Opinion
NOT TO BE PUBLISHED
San Francisco City and County Super. Ct. No. 203489
SIMONS, J.
Prosecutors charged Larry Lionel White (appellant) with kidnapping for rape (Pen. Code, § 209, subd. (b)(1)) (count 1) and rape (§ 261, subd. (a)(2)) (count 2) of Cheryl P.; and with kidnapping for rape (§ 209, subd. (b)(1)) (count 3), rape (§ 261, subd. (a)(2)) (count 4), and kidnapping for robbery (§ 209, subd. (b)(1)) (count 5) of Kei C. Additionally, prosecutors alleged great bodily injury (§ 12022.7, subd. (a)) for counts 1, 3 and 5; great bodily injury (§ 667.61, subd. (e)(3)) for counts 2 and 4; kidnapping (§ 667.61, subd. (e)(1)) for counts 2 and 4; and multiple victims (§ 667.61, subd. (e)(5)) for counts 2 and 4. Appellant was convicted on all counts, and the jury found all enhancement allegations to be true except for great bodily injury for counts 1 and 2.
All further undesignated section references are to the Penal Code.
Appellant was sentenced to 25 years to life on count 4 (§ 667.61, subd. (a)), a consecutive term of 25 years to life on count 2 (§ 667.61, subd. (a)), and a concurrent term of life with the possibility of parole plus three years on count 5, for a total prison term of 50 years to life with the possibility of parole.
Appellant appeals only his convictions on counts 3 and 5, kidnapping for rape and kidnapping for robbery of Kei C. (Victim). Appellant raises the identical argument as to each count that the evidence at trial was insufficient to establish that the fear Victim felt at the time of asportation was reasonable under the circumstances. Because the record reveals substantial evidence that the fear was reasonable, we affirm.
FACTUAL BACKGROUND
Since appellant only appeals counts concerning Victim, the factual background is limited to events regarding the crimes committed against her. In December 1998, Victim, a 21-year-old Japanese tourist, was visiting San Francisco. Victim planned to travel to Los Angeles and went to the airport. However, before departing she decided to stay in San Francisco. When she arrived back in the city, she was unable to find lodging due to the late hour. Victim sat down and slept against a building at Market and Kearney. Around 2:00 a.m., a man tapped her shoulder to get her attention. The man tried to speak with her, but Victim could not understand, either because her English was not very good or because he was drunk, or both. The man left when the Victim did not respond to him, but returned two or three minutes later with appellant. Appellant was 5 feet 10 inches tall, 180 pounds, and roughly 40 years old.
Appellant tapped Victim’s shoulder and asked her if she planned to sleep there. She understood him, and responded affirmatively in English. Appellant then told Victim that it was dangerous to sleep on that street, and that she should sleep at his place. Because appellant was a stranger, Victim rejected his offer. However, appellant did not relent, and asked Victim repeatedly with an increasingly harsh tone to come to his home. Victim refused appellant’s requests, whereupon appellant grabbed her by the arm and pulled her to her feet. At this point, Victim became very afraid and complied with appellant’s demands to accompany him.
Both men walked with Victim for five to 10 minutes. Appellant’s confederate then left without saying anything, leaving Victim alone with appellant. Victim was very afraid and wanted to run away, but feared that she would be unable to outrun appellant. She continued to walk with appellant for another 20 to 30 minutes, not knowing where he was taking her. As Victim testified, “... I was scared.... I felt I couldn’t run away.” Eventually appellant brought Victim to a parking lot where he beat, raped and robbed her.
The case was delayed many years due to a failure to analyze DNA samples taken from Victim and Cheryl P. In 2003, the DNA samples regarding both victims were analyzed, and matched with the sample taken from appellant. Appellant was charged in 2005.
DISCUSSION
Appellant concedes that the evidence is sufficient to show Victim feared him, but argues there was insufficient evidence her fear was reasonable under the circumstances. We disagree; there was substantial evidence at trial that Victim’s fear was reasonable.
When faced with a sufficiency of the evidence claim, we must “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) In so doing, we “ ‘... presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citations.]” (Id. at pp. 576-577.) If we find substantial evidence, the ruling is affirmed.
