A defendant may be sentenced under both the One Strike law based on aggravated kidnaping and consecutively for simple kidnaping of the same victim where simple kidnaping is followed by an aggravated kidnaping. Appellant kidnaped two boys at gunpoint and forced them to drive their car around, looking for drugs or appellant’s friend. Eventually one of the boys (victim 2) was released. Appellant directed the remaining boy (victim 1) to drive to a specific location, where he ingested methamphetamine and then sexually assaulted the boy. A jury convicted appellant of numerous offenses and allegations, including One Strike findings. Appellant challenged the trial court’s refusal to stay the execution of his sentence for kidnaping victim 1 (Pen. Code, §207), because kidnaping was the only qualifying circumstance used to apply the One Strike law (§667.61, subd. (a)). The trial court refused to stay the sentence for simple kidnaping under section 654. The Court of Appeal found the sentencing question governed by section 667.61, subdivision (f) (which refers to “circumstances” set forth in subdivisions (d) and (e)) and not by section 654 (which more broadly references “acts” or “omissions”), because section 667.61, subdivision (f) is the operative provision within the One Strike law. Kidnaping for the purposes of section 667.61, subdivision (d)(2) means aggravated kidnaping. Then section 667.61 distinguished between the “circumstances” of aggravated and simple kidnaping. Subdivision (d) of section 209, as then applicable, specifically addressed application of the One Strike law, stating that a person may not be punished under both section 209, subdivision (b) and section 667.61 for the same act. The Court of Appeal noted no similar provision in section 207. Because appellant’s One Strike sentence was based on aggravated kidnaping for the purpose of committing sexual offenses (§667.61, subds. (c) and (d)(2)), and not on simple kidnaping (§207, subd. (a)), as provided in section 667.61, subdivisions (c) and (e)(1), there was no error in sentencing on both simple kidnaping and the One Strike law based on aggravated kidnaping.
Mandatory consecutive versus discretionary concurrent sentencing. Nor did the trial court err when it found consecutive sentences for counts 1 (simple kidnaping of victim 1), 2 (kidnaping of victim 2) and 3 (sodomy), mandatory, because the offenses did not occur on the same occasion nor arise from the same set of operative facts. The simple kidnaping of victim 1 was complete when appellant let victim 2 go. The sodomy took place hours later in a location different from that involved in the simple kidnaping of victims 1 and 2. However, the case was remanded for resentencing as to count 5 (felon in possession of gun) because the record strongly suggested the trial court