Filed 8/23/17

                     CERTIFIED FOR PARTIAL PUBLICATION*


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D070755

        Plaintiff and Respondent,                  (Super. Ct. No. SCD257086)

        v.

ALEXANDER XAVIER LEDESMA,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of San Diego County, Laura W.

Halgren, Judge. Affirmed as modified.

        Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and

Appellate.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Stacy Tyler,

Deputy Attorneys General, for Plaintiff and Respondent.




*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part II.
       A jury convicted Alexander Xavier Ledesma of rape (Pen. Code,1 § 261,

subd. (a)(2); count 1) and kidnapping to commit rape (§ 209, subd. (b)(1); count 2). The

jury found true allegations attached to count 1 under California's One Strike Law that

Ledesma's kidnapping of the victim substantially increased the risk of harm to her

(§ 667.61, subds. (a), (c)(1), (d)(2)) and that Ledesma kidnapped the victim (§ 667.61,

subds. (b), (c)(1), (e)(1)). The jury also found true the allegation under section 667.8,

subdivision (a) that Ledesma kidnapped the victim to commit a sexual offense. The jury

found not true additional allegations that Ledesma personally used a firearm to commit

both counts 1 and 2. After the jury rendered its verdict, the court sentenced Ledesma to

25 years to life on count 1 under the One Strike Law. Under section 654 the court stayed

the sentences on count 2 and on the remaining allegations related to count 1.

       On appeal, Ledesma asserts his conviction must be reversed because both the

crime of aggravated kidnapping and the One Strike Law sentence enhancement for

aggravated kidnapping are constitutionally defective. Specifically, he argues that under

the United States Supreme Court's decision in Johnson v. United States (2015) 576 U.S.

___ [135 S.Ct. 2551] (Johnson) these statutes violated his due process rights because they

are impermissibly vague. Ledesma also asserts, and the Attorney General concedes, that

the abstract of judgment should be modified to remove the inaccurate reference to a true

finding of personal use of a firearm. We reject Ledesma's constitutional vagueness




1      Undesignated statutory references are to the Penal Code.
                                              2
challenge and affirm the judgment as modified to accurately reflect the sentence imposed

by the trial court.

                      FACTUAL AND PROCEDURAL BACKGROUND

       The victim, Rosalind F., and her boyfriend went out in downtown San Diego to

celebrate Rosalind's birthday. After a late concert, the couple called a cab to take them

home to nearby Point Loma. While in the cab, Rosalind decided she wanted to stop at a

liquor store near their apartment for a bottle of brandy. Her boyfriend wanted to go

straight home, so the pair agreed he would pay the cab driver to drop him off at home

first, and then take Rosalind to the liquor store and then bring her home.

       After dropping Rosalind's boyfriend at home the cab pulled up in front of the

liquor store and Rosalind went inside. When she came back out, the cab driver had left.

Rosalind was scared when she realized the cab was gone because she had seen fights and

police at a nightclub next to the liquor store. While she was considering what to do, a

man, later identified as Ledesma, approached her from behind. Ledesma told Rosalind he

had a gun and that she should do what he told her. Rosalind felt what she assumed was a

gun on her back. Ledesma told Rosalind to start walking and, fearing for her life, she

complied.

       Ledesma stopped in a dark area behind a building and told Rosalind to lie on the

ground. Ledesma threatened to kill Rosalind if she did not do as he said. Rosalind's

clothes were removed and Ledesma climbed on top of her, then raped her. While

Ledesma was on top of her Rosalind saw a man standing nearby. She yelled out, and

Ledesma got up and ran away.

                                             3
       Rosalind walked toward the man, who was heading toward her. She told him she

had been attacked and the man used Rosalind's phone to call 911. The man, who was

doing electrical work at a nearby business, testified that he went outside to smoke a

cigarette around 2:00 a.m. and heard a sound, then saw a man emerge from a fenced-in

area behind some businesses and walk away quickly. When the police arrived about 40

minutes after 911 was called, Rosalind was visibly upset. She was interviewed by the

officers at the scene, then taken home.2 Rosalind provided the police with the clothes

she was wearing when she was attacked. The next morning Rosalind agreed to a Sexual

Assault Response Team (SART) exam. A nurse examined Rosalind and collected

external genital and internal vaginal swabs. The nurse also noted an abrasion that was

consistent with Rosalind's account of the attack.

