P. v. Harmon

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Filed 5/10/07 P. v. Harmon CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MORRIS HARMON, JR.,
Defendant and Appellant.
C048591
(Super. Ct. Nos.
02F05116, 02F02326,
00F04127)
In this matter, we affirm the rape (Pen. Code, § 261, subd.
(a)(2)) and kidnapping to commit rape (Pen. Code, § 208, former
subd. (d) (Stats. 1992, ch. 163, § 101, p. 781), reenacted as
Pen. Code, § 209, subd. (b)) convictions of defendant Morris
Harmon, Jr., which were based primarily on deoxyribonucleic acid
(DNA) evidence. We conclude defendant did not receive
ineffective assistance of counsel when his attorneys failed to
raise a confrontation clause challenge to a report prepared by
the nurse who performed a sexual assault examination on the
victim and obtained biological samples for DNA testing. We

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further conclude defendant’s Fourth Amendment rights were not
violated when the DNA profile of biological samples previously
taken from him and stored in a convicted offender database was
compared with the DNA profile obtained from biological samples
taken from the victim. Finally, we conclude the trial court did
not err in failing to instruct the jury on lesser included
offenses.
F ACTS AND P ROCEEDINGS
On the evening of February 24, 1996, 17-year-old S.B.
attended a party at a friend’s house in South Sacramento.
Sometime between 10:00 and 11:00 p.m., she left the party on
foot for another friend’s house in the area. On the way, S.B.
was grabbed from behind while on a sidewalk in front of some
buildings on Florin Road near a Pizza Hut restaurant. The
assailant put one hand over S.B.’s mouth and the other around
her waist and began walking her through a breezeway to the back
of the buildings. S.B. thought this was one of her friends
playing a trick on her and told the person to quit. The
assailant, whom S.B. later determined to be an African-American
male, told her to “shut up” and “keep walking.”
The man dragged S.B. a distance of approximately 224 feet
to an area behind the buildings. He threw her on the ground and
began pulling her clothes off. S.B. screamed at him to stop.
With S.B. lying on her stomach, the man attempted to penetrate
her anus with his penis. He was unsuccessful. He then turned

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S.B. over and inserted his penis into her vagina. As S.B.
struggled, the man hit her on the head with a rock or a brick
and with his hand. She “blacked out a little bit.” After
approximately five minutes, a woman walked into the area behind
the buildings and the man got off S.B. and fled.
When S.B. later reported the assault, she indicated the man
was approximately 5’6” tall, weighed 150 pounds, and had a
shaved head and a “very skinny framed face.” However, she also
reported the man had a scarf over his face during the assault.
She told her sister and the police that somebody tried to rape
her. When she reported the assault to her mother, she did not
say she had been raped. S.B. later explained she had been
embarrassed to admit the man succeeded in raping her. S.B. did
not know if the man ejaculated in or on her, although she told
the police she did not believe he did.
At 5:00 a.m. the next morning, Laurie Parker, a member of
the Sexual Assault Forensic Examiner (SAFE) team at U.C. Davis
Medical Center (UCDMC), conducted a sexual assault examination
on S.B. Parker prepared a report in which she noted no external
genitalia findings and indicated she observed no sperm in or
around the victim’s vagina. Swabs were used to obtain
biological samples from the victim’s vagina and cervix.
The record contains no indication of further investigation
on the case until 2002, when the matter was reopened. Analysts
at the Sacramento County District Attorney Laboratory of
Forensic Services (the Sacramento Laboratory) detected semen on
the vaginal swabs taken from the victim in 1996 and spermatozoa

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on one of the vaginal swabs and one of the cervical swabs.
Criminalist Mark Eastman of the Sacramento Laboratory extracted
DNA from the samples and generated a 13-locus DNA profile. The
Sacramento Laboratory then requested a databank search by the
California Department of Justice to compare the DNA profile
prepared by Eastman with those contained in a convicted offender
databank. The search turned up a match with DNA profile
obtained from a biological sample taken from defendant while in
custody on an unrelated matter.
Police officers arrested defendant and obtained a saliva
sample for further DNA testing. Eastman obtained a 13-locus DNA
profile from this sample and found that it matched the DNA
profile taken from the victim’s vaginal swab.
S.B. was unable to identify defendant as the assailant in a
photographic lineup. In 1996, defendant was 5’10” tall and
weighed 175 pounds. In 1996, defendant lived within one mile of
the crime scene.
Defendant was charged with rape and kidnapping to commit
rape along with three prior serious felony convictions. At
trial, Leslie Schmidt, a nurse practitioner with UCDMC’s SAFE
team testified about the sexual assault examination conducted on
the victim and identified the SAFE report prepared by Laurie
Parker. Mark Eastman testified about the DNA match and opined
that the chance of a random match based on a 13-locus DNA
profile was one in 190 quadrillion in the African-American
population. The jury was provided photographs of defendant

