Filed 12/30/13 P. v. Patton CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

RASAAN RAYMON PATTON,

 Defendant and Appellant.

 G047488

 (Super. Ct. No. 09CF0923)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Orange County, James A. 

Stotler, Judge. Affirmed as modified.

Richard de la Sota, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Kristine Gutierrez and 

Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
2

Rasaan Raymon Patton appeals from a judgment after a jury convicted him 

of kidnapping to commit a sex offense, attempted forcible rape, sexual penetration by a 

foreign object by force, and sexual battery by restraint. Patton argues there was 

insufficient evidence he committed aggravated kidnapping and the trial court erred in 

awarding him credits. We agree the trial court erred in awarding Patton credits, but his 

other claim has no merit. We affirm the judgment as modified. 

FACTS

Around 2:30 a.m. one June morning in 2008 in Huntington Beach,

17-year-old L.T. was driving home in her family’s Toyota Sienna minivan

(the Minivan) after spending the evening with her friend, Breigh Dang. As she drove, 

L.T. saw a Jeep traveling behind and just to the right of her. As L.T. signaled and 

prepared to make a left turn, the Jeep bumped her from behind. L.T. drove the Minivan 

to the right side of the road and parked, and Patton parked about five feet behind the 

Minivan. L.T. and Patton got out of their respective vehicles. As L.T. inspected the 

Minivan, Patton approached her and apologized profusely. After L.T. said there did not 

appear to be much damage, Patton grabbed L.T. by the waist and dragged her to the 

sidewalk on the passenger side of the Minivan.

Patton asked L.T. whether “he was going too far.” L.T. said he was and 

asked Patton to stop, but he did not. Patton used his body weight to pin L.T. against the 

Minivan and prevent her from leaving. Patton reached under L.T.’s dress and grabbed 

her buttocks with his left hand. With his right hand, Patton pulled L.T.’s underpants to 

the side and put two fingers inside her vagina. Patton pulled down L.T.’s underpants to 

mid-thigh and unzipped his pants. Patton repeatedly asked L.T. “if he was going too far.” 

She said he was and asked him to stop. During the course of the assault, L.T. saw the 

lights of a few cars drive by and Patton became more nervous and scared with each 

vehicle that passed them. Patton repeatedly apologized, stopped assaulting L.T., and 

started to cry. Patton told L.T. she could leave and he got into his vehicle and sped away.
3

Minutes later, Officer Tai Huynh initiated a traffic stop of the Jeep that 

Patton was driving after he made an illegal turn. Patton did not have his driver’s license, 

but he identified himself and said he was driving on a suspended license. Huynh took 

Patton’s thumbprint for identification purposes. Huynh detected a strong odor of alcohol 

on Patton’s breath, but he did not appear to be intoxicated. Huynh determined Patton was 

driving on a suspended license and issued him a citation and impounded the Jeep, which 

had damage to the front bumper. Patton walked away.

Meanwhile, L.T. drove home, called her friends and told them what had 

happened, took a shower, and unsuccessfully tried to sleep. That afternoon, L.T. went to 

the Huntington Beach Police Department with her friends, Dang and Kevin Do to report 

the incident. L.T. was taken to the hospital for a sexual assault examination, which 

revealed a tear or laceration to her external genitalia, that was consistent with L.T.’s 

description of what had happened. 

L.T. accompanied crime scene investigator Shelley Shannon to the scene of 

the crime and demonstrated what had happened. Shannon took photographs and 

measurements of the area and of the Minivan and recovered fingerprint exemplars from 

the Minivan. Shannon determined Patton moved L.T. about nine feet and eight inches 

from where she was looking at the damage to the Minivan to the sidewalk where Patton 

assaulted her. The incident occurred near a flood control channel. Detective Tom 

Weizoerick processed the DNA samples and the fingerprint exemplars, but there were no 

matches.

About nine months later, after Patton had been arrested for driving under 

the influence1 and provided his fingerprints, Weizoerick learned there had been a match 

on the fingerprint recovered from the Minivan. He obtained a warrant for Patton’s arrest. 

 

1 Although the probation report indicates Weizoerick arrested Patton on 

April 15, 2009, Weizoerick testified he arrested him two days earlier. 
4

Weizoerick and Riverside County Sheriffs arrested Patton at his home in Perris. L.T.

could not identify Patton in any of the photographic lineups she reviewed.

