Trial court erred in instructing the jury concerning kidnapping as defined by Penal Code section 667.61, subdivision (d)(2), but the error was harmless beyond a reasonable doubt. A jury convicted Moreland and Adams of attempted murder, robbery, aggravated kidnapping, and multiple sexual assault charges and found true various allegations under the One Strike law (Pen. Code, § 667.61, subds. (a), (d), and (e)). On appeal, defendants argued that the court erred in instructing the jury regarding the section 667.61, subdivision (d)(2) kidnapping qualifying circumstance alleged in connection with the rape and forcible oral copulation in concert offenses. Held: Affirmed as modified. Section 667.61, subdivision (d)(2), permits the imposition of an indeterminate sentence if two elements are met: (1) the defendant kidnapped the victim, and (2) the victim’s movement substantially increased the risk of harm to her above that necessarily inherent in the underlying sex offense. Here, the court’s instruction on the kidnapping qualifying circumstance referred the jury to the simple kidnapping jury instruction (CALCRIM No. 1215), which did not require the jury to find a substantially increased risk of harm, as required by section 667.61, subdivision (d)(2). The court had a sua sponte duty to instruct concerning the kidnapping qualifying circumstance, and failure to adequately instruct concerning the substantial increase in the risk of harm was error. However, the error was harmless beyond a reasonable doubt. The jurors impliedly found that there had been an increase in risk of harm during the lengthy asportation based on its guilty verdict on aggravated kidnapping. (Pen. Code, § 209, subd. (b)). In addition, overwhelming evidence supported that the increase in risk of harm was substantial.

Where a single act constituted a violation of both section 209, subdivision (b) for aggravated kidnapping and section 667.61 as a qualifying circumstance for an indeterminate sentence, the court was required to stay the sentence on the aggravated kidnapping. On appeal, defendants also challenged their indeterminate sentences for aggravated kidnapping. (Pen. Code, § 209, subd. (b)). Section 209 states that the section “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 [sections].” (Pen. Code, § 209, subd. (d) [emphasis added].) Here, the parties agreed that for purposes of section 209, subdivision (d), the relevant act was the kidnapping of the victim with the intent to commit either rape or oral copulation. The act of kidnapping also constituted the basis for the defendants’ section 667.61 punishment. Therefore, even though there were different elements for each of the sections, the same act constituted a violation of both sections, and the trial court was required to stay the punishment on aggravated kidnapping pursuant to section 209, subdivision (d).

The trial court improperly assessed presentence conduct credits. Because the defendants were convicted of violent felonies as defined in section 667.5, subdivision (c), the trial court limited their presentence conduct credits to 15 percent under section 2933.1, subdivision (c). However, in 2006, prior to the present crimes, the Legislature amended section 667.61, subdivision (j), by eliminating defendants’ eligibility for conduct credit. Committee reports displayed the Legislature’s intent to eliminate conduct credits for defendants sentenced under the One Strike law. The trial court erred by assessing presentence conduct credits, and the judgments must be modified to eliminate such credits.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B257829N.PDF