California Court of Appeals, First District, Second Division
for Partial Publication.[*]]
Cal.Rptr.3d 442] Superior Court of Contra Costa County,
Charles B. Burch, Judge (Contra Costa County Super. Ct. No.
H. Stafford, Oakland, 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 Courts 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
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 defendants conduct constituted extortion, and that
although the challenged jury instruction contained an
incorrect statement, it did not contribute to the jurys
unpublished portion of the opinion, we find sufficient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
FACTUAL 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 coercive
Cal.Rptr.3d 443] Trial
Jane Doe 2
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
couldnt leave. Doe 2 performed three acts of prostitution
during the time she was at the Dover house, and Gordon
supplied her with methamphetamine.
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.
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 Harpers 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.
Cal.Rptr.3d 444] Aiding and Abetting Forcible Rape
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)
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 didnt 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)
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.
Kidnapping for Extortion (Count 12) and Kidnapping (Count
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 didnt feel safe
there and I didnt feel like anybody would even try to
protect me there. So I didnt 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 [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.
testified there were six other times Harper ...