Weizoerick and another detective interviewed Patton after advising him of 

his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Patton initially stated he 

had not been to Huntington Beach in a long time and denied he engaged in any sexual 

activity other than with his wife. Eventually, Patton admitted he rear-ended L.T., stated 

she did not want his insurance information because of the minimal damage, and said he 

was relieved because he was driving on a suspended license. Patton also admitted he 

rubbed L.T.’s buttocks and pubic area over her underwear, but when she appeared tense, 

he stopped and asked her whether he had gone too far. Patton claimed he apologized, got

into his car, and drove away. Patton denied he put his finger inside L.T.’s vagina, he 

grabbed her, or pulled down her underpants, and claimed the incident occurred between 

the two vehicles and not on the sidewalk.

An information charged Patton with kidnapping to commit a sex offense, 

rape and digital penetration (Pen. Code, § 209, subd. (b)(1))2 (count 1), attempted 

forcible rape (§§ 664, subd. (a), 261, subd. (a)(2)) (count 2), sexual penetration by a 

foreign object by force (§ 289, subd. (a)(1)) (count 3), and sexual battery by restraint

(§ 243.4, subd. (a)) (count 4). The information alleged Patton suffered a prior felony sex 

conviction (§ 667.6, subd. (a)), suffered a prior serious and violent felony conviction

(§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and suffered a prior prison term

(§ 667.5, subd. (b)).

At trial, L.T. testified concerning the circumstances of the offense as 

detailed above. She could not identify Patton at trial. Shannon testified regarding her 

recovery of physical evidence and her conclusion Patton moved L.T. nearly 10 feet. The 

 

2 All further statutory references are to the Penal Code. 
5

parties stipulated Patton’s fingerprints matched a partial handprint recovered from the 

Minivan.

At the close of the prosecutor’s case-in-chief, Patton moved to dismiss 

count 1 pursuant to section 1118.1 because the movement was incidental to the sexual 

assault and the movement did not substantially increase the risk of harm. Citing to case 

law, the prosecutor argued there is no minimum distance that a victim must be moved, 

and Patton’s movement of L.T. was to avoid detection and increased the risk of harm 

because he effectively moved her behind a wall, the Minivan, where passing cars could 

not see them. The trial court indicated it would review the case law and took the matter

under submission. The next day, the court denied Patton’s motion. The court reasoned 

Patton’s forcible movement of L.T. nine feet to a dark area behind the Minivan made it 

more difficult for L.T. to escape and enhanced Patton’s opportunity to commit additional 

crimes. The court concluded that it was an issue for the jury to decide.

Pursuant to the prosecutor’s motion, the trial court admitted into evidence 

documents establishing that in May 1999, Patton pled guilty to violating section 261, 

subdivision (a)(3), rape of an intoxicated woman.

The jury convicted Patton of all counts. At a bifurcated bench trial, the trial 

court found the prior conviction and prison term allegations to be true. The trial court 

sentenced Patton to 20 years to life in prison as follows: 14 years to life on count 1,

five years for the prior felony sex conviction, and one year for the prior prison term 

allegation. Pursuant to section 654, the court stayed the sentences on counts 2, 3, and 4. 

The court awarded Patton 1,235 days of actual credit but no conduct credit.

DISCUSSION

I. Sufficiency of the Evidence

Patton argues there was insufficient evidence he committed aggravated 

kidnapping because there was no evidence of asportation. Patton initially argues 

insufficient evidence supports his conviction, but also contends the trial court erred in 
6

denying his motion to dismiss pursuant to section 1118.1. As we explain below, the 

standard of review is the same, and Patton’s claim is meritless.

“An appellate court reviews the denial of a section 1118.1 motion under the 

standard employed in reviewing the sufficiency of the evidence to support a conviction. 

[Citation.] ‘In reviewing a challenge to the sufficiency of the evidence, we do not 

determine the facts ourselves. Rather, we “examine the whole record in the light most 

favorable to the judgment to determine whether it discloses substantial

evidence—evidence that is reasonable, credible and of solid value—such that a 

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” 

[Citations.] We presume in support of the judgment the existence of every fact the trier 

could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review 

applies to cases in which the prosecution relies primarily on circumstantial evidence and 

to special circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify 

the jury’s findings, the judgment may not be reversed simply because the circumstances 

might also reasonably be reconciled with a contrary finding.” [Citation.] We do not 

reweigh evidence or reevaluate a witness’s credibility.’ [Citation.] Review of the denial 

of a section 1118.1 motion made at the close of a prosecutor’s case-in-chief focuses on 

the state of the evidence as it stood at that point. [Citation.]” (People v. Houston (2012) 

54 Cal.4th 1186, 1215.)

The crime of simple kidnapping is contained in section 207. In relevant 

part, section 207, subdivision (a), 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.”

