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In Harper, supra, 44 Cal.App.5th 172, the defendant was convicted of kidnapping for extortion (§ 209, subd. (a)) based on the prosecution's theory that he had twice kidnapped Jane Doe 2 intending to obtain money from her through forced prostitution.
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A152284
01-09-2020
The PEOPLE, Plaintiff and Respondent, v. Derrick Damon HARPER, Defendant and Appellant.
Victoria H. Stafford, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan and Moona Nandi, Deputy Attorneys General, for Plaintiff and Respondent
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts D, E, F, G, and H of the Discussion.
Victoria H. Stafford, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan and Moona Nandi, Deputy Attorneys General, for Plaintiff and Respondent
Miller, J. A jury found defendant Derrick Damon Harper guilty of conspiracy to commit human trafficking and multiple kidnapping and sex offenses. Harper contends his kidnapping and kidnapping-for-extortion convictions must be reversed because the conduct underlying the charges could be prosecuted only under the more specific statute Penal Code section 266a, which prohibits "tak[ing] any person against his or her will and without his or her consent ... for the purpose of prostitution." This contention is based on a doctrine known as the " Williamson rule" after our Supreme Court’s decision in In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593 ( Williamson ), which held that if a general statute includes the same conduct as a special statute, courts infer that the Legislature intended the conduct to be prosecuted only under the special statute.
In the alternative, Harper argues his two convictions of kidnapping for extortion must be reversed, first, because his conduct did not constitute extortion and, second, because the jury instruction given, CALCRIM No. 1202, was an incorrect statement of law.
In the published portion of our opinion, we hold that the Williamson rule does not bar the convictions here, that defendant’s conduct constituted extortion, and that although the challenged jury instruction contained an incorrect statement, it did not contribute to the jury’s verdict.
In the unpublished portion of the opinion, we find sufficient evidence of kidnapping to support counts 12 and 21; we agree with the parties that certain enhancements were improperly imposed and therefore strike those enhancements; and we remand the matter for resentencing under recently enacted legislation.
FACTUAL AND PROCEDURAL BACKGROUND
Charges
The Contra Costa County District Attorney charged Harper, along with five codefendants (most notably, Roy Gordon and Eric Beman), with conspiracy to commit human trafficking ( Pen. Code, §§ 182, subd. (a)(1), 236.1, subd. (b) ; count 1) and other offenses related to alleged coercive pimping.
All undesignated statutory references are to the Penal Code.
When Harper’s case went to trial, the jury decided the conspiracy charge and the following additional charges: sodomy by use of force of Jane Doe 2 (§ 286, subd. (c)(2); count 9), two counts of kidnapping for extortion (a type of aggravated kidnapping) of Doe 2 (§ 209, subd. (a) (hereinafter § 209(a)); counts 10 and 12), four counts of forcible rape of Doe 2 (§ 261, subd. (a)(2); counts 13, 22, 23, and 24), human trafficking of Jane Doe 1 (§ 236.1, subd. (b) ; count 15), forcible oral copulation of Doe 1 (former § 288a, subd. (c)(2)(A), as amended by Stats. 2010, ch. 219, § 8; count 16), and two counts of kidnapping Doe 2 (§ 207; counts 20 and 21).
As to count 13 (forcible rape), it was alleged as aggravating circumstances that Harper kidnapped Doe 2, and the movement of Doe 2 substantially increased the risk of harm over and above the level of risk necessarily inherent in the crime. (§ 667.61, subd. (d)(2).) As to counts 12 (kidnapping for extortion) and 21 (kidnapping), it was alleged that Harper personally used a firearm within the meaning of section 12022.53, subdivision (b). Additional allegations that Harper suffered prior felony convictions were subsequently tried by the court.
Trial
Jane Doe 2
In 2007, Doe 2 was 18 years old and "in an active addiction to meth." She did not have stable housing and "was back and forth between Pittsburg, Antioch, Brentwood, [and] Oakley." During this period, Doe 2 lived with Jeff Fowler for a few months.
Doe 2 testified that she regularly smoked methamphetamine and marijuana.
One day, Fowler took Doe 2 to an apartment in Pittsburg where he wanted her to perform oral sex on a man (implicitly for money). At the apartment, Doe 2 went to a back room and had sex with codefendant Roy Gordon. Afterward, Doe 2 realized Fowler had left the apartment, and she felt scared.
Gordon told Doe 2 he would take her back to Fowler, but instead he took her to a house on Dover in Pittsburg. Gordon showed Doe 2 a bedroom and told her she would be staying there. He told Doe 2 she was going to work for him, and she felt like she couldn’t leave. Doe 2 performed three acts of prostitution during the time she was at the Dover house, and Gordon supplied her with methamphetamine.
At some point, four girls beat up Doe 2 and cut off her hair. Gordon took Doe 2 to a second house to recover from the beating. After two or three days, Doe 2 left the second house. Doe 2 testified she stayed at the Dover house for about three or four weeks.
In 2009, Doe 2 met Harper at the apartment of a woman named Candace. Harper brought methamphetamine to the apartment, Doe 2 got high with Candace and another woman, and Doe 2 had consensual sex with Harper.
A few months later, Harper offered Doe 2 a place to stay in a foreclosed house on DiMaggio. Doe 2 went to the DiMaggio house. Initially, Doe 2 felt like she was free to come and go at the DiMaggio house. But then she saw Harper "jump" Nick Chavez, and she did not feel safe. Doe 2 recalled riding in Harper’s car when he saw a woman coming out of a building. (This woman was later identified at trial as Jane Doe 5.) Harper got out of the car and grabbed Doe 5 by the back of the neck and put her in the backseat of his car. He said Doe 5 owed him money, and she looked really scared. Harper took Doe 5 to the DiMaggio house, and he had Doe 5 sign a "contract" indicating she owed Harper money. Doe 2 was supposed to watch Doe 5, but she let Doe 5 escape through her bedroom window.
In this incident, Doe 2 observed Harper and men she knew as "Rude Boy" and "Chop" beat Chavez up. They kicked Chavez and left him on the ground and drove away. This event "put some fear" in Doe 2 because she saw Harper "had influence like that over other people to just get them to beat somebody up with him."
