her in the bedroom. (Id. at p. 460.)

The Third District Court of Appeal reversed the One Strike findings,

concluding there was insufficient evidence that by ordering the victim from

the bathroom to the bedroom the defendant moved her “a substantial

distance and in a manner that substantially increased the risk of harm.”

(Perkins, supra, 5 Cal.App.5th at p. 464.) The movement did not decrease the

likelihood of detection, since neither room’s doors were closed during the

crimes and the victim was not visible from either room. (Id. at p. 470.) Nor

did it increase the danger from the victim’s foreseeable attempts to escape,

since the “defendant’s significant size” made it “unlikely the victim could

have escaped from him in either the bathroom or the bedroom. The bedroom,

assuming it was larger, may have actually given her more of an opportunity.”

(Ibid.) Finally, the movement did not enhance the defendant’s opportunity to

commit other crimes, because “[n]othing show[ed] [he] could not have

committed rape in the bathroom” or was prevented from committing

“whatever crime he wanted in both rooms.” (Ibid.)

Likewise, the movement of Doe from the small stall to the large stall

did not appreciably “decrease[] the likelihood of detection.” (Perkins, supra,

5 Cal.App.5th at p. 470.) Generally, this factor is supported when the

offender moves the victim from a public or open area to a private or secluded

area. (See, e.g., Dominguez, supra, 39 Cal.4th at p. 1153 [victim moved from

road to embankment below road “where it was unlikely any passing driver

would see her”]; People v. Shadden (2001) 93 Cal.App.4th 164, 167, 169–170

(Shadden) [victim moved from store’s front counter to back room]; People v.

Salazar (1995) 33 Cal.App.4th 341, 348 [victim moved from exterior walkway

to motel room’s bathroom].) “[A] rape victim is certainly more at risk when

concealed from public view and therefore more vulnerable to attack.”

(People v. Hoard (2002) 103 Cal.App.4th 599, 607.)

Here, however, the degree of concealment each stall offered did not

significantly differ. Both stalls have locking doors and partitions that do not

extend to the floor or ceiling. Although the small stall is a few feet closer to

the restroom entrance, we do not think that Doe’s movement to the large stall

made it substantially less likely that someone entering the restroom would

hear or see the rape. Moreover, only the large stall has openings to the

outdoors, so if anything the movement to that stall made it more likely that

someone outside would notice the crime.

The movement also did not substantially “increase[] the danger in the

victim’s foreseeable attempts to escape.” (Perkins, supra, 5 Cal.App.5th at

p. 470.) Neither stall afforded a realistic opportunity to escape over or under

a wall or door. Although committing the rape in the small stall would have

placed Doe nearer to the stall door than she was in the large stall, the

additional space in the large stall theoretically gave her more room to

maneuver and would make it easier to unlock the door if she was able to

reach it. (See ibid.) Nor was a potential escape from the large stall any more

dangerous than one from the small stall. (Compare, e.g., Kelly, supra,

245 Cal.App.4th at p. 1130 [movement put victim at increased risk of harm

because her “only option to escape was to exit a moving vehicle”].)

In arguing that the movement did “decrease[] the likelihood of

detection and escape,” the Attorney General relies on an unconvincing

premise: that because of his size, Waqa “would not be able to fit inside the

small stall with the victim and still be able to close the door behind him and

lock it.” We agree with Waqa that the jury could not have reasonably

inferred that it was impossible for him and Doe to both fit in the small stall

with the door locked behind them. The only quantitative evidence of Waqa’s

size was that he was at least six feet tall and 200 pounds at the time of the

crime, hardly too big to get through the stall door. Although it would have

been cramped for him and Doe to both be in the small stall with the door

locked shut, there is no basis to believe that they literally would not have fit.

Thus, we disagree with the Attorney General that the movement to the large

stall increased Waqa’s ability to avoid detection and prevent Doe from

escaping in that he otherwise could not have closed and locked the stall door.

More generally, the risk of harm beyond that inherent in the rape was

not clearly increased in the large stall compared to the small stall. The large

stall itself did not pose any danger of bodily harm that the small stall did not.

