People v. Waqa ( 2023 )

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
v.
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.
1
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
I.
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.
2
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.
3
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.
4
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).)
5
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.
6
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.
7
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
8
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
9
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.
10
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.
11
“ ‘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
[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
12
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
13
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
14
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.)
15
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
16
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
17
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
18
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
19
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
20
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.)
21
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.
22
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
23
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
24
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
25
“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.
26
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
27
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
28
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.
29
_________________________
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
30
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
31