A few days after Doe 5 escaped, Harper called Doe 2 to the living room. He had Doe 2 take off her clothes and had another woman cut her hair off while he recorded the event on his phone. Aiding and Abetting Forcible Rape (Counts 22–24)
Harper displayed a gun and had three men—Chavez, Rude Boy, and a man called "Ghost"—rape Doe 2. Harper had them go into a back room and rape her one by one. Harper would come in and make sure they were raping her and then he would close the door.
Forcible Sodomy (Count 9)
After the men raped Doe 2, Harper told her to take a shower. He told Doe 2 to go to her bedroom, and he anally raped her.
The next day, Harper dropped Doe 2 off with codefendant Eric Beman. Harper told her "a hard head makes a soft ass," and Doe 2 understood this to mean if she "acted up" or didn’t follow directions, she would be sodomized again or Beman would beat her.
Previously, Doe 2 met Beman at a friend’s apartment, and they got high and had consensual sex. Beman had given Doe 2 a ride to the DiMaggio house before the rapes occurred.
Kidnapping for Extortion (Count 10), Kidnapping (Count 20), and Rape with Kidnapping (Count 13)
Around 2009, Doe 2 was in custody for three or four months for receiving stolen property. After she got out of custody, Doe 2 stayed with her uncle in Oakley. She believed Harper was looking for her because she heard he was offering people she knew drugs and money to tell him where she was. As a result, Doe 2 "was always watching over [her] shoulder"; she carried a knife, did not go out on the streets during the day, and was very careful about who she socialized with. Doe 2 was walking down the street at night in Antioch when Harper pulled up in a white pickup truck. He grabbed Doe 2 and put something hard to her back. He told her to get in the truck, and she complied. She saw that he had a gun. Harper took Doe 2 to a house on Jack London in Pittsburg. He had her take a shower, and then he raped her. He had a gun on the nightstand. The next day, Doe 2 looked at the gun while Harper was taking a shower. She determined the gun was not operational because when she picked it up, it rattled.
Doe 2 stayed at the Jack London house only a couple of days. Harper told her he was going to sell her to a man in Vallejo for $10,000, and this motivated Doe 2 to try to escape. She jumped over the back fence, ran a few streets away, and then called a friend to pick her up.
Around this time, Doe 2 was hanging out with the CoCo County Boys, a White criminal street gang. She felt they would protect her from Harper to some extent.
An expert witness testified the gang was also called "Peckerwood" or "Wood" for short.
Kidnapping for Extortion (Count 12) and Kidnapping (Count 21)
On another occasion, Doe 2 was getting high at a drug house on Peppertree Court in Antioch when Harper showed up. Doe 2 went with Harper because, she testified, "I didn’t feel safe there and I didn’t feel like anybody would even try to protect me there. So I didn’t want anybody getting hurt."
Harper had Doe 2 dress in a skimpy skirt and heels. He mentioned again that he was going to sell her to a man in Vallejo. Harper and Chop drove Doe 2 to perform an act of prostitution. The client gave Chop $100, and Chop gave the money to Harper. Harper saw that the bill was fake. He drove to a gas station and asked Doe 2 to get change for the counterfeit bill from someone at the gas station. Doe 2 asked a man if he had change for a $100. The man recognized her, and Doe 2 realized she knew him; his name was Johnny. Doe 2 told Johnny that Harper was trying to sell her to a man in Vallejo and asked if he could help. Johnny told her to jump in, and she jumped in the back of his Bronco and covered herself with a towel.
Doe 2 testified there were six other times Harper attempted to kidnap her. Jane Doe 1
Around 2006, Doe 1 was working as a prostitute. At some point, she moved in with Gordon in a house on Abbott.
Doe 1 corroborated parts of Doe 2’s testimony to some extent. Doe 1 testified that she and Gordon moved to a house on Dover and, at some point, Doe 2 came to the house and worked as a prostitute. Doe 1 also recalled seeing Doe 2 with a shaved head at least once.
Beman was Gordon’s best friend. Occasionally, Gordon would get arrested, and Beman would monitor Doe 1 while Gordon was in custody. In 2010, Gordon was in custody on a robbery charge. Doe 1 continued to work as a prostitute and lived with a woman named Shannon.
Doe 1 met Harper through Shannon, and he invited her to live with him rent free. Doe 1 moved into Harper’s house on Jack London. At first, Doe 1 was free to come and go as she wanted.
At some point (while Gordon was in custody), Beman told Doe 1 she had no business being at Harper’s house. Doe 1 told Harper what Beman said, and Harper said he was going to settle it with Beman. Doe 1 and Harper met Beman at a house in Antioch, and Harper and Beman had a heated discussion. Beman hit Doe 1 over the head with a bottle, punched her, and "stomped" her while Harper watched. Doe 1 tried to leave with Harper, but Harper left without her.
Later, Harper told Doe 1 this was intended as a trade of sorts: Harper was supposed to take Doe 1 to Beman, and Beman "was supposed to give up ... Doe 2" to Harper.
Human Trafficking (Count 15)
Soon after Harper left Doe 1 with Beman in Antioch, Beman went to jail, and Doe 1 returned to Harper’s house in Pittsburg. Harper made comments about making Doe 1 "his bitch," but she thought he was joking. One day, however, she packed her things to leave, and Harper said she was not going anywhere and "I told you I was going to make you my bitch."
After that, Doe 1 was forced to stay at the Jack London house, and she gave all the money she made from prostitution to Harper. Harper became physical with Doe 1 and hit her a lot. He told her if she ever left, he would go after her son. Harper agreed to a contract to allow Doe 1 to buy her freedom for $3,000, but when she gave him the money, he denied there was a contract. Oral Copulation (Count 16)
A couple of times after he beat Doe 1, Harper "would say, [‘]okay, Come suck my dick[’]," which Doe 1 understood to mean the beating was over. Doe 1 agreed that she "d[id] that voluntarily," but only because she was scared after having been beaten up.
Other Prosecution Evidence
Around 2011, Alicia Hammond met Harper on the street in Antioch. She went with him to a house on Jack London and then to a bar in Antioch. Hammond left the bar by herself and waited outside for a friend to pick her up. As she was waiting outside, Harper drove up in a gold Lexus with a woman named Candace and another woman in the car. Harper had a gun on his lap and he told Hammond, "Get in the fucking car." Hammond got in his car because she was afraid she would be hurt or killed if she did not comply. Harper took her and the other women to a Denny’s restaurant. He told Hammond if she did not go with him, she would have to deal with Beman. Harper and the women left, and Hammond had a friend pick her up from the restaurant.
