TURNER, P. J. —
A jury convicted defendants, Davon Delshawn Moreland and Kevin Adams, of forcible rape in concert (Pen. Code,
In the published portion of this opinion, we modify defendants' presentence custody credits. Also, we hold that under section 667.61 as amended in 2006, defendants were not entitled to presentence conduct credits. Finally, in the published portion of the opinion, we hold that the indeterminate aggravated kidnapping sentences must be stayed. (§ 209, subd. (d).) Resolution of the aggravated kidnapping sentence issue requires discussion of the jury instructions. In the unpublished portion of the opinion, we issue other orders concerning sex offense fines, penalties and surcharges as well as the abstracts of judgment. We affirm the judgments in all other respects.
Defendants were cousins and fellow members of a violent street gang. May 2 was the gang's "birthday" or "gang day." On May 2, 2011, Diane T. was working as a prostitute. Diane and Geoffrey Odhiambo were sitting in his car in an alley. Defendants pulled in behind and blocked Mr. Odhiambo's car. Defendants were in a four-door white car. Defendants approached Mr. Odhiambo's car. Mr. Moreland pointed a black gun at Mr. Odhiambo's head. Mr. Moreland took Mr. Odhiambo's car keys and money. Mr. Adams asked Diane for money. He forcibly searched inside her pants and bra. Mr. Adams grabbed Diane and dragged her to the white car. Mr. Adams raped Diane in the backseat. Mr. Adams then moved to the driver's seat. Over the course of an hour or more, while Mr. Adams drove, Mr. Moreland repeatedly sexually and physically assaulted Diane in the backseat. Mr. Moreland was armed with a gun during the assaults. Mr. Moreland forced Diane several times to orally copulate him. He repeatedly raped her. Mr. Moreland attempted to sodomize her. He repeatedly hit her on the head. Mr. Moreland threatened her with the gun. He told Diane repeatedly; "Don't look at me."
Mr. Moreland ordered Diane out of the car. He punched her in the face breaking her jaw. Mr. Moreland told Diane to get on her knees. He ordered her to orally copulate him. Diane refused. Mr. Moreland pointed the gun at Diane's forehead and fired twice. But the gun malfunctioned. Diane heard it click. Diane saw Mr. Moreland "messing with the gun." He was hitting it against his hand. Diane got up and started to run. Mr. Moreland ran toward the car. She heard him arguing with Mr. Adams. Mr. Adams said, "Stop, bitch." Diane stopped behind a truck. Mr. Adams pointed the gun at her. She heard a click. Diane ran to a nearby house and summoned help. Defendants left the scene.
After law enforcement officers arrived at the cul-de-sac, Diane described her assailants. Diane said one suspect was a 25- to 35-year-old light-skinned male Black, approximately six feet tall with a muscular build. The second suspect was a 25- to 30-year-old dark-skinned Black male, approximately six feet tall with a thin build. Mr. Moreland testified at trial that in May 2011, he was six feet three to four inches tall and weighed 230 pounds. Mr. Moreland further testified Mr. Adams was five feet 11 inches to six feet tall. Diane also worked with a forensic artist, Sandra Enslow, to create sketches of the perpetrators. At trial, Diane testified, "[The sketch artist] drew them perfect." The jury was able to compare the sketches to defendants' booking photographs as well as to how they appeared in the courtroom. Upon our own review, it is apparent that the sketches bear a striking resemblance to defendants.
