Filed 12/30/13 P. v. Patton CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047488

         v.                                                            (Super. Ct. No. 09CF0923)

RASAAN RAYMON PATTON,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James A.
Stotler, Judge. Affirmed as modified.
                   Richard de la Sota, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Kristine Gutierrez and
Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
              Rasaan Raymon Patton appeals from a judgment after a jury convicted him
of kidnapping to commit a sex offense, attempted forcible rape, sexual penetration by a
foreign object by force, and sexual battery by restraint. Patton argues there was
insufficient evidence he committed aggravated kidnapping and the trial court erred in
awarding him credits. We agree the trial court erred in awarding Patton credits, but his
other claim has no merit. We affirm the judgment as modified.
                                         FACTS
              Around 2:30 a.m. one June morning in 2008 in Huntington Beach,
17-year-old L.T. was driving home in her family’s Toyota Sienna minivan
(the Minivan) after spending the evening with her friend, Breigh Dang. As she drove,
L.T. saw a Jeep traveling behind and just to the right of her. As L.T. signaled and
prepared to make a left turn, the Jeep bumped her from behind. L.T. drove the Minivan
to the right side of the road and parked, and Patton parked about five feet behind the
Minivan. L.T. and Patton got out of their respective vehicles. As L.T. inspected the
Minivan, Patton approached her and apologized profusely. After L.T. said there did not
appear to be much damage, Patton grabbed L.T. by the waist and dragged her to the
sidewalk on the passenger side of the Minivan.
              Patton asked L.T. whether “he was going too far.” L.T. said he was and
asked Patton to stop, but he did not. Patton used his body weight to pin L.T. against the
Minivan and prevent her from leaving. Patton reached under L.T.’s dress and grabbed
her buttocks with his left hand. With his right hand, Patton pulled L.T.’s underpants to
the side and put two fingers inside her vagina. Patton pulled down L.T.’s underpants to
mid-thigh and unzipped his pants. Patton repeatedly asked L.T. “if he was going too far.”
She said he was and asked him to stop. During the course of the assault, L.T. saw the
lights of a few cars drive by and Patton became more nervous and scared with each
vehicle that passed them. Patton repeatedly apologized, stopped assaulting L.T., and
started to cry. Patton told L.T. she could leave and he got into his vehicle and sped away.

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              Minutes later, Officer Tai Huynh initiated a traffic stop of the Jeep that
Patton was driving after he made an illegal turn. Patton did not have his driver’s license,
but he identified himself and said he was driving on a suspended license. Huynh took
Patton’s thumbprint for identification purposes. Huynh detected a strong odor of alcohol
on Patton’s breath, but he did not appear to be intoxicated. Huynh determined Patton was
driving on a suspended license and issued him a citation and impounded the Jeep, which
had damage to the front bumper. Patton walked away.
              Meanwhile, L.T. drove home, called her friends and told them what had
happened, took a shower, and unsuccessfully tried to sleep. That afternoon, L.T. went to
the Huntington Beach Police Department with her friends, Dang and Kevin Do to report
the incident. L.T. was taken to the hospital for a sexual assault examination, which
revealed a tear or laceration to her external genitalia, that was consistent with L.T.’s
description of what had happened.
              L.T. accompanied crime scene investigator Shelley Shannon to the scene of
the crime and demonstrated what had happened. Shannon took photographs and
measurements of the area and of the Minivan and recovered fingerprint exemplars from
the Minivan. Shannon determined Patton moved L.T. about nine feet and eight inches
from where she was looking at the damage to the Minivan to the sidewalk where Patton
assaulted her. The incident occurred near a flood control channel. Detective Tom
Weizoerick processed the DNA samples and the fingerprint exemplars, but there were no
matches.
              About nine months later, after Patton had been arrested for driving under
the influence1 and provided his fingerprints, Weizoerick learned there had been a match
on the fingerprint recovered from the Minivan. He obtained a warrant for Patton’s arrest.



1            Although the probation report indicates Weizoerick arrested Patton on
April 15, 2009, Weizoerick testified he arrested him two days earlier.

