Defendants sentenced pursuant to the One Strike law may not receive any conduct credits based on 2006 amendment to Penal Code section 667.61. Defendants Adams and Moreland were convicted of forcible rape in concert (Pen. Code, § 264.1, subd. (a)), forcible oral copulation in concert (Pen. Code, § 288a, subd. (d)(1)), aggravated kidnapping (Pen. Code, § 209, subd. (b)(1)), and other offenses. The jury found true multiple allegations and enhancements, including One Strike (Pen. Code, § 667.61, subds. (a), (d) & (e)) allegations. The Court of Appeal asked for briefing on the application of an amendment to Penal Code section 667.61 to this case. Held: Presentence conduct credits stricken. Because the defendants were convicted of violent felonies, the trial court awarded presentence conduct credits limited to 15% (Pen. Code, § 2933.1, subd. (c)). Penal Code section 667.61 was amended in 2006 to eliminate any reference to presentence conduct credits. The legislative history of the amendment shows the intent was to allow no conduct credits against the minimum term of confinement for defendants sentenced under the One Strike law. The presentence conduct credits awarded in this case were therefore stricken.

Penal Code section 209, subdivision (d) prohibits punishment under both sections 667.61 and 209, subdivision (b) (aggravated kidnapping) for the same act. Pursuant to Penal Code section 209, subdivision (d), defendants could not be punished for the same act that violated both sections 209, subdivision (b) and section 667.61. Here, defendants’ violation of section 209, subdivision (b) was based on the act of kidnapping to commit rape or oral copulation. Section 667.61 permitted the imposition of an indeterminate 25-years-to-life sentence because the defendants kidnapped the victim of the rape and oral copulation offenses. (See Pen. Code, § 667.61, subd. (c)(3) & (7), (d)(2).) Although there are differences in the elements required for a section 209, subdivision (b) violation from those required in section 667.61, subdivision (d)(2), the Legislature’s use of the term “same act” evinces an intent to avoid punishment of an act, not an offense with the precise same elements. The defendants’ violations of Penal Code sections 209, subdivision (b) and 667.61 were based on a common act (kidnapping a prostitute with the intent to commit the charged sex offenses) occurring against a single victim on the same day. As a result, the punishment for kidnapping to commit rape or oral copulation (Pen. Code, § 209, subd. (b)) must be stayed.

The instruction concerning kidnapping as defined in the One Strike law (Pen. Code, § 667.61, subd. (d)(2)) was erroneous, but the error was harmless beyond a reasonable doubt. The One Strike law permits the imposition of a 25-years-to-life sentence where the defendant kidnapped the victim and the movement of the victim substantially increased the risk of harm to the victim over and above that inherent in the underlying offense. This element of the One Strike law goes beyond the asportation required for aggravated kidnapping. The jury was instructed with CALCRIM No. 1215, defining kidnapping, which, in the context of defining “asportation,” included a discussion concerning risk of harm to determine whether the movement was substantial. This was not an adequate instruction for the One Strike kidnapping circumstance because it did not require the jury to make a finding that the asportation substantially increased the risk of harm over that inherent in the sex offense. However, the error was harmless because the jurors necessarily found the movement increased the risk of harm to the victim in finding the defendants guilty of kidnapping for purposes of rape or oral copulation. Further, the evidence proved a lengthy asportation during which the victim suffered numerous assaults and injuries, and the substantial risk of harm issue was uncontested.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B257829M.PDF