       The police crime laboratory found sperm cells on the swabs taken during the

SART exam and on the jeans and underwear Rosalind wore the night of the attack. The

sperm cells matched Ledesma's DNA. Ledesma was eventually arrested and charged

with rape (§ 261, subd. (a)(2); count 1) and kidnapping to commit rape (§ 209,

subd. (b)(1); count 2). The district attorney also brought allegations under California's

One Strike Law (§ 667.61). With respect to count 1, the information alleged Ledesma (1)

kidnapped Rosalind and that the movement substantially increased the risk of harm to her


2       When she was initially interviewed by the responding officers, Rosalind told them
that she thought the attack had occurred behind the liquor store. She later remembered
that Ledesma had taken her farther away, behind a strip of businesses where the
electrician was working that were between 170 and 430 feet from the liquor store. At
trial, Rosalind testified she was certain Ledesma raped her behind the businesses near
where the electrician was working.
                                             4
over and above the level of risk necessarily inherent in the rape (§ 667.61, subds. (a),

(c)(1), (d)(2)); (2) kidnapped Rosalind (§ 667.61, subds. (a), (c)(1), (e)(1)); and (3) used a

firearm in the commission of the rape (§ 667.61, subds. (a), (c)(1), (e)(3)). The

information also alleged with respect to both counts that Ledesma personally used a

firearm (§ 12022.53, subds. (a)(3) & (8), (b)) and kidnapped Rosalind to commit a sexual

offense (§ 667.8, subd. (a)).

       Ledesma testified in his own defense at trial. He denied raping Rosalind and

claimed she was a prostitute. Ledesma said he approached Rosalind and offered her $150

for a "date." According to Ledesma, Rosalind agreed and led him behind some buildings

where they had sex. Ledesma testified that after it was over, he refused to give her any

money and left.

       The jury rejected Ledesma's version of events and convicted him of both counts.

The jury also found true the aggravating allegations that (1) Ledesma kidnapped

Rosalind; (2) that the kidnapping substantially increased the risk of harm to Rosalind, and

(3) Ledesma kidnapped Rosalind to commit a sexual offense. The jury found the firearm

allegations not true. The court sentenced Ledesma to 25 years to life on count 1 under

the One Strike Law. The court stayed the terms on the remaining allegations related to

count 1 and stayed the sentence and related allegations on count 2.

                                       DISCUSSION

                                              I

       Ledesma's primary contention on appeal is that language contained in California's

aggravated kidnapping statute (§ 209) and the One Strike Law (§ 667.61) are

                                              5
unconstitutionally vague under Johnson, supra, 135 S. Ct. 2551. He argues that the

definition of aggravated kidnapping to commit rape—which limits the provision's

application to circumstances where "movement of the victim is beyond that merely

incidental to the commission of, and increases the risk of harm to the victim over and

above that necessarily present in, the underlying offense" (§ 209, subd. (b)(2))—is not

sufficiently concrete to give citizens fair warning of the crime. Ledesma also challenges

similar language contained in section 667.61, subdivision (d)(2) that permits more severe

sentencing for the crime of rape where "the movement of the victim substantially

increased the risk of harm to the victim over and above that level of risk necessarily

inherent in the underlying offense."

                                             A

       " 'The constitutional interest implicated in questions of statutory vagueness is that

no person be deprived of "life, liberty, or property without due process of law," as

assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the

California Constitution (Cal. Const., art. I, § 7).' [Citation.] 'All presumptions and

intendments favor the validity of a statute and mere doubt does not afford sufficient

reason for a judicial declaration of invalidity. Statutes must be upheld unless their

unconstitutionality clearly, positively and unmistakably appears.' " (People v. Garcia

(2014) 230 Cal.App.4th 763, 768; see also People v. Fuiava (2012) 53 Cal.4th 622, 696.)