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Weizoerick and Riverside County Sheriffs arrested Patton at his home in Perris. L.T.
could not identify Patton in any of the photographic lineups she reviewed.
              Weizoerick and another detective interviewed Patton after advising him of
his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Patton initially stated he
had not been to Huntington Beach in a long time and denied he engaged in any sexual
activity other than with his wife. Eventually, Patton admitted he rear-ended L.T., stated
she did not want his insurance information because of the minimal damage, and said he
was relieved because he was driving on a suspended license. Patton also admitted he
rubbed L.T.’s buttocks and pubic area over her underwear, but when she appeared tense,
he stopped and asked her whether he had gone too far. Patton claimed he apologized, got
into his car, and drove away. Patton denied he put his finger inside L.T.’s vagina, he
grabbed her, or pulled down her underpants, and claimed the incident occurred between
the two vehicles and not on the sidewalk.
              An information charged Patton with kidnapping to commit a sex offense,
rape and digital penetration (Pen. Code, § 209, subd. (b)(1))2 (count 1), attempted
forcible rape (§§ 664, subd. (a), 261, subd. (a)(2)) (count 2), sexual penetration by a
foreign object by force (§ 289, subd. (a)(1)) (count 3), and sexual battery by restraint
(§ 243.4, subd. (a)) (count 4). The information alleged Patton suffered a prior felony sex
conviction (§ 667.6, subd. (a)), suffered a prior serious and violent felony conviction
(§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and suffered a prior prison term
(§ 667.5, subd. (b)).
              At trial, L.T. testified concerning the circumstances of the offense as
detailed above. She could not identify Patton at trial. Shannon testified regarding her
recovery of physical evidence and her conclusion Patton moved L.T. nearly 10 feet. The



2             All further statutory references are to the Penal Code.


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parties stipulated Patton’s fingerprints matched a partial handprint recovered from the
Minivan.
              At the close of the prosecutor’s case-in-chief, Patton moved to dismiss
count 1 pursuant to section 1118.1 because the movement was incidental to the sexual
assault and the movement did not substantially increase the risk of harm. Citing to case
law, the prosecutor argued there is no minimum distance that a victim must be moved,
and Patton’s movement of L.T. was to avoid detection and increased the risk of harm
because he effectively moved her behind a wall, the Minivan, where passing cars could
not see them. The trial court indicated it would review the case law and took the matter
under submission. The next day, the court denied Patton’s motion. The court reasoned
Patton’s forcible movement of L.T. nine feet to a dark area behind the Minivan made it
more difficult for L.T. to escape and enhanced Patton’s opportunity to commit additional
crimes. The court concluded that it was an issue for the jury to decide.
              Pursuant to the prosecutor’s motion, the trial court admitted into evidence
documents establishing that in May 1999, Patton pled guilty to violating section 261,
subdivision (a)(3), rape of an intoxicated woman.
              The jury convicted Patton of all counts. At a bifurcated bench trial, the trial
court found the prior conviction and prison term allegations to be true. The trial court
sentenced Patton to 20 years to life in prison as follows: 14 years to life on count 1,
five years for the prior felony sex conviction, and one year for the prior prison term
allegation. Pursuant to section 654, the court stayed the sentences on counts 2, 3, and 4.
The court awarded Patton 1,235 days of actual credit but no conduct credit.
                                       DISCUSSION
I. Sufficiency of the Evidence
              Patton argues there was insufficient evidence he committed aggravated
kidnapping because there was no evidence of asportation. Patton initially argues
insufficient evidence supports his conviction, but also contends the trial court erred in

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denying his motion to dismiss pursuant to section 1118.1. As we explain below, the
standard of review is the same, and Patton’s claim is meritless.
              “An appellate court reviews the denial of a section 1118.1 motion under the
standard employed in reviewing the sufficiency of the evidence to support a conviction.
[Citation.] ‘In reviewing a challenge to the sufficiency of the evidence, we do not
determine the facts ourselves. Rather, we “examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
[Citations.] We presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review
applies to cases in which the prosecution relies primarily on circumstantial evidence and
to special circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the circumstances
might also reasonably be reconciled with a contrary finding.” [Citation.] We do not
reweigh evidence or reevaluate a witness’s credibility.’ [Citation.] Review of the denial
of a section 1118.1 motion made at the close of a prosecutor’s case-in-chief focuses on
the state of the evidence as it stood at that point. [Citation.]” (People v. Houston (2012)
54 Cal.4th 1186, 1215.)
              The crime of simple kidnapping is contained in section 207. In relevant
part, section 207, subdivision (a), 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.”
              The crime of aggravated kidnapping for purpose of enumerated sexual
offenses is contained in section 209, subdivisions (b) and (d). Section 209,



