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People v. Harper

California Court of Appeals, First District, Second Division

January 9, 2020

The PEOPLE, Plaintiff and Respondent,
v.
Derrick Damon HARPER, Defendant and Appellant.

         [Certified for Partial Publication.[*]]

         [257 Cal.Rptr.3d 442] Superior Court of Contra Costa County, Charles B. Burch, Judge (Contra Costa County Super. Ct. No. 05-152089-9)

Page 173

         COUNSEL

         Victoria H. Stafford, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant

         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan and Moona Nandi, Deputy Attorneys General, for Plaintiff and Respondent

          OPINION

         Miller, J.

Page 174

          A jury found defendant Derrick Damon Harper guilty of conspiracy to commit human trafficking and multiple kidnapping and sex

Page 175

offenses. Harper contends his kidnapping and kidnapping-for-extortion convictions must be reversed because the conduct underlying the charges could be prosecuted only under the more specific statute Penal Code section 266a, which prohibits "tak[ing] any person against his or her will and without his or her consent ... for the purpose of prostitution." This contention is based on a doctrine known as the "Williamson rule" after our Supreme Court’s decision in In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593 (Williamson ), which held that if a general statute includes the same conduct as a special statute, courts infer that the Legislature intended the conduct to be prosecuted only under the special statute.

         In the alternative, Harper argues his two convictions of kidnapping for extortion must be reversed, first, because his conduct did not constitute extortion and, second, because the jury instruction given, CALCRIM No. 1202, was an incorrect statement of law.

         In the published portion of our opinion, we hold that the Williamson rule does not bar the convictions here, that defendant’s conduct constituted extortion, and that although the challenged jury instruction contained an incorrect statement, it did not contribute to the jury’s verdict.

          In the unpublished portion of the opinion, we find sufficient evidence of kidnapping to support counts 12 and 21; we agree with the parties that certain enhancements were improperly imposed and therefore strike those enhancements; and we remand the matter for resentencing under recently enacted legislation.

          FACTUAL AND PROCEDURAL BACKGROUND

          Charges

         The Contra Costa County District Attorney charged Harper, along with five codefendants (most notably, Roy Gordon and Eric Beman), with conspiracy to commit human trafficking (Pen. Code,[1] § § 182, subd. (a)(1), 236.1, subd. (b); count 1) and other offenses related to alleged coercive pimping.[2]

Page 176

         [257 Cal.Rptr.3d 443] Trial

          Jane Doe 2

         In 2007, Doe 2 was 18 years old and "in an active addiction to meth."[3] She did not have stable housing and "was back and forth between Pittsburg, Antioch, Brentwood, [and] Oakley." During this period, Doe 2 lived with Jeff Fowler for a few months.

          One day, Fowler took Doe 2 to an apartment in Pittsburg where he wanted her to perform oral sex on a man (implicitly for money). At the apartment, Doe 2 went to a back room and had sex with codefendant Roy Gordon. Afterward, Doe 2 realized Fowler had left the apartment, and she felt scared.

          Gordon told Doe 2 he would take her back to Fowler, but instead he took her to a house on Dover in Pittsburg. Gordon showed Doe 2 a bedroom and told her she would be staying there. He told Doe 2 she was going to work for him, and she felt like she couldn’t leave. Doe 2 performed three acts of prostitution during the time she was at the Dover house, and Gordon supplied her with methamphetamine.

          At some point, four girls beat up Doe 2 and cut off her hair. Gordon took Doe 2 to a second house to recover from the beating. After two or three days, Doe 2 left the second house. Doe 2 testified she stayed at the Dover house for about three or four weeks.

          In 2009, Doe 2 met Harper at the apartment of a woman named Candace. Harper brought methamphetamine to the apartment, Doe 2 got high with Candace and another woman, and Doe 2 had consensual sex with Harper.