(Compare, e.g., Vines, supra, 51 Cal.4th at p. 871 [victims at substantially

increased risk of harm because they were moved into store’s freezer].) Both

spaces had fixtures, including the toilets, with which Doe could have collided.

Indeed, she was arguably at higher risk of such injury in the more enclosed

space.

Nor did the movement to the large stall clearly enhance Waqa’s ability

to “gain control over [Doe] and ensure[] her compliance.” (Robertson, supra,

208 Cal.App.4th at p. 985 [movement of victim next to deep tub was implicit

threat to drown her if she resisted].) True, in the large stall Waqa was able

to lie on top of Doe, which he likely would not have had room to do in the

small stall. In turn, his weight made it hard for her to breathe, which it is

reasonable to infer prevented her from screaming. But rape does not require

a prone position, and there is no apparent reason Waqa could not have

restrained Doe and prevented her from screaming while they were upright.

(See Perkins, supra, 5 Cal.App.5th at p. 470.)

We also reject the Attorney General’s related argument that the

movement to the large stall significantly “increased the risk of psychological

harm” to Doe, based on her testimony that she became “terrified” and felt less

safe when Waqa closed and locked the stall door. Again, this argument

depends on the premise that Waqa would not have been able to lock himself

and Doe into the small stall. We do not see any reason the psychological

harm of “being trapped in an enclosed space with a large, strong male

stranger” would differ substantially based on whether the confinement was in

the small or large stall.

Finally, we conclude there was insufficient evidence that the movement

to the large stall enhanced Waqa’s “opportunity to commit additional crimes”

such that it substantially increased the risk of harm to Doe. (Perkins, supra,

5 Cal.App.5th at p. 470.) The Attorney General claims that “having the

larger space could have allowed [Waqa] to, for example, orally copulate the

victim, which he would not have been able to accomplish in the smaller stall.”

Although we disagree with Waqa that this factor is not met because there

was no evidence he intended to commit such a crime, there is no substantial

evidence that he would have been unable to orally copulate Doe or accomplish

“whatever crime he wanted” in the small stall. (Ibid.) It may have been

easier for him to sexually assault her in the larger space, but either way he

had essentially the same opportunity to commit other crimes, particularly

since the two stalls did not significantly differ in the opportunities they

afforded for detection or escape.

3. There was sufficient evidence of simple kidnapping.

Having concluded there was insufficient evidence of the second prong of

the aggravated kidnapping circumstance’s asportation element, we turn to

consider the evidence supporting the first prong. Again, this prong, like a

conviction of simple kidnapping, requires evidence that the movement was of

a substantial distance, as well as that the movement was not merely

incidental to the sexual offense. (Martinez, supra, 20 Cal.4th at p. 237;

Perkins, supra, 5 Cal.App.5th at pp. 465–466.) In evaluating whether the

movement was substantial, “the jury considers the ‘scope and nature’ of the

movement, which includes the actual distance a victim is moved.” (Vines,

supra, 51 Cal.4th at p. 870.) The factors that bear on whether a movement

increased the victim’s risk of harm also bear on whether the movement was

substantial. (Martinez, at pp. 235–237.)

The parties agree that the actual distance Doe was moved was

approximately eight to ten feet. Although this is relatively short, no

minimum distance is required (Dominguez, supra, 39 Cal.4th at p. 1152), and

similar distances have been found sufficient. (See, e.g., People v. Singh,

supra, 42 Cal.App.5th at pp. 187–188 [10 feet]; People v. Corcoran (2006)

143 Cal.App.4th 272, 278–279 [same]; Shadden, supra, 93 Cal.App.4th at

p. 167 [nine feet].) And while the evidence bearing on the factors already

discussed—such as whether the movement decreased the likelihood of

detection and increased the opportunity to commit other crimes—is not

strong, it is sufficient. A reasonable juror could conclude that dragging Doe

from the small stall to the large stall was movement of a substantial distance

because it took her farther from the restroom’s exit and gave Waqa more

room to maneuver, facilitating the rape and other potential crimes.

