California Court of Appeal Jul 26, 2024 No. E080881Unpublished
Filed 7/26/24 P. v. Brown CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080881
v. (Super.Ct.No. BAF2001355)
JESSIE JAMES BROWN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Rene Navarro, Judge
Affirmed in part and remanded for resentencing.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Namita
Patel, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Jessie James Brown of multiple counts, including
aggravated kidnapping and attempted rape. He argues the record contains insufficient
evidence his movement of the victim satisfied the asportation element of aggravated
kidnapping. He also argues, and the People concede, the trial court should have applied 1 Penal Code section 654 to stay punishment for some of his offenses. We reject his first
count 3); false imprisonment (§ 236, count 4), and assault with force likely to produce
great bodily injury (§ 245, subd. (a)(4), count 5). The amended information also alleged
several aggravating factors (Cal. Rules of Court, rule 4.421(a)(1) & (a)(3)) and that
Brown had a strike prior (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). The jury
found Brown guilty of only the lesser included offense of attempted rape on count 1,
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found him guilty as charged on counts 2 through 5, and found true the aggravating factor
and strike prior allegations.
The trial court imposed punishment for each count, running all the sentences
consecutive to each other. On count 1, the court imposed the upper term of four years,
doubled to eight years by the strike prior. On count 2, it imposed a consecutive term of
seven years to life, doubled to 14 years to life by the strike prior. On count 3 and 4, it
imposed consecutive terms of one year and four months each. On count 5, it imposed a
consecutive term of two years. In all, the trial court sentenced Brown to an aggregate
term of 12 years and eight months plus 14 years to life.
DISCUSSION
A. Aggravated kidnapping
Brown argues his movement of the victim from the kitchen to the bedroom “was
not substantial but was merely incidental to the attempted rape and did not increase the
risk of harm to her.” We are not persuaded.
“The essence of aggravated kidnapping is the increase in the risk of harm to the
victim caused by the forced movement.” (People v. Dominguez (2006) 39 Cal.4th 1141,
1152 (Dominguez).) Thus, kidnapping to commit rape “requires that the movement of
the victim be for a distance which is more than that which is merely incidental to the
commission or attempted commission of rape . . . , and that this movement substantially
increase the risk of harm to the victim over and above that necessarily present in the
commission or attempted commission of these crimes.” (People v. Rayford (1994) 9
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Cal.4th 1, 22 (Rayford); see § 209, subd. (b)(2).) “These two aspects are not mutually
exclusive, but interrelated.” (Rayford, at p. 12.)
“Whether the forced movement of the victim was merely incidental to the target
crime, and whether that movement substantially increased the risk of harm to the victim,
‘is difficult to capture in a simple verbal formulation that would apply to all cases.’”
(People v. Curry (2007) 158 Cal.App.4th 766, 780.) Our Supreme Court has “articulated
various circumstances the jury should consider, such as whether the movement decreases
the likelihood of detection, increases the danger inherent in a victim’s foreseeable
attempts to escape, or enhances the attacker’s opportunity to commit additional crimes.”
(Dominguez, supra, 39 Cal.4th at p. 1152.) The distance the victim was forced to move
is “necessarily” part of the analysis, but “no minimum distance is required . . . so long as
the movement is substantial.” (Id. at p. 1152.) “Where movement changes the victim’s
environment, it does not have to be great in distance to be substantial.” (People v.
Shadden (2001) 93 Cal.App.4th 164, 168-169 (Shadden) [movement of nine feet from
front counter of store to back room was substantial and increased victim’s risk of harm].)
Here, Brown moved the victim only a short distance, from the kitchen to the back
bedroom of his apartment. But this additional distance from the front door, combined
with Brown closing the door as they moved, decreased the likelihood of detection by
preventing the victim from calling out for help or a bystander again interrupting the
attack. (See, e.g., People v. Robertson (2012) 208 Cal.App.4th 965, 985 (Robertson)
(“‘[A] rape victim is certainly more at risk when concealed from public view and
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therefore more vulnerable to attack.’”]; Shadden, supra, 93 Cal.App.4th at p. 170
[movement “placed [the victim] out of public view”].) A neighbor in fact had been at the
front door moments before Brown moved the victim.
The movement away from the door also “reduced the possibility that the victim
could escape.” (Robertson, supra, 208 Cal.App.4th at p. 985.) Moreover, “[w]here 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.”
(Shadden, supra, 93 Cal.App.4th at p. 169.) There was ample basis for the jury to
conclude Brown moved the victim a distance that was substantial under the
circumstances, not merely incidental to the rape, and increased the risk of harm to the
victim.
Brown’s comparison of this case to People v. Perkins (2016) 5 Cal.App.5th 454
(Perkins) is unpersuasive. In this case, as in Perkins, the victim was moved “from one
room to another inside a small apartment.” (Id. at p. 470.) Here, however, there was
evidence of a meaningful change in the victim’s environment, to a secluded bedroom
from a space visible from the outside through an open screen door. That was not the case
in Perkins, where the bathroom where the attack started and the bedroom where the
victim was moved were equally concealed. (Id. at p. 470.) Here, the movement
decreased the victim’s chance to escape. In Perkins, the court found no evidence that the
movement made escape more difficult and speculated that the bedroom where the victim
was moved “may have actually given her more of an opportunity.” (Ibid.) Here, Brown
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began the sexual attack only once the victim was moved to the bedroom, after 20 or 30
minutes of struggling in the kitchen. In Perkins, the defendant “had the opportunity to
commit whatever crime he wanted in both rooms, and he did.” (Ibid.) These differences
distinguish this case from Perkins.