A statute is void for vagueness if it does not define the proscribed offense "with sufficient

definiteness that ordinary people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory enforcement." (Kolender v.

                                              6
Lawson (1983) 461 U.S. 352, 357; accord, People v. Morgan (2007) 42 Cal.4th 593,

605.)

        California's aggravated kidnapping statute, section 209, requires proof of certain

elements not required for prosecution under the simple kidnapping statute, section 207.

For instance, as in this case, the statute applies if the kidnapping is done for the purpose

of committing rape. (§ 209, subd. (b)(1).) Section 209, modified by the Legislature in

1997 to conform to existing case law, requires that the movement of the victim be

"beyond that merely incidental to the commission of, and increases the risk of harm to the

victim over and above that necessarily present in, the intended underlying offense."

(§ 209, subd. (b)(2); see People v. Martinez (1999) 20 Cal.4th 225, 232, fn. 4 [noting

1997 modification to codify asportation standard set forth in People v. Daniels (1969) 71

Cal.2d 1119; & Stats. 1997, ch. 817, § 17; Sen. Rules Com., Analysis of Assem. Bill No.

59 (1997-1998 Reg. Sess.) as amended Sept. 4, 1997, p. 3.)

        These two aspects of the asportation requirement, movement beyond that which is

incidental to the underlying crime and movement that increases the risk of harm to the

victim, " 'are not mutually exclusive, but interrelated.' [Citation.] [¶] In determining

'whether the movement is merely incidental to the [underlying] crime . . . the jury

considers the "scope and nature" of the movement. [Citation.] This includes the actual

distance a victim is moved. However . . . there is no minimum number of feet a

defendant must move a victim in order to satisfy the first prong.' [Citations.] [¶] " 'The

second prong . . . refers to whether the movement subjects the victim to a substantial

increase in risk of harm above and beyond that inherent in [the underlying crime].

                                              7
[Citations.] This includes consideration of such factors as the decreased likelihood of

detection, the danger inherent in a victim's foreseeable attempts to escape, and the

attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that

these dangers do not in fact materialize does not, of course, mean that the risk of harm

was not increased.' " (People v. Martinez, supra, 20 Cal.4th at pp. 232-233.)

       Since the 1997 modification of the statute, appellate courts have routinely assessed

the validity of aggravated kidnapping convictions in published decisions without

suggestion that the section 209, subdivision (b)(2) asportation requirement is unworkable

or too vague to be constitutional. (See, e.g., People v. Williams (2017) 7 Cal.App.5th

644, 667-668 [incidental movement of the victims insufficient to support convictions

under section 209]; People v. Simmons (2015) 233 Cal.App.4th 1458, 1471-1474 [ample

evidence of asportation to support section 209 convictions]; People v. Robertson (2012)

208 Cal.App.4th 965, 983-987; see also People v. Vines (2011) 51 Cal.4th 830, 869-871

[affirming aggravated kidnapping conviction under pre–1997 version of section 209,

subdivision (b)].)

       The One Strike Law applied in this case to require the imposition of a sentence of

25 years to life on Ledesma's conviction for rape, carries an almost identical limitation to

that found in section 209, subdivision (b)(2). As noted, section 667.61, subdivision (d)(2)

permits the law's increased penalty if the rapist "kidnapped the victim of the present

offense and the movement of the victim substantially increased the risk of harm to the

victim over and above that level of risk necessarily inherent in the underlying offense."



                                             8
                                               B

       In Johnson, the United States Supreme Court considered the "residual clause" of

the Armed Career Criminal Act (ACCA), which imposes increased penalties for the

federal crime of felon in possession of a firearm if the defendant has three or more prior

convictions for a violent felony. (18 U.S.C. § 924, subd. (e)(2)(B).) The ACCA defines

a violent felony as one that "(i) has as an element the use, attempted use, or threatened

use of physical force against the person of another; or [¶] (ii) is burglary, arson, or

extortion, involves use of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another . . . ." (Ibid., italics added.) "The

closing words of this definition [became] known as the [ACCA]'s residual clause."