The only authority appellant cites to support his claim that Victim’s fear was unreasonable is People v. Dagampat (1959) 167 Cal.App.2d 492 (Dagampat). In Dagampat, the 15-year-old victim was walking down the street when a group of three young men in a convertible accosted him. One of the men in the car, Valencia, exited and then entered a drugstore. The victim had recently witnessed one of the others in the car stab someone in a fight. The third person in the case, Dagampat, told the victim, “ ‘Get into the car. I want to talk to you about the fight.’ ” (Id. at p. 493.) Valencia stepped out of the drugstore and stood behind the victim while the two men in the car gave him what he perceived as “ ‘dirty looks.’ ” (Ibid.) At this point, the victim feared that he would be stabbed. The victim was never actually threatened, but after he entered the car he was driven to an alleyway and beaten. (Ibid.) The question in Dagampat was whether the victim entered the car because of a reasonable fear of harm, and the court held that the victim’s fear was reasonable under the circumstances, upholding a conviction under section 207 for kidnapping. (Dagampat, at pp. 494, 496.)
Appellant stresses that in Dagampat the victim had specific knowledge that one of the defendants had recently stabbed someone, while Victim had no prior knowledge of appellant. But in Dagampat, the court never asserted that such knowledge was necessary in order to have a reasonable fear. Indeed, Dagampat held that the “factors influencing [the victim’s] decision [are] not to be analyzed separately, but as parts of a single indivisible transaction. The gravamen of the offense of kidnapping is some form of compulsion. [Citation.] The requisite force or compulsion need not consist of the use of actual physical force or of express threats; the taking is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he [or she] fears harm or injury from the accused, and his [or her] apprehension is not unreasonable under the circumstances. [Citation.]” (Dagampat, supra, 167 Cal.App.2d at p. 495.)
Dagampat noted that the victim was outnumbered with one member of the group behind him, the group wanted to talk about the stabbing he had witnessed, and the foreseen result of refusing the command was “a knife thrust into [his] ribs.” (Dagampat, supra, 167 Cal.App.2d at p. 495.) The court reasoned that, based upon all of the factors influencing the victim, “It is difficult for us to see how it was unreasonable for [the victim] to fear harm that might come from his refusal to enter the car....” (Ibid.)
While in the instant case Victim did not know appellant’s past when he approached her, all of the factors influencing Victim, taken as a single indivisible transaction, show Victim’s fear to be objectively reasonable. Two men confronted her and one of the men appeared to be drunk. Her back was up against a building, preventing escape. Appellant strongly insisted that Victim accompany him to his “place, ” and, in order to encourage her to comply after she declined, he forced her to stand by grabbing her arm. It was reasonable for Victim to fear harm from a pair of strangers accosting her at 2:00 a.m. with one insisting, in a harsh tone and with the use of physical force, that she come with them after she failed to comply.
People v. Majors (2004) 33 Cal.4th 321 (Majors) is instructive. In Majors the defendant impersonated a mall security guard and told the female victim that she had to return to the mall with him because she was suspected of shoplifting. The victim feared being arrested, even though she had not actually stolen any property. Based upon that fear, the victim agreed to ride with the defendant back to the mall. The defendant was unknown to the victim. (Id. at p. 324.) The defendant did not “display any weapons, threaten, or touch” the victim, until the vehicle reached its destination. (Id. at p. 325.) Once there, the defendant attempted to sexually assault the victim. (Ibid.) The court determined that the victim’s fear of harm was objectively reasonable. (Id. at p. 331.) Relying in part on Dagampat (Majors, at p. 327), the court held, “if the defendant’s conduct or statements cause the victim to believe that unless the victim accompanies the defendant the victim will be forced to do so, and the victim’s belief is objectively reasonable, ” then the conduct or statements are sufficient to satisfy the force or fear element of section 207 (Majors, at p. 331). The court concluded that, even without explicitly threatening the victim or using any physical force, the defendant’s actions violated the victim’s consent and constituted a kidnapping. (Id. at p. 332.)
In the instant case appellant acted more egregiously than the defendant in Majors. He used a harsh tone and physical force to compel Victim to come with him. Victim reasonably feared that if she did not comply with appellant, she would be subject to harm, injury, or forced compliance. Appellant had already pulled Victim to her feet by her arm. At that point, it was objectively reasonable for her to believe that continued defiance would result in appellant’s use of greater physical force against her.
DISPOSITION
Appellant’s convictions on counts 3 and 5 are affirmed.
We concur. JONES, P.J., BRUINIERS, J.