P. v. Fraga

 

 

 

 

 

 

 

 

 

 

 

 

Filed 5/30/13  P. v. Fraga CA4/3

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   ALFREDO FRAGA,         Defendant and Appellant.

G046178            (Super. Ct. No. 09CF1318)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Gary S. Paer, Judge. 
Affirmed.

                        Christine Vento, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Andrew
Mestman and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and
Respondent.

            Alfredo Fraga appeals from a
judgment after a jury convicted him of two counts of href="http://www.fearnotlaw.com/">sexual penetration by force.  As to each count, the jury found Fraga
kidnapped his victim in the commission of the offenses.  Fraga argues insufficient evidence supports
the jury’s finding he kidnapped the victim. 
We disagree and affirm the judgment.

FACTS

            One early afternoon, Sheryl M.
(Sheryl), a 58-year-old woman, was walking on the Esplanade Trail in North
Tustin listening to music on her IPod.  The trail runs adjacent to Esplanade
Avenue, which is a paved two-lane road.  Gravel, trees, and bushes separate the road
from the trail, and another area of bushes separates the opposite side of the
trail from the backyards of multiple homes. 
The well-marked trail is used by many local residents for exercise and
recreation.  Pedestrians on the trail can
see passing cars on Esplanade Avenue,
and commuters on Esplanade Avenue
can see pedestrians on the trail. 

            As Sheryl walked down the trail, she
saw Fraga, who is approximately

six
feet, one inch tall and weighs about 250 pounds, cross Esplanade
Avenue and walk onto the trail ahead of her.  Fraga was dressed in jogging clothes, and he
pretended to tie his shoes on a bench as Sheryl walked past him.  Fraga and Sheryl did not say anything to each
other as she passed, but they made eye contact. 
Sheryl had never seen Fraga before that day.

            Shortly thereafter, Fraga approached
Sheryl from behind and grabbed her around her arms and waist.  Sheryl immediately recognized Fraga, the man
she had previously passed on the trail, as her attacker.  Fraga dragged Sheryl backwards behind the bushes
between the trail and the backyards of the homes adjacent to the trail.  After Fraga dragged Sheryl behind the bushes,
he assaulted her by putting his hands down her pants and forcing his fingers
into her vagina and anus.

 

            Sheryl was able to scream for help
throughout the attack, despite Fraga telling her to “shush” as he dragged and
subsequently assaulted her.  Her cries
for help were eventually heard by residents of the nearby homes and commuters
on Esplanade Avenue.

            Ronald Fortier, one of the residents
whose backyard abuts the bushes where the assault occurred, heard Sheryl’s
screams while he was working in his backyard. 
After hearing Sheryl’s screams, Fortier slowly proceeded through his
backyard gate, which opens onto the trail. 
Although Fortier could not tell what had happened before he opened his
gate, he saw Fraga fleeing.  Fortier
yelled for his wife to call 911.

            James Hohman, a commuter on
Esplanade Avenue, heard Sheryl’s screams as he and his wife drove past the
location where the assault occurred. 
Hohman turned his car around and proceeded back towards the location
where he believed he heard Sheryl’s screams. 
Once there, Hohman saw Fraga leaving the area by walking, and later
running, along the edge of the trail. 
Hohman got out of his car and asked his wife to bring

Scott
Steinle, an off-duty sheriff who lived in the neighborhood, to the scene.  Hohman followed Fraga down the trail until
Steinle arrived and apprehended Fraga.

            After a law enforcement officer
advised Fraga of his rights pursuant to Miranda
v. Arizona (1966) 384 U.S. 436, Fraga admitted he approached a woman who he
thought was a former teacher, but when she yelled, Fraga backed away without
having touched the woman.  A sexual
assault examination revealed injures consistent with forcible sexual
penetration.  Sheryl’s DNA could not be
excluded as the source of the DNA that was found on fingernail scrapings from
Fraga’s right hand.