On May 12, 2011, 10 days after Diane was assaulted, Mr. Adams was arrested for possessing a black .22-caliber revolver. The weapon was fully loaded with .22-short cartridges. The caliber designation for the firearm was.22-long. The revolver's cylinder was held in place by a metal screw instead of the usual pin. The metal screw impeded the revolver's firing pin, potentially causing it to malfunction. The gun discharged only once in `six test firings using .22-short-caliber ammunition. The gun discharged only three times in six test firings using .22-long-caliber bullets. When the weapon failed to discharge, it made a clicking sound. The parties subsequently stipulated, "[O]n June 24, 2011, in case number BA385835, People v. Kevin Adams, a felony criminal case was filed alleging that defendant Kevin Adams ... was carrying a concealed firearm on his person, in violation of
On May 15, 2012, law enforcement officers arranged a "bench operation." Defendants, who were both in custody, were seated together on a bench. They were ostensibly waiting to be interviewed by detectives about another case. Their conversation was recorded. An audiotape of the conversation was played at trial. The conversation was as follows: "Adams: Yeah, at first `I thought they was gonna bring up that little rape charge ... ad[d] charge on that rape .... That's what I thought they were gonna bring up. [¶] Moreland: Yeah ... [¶] Adams: But this shit ... this the last shit on my mind nigga ... I don't know nothing about this nigga. [¶] Moreland: Damn bro ... [c]aught the fuck up ... [¶] Adams: And ... [¶] Moreland: I never would have came to jail my nigga. [¶] Adams: And look when they add charge me last time, ... they did bring that shit up ... [¶] Moreland: Hmm? [¶] Adams: They did, they brought that shit up ... my nigga ... with the nigga. They said the bitch don't want to cooperate with the police so he said ... we can't do no case ... put nobody on it ... because she don't want to talk to police, woo, woo, woo ... and I found out nigger that's D Monk ... that D Monk[']s hoe .... Nigga .... [¶] Moreland: Yeah. [¶] Adams: I'm in the dorm with D Monk's brother ... and he told me like yeah the little Mexican bitch got raped by two niggas, woo woo. He said, he said that .... [¶] ... [¶] Adams: All right, he said that ... she said that the two niggas that raped her were from [defendants' gang] ... but we don't know what [sect] they from ... we don't know who they is ... woo, woo, woo ... but she said the bitch ain't going to court ... won't talk to police .... All right, so I was cool about that you feel me .... When I came out here that's what I thought they was gonna bring up ...." And defendants had another conversation as follows: "Moreland: They add charge you right here? For real? [¶] Adams: [Yes], that's why I'm nervous. Yeah. I ain't gonna put that shit to happen .... Remember that, that night [of the gang] function? And (INAUDIBLE) left? [¶] Moreland: No, hell no. [¶] Adams: I hope it's not that. [Sect of the gang] they from ... we don't know who they is ... woo, woo, woo (INAUDIBLE) but she said the bitch ain't going to court (INAUDIBLE) won't talk to police .... All right, so I was cool about that you feel me .... When I came out here that's what I thought they was gonna bring up. [¶] Moreland: I go to court tomorrow." Further conversation ensued: "Moreland: They add charge you right here? For real? [¶] Adams: ... That's why I'm nervous. Yeah. I ain't gonna put that shit to happen .... Remember that, that night [the May 5 gang] function? And (INAUDIBLE) left? [¶] Moreland: No, hell no. [¶] Adams: I hope it's not that."
The victim, Diane, was missing for approximately 10 months. In late 2012, however, detectives located her. On December 1, 2012, one year and seven months after the assault, Detective White showed Diane two photographic lineups. Initially, Diane identified Mr. Moreland as the driver. She told the detective, "He was the one that initially raped me ...." But later she said she had the two men confused and she identified Mr. Moreland as the person who repeatedly assaulted and tried to kill her. She remembered Mr. Moreland. She told detectives it was him "a hundred percent." She said, "I know that face." She then identified Mr. Adams as one of two men depicted in the lineup who could "possibly [be] the driver," but she was unsure.
Surveillance video from a bakery near the cul-de-sac was introduced. The videotape showed a white car passing in the direction of the cul-de-sac at the approximate time of the crimes and, several minutes later, returning in the other direction. Mr. Moreland's girlfriend, Terica Fuller, owned a white, four-door Honda Civic that looked similar to the car depicted in the video. At times, Mr. Moreland used Ms. Fuller's Honda. Diane was shown a photograph of Ms. Fuller's Honda. Diane believed it was the car used by her assailants. In addition, Diane had told law enforcement officers the dashboard in her assailants' vehicle lit up. The dashboard of Ms. Fuller's car had an illuminated display.
At the preliminary hearing and again at trial, Mr. Odhiambo identified Mr. Moreland as the man who committed the robbery. At trial, Mr. Odhiambo stated unequivocally that Mr. Moreland was that man. Mr. Odhiambo testified, "I know he's the one who pointed the gun." Mr. Odhiambo was unable, however, to identify the second man. Also, at both the preliminary hearing and at trial, Diane identified Mr. Adams as the driver and Mr. Moreland as the other assailant.
