Filed 7/30/14 P. v. Tozier CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B250830

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. GA078621)
                   v.

ERIC LEROY TOZIER,

                         Defendant and Appellant.


         APPEAL from the judgment of the Superior Court of Los Angeles County.
Suzette Clover, Judge. Affirmed.

         Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback
II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.




                                                 **********
        Defendant and appellant Eric Leroy Tozier appeals from a conviction by jury of
multiple sex offenses. Defendant contends his conviction on count 1 pursuant to Penal
Code section 209, subdivision (b)(1)1 for kidnapping to commit a sex offense, as well as
the special kidnapping findings on counts 3, 4, 5, 7 and 10, must be reversed because of
insufficient evidence of asportation. We conclude the record contains substantial
evidence of asportation, and therefore affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
        Because defendant has raised just one narrow issue for review, we summarize only
those facts material to our discussion.
        In December 2009, V.F. was living with her three-year old daughter in the family
home of her best friend, Lisa. Lisa’s parents and defendant (Lisa’s older brother) also
lived in the home. On December 8, around 4:00 p.m., V.F. came home from dropping off
her daughter at the home of the child’s father and started to get ready for work. She went
to take a shower in the communal bathroom of the family home. She locked the
bathroom door before getting into the shower, as she always did. She could hear
defendant playing music in his room. Defendant was the only other person home at the
time.
        At some point during her shower, she heard defendant turn off the music in his
room. Defendant was “heavyset” and V.F. could hear the sound of his footsteps as he
walked back and forth several times down the hallway and past the bathroom. At one
point, she heard him go to the kitchen. V.F. then heard the sound of the bathroom
doorknob being “jiggle[d].” V.F. was “stunned” when defendant pulled the shower
curtain open. Defendant ordered V.F. out of the shower, telling her to get out on her own
or he would “make [her] get out.” She saw he was holding a kitchen knife about six to
eight inches long.




1       All further undesignated section references are to the Penal Code.


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       Defendant ordered V.F., still naked, to walk to his bedroom without a towel.
Defendant’s bedroom was about “four to five steps” down the hall from the bathroom.
Defendant followed behind her, still carrying the knife. When they got into his room,
defendant ordered V.F. to lie down on his bed. Defendant locked the door and told V.F.
he had locked everybody out. He told her he would cut her if she screamed and said “we
can do this all night long.” V.F. believed only defendant had a key to his bedroom door.
       Once in defendant’s bedroom, defendant proceeded to rape and sodomize V.F. at
knifepoint, among other criminal acts. At one point, defendant also took out a second
knife and threatened V.F. with it. The assault went on for some 40 minutes. Afterwards,
defendant told V.F. to finish her shower, ordered her not to tell anyone and took her cell
phone away from her.
       Defendant was charged by information with nine counts: kidnapping to commit a
sex offense (§ 209, subd. (b)(1); count 1); two counts of forcible rape (§ 261, subd. (a)(2);
counts 2 & 3); three counts of sodomy by use of force (§ 286, subd. (c)(2); counts 4, 8 &
9); forcible oral copulation (§ 288a, subd. (c)(2); count 5); and two counts of sexual
penetration by foreign object (§ 289, subd. (a)(1); counts 7 & 10).2 As to counts 2, 3, 4,
5, 7, 8, 9 and 10, it was specially alleged pursuant to section 667.61 that the offenses
were committed in connection with a kidnapping and that a deadly weapon was used. It
was also specially alleged as to all counts that defendant personally used a deadly weapon
(a knife) within the meaning of section 12022, subdivision (b)(1). Further, it was alleged
defendant had suffered a prior conviction for a lewd act on a child (§ 288, subd. (b)(1)),
and had served three prior prison terms within the meaning of sections 667,
subdivisions (b) through (i), section 1170.12 subdivisions (a) through (d), and
section 667.5, subdivision (b), respectively.




2      The operative information does not contain a count 6.


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       Defendant pled not guilty and denied the special allegations. Following a jury
trial, defendant was found guilty on counts 1, 2, 3, 4, 5, 7 and 10.3 The special
allegations on those counts were found true. Defendant admitted the prior conviction and
the prior prison terms and waived trial on those allegations, which the court subsequently
found true. Defendant was sentenced to 59 years to life in state prison. This appeal
followed.
                                       DISCUSSION
       Defendant’s sole contention is that the record lacks substantial evidence of
asportation such that his conviction on count 1 for kidnapping to commit a sex offense
(§ 209, subd. (b)(1)), as well as the special kidnapping findings on counts 3, 4, 5, 7 and
10, must be reversed. We are not persuaded.
       “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence--that is, 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.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “We ‘ “presume in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.’ ” [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 509.) And,
“ ‘[a]lthough we must ensure the evidence is reasonable, credible, and of solid value,
nonetheless it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts on which that determination
depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.)


3     Before deliberations began, two of the sodomy counts (counts 8 & 9) were
dismissed on the prosecution’s motion, and one of the rape counts (count 2) was
amended, to conform to proof, to attempted rape.


