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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[*]

          Superior Court of Contra Costa County No. 05-152089-9. Hon. Charles B. Burch Trial Judge.

          Victoria H. Stafford, 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

          MILLER, J.

         A jury found defendant Derrick Damon Harper guilty of conspiracy to commit human trafficking and multiple kidnapping and sex 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 (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         In the unpublished portion of the opinion, we find sufficient evidence of kidnapping to support counts 12 and 21; we agree with the parties that certain enhancements were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]

         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]

         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.

         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.

         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 Pepper tree 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 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 attempted to kidnap her.

         Jane Doe 1

         Around 2006, Doe 1 was working as a prostitute. At some point, she moved in with Gordon in a house on Abbott.[7]

         Beman was Gordon's best friend. Occasionally, Gordon would get arrested, and Beman would monitor Doe 1 while Gordon was in custody. In 2010, Gordon was in custody on a robbery charge. Doe 1 continued to work as a prostitute and lived with a woman named Shannon.

         Doe 1 met Harper through Shannon, and he invited her to live with him rent free. Doe 1 moved into Harper's house on Jack London. At first, Doe 1 was free to come and go as she wanted.

         At some point (while Gordon was in custody), Beman told Doe 1 she had no business being at Harper's house. Doe 1 told Harper what Beman said, and Harper said he was going to settle it with Beman. Doe 1 and Harper met Beman at a house in Antioch, and Harper and Beman had a heated discussion. Beman hit Doe 1 over the head with a bottle, punched her, and “stomped” her while Harper watched. Doe 1 tried to leave with Harper, but Harper left without her.

         Later, Harper told Doe 1 this was intended as a trade of sorts: Harper was supposed to take Doe 1 to Beman, and Beman “was supposed to give up... Doe 2” to Harper.

         Human Trafficking (Count 15)

         Soon after Harper left Doe 1 with Beman in Antioch, Beman went to jail, and Doe 1 returned to Harper's house in Pittsburg. Harper made comments about making Doe 1 “his bitch, ” but she thought he was joking. One day, however, she packed her things to leave, and Harper said she was not going anywhere and “I told you I was going to make you my bitch.”

         After that, Doe 1 was forced to stay at the Jack London house, and she gave all the money she made from prostitution to Harper. Harper became physical with Doe 1 and hit her a lot. He told her if she ever left, he would go after her son. Harper agreed to a contract to allow Doe 1 to buy her freedom for $3, 000, but when she gave him the money, he denied there was a contract.

         Oral Copulation (Count 16)

         A couple of times after he beat Doe 1, Harper “would say, [‘]okay, Come suck my dick['], ” which Doe 1 understood to mean the beating was over. Doe 1 agreed that she “d[id] that voluntarily, ” but only because she was scared after having been beaten up.

         Other Prosecution Evidence

         Around 2011, Alicia Hammond met Harper on the street in Antioch. She went with him to a house on Jack London and then to a bar in Antioch. Hammond left the bar by herself and waited outside for a friend to pick her up. As she was waiting outside, Harper drove up in a gold Lexus with a woman named Candace and another woman in the car. Harper had a gun on his lap and he told Hammond, “Get in the fucking car.” Hammond got in his car because she was afraid she would be hurt or killed if she did not comply. Harper took her and the other women to a Denny's restaurant. He told Hammond if she did not go with him, she would have to deal with Beman. Harper and the women left, and Hammond had a friend pick her up from the restaurant.

         Casey Beck knew Harper “from the streets outside.” Around 2010 or 2011, Harper told Beck that Doe 2 owed him money and had run away from him. He offered Beck $100 and an eight ball of methamphetamine to find her. Later, Beck saw Doe 2 at a friend's house. Doe 2 told Beck that she was raped, fed drugs, and beaten up a few times at Harper's house. Doe 2 said Harper was trying to force her to prostitute for him.

         Jane Doe 5 testified that she met Harper in Antioch around 2008 at a house on DiMaggio. Doe 2 was at the house. Harper held a gun to Doe 5's head and made her perform oral sex on him. Then Rude Boy and a teenager called “Hog” watched Doe 5 and made her stay in a room.[8] Doe 5 was told she owed Harper $300, but she had never met him before. After a couple of days, Doe 5 was allowed to leave the DiMaggio house when she said she was going to meet a client for sex. About five days later, Harper raped Doe 5 in a house in Pittsburg. A girl cut Doe 5's hair, and Harper videotaped it.

         Defense

         Harper testified on his own behalf. He admitted he had been convicted in 1998 of two counts of kidnapping. After he was released from custody, he lived in Pittsburg with his parents. It was stipulated that Harper was in custody again from August 2008 to May 2009. After he was released in 2009, he returned to his parents' house, worked as a security guard at a bar in Brentwood, briefly lived with a girlfriend in Antioch, and then moved back with his parents in 2010.

         Harper testified he met Doe 2 in 2010 at Candace's apartment, and he and Doe 2 had sex in the bathroom. He ran into her later and told her about a house available for rent on DiMaggio; Doe 2 and Candace ended up moving into the house. Harper never lived in the DiMaggio house, but he visited often to see Candace. According to Harper, Doe 2 was interested in a relationship with him, and they started dating. Harper testified that, one day, he went to the DiMaggio house on his lunch break and saw Doe 2 having sex with his friend Nick Chavez and two other men, “Ghost and Kaze.” Harper testified he felt “disrespected, played” and he broke up with Doe 2. He denied he told the men to have sex with Doe 2. Harper admitted he yelled at Doe 2 when he saw her in front of the DiMaggio house talking to Beman.

         Harper was in custody for a short period in 2011. After he was released, he lived in a house on Jack London with Candace. He met Doe 1 at the Jack London house, and he let her move in. Harper testified he had a list of white women who were being forced to prostitute themselves for Gordon and Beman, whom he described as his “enemies.” Doe 1 was on this list. At some point, Harper began a sexual relationship with Doe 1.

         Harper denied he had an agreement with Gordon or Beman to pimp women. He denied pimping Doe 1 or Doe 2. He denied raping or sodomizing Doe 2 and denied ever forcing Doe 2 to stay at his house. He denied ever asking anyone to cut Doe 2's hair. He denied ever forcing Doe 2 into a truck at gunpoint and denied taking her to the Jack London house. He denied telling Doe 2 he was going to sell her for $10, 000. He denied forcing Doe 1 to perform oral sex on him. He denied kidnapping Doe 5.

         Jury Verdict

         The jury found Harper guilty of all of the charged counts except count 16, ...


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