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subdivision (b)(1), states: “Any person who kidnaps or carries away any individual to
commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of
[s]ection[s] 264.1, 288, or 289, shall be punished by imprisonment in the state prison for
life with the possibility of parole.” Section 209, subdivision (b)(2), provides: “This
subdivision shall only apply if the 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 intended underlying offense.”
              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.)
The last element is the asportation element and is required for both simple kidnapping
and aggravated kidnapping. (Ibid.) The issue is, and has been for some time, what
evidence must a prosecutor offer to establish asportation?3
              In People v. Robertson (2012) 208 Cal.App.4th 965 (Robertson), the Fifth
District Court of Appeal, interpreted section 209, subdivision (b)’s asportation
requirement in light of the Legislature’s 1997 amendment. The Robertson court
discussed the legislative history of aggravated kidnapping, including the 1990
amendment that added kidnappings committed for the purpose of rape, and the 1997
renumbering from section 208, subdivision (d), to section 209, subdivision (b).
(Robertson, supra, 208 Cal.App.4th at p. 979.) The Robertson court stated that in 1994,

3              In People v. Dominguez (2006) 39 Cal.4th 1141, 1145 (Dominguez), the
California Supreme Court indicated consistency on this issue “has eluded the appellate
courts[.]” The court interpreted section 208, subdivision (d)’s asportation element
because defendant committed his offenses before the Legislature moved aggravated
kidnapping to section 209, subdivision (b). The court expressed no opinion on the
asportation element under section 209, subdivision (b). (Dominguez, supra, 39 Cal.4th at
p. 1150, fn. 5.)


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the California Supreme Court in People v. Rayford (1994) 9 Cal.4th 1 (Rayford), held the
test for asportation articulated in People v. Daniels (1969) 71 Cal.2d 1119,4 applied to
aggravated kidnapping for the purpose of rape. (Robertson, supra, 208 Cal.App.4th at
p. 979.) The Robertson court explained two California Supreme Court cases “briefly
addressed” the Legislature’s 1997 revision to section 209 and clarified the movement
must increase the risk of harm but that the increase in the risk of harm need not be
substantial. (Robertson, supra, 208 Cal.App.4th at p. 980.)5 The Robertson court
opined: “In sum, we hold that section 209, subdivision (b)(2)[,] requires the People to
prove beyond a reasonable doubt that appellant’s movement of the victim was not merely
incidental and that it increased the risk of harm to the victim over and above that which is
inherent in the sexual offense itself. Yet, section 209, subdivision (b)(2) does not require
proof that the movement substantially increased the risk of harm to the victim.”
(Robertson, supra, 208 Cal.App.4th at p. 982.)
              The Robertson court concluded: “‘Kidnapping to commit rape involves
two prongs. First, the defendant must move the victim and this asportation must not be
“merely incidental to the [rape].” [Citations.] Second, the movement must increase “the
risk of harm to the victim over and above that necessarily present in the [rape].”
[Citation.] The two are not mutually exclusive, they are interrelated. [Citation.] [¶] ‘For


4              The Rayford court articulated that test as follows: “[T]he standard of
asportation for [former] section 208[, subdivision] (d) kidnapping 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.”
(Rayford, supra, 9 Cal.4th at p. 22.)

5             The Robertson court stated though that in those cases, People v. Vines
(2011) 51 Cal.4th 830, and People v. Martinez (1999) 20 Cal.4th 225, and Dominguez,
supra, 39 Cal.4th at p. 1150, fn. 5, the offenses predated the 1997 amendment and the
courts interpreted section 208, subdivision (b), and not section 209, subdivision (b).