         A few months later, Harper offered Doe 2 a place to stay in a foreclosed house on DiMaggio. Doe 2 went to the DiMaggio house. Initially, Doe 2 felt like she was free to come and go at the DiMaggio house. But then she saw Harper "jump" Nick Chavez, and she did not feel safe.[4]

Page 177

          Doe 2 recalled riding in Harper’s car when he saw a woman coming out of a building. (This woman was later identified at trial as Jane Doe 5.) Harper got out of the car and grabbed Doe 5 by the back of the neck and put her in the backseat of his car. He said Doe 5 owed him money, and she looked really scared. Harper took Doe 5 to the DiMaggio house, and he had Doe 5 sign a "contract" indicating she owed Harper money. Doe 2 was supposed to watch Doe 5, but she let Doe 5 escape through her bedroom window.

          A few days after Doe 5 escaped, Harper called Doe 2 to the living room. He had Doe 2 take off her clothes and had another woman cut her hair off while he recorded the event on his phone.

         [257 Cal.Rptr.3d 444] Aiding and Abetting Forcible Rape (Counts 22-24)

          Harper displayed a gun and had three men— Chavez, Rude Boy, and a man called "Ghost"— rape Doe 2. Harper had them go into a back room and rape her one by one. Harper would come in and make sure they were raping her and then he would close the door.

          Forcible Sodomy (Count 9)

          After the men raped Doe 2, Harper told her to take a shower. He told Doe 2 to go to her bedroom, and he anally raped her.

         The next day, Harper dropped Doe 2 off with codefendant Eric Beman.[5] Harper told her "a hard head makes a soft ass," and Doe 2 understood this to mean if she "acted up" or didn’t follow directions, she would be sodomized again or Beman would beat her.

          Kidnapping for Extortion (Count 10), Kidnapping (Count 20), and Rape with Kidnapping (Count 13)

          Around 2009, Doe 2 was in custody for three or four months for receiving stolen property. After she got out of custody, Doe 2 stayed with her uncle in Oakley. She believed Harper was looking for her because she heard he was offering people she knew drugs and money to tell him where she was. As a result, Doe 2 "was always watching over [her] shoulder"; she carried a knife, did not go out on the streets during the day, and was very careful about who she socialized with.

Page 178

          Doe 2 was walking down the street at night in Antioch when Harper pulled up in a white pickup truck. He grabbed Doe 2 and put something hard to her back. He told her to get in the truck, and she complied. She saw that he had a gun. Harper took Doe 2 to a house on Jack London in Pittsburg. He had her take a shower, and then he raped her. He had a gun on the nightstand. The next day, Doe 2 looked at the gun while Harper was taking a shower. She determined the gun was not operational because when she picked it up, it rattled.

          Doe 2 stayed at the Jack London house only a couple of days. Harper told her he was going to sell her to a man in Vallejo for $10,000, and this motivated Doe 2 to try to escape. She jumped over the back fence, ran a few streets away, and then called a friend to pick her up.

         Around this time, Doe 2 was hanging out with the CoCo County Boys, a White criminal street gang.[6] She felt they would protect her from Harper to some extent.

          Kidnapping for Extortion (Count 12) and Kidnapping (Count 21)

          On another occasion, Doe 2 was getting high at a drug house on Peppertree Court in Antioch when Harper showed up. Doe 2 went with Harper because, she testified, "I didn’t feel safe there and I didn’t feel like anybody would even try to protect me there. So I didn’t want anybody getting hurt."

          Harper had Doe 2 dress in a skimpy skirt and heels. He mentioned again that he was going to sell her to a man in Vallejo. Harper and Chop drove Doe 2 to perform an act of prostitution. The client gave Chop $100, and Chop gave the money to Harper. Harper saw that the bill was fake. He drove to a gas station and asked Doe 2 to get change for the counterfeit bill [257 Cal.Rptr.3d 445] from someone at the gas station. Doe 2 asked a man if he had change for a $100. The man recognized her, and Doe 2 realized she knew him; his name was Johnny. Doe 2 told Johnny that Harper was trying to sell her to a man in Vallejo and asked if he could help. Johnny told her to jump in, and she jumped in the back of his Bronco and covered herself with a towel.

          Doe 2 testified there were six other times Harper ...


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