The crime of aggravated kidnapping for purpose of enumerated sexual 

offenses is contained in section 209, subdivisions (b) and (d). Section 209,
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subdivision (b)(1), states: “Any person who kidnaps or carries away any individual to 

commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of 

[s]ection[s] 264.1, 288, or 289, shall be punished by imprisonment in the state prison for 

life with the possibility of parole.” Section 209, subdivision (b)(2), provides: “This 

subdivision shall only apply if the movement of the victim is beyond that merely 

incidental to the commission of, and increases the risk of harm to the victim over and 

above that necessarily present in, the intended underlying offense.” 

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.) 

The last element is the asportation element and is required for both simple kidnapping 

and aggravated kidnapping. (Ibid.) The issue is, and has been for some time, what 

evidence must a prosecutor offer to establish asportation?3

In People v. Robertson (2012) 208 Cal.App.4th 965 (Robertson), the Fifth 

District Court of Appeal, interpreted section 209, subdivision (b)’s asportation 

requirement in light of the Legislature’s 1997 amendment. The Robertson court 

discussed the legislative history of aggravated kidnapping, including the 1990 

amendment that added kidnappings committed for the purpose of rape, and the 1997 

renumbering from section 208, subdivision (d), to section 209, subdivision (b). 

(Robertson, supra, 208 Cal.App.4th at p. 979.) The Robertson court stated that in 1994, 

 

3 In People v. Dominguez (2006) 39 Cal.4th 1141, 1145 (Dominguez), the 

California Supreme Court indicated consistency on this issue “has eluded the appellate 

courts[.]” The court interpreted section 208, subdivision (d)’s asportation element 

because defendant committed his offenses before the Legislature moved aggravated 

kidnapping to section 209, subdivision (b). The court expressed no opinion on the 

asportation element under section 209, subdivision (b). (Dominguez, supra, 39 Cal.4th at 

p. 1150, fn. 5.)

 
8

the California Supreme Court in People v. Rayford (1994) 9 Cal.4th 1 (Rayford), held the 

test for asportation articulated in People v. Daniels (1969) 71 Cal.2d 1119,4 applied to 

aggravated kidnapping for the purpose of rape. (Robertson, supra, 208 Cal.App.4th at

p. 979.) The Robertson court explained two California Supreme Court cases “briefly 

addressed” the Legislature’s 1997 revision to section 209 and clarified the movement 

must increase the risk of harm but that the increase in the risk of harm need not be 

substantial. (Robertson, supra, 208 Cal.App.4th at p. 980.)5 The Robertson court 

opined: “In sum, we hold that section 209, subdivision (b)(2)[,] requires the People to 

prove beyond a reasonable doubt that appellant’s movement of the victim was not merely 

incidental and that it increased the risk of harm to the victim over and above that which is 

inherent in the sexual offense itself. Yet, section 209, subdivision (b)(2) does not require 

proof that the movement substantially increased the risk of harm to the victim.” 

(Robertson, supra, 208 Cal.App.4th at p. 982.) 

The Robertson court concluded: “‘Kidnapping to commit rape involves 

two prongs. First, the defendant must move the victim and this asportation must not be 

“merely incidental to the [rape].” [Citations.] Second, the movement must increase “the 

risk of harm to the victim over and above that necessarily present in the [rape].” 

[Citation.] The two are not mutually exclusive, they are interrelated. [Citation.] [¶] ‘For 

 

4 The Rayford court articulated that test as follows: “[T]he standard of 

asportation for [former] section 208[, subdivision] (d) kidnapping requires that the 

movement of the victim be for a distance which is more than that which is merely 

incidental to the commission or attempted commission of rape . . . and that this 

movement substantially increase the risk of harm to the victim over and above that 

necessarily present in the commission or attempted commission of these crimes.” 

(Rayford, supra, 9 Cal.4th at p. 22.) 

