Filed 5/30/13 P. v. Fraga CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046178

         v.                                                            (Super. Ct. No. 09CF1318)

ALFREDO FRAGA,                                                         OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gary S.
Paer, Judge. Affirmed.
                   Christine Vento, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Andrew Mestman and Vincent P. LaPietra, Deputy Attorneys General,
for Plaintiff and Respondent.
              Alfredo Fraga appeals from a judgment after a jury convicted him of two
counts of sexual penetration by force. As to each count, the jury found Fraga kidnapped
his victim in the commission of the offenses. Fraga argues insufficient evidence supports
the jury’s finding he kidnapped the victim. We disagree and affirm the judgment.
                                         FACTS
              One early afternoon, Sheryl M. (Sheryl), a 58-year-old woman, was
walking on the Esplanade Trail in North Tustin listening to music on her IPod. The trail
runs adjacent to Esplanade Avenue, which is a paved two-lane road. Gravel, trees, and
bushes separate the road from the trail, and another area of bushes separates the opposite
side of the trail from the backyards of multiple homes. The well-marked trail is used by
many local residents for exercise and recreation. Pedestrians on the trail can see passing
cars on Esplanade Avenue, and commuters on Esplanade Avenue can see pedestrians on
the trail.
              As Sheryl walked down the trail, she saw Fraga, who is approximately
six feet, one inch tall and weighs about 250 pounds, cross Esplanade Avenue and walk
onto the trail ahead of her. Fraga was dressed in jogging clothes, and he pretended to tie
his shoes on a bench as Sheryl walked past him. Fraga and Sheryl did not say anything to
each other as she passed, but they made eye contact. Sheryl had never seen Fraga before
that day.
              Shortly thereafter, Fraga approached Sheryl from behind and grabbed her
around her arms and waist. Sheryl immediately recognized Fraga, the man she had
previously passed on the trail, as her attacker. Fraga dragged Sheryl backwards behind
the bushes between the trail and the backyards of the homes adjacent to the trail. After
Fraga dragged Sheryl behind the bushes, he assaulted her by putting his hands down her
pants and forcing his fingers into her vagina and anus.




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              Sheryl was able to scream for help throughout the attack, despite Fraga
telling her to “shush” as he dragged and subsequently assaulted her. Her cries for help
were eventually heard by residents of the nearby homes and commuters on Esplanade
Avenue.
              Ronald Fortier, one of the residents whose backyard abuts the bushes where
the assault occurred, heard Sheryl’s screams while he was working in his backyard. After
hearing Sheryl’s screams, Fortier slowly proceeded through his backyard gate, which
opens onto the trail. Although Fortier could not tell what had happened before he opened
his gate, he saw Fraga fleeing. Fortier yelled for his wife to call 911.
              James Hohman, a commuter on Esplanade Avenue, heard Sheryl’s screams
as he and his wife drove past the location where the assault occurred. Hohman turned his
car around and proceeded back towards the location where he believed he heard Sheryl’s
screams. Once there, Hohman saw Fraga leaving the area by walking, and later running,
along the edge of the trail. Hohman got out of his car and asked his wife to bring
Scott Steinle, an off-duty sheriff who lived in the neighborhood, to the scene. Hohman
followed Fraga down the trail until Steinle arrived and apprehended Fraga.
              After a law enforcement officer advised Fraga of his rights pursuant to
Miranda v. Arizona (1966) 384 U.S. 436, Fraga admitted he approached a woman who he
thought was a former teacher, but when she yelled, Fraga backed away without having
touched the woman. A sexual assault examination revealed injures consistent with
forcible sexual penetration. Sheryl’s DNA could not be excluded as the source of the
DNA that was found on fingernail scrapings from Fraga’s right hand.
              An amended information charged Fraga with two counts of sexual
penetration by foreign object by force (Pen. Code, § 289, subd. (a)(1)-counts 1 & 2).1 As




1             All further statutory references are to the Penal Code.

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to both counts, the amended information alleged Fraga kidnapped Sheryl in violation of
sections 207, 209, and 209.5 (§ 667.61, subds. (b) & (e)(1)).
              At trial, Sheryl, Fortier, Steinle, and Hohman testified consistently with the
events described above. During Sheryl’s testimony, the prosecutor had her view three
photographs, exhibit Nos. 2, 10, and 15, which depict different vantage points of the trail,
the bushes adjacent to the trail, the area where the assault occurred, and the walls of
residential backyards that abut the trail area. Sheryl used a pen to place a mark on each
of these photographs in order to indicate where the assault took place.
              Exhibit No. 2 depicts a view of the area where the assault occurred, the
surrounding bushes, and Fortier’s backyard wall. Exhibit No. 10 depicts the trail, the
narrow space between the bushes through which Fraga dragged Sheryl, and the area
between the bushes and Fortier’s backyard wall where the assault occurred. Finally,
exhibit No. 15 depicts a slightly different view of the trail, the space between the bushes,
and the area where the assault occurred. During trial, Sheryl placed two marks, “X1” and
“X2,” on exhibit No. 15 to indicate: (1) where Fraga initially attacked her, “X1”; and (2)
where the assault occurred, “X2”.
              On cross-examination, Sheryl clarified that one day after the attack she told
a police officer she estimated Fraga dragged her three-to-five feet when he forced her
from the trail to the area where the assault occurred. That police officer testified he
recalled Sheryl told him that she was not very good at estimating distances before she
provided him with her three-to-five foot estimate.
              Fortier, the neighbor who saw Fraga run from the scene as he looked out
onto the trail area from his backyard gate, testified as to the authenticity of
12 photographic exhibits offered by the prosecution, including exhibits Nos. 2 and 10.
Nine of those photographs are included in the record for our review. These photographs
depict varying vantage points of the immediate and surrounding area where the assault
occurred. Altogether, these photographs show the bushes Sheryl was dragged behind