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taken in or around 1996 that showed him with hair on his head
and facial hair. Defendant did not testify.
Defendant was convicted on both counts. He waived jury
trial on the priors and the court found them to be true.
Defendant was sentenced under the three strikes law to 75 years
to life for the rape plus consecutive terms of five years each
for three prior serious felony convictions. A term of 33 years
to life on the kidnapping charge was stayed pursuant to Penal
Code section 654. In a separate matter, defendant received a
consecutive term of two years and eight months for failing to
register as a sex offender (Pen. Code, § 290, subd. (g)(2)).
D ISCUSSION
I
Ineffective Assistance of Counsel
As noted earlier, Laurie Parker conducted the sexual
assault examination of the victim at UCDMC. Parker obtained the
vaginal and cervical swabs that held the biological samples from
which a DNA profile was created and compared with the DNA
profile obtained from defendant. Parker did not testify at
trial. Instead, her report was admitted into evidence as a
business record, and another member of the UCDMC SAFE team,
Leslie Schmidt, testified about its contents.
Defendant contends presentation of the examination results,
and in particular the DNA evidence, violated his Sixth Amendment
right of confrontation. He does not contend the SAFE report is
not a business record within the meaning of Evidence Code

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section 1271. Instead, he argues this hearsay exception must
give way to his constitutional rights. Defendant further
contends that, if this issue has been forfeited by counsel’s
failure to raise a confrontation clause challenge at trial, he
received ineffective assistance of counsel.
As defendant suspects, his confrontation clause claim has
been forfeited by failure to raise it below. (See People v.
Burgener (2003) 29 Cal.4th 833, 869.) A timely objection would
have given the prosecution an opportunity to present Parker as a
witness. Schmidt testified that, at the time of trial, Parker
was no longer a member of the SAFE team but was still employed
by UCDMC. Presumably, she would have been available to testify.
As we shall explain, Parker’s presence as a witness at trial
would have eliminated a confrontation clause issue. Thus, we
address defendant’s ineffective assistance claim.
Under both the Sixth Amendment to the United States
Constitution and article I, section 15 of the California
Constitution, a criminal defendant has a right to the assistance
of counsel. (See Strickland v. Washington (1984) 466 U.S. 668,
684-685 [80 L.Ed.2d 674, 691-692]; People v. Pope (1979) 23
Cal.3d 412, 422.) This right “entitles the defendant not to
some bare assistance but rather to effective assistance.”
(People v. Ledesma (1987) 43 Cal.3d 171, 215.) “‘[I]n order to
demonstrate ineffective assistance of counsel, a defendant must
first show counsel’s performance was “deficient” because his
“representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.”

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[Citations.] Second, he must also show prejudice flowing from
counsel’s performance or lack thereof. [Citations.] Prejudice
is shown when there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
[Citations.]’” (In re Avena (1996) 12 Cal.4th 694, 721.)
Defendant’s claim of ineffective assistance is premised on
Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]
(Crawford). In Crawford, the United States Supreme Court held
the confrontation clause prohibits the admission of an out-of-
court statement that is testimonial in nature unless the
declarant is unavailable and the defendant had a prior
opportunity for cross-examination. (Id. at p. 68 [158 L.Ed.2d
at p. 203].) Crawford did not define the term “testimonial,”
but gave examples--grand jury testimony, prior trial testimony,
preliminary hearing testimony, and statements taken by officers
in the course of interrogation--and observed that these
practices have the closest kinship to the abuses at which the
confrontation clause was directed. (Ibid.) The court noted one
formulation of the class of “testimonial” statements would be
“‘statements that were made under circumstances which would lead
an objective witness reasonably to believe that the statement
would be available for use at a later trial.’” (Id. at p. 52
[158 L.Ed.2d at p. 193].)
Defendant contends the SAFE examination report prepared by
Laurie Parker was testimonial in nature, because it was prepared