Waqa argues that the movement was merely incidental to the rape

because “[i]t did not have any purpose other than to provide [him with] more

room to engage in the act of forced sexual intercourse.” Courts have

struggled to articulate the meaning of “incidental” in this context, and the

concept is “difficult to capture in a simple verbal formulation that would

apply to all cases.” (Dominguez, supra, 39 Cal.4th at p. 1151.) What is clear,

however, is that the relevant focus is on “ ‘the “scope and nature” of the

movement,’ as well as ‘the context of the environment in which the movement

occurred,’ ” not the defendant’s purpose for moving the victim. (Id. at

pp. 1151–1152, italics omitted; In re Earley (1975) 14 Cal.3d 122, 130;

People v. Aguilar (2004) 120 Cal.App.4th 1044, 1052.) “Standing alone, the

fact that the movement of a . . . victim facilitates [the associated crime] does

not imply that the movement was merely incidental to [that crime].”

(People v. James (2007) 148 Cal.App.4th 446, 454; see Dominguez, at

pp. 1151, 1153 [jury properly instructed that “ ‘movements to facilitate [a]

rape that are for a substantial distance rather than brief [movements] . . . are

not incidental to the commission of the rape’ ”].) The jury here could have

reasonably inferred that the movement of Doe was of a substantial distance

and thus not merely incidental to the rape, even if Waqa moved her primarily

to facilitate the crime.

That Waqa did not need to move Doe to rape her further supports the

conclusion that the movement was not merely incidental. “ ‘[A] rape . . . does

not necessarily require movement to complete the crime.’ [Citation.] Where

a defendant drags a victim to another place, and then attempts a rape, the

jury may reasonably infer that the movement was neither part of nor

necessary to the rape” such that the movement was not incidental.

(Shadden, supra, 93 Cal.App.4th at p. 169; see People v. Aguilar, supra,

120 Cal.App.4th at pp. 1050–1052 [explaining why movement’s necessity to

committing rape is relevant to whether movement was incidental to rape].)

Here, there is no dispute that Waqa could have raped Doe in the small stall.

Thus, even though the movement to the large stall facilitated the rape, there

was substantial evidence that the movement was not merely incidental to the

crime.

4. We may reduce Waqa’s sentence to 15 years to life.

Having concluded that substantial evidence supports the kidnapping

circumstance but insufficient evidence supports the aggravated kidnapping

circumstance, we turn to the appropriate disposition. The question we must

resolve is whether we may modify the judgment to reflect a 15-year-to-life

sentence based on the kidnapping circumstance instead of reversing the

aggravated kidnapping circumstance outright. The Attorney General argues

that we can, and Waqa argues that we cannot. We agree with the Attorney

General.

To begin with, Waqa cannot be retried on the aggravated kidnapping

circumstance. “ ‘The constitutional protection against double jeopardy

unequivocally prohibits a second trial’ . . . when a conviction is reversed or set

aside because of insufficient evidence.” (People v. Anderson (2009) 47 Cal.4th

92, 104.) This principle applies not just to convictions but also, “with the sole

exception of facts relating to a prior conviction, ‘any fact that increases the

penalty for a crime beyond the prescribed statutory maximum.’ ” (Id. at

pp. 105–107, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)

Because “a One Strike allegation exposes a defendant to greater punishment

than would be authorized by a verdict on the offense alone,” it is treated as

“the functional equivalent of an element of a greater offense” that cannot be

retried after a reversal for insufficient evidence. (Anderson, at pp. 106–108;

People v. Carbajal (2013) 56 Cal.4th 521, 534 [“double jeopardy principles . . .

apply to allegations under the One Strike law”].)

Under section 1260, an appellate court “may reverse, affirm, or modify

a judgment or order appealed from, or reduce the degree of the offense or

attempted offense or the punishment imposed.” This statute authorizes a

court to “modify a verdict to reflect a conviction of a lesser included offense

where insufficient evidence supports the conviction on the greater offense.”