            An amended information charged Fraga
with two counts of sexual penetration by
foreign object by force (Pen. Code, § 289, subd. (a)(1)-counts 1 & 2).href="#_ftn1" name="_ftnref1" title="">[1]  As to both counts, the amended information
alleged Fraga kidnapped Sheryl in violation of sections 207, 209, and 209.5
(§ 667.61, subds. (b) & (e)(1)).

            At trial, Sheryl, Fortier, Steinle,
and Hohman testified consistently with the events described above.  During Sheryl’s testimony, the prosecutor had
her view three photographs, exhibit Nos. 2, 10, and 15, which depict different
vantage points of the trail, the bushes adjacent to the trail, the area where
the assault occurred, and the walls of residential backyards that abut the
trail area.  Sheryl used a pen to place a
mark on each of these photographs in order to indicate where the assault took
place.

            Exhibit No. 2 depicts a view of the
area where the assault occurred, the surrounding bushes, and Fortier’s backyard
wall.  Exhibit No. 10 depicts the trail,
the narrow space between the bushes through which Fraga dragged Sheryl, and the
area between the bushes and Fortier’s backyard wall where the assault
occurred.  Finally, exhibit No. 15
depicts a slightly different view of the trail, the space between the bushes,
and the area where the assault occurred. 
During trial, Sheryl placed two marks, “X1” and “X2,” on exhibit No. 15
to indicate:  (1) where Fraga initially
attacked her, “X1”; and (2) where the assault occurred, “X2”.

            On cross-examination, Sheryl
clarified that one day after the attack she told a police officer she estimated
Fraga dragged her three-to-five feet when he forced her from the trail to the
area where the assault occurred.  That
police officer testified he recalled Sheryl told him that she was not very good
at estimating distances before she provided him with her three-to-five foot
estimate.

            Fortier, the neighbor who saw Fraga
run from the scene as he looked out onto the trail area from his backyard gate,
testified as to the authenticity of

12
photographic exhibits offered by the prosecution, including exhibits Nos. 2 and
10.  Nine of those photographs are
included in the record for our review. 
These photographs depict varying vantage points of the immediate and
surrounding area where the assault occurred. 
Altogether, these photographs show the bushes Sheryl was dragged behind
were thick and nearly as tall as Fortier’s backyard wall.  Moreover, the photos show the ground from the
trail to the area behind the bushes slopes downward approximately one-to-two
feet in elevation. 

            The teacher that Fraga claimed he
recognized testified she was not aware of the Esplanade Trial and was not there
on the day of the incident.  Fraga
offered testimony from numerous mental health professionals who testified
concerning his mental health, the medications he was prescribed, and their side
effects, including hallucinations.

            The jury convicted Fraga on counts 1
and 2 and found true the kidnapping enhancements.  The trial court sentenced Fraga on each of
the two counts to 15 years to life but the court ran the sentence on count 2
concurrent to the sentence on count 1.

DISCUSSION

            Fraga argues insufficient evidence
supports the jury’s finding on the simple kidnapping enhancement because:  (1) the distance he dragged Sheryl to force
her behind the bushes was insubstantial; and (2) his dragging of Sheryl did not
substantially increase the risk of harm, prevent detection, or increase his
opportunity to commit further crimes against her.  We disagree.

            “The law governing
sufficiency-of-the-evidence challenges is well established and applies both to
convictions and special circumstance findings. 
[Citations.]  In reviewing a claim
for sufficiency of the evidence, we must determine whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime or special
circumstance beyond a reasonable doubt. 
We review the entire record in the light most favorable to the judgment
below to determine whether it discloses sufficient

evidence—that
is, evidence that is reasonable, credible, and of solid value—supporting the
decision, and not whether the evidence proves guilt beyond a reasonable
doubt.  [Citation.]  We neither reweigh the evidence nor
reevaluate the credibility of witnesses. 
[Citation.]  We presume in support
of the judgment the existence of every fact the jury reasonably could deduce
from the evidence.  [Citation.]  If the circumstances reasonably justify the
findings made by the trier of fact, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a
contrary finding.  [Citation.]”  (People
v. Jennings (2010) 50 Cal.4th 616, 638-639.)