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with an eye toward criminal prosecution. He argues: “[A]
sexual assault forensic examiner who gathers evidence and
prepares a sexual assault report does do so primarily to collect
and document evidence to identify and prosecute a sex offender.
Under any definition suggested by Crawford, the overriding
intent, purpose and substance of a sexual assault forensic
examination places it squarely within the Supreme Court’s
concept of ‘testimonial’ . . . .”
Even if we accepted defendant’s broad reading of Crawford,
he would still not be able to establish a claim of ineffective
assistance of counsel. Generally, a failure to object to the
admission of evidence is a matter of trial tactics. (People v.
Kelly (1992) 1 Cal.4th 495, 520.) In evaluating a claim of
ineffective assistance, “there is a ‘strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance’ [citations], and we accord great
deference to counsel’s tactical decisions. . . . [A] reviewing
court will reverse a conviction on the ground of inadequate
counsel ‘only if the record on appeal affirmatively discloses
that counsel had no rational tactical purpose for his act or
omission.’” (People v. Frye (1998) 18 Cal.4th 894, 979-980.)
Defendant contends there could have been no tactical reason
for failing to raise a confrontation clause challenge. He
argues that, upon a challenge to DNA evidence, the prosecution
must establish the foundation for the evidence outside the
presence of the jury. Thus, the jury would not be adversely
influenced by his assertion of the challenge. He further argues

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defense counsel raised a number of other objections to the
introduction of DNA evidence, so there could be no tactical
reason for not raising a confrontation clause challenge as well.
We disagree. Defendant’s argument assumes that, if counsel
had raised a confrontation clause challenge, and the challenge
had merit, the DNA evidence would have been excluded. That
assumption is unwarranted. The best defendant could have hoped
for was that the court would exclude the SAFE report and
preclude Leslie Schmidt from testifying about it. In that case,
counsel may reasonably have assumed the prosecution then would
have procured the testimony of Laurie Parker herself. Although
we do not know what Parker would have said, there is no reason
to believe she would have testified differently than Schmidt
about whether the biological samples on the vaginal and cervical
swab were obtained from the victim according to normal SAFE team
practices. Parker would have been able to use the report to
support her testimony. (See People v. Arreola (1994) 7 Cal.4th
1144, 1157.)
Under these circumstances, we cannot say the defense would
not have preferred introduction of the SAFE report over the
testimony of the examining nurse. With the report alone,
counsel might have concluded they could plant a seed of doubt as
to whether the samples were taken as indicated. Certainly we
cannot say counsel had no rational tactical purpose for failing
to object. Consequently, there was no ineffective assistance of
counsel.

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II
Suppression of Defendant’s DNA Evidence
As described earlier, after a DNA profile was established
using the vaginal swabs taken from the victim, this profile was
submitted to the California Department of Justice for comparison
with a convicted offender database. This comparison turned up a
match with defendant.
Defendant contends use of his DNA profile violated his
Fourth Amendment rights. He does not challenge extraction of
the biological sample itself. Rather, he argues: “Whatever
special needs that may have justified the taking of biological
samples while [defendant] was incarcerated or on parole, those
special needs terminated when [defendant] was discharged from
parole. Because special needs did not exist for the state to
retain his sample for testing beyond that point, the State’s
retention and testing of the sample was in violation of the
Fourth Amendment.” Defendant further argues the saliva sample
taken from him after his arrest in this matter was a fruit of
the poisonous tree and therefore the DNA results should have
been suppressed.
The People contend defendant’s Fourth Amendment claim is
not cognizable on appeal. They cite People v. Dial (2005) 130
Cal.App.4th 657 (Dial), where the Court of Appeal concluded the
defendant’s Fourth Amendment attack on an order imposed at
sentencing requiring that he submit a biological sample pursuant
to the Forensic Identification Database and Data Bank Act of

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1998 (the DNA Act) was not cognizable on appeal. The court
explained the DNA Act is self-executing and the defendant was
essentially seeking injunctive relief against the officials
charged with enforcing the DNA Act without those officials being
parties to the action. (Id. at pp. 661-662.) Because any
rescission of the order would not relieve the defendant of the
requirements of the DNA Act, the court concluded there was no
need to reach the merits of the defendant’s challenge. (Id. at
p. 662.)
Dial has no bearing on this matter. In Dial, the defendant
sought to enjoin what he claimed would be a Fourth Amendment
violation. The court concluded the defendant would have to
bring a separate action against the parties charged with
enforcing the DNA Act in order to obtain that relief. In the
present matter, defendant claims a violation of the Fourth
Amendment has already occurred and he seeks the remedy of
suppression for such violation. If, as defendant contends, his
rights have been violated, this is the time and place to have
the violation adjudicated and remedied. Defendant’s claim is
therefore cognizable on appeal.
It is beyond dispute that the compulsory, nonconsensual
extraction of biological samples constitutes a search and
seizure subject to Fourth Amendment protection. (See Skinner v.
Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 616 [103
L.Ed.2d 639, 659]; Schmerber v. California (1966) 384 U.S. 757,
767 [16 L.Ed.2d 908, 918]; Loder v. City of Glendale (1997) 14
Cal.4th 846, 867.) However, “[a]s the text of the Fourth

