Filed 7/31/26 P. v. Simien 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C103244
Plaintiff and Respondent,
(Super. Ct. No. 21FE018495)
v.
JD WALLACE SIMIEN,
Defendant and Appellant.
A jury found defendant JD Wallace Simien guilty of raping a woman (victim) and
kidnapping her to commit the rape. The jury also found a kidnapping special allegation
true. Defendant contends there was insufficient evidence to support the movement
elements of the kidnapping offense and special allegation. We disagree and affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On December 10, 2013, victim planned to meet her cousin at a bowling alley after
work around 9:00 p.m. Victim took a bus part of the way and then walked on the
sidewalk of Madison Avenue headed toward the I-80 freeway. It was dark outside.
According to victim, Madison Avenue is “pretty busy for the most part until you get to
the freeway overpass,” at which point it’s “all trees and bushes and no businesses.”
There is also a fence to protect pedestrians “from falling off into the freeway.” The fence
1
ends at a certain point and there’s a grassy or dirt area to the right, an area she later
described as an embankment.
When victim reached the overpass, “something made [her] feel kind of … off.”
She turned around and saw somebody right behind her. She jumped closer to the traffic
side of the street to let the person pass, but the man “ran up and grabbed [her] between
[her] arms and [her] body.” He lifted her off the ground and either dropped or threw her
down the embankment. Victim felt like she “rolled down … a few feet at least” because
of the embankment slope. She stopped rolling when her head hit a tree. Victim saw a
“bit” of the man as he came down the embankment. He punched her in the face, and
victim “somehow … ended up on the other side of the tree, laying on the ground” face
down. Victim was screaming, and the man told her to shut up. She could hear cars on
the freeway but “couldn’t see anything.” And she could not see the road she had been
walking on. There was only “ambient light from the businesses a far ways off.”
The man held down her lower back to buttocks area, pulled down her leggings,
pantyhose, and underwear, moved up her jacket, shirt, and bra, pinched one of her
nipples, and smacked her buttocks. When victim screamed, the man choked her and told
her to shut up. He put her on all fours and inserted his penis inside her vagina. He raped
her for “ten minutes, fifteen minutes maybe,” but it “felt like an eternity.” When he
stopped, he told her to count to 100 before getting up. After counting to about 49, she ran
up the embankment back to Madison and then all the way to the bowling alley.
After victim reported the crime, a sheriff’s officer investigated the scene of the
crime. He testified that the slope of the embankment is about 30 to 40 degrees and it
levels out after about 30 to 40 feet. Victim also participated in a sexual assault
examination where DNA evidence was collected, and a physical exam was conducted.
According to the physical exam, victim had a small scratch in the middle of her chest; a
2
small scratch on her right shoulder; a bruise on her forehead; scratches on her hip and
right buttock; multiple bruises on her elbows; and scratches on her hands.
Analysis of DNA evidence collected from defendant identified him as a potential
contributor to the DNA collected from victim. Using cell phone data, law enforcement
also connected defendant’s phone to the area on the date of the rape.
The jury found defendant guilty of raping victim (the rape count) and kidnapping
her to commit the rape (the kidnapping count). (§§ 261, subd. (a)(2); 209, subd. (b)(1).)
As to the rape count, the jury found a special allegation true under the One Strike law that
(1) defendant kidnapped victim and (2) defendant’s movement of victim “substantially
increased the risk of harm to [her] over and above that level of risk necessarily inherent in
the underlying offense” (the kidnapping special allegation). (§ 667.61, subd. (d)(2).)
Applying the One Strike law, the court sentenced defendant to 25 years to life and stayed
the sentence on the kidnapping count. (§ 667.61, subd. (a).)
Defendant timely appeals.
DISCUSSION
Defendant contends the evidence was insufficient to support the movement
element of the kidnapping count and the kidnapping special allegation. We disagree.
In reviewing for sufficient evidence, we review the entire record to determine
whether there is reasonable and credible evidence to allow a rational trier of fact to
determine guilt beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327,
357.) We view the evidence in the light most favorable to the prosecution and presume
the existence of every fact the jury could have reasonably deduced from the evidence.