Senior criminalist Christopher Lee collected potential biological evidence from the cul-de-sac including what looked like fresh spit, a piece of a
Criminalist Ashley Platt initially screened the collected evidence for the potential presence of deoxyribonucleic acid. She contemporaneously completed standard, preprinted forms and documented the results of her tests. She forwarded evidence containing potential biological material for deoxyribonucleic acid analysis. Ms. Platt did not testify at trial.
Consistent with protocol, criminalist Yukis Partos conducted a technical review of Ms. Platt's work. Ms. Partos reviewed the entire file including case notes and test results. Ms. Partos testified at trial. She explained that the reason for the technical review was, "[T]o ensure that all of us are following the policy and procedures of our laboratory, the testing is done correctly using the correct control samples, the results are reliable, scientifically done, and to make sure that everything that had to be done is conducted correctly and second analyst who is the technical reviewer are agreeing with the testing done by the original analyst." Ms. Partos testified Ms. Platt followed protocol and performed appropriate tests in a proper manner.
Criminalist Kirsten Fraser also testified at trial. Ms. Fraser analyzed the material forwarded by Ms. Platt. Ms. Fraser generated deoxyribonucleic profiles. At the time she generated the profiles, the only reference samples she had were from the victim. The bloodstains all matched the victim. The possible saliva was from a single source, an unknown male. The victim was a major contributor to the deoxyribonucleic acid on the condom wrapper — one in 16.2 trillion. There was a possible unknown male contributor as well. Ms. Fraser uploaded the saliva and condom wrapper profiles to a national database. She was notified of a match to Mr. Adams. Ms. Fraser subsequently received reference samples from defendants. She generated deoxyribonucleic acid profiles for each of them. Upon comparison, Ms. Fraser found the saliva matched Mr. Adams. Mr. Moreland was a possible contributor to the deoxyribonucleic acid mixture found on the condom wrapper — one in 293 billion. As noted above, the victim was the major contributor to that mix.
Mr. Moreland testified in his own defense. He denied committing the crimes. He testified that although he had joined the gang when he was 13, he was no longer a gang member. Mr. Moreland testified that May 2 was a big day for a certain gang. Mr. Moreland said, "[E]verybody from the gang goes to that one certain party on this one odd day." Further, he said, "It's like a
The trial court awarded Mr. Adams 562 days of presentence custody credit. However, the parties agree that Mr. Adams was in custody for conduct attributable to the present case from January 2, 2013, to July 18, 2014, a period of 563 days. A defendant is entitled to credit for all days in presentence custody including the day of arrest and the day of sentencing. (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48 [149 Cal.Rptr.3d 313]; People v. Morgain (2009) 177 Cal.App.4th 454, 469 [99 Cal.Rptr.3d 301].) Mr. Adams's judgment must be modified and his abstract of judgment corrected to reflect 563 days of presentence custody credit.
The trial court awarded Mr. Moreland 603 days of presentence custody credit. However, according to the record before us, Mr. Moreland was arrested on December 12, 2012. He was sentenced on August 14, 2014. Therefore he was in presentence custody for 611 days. (People v. Rajanayagam, supra, 211 Cal.App.4th at p. 48; People v. Morgain, supra, 177 Cal.App.4th at p. 469.) Mr. Moreland's judgment must be modified and his abstract of judgment corrected to reflect 611 days of presentence custody credit.
Because they were convicted of violent felonies as defined in section 667.5, subdivision (c), the trial court limited defendants' presentence conduct credit
Section 667.61 was amended in 2006 — prior to the present crimes — to eliminate the existing section 667.61, subdivision (j) and any reference to
Ultimately, what we will decide is whether defendants may be punished under section 209, subdivision (b). As we shall explain in greater detail, section 209, subdivision (d) prohibits punishment under sections 667.61 and 209, subdivision (b) for the same act. Before we reach this conclusion though, we must resolve a preliminary jury instruction issue. The parties agree there is no issue concerning the adequacy of the charging documents.