(People v. Navarro (2007) 40 Cal.4th 668, 678.) Likewise, section 1260

“empower[s] courts to ‘reduce the punishment in lieu of ordering a new trial,

when there is error relating to the punishment imposed.’ ” (Navarro, at

p. 679.) Consistent with this provision, appellate courts are authorized to

substitute an unpled lesser included sentencing enhancement “ ‘when a

greater enhancement found true by the trier of fact is either legally

inapplicable or unsupported by sufficient evidence.’ ” (People v. Tirado (2022)

12 Cal.5th 688, 696; see, e.g., People v. Fialho (2014) 229 Cal.App.4th 1389,

1397–1399; People v. Allen (1985) 165 Cal.App.3d 616, 627.)

Since the One Strike law provides for punishment, section 1260 by its

plain terms appears to authorize us to reduce the term based on the

aggravated kidnapping circumstance to a term based on the kidnapping

circumstance. “Although section 667.61 is an alternative sentencing scheme

rather than an enhancement [citation], the aggravated kidnapping

circumstance . . . is functionally equivalent to a conduct enhancement

because it focuses on the manner in which the underlying offense was

committed, rather than on the status of the offender.” (Kelly, supra,

245 Cal.App.4th at p. 1131.)

To determine whether a lesser enhancement is necessarily included

within a greater enhancement, we ask whether “ ‘the statutory elements of

the greater [enhancement], or the facts actually alleged in the accusatory

pleading, include all the elements of the lesser [enhancement], such that the

greater cannot be committed without also committing the lesser.’ ” (People v.

Dixon (2007) 153 Cal.App.4th 985, 1001–1002.) The aggravated kidnapping

circumstance applies when “[t]he 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(d)(2), italics added.) The

kidnapping circumstance applies when, “[e]xcept as provided in

[subdivision (d)(2)], the defendant kidnapped the victim of the present offense

in violation of Section 207, 209, or 209.5”—the only statutes that establish

kidnapping offenses. (§ 667.61(e)(1); see §§ 207–210.) Thus, both

circumstances require a kidnapping of the victim of the sex offense, meaning

it is impossible to meet the elements of the aggravated kidnapping

circumstance without also meeting the elements of the kidnapping

circumstance.

Focusing on subdivision (e) of section 667.61 as a whole, Waqa claims

that the statutory elements test is not met because most of the seven specific

circumstances under that subdivision have elements that are not included in

the aggravated kidnapping circumstance.11 This is comparing apples to

oranges. It is true that, for example, the circumstance under

subdivision (e)(2) that the sex offense was committed during a burglary is not

necessarily established if the aggravated kidnapping circumstance is. But

particular “circumstances specified in subdivision (d) or (e)” must be “pled

and proved” for One Strike punishment to be imposed (§ 667.61, subd. (f),

italics added), not the fact that some unspecified qualifying circumstances

11 Waqa also states in passing that simple kidnapping has a “different

intent requirement[]” than the aggravated kidnapping circumstance, which is

incorrect. Unlike kidnapping for rape or robbery, which requires a specific

intent to commit the associated crime, simple kidnapping and the aggravated

kidnapping circumstance require only general intent. (People v. Bell, supra,

179 Cal.App.4th at p. 435, fn. 2; People v. Jones (1997) 58 Cal.App.4th 693,

716–717.)

exist. Thus, it is of no moment that the aggravated kidnapping circumstance

does not encompass the elements of all the circumstances under

subdivision (e). What matters is that it encompasses all the elements of the

kidnapping circumstance.

Waqa also claims that “unlike weapons enhancements,” the One Strike

law “is not subject to the rules pertaining to lesser included offenses.” The

two primary authorities on which he relies do not support his position. First,

in Mancebo, the Supreme Court held that the One Strike law’s pleading and

proof requirements were violated where the trial court imposed multiple-

victim circumstances that were not alleged. (Mancebo, supra, 27 Cal.4th at

pp. 744–745, 754.) Although the information alleged crimes against two

victims, the only One Strike circumstances alleged were gun use and

kidnapping as to one crime, and gun use and tying or binding as to the other.