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Amendment indicates, the ultimate measure of the
constitutionality of a governmental search is ‘reasonableness.’”
(Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 652
[132 L.Ed.2d 564, 574].) “[W]hether a particular search meets
the reasonableness standard ‘“is judged by balancing its
intrusion on the individual’s Fourth Amendment interests against
its promotion of legitimate governmental interests.”’
[Citations.]” (Id. at pp. 652-653 [132 L.Ed.2d at p. 574].)
It has been repeatedly and consistently held that the
extraction of biological samples from a convicted felon is not
an unreasonable search and seizure within the meaning of the
Fourth Amendment. (See, e.g., People v. Johnson (2006) 139
Cal.App.4th 1135, 1168; People v. Travis (2006) 139 Cal.App.4th
1271, 1289-1290; People v. Adams (2004) 115 Cal.App.4th 243,
255-259; Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505-506;
People v. King (2000) 82 Cal.App.4th 1363, 1371-1378.) As this
court explained in Alfaro: “We agree with existing authorities
that (1) nonconsensual extraction of biological samples for
identification purposes does implicate constitutional interests;
(2) those convicted of serious crimes have a diminished
expectation of privacy and the intrusions authorized by the
[DNA] Act are minimal; and (3) the [DNA] Act serves compelling
governmental interests. Not the least of the governmental
interests served by the [DNA] Act is ‘the overwhelming public
interest in prosecuting crimes accurately.’ [Citation.] A
minimally intrusive methodology that can serve to avoid
erroneous convictions and to bring to light and rectify

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erroneous convictions that have occurred manifestly serves a
compelling public interest. We agree with the decisional
authorities that have gone before and conclude that the balance
must be struck in favor of the validity of the [DNA] Act.”
(Alfaro v. Terhune, supra, at pp. 505-506.)
Defendant suggests two recent United States Supreme Court
decisions, City of Indianapolis v. Edmond (2000) 531 U.S. 32
[148 L.Ed.2d 333] and Ferguson v. City of Charleston (2001) 532
U.S. 67 [149 L.Ed.2d 205], cast doubt on the foregoing state
authorities. However, we need not consider this issue. As
noted previously, defendant does not challenge the extraction of
biological samples but the retention of those samples after he
was discharged from parole. This issue was not raised below.
As a general matter, appellate courts will not consider issues
or theories raised for the first time on appeal unless the
question is one of law to be applied to undisputed facts.
(Johanson Transp. Services v. Rich Pik’d Rite, Inc. (1985) 164
Cal.App.3d 583, 588.)
The present matter does not involve undisputed facts. In
particular, the basic premise of defendant’s argument--that he
was discharged from parole at the time of the database search--
is unclear. In connection with defendant’s motion to suppress,
defense counsel submitted a declaration in which she asserted
biological samples had been obtained from defendant while in
custody on four separate occasions: March 4, 1992, February 9,
1993, October 5, 1995, and November 7, 2000. Counsel further
declared she did not know which of these samples was used for

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the database “hit.” Defendant’s probation report indicates he
was committed to state prison in July 1992 for 16 months. In
April 1994, he was committed to state prison for three years.
In December 1996, defendant was granted formal probation for
three years. On November 7, 2000, he was granted formal
probation for four years.
On the day the last biological sample was obtained,
November 7, 2000, defendant was placed on formal probation for
four years. This probation would still have been in effect at
the time of the database search. Because defendant did not
raise any argument about the improper retention of biological
samples, there was no occasion for the People to present
evidence to support the retention. Thus, even if the earlier
samples were improperly retained (an issue we do not reach), the
last one was not. On the present record, defendant has failed
to establish a factual basis for his constitutional challenge.
III
Attempted Rape as a Lesser Included Offense
Defendant contends the trial court erred in failing to
instruct the jury on attempted rape as a lesser included offense
of rape. He argues a conviction for attempted rape rather than
rape was supported by the victim’s statements immediately
following the assault that the perpetrator attempted to rape her
but was unable to gain penetration. Defendant acknowledges his
defense at trial was that he was not the perpetrator and he did
not pursue a theory of attempted rape. However, he argues the