On May 12, 2014, after the conclusion of testimony, the trial court indicated that it would finalize the instructions on the next day. On May 13, 2014, after all of the testimony was completed the day before, the trial court discussed jury instructions with all counsel outside the jurors' presence. The trial court began its review of the instructions that would be given: "We are going to review the instructions. If you have any objection, comments, concerns, please state them. I am reading the [CALCRIM] number." The trial
The jury was instructed as to the elements of rape (count 2) and forcible oral copulation (count 3) in concert pursuant to CALCRIM Nos. 1000, 1001, 1015 and 1016. In addition, the jurors were instructed concerning the section 667.61, subdivision (d)(2) kidnapping qualifying circumstance in compliance with CALCRIM No. 3179: "If you find the defendant guilty of the crimes charged in Counts 2 and/or 3, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant kidnapped Diane .... You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] To decide whether the defendant kidnapped Diane ... please refer to the separate instructions that I have given you on kidnapping. You must apply those instructions when you decide whether the People have proved this additional allegation. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
Two sets of CALCRIM instructions were given concerning two forms of kidnapping. The jury was instructed pursuant to CALCRIM No. 1203 concerning kidnapping to commit rape or another sex offense. This instruction related directly to the charge in count 4. In footnote 3, we have reproduced the instructions given concerning the asportation element of kidnapping to commit rape or another sex offense.
The instruction on the asportation element of a simple kidnapping was as follows: "To prove Kidnapping, the People must prove that: [¶] 1. The defendant took, held, or detained another person by using force or by instilling reasonable fear; [¶] 2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] AND [¶] 3. The other person did not consent to the movement; [¶] AND [¶] 4. The defendant did not actually and reasonably believe that the other person consented to the movement. [¶] ... [¶] Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the distance the other person was moved was beyond that merely incidental to the commission of rape and or oral copulation, whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection." (CALCRIM No. 1215.) As to both the kidnapping to commit rape or oral copulation and the simple kidnapping issues, the jurors were fully instructed concerning the consent element of those two crimes. (CALCRIM Nos. 1203, 1215.) There is no issue concerning consent instructions in this case.
In her opening summation, the deputy district attorney argued to the jurors they should find the section 667.61, subdivisions (a) and (d)(2) kidnapping qualifying circumstance allegation true. The prosecutor argued as to Mr. Moreland in connection with the special allegation appearing in the verdict form: "Kidnap. There's an allegation, kidnapped the victim of the present offense. Right? Was there a kidnap that happened in the commission of the rape sometime during that time while they had control of her? Here's the thing about the kidnap: The kidnap continues. [It's] not just the taking of her to the car. [It's] the driving around because that movement is putting her in a place of less safety. So [it's] the entire driving, even driving all the way to the cul-de-sac. That's all part of the kidnap. Did that happen in the commission of the rape? True. So you write in true." The prosecutor briefly referred to the kidnapping qualifying circumstance allegation when discussing the charges against Mr. Adams. No objection of any kind was interposed by either defense attorney to the prosecutor's argument concerning the section 667.61, subdivision (d)(2) kidnapping qualifying circumstance.
In their arguments, `defense counsel never discussed CALCRIM No. 3179 or the elements of the section 667.61, subdivision (d)(2) kidnapping qualifying circumstance allegation. Their arguments focused on jury instructions concerning reasonable doubt and the conduct of jurors; the lack of believability of the prosecution witnesses including the fact that Diane was a prostitute; the problems with identification testimony; and gang and ballistics testimony. Neither of the two defense attorneys argued their clients were guilty only of any lesser included offenses. Mr. Adams's counsel requested a not guilty verdict be returned.