5 The Robertson court stated though that in those cases, People v. Vines

(2011) 51 Cal.4th 830, and People v. Martinez (1999) 20 Cal.4th 225, and Dominguez, 

supra, 39 Cal.4th at p. 1150, fn. 5, the offenses predated the 1997 amendment and the 

courts interpreted section 208, subdivision (b), and not section 209, subdivision (b). 
9

the first prong, the jury considers the distance the defendant moved the victim and the 

“scope and nature” of the movement. [Citations.] For the second, it considers whether 

the movement gave the defendant “the decreased likelihood of detection” and an 

“enhanced opportunity to commit additional crimes.” [Citation.]’ [Citation.]” 

(Robertson, supra, 208 Cal.App.4th at p. 983.) 

Based on the record before us, we conclude Patton’s movement of L.T.

from the street between the two vehicles to the sidewalk behind the Minivan secluded 

from passing cars was not merely incidental and increased L.T.’s risk of psychological 

harm above the risk inherent in the crime of rape. Patton’s movement of L.T. was not 

merely incidental to the rape. The evidence established that after L.T. inspected the 

damage to the Minivan and told Patton there did not appear to be much damage, Patton 

grabbed L.T. by the waist and dragged her from the street between the two cars to the 

sidewalk behind the Minivan. After L.T. agreed Patton “was going too far[,]” Patton 

pinned L.T. against the Minivan, reached under her dress, and put two fingers inside her 

vagina. It is true Patton moved L.T. only nine to 10 feet, but he moved her behind the 

Minivan where it would make it more difficult for someone in a passing car to see him 

sexually assaulting her. (People v. Shadden (2001) 93 Cal.App.4th 164, 169 [“Where a 

defendant drags a victim to another place, and then attempts a rape, the jury may 

reasonably infer that the movement was neither part of nor necessary to the rape”].) 

Thus, the jury could reasonably conclude the movement was not incidental to the rape 

because Patton only began the sexual attack after he moved L.T. behind the Minivan. 

Additionally, Patton’s movement of L.T. increased the risk of harm because 

the movement decreased the likelihood of detection, increased the dangers inherent in 

L.T.’s foreseeable attempts to escape, and enhanced Patton’s opportunity to commit 

additional crimes. Patton spends the majority of his time arguing his movement of L.T.

did not decrease the likelihood of detection but instead increased the likelihood of 

detection. He insists L.T. was “visible from more vantage points” from the sidewalk than 
10

she would have been between the cars. That was for the jury to decide, and it resolved 

that question against Patton. 

First, it was almost three a.m., and the majority of people passing by would 

be in cars, not pedestrians. Occupants of a passing car would be more likely to see Patton 

and L.T. standing between the Minivan and the Jeep than Patton and L.T. concealed 

behind the Minivan. Second, Patton pinned L.T. against the Minivan. It would have 

been difficult, if not impossible, for occupants of a passing car to be at the perfect angle 

and perfect distance to see two people pinned against the Minivan regardless of how well 

the area was lit. Patton also claims that because L.T. could see car lights, occupants of a 

passing car could see her. Nonsense. Needless to say, the fact L.T. could see the glare or 

reflection of car lights does not mean she was visible to the occupants of the passing cars. 

Finally, the fact Patton unzipped his pants indicates he initially felt concealed enough to 

escalate the encounter and attempt to rape L.T. Our review of the trial exhibits does not 

alter our conclusion Patton forcible moved L.T. behind the Minivan to conceal and 

sexually assault her. 

Second, the movement increased the dangers inherent in L.T.’s foreseeable 

attempts to escape. The evidence established Patton grabbed L.T., drug her to the 

sidewalk, and pinned her against the Minivan. L.T. was trapped between the Minivan on 

one side and the flood control channel on the other side. Thus, avenues of escape were 

decreased by her movement. 

Finally, the movement increased Patton’s opportunity to commit additional 

crimes. Patton forcibly moved L.T. to the sidewalk and concealed her from passing cars 

behind the Minivan. Because they were hidden from passing cars, Patton had time to 

reach under L.T.’s dress, grab her buttocks, and put two fingers inside her vagina. 

Additionally, he had time to unzip his pants and prepare to rape L.T. Although not 

capable of certainty, the fact three or four cars passed by and no one stopped indicates 
11

Patton’s movement of L.T. effectively concealed them and allowed Patton to digitally 

penetrate L.T.