Brown’s comparison to People v. Waqa (2023) 92 Cal.App.5th 565 is no more
persuasive. In that case, the victim was moved from one stall to another within a public
bathroom. (Id. at p. 580.) That movement “may have made it easier for [the defendant]
to complete the rape,” but the victim’s risk of harm beyond that inherent in the rape “was
not clearly increased in the large stall,” and “the two stalls did not significantly differ in
the opportunities they afforded for detection or escape.” (Id. at pp. 580, 582-583.) Here,
in contrast, evidence supported the conclusion that the movement was substantial and
increased the victim’s risk of harm, despite the short distance, as the kitchen and the back
bedroom of Brown’s apartment were qualitatively different environments,
We find substantial evidence supports Brown’s conviction for aggravated
kidnapping.
B. Section 654
Brown argues, and the People concede, the trial court should have stayed
punishment for some of his conviction offenses under section 654, though the parties
disagree about how exactly section 654 should apply. We agree the court erred, so we
remand for the trial court to decide the disputed factual issues and resentence Brown.
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Section 654 prohibits multiple punishments for multiple offenses committed by a
single act or during an indivisible course of conduct. (People v. Pinon (2016) 6
Cal.App.5th 956, 967.) A course of conduct is generally indivisible if the defendant
harbored a single criminal objective the entire time. (People v. Gaio (2000) 81
Cal.App.4th 919, 935.) “However, if the defendant harbored ‘multiple or simultaneous
objectives, independent of and not merely incidental to each other, the defendant may be
punished for each violation committed in pursuit of each objective even though the
violations share common acts or were parts of an otherwise indivisible course of
conduct.’” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) “The temporal
proximity of two offenses is insufficient by itself to establish that they were incidental to
a single objective.” (People v. Vasquez (2020) 44 Cal.App.5th 732, 737.) “Objectives
may be separate when ‘the objectives were either (1) consecutive even if similar or (2)
different even if simultaneous.’” (Ibid.)
Also, even where a course of conduct is “directed to one objective,” multiple
punishments are justified if the acts comprising the course of conduct are “divisible in
time.” (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) In this context, acts are
divisible in time if the defendant had sufficient time between them to “reflect upon what
he had already done . . . and what he was about to do.” (People v. Lopez (2011) 198
Cal.App.4th 698, 718.)
“‘The question of whether the acts of which defendant has been convicted
constitute an indivisible course of conduct is primarily a factual determination, made by
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the trial court on the basis of its findings concerning the defendant’s intent and objective
in committing the acts.” (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “The
court’s express or implied findings in support of its determination that section 654 does
not apply will be upheld on appeal if substantial evidence supports them.” (People v.
Cruz (2020) 46 Cal.App.5th 715, 737.) “‘Errors in the applicability of section 654 are
corrected on appeal regardless of whether the point was raised by objection in the trial
court or assigned as error on appeal.’” (People v. Hester (2000) 22 Cal.4th 290, 295.)
The parties agree, as do we, that the trial court erred by imposing punishment for
both count 1 and count 2. Where a kidnapping and sexual assault are separate acts, but
the purpose of the kidnapping was to facilitate the sexual assault, section 654 bars
imposing punishment for both offenses. (E.g., People v. Latimer (1993) 5 Cal.4th 1203,
1216.) This case therefore must be remanded for the trial court to exercise its discretion
as to which punishment to stay. (See § 654, subd. (a) [“An act or omission that is
punishable in different ways by different provisions of law may be punished under either
of such provisions, but in no case shall the act or omission be punished under more than
one provision”].)
The parties disagree as to whether counts 3 and 5 are part of the same indivisible
course of conduct as count 1, though they agree that the trial court erred by imposing
punishment on both those counts. The People’s view is that under section 654, it was
proper to impose punishment for either count 3 or 5, but not both. Brown’s view is that
counts 3 or 5 are not only part of the same indivisible course of conduct as one another,
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but also count 1. The trial court had no opportunity to consider these views, because
neither party expressed them until this appeal. Since we have concluded the case must be
remanded for resentencing, we will refrain from opining on this disputed issue of fact, so
the trial court may decide it in the first instance.
DISPOSITION
The case is remanded for resentencing consistent with section 654. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
RAMIREZ P. J. MILLER J.
11
AI Brief
AI-generated · verify before citing
Holding. The court held that sufficient evidence supported the defendant's conviction for aggravated kidnapping and remanded the case for resentencing because the trial court failed to properly apply Penal Code section 654 to stay punishment for multiple offenses arising from an indivisible course of conduct.
Issues
Whether there was sufficient evidence to support the asportation element of aggravated kidnapping.
Whether the trial court erred by failing to stay punishment for multiple offenses under Penal Code section 654.
Disposition. Affirmed in part and remanded for resentencing.
Quotations verified verbatim against the opinion
“The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement.”
“Where a kidnapping and sexual assault are separate acts, but the purpose of the kidnapping was to facilitate the sexual assault, section 654 bars imposing punishment for both offenses.”