In re D.J

Filed 3/21/06 In re D.J. CA2/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of wardship of the Superior Court of Los Angeles County, Stephanie Davis, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part, vacated in part, and remanded with directions.

Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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D.J., a minor, appeals from the order of wardship (Welf. & Inst. Code, § 602) entered following a determination that he committed count 1 - kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)), count 2 - sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)), count 3 - attempted forcible rape (Pen. Code, §§ 664, 261, subd. (a)(2)), and count 4 - forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)). The court ordered appellant committed to the California Youth Authority for a maximum period of physical confinement of life.

In this case, we hold there was sufficient evidence that appellant committed kidnapping to commit rape. Appellant forcibly moved the victim from her car in a parking lot open to public view to a partially secluded and isolated stairwell landing where he tried to rape her, and the elevation of the landing increased the risk that she would fall from the landing in an effort to escape. Accordingly, appellant's asportation of the victim was not merely incidental to rape, appellant's movement of the victim increased the risk of harm to the victim over and above that necessarily present in rape, and there was sufficient evidence that he committed kidnapping to rape.

We also hold that this case must be remanded to permit the trial court to cause the record to reflect that the court set the maximum term of confinement based on the facts and circumstances of the case as required by Welfare and Institutions Code section 731, subdivision (b).

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established as follows. On June 20, 2004, K.F. parked her car in the open parking lot behind the building in which she worked. The front of K.F.'s car was parked facing, and perpendicular to, the building. A walkway was adjacent to the building and between the car and building. The portion of that walkway which was left of the car (as one faces the building) continued to the left to the building's exterior stairwell.

The first flight of stairs of the stairwell, consisting of four steps, ascended away from the building to a rectangular concrete landing. The second flight ascended from the landing towards the building and an office door. The first flight, landing, and at least a portion of the second flight were enclosed by a brick wall. The brick wall was about waist high.

The first side of the brick wall proceeded up the first flight and continued adjacent to one of the short sides of the landing. The first side of the brick wall faced the driver's side of the car. The brick wall then turned right at a right angle and, creating a second side, continued adjacent to one of the long sides of the landing until the brick wall stopped at, and perpendicular to, a white wall. A dumpster was in front of the second side of the brick wall and a short distance from it. The brick wall then turned right at a right angle and, creating a third side, continued adjacent to the other short side of the landing, then proceeded up at least a portion of the second flight of stairs. The third side of the brick wall was adjacent to the white wall with the result that the brick wall on that side at the landing formed a ledge about waist-high and a person could sit on that ledge with the white wall as a backrest.

A person who fell from the first side of the brick wall (the side facing the car) would fall straight to the parking lot, that is, the distance from the top of that brick wall to the landing to the parking lot. The bricks in the first and second sides of the brick wall were laid so that there were vertical columns of intermittent brick-sized openings in those sides of the brick wall. However, as mentioned, a dumpster was near the second side of the brick wall. The dumpster's lid was open and leaning against the second side of the brick wall, with the result that the dumpster and lid partially obscured any view through the openings that a person otherwise might have had of the landing on that side. A person falling from the second side of the brick wall would possibly fall onto the lid and/or into the dumpster, which was filled with trash.[1]

Shortly before 4:00 p.m. on June 20, 2004, K.F. left her workplace, walked to a nearby business, then went to the above mentioned parking lot. About 3:50 p.m., K.F. approached her car and was preparing to go to its driver's side door. Appellant approached her from behind and put his hand over her mouth. He grabbed her from behind and pushed her along the driver's side of the car, past its front, and towards the building. Appellant claimed he had a knife and threatened to kill K.F. with it if she screamed. He then forced her to the above mentioned stairwell.

Appellant took his hand from K.F.'s mouth. She told appellant that he could take anything he wanted from her purse, but appellant replied he did not want her money. Appellant told K.F. that he was going to rape her. At that time, K.F. was at the base of the first flight of stairs.

Appellant forced K.F. to ascend the stairs sideways, leading with her left side. While K.F. was on the first step, K.F., as a ruse, told appellant that she had herpes and he would have it the rest of his life. Appellant asked her what herpes was. K.F. replied it was very contagious and he would never get rid of it. K.F. began crying, but appellant threatened to take out his knife and kill her if she did not stop crying. K.F. stopped crying and appellant continued pushing her up the first flight. K.F. went with appellant because she was afraid he would kill her as he had threatened to do.

K.F. was on the landing, and appellant was one step from it, when K.F. told appellant she was not going to have sex with him. Appellant replied okay and told her to urinate on him. This startled K.F., but she told him okay, concluding it would be better to urinate on him than be raped.

Appellant took K.F.'s jacket, wrapped it loosely around her head, and told her not to look at his face. Appellant laid down on the landing on his back with his feet towards the white wall and his head towards the car. He made her straddle and squat over his face as she faced towards the car. Appellant used a hand to move her underwear, then orally copulated her.

K.F. jerked away and the jacket fell from her head. Appellant stood, appeared frustrated, and told her to sit on the ledge of the first side of the brick wall with her back facing the car. K.F. replied she was afraid to do so because she might fall from the ledge. Appellant told K.F. to go to the other side and motioned her towards the third side of the brick wall. He put his hands on her arms and pushed her towards the third side. K.F. complied because she was afraid. Appellant told her to sit on the brick ledge where the third side of the brick wall was adjacent to the white wall. K.F. did so and her feet were off the ground. K.F. was wearing a short dress and appellant removed her underwear. Appellant digitally penetrated her vagina.

Appellant unzipped his jeans and exposed his erect penis. K.F., trying to avoid being raped, asked appellant what about the urinating. Appellant replied okay and told her to lift herself above the ledge so he could put himself under her. K.F. lifted herself above the brick ledge and appellant put his erect penis under her so that it was touching her. Appellant told K.F. to urinate on him. K.F. tried to do so but could not, and appellant told her he would count to three and if she did not comply he would take out his knife and kill her. K.F. asked for more time and said she was trying.

Shortly thereafter, appellant became angry. He yanked her off the ledge and onto the landing, and told her to lie down on the landing. K.F. testified she did not want to comply â€