In the Supreme Court of Georgia



                                                    Decided:         September 14, 2015


                       S15A0884. GONZALEZ v. HART, WARDEN.


       HINES, Presiding Justice.

       This Court granted prisoner Arquimides Gonzalez’s application for a

certificate of probable cause to appeal the denial of his petition for a writ of

habeas corpus, posing the single question of whether the habeas court correctly

applied this Court’s decision in Garza v. State, 284 Ga. 696 (670 SE2d 73)

(2008). For the reasons which follow, we reverse the judgment of the habeas

court and remand.

       In 2007, a jury found Gonzalez guilty of family violence battery,1 two

counts of aggravated assault, kidnapping with bodily injury, and two counts of

aggravated battery in connection with two incidents involving his ex-girlfriend.

He was sentenced to life in prison for the kidnapping with bodily injury; 20

years in prison for each aggravated assault and each aggravated battery, to be


       1
         Gonzalez was indicted for aggravated assault in this count, but the jury found him guilty of
the lesser offense of family violence battery.
served consecutively to each other and to the life sentence; and 12 months in

prison for family violence battery, to be served consecutively to all other

sentences, for an aggregate sentence of life plus 81 years in prison. On motion

for new trial, Gonzalez successfully argued to the trial court that one of the

counts of aggravated assault should have merged with a count of aggravated

battery for the purpose of sentencing, so even though the motion for new trial

was denied on other grounds, on July 2, 2008, these counts were merged and he

was re-sentenced for an aggregate sentence of life plus 61 years in prison. On

direct appeal to the Court of Appeals, Gonzalez contended that the trial court

erred in refusing to merge the two aggravated battery counts for the purpose of

sentencing and that trial counsel was ineffective for failing to request a jury

charge on false imprisonment as a lesser included offense of the kidnapping

with bodily injury charge. On July 9, 2009, the Court of Appeals decided the

direct appeal, and determined that the two counts of aggravated battery merged,

vacated the sentence on the second such count, and remanded the case for re-

sentencing; it rejected the claim of ineffective assistance of trial counsel and

affirmed Gonzalez’s remaining convictions and sentences. Gonzalez v. State,

298 Ga. App. 821 (681 SE2d 248) (2009). On remand, on October 1, 2009,

                                       2
Gonzalez was again re-sentenced for an aggregate sentence of life plus 41 years

in prison.

      On May 24, 2010, Gonzalez filed a pro se petition for a writ of habeas

corpus raising three grounds: (1) ineffective assistance of trial counsel for

failing to request a jury charge on false imprisonment as a lesser-included

offense of kidnapping with bodily injury and for mentioning his immigration

status to the jury; (2) ineffective assistance of appellate counsel for failing to

raise insufficiency of the evidence regarding the kidnapping with bodily injury

charge under Garza; and (3) cruel and unusual punishment in the imposition of

a life sentence for the kidnapping with bodily injury inasmuch as the evidence

viewed in light of Garza would not support the conviction. Following an

evidentiary hearing, at which Gonzalez’s former appellate counsel testified, on

August 7, 2014, the habeas court issued its order denying habeas relief. In so

doing, it determined, inter alia,2 that under Garza there was sufficient evidence

to establish that Gonzalez committed the charged offense of kidnapping with

bodily injury beyond a reasonable doubt, including the element of asportation,


      2
        Gonzalez’s remaining claims which were ruled upon adversely to him are outside the
confines of this granted application for a certificate of probable cause to appeal.

                                            3
and consequently, it rejected Gonzalez’s claim that his appellate counsel was

ineffective for failing to raise on appeal insufficiency of the evidence of

kidnapping in light of Garza. However, the habeas court’s determination in this

regard was in error.

       In Garza, this Court established new factors for assessing the asportation

element of Georgia's pre–2009 kidnapping statute3; the movement required to

establish asportation had to be more than “merely incidental” to other criminal

activity, and four judicially - created factors were to be considered before a court

could reach the conclusion that more than “merely incidental” movement had

occurred. Id. at 702(1). Sellars v. Evans, 293 Ga. 346, 347 n.1 (745 SE2d 643)

(2013). The four factors to be considered are: (1) the duration of the movement;

(2) whether the movement occurred during the commission of a separate

offense; (3) whether such movement was an inherent part of that separate

offense; and (4) whether the movement itself presented a significant danger to

       3
         Garza has been superceded by statute for offenses occurring after July 1, 2009. OCGA §
16–5–40 (b) (2). However, as Garza constituted a substantive change in the law with respect to the
elements of kidnapping at the time that the case was decided, the rule stated therein became
retroactively applicable to this case, because the time to enumerate errors on direct appeal had passed
before Garza was decided and the Court of Appeals denied Gonzalez’s motion to amend his brief
to raise a new claim based on Garza. Sellars v. Evans, 293 Ga. 346, 347 n. 1 (745 SE2d 643)
(2013).


                                                  4
the victim independent of the danger posed by the separate offense. Upton v.

Hardeman, 291 Ga. 720, 721 (732 SE2d 425) (2012). However, in general it

is not necessary that all four factors be met in order to establish asportation.