Casey Beck knew Harper "from the streets outside." Around 2010 or 2011, Harper told Beck that Doe 2 owed him money and had run away from him. He offered Beck $100 and an eight ball of methamphetamine to find her. Later, Beck saw Doe 2 at a friend’s house. Doe 2 told Beck that she was raped, fed drugs, and beaten up a few times at Harper’s house. Doe 2 said Harper was trying to force her to prostitute for him.
Jane Doe 5 testified that she met Harper in Antioch around 2008 at a house on DiMaggio. Doe 2 was at the house. Harper held a gun to Doe 5’s head and made her perform oral sex on him. Then Rude Boy and a teenager called "Hog" watched Doe 5 and made her stay in a room. Doe 5 was told she owed Harper $300, but she had never met him before. After a couple of days, Doe 5 was allowed to leave the DiMaggio house when she said she was going to meet a client for sex. About five days later, Harper raped Doe 5 in a house in Pittsburg. A girl cut Doe 5’s hair, and Harper videotaped it.
Another witness testified Chavez went by the nickname Hog.
Defense
Harper testified on his own behalf. He admitted he had been convicted in 1998 of two counts of kidnapping. After he was released from custody, he lived in Pittsburg with his parents. It was stipulated that Harper was in custody again from August 2008 to May 2009. After he was released in 2009, he returned to his parents’ house, worked as a security guard at a bar in Brentwood, briefly lived with a girlfriend in Antioch, and then moved back with his parents in 2010.
Harper testified he met Doe 2 in 2010 at Candace’s apartment, and he and Doe 2 had sex in the bathroom. He ran into her later and told her about a house available for rent on DiMaggio; Doe 2 and Candace ended up moving into the house. Harper never lived in the DiMaggio house, but he visited often to see Candace. According to Harper, Doe 2 was interested in a relationship with him, and they started dating. Harper testified that, one day, he went to the DiMaggio house on his lunch break and saw Doe 2 having sex with his friend Nick Chavez and two other men, "Ghost and Kaze." Harper testified he felt "disrespected, played" and he broke up with Doe 2. He denied he told the men to have sex with Doe 2. Harper admitted he yelled at Doe 2 when he saw her in front of the DiMaggio house talking to Beman.
Harper was in custody for a short period in 2011. After he was released, he lived in a house on Jack London with Candace. He met Doe 1 at the Jack London house, and he let her move in. Harper testified he had a list of white women who were being forced to prostitute themselves for Gordon and Beman, whom he described as his "enemies." Doe 1 was on this list. At some point, Harper began a sexual relationship with Doe 1.
Harper denied he had an agreement with Gordon or Beman to pimp women. He denied pimping Doe 1 or Doe 2. He denied raping or sodomizing Doe 2 and denied ever forcing Doe 2 to stay at his house. He denied ever asking anyone to cut Doe 2’s hair. He denied ever forcing Doe 2 into a truck at gunpoint and denied taking her to the Jack London house. He denied telling Doe 2 he was going to sell her for $10,000. He denied forcing Doe 1 to perform oral sex on him. He denied kidnapping Doe 5.
Jury Verdict
The jury found Harper guilty of all of the charged counts except count 16, forced oral copulation of Doe 1.
The jury found true the enhancement allegations that Harper used a firearm in the commission of the second count of kidnapping for extortion of Doe 2 (count 12) and that, in the commission of forcible rape (count 13), he kidnapped Doe 2 and the movement of Doe 2 substantially increased the risk of harm to Doe 2 over the risk inherent in the forcible rape. Court Trial on Prior Convictions and Sentence
The district attorney alleged Harper suffered two prior felony convictions for kidnapping that qualified as strikes under section 667, subdivisions (d) and (e), and as serious felonies under section 667, subdivision (a)(1), and one of the prior convictions was a violent felony for which he served a prison term (§ 667.5, subd. (a)). The trial court took judicial notice of a prior criminal case and found the allegations of prior felony convictions true.
The trial court ruled the two prior felony convictions for kidnapping were separate strikes and sentenced Harper under the Three Strikes law.
Harper received an indeterminate sentence of 287 years to life for counts 9 (sodomy of Doe 2), 10 (kidnapping for extortion of Doe 2), 12 (same), 13 (forcible rape with kidnapping of Doe 2), 15 (human trafficking of Doe 1), and 22 (forcible rape of Doe 2). The trial court also imposed and stayed, pursuant to section 654, terms for counts 1, 20, 21, 23, and 24.
The sentence was calculated as follows: for count 13 (forcible rape of Doe 2), 75 years to life (25 years to life tripled), plus 10 years (two consecutive 5-year terms for the prior serious felonies under section 667, subdivision (a)); for count 9 (sodomy of Doe 2), 25 years to life, plus 10 years for the two prior serious felonies; for count 10 (kidnapping for extortion of Doe 2), 25 years to life, plus 10 years for the two prior serious felonies; for count 12 (kidnapping for extortion of Doe 2), 25 years to life, plus 10 years for personal use of a firearm, plus another 10 years for the two prior serious felonies; for count 15 (human trafficking of Doe 1), 42 years to life (middle term of 14 years tripled), plus 10 years for the two prior serious felonies; for count 22 (forcible rape of Doe 2), 25 years to life, plus 10 years for the two prior serious felonies.
DISCUSSION
A. The Williamson Rule
"Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute." ( People v. Murphy (2011) 52 Cal.4th 81, 86, 127 Cal.Rptr.3d 78, 253 P.3d 1216 ( Murphy ), italics added.) Harper contends his convictions of kidnapping in violation of section 207 (counts 20 and 21) and kidnapping for extortion in violation of section 209(a) (counts 10 and 12) must be reversed under the Williamson rule because the conduct underlying these convictions may be prosecuted only under section 266a, which makes it a crime to "take[ ] any person against his or her will and without his or her consent ... for the purpose of prostitution." We reject this contention.
1. The Rule and Its Application
In Williamson , the California Supreme Court explained: " ‘It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment. Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.’ " ( Williamson , supra , 43 Cal.2d at p. 654, 276 P.2d 593, quoting People v. Breyer (1934) 139 Cal.App. 547, 550, 34 P.2d 1065.)