(Ibid.) Reversal for insufficient evidence is unwarranted unless “ ‘it appears ‘that upon
no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s
verdict. (Ibid.) In other words, if the circumstances justify the jury’s findings, the
reviewing court’s opinion that the circumstances might also be reasonably reconciled
3
with a contrary finding does not warrant a reversal. (People v. Waqa (2023)
92 Cal.App.5th 565, 576 (Waqa).)
Relying on a commentary concerning the definition of kidnapping under the
Model Penal Code, defendant contends the movement element of kidnapping under
section 209 was not satisfied in this case. But he does not explain why a commentary on
a Model Penal Code governs section 209. (See Heller v. Pillsbury Madison & Sutro
(1996) 50 Cal.App.4th 1367, 1393 [a treatise is not binding law]; Kucker v. Kucker
(2011) 192 Cal.App.4th 90, 95 [treatise can be persuasive when there is an absence of
precedent].) We decline to consider the commentary because there is well-established
California law that reveals no merit to defendant’s contention.
According to that well-established California law, there are two victim movement
requirements for kidnapping to commit rape. (§ 209, subd. (b)(2); People v. Rayford
(1994) 9 Cal.4th 1, 12.) First, the movement must be “beyond that merely incidental to
the commission of” the rape. (Ibid.; § 209, subd. (b)(2).) And second, the movement
must increase the risk of harm to the victim over and above that necessarily present in the
crime of rape itself. (Rayford, at p. 12; § 209, subd. (b)(2).) The kidnapping special
allegation requires a higher standard for the second requirement – namely, the movement
must “substantially increase” the risk of harm to the victim. (§ 667.61, subd. (d)(2).)
These two movement requirements are interrelated, not mutually exclusive. (People v.
Dominguez (2006) 39 Cal.4th 1141, 1151-1152 (Dominguez).) Whether a forced
movement was incidental to the crime is necessarily connected to whether it increased the
risk of harm to the victim. (Id. at p. 1152.) Relevant considerations for increased risk of
harm include 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. (Ibid.) The fact that these dangers do not materialize does not mean
the risk of harm was not increased. (Rayford, at p. 14.) To determine whether the
4
movement requirements have been met, the jury must consider the scope and nature of
the movement and the context of the environment in which the movement occurred. (Id.
at p. 12.)
Here, a reasonable fact finder could find both requirements were proven beyond a
reasonable doubt. Specifically, considering the scope and nature of victim’s movement, a
fact finder could make the following findings: (1) defendant did not need to move victim
to rape her (see Waqa, 92 Cal.App.5th at p. 584 [the defendant could have raped the
victim where he initially found her]); (2) based on the “time of night and the [location],
… any passerby [on the freeway overpass] would likely be in a car, not on foot, and
would not likely stop to look down the embankment into the [wooded area]” (Dominguez,
supra, 39 Cal.4th at p. 1154); (3) cars driving on the freeway were also not likely to see
victim behind a tree in the wooded embankment; and (4) the fact that victim could hear
moving cars from the embankment in that area does not mean people in those cars could
see or hear her. Based on those findings, a reasonable fact finder could conclude that the
movement (1) was not incidental to the rape and (2) increased victim’s risk of harm over
and above that necessarily present in the rape itself. (See People v. Shadden (2001)
93 Cal.App.4th 164, 169 [“[W]here a defendant moves a victim from a public area to a
place out of public view, the risk of harm is increased”].)
Defendant asserts four counterarguments, none of which are persuasive.
First, he relies on the distance between where victim was walking on the freeway
overpass and where she rolled. Describing victim’s ending location as a “few feet away
from the sidewalk,” defendant contends his conduct did not constitute kidnapping.
Defendant’s focus on distance is misplaced. Although the standard for kidnapping
originally depended exclusively on the actual distance moved, the California Supreme
Court changed that standard in 1999. (Waqa, supra, 92 Cal.App.5th at pp. 577-578.)
5
Under current law, no minimum distance is required to satisfy the movement
requirement, and the precise distance need not be proven. (Ibid.)
Second, defendant contends the movement requirements were not satisfied
because victim was not “completely remove[d]” from public view, citing Dominguez.
But Dominguez did not require such “complete” removal. In Dominguez, the defendant
moved the victim about 25 feet from the shoulder of the road down an embankment and
partially into an orchard. (Dominguez, supra, 39 Cal.4th at p. 1151.) The Court
concluded the movement changed the victim’s environment from “a relatively open area
alongside the road to a place significantly more secluded, substantially decreasing the
possibility of detection, escape or rescue.” (Id. at p. 1154 [italics added]; see People v.