            Under section 667.61, subdivision
(b), any person who is convicted of sexual penetration in violation of section
289, subdivision (a), under one of the circumstances listed in section 667.61,
subdivision (e), “shall be punished by imprisonment in the state prison for 15
years to life.”  (§ 667.61, subd.
(b).)  One of the circumstances listed in
section 667.61, subdivision (e), is “the defendant kidnapped the victim of the
present offense in violation of [s]ection 207, 209, or 209.5.”  (§ 667.61, subd. (e)(1).)

            In the present case, the trial court
instructed the jury with

CALCRIM
No. 1215, “Kidnapping,” pursuant to section 207, subdivision (a).  That statute provides:  “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.”  (§ 207, subd. (a).)

            The following three elements
comprise the crime of kidnapping:  “‘(1)
a person was unlawfully moved by the use of physical force or fear; (2) the
movement was without the person’s consent; and (3) the movement of the person
was for a substantial distance.’  [Citation.]” 
(People v. Bell (2009) 179
Cal.App.4th 428, 435, italics added.)

            In People v. Martinez (1999) 20 Cal.4th 225, 235-238 (>Martinez), the California Supreme Court
explained what a trier of fact may properly consider when determining whether
the prosecution has presented sufficient evidence to prove the substantial
distance (i.e., “asportation”) element of simple kidnapping.  According to the Martinez court, the trier of fact should consider the totality of
the circumstances to determine whether there is sufficient evidence to indicate
a defendant’s movement of the person was “‘substantial
in character.’”  (>Ibid., italics added.)  The Martinez
court explained:  “Section 207[,
subdivision] (a)[,] proscribes kidnapping or forcible movement, not forcible
movement for a specified number of feet or yards . . . [and] limiting a trier
of fact’s consideration to a particular distance is rigid and arbitrary, and
ultimately unworkable.”  (>Martinez, supra, 20 Cal.4th at p. 236.) 
Because the statute “‘does not speak in terms of a movement of any
specific or exact distance[,]’” the trier of fact may consider “>the totality of the circumstances” in
conjunction with the actual distance the person is moved.  (Id.
at pp. 235-237, italics added.)  More
specifically, the trier of fact, when determining whether a defendant’s
movement of a victim is substantial in character, may properly consider:  (1) the actual distance the victim is moved;

(2)
whether the movement increased the risk of harm to the victim; (3) whether the
movement decreased the likelihood of detection; (4) whether the movement made
the victim’s foreseeable attempts to escape more dangerous; and (5) whether the
movement enhanced the defendant’s opportunity to commit additional crimes.  (Id.
at p. 237.)  The Martinez court concluded, “contextual factors, whether singly or in
combination, will not suffice to establish asportation if the movement is only
a very short distance.”  (>Ibid.) 
In People v. Morgan (2007) 42
Cal.4th 593, 606-607, the California Supreme Court reaffirmed the phrase
“‘substantial distance’” requires a showing the victim was moved “a
‘significant amount’ as contrasted with a distance that is ‘trivial.’” 

            We note Fraga does not dispute he
committed sexual penetration with his fingers by force.  Nor does he dispute there was sufficient
evidence of the first two elements of kidnapping.  Fraga only challenges the sufficiency of the
evidence as to the last element—whether his dragging of Sheryl behind the
bushes was for a substantial distance. 
As we explain below, we conclude it was a substantial distance.

            With respect to whether Fraga moved
Sheryl a substantial distance, we conclude there was sufficient evidence to support
the jury’s finding Fraga’s movement of Sheryl was substantial in
character.  (See Martinez, supra, 20
Cal.4th at pp. 235-238.)  First, there
was evidence from which the jury could reasonably conclude Fraga’s movement of
Sheryl was greater than “a very short distance.”  (Id.
at p. 237.)  Fraga’s assertion the
prosecutor failed to present the jury with evidence showing he moved Sheryl
more than a very short distance is without merit.  The photographic exhibits, particularly
exhibit Nos. 15 and 2, and Sheryl’s testimony regarding the photographic
exhibits, taken together, provided the jury with credible evidence Fraga
dragged Sheryl 10-to-20 feet to force her behind the bushes adjacent to the
trail.  Fraga’s dragging of Sheryl over
the distance indicated by her “X1” and “X2” markings on exhibit No. 15,
although not an incredibly long distance, adequately supports the jury’s
finding Fraga moved Sheryl greater than a very short distance.  (See People
v. Arias (2011)