In that case, defendant Williamson was convicted of conspiracy, under the general statute of conspiracy ( § 182 ), to commit the crime of contracting without a license in violation of Business and Professions Code section 7028. Williamson challenged his sentence, arguing his criminal conduct expressly had been designated a misdemeanor by the Business and Professions Code. ( Williamson , supra , 43 Cal.2d at pp. 652–653, 276 P.2d 593.) Our high court agreed, concluding the Business and Professions Code statute dealt with "the specific crime of conspiring to violate certain licensing provisions of that code" and was clearly a "specific enactment" that barred prosecution under the general conspiracy statute. ( Id . at p. 654, 276 P.2d 593.)
Our Supreme Court examined and applied the Williamson rule more recently in Murphy , supra , 52 Cal.4th 81, 127 Cal.Rptr.3d 78, 253 P.3d 1216. After defendant Murphy crashed her car into a hillside and later falsely reported the car had been stolen, she was convicted of (among other things) procuring or offering a false or forged instrument for filing or recording in violation of section 115, subdivision (a), a felony. On appeal, Murphy argued her prosecution under section 115 was precluded by the more specific statute applicable to her conduct, Vehicle Code section 10501, subdivision (a), which makes it "unlawful for any person to make or file a false or fraudulent report of theft of a vehicle required to be registered under this code with any law enforcement agency with intent to deceive" and which is a misdemeanor for a first offense. ( Id . at pp. 85, 88, 127 Cal.Rptr.3d 78, 253 P.3d 1216.) The Murphy court explained the Williamson rule is " ‘designed to ascertain and carry out legislative intent’ " and, "[a]bsent some indication of legislative intent to the contrary, [it] applies when (1) ‘each element of the general statute corresponds to an element on the face of the special statute’ or (2) when ‘it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.’ " ( Murphy , supra , 52 Cal.4th at p. 86, 127 Cal.Rptr.3d 78, 253 P.3d 1216.)
This subdivision provides, "Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony." (§ 115, subd. (a).)
Murphy also argued Vehicle Code section 20 was a more specific statute applicable to her conduct, but the court did not reach this argument because it concluded Vehicle Code section 10501 precluded Murphy’s conviction. (Murphy , supra , 52 Cal.4th at pp. 85, 95, fn. 4, 127 Cal.Rptr.3d 78, 253 P.3d 1216.)
The court continued, "On the other hand, if the more general statute contains an element that is not contained in the special statute and that element would not commonly occur in the context of a violation of the special statute, we do not assume that the Legislature intended to preclude prosecution under the general statute. In such situations, because the general statute contemplates more culpable conduct, it is reasonable to infer that the Legislature intended to punish such conduct more severely. For example, in [People v .] Watson [ (1981) ] 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279] [ ( Watson ) ], the defendant was charged with second degree implied malice murder based on a fatal automobile collision that occurred when the defendant was intoxicated and had been driving at excessive speeds. On appeal, the defendant argued that he could be convicted only of vehicular manslaughter under Penal Code section 192 because that statute specifically addressed killing while driving a vehicle, whereas the murder statute was a more general statute that addressed a broad range of unlawful killings. We rejected that argument because a murder conviction requires a finding of malice, while vehicular manslaughter requires only gross negligence. Because of the different mental state required, ‘a violation of the vehicular manslaughter statute would not necessarily or commonly result in a violation of the general murder statute. Thus, the Williamson rule is inapplicable.’ ( Watson , supra , at p. 296 [179 Cal.Rptr. 43, 637 P.2d 279].)" ( Murphy , supra , 52 Cal.4th at p. 87, 127 Cal.Rptr.3d 78, 253 P.3d 1216.)
Applying the Williamson rule to Murphy’s case, the court concluded Murphy’s conviction had to be reversed. ( Murphy , supra , 52 Cal.4th at p.95, 127 Cal.Rptr.3d 78, 253 P.3d 1216.) The court found Murphy’s conduct plainly came within the terms of Vehicle Code section 10501, section 115 was more general than Vehicle Code section 10501 because it applied to a broader range of documents, and "[e]ach element of section 10501 has a counterpart in section 115." ( Id . at pp. 88, 127 Cal.Rptr.3d 78, 253 P.3d 1216.) Finally, the court determined, "the filing of a false vehicle theft report would commonly violate Penal Code section 115." ( Id . at p. 94, 127 Cal.Rptr.3d 78, 253 P.3d 1216.) Accordingly, the court inferred "that the Legislature, in specifying that such conduct constitutes a misdemeanor, intended to create an exception to the felony punishment specified in the more general statute." ( Id . at pp. 94–95, 127 Cal.Rptr.3d 78, 253 P.3d 1216.) 2. Analysis
Harper claims his two convictions of kidnapping for extortion of Doe 2 in violation of section 209(a) (counts 10 and 12) and his two convictions of kidnapping of Doe 2 in violation of section 207 (counts 20 and 21) must be reversed under the Williamson rule because section 266a is the specific statute intended to cover the conduct underlying those convictions. In other words, Harper argues, his criminal conduct of grabbing Doe 2 off the street in Antioch and taking her to the Jack London house with the intent to obtain money from her by forcing her to work as a prostitute and, on another occasion, taking Doe 2 from a drug house in Antioch and dressing her in a skimpy skirt and heels for an act of prostitution could be prosecuted only under section 266a. We are not persuaded. a. Section 266a
Preliminarily, the Attorney General argues Harper’s Williamson rule claim has been forfeited because he failed to file a motion to dismiss on this ground. Harper responds that this court should decide the issue because it involves a pure question of law on undisputed facts and because his claim of a Williamson rule violation in this case resulted in an unauthorized sentence. In People v. Henry (2018) 28 Cal.App.5th 786, 239 Cal.Rptr.3d 483, the defendant offered the same reasons to consider his Williamson challenge raised for the first time on appeal, and the Court of Appeal believed it was appropriate to address the merits of the Williamson issue. (Id . at p. 791, fn. 3, 239 Cal.Rptr.3d 483.) We agree with Henry and consider the merits of Harper’s Williamson argument.
Section 266a provides in full, "Each person who, within this state, takes any person against his or her will and without his or her consent, or with his or her consent procured by fraudulent inducement or misrepresentation, for the purpose of prostitution, as defined in subdivision (b) of Section 647, is punishable by imprisonment in the state prison, and a fine not exceeding ten thousand dollars ($10,000)." A violation of section 266a is punishable by 16 months, two years, or three years in prison. (§ 18, subd. (a).)