(Johnson, supra, 135 S. Ct. at p. 2556.)

       Johnson was the fourth time the Supreme Court considered the meaning of the

residual clause. The court held previously that the ACCA's definition of the term "violent

felony," which includes the residual clause, must be construed according to what is

known as the categorical approach. (Johnson, supra, 135 S. Ct. at p. 2557.) "Under the

categorical approach, a court assesses whether a crime qualifies as a violent felony 'in

terms of how the law defines the offense and not in terms of how an individual offender

might have committed it on a particular occasion.' [Citation.] [¶] Deciding whether the

residual clause covers a crime thus requires a court to picture the kind of conduct that the

crime involves 'in the ordinary case,' and to judge whether that abstraction presents a

serious potential risk of physical injury." (Ibid.)



                                               9
       Johnson concluded this counterfactual inquiry—which "ties the judicial

assessment of risk to a judicially imaged 'ordinary case' of a crime, not to real-world facts

or statutory elements"—gave rise to vagueness that was fatal to the clause. (Johnson,

supra, 135 S.Ct. at p. 2557.) The court reasoned there was "grave uncertainty" about

how to estimate the risk posed by a crime in an imagined, ordinary case because it was

unclear how to determine what kind of conduct is involved in an ordinary case of a crime.

(Ibid.) In addition, the Johnson court explained the residual clause's "serious potential

risk of physical injury" standard was too "imprecise" about how much risk is necessary

for a crime to qualify as a violent felony when the standard is applied not to "real-world

facts" but rather to a "a judge-imagined abstraction." (Id. at p. 2558.)

       The Johnson court reinforced its conclusion that the residual clause was

unacceptably indeterminate by highlighting its "repeated attempts and repeated failures to

craft a principled and objective standard out of the residual clause" in its own prior cases

and the same difficulties encountered by the lower federal courts. (Johnson, supra, 135

S. Ct. at pp. 2558-2560.) The court noted that these interpretive difficulties were

evidence of vagueness not because courts had been divided "about whether the residual

clause covers this or that crime" but because the cases reflected a "pervasive

disagreement about the nature of the inquiry one is supposed to conduct and the kinds of

factors one is supposed to consider." (Id. at p. 2560.)

                                             C

       Ledesma argues that Johnson announced a new test for unconstitutional vagueness

and that the asportation requirements of these two statutes fail the test. We disagree.

                                             10
Unlike the residual clause at issue in Johnson, California's asportation requirement

compels juries and courts to apply a legal standard to real world facts. As Johnson itself

recognizes, this difference is crucial. In distinguishing the residual clause from

constitutional "federal and state criminal laws [that] use terms like 'substantial risk,'

'grave risk,' and 'unreasonable risk,' " the court stated that those "laws require gauging the

riskiness of conduct in which an individual defendant engages on a particular occasion."

(Johnson, supra, 135 S.Ct. at p. 2561, italics added.) The court did "not doubt the

constitutionality of [such] laws that call for the application of a qualitative standard such

as 'substantial risk' to real-world conduct . . . ." (Ibid., italics added; accord, Welch v.

United States (2016) ___ U.S. ___ [136 S. Ct. 1257, 1262 ["The Court's analysis in

Johnson thus cast no doubt on the many laws that 'require gauging the riskiness of

conduct in which an individual defendant engages on a particular occasion.' " (Italics

omitted.)].)

       Unlike the categorical analysis courts were required to engage in under the ACCA,

the asportation requirements in sections 209 and 667.61 require no hypothetical case of

the underlying crime that determines the statutes' applicability. Rather, the jury in this

case (and in all aggravated kidnapping cases) assessed whether Ledesma's movement of

Rosalind was merely incidental to the rape and whether that movement substantially

increased the risk of harm over and above the risk of harm inherent in rape. This is

precisely the type of determination that Johnson held was beyond the void-for-vagueness

problem presented by the residual clause. (Johnson, supra, 135 S.Ct. at p. 2561 ["As a

general matter, we do not doubt the constitutionality of laws that call for the application

                                               11
of a qualitative standard such as 'substantial risk' to real-world conduct; 'the law is full of

instances where a man's fate depends on his estimating rightly . . . some matter of

degree."].)