Wilkerson v. Hart, 294 Ga. 605, 608 (3) (755 SE2d 192) (2014). What must be

kept in mind is the purpose of the Garza test, which is to determine whether the

movement in question served to substantially isolate the victim from protection

or rescue, the evil which the kidnapping statute was originally intended to

address. Levin v. Morales, 295 Ga. 781, 782-783 (764 SE2d 145) (2014).

      As noted, the charges against Gonzalez stemmed from two incidents of

violent behavior involving his ex-girlfriend (“victim”). The first incident

occurred in the victim’s apartment on April 9, 2005, and resulted in Gonzalez’s

convictions and remaining sentences for family violence battery, aggravated

assault, and kidnapping with bodily injury; the second incident was Gonzalez

pushing the victim out of a moving car on June 4, 2005, resulting in his

remaining conviction and sentence for aggravated battery.

      The kidnapping with bodily injury charge in the indictment alleged that

Gonzalez did “unlawfully abduct [the victim], a human being, without lawful

authority and hold said person against her will, and said person did receive

                                       5
bodily injury, to wit: bruising.” The habeas court detailed the evidence with

regard to the incident in the victim’s apartment giving rise to the kidnapping

charge: the victim had been in a relationship with Gonzalez, and the relationship

changed when he became very jealous; after an incident in which Gonzalez hit

her, the victim moved out of the home they shared; after that, Gonzalez went to

the apartment that the victim was sharing with a co-worker; a male friend of the

victim had visited her that day and left his shirt, which was hanging in the

apartment; the presence of the shirt precipitated an argument between Gonzalez

and the victim; while in the bedroom, Gonzalez began hitting the victim in the

face; he threw her onto the bed, where he choked her around the neck; the victim

did not recall whether Gonzalez hit her with an open hand or with a fist, but

thought he used his fist because of the bruises she received; Gonzalez and the

victim struggled, and she got out of the bedroom; the victim told Gonzalez that

she was going to call the police, and he grabbed her cell phone; the victim was

moving towards the door of the apartment when Gonzalez reached her, grabbed

her by the hair, and then threw her against the wall or door; and Gonzalez then

left, taking her cell phone.

     In regard to the element of asportation, the habeas court focused on the act

                                        6
of Gonzalez grabbing the victim by the hair and pulling her back from the door,

and concluded that although the duration of that movement was short, it

presented a significant danger to the victim independent of the charged offenses

of aggravated assault resulting from the apartment incident.4 It also concluded

that the movement of pulling the victim back by the hair allowed Gonzalez to

exercise additional control over her, throw her into the wall or door, and further

isolate her from protection or rescue, as it served to terminate her attempt to flee

the apartment and Gonzalez.            However, the habeas court misapplied Garza in

reaching such conclusions.

       First, there is no evidence to support a finding that the movement of

pulling the victim back by the hair was anything other than of minimal duration.

After the bedroom altercation and Gonzalez’s taking the victim’s cell phone, she

went towards the door, Gonzalez caught up to her, grabbed her hair, and threw

her against the door or wall. Gonzalez then immediately left the apartment. Thus

the act was part and parcel of one violent event. Indeed, such movement



       4
        The first offense of aggravated assault, upon which Gonzalez was found guilty of family
violence battery, charged that it was committed by Gonzalez throwing the victim against a wall; the
second offense of aggravated assault charged that Gonzalez assaulted the victim by squeezing her
neck with his hands.

                                                 7
occurred during the commission of, and as an inherent part of, the first indicted

aggravated assault, and the resulting conviction of family violence battery. The

alleged kidnapping, i.e., the grabbing of the victim’s hair, is inseparable from the

family violence battery of throwing the victim against the wall as that is how

Gonzalez accomplished such criminal act. Separating Gonzalez’s grabbing the

victim’s hair from his act of throwing the victim against the wall or door, and

labeling it kidnapping starkly illustrates both cumulative punishment under more

than one criminal statute for a single course of conduct and the failure to provide

fair warning of what type of conduct the kidnapping statute forbids. Garza at

700 (1).

      Furthermore, there is no evidence that pulling the victim by the hair

presented a significant danger to her that was independent of the family violence

battery, as she was not isolated or somehow exposed to an independent danger

outside of the one to which she was already being subjected from the family

violence battery itself. Sellars v. Evans, supra at 348 (1). The family violence

battery and alleged kidnapping with bodily injury were one continuous event.

The habeas court held that the hair grabbing presented an independent danger to

the victim by isolating her and preventing her rescue; but, the court failed to

                                         8
recognize that Gonzalez immediately left the apartment without returning or

instructing the victim to stay in the apartment. Thus, right after Gonzalez

grabbed the victim’s hair, the attack on her stopped and she was out of danger.

       Accordingly, under Garza, the evidence was insufficient to show the

necessary kidnapping element of asportation. Consequently, the judgment of the

habeas court must be reversed, and Gonzalez's conviction for kidnapping with

bodily injury and the life sentence must be vacated.5

       Judgment reversed and case remanded with direction. All the Justices

concur.




       5
         It must be noted that in the governing amended sentencing order of October 1, 2009, the
sentences for the remaining convictions were to be served consecutively to each other and to the life
sentence for kidnapping with bodily injury; therefore, these remaining sentences will need to be re-
crafted in light of the vacating of the life sentence.

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