Section 647, subdivision (b)(4), provides that " ‘prostitution’ includes any lewd act between persons for money or other consideration."
People v. Mandell (1939) 35 Cal.App.2d 368, 95 P.2d 704 ( Mandell ) is the only published case we have found in which a person was charged with violation of section 266a and the appellate court discussed the statute. There, the victim "was induced to go with the defendants to Isleton by a promise to secure a position for her at that place as a waitress," but when they arrived in Isleton, the defendants took the victim to "a house of ill-fame." ( Id . at p. 370, 95 P.2d 704.) The victim "practiced prostitution" at the house for two days, and the victim "said she was kept there as a captive." ( Id . at pp. 370–371, 95 P.2d 704.) The defendants received a portion of her earnings from the proprietor of the house. Regarding section 266a, the court explained, "The offense may be committed in two ways, first, by taking a female person for prostitution purpose, against her will ; secondly, by obtaining her consent by means of fraudulent inducement." ( Id . at p. 372, 95 P.2d 704.) The court did not have occasion to discuss what constitutes "for the purpose of prostitution" under section 266a.
When Mandell was decided, section 266a provided that it was a crime to take " ‘any female person.’ " (Mandell , supra , 35 Cal.App.2d at p. 372, 95 P.2d 704.) The statute now applies to the taking of "any person." (§ 266a.)
b. Kidnapping in Violation of Section 207
Section 207, subdivision (a), provides, "Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping." Kidnapping is punishable by imprisonment in state prison for three, five, or eight years. (§ 208, subd. (a).)
"Generally, to prove the crime of kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance." ( People v. Jones (2003) 108 Cal.App.4th 455, 462, 133 Cal.Rptr.2d 358 ( Jones ).) The third element is called the "asportation" element. ( People v. Bell (2009) 179 Cal.App.4th 428, 435, 102 Cal.Rptr.3d 300.) The defendant’s purpose or motive is not generally an element of a kidnapping crime. ( Jones , supra , at p. 462, 133 Cal.Rptr.2d 358.)
Since 1999, the third element of simple kidnapping is that the movement of the victim is " ‘ "substantial in character" ’ " under the totality of the circumstances. (People v. Martinez (1999) 20 Cal.4th 225, 237, 83 Cal.Rptr.2d 533, 973 P.2d 512 (Martinez ) overruled on another point by People v. Fontenot (2019) 8 Cal.5th 57, 70, 251 Cal.Rptr.3d 341, 447 P.3d 252 ; People v. Johnson (2015) 61 Cal.4th 734, 771, 190 Cal.Rptr.3d 536, 353 P.3d 266.)
Harper concedes that section 266a does not meet the elements test of the Williamson rule. It is plainly not the case that each element of section 207 (the purported general statute) corresponds to an element on the face of section 266a (the purported special statute).
Instead, Harper seems to rely on the second part of the Williamson test, that " ‘it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.’ " ( Murphy , supra , 52 Cal.4th at p. 86, 127 Cal.Rptr.3d 78, 253 P.3d 1216.) His entire argument is as follows: "It does not matter that kidnapping includes an element of force or fear that a violation of section 266a does not because the Williamson test does not require that the elements of the general and special offenses be identical. The difference is not significant here because the act of taking a person against her will under section 266a presupposes the use of force or fear." This argument is unconvincing.
Even if we assume for the sake of argument that "tak[ing] any person against his or her will and without his or her consent" under section 266a requires the use of force or fear, this assumption does not show that violating section 266a in this way " ‘will necessarily or commonly result in’ " a kidnapping in violation of section 207, subdivision (a). ( Murphy , supra , 52 Cal.4th at p. 86, 127 Cal.Rptr.3d 78, 253 P.3d 1216.) This is because, as the Attorney General points out, kidnapping requires that the defendant’s movement of the victim be substantial in character—the asportation element. Section 266a has no similar asportation requirement. A person could take a victim without consent and against the victim’s will for the purpose of prostitution in violation of section 266a without moving the victim substantially. Accordingly, a violation of section 266a will not necessarily or commonly result in a violation of section 207, and the Williamson rule does not bar Harper’s prosecution for kidnapping. (Cf. Jones , supra , 108 Cal.App.4th at pp. 463–464, 133 Cal.Rptr.2d 358 [rejecting argument that the child abduction statute was a specific statute precluding a noncustodial parent’s conviction of kidnapping because "a violation of the child abduction statute by a noncustodial parent will not necessarily result in a violation of the kidnapping statute"]; People v. Vasquez (1991) 226 Cal.App.3d 988, 993–994, 277 Cal.Rptr. 256 [rejecting argument that abduction for defilement in violation of section 265 was a specific statute precluding a conviction of kidnapping because "a violation of the ‘special’ statute, section 265, does not necessarily or commonly result in a violation of the ‘general’ statute, section 207"].)
As we have seen, a violation of section 266a "may be committed in two ways" (Mandell, supra, 35 Cal.App.2d at p. 372, 95 P.2d 704 ), first, by taking the victim "against his or her will and without his or her consent" for the purpose of prostitution or, second, taking the victim "with his or her consent procured by fraudulent inducement or misrepresentation" for the purpose of prostitution (§ 266a ). When the purported special statute can be violated in two ways, we apply the Williamson rule focusing on the way the defendant claims his conduct violated the statute. (Murphy , supra , 52 Cal.4th at p. 91, 127 Cal.Rptr.3d 78, 253 P.3d 1216.) Therefore, in this case, we focus on the first way of violating section 266a, taking the victim against his or her will and without his or her consent.