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were thick and nearly as tall as Fortier’s backyard wall. Moreover, the photos show the
ground from the trail to the area behind the bushes slopes downward approximately one-
to-two feet in elevation.
              The teacher that Fraga claimed he recognized testified she was not aware of
the Esplanade Trial and was not there on the day of the incident. Fraga offered testimony
from numerous mental health professionals who testified concerning his mental health,
the medications he was prescribed, and their side effects, including hallucinations.
              The jury convicted Fraga on counts 1 and 2 and found true the kidnapping
enhancements. The trial court sentenced Fraga on each of the two counts to 15 years to
life but the court ran the sentence on count 2 concurrent to the sentence on count 1.
                                       DISCUSSION
              Fraga argues insufficient evidence supports the jury’s finding on the simple
kidnapping enhancement because: (1) the distance he dragged Sheryl to force her behind
the bushes was insubstantial; and (2) his dragging of Sheryl did not substantially increase
the risk of harm, prevent detection, or increase his opportunity to commit further crimes
against her. We disagree.
              “The law governing sufficiency-of-the-evidence challenges is well
established and applies both to convictions and special circumstance findings.
[Citations.] In reviewing a claim for sufficiency of the evidence, we must determine
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime or special
circumstance beyond a reasonable doubt. We review the entire record in the light most
favorable to the judgment below to determine whether it discloses sufficient
evidence—that is, evidence that is reasonable, credible, and of solid value—supporting
the decision, and not whether the evidence proves guilt beyond a reasonable doubt.
[Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses.
[Citation.] We presume in support of the judgment the existence of every fact the jury

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reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably
justify the findings made by the trier of fact, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
                 Under section 667.61, subdivision (b), any person who is convicted of
sexual penetration in violation of section 289, subdivision (a), under one of the
circumstances listed in section 667.61, subdivision (e), “shall be punished by
imprisonment in the state prison for 15 years to life.” (§ 667.61, subd. (b).) One of the
circumstances listed in section 667.61, subdivision (e), is “the defendant kidnapped the
victim of the present offense in violation of [s]ection 207, 209, or 209.5.” (§ 667.61,
subd. (e)(1).)
                 In the present case, the trial court instructed the jury with
CALCRIM No. 1215, “Kidnapping,” pursuant to section 207, subdivision (a). That
statute 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.” (§ 207, subd. (a).)
                 The following three elements comprise the crime of kidnapping: “‘(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.’ [Citation.]” (People v. Bell (2009) 179 Cal.App.4th 428, 435, italics added.)
                 In People v. Martinez (1999) 20 Cal.4th 225, 235-238 (Martinez), the
California Supreme Court explained what a trier of fact may properly consider when
determining whether the prosecution has presented sufficient evidence to prove the
substantial distance (i.e., “asportation”) element of simple kidnapping. According to the
Martinez court, the trier of fact should consider the totality of the circumstances to
determine whether there is sufficient evidence to indicate a defendant’s movement of the

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person was “‘substantial in character.’” (Ibid., italics added.) The Martinez court
explained: “Section 207[, subdivision] (a)[,] proscribes kidnapping or forcible
movement, not forcible movement for a specified number of feet or yards . . . [and]
limiting a trier of fact’s consideration to a particular distance is rigid and arbitrary, and
ultimately unworkable.” (Martinez, supra, 20 Cal.4th at p. 236.) Because the statute
“‘does not speak in terms of a movement of any specific or exact distance[,]’” the trier of
fact may consider “the totality of the circumstances” in conjunction with the actual
distance the person is moved. (Id. at pp. 235-237, italics added.) More specifically, the
trier of fact, when determining whether a defendant’s movement of a victim is substantial
in character, may properly consider: (1) the actual distance the victim is moved;
(2) whether the movement increased the risk of harm to the victim; (3) whether the
movement decreased the likelihood of detection; (4) whether the movement made the
victim’s foreseeable attempts to escape more dangerous; and (5) whether the movement
enhanced the defendant’s opportunity to commit additional crimes. (Id. at p. 237.) The
Martinez court concluded, “contextual factors, whether singly or in combination, will not
suffice to establish asportation if the movement is only a very short distance.” (Ibid.) In
People v. Morgan (2007) 42 Cal.4th 593, 606-607, the California Supreme Court
reaffirmed the phrase “‘substantial distance’” requires a showing the victim was moved
“a ‘significant amount’ as contrasted with a distance that is ‘trivial.’”
              We note Fraga does not dispute he committed sexual penetration with his
fingers by force. Nor does he dispute there was sufficient evidence of the first two
elements of kidnapping. Fraga only challenges the sufficiency of the evidence as to the
last element—whether his dragging of Sheryl behind the bushes was for a substantial
distance. As we explain below, we conclude it was a substantial distance.
              With respect to whether Fraga moved Sheryl a substantial distance, we
conclude there was sufficient evidence to support the jury’s finding Fraga’s movement of
Sheryl was substantial in character. (See Martinez, supra, 20 Cal.4th at pp. 235-238.)