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court had a duty to instruct sua sponte on any lesser included
offense supported by the evidence.
“The trial court is obligated to instruct the jury on all
general principles of law relevant to the issues raised by the
evidence, whether or not the defendant makes a formal request.
[Citations.] That obligation encompasses instructions on lesser
included offenses if there is evidence that, if accepted by the
trier of fact, would absolve the defendant of guilt of the
greater offense but not of the lesser.” (People v. Blair (2005)
36 Cal.4th 686, 744-745.) The obligation to instruct on lesser
included offenses exists even over the objections of the
parties. (People v. Birks (1998) 19 Cal.4th 108, 118.)
If a crime cannot be committed without also committing
another offense, the latter offense is a lesser included offense
of the former. (People v. Lopez (1998) 19 Cal.4th 282, 288.)
Attempted rape is a lesser included offense of rape. (See
People v. Atkins (2001) 25 Cal.4th 76, 88; People v. Kelly,
supra, 1 Cal.4th at p. 528.) Therefore, the trial court was
required to instruct on attempted rape if there is evidence
that, if believed by the jury, would absolve defendant of rape
but not attempted rape.
The People contend defendant is barred from claiming error
in the failure to instruct on attempted rape by the doctrine of
invited error. “‘[A] defendant may not invoke a trial court’s
failure to instruct on a lesser included offense as a basis on
which to reverse a conviction when, for tactical reasons, the
defendant persuades a trial court not to instruct on a lesser

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included offense supported by the evidence. [Citations.] In
that situation, the doctrine of invited error bars the defendant
from challenging on appeal the trial court’s failure to give the
instruction.’” (People v. Horning (2004) 34 Cal.4th 871, 905.)
In order to support a claim of invited error, the record
must reflect deliberate action by the defense to cause the court
to fail fully to instruct. Mere failure to object or request an
appropriate instruction will not suffice. (People v. Avalos
(1984) 37 Cal.3d 216, 229.) “Invited error . . . will only be
found if counsel expresses a deliberate tactical purpose in
resisting or acceding to the complained-of instruction.”
(People v. Valdez (2004) 32 Cal.4th 73, 115.)
In support of their claim of invited error, the People rely
on the following colloquy after most of the evidence had been
presented:
“THE COURT: The jurors have stepped out. The Court did
receive an instruction packet. It looked pretty
straightforward. There was nothing in it that I saw that was
surprising. The Court has gone through it and sent some off for
typing. The Court has verdict forms drafted up. It appears to
the Court it happened or didn’t happen, so it’s not like there’s
a bunch of lessers, or anything else. It’s guilty or not guilty
of rape, guilty or not guilty of kidnapping with intent to
commit rape. Is there any comment from counsel over that?
“MS. SCHUBERT [the prosecutor]: My only question to the
defense was whether they would be asking for lesser of [Penal

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Code section] 220 based on the initial statement by the victim?
I’m not asking for it, but--
“THE COURT: From the Court’s standpoint as the testimony
has come out here, it does not appear to the Court that this is
a lesser offense.
“M[S]. WILLIAMS [defense counsel]: It isn’t, your Honor.”
We see nothing in the foregoing to suggest defendant or his
counsel invited the court to exclude instructions on attempted
rape or any other lesser included offense. At most, defense
counsel agreed with the trial court’s assessment that assault
with intent to commit rape (Pen. Code, § 220) was not a lesser
included offense under the circumstances of this case.
Defendant otherwise merely acquiesced in the trial court’s
assessment that there did not appear to be any lesser included
offenses. The record does not show the defense caused the court
to fail to instruct on attempted rape or that defendant had a
tactical purpose for doing so.
Nevertheless, we agree with the People the evidence did not
support an instruction on attempted rape. “To justify a lesser
included offense instruction, the evidence supporting the
instruction must be substantial--that is, it must be evidence
from which a jury composed of reasonable persons could conclude
that the facts underlying the particular instruction exist.”
(People v. Blair, supra, 36 Cal.4th at p. 745.)
The victim testified she had been raped and later clarified
the perpetrator had penetrated her vagina with his penis. The
victim acknowledged that, immediately after the assault, she

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made statements that the perpetrator had not been able to
penetrate her. When asked why she did not tell anyone she had
been raped, the victim responded: “Because it’s embarrassing
that I allowed somebody else to do something to me.”
More important than the victim’s testimony, however, was
the evidence regarding the biological samples taken from the
victim during the SAFE examination. The report prepared by
Laurie Parker indicated she obtained four vaginal swabs and two
dry mount slides from the victim. In addition, Parker obtained
four cervical swabs and two more dry mount slides. Leslie
Schmidt testified that vaginal swabs are taken from an area
three to four inches inside the vaginal wall to collect the
secretions present at that location. Cervical swabs are used to
collect samples from the cervical opening beyond the vagina.
Schmidt testified that part of the examination involved
preparing a wet mount slide using material collected on one of
the swabs.
Mark Eastman testified that sperm was found on the vaginal
wet mount slide prepared by Laurie Parker. Eastman further
testified he did DNA testing on one of the vaginal swabs and one
of the cervical swabs. Sperm was found on the vaginal swab.
DNA was extracted and Eastman found a match with the DNA from a
biological sample obtained from defendant. On the cervical
swab, Eastman was unable to obtain a separate sample of male
DNA. Instead, he obtained a mixed male and female sample that
matched both the victim and defendant.