In his reply, Harper asserts for the first time, "Taking a victim for prostitution, like simple kidnapping, necessarily involves movement that is ‘substantial.’ " Harper, however, cites no authority for his assertion that section 266a necessarily requires movement of a substantial character, and we see no reason to import that element into the statute. Essentially, Harper’s position is that we should interpret section 266a as requiring a violation of section 207 (i.e., the commission of a kidnapping) with the added element that the kidnapping be committed "for the purpose of prostitution." But section 266a uses neither the word "kidnapping" nor the word "carry," it does not specify that there must be "substantial" movement of the victim, and the statute does not otherwise refer to section 207. Further, kidnapping is punishable by imprisonment for three, five, or eight years, while a violation of section 266a is punishable for a term of 16 months, two years, or three years. Of course, a "common theme" of criminal statutes is "increased punishment for increased culpability." ( People v. Fuller (1975) 53 Cal.App.3d 417, 421, 125 Cal.Rptr. 837.) If, as Harper urges, a violation of section 266a (where the victim is taken without consent rather than by fraud) necessarily constitutes a kidnapping in violation of section 207 plus a criminal intent that the offense be committed for the purpose of prostitution, we would normally expect the punishment for section 266a to be greater, not lesser, than the punishment for kidnapping alone. But, under Harper’s argument that the Williamson rule applies, we would have to conclude that the Legislature intended to punish the commission of a kidnapping more leniently solely because the perpetrator committed the kidnapping "for the purpose of prostitution." We think a more sensible interpretation of section 266a is that it does not require every element of kidnapping. Therefore, we reject Harper’s argument that "takes" as used in section 266a necessarily requires movement of the victim of a substantial character.
We have seen that the kidnapping statute contains three distinct elements: (1) the use of physical force or fear, (2) movement of the victim without the victim’s consent, and (3) movement of the victim is substantial in character. (Jones , supra , 108 Cal.App.4th at p. 462, 133 Cal.Rptr.2d 358 ; Martinez , supra , 20 Cal.4th at p. 237, 83 Cal.Rptr.2d 533, 973 P.2d 512 ) These three elements would appear to correspond to the language of section 207, subdivision (a), as follows: "forcibly, or by any other means of instilling fear" goes to the first element of force or fear, "steals or takes , or holds, detains, or arrests any person in this state" goes to the second element of moving the victim, and "carries the person into another country, state, or county, or into another part of the same county" goes to the third element of asportation. (Italics added.) Thus, it is the phrase "carries the person into" at least "another part of the same county" that signifies the movement is substantial in character. The word "takes" as used in the Penal Code does not, by itself, imply substantial movement as Harper claims.
c. Kidnapping for Extortion in Violation of Section 209(a)
Section 209(a) provides in relevant part, "Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony ...." (Italics added.)
Before 2018, section 518 defined extortion as "the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear , or under color of official right." (Former § 518, italics added, as amended by Stats.1939, ch. 601, ch. 1, p. 2017; see, e.g., Cross v. Cooper (2011) 197 Cal.App.4th 357, 387, fn. 18, 127 Cal.Rptr.3d 903 [quoting the language of former section 518].) Section 518’s definition of extortion applies to kidnapping for extortion under section 209(a). ( People v. Kozlowski (2002) 96 Cal.App.4th 853, 864, 117 Cal.Rptr.2d 504 ( Kozlowski ); 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against the Person, § 302, p. 1139.)
As we discuss in section B., below, section 518 was amended effective January 1, 2018. The former version of section 518 applies because Harper’s criminal conduct all occurred prior to 2018.
A violation of section 209(a) in which "no ... person suffers death or bodily harm," is punishable by "imprisonment in the state prison for life with the possibility of parole." (§ 209(a).)
In this case, the prosecution’s theory for the kidnapping for extortion charges was that Harper seized and held Doe 2 with the intent to extort money from Doe 2, where the money was to be obtained by forced prostitution, that is, by inducing Doe 2 to work as a prostitute "by a wrongful use of force or fear." (§ 518.) In her closing argument addressing the kidnapping for extortion counts, the prosecutor reminded the jury of Beck’s testimony and emphasized, "It’s all about money through the forced prostitution." (Italics added.)
Beck testified that Harper was looking for Doe 2 because she owed him money and ran away from him, and that Harper offered him money and drugs for information on her location. Beck also testified that Doe 2 told him Harper was trying to force her to work as a prostitute for him.
The elements of section 209(a) do not correspond to the elements of section 266a. So the question again is whether " ‘it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.’ " ( Murphy , supra , 52 Cal.4th at p. 86, 127 Cal.Rptr.3d 78, 253 P.3d 1216.) Here, we acknowledge we have little guidance on what section 266a precisely requires and what a typical offense might look like; there are few cases that discuss the statute and no CALCRIM jury instruction on the offense. But for Harper’s Williamson argument to prevail, we would have to interpret the phrase "for the purpose of prostitution" as used in section 266a to mean "for the purpose of inducing the victim to commit acts of prostitution by wrongful use of force or fear with the further intent to take property obtained through the victim’s forced prostitution ." Harper offers no authority for this interpretation of section 266a, and we decline to read the statute in that manner. Instead, we think section 266a could be violated by a person taking a victim without consent and against the victim’s will for the purpose of prostitution without the person using force or fear to obtain property from the victim. Thus, we cannot say a violation of section 266a will necessarily or commonly result in a violation of section 209(a).
For example, a person could take a victim against the victim’s will and commit an act of pandering against the victim in violation of section 266i (an offense which includes "[p]rocur[ing] another person for the purpose of prostitution " (italics added)). This conduct would constitute a violation of section 266a even though pandering does not require the use of force or violence (e.g., People v. Almodovar (1987) 190 Cal.App.3d 732, 746, 235 Cal.Rptr. 616 ), does not require that the panderer receive money (People v. Hashimoto (1976) 54 Cal.App.3d 862, 866, 126 Cal.Rptr. 848 ), and does not require that the panderer intend to procure the victim to engage in lewd acts with anyone other than the panderer himself (People v. Jacobo (2019) 37 Cal.App.5th 32, 45, 249 Cal.Rptr.3d 236 ). We do not mean to imply that a violation of section 266a requires an act of pandering. (On the contrary, any act of solicitation in violation of section 647, subdivision (b)(2), would likely qualify as "for purpose of prostitution" under section 266a.) Our only point is to suggest there may be many ways to violate section 266a that do not amount to a violation of section 209(a).
Since kidnapping for extortion in violation of section 209(a) contemplates more culpable conduct (the wrongful use of force or fear to obtain property) than is required for a violation of section 266a, "it is reasonable to infer that the Legislature intended to punish such conduct more severely." ( Murphy , supra , 52 Cal.4th at p. 87, 127 Cal.Rptr.3d 78, 253 P.3d 1216.) The Williamson rule is, after all, a rule for inferring the Legislature’s intention, and we find it difficult to believe the Legislature would have intended Harper’s conduct underlying counts 10 and 12 to be prosecuted under section 266a to the exclusion of section 209(a). Accordingly, we reject Harper’s challenge to his convictions of kidnapping for extortion under the Williamson rule.