(Id. at pp. 738, 740; § 667.61, subds. (a), (e)(1), (3), (5).)12 The information

also alleged that the defendant personally used a gun during the crimes

under section 12022.5, subdivision (a). (Mancebo, at p. 740.) After the jury

convicted the defendant of all the charges and allegations, the trial court

sentenced him to “two consecutive 35-year-to-life terms . . . [for rape and

sodomy] (25 years to life, plus a 10-year gun-use enhancement for each

offense)[,] . . . in the belief that it could substitute the multiple victim

circumstance . . . for the expressly pleaded gun-use circumstances in order to

satisfy the ‘minimum number of circumstances’ requirement for One Strike

sentencing (§ 667.61, subd. (f)), thereby making gun use available as a basis”

for the personal-use firearm enhancements. (Ibid.)

12The One Strike law has been amended several times since Mancebo

was decided. We cite to the current law, not the 2002 version.

Mancebo held that the trial court improperly substituted the multiple-

victim circumstances for the gun-use circumstances because doing so violated

section 667.61’s “plain wording.” (Mancebo, supra, 27 Cal.4th at p. 743.)

Under current subdivision (o), which is similar to former subdivision (i)

considered in Mancebo, “[t]he penalties provided in this section shall apply

only if the existence of any circumstance specified in subdivision (d) or (e) is

alleged in the accusatory pleading pursuant to this section, and is either

admitted by the defendant in open court or found to be true by the trier of

fact.” (§ 667.61, subd. (o), italics added; see Mancebo, at p. 743.) And under

current subdivision (f), which is similar to former subdivision (f) considered in

Mancebo, “[i]f only the minimum number of circumstances specified in

subdivision (d) or (e) that are required for the punishment provided in

subdivision (a) . . . [or] (b) . . . to apply have been pled and proved, that

circumstance or those circumstances shall be used as the basis for imposing

the term provided in subdivision (a) . . . [or] (b) . . . [,] whichever is greater,

rather than being used to impose the punishment authorized under any other

law, unless another law provides for a greater penalty or the punishment

under another law can be imposed in addition to the punishment provided by

this section.” (§ 667.61, subd. (f), italics added; see Mancebo, at pp. 743–744.)

Although the Mancebo information alleged offenses against two different

victims, it did not allege multiple-victim circumstances or refer to the

relevant statutory provision, so “it failed to put [the] defendant on notice that

the People . . . would seek to use [those circumstances] to secure . . . One

Strike terms . . . and use the circumstance of gun use to secure additional

enhancements under section 12022.5[, subdivision ](a).” (Mancebo, at p. 745.)

In Anderson, supra, 9 Cal.5th 946, the Supreme Court reversed firearm

enhancements imposed “in connection with counts as to which [they] had not

been alleged.” (Id. at p. 950.) In doing so, Anderson extended Mancebo’s

reasoning to firearm enhancements under section 12022.53, which have

similar statutory pleading requirements to those under the One Strike law.

(Anderson, at pp. 953–955; see §§ 1170.1, subd. (e), 12022.53, subds. (e), (j).)

Although the Anderson information alleged the relevant firearm

enhancement in connection with a different count, it alleged lesser firearm

enhancements in connection with the counts at issue, and this “failed to

provide [the defendant] with fair notice” that the prosecution would seek the

greater enhancements for those counts. (Anderson, at p. 957.)

Waqa claims that reducing the aggravated kidnapping circumstance to

the kidnapping circumstance would “not be in conformity with principles of

pleading and proof and the holdings in Anderson and [Mancebo].” But as he

recognizes, Anderson and Mancebo are distinguishable because the

uncharged enhancements in those decisions “would have resulted in a greater

sentence than was charged.” Here, in contrast, given Waqa’s effective

concession that the aggravated kidnapping circumstance was adequately pled

despite the reference to subdivision (e) of section 667.61, the question is

whether it is appropriate to impose a lesser punishment than that expressly

charged. Thus, this case is more analogous to Tirado and other cases

approving the imposition of “a lesser included, uncharged enhancement so

long as the prosecution has charged the greater enhancement and the facts

supporting imposition of the lesser enhancement have been alleged and found

true.” (People v. Tirado, supra, 12 Cal.5th at p. 697.)

