New Ruling in Rape Case Helps Define “Increased Risk” in Aggravated Kidnappings 

July 06, 2023
CAC00109
CASE LAW
  • “Increased risk” definition for aggravated kidnapping enhancement 
  • Aggravated Kidnapping Enhancements
RULES

An aggravated kidnapping enhancement requires movement that increases risk of harm to a victim beyond that incidental to the commission of the crime.  

FACTS

Victim (Jane Doe) was jogging at Howarth Park in Santa Rosa, Ca. She entered the women’s restroom. When she exited a small stall, the defendant was standing in front of her blocking her path of travel. He grabbed and forced her into a larger, handicap-accessible stall eight to 10 feet away, where he forcibly removed her clothing and raped her. After the act, the victim returned home and called police.  

At jury trial, defendant was convicted of an aggravated kidnapping enhancement and sentenced to 25 years to life in prison. He appealed on grounds there was insufficient movement that “substantially increased risk of harm to the victim over and above that level of risk in the underlying offense.”  

HELD

The First District Court of Appeals agreed with the defendant’s argument and reversed the aggravated kidnapping enhancement. The movement from one bathroom stall to another was an insufficient distance to constitute increased risk of harm, the court ruled – aggravated kidnapping movement doesn’t include that movement which is merely incidental to the commission of a crime (Peo. v. Dominguez (2006) 30 Cal. 4th 1411). Incidental movements are brief, insubstantial and can consist of movement around the premises where the incident began (Peo. v. Diaz (2000) 78 Cal. App. 4th 243.) “Although movement from the small stall to the larger stall may have made it easier for the defendant, Rusiate Waqa, to complete the rape, there was insufficient evidence that this movement increased Doe’s risk of harm.” (Note: Waqa was described in courtroom testimony as a “large man.”)   

The appeals court did, however, find sufficient evidence to support a simple kidnapping enhancement instead (207/667.61(b) P.C.). “A reasonable juror could conclude that dragging Doe eight to 10 feet from the small stall to the larger stall was movement of a substantial distance because it removed her farther from the bathroom exit and gave Waqa more opportunity to maneuver to facilitate the rape,” the ruling state. There is no minimum distance required for a simple kidnapping enhancement. The defendant was resentenced to 15 years to life.

Author Notes

Given the case law and statute language of 209(b)(2) P.C., the 1DCA had no choice here. The lesson for your investigation is to document the distance and circumstances under which the suspect forced the victim to move beyond the environment of the underlying offense. Also, a victim statement on the fear experienced from having been subjected to increased movement for the purposes of travel, concealment or facilitation of other criminal offenses, could be significant.   

Here are some California cases that did support the “increased risk of harm” test for an aggravated kidnapping enhancement:  

  • At night, the victim was moved 105 feet from the parking lot of a closed store to an undeveloped, dirt-and-rock lot bordered by a wall. The wall blocked the view of a passerby from the parking lot, and trees and bushes limited detection from the street (Peo. v. Rayford (1994) 9 Cal. 4th 6.)  
     
  • Movement of a victim in a vehicle gave rise to “a danger that an auto accident might occur or that the victim might try to escape from a moving car or be pushed from the vehicle by the perpetrator” (Peo. v. Caudillo (1978) 21 Cal. 3d 502.)  
     
  • Victim was forcibly moved 50 to 60 feet from an open street and led around a building to a wall surrounding an unlit garbage dumpster. “The distance of movement was not trivial or inconsequential in light of the boundaries that were traversed,” the ruling states. “The inherent danger from sexual attack in a secluded dumpster area was considerable and provided the necessary environment to commit the targeted crime.” (Peo. v. Bradley (1993) 15 Cal. App. 4th 114.) 

Interesting note in Waqa case: 

The Santa Rosa Police Department’s investigation revealed the defendant had confronted two additional females in the park prior to his commission of the rape, soliciting them for sex. One astute female took a photo of the defendant’s vehicle and license plate. This lead was key in the follow-up investigation to determine his identity and make the arrest. 

 Stay Safe,  

 RH 

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Court Case Name
Peo. v. Waqa, 1 DCA, #A163761, 6/14/23
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