Dominguez, supra, 39 Cal.4th 1141, is instructive. Although the California 

Supreme Court in Dominguez, supra, 39 Cal.4th 1141, limited its holding to section 208, 

subdivision (d), its reasoning as to the elements that survived the Legislature’s 1997 

amendment is instructive. In that case, defendant at night forcibly moved a victim from a 

road to a spot 25 feet away, and 10 to 12 feet down an embankment where a passing 

driver would likely not see her. The court reasoned, “The movement thus 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. 1153.) Here, Patton did not move L.T. down an embankment, but 

he did move her behind the Minivan and changed her environment to a more secluded 

area where it would make it difficult for her to escape or be detected by occupants of 

passing cars. 

Patton relies on People v. Stanworth (1974) 11 Cal.3d 588 (Stanworth),

6

where the California Supreme Court reversed a conviction for aggravated kidnapping 

because “there [was] no evidence . . . the relatively brief movement of the victim . . . 

removed her from public view or in any other manner substantially increased the

risk . . . .” (Id. at p. 598.) In that case, defendant moved the victim 25 feet from a road to 

an open field where he bound, raped, and robbed her. (Id. at p. 597.) Here, as we explain 

above more fully, Patton moved L.T. less than 25 feet, but it was not to an open area. He 

moved her behind the Minivan to an area where the jury could reasonably conclude it 

would be more difficult for someone in a passing vehicle to see her. 

Patton relies on a number of cases where the defendant moved the victim 

more than 100 feet to argue movement of only nine feet is insufficient to establish 

 

6 Stanworth was overruled on other grounds in People v. Martinez (1999)

20 Cal.4th 225, 237. 
12

substantial distance. (People v. Rayford (1994) 9 Cal.4th 1 [105 feet]; People v. Aguilar

(2004) 120 Cal.App.4th 1044 [133 feet]; People v. Diaz (2000) 78 Cal.App.4th 243

[150 feet].) As we have explained, actual distance is a relevant factor but one that must 

be considered in context. (Dominguez, supra, 39 Cal.4th at p. 1152.) The jury 

considered that factor in context, and concluded movement of nine to 10 feet, behind a 

Minivan was sufficient. Thus, because there was sufficient evidence of asportation, the 

trial court properly denied Patton’s section 1118.1 motion to dismiss, and sufficient 

evidence supports his conviction for aggravated kidnapping. 

II. Custody Credits

Patton contends the trial court erred in awarding him credits because he 

should be awarded the following: (1) two additional days of actual credits; and

(2) conduct credits limited to 15 percent of the actual time he served. The Attorney 

General agrees on both counts.

A defendant is entitled to actual custody credit for “all days of custody” in 

county jail and residential treatment facilities, including partial days. (§ 2900.5,

subd. (a); People v. Smith (1989) 211 Cal.App.3d 523, 526.) Calculation of custody 

credit begins on the day of arrest and continues through the day of sentencing. (People v. 

Bravo (1990) 219 Cal.App.3d 729, 735.) A defendant is also entitled to conduct credits 

under section 4019. However, section 2933.1, subdivision (a), states, “Notwithstanding 

any other law, any person who is convicted of a felony offense listed in subdivision (c) of 

[s]ection 667.5 shall accrue no more than 15 percent of worktime credit, as defined in 

[s]ection 2933.” Patton concedes he is subject to the 15 percent limitation. 

Patton correctly states the probation report incorrectly states his arrest date 

was April 15, 2009, and claims he should be awarded two additional days of actual credit. 

However, he incorrectly states his arrest date was April 19, 2009, which would actually

result in less actual credit. Weizoerick arrested Patton on April 13, 2009. The trial court 

sentenced Patton on August 31, 2012. Thus, the trial court should have awarded Patton 
13

1,237 days of actual credit, not 1,235 days. Additionally, the court should have awarded 

Patton 185 days of conduct credit for a total of 1,422 days of total credit. (People v. 

Flores (2009) 176 Cal.App.4th 1171, 1182 [appellate court calculate conduct credits in 

interests of judicial efficiency].) 

DISPOSITION

Patton is awarded 1,237 days of actual credit and 185 days of conduct 

credit for a total of 1,422 days of total credit. The clerk of the superior court is directed 

to prepare a new abstract of judgment reflecting the new award of credits, and to forward 

the amended abstract of judgment to the Department of Corrections, Division of Adult 

Operations. We affirm the judgment as modified.

O’LEARY, P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.