On May 16, 2014, the jury returned its verdicts. As to count 2, Mr. Adams was convicted of forcible rape while acting in concert and the following special allegations were found to be true: he personally used a firearm within the meaning of sections 667.61, subdivisions (a) and (e) and 12022.53, subdivisions (b) and (e); he kidnapped the victim within the meaning of section 667.61, subdivisions (a) and (d); and the sexual assault was committed for the benefit of a street gang within the meaning of section 186.22, subdivision (b)(1)(C). As to count 3, Mr. Adams was convicted of oral copulation by acting in concert and the jury found two special allegations to be true. The jury found Mr. Adams kidnapped the victim within the meaning of section 667.61, subdivisions (a) and (d). In addition, the jury found the offense was committed for the benefit of a street gang within the meaning of section 186.22, subdivision (b)(1)(C). However, the jury found the firearm
As to Mr. Moreland, the jury returned the same guilty verdicts on counts 2 (rape in concert), 3 (forcible oral copulation in concert) and kidnapping to commit another crime. However, as to Mr. Moreland, more extensive special allegations findings were returned. As to count 2, the forcible rape in concert charge, the jury found the following special allegations to be true: Mr. Moreland personally used a firearm within the meaning of sections 667.61, subdivisions (a) and (e) and 12022.53, subdivision (b); Mr. Moreland kidnapped the victim within the meaning of section 667.61 subdivisions (a) and (d); the sexual assault was committed for the benefit of a street gang within the meaning of section 186.22, subdivision (b)(1)(C); and Mr. Moreland inflicted great bodily injury upon the victim within the meaning of sections 667.61, subdivisions (a) and (d) and 12022.8. As to count 3, the forcible oral copulation charge, the jury found the two great bodily injury allegations to be not true. (§§ 667.61, subds. (a) & (d), 12022.8.) But the jurors found as to count 3 the following special allegations were true as to Mr. Moreland: he personally used a firearm within the meaning of sections 667.61, subdivisions (a) and (e) and 12022.3, subdivision (a); he kidnapped the victim within the meaning of section 667.61, subdivisions (a) and (d); and the crime was committed for the benefit of a street gang. (§ 186.22, subd. (b)(1)(C).) As to count 4, the section 209, subdivision (b)(1) kidnapping to commit another crime charge, the jury found the following special allegations to be true: the crime was committed for the benefit of a street gang within the meaning of section 186.22, subdivision (b)(1)(C); Mr. Moreland personally used a firearm within the meaning of section 12022.53, subdivision (b); and he inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a).
As to Mr. Adams, for count 2, forcible rape in concert, he received an indeterminate sentence of 25 years to life. In addition, as to count 2, Mr. Adams received 10 years for firearm use which was stayed pursuant to section 12022.53, subdivision (e)(2). As a result of the gang allegation, an additional 10 years was imposed pursuant to section 186.22, subdivision (b)(1)(C). The total count 2 sentence was 35 years to life. As to count 3, forcible oral copulation in concert, Mr. Adams was sentenced to state prison for a term of 25 years to life plus 10 years for the gang enhancement. The count 3 section 12022.3, subdivision (a) firearm use finding was stayed
As to Mr. Moreland, similar sentences were imposed as to counts 2, 3 and 4. However, Mr. Moreland had been subject to a prior serious felony juvenile dispositional order and was a minor when the present crimes were committed. Thus, Mr. Moreland's sentence differs in several respects from that imposed on Mr. Adams. Mr. Adams was not a juvenile at the time of the commission of the offenses specified in the second amended information. As to count 2, Mr. Moreland received a sentence of 50 years to life (25 years to life doubled because of his prior serious felony juvenile disposition) plus an additional 10-year term pursuant to section 12022.53, subdivision (b); five years for great bodily injury pursuant to section 12022.8; plus 10 years as a result of the section 186.22, subdivision (b)(1)(C) gang enhancement finding. As to count 3, Mr. Moreland received a 50-year-to-life sentence plus 10 years for firearm use and the gang enhancement. The sentences as to counts 2 and 3 were ordered to run consecutively pursuant to section 667.6 subdivisions (c) and (d). As to count 4, the kidnapping to commit rape or oral copulation conviction, defendant received a life sentence. The oral pronouncement of judgment makes no reference to counts 2 and 3, the sexual assault charges, running consecutively to the aggravated kidnapping sentence. The abstract of judgment states that counts 3, oral copulation in concert, and 4, kidnapping to commit rape and oral copulation, were ordered to run consecutively. Pursuant to section 186.22, subdivision (b)(5), Mr. Moreland received a 15-year minimum parole eligibility term. As noted, Mr. Moreland was a juvenile when he engaged in the crimes alleged in the second amended information. Pursuant to People v. Caballero (2012) 55 Cal.4th 262, 268-269 [145 Cal.Rptr.3d 286, 282 P.3d 291], the trial court imposed a minimum parole eligibility date of 35 years from the date of sentencing. (See Graham v. Florida (2010) 560 U.S. 48, 82 [176 L.Ed.2d 825, 130 S.Ct. 2011].)