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       Section 209, subdivision (b) provides as follows: “(1) Any person who kidnaps
or carries away any individual to commit robbery, rape, spousal rape, oral copulation,
sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by
imprisonment in the state prison for life with the possibility of parole. [¶] (2) 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.” (Italics added.)
       The asportation element of aggravated kidnapping under section 209,
subdivision (b) requires proof of two interrelated circumstances: (1) movement of the
victim that is not “merely incidental” to the commission of the specified sex crime,
(2) that results in an increased risk of harm to the victim. (People v. Robertson (2012)
208 Cal.App.4th 965, 983.) “ ‘For 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.]” (Ibid.) The Supreme Court explained in People v. Dominguez
(2006) 39 Cal.4th 1141, 1151-1152 (Dominguez) that the two-pronged standard requires
a “qualitative evaluation” and “each case must be considered in the context of the totality
of the circumstances.”
       In urging this court to find insufficient evidence of the first prong of the
asportation element, defendant relies heavily on the relatively short distance V.F. was
moved (from the bathroom to defendant’s bedroom inside the same home), and
defendant’s assertion the prosecutor conceded the rape could not have occurred in the
bathroom. Neither point is persuasive.
       V.F. testified that defendant forced her from the shower, at knifepoint, to walk
down the hallway, approximately four to five steps, to his bedroom, whereupon he then
ordered V.F. onto his bed and locked the bedroom door. “For aggravated kidnapping
‘ “ . . . there is no minimum number of feet a defendant must move a victim in order to
satisfy the first prong.” ’ [Citation.]” (People v. Aguilar (2004) 120 Cal.App.4th 1044,


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1048 [forcibly moving rape victim down sidewalk away from lighted area to a darker
area constituted sufficient “movement of the victim” within the meaning of the statute];
accord, Dominguez, supra, 39 Cal.4th at p. 1152 [“we have repeatedly stated no
minimum distance is required to satisfy the asportation requirement”].) We find that
defendant’s having forced the victim to walk, naked and at knifepoint, into his private,
locked bedroom, was not trivial or insubstantial movement outside the scope of the
statute.
       Further, nowhere in the record do we find a concession by the prosecutor that the
rape could not have occurred in the bathroom, thus rendering the movement into the
bedroom a necessary aspect of the commission of the rape. “ ‘[A] rape . . . does not
necessarily require movement to complete the crime.’ [Citation.] 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.” (People v. Shadden
(2001) 93 Cal.App.4th 164, 169 (Shadden).) The evidence presented to the jury was that
the bathroom was the communal bathroom in the family home which was large enough to
be occupied at the same time by at least two people. It requires no stretch of imagination
or speculation by the trier of fact to reasonably infer from such evidence that a rape could
occur in that bathroom.
       Nor is it significant that all the movement occurred inside the home. Defendant
moved V.F. from the bathroom -- where other family members, if they had come home,
were more likely to seek entry and discover defendant’s crimes -- to defendant’s own
bedroom behind a locked door where detection was more difficult. (See, e.g., People v.
Vines (2011) 51 Cal.4th 830, 871 [movement of store employees from front of store,
down stairwell and into a walk-in freezer sufficient evidence for jury to find scope and
nature of movement satisfied asportation element despite movement taking place in same
premises], and Shadden, supra, 93 Cal.App. 4th at p. 169 [moving rape victim nine feet
from front of store to back room of same premises sufficient to support asportation]).
The evidence of the scope and nature of the forced movement here was sufficient to



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reasonably support the jury’s determination that such movement was significant and not
“merely incidental” within the meaning of section 209, subdivision (b).
       As to the second prong of the asportation element, defendant argues the movement
from the bathroom to defendant’s private bedroom was movement from one similar room
to another, with no substantial change in the nature of the environment that increased the
risk of harm to V.F. We disagree.
       Defendant’s bedroom was his private room, with a door that locked, with much
less risk of detection than the bathroom in the family home used by other household
members, and it had more space to commit his intended crimes. Moreover, it increased
the risk of harm to V.F. and provided defendant with “enhanced opportunity” to commit
further crimes against her. (People v. Robertson, supra, 208 Cal.App.4th at p. 983.)
Upon forcing V.F. into his room and locking the door, defendant told V.F. they could be
there “all night long.” V.F. believed that only defendant had a key to his room so no
other family member, even if they came home, would be able to get in, and defendant
threatened her with both knives if she made any noise. In the privacy of his bedroom,
defendant had access to two knives and could therefore have easily rearmed himself
(unlike in the bathroom), had V.F. been able to get the kitchen knife away from him and
tried to escape. As a result, defendant was able to assault V.F. for 40 minutes and
commit multiple crimes against her. It is much less likely that defendant could have
evaded detection in the communal bathroom for 40 minutes than in his private bedroom
where he could feign sleep. The evidence amply supported the increased risk of harm
and fear to V.F. (People v. Tuan Van Nguyen (2000) 22 Cal.4th 872, 886 [increased risk
of harm in section 209 includes increased risk of psychological harm to the victim].)
                                     DISPOSITION
       The judgment of conviction is affirmed.
                                                        GRIMES, J.


       We concur:
                     BIGELOW, P. J.                     RUBIN, J.


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