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the first prong, the jury considers the distance the defendant moved the victim and the
“scope and nature” of the movement. [Citations.] For the second, it considers whether
the movement gave the defendant “the decreased likelihood of detection” and an
“enhanced opportunity to commit additional crimes.” [Citation.]’ [Citation.]”
(Robertson, supra, 208 Cal.App.4th at p. 983.)
              Based on the record before us, we conclude Patton’s movement of L.T.
from the street between the two vehicles to the sidewalk behind the Minivan secluded
from passing cars was not merely incidental and increased L.T.’s risk of psychological
harm above the risk inherent in the crime of rape. Patton’s movement of L.T. was not
merely incidental to the rape. The evidence established that after L.T. inspected the
damage to the Minivan and told Patton there did not appear to be much damage, Patton
grabbed L.T. by the waist and dragged her from the street between the two cars to the
sidewalk behind the Minivan. After L.T. agreed Patton “was going too far[,]” Patton
pinned L.T. against the Minivan, reached under her dress, and put two fingers inside her
vagina. It is true Patton moved L.T. only nine to 10 feet, but he moved her behind the
Minivan where it would make it more difficult for someone in a passing car to see him
sexually assaulting her. (People v. Shadden (2001) 93 Cal.App.4th 164, 169 [“Where 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”].)
Thus, the jury could reasonably conclude the movement was not incidental to the rape
because Patton only began the sexual attack after he moved L.T. behind the Minivan.
              Additionally, Patton’s movement of L.T. increased the risk of harm because
the movement decreased the likelihood of detection, increased the dangers inherent in
L.T.’s foreseeable attempts to escape, and enhanced Patton’s opportunity to commit
additional crimes. Patton spends the majority of his time arguing his movement of L.T.
did not decrease the likelihood of detection but instead increased the likelihood of
detection. He insists L.T. was “visible from more vantage points” from the sidewalk than

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she would have been between the cars. That was for the jury to decide, and it resolved
that question against Patton.
              First, it was almost three a.m., and the majority of people passing by would
be in cars, not pedestrians. Occupants of a passing car would be more likely to see Patton
and L.T. standing between the Minivan and the Jeep than Patton and L.T. concealed
behind the Minivan. Second, Patton pinned L.T. against the Minivan. It would have
been difficult, if not impossible, for occupants of a passing car to be at the perfect angle
and perfect distance to see two people pinned against the Minivan regardless of how well
the area was lit. Patton also claims that because L.T. could see car lights, occupants of a
passing car could see her. Nonsense. Needless to say, the fact L.T. could see the glare or
reflection of car lights does not mean she was visible to the occupants of the passing cars.
Finally, the fact Patton unzipped his pants indicates he initially felt concealed enough to
escalate the encounter and attempt to rape L.T. Our review of the trial exhibits does not
alter our conclusion Patton forcible moved L.T. behind the Minivan to conceal and
sexually assault her.
              Second, the movement increased the dangers inherent in L.T.’s foreseeable
attempts to escape. The evidence established Patton grabbed L.T., drug her to the
sidewalk, and pinned her against the Minivan. L.T. was trapped between the Minivan on
one side and the flood control channel on the other side. Thus, avenues of escape were
decreased by her movement.
              Finally, the movement increased Patton’s opportunity to commit additional
crimes. Patton forcibly moved L.T. to the sidewalk and concealed her from passing cars
behind the Minivan. Because they were hidden from passing cars, Patton had time to
reach under L.T.’s dress, grab her buttocks, and put two fingers inside her vagina.
Additionally, he had time to unzip his pants and prepare to rape L.T. Although not
capable of certainty, the fact three or four cars passed by and no one stopped indicates