As previously explained, section 667.61, subdivision (d)(2) permits the imposition of an indeterminate 25-year-to-life sentence under these circumstances: "(d) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] ... [¶] (2) The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c)." The section 667.61, subdivision (d)(2) qualifying circumstance has two elements. The first element requires the victim be kidnapped. The second element requires that the victim's movement substantially increase the risk of harm to him or her above that level of danger necessarily inherent in the sex offense. (People v. Jones, supra, 58 Cal.App.4th at p. 713.) Section 667.61, subdivision (d)(2) contains an element (substantial increase in the risk of harm) beyond that in simple and aggravated kidnapping. Aggravated kidnapping has as an element an increase in the risk of the harm over that present in the enumerated offenses. (People v. Robertson (2012) 208 Cal.App.4th 965, 979-980 [146 Cal.Rptr.3d 66]; People v. James (2007) 148 Cal.App.4th 446, 454, fn. 5 [55 Cal.Rptr.3d 767].) Prior to 1998, section 209 aggravated kidnapping had as an element a substantial increase in the risk of harm to the victim beyond that present in the enumerated offense. But in 1997, section 209, subdivision (b)(2) was amended to remove the "substantially" increase the risk of harm element from the statutory definition of aggravated kidnapping. (Stats. 1997, ch. 817, § 2, pp. 5519-5520; People v. Vines (2011) 51 Cal.4th 830, 869, fn. 20 [124 Cal.Rptr.3d 830, 251 P.3d 943]; People v. Martinez (1999) 20 Cal.4th 225, 232 & fn. 4 [83 Cal.Rptr.2d 533, 973 P.2d 512].)
The relevant sex offenses specified in section 667.61, subdivision (c) are in concert rape or forcible oral copulation. And as previously noted, the jurors were instructed pursuant to CALCRIM No. 3179 that they must decide the additional allegation of whether defendant kidnapped Diane. As part of the CALCRIM No. 3179 qualifying circumstance instruction, the jurors were instructed as follows: "To decide whether the defendant kidnapped Diane ... please refer to the separate instructions that I have given you on kidnapping. You must apply those instructions when you decide whether the People have proved this additional allegation."
For clarity's purposes we reiterate the risk of harm instructions here: "In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the distance the other person was moved was beyond that merely incidental to the commission of rape and or oral copulation, whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection." (CALCRIM No. 1215, italics added.) The CALCRIM No. 1215 simple kidnapping risk of harm instruction, as given here, does not require the jury to find an increased risk of harm resulting from the asportation. By contrast, section 667.61, subdivision (d)(2) requires that the movement increased the risk of harm beyond that present in the two sex offenses charged in counts 2 and 3.
Defendant argues the jurors were not properly instructed concerning the section 667.61, subdivision (d)(2) increased risk of harm element. We agree. There is a sua sponte duty to instruct concerning the section 667.61, subdivision (d)(2) kidnapping qualifying circumstance. (People v. Jones, supra, 58 Cal.App.4th at p. 709; see People v. Mancebo (2002) 27 Cal.4th 735, 748 [117 Cal.Rptr.2d 550, 41 P.3d 556].) Here, the jurors were referred to a definition of kidnapping for purposes of section 667.61, subdivision (d)(2) to CALCRIM No. 1215. CALCRIM No. 1215 does not adequately instruct the jurors concerning the substantial increase in the risk of harm element of a section 667.61, subdivision (d)(2) kidnapping qualifying circumstance. CALCRIM No. 1215 does not require the jury to find the asportation substantially increased the risk of harm over that level of risk necessarily inherent in the sex offenses. And the reference to the increase of risk in CALCRIM No. 1215 appears in a disjunctive discussion of how to evaluate the substantial distance element of kidnapping. However, we conclude the failure to properly instruct on the increased risk of harm element of the section 667.61, subdivision (d)(2) kidnapping qualifying circumstance was harmless beyond a reasonable doubt. (People v. Luna (2012) 209 Cal.App.4th 460, 468 [146 Cal.Rptr.3d 841] [§ 667.61, subd. (e)(1) kidnapping qualifying
No doubt, the jurors impliedly found that the movement of Diane increased the risk of harm to her. As noted, the jurors were instructed on the charge of kidnapping for the purpose of rape or oral copulation pursuant to CALCRIM No. 1203. The jurors were instructed, "The movement must have increased the risk of physical or psychological harm to that person beyond that necessarily present in the rape or oral copulation." As instructed, in order to convict defendant of aggravated kidnapping within the meaning of section 209, subdivision (b)(1), the jurors were required to find the movement increased the risk of harm to Diane. As we have noted, after January 1, 1998, an increase in the risk of harm was an essential element of section 209 subdivision (b)(1) aggravated kidnapping. Thus, the jury impliedly found that there was an increase in the risk of harm because of the lengthy asportation that occurred in our case. (People v. Mincey (1992) 2 Cal.4th 408, 438 [6 Cal.Rptr.2d 822, 827 P.2d 388] ["[A] trial court's failure to instruct on a lesser included offense is not prejudicial if, as here, the jury necessarily resolved the factual question adversely to the defendant under other instructions...."]; People v. Stankewitz (1990) 51 Cal.3d 72, 99 [270 Cal.Rptr. 817, 793 P.2d 23] [`By finding the firearm-use allegation to be true, the jury impliedly found that defendant was a direct participant, or, at a minimum, that he aided the robbery with the requisite intent."].) Thus, the sole prejudicial error issue that remains relates to the "substantial" increase in the risk of harm element in section 667.61, subdivision (d)(2). While deciding the aggravated kidnapping charge in count 4, the jurors impliedly found that there had been an increase in risk of harm during the lengthy asportation.