B. Sufficiency of the Evidence of Kidnapping for Extortion
Harper next argues insufficient evidence supports his convictions of counts 10 and 12 because the conduct relied on by the prosecution did not qualify as extortion under section 518.
Section 209(a) "describes four different types of aggravated kidnapping: (1) for ransom; (2) for reward; (3) to commit extortion; and (4) to exact from another person any money or valuable thing. The crime of extortion ( Pen. Code, § 518 ) does not require that the fruits of the extortion be obtained from a third party." ( People v. Ibrahim (1993) 19 Cal.App.4th 1692, 1696, 24 Cal.Rptr.2d 269 ( Ibrahim ).) Only the fourth type of kidnapping in violation of section 209(a) ("to exact from another person any money or valuable thing") requires both a primary victim (the one who is seized) and a secondary victim (the one from whom money or a valuable thing is exacted). ( Ibid. ; Kozlowski , supra , 96 Cal.App.4th at p. 871, 117 Cal.Rptr.2d 504.)
The prosecution’s theory of kidnapping for extortion was that Harper twice seized Doe 2 with the intent to obtain money from her through forced prostitution. On appeal, Harper concedes he kidnapped Doe 2 "for purposes of prostituting her," but he argues neither Doe 2’s "body nor her sexual conduct" qualified as "property" under section 518 at the times Harper kidnapped Doe 2. Harper relies on an amendment to section 518 that went into effect on January 1, 2018. The statute now provides that extortion "is the obtaining of property or other consideration from another ..." and " ‘consideration’ means anything of value, including sexual conduct ... or an image of an intimate body part ...." ( § 518, subds. (a) and (b), italics added.) Although he twice kidnapped Doe 2 to obtain "sexual conduct" from Doe 2, Harper argues these actions did not qualify as kidnapping for extortion before the 2018 amendment to the extortion statute.
Again, at the relevant times, section 518 defined extortion as "the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right." (Former § 518.)
The Attorney General responds, "[Harper] did not kidnap [Doe 2] to have sex with her (though he did that too) or even to have her engage in sexual conduct with others, but to obtain money by hiring her out as a prostitute. Money has always qualified as property for purposes of extortion.... The amendment to section 518 is directed to those who seek to obtain sexual conduct as their end goal; such conduct, in and of itself, does not constitute property, and thus did not previously qualify as an object of extortion. Here, however, Jane Doe 2’s ‘sexual conduct’ was not the object of the extortion. The object of the extortion was the money [Doe 2] could earn by working as a prostitute; her sexual conduct was only an intermediate step necessary to acquire the money. This money was capable of being extorted within the meaning of section 209, subdivision (a) at the time of [Harper’s] crime[s]." We agree with the Attorney General. The prosecution’s theory was that Harper’s purpose in kidnapping Doe 2 was to obtain money from her. As the prosecutor argued to the jury, "It’s all about money through the forced prostitution." (Italics added.) Using force or fear to obtain money from a victim with her consent qualified as extortion prior to the amendment to section 518.
We note that Harper does not claim there was insufficient evidence that he kidnapped Doe 2 to force her to work as a prostitute so he could obtain money. To the contrary, he asserts he kidnapped her "to obtain prostitution services from Jane Doe 2." Because Harper ultimately wanted money from Doe 2’s forced prostitution services, his conduct qualified as extortion prior to the amendment to section 518. C. The Jury Instruction on Kidnapping for Extortion
We also note that Harper argues there was insufficient evidence to support the fourth type of aggravated kidnapping under section 209(a), "to exact from another person any money or valuable thing." The Attorney General does not dispute this, but the fourth type of aggravated kidnapping was not alleged or argued by the prosecution. This argument has no effect on the verdict.
Harper next contends his convictions of kidnapping for extortion (counts 10 and 12) must be reversed because CALCRIM No. 1202 is an incorrect statement of law. The Attorney General claims Harper forfeited this contention. But "the forfeiture rule ‘does not apply when ... the trial court gives an instruction that is an incorrect statement of the law.’ " ( People v. Gomez (2018) 6 Cal.5th 243, 312, 240 Cal.Rptr.3d 315, 430 P.3d 791 ( Gomez ).) Since that is what Harper contends happened in this case, we address the merits of his contention. (See ibid . )
1. CALCRIM No. 1202
CALCRIM No. 1202 describes five elements of aggravating kidnapping in violation of section 209(a). Harper argues the third element is incorrect. After describing in the first two elements the conduct against a victim the defendant must commit, CALCRIM No. 1202 provides, "3. The defendant did so (for ransom[,]/ [or] for reward[,]/ [or] to commit extortion[,]/ [or] to get money or something valuable."
The first element is that the defendant kidnapped, abducted, seized, confined, concealed, carried away, inveigled, enticed, or decoyed another person; the second element is that defendant held or detained the other person, or intended to hold or detain that person; the fourth element is that the other person did not consent to being kidnapped, abducted, seized, confined, concealed, carried away, inveigled, enticed, or decoyed; and the fifth element is that defendant did not actually and reasonably believe the other person so consented. (See CALCRIM No. 1202.)
This sentence corresponds to the four different types of aggravated kidnapping under section 209(a). The statutory language for the fourth type of aggravated kidnapping is "to exact from another person any money or valuable thing" (§ 209(a), italics added), which means there must be a primary kidnap victim and a secondary victim ("another person"). ( Ibrahim , supra , 19 Cal.App.4th at p. 1696, 24 Cal.Rptr.2d 269 ; Kozlowski , supra , 96 Cal.App.4th at p. 871, 117 Cal.Rptr.2d 504.) CALCRIM No. 1202 omits the phrase "from another person."
Harper argues, "By omitting the requirement of a secondary victim, CALCRIM [No.] 1202 relieves the prosecution of its burden of proving the element that the kidnapper intended to use the kidnapping victim to exact some kind of consideration from a third party or secondary victim." We agree that CALCRIM No. 1202 ’s description of the fourth type of aggravated kidnapping is incomplete, and we urge the Advisory Committee on Criminal Jury Instructions to consider adding language to the pattern instruction on the fourth type of aggravated kidnapping so that it is clear the defendant must act for the purpose of exacting money or something valuable from another person , that is, from a person other than the kidnap victim.