                                             10
Patton’s movement of L.T. effectively concealed them and allowed Patton to digitally
penetrate L.T.
                Dominguez, supra, 39 Cal.4th 1141, is instructive. Although the California
Supreme Court in Dominguez, supra, 39 Cal.4th 1141, limited its holding to section 208,
subdivision (d), its reasoning as to the elements that survived the Legislature’s 1997
amendment is instructive. In that case, defendant at night forcibly moved a victim from a
road to a spot 25 feet away, and 10 to 12 feet down an embankment where a passing
driver would likely not see her. The court reasoned, “The movement thus changed the
victim’s environment from a relatively open area alongside the road to a place
significantly more secluded, substantially decreasing the possibility of detection, escape
or rescue.” (Id. at p. 1153.) Here, Patton did not move L.T. down an embankment, but
he did move her behind the Minivan and changed her environment to a more secluded
area where it would make it difficult for her to escape or be detected by occupants of
passing cars.
                Patton relies on People v. Stanworth (1974) 11 Cal.3d 588 (Stanworth),6
where the California Supreme Court reversed a conviction for aggravated kidnapping
because “there [was] no evidence . . . the relatively brief movement of the victim . . .
removed her from public view or in any other manner substantially increased the
risk . . . .” (Id. at p. 598.) In that case, defendant moved the victim 25 feet from a road to
an open field where he bound, raped, and robbed her. (Id. at p. 597.) Here, as we explain
above more fully, Patton moved L.T. less than 25 feet, but it was not to an open area. He
moved her behind the Minivan to an area where the jury could reasonably conclude it
would be more difficult for someone in a passing vehicle to see her.
                Patton relies on a number of cases where the defendant moved the victim
more than 100 feet to argue movement of only nine feet is insufficient to establish

6            Stanworth was overruled on other grounds in People v. Martinez (1999)
20 Cal.4th 225, 237.

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substantial distance. (People v. Rayford (1994) 9 Cal.4th 1 [105 feet]; People v. Aguilar
(2004) 120 Cal.App.4th 1044 [133 feet]; People v. Diaz (2000) 78 Cal.App.4th 243
[150 feet].) As we have explained, actual distance is a relevant factor but one that must
be considered in context. (Dominguez, supra, 39 Cal.4th at p. 1152.) The jury
considered that factor in context, and concluded movement of nine to 10 feet, behind a
Minivan was sufficient. Thus, because there was sufficient evidence of asportation, the
trial court properly denied Patton’s section 1118.1 motion to dismiss, and sufficient
evidence supports his conviction for aggravated kidnapping.
II. Custody Credits
              Patton contends the trial court erred in awarding him credits because he
should be awarded the following: (1) two additional days of actual credits; and
(2) conduct credits limited to 15 percent of the actual time he served. The Attorney
General agrees on both counts.
              A defendant is entitled to actual custody credit for “all days of custody” in
county jail and residential treatment facilities, including partial days. (§ 2900.5,
subd. (a); People v. Smith (1989) 211 Cal.App.3d 523, 526.) Calculation of custody
credit begins on the day of arrest and continues through the day of sentencing. (People v.
Bravo (1990) 219 Cal.App.3d 729, 735.) A defendant is also entitled to conduct credits
under section 4019. However, section 2933.1, subdivision (a), states, “Notwithstanding
any other law, any person who is convicted of a felony offense listed in subdivision (c) of
[s]ection 667.5 shall accrue no more than 15 percent of worktime credit, as defined in
[s]ection 2933.” Patton concedes he is subject to the 15 percent limitation.
              Patton correctly states the probation report incorrectly states his arrest date
was April 15, 2009, and claims he should be awarded two additional days of actual credit.
However, he incorrectly states his arrest date was April 19, 2009, which would actually
result in less actual credit. Weizoerick arrested Patton on April 13, 2009. The trial court
sentenced Patton on August 31, 2012. Thus, the trial court should have awarded Patton

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1,237 days of actual credit, not 1,235 days. Additionally, the court should have awarded
Patton 185 days of conduct credit for a total of 1,422 days of total credit. (People v.
Flores (2009) 176 Cal.App.4th 1171, 1182 [appellate court calculate conduct credits in
interests of judicial efficiency].)
                                       DISPOSITION
               Patton is awarded 1,237 days of actual credit and 185 days of conduct
credit for a total of 1,422 days of total credit. The clerk of the superior court is directed
to prepare a new abstract of judgment reflecting the new award of credits, and to forward
the amended abstract of judgment to the Department of Corrections, Division of Adult
Operations. We affirm the judgment as modified.




                                                   O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




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