Waqa also suggests that alleging circumstances requiring a 25-year-to-

life term under section 667.61, subdivision (a), does not give fair notice that a

15-year-to-life term might apply under subdivision (b) of the statute, because

subdivisions (a) and (b) are “mutually exclusive.” He claims this is so because

the latter provision states that “[e]xcept as provided in subdivision (a), . . . a

person who is convicted of [a qualifying] offense . . . under one of the

circumstances specified in subdivision (e) shall be punished by imprisonment

in the state prison for 15 years to life.” (§ 667.61, subd. (b), italics added.)

But the italicized language means merely that if sufficient circumstances

exist to require a 25-year-to-life term, that term must be imposed even if the

requirements for a 15-year-to-life term are also met. For example, if “two or

more circumstances in subdivision (e)” are established under subdivision (a),

that necessarily means that “one of the circumstances specified in

subdivision (e)” is established under subdivision (b), but the italicized

language requires imposition of the greater sentence. Thus, the decision to

charge under subdivision (a) does not suggest that subdivision (b) is

inapplicable.

In sum, we see no reason that Waqa should avoid a One Strike

sentence where the jury necessarily made a factual finding that satisfies a

circumstance requiring a term of 15 years to life, that circumstance is a lesser

included circumstance of the one found true, and that circumstance is

supported by substantial evidence. Because a 15-year-to-life sentence is

mandatory if a simple kidnapping is committed in conjunction with forcible

rape and Waqa was not convicted of any other charges or enhancements,

there is no need to remand for resentencing. Accordingly, we order the

judgment modified to reflect a sentence of 15 years to life for the rape under

section 667.61, subdivisions (b) and (e)(1).

B. Waqa’s Claim of Prosecutorial Error Fails.

Waqa also claims that the prosecutor misstated the law governing the

“substantial distance” prong of the aggravated kidnapping circumstance in

her closing argument. Specifically, he contends that the prosecutor

“essentially equated any movement not inherent in the act of sexual

intercourse as meeting that requirement.”13 Waqa forfeited this claim by

failing to object below, and it lacks merit in any event.

1. Additional facts

The jury was instructed under a modified version of CALCRIM

No. 3175 that one element of the aggravated kidnapping circumstance was

that using force or fear, Waqa “moved Jane Doe or made her move a

substantial distance.” The instruction further stated, “As used here,

Substantial distance means more than a slight or trivial distance. The

movement must have increased the risk of physical or psychological harm to

the person beyond that necessarily present in the rape. The movement must

be more than merely incidental to the commission of [the rape]. In deciding

whether the distance was substantial and whether the movement

substantially increased the risk of harm, you must consider all the

circumstances relating to the movement.”

In closing argument, the prosecutor defined “substantial distance” as

“something more than slight or trivial. . . . It’s about the quali[t]y of the

movement, not the quantity. [¶] The quantity, the amount of distance, 5 feet

or 500 feet or 5 miles isn’t as relevant as the value of the movement. What

did the movement accomplish? That’s what we’re looking at. What’s its

purpose and what does it accomplish?” The prosecutor argued that Waqa had

“[a] specific intent to move [Doe] to facilitate the rape that he intended.”

According to the prosecutor, “[h]ad there been no kidnapping, [Waqa] would

13Waqa also objects that the prosecutor misstated the law by saying

that the aggravated kidnapping circumstance required an increase in the risk

of harm, not a substantial increase in the risk of harm. Given our conclusion

that there was insufficient evidence of a substantial increase in the risk of

harm, we need not address this aspect of his argument.

have raped [Doe] right there [in the small stall],” but he moved her to the

large stall so he would have more room “to move and maneuver and control.”

The prosecutor also contended that the movement had both physical and

psychological “value” because Waqa was able to lock Doe inside the large

stall, making it easier to control her and harder for her to escape.