2. Jury Instruction Given
The relevant issue on appeal, however, is whether the challenged instruction given to the jury was misleading to Harper’s prejudice in the context of the instructions as whole and the arguments made at trial. ( Gomez , supra , 6 Cal.5th at p. 313, 240 Cal.Rptr.3d 315, 430 P.3d 791 [" ‘ "When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner." ’ "] ); ( People v. Young (2005) 34 Cal.4th 1149, 1202, 24 Cal.Rptr.3d 112, 105 P.3d 487 ["The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury"].)
Here, the trial court gave an adapted version of CALCRIM No. 1202 that began, "The defendant [is] charged in Counts Ten and Twelve with Kidnapping for Extortion or Getting Money or Something Valuable in violation of Penal Code section 209(a)" and provided, as relevant to Harper’s argument: "To prove that the defendant is guilty of this crime, the People must prove beyond a reasonable doubt that: [¶] 1. The defendant kidnapped, abducted, seized, confined, concealed, or carried away Jane Doe #2 ...; [¶] 2. The defendant held or detained Jane Doe #2 ...; [¶] 3. The defendant did so to commit extortion or to get money or something valuable ...." (Italics added.)
The instruction also provided a definition of extortion: "Someone intends to commit extortion if he or she intends to: (1) obtain a person’s property with the person’s consent and (2) obtains the person’s consent through the use of force or fear. When a person is charged with kidnapping for Extortion the crime is completed when the kidnapping or confinement was accomplished. It is not required that the People prove that the intended extortion was accomplished."
3. Analysis
The problem with the challenged instruction is that it contained additional language, "or to get money or something valuable," which is supposed to be given when the prosecution relies on the fourth type of aggravated kidnapping, but the prosecution in this case did not allege or argue that Harper committed this type of aggravated kidnapping. Harper argues the instruction had the effect of relieving the prosecution of its burden of proving each element of the charged offenses beyond a reasonable doubt. This claim is premised on the theory that the jury would have understood that it was being instructed on two alternative theories of liability for the aggravated kidnapping charges of counts 10 and 12, so that it could convict if it found Harper guilty of either kidnapping for extortion or kidnapping to exact from another person any money or valuable thing. The question is whether there is a reasonable likelihood the jury applied the instruction in this manner. ( Gomez , supra , 6 Cal.5th at p. 313, 240 Cal.Rptr.3d 315, 430 P.3d 791.)
Harper claims the jury only could have understood the sentence as describing two different theories of liability for aggravated kidnapping. The Attorney General maintains the jury most likely understood the phrase "or to get money or something valuable" as a partial explanation of extortion, not as an alternative theory of liability. We believe the Attorney General has the better argument.
First, the jury was never told that there are four different types of aggravated kidnapping, so the jury had no reason to think that more than one type of aggravated kidnapping might be applicable in the case. Second, the jury’s understanding of the instruction would have been informed by the attorneys’ arguments, and the prosecutor and the defense attorney in this case discussed only kidnapping for extortion in their closing arguments.
Harper claims the prosecutor relied on the challenged jury instruction to argue he could be guilty of the fourth type of aggravated kidnapping while omitting the requirement that money be extracted from another person. We disagree with Harper’s characterization of the prosecutor’s closing argument. The prosecutor argued only that Harper committed kidnapping for extortion. She never suggested Harper could be found guilty of counts 10 and 12 absent proof beyond a reasonable doubt that he seized and held Doe 2 to commit extortion . Likewise, defense counsel discussed only kidnapping for extortion because that was the sole type of aggravated kidnapping at issue.
Third, the word "or" has more than one meaning. Although "or" is used to indicate "an alternative between different or unlike things, states, or actions," the word "or" can also be used to indicate "the synonymous, equivalent, or substitutive character of two words or phrases," such as in the example "lessen or abate." (Webster’s Third New Internat. Dict. (1961) p. 1585.) Considering the sentence in the context of the overall instructions and argument, the jury would have understood the initial "or" in the sentence "The defendant did so to commit extortion or to get money or something valuable" as indicating a synonymous, equivalent or substitutive phrase. That is, the jury would have understood the phrase "to get money or something valuable" to be an equivalent or substitute phrase for the previous phrase "to commit extortion," not an alternative theory of liability for aggravated kidnapping. Given the evidence presented at trial and the arguments made by counsel, the jury would not have interpreted the challenged instruction as describing two different theories of liability for aggravated kidnapping, one of which was never mentioned at trial. As the Attorney General observes, "Such an interpretation would be nonsensical in the context of this case." We conclude there is no reasonable likelihood the jury applied the challenged instruction in an impermissible manner ( Gomez , supra , 6 Cal.5th at p. 313, 240 Cal.Rptr.3d 315, 430 P.3d 791 ), and, consequently, we reject Harper’s argument that his convictions of kidnapping for extortion must be reversed because the jury instruction given included an incorrect statement of law. Stated differently, we are satisfied beyond a reasonable doubt that the challenged instruction did not contribute to the jury’s verdict on counts 10 and 12. (See ibid. , citing People v. Wilson (2008) 44 Cal.4th 758, 803–804, 80 Cal.Rptr.3d 211, 187 P.3d 1041 ; Wilson at p. 804, 80 Cal.Rptr.3d 211, 187 P.3d 1041 [finding technical error in written instructions harmless beyond a reasonable doubt].)
See footnote *, ante .
DISPOSITION
The true finding on the firearm enhancement allegation for count 12 is reversed. The 10-year enhancement imposed under section 12022.53 is stricken. The enhancements for prior serious felonies are stricken as to count 1 (conspiracy to commit human trafficking) and count 15 (human trafficking). The matter is remanded for resentencing pursuant to sections 667, subdivision (a), and 1385, subdivision (b), as amended by S.B. 1393. The judgment is otherwise affirmed.
We again note that the abstract of judgment filed November 3, 2017, incorrectly reflects that the firearm enhancement was attached to count 15. To be clear, the only firearm enhancement in this case was attached to count 12, and we are reversing it. The jury did not find a firearm enhancement for count 15. When Harper is resentenced, there should be no firearm enhancement attached to any count.
We concur:
Richman, Acting P.J.
Stewart, J.