California Court of Appeals, First District, Second Division
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
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
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
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.
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
unpublished portion of the opinion, we find sufficient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
AND PROCEDURAL BACKGROUND
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,  §§ 182, subd. (a)(1), 236.1,
subd. (b); count 1) and other offenses related to alleged
2007, Doe 2 was 18 years old and “in an active
addiction to meth.” 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.
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.
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.
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
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.
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
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.
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.
and Abetting Forcible Rape (Counts 22-24)
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
Sodomy (Count 9)
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.
next day, Harper dropped Doe 2 off with codefendant Eric
Beman. 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
for Extortion (Count 10), Kidnapping (Count 20), and
Rape with Kidnapping (Count 13)
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.
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.
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.
this time, Doe 2 was hanging out with the CoCo County Boys, a
White criminal street gang. She felt they would
protect her from Harper to some extent.
for Extortion (Count 12) and Kidnapping (Count 21)
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
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.
testified there were six other times Harper attempted to
2006, Doe 1 was working as a prostitute. At some point, she
moved in with Gordon in a house on Abbott.
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.
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
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.
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.
Trafficking (Count 15)
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
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
Copulation (Count 16)
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.
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.
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.
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. 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.
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.
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.
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
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 found Harper guilty of all of the charged counts except
count 16, ...