193
Cal.App.4th 1428, 1435 [finding sufficient evidence for simple kidnapping
conviction where the victim was dragged 15 feet]; see also People v. Shadden (2001)

93
Cal.App.4th 164, 168-169 [nine feet substantial distance for kidnapping to
commit rape pursuant to section 209, subdivision (b)(1)].)

            It is true Sheryl told a police
officer she estimated Fraga dragged her

three-to-five
feet during the attack.  But it is also
true the police officer testified Sheryl told him that she was not very good at
estimating distances before she provided him with her three-to-five foot
estimate.  Based on this evidence, it was
reasonable for the jury to conclude Sheryl’s markings on exhibit No. 15
indicate the actual distance Sheryl was dragged and that the three-to-five foot
estimate she provided the police officer was the result of her inability to
accurately estimate distances.  Indeed,
we have reviewed the exhibits, specifically exhibit Nos. 2, 10, and 15, and
based on our review, we conclude it was certainly reasonable for the jury to
conclude the distance from where Fraga grabbed Sheryl to where he dragged her
was at least 10 feet (and possibly closer to 20 feet).  Contrary to Fraga’s assertion otherwise, the
jury was limited to Sheryl’s testimony but could also consider the photographic
exhibits.  

            As to the contextual factors, there
was sufficient evidence Fraga’s movement of Sheryl was substantial in
character.  (See Martinez, supra, 20
Cal.4th at

pp.
235-238.)  The photographic exhibits show
the bushes Fraga dragged Sheryl behind were thick and nearly as tall as the
vine-covered block wall behind them.  The
photographs also show there was a one to two foot drop in elevation from the
trail to the location where the assault occurred, creating a small ravine
making it more difficult for a passerby to see anyone over the bushes.  Additionally, the photographs show the
opening in the bushes through which Fraga dragged Sheryl was narrow, and it is
not clear a pedestrian on the trail would have been able to see Fraga and Sheryl
through the opening, depending on the direction the person was traveling.  Moreover, as Hohman and his wife drove past
the location where the assault was taking place, they only heard Sheryl’s
screams, and they did not see Sheryl or Fraga, whose is a very large man,
behind the bushes.

            Based on all the evidence, it was
certainly reasonable for the jury to conclude Fraga’s dragging of Sheryl behind
the bushes clearly increased the risk of harm to Sheryl.  As Sheryl testified, Fraga waited to assault
her until he had dragged her behind the bushes, concealing his actions from
people who may have been on the trail or driving along Esplanade Avenue.  Also, Fraga’s movement of Sheryl behind the
bushes decreased the likelihood of detection, as evidenced by the fact Hohman
and his wife only heard Sheryl’s screams for help, and did not see Sheryl or
Fraga, as they drove past the scene. 
Furthermore, Fraga’s dragging of Sheryl behind the bushes limited her
chance of escaping his attack.  As the
photographic exhibits show, Fraga pinned Sheryl between tall and thick bushes
on one side and a tall block wall on the other side.  If she had been able to escape his grasp, she
could have only tried to run over uneven, plant-covered terrain in two
directions.

 

            Finally, Fraga’s reliance on cases
predating Martinez, supra, 20 Cal.4th
225, to support his claim the distance he moved Sheryl was trivial is
misplaced.  The Martinez court expressly disapproved of any bright line rule
concerning the minimum distance moved without consideration of the contextual
factors.  (Id. at pp. 233, 236.)  Thus,
based on the entire record, there was sufficient evidence Fraga moved Sheryl a
substantial distance.

DISPOSITION

            The judgment is affirmed.

 

 

                                                                                   

                                                                                    O’LEARY,
P. J.

 

WE CONCUR:

 

 

 

MOORE, J.

 

 

 

THOMPSON, J.