No doubt, the calculus of whether the evidence was overwhelming is closer as to Mr. Moreland. He denied any participation in the sexual assaults and other violent crimes. However, we have reviewed the entirety of the testimony and evidence. The evidence was overwhelming in terms of the issue before us — whether the victim's movement substantially increased the risk of harm to her. The failure to instruct the jury as to the substantial increase in the risk of harm element of section 667.61, subdivision (d)(2) was harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 17 [144 L.Ed.2d 35, 119 S.Ct. 1827]; People v. Mil, supra, 53 Cal.4th at pp. 410-411.) Hence, we conclude that no instructional errors permit reversal and we must thus resolve the section 209, subdivision (d) question.
Section 209, subdivision (d) states: "Subdivision (b) shall not be construed to supersede or affect Section 667.61. A person may be charged with a violation of subdivision (b) and Section 667.61. However, a person may not be punished under subdivision (b) and Section 667.61 for the same act that constitutes a violation of both subdivision (b) and Section 667.61." (Italics added.) The "same act that constitutes a violation of both subdivision (b) and Section 667.61" language utilized by the Legislature in section 209, subdivision (d) is somewhat unclear. Section 209, subdivision (d) was adopted as part of Assembly Bill No. 59 (1997-1998 Reg. Sess.) (Assembly Bill No. 59, hereafter). (Stats. 1997, ch. 817, § 2, pp. 5519-5520.) None of the legislative committee reports prepared for Assembly Bill No. 59 discuss section 209, subdivision (d). (Assem. Com. on Appropriations, Analysis of Assem. Bill No. 59, as amended Mar. 10, 1997; Assem. Com. on Public Safety, Analysis of Assem. Bill No. 59, as amended Mar. 10, 1997; Assem. 3d reading analysis of Assem. Bill No. 59, as amended June 3, 1997; Sen. Com. on Public Safety, Analysis of Assem. Bill No. 59, as amended June 3, 1997; Sen. Corn. on Appropriations, Fiscal Summary, Analysis of Assem. Bill No. 59, as amended Aug. 25, 1997; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 59, as amended Sept. 4, 1997.)
The judgment as to Mr. Moreland is modified to impose minimum parole eligibility terms of 30 years on counts 4 and 6. The judgments are further modified to award Mr. Adams 563 days of presentence custody credit and to award Mr. Moreland 611 days of such credit. The reference to a Penal Code section 12022.53, subdivision (b) finding in Mr. Adams's abstract of judgment must be stricken. Mr. Moreland's abstract of judgment is modified to delete the reference to count 2 running consecutively to count 6. The judgments are modified as to both defendants to stay the punishment on count 4 and to delete the conduct credit awards. Upon remittitur issuance, a hearing is to be held as to each defendant's ability to pay the sex offense fines together with applicable penalties and surcharges. The judgments are affirmed in all other respects. Upon resolution of the ability to pay issue, the trial court is to personally insure that the superior court clerk prepares fully correct amended abstracts of judgment as discussed in the opinion's body. The clerk of the superior court is to forward copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
Baker, J., and Kumar, J.