The prosecutor also addressed the requirement that the movement not

be incidental to the rape. She stated, “What are we talking about when we

talk about incidental? Sex by definition is a dynamic act. It requires some

amount of movement. There is movement natural in sexual intercourse. [¶]

Movement incidental to sexual intercourse would be the movement that is

natural to the act, okay?” According to the prosecutor, although Doe’s

struggling during the rape was incidental to the rape, “[m]oving her for

purposes of accomplishing [Waqa’s] act is not incidental to the crime. It’s

separate and apart. The above and beyond. It’s more than what was

necessary to rape her. . . . [¶] It was movement that is above and beyond to

accomplish the psychological or physical goals.”

2. Analysis

Prosecutorial error is established, “as a matter of state law, when a

prosecutor ‘engage[s] in deceptive or reprehensible tactics in order to

persuade the trier of fact to convict.’ [Citation.] Federal constitutional error

occurs only when the prosecutor’s actions ‘comprise a pattern of conduct that

is serious and egregious, such that the trial is rendered so unfair that the

resulting conviction violates the defendant’s right to due process of law.’ ”

(People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 854.) “ ‘ “ ‘It is

improper for the prosecutor to misstate the law generally [citation], and

particularly to attempt to absolve the prosecution from its prima facie

obligation to overcome reasonable doubt on all elements.’ ” ’ ” (People v.

Doane (2021) 66 Cal.App.5th 965, 976.)

“ ‘To prevail on a claim of prosecutorial misconduct based on remarks to

the jury, the defendant must show a reasonable likelihood the jury

understood or applied the complained-of comments in an improper or

erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly

infer” that the jury drew the most damaging rather than the least damaging

meaning from the prosecutor’s statements.’ ” (People v. Brown (2003)

31 Cal.4th 518, 553–554.)

We agree with the Attorney General that Waqa forfeited this claim by

failing to object below. Usually, to preserve a claim of prosecutorial error, “ ‘a

defendant must make a timely objection and request an admonition; only if

an admonition would not have cured the harm is the claim of misconduct

preserved for review.’ ” (People v. Friend (2009) 47 Cal.4th 1, 29.) The failure

to object or request an admonition may also be excused if doing so would have

been futile. (People v. Fayed (2020) 9 Cal.5th 147, 204.) Waqa does not

contest that he failed to object below, and he states only in passing that an

objection would have been futile. Therefore, the claim is forfeited.

Even if we were to consider the claim on the merits, we would reject it.

Waqa fails to convince us that the prosecutor misstated the law governing the

substantial-distance prong of the aggravated kidnapping circumstance. The

prosecutor correctly stated that the movement had to be more than trivial

and more than that inherent in the rape itself. (People v. Gomez, supra,

6 Cal.5th at p. 304; Dominguez, supra, 39 Cal.4th at p. 1150.) She also

correctly argued that the movement was substantial because it increased the

risk of physical and psychological harm. (Gomez, at p. 304.) We do not see

how the prosecutor’s stray statement that the movement “facilitated the

rape” implied that “any movement that made the rape easier for the rapist”

was sufficient to constitute a substantial distance. To the contrary, the

prosecutor referred to appropriate factors in arguing that Doe was moved a

substantial distance. No prosecutorial error occurred.

III.

DISPOSITION

The judgment is modified to reduce the sentence imposed for the rape

of 25 years to life under Penal Code section 667.61, subdivisions (a) and

(d)(2), to a term of 15 years to life under subdivisions (b) and (e)(1) of that

statute. The trial court is directed to prepare an amended abstract of

judgment reflecting this modification and correcting the date of conviction to

July 27, 2021, and forward it to the Department of Corrections and

Rehabilitation. In all other respects, the judgment is affirmed.

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Bowen, J.*

*Judge of the Superior Court of the County of Contra Costa, assigned

by the Chief Justice pursuant to article VI, section 6 of the California

Constitution.

People v. Waqa A163761

Trial Court:

Superior Court of the County of Sonoma

Trial Judge:

Hon. Shelly J. Averill

Counsel:

Peter F. Goldscheider, for Defendant and Appellant, under

appointment by the Court of Appeal

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,

Catherine A. Rivlin, Supervising Deputy Attorney General, Charlotte

Woodfork, Deputy Attorney General, for Plaintiff and Respondent

People v. Waqa A163761

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.