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First, there was evidence from which the jury could reasonably conclude Fraga’s
movement of Sheryl was greater than “a very short distance.” (Id. at p. 237.) Fraga’s
assertion the prosecutor failed to present the jury with evidence showing he moved
Sheryl more than a very short distance is without merit. The photographic exhibits,
particularly exhibit Nos. 15 and 2, and Sheryl’s testimony regarding the photographic
exhibits, taken together, provided the jury with credible evidence Fraga dragged Sheryl
10-to-20 feet to force her behind the bushes adjacent to the trail. Fraga’s dragging of
Sheryl over the distance indicated by her “X1” and “X2” markings on exhibit No. 15,
although not an incredibly long distance, adequately supports the jury’s finding Fraga
moved Sheryl greater than a very short distance. (See People v. Arias (2011)
193 Cal.App.4th 1428, 1435 [finding sufficient evidence for simple kidnapping
conviction where the victim was dragged 15 feet]; see also People v. Shadden (2001)
93 Cal.App.4th 164, 168-169 [nine feet substantial distance for kidnapping to commit
rape pursuant to section 209, subdivision (b)(1)].)
              It is true Sheryl told a police officer she estimated Fraga dragged her
three-to-five feet during the attack. But it is also true the police officer testified Sheryl
told him that she was not very good at estimating distances before she provided him with
her three-to-five foot estimate. Based on this evidence, it was reasonable for the jury to
conclude Sheryl’s markings on exhibit No. 15 indicate the actual distance Sheryl was
dragged and that the three-to-five foot estimate she provided the police officer was the
result of her inability to accurately estimate distances. Indeed, we have reviewed the
exhibits, specifically exhibit Nos. 2, 10, and 15, and based on our review, we conclude it
was certainly reasonable for the jury to conclude the distance from where Fraga grabbed
Sheryl to where he dragged her was at least 10 feet (and possibly closer to 20 feet).
Contrary to Fraga’s assertion otherwise, the jury was limited to Sheryl’s testimony but
could also consider the photographic exhibits.



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              As to the contextual factors, there was sufficient evidence Fraga’s
movement of Sheryl was substantial in character. (See Martinez, supra, 20 Cal.4th at
pp. 235-238.) The photographic exhibits show the bushes Fraga dragged Sheryl behind
were thick and nearly as tall as the vine-covered block wall behind them. The
photographs also show there was a one to two foot drop in elevation from the trail to the
location where the assault occurred, creating a small ravine making it more difficult for a
passerby to see anyone over the bushes. Additionally, the photographs show the opening
in the bushes through which Fraga dragged Sheryl was narrow, and it is not clear a
pedestrian on the trail would have been able to see Fraga and Sheryl through the opening,
depending on the direction the person was traveling. Moreover, as Hohman and his wife
drove past the location where the assault was taking place, they only heard Sheryl’s
screams, and they did not see Sheryl or Fraga, whose is a very large man, behind the
bushes.
              Based on all the evidence, it was certainly reasonable for the jury to
conclude Fraga’s dragging of Sheryl behind the bushes clearly increased the risk of harm
to Sheryl. As Sheryl testified, Fraga waited to assault her until he had dragged her behind
the bushes, concealing his actions from people who may have been on the trail or driving
along Esplanade Avenue. Also, Fraga’s movement of Sheryl behind the bushes
decreased the likelihood of detection, as evidenced by the fact Hohman and his wife only
heard Sheryl’s screams for help, and did not see Sheryl or Fraga, as they drove past the
scene. Furthermore, Fraga’s dragging of Sheryl behind the bushes limited her chance of
escaping his attack. As the photographic exhibits show, Fraga pinned Sheryl between tall
and thick bushes on one side and a tall block wall on the other side. If she had been able
to escape his grasp, she could have only tried to run over uneven, plant-covered terrain in
two directions.




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              Finally, Fraga’s reliance on cases predating Martinez, supra, 20 Cal.4th
225, to support his claim the distance he moved Sheryl was trivial is misplaced. The
Martinez court expressly disapproved of any bright line rule concerning the minimum
distance moved without consideration of the contextual factors. (Id. at pp. 233, 236.)
Thus, based on the entire record, there was sufficient evidence Fraga moved Sheryl a
substantial distance.
                                     DISPOSITION
              The judgment is affirmed.



                                                 O’LEARY, P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




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