       That Court of Appeal opinions both affirm and reverse convictions based on the

asportation requirement in these statutes is not, as Ledesma advances, evidence that a

principled and objective standard has not been established. Johnson noted "[t]he most

telling feature of the lower courts' decisions [was] not division about whether the residual

clause covers this or that crime (even clear laws produce close cases)." (Johnson, supra,

135 S.Ct. at p. 2560, italics added.) Rather, it was the "pervasive disagreement about the

nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed

to consider." (Ibid.) In contrast, California cases on the asportation element of

aggravated kidnapping, including those Ledesma cites, show broad agreement on both

the nature of the inquiry required and the relevant factors to evaluate when deciding

whether the facts in a case are sufficient to satisfy the asportation element of the

aggravated kidnapping statute and the One Strike Law. (See People v. Dominguez (2006)

39 Cal.4th 1141, 1151-1152 [summarizing the standard applied in determining the

asportation element of aggravated kidnapping; explaining that "the jury must 'consider []

the "scope and nature" of the movement,' as well as 'the context of the environment in

which the movement occurred' " (italics omitted) & articulating "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"]; People v. Vines,

                                              12
supra, 51 Cal.4th at p. 870 [noting same standard]; People v. Leavel (2012) 203

Cal.App.4th 823, 833 [same]; People v. Power (2008) 159 Cal.App.4th 126, 138 [same].)

       For these reasons we reject Ledesma's assertion that Johnson requires us to find

the asportation elements of sections 209 and 667.61 are unconstitutionally vague. " 'The

law is replete with instances in which a person must, at his peril, govern his conduct by

such nonmathematical standards as "reasonable," "prudent," "necessary and proper,"

"substantial," and the like. Indeed, a wide spectrum of human activities is regulated by

such terms: thus one man may be given a speeding ticket if he overestimates the

"reasonable or prudent" speed to drive his car in the circumstances (Veh. Code, § 22350),

while another may be incarcerated in state prison on a conviction of wilful homicide if he

misjudges the "reasonable" amount of force he may use in repelling an assault [citation].

. . . "There is no formula for the determination of reasonableness." Yet standards of this

kind are not impermissively vague, provided their meaning can be objectively ascertained

by reference to common experiences of mankind.' " (People v. Morgan (2007) 42 Cal.4th

593, 606.)

                                             II

       The parties agree that the abstract of judgment does not accurately reflect the trial

court's pronouncement of the sentence it imposed on Ledesma. As noted, the prosecution

alleged three qualifying circumstances under the One Strike Law for count 1: aggravated

kidnapping under section 667.61, subdivision (d)(2); kidnapping under section 667.61,

subdivision (e)(1); and firearm use under section 667.61, subdivision (e)(2). The jury

found the firearm use allegation was not true and at the sentencing hearing the court

                                             13
sentenced Ledesma to a term of 25 years to life on count 1 based on the finding under

section 667.61, subdivision (d)(2) and imposed and stayed a sentence of 15 years to life

for the subdivision (e)(1) finding. The abstract of judgment, however, shows the

imposition of two additional sentence enhancements under section 667.61, subdivision

(e) on count 1. We direct the trial court to correct this error. (See People v. Mitchell

(2001) 26 Cal.4th 181, 186-187 [appellate court may correct clerical errors " 'on its own

motion or upon the application of the parties.' "].)

                                       DISPOSITION

       The judgment is affirmed as modified. The trial court is directed to correct the

abstract of judgment to reflect only one true finding under section 667.61, subdivision

(e). The trial court is also directed to forward a certified copy of the corrected abstract of

judgment to the Department of Corrections and Rehabilitation.



                                                                              HUFFMAN, J.

WE CONCUR:


McCONNELL, P. J.


BENKE, J.




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