Aguilar (2004) 120 Cal.App.4th 1044, 1049 (Aguilar) [the defendant’s movement of the
victim down a sidewalk to a darkened area increased the victim’s risk].) Authorities have
since established that “[m]oving a victim to a more isolated open area [that] is less visible
to public view is sufficient.” (Aguilar, at p. 1049.) Sufficient evidence supports that
movement here. For this reason, we reject defendant’s attempt to analogize the facts of
this case to those in People v. Stanworth (1974) 11 Cal.3d 588. In Stanworth, there was
“no evidence” that the victim’s 25-foot movement from a road to an open field removed
her from public view. (Id. at pp. 597, 598.) That statement does not extend to the
evidence here.
Third, defendant contends victim’s movement served only to facilitate the rape, so
the movement was incidental to the rape under People v. Daniels (1969) 71 Cal.2d 1119
and People v. Hoard (2002) 103 Cal.App.4th 599, 677. Defendant’s focus on his purpose
for the movement is misguided. “[T]he relevant focus is on ‘ “ ‘the “scope and nature”
of…the environment in which the movement occurred,’ ” ’ not the defendant’s purpose
for moving the victim.” (Waqa, supra, 92 Cal.App.5th at p. 583.) “ ‘Standing alone, the
fact that the movement … of a victim facilitates [the associated crime] does not imply
6
that the movement was merely incidental to [that crime].’ ” (Id. at p. 584.) Daniels and
Hoard are also distinguishable. Both considered movements within a building. (Daniels,
71 Cal.2d at p. 1140 [movement within a home]; Hoard, at p. 607 [movement within an
office building].) As Dominguez explained, moving a victim from an open area
alongside a road to a significantly more secluded place is unlike the “brief and trivial
movements of the robbery victims around a room” in Daniels. (Dominguez, 39 Cal.4th at
pp. 1153-1154.) And Hoard acknowledged that “a rape victim is certainly more at risk
when concealed from public view and therefore more vulnerable to attack.” (Hoard, at
p. 607.)
And fourth, defendant contends the facts here are closer to the one movement in
People v. Diaz (2000) 78 Cal.App.4th 243, 248. There, the defendant accosted the victim
on the sidewalk and pushed her down on the “grassy strip immediately adjacent to the
sidewalk, in full view of a major urban street.” (Id. at p. 249.) The court commented that
this movement “could easily be characterized as incidental, in that it effected no
substantial change in the surroundings.” (Ibid.) Here, victim’s movement was different.
According to trial testimony, victim was thrown or dropped into a more concealed,
wooded area 30 to 40 feet below the overpass view. This was sufficient evidence for the
jury to conclude victim’s movement affected a substantial change in her surroundings.
For the same reason, we reject defendant’s contention that “every rape involving a shove,
stumble, or [] brief physical repositioning” would satisfy the movement requirements. A
reasonable factfinder could conclude this rape did not involve just a shove, stumble, or
brief repositioning.
Specific to the kidnapping special allegation, defendant finds similarity between
the facts of this case and those in Waqa and contends the risk to victim was not
“substantially increased.” (§ 667.61, subd. (d)(2).) We see no such similarity. In Waqa,
the defendant forcibly raped the victim in the large stall of a public restroom after moving
7
her from a small stall. (Waqa, supra, 92 Cal.App.5th at p. 572.) The appellate court
found insufficient evidence that the movement to the large stall substantially increased
the victim’s risk of harm because “the degree of concealment each stall offered did not
significantly differ.” (Id. at pp. 580-583.) Here, by contrast, a reasonable fact finder
could conclude that the degree of concealment between the overpass sidewalk and the
wooded embankment significantly differed. Specifically, the fact finder could conclude
that the more concealed embankment substantially increased defendant’s opportunity to
sexually violate victim as he desired, substantially reduced the likelihood anyone would
intervene, and substantially enhanced defendant’s opportunity to commit additional
crimes. Defendant himself manifested an increased risk to victim when he punched and
choked her. (See Aguilar, supra, 120 Cal.App.4th at pp. 1049-1050.) Also, defendant
made victim roll down a 30-to-40-degree hill until she hit a tree, exposing her to
additional injury and increasing the risk of an escape attempt. Based on the totality of the
circumstances, we have no trouble discerning sufficient evidence that the movement
substantially increased victim’s risk of harm.
8
DISPOSITION
The judgment is affirmed.
/s/
MESIWALA, J.
We concur:
/s/
EARL, P. J.
/s/
BOULWARE EURIE, J.
9