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The foregoing evidence shows sperm from defendant was found
well within the victim’s vagina. This demonstrates
unequivocally that defendant obtained penetration.
Defendant challenges this conclusion, arguing: “It is
possible that the assailant ejaculated while attempting
penetration and deposited sperm on the victim’s external
genitalia.” According to defendant, because the victim told the
examining nurse she had not been penetrated, the nurse had no
reason to take samples from deep inside her vagina.
The undisputed evidence established that normal practice in
the UCDMC SAFE unit was to take vaginal swabs from three to four
inches inside the vagina and cervical swabs from the area of the
cervix. There is no evidence to suggest that procedure was not
followed in this case. Defendant relies solely on speculation.
Defendant made no attempt at trial to refute that the
biological samples used for DNA testing were taken from inside
the victim’s vagina. The prosecution argued to the jury that
the victim’s prior statements about not being penetrated may be
discounted because of the evidence of sperm found inside her
vagina. Defendant did not challenge this assertion but instead
argued the sample may have been contaminated between the time it
was obtained and the time it was tested and there may have been
testing errors. Thus, there was no evidence from which a jury
composed of reasonable persons could conclude only an attempted
rape occurred. Based on the totality of the evidence, the trial
court was under no obligation to instruct on attempted rape.

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IV
Lesser Included Offenses of Aggravated Kidnapping
Defendant contends the trial court was required to instruct
on two lesser included offenses to aggravated kidnapping--simple
kidnapping and attempted aggravated kidnapping. He argues the
evidence is such that the jury could have concluded movement of
the victim to a location behind the restaurant was not
sufficient asportation to support aggravated kidnapping.
The People again argue defendant is precluded from raising
this issue because he invited any error in failing to instruct
on lesser included offenses. However, as explained above, the
People cite nothing in the record to suggest defendant did
anything more than acquiesce in the court’s decision not to
instruct on lesser included offenses.
Kidnapping is defined in Penal Code section 207,
subdivision (a), as follows: “Every person who forcibly, or by
any other means of instilling fear, steals or takes, or holds,
detains, or arrests any person in this state, and carries the
person into another country, state, or county, or into another
part of the same county, is guilty of kidnapping.” (See also
Stats. 1990, ch. 55, § 1, p. 393.) At the time of the offenses
charged in this matter, Penal Code section 208, former
subdivision (d), provided for increased penalties in the event
the kidnapping was “with intent to commit rape, oral copulation,
sodomy, or rape by instrument.” (Stats. 1992, ch. 163, § 101,
p. 781.) This latter offense, commonly referred to as

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aggravated kidnapping, differs from simple kidnapping in the
element of specific intent to commit another crime.
Defendant contends the crimes also differ in the element of
asportation. He argues aggravated kidnapping requires not only
a sufficient movement of the victim but also a movement that
substantially increases the risk of harm to the victim.
According to defendant, an instruction on simple kidnapping was
warranted here “because there was an arguable defect in proof as
to whether the asportation element necessary for aggravated
kidnapping was established.”
In People v. Daniels (1969) 71 Cal.2d 1119, 1139, the state
high court adopted a two-prong test for kidnapping to commit
robbery. The movement (1) must be more than that incidental to
the robbery and (2) must substantially increase the risk of harm
over and above that present in the crime. “As for the first
prong . . . , the jury considers the ‘scope and nature’ of the
movement. [Citation.] This includes the actual distance a
victim is moved. However, . . . there is no minimum number of
feet a defendant must move a victim in order to satisfy the
first prong.” (People v. Rayford (1994) 9 Cal.4th 1, 12.) “The
second prong of the Daniels test refers to whether the movement
subjects the victim to a substantial increase in risk of harm
above and beyond that inherent in robbery. [Citations.] This
includes consideration of such factors as the decreased
likelihood of detection, the danger inherent in a victim’s
foreseeable attempts to escape, and the attacker’s enhanced
opportunity to commit additional crimes.” (Id. at p. 13.)

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In People v. Rayford, supra, 9 Cal.4th at pages 20, 22, the
state high court adopted the Daniels two-prong test for
kidnapping to commit rape. However, in People v. Martinez
(1999) 20 Cal.4th 225, 237, the court refused to adopt the
Daniels test for simple kidnapping. Instead, the movement need
only be “substantial in character.” (Id. at p. 235.)
Nevertheless, the court concluded factors other than distance
moved, such as increased risk to the victim, may be considered
by the jury in deciding whether the movement was substantial in
character. (Ibid.)
Assuming without deciding that simple kidnapping is a
lesser included offense of aggravated kidnapping, there was no
evidence presented at trial that would support a conviction for
simple kidnapping but not aggravated kidnapping. Defendant
argues the jury could have concluded the movement at issue here
did not substantially increase the risk of harm to the victim.
We disagree.
The undisputed evidence established that the perpetrator
grabbed the victim from a public sidewalk in front of some
buildings near a Pizza Hut restaurant on Florin Road in South
Sacramento. He walked her 224 feet down a breezeway between two
of the buildings to an area behind them and out-of-sight of the
public road. This occurred at approximately 11:00 p.m. The
space behind the buildings was separated from other buildings in
the area by fences and trees. There was nobody else around at
the time.

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“[W]here a defendant moves a victim from a public area to a
place out of public view, the risk of harm is increased even if
the distance is short.” (People v. Shadden (2001) 93
Cal.App.4th 164, 169; see People v. Diaz (2000) 78 Cal.App.4th
243, 248-249 [movement from a well-lit area to the back of a
recreation center]; People v. Jones (1999) 75 Cal.App.4th 616,
629-630 [movement of the victim 40 feet into a car out of public
view]; People v. Smith (1995) 33 Cal.App.4th 1586, 1594
[movement of the victim 40 to 50 feet from a driveway open to
the street to a camper at the rear of the house]; People v.
Salazar (1995) 33 Cal.App.4th 341, 348 [movement of the victim
29 feet from an outside walkway to a motel bathroom].)
In People v. Thornton (1974) 11 Cal.3d 738, disapproved on
other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684,
footnote 12, the state high court concluded, as a matter of law,
that movement of one block from the front of a tavern to a group
of parked cars where the defendant forced the victim into one of
the cars and sexually assaulted and robbed her was sufficient to
satisfy the Daniels test. (See Thornton, supra, at pp. 750,
768, 768-769, fn. 20.) The court also concluded movement of
four blocks in the victim’s car was sufficient for aggravated
kidnapping as a matter of law. (See id. at pp. 747, 768, 768-
769, fn. 20.)
In the present matter, defendant moved the victim 224 feet
from a location on the sidewalk along a city street to the back
of a nearby building where he sexually assaulted her. It is
undisputed defendant’s intent was to rape the victim, as he

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proceeded to do. Unlike the public sidewalk, the area behind
the building was hidden from public view. Under these
circumstances, there was no evidence from which a jury composed
of reasonable persons could conclude only a simple kidnapping
occurred. No reasonable jury could conclude the risk to the
victim was not substantially increased under this scenario.
Therefore, the trial court was under no obligation to instruct
on simple kidnapping.
As for attempted aggravated kidnapping, there is again no
evidence from which a reasonable jury could conclude a completed
kidnapping had not occurred. This is not a case in which the
defendant attempted to take the victim to a secluded area but
she succeeded in escaping before they arrived. Nor is this a
case where, upon arrival at a normally secluded location, the
defendant found others present or was unable to enter.
Defendant succeeded in moving the victim to the back of the
building as he had set out to do. Upon arrival, he found nobody
to interrupt him. Thus, the only question is whether this
movement amounted to aggravated kidnapping. As we have
concluded, it did. Thus, there was no factual basis for an
attempted aggravated kidnapping instruction.
V
Blakely Error
Defendant was sentenced to an indeterminate term of 33
years to life on the kidnapping offense, stayed pursuant to
Penal Code section 654. The mandatory minimum of 33 years was

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computed by taking the upper term of 11 years and tripling it
under the three strikes law. (Pen. Code, § 667, subd.
(e)(2)(A)(i).)
Defendant contends the trial court erred in using the upper
term to compute the mandatory minimum term, because the court
relied upon facts not submitted to the jury or proved beyond a
reasonable doubt, in violation of the Sixth Amendment
of the United States Constitution as interpreted in Apprendi v.
New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi),
Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]
(Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166
L.Ed.2d 856] (Cunningham). Under the circumstances of this
case, we find no error.
In Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], the
United States Supreme Court held that “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” (Id. at p.
490 [147 L.Ed.2d at p. 455].)
In Blakely, the Supreme Court applied the rule of Apprendi
to invalidate a state court sentence. The high court explained
“the ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.”
(Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
In Cunningham, the Supreme Court applied Apprendi and
Blakely to California’s determinate sentencing law and held that

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by “assign[ing] to the trial judge, not to the jury, authority
to find the facts that expose a defendant to an elevated ‘upper
term’ sentence,” California’s determinate sentencing law
“violates a defendant’s right to trial by jury safeguarded
by the Sixth and Fourteenth Amendments.” (Id. at p. ___ [166
L.Ed.2d at p. 864], overruling on this point People v. Black
(2005) 35 Cal.4th 1238, vacated in Black v. California (2007)
___ U.S. ___ [167 L.Ed.2d 36].)
The People contend Apprendi and its progeny do not apply to
this case because, when a defendant is a third strike offender,
the statutory maximum is life in prison. According to the
People: “The United States Supreme Court has made clear that,
unlike using facts to impose a sentence above the statutory
maximum, a sentencing court’s reliance on sentencing facts to
impose a greater mandatory minimum sentence which a defendant
must serve does not implicate the Sixth Amendment and is not
subject to Blakely’s requirements.”
In support of their argument, the People cite McMillan v.
Pennsylvania (1986) 477 U.S. 79 [91 L.Ed.2d 67] (McMillan) and
Harris v. United States (2002) 536 U.S. 545 [153 L.Ed.2d 524]
(Harris). In McMillan, the Supreme Court found no due process
violation in a statute providing that anyone convicted of
certain enumerated offenses who is found by the sentencing judge
to have visibly possessed a firearm during the offense is
subject to a minimum term of five years. (McMillan, supra, 477
U.S. at pp. 81, 90-91 [91 L.Ed.2d at pp. 73, 79].) In Harris,
the defendant was convicted of violating a federal drug law and

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sentenced under a statute providing for additional punishment in
the event a firearm was used in furtherance of the crime. That
statute provided for an additional term of not less than five
years if the defendant carried a firearm, seven years if he
brandished a firearm, and 10 years if he discharged a firearm.
The sentencing judge found by a preponderance of the evidence
that the defendant brandished a firearm in furtherance of the
offense and imposed a seven year term. (Harris, supra, 536 U.S.
at pp. 550-552 [153 L.Ed.2d at pp. 533-534].) The Supreme Court
concluded this sentence did not violate Apprendi. (Id. at pp.
568-569 [153 L.Ed.2d at p. 545].)
These cases do not stand for the proposition asserted by
the People. They have nothing to do with the imposition of a
mandatory minimum term on an indeterminate sentence. In both
cases, the finding of the sentencing judge subjected the
defendant to a higher determinate term, and the term imposed was
less than the statutory maximum the judge could have imposed.
(See McMillan, supra, 477 U.S. at pp. 81-82 [91 L.Ed.2d at p.
73]; Harris, supra, 536 U.S. at p. 551 [153 L.Ed.2d at p. 534].)
As defendant points out, acceptance of the People’s
argument would mean that, once the defendant commits an offense
that renders him subject to an indeterminate life term,
selection of the mandatory minimum falls outside of Apprendi.
Thus, a defendant convicted by a jury of second degree murder
and thereby subject to a sentence of 15 years to life could
instead be sentenced to a term of 25 years to life based on

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factual findings by the sentencing judge that would support a
conviction for first degree murder.
In the present matter, the maximum term to which defendant
was subject based solely on his conviction for kidnapping was
not life in prison. It was an indeterminate term of 25 years to
life. (Pen. Code, § 667, subd. (e)(2)(A)(ii).) Defendant would
have been eligible for parole in no more than 25 years. By
imposing the upper term of 11 years, the trial court raised the
mandatory minimum term to 33 years. This change in the minimum
term has a direct impact on the term defendant will ultimately
serve in prison and therefore implicates Apprendi.
Nevertheless, we conclude Apprendi is inapplicable under
the circumstances of this case. The rule of Apprendi and
Blakely does not apply when a defendant’s prior record is used
to increase his or her punishment for a new offense. (Apprendi,
supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455]; accord,
United States v. Booker (2005) 543 U.S. 220, 231 [160 L.Ed.2d
621, 641-642].) At sentencing in this matter, the trial court
cited as the sole basis for imposition of the upper term
defendant’s three prior convictions. Therefore, defendant’s
Sixth Amendment rights were not violated.

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D ISPOSITION
The judgment is affirmed.
HULL , J.
We concur:
SCOTLAND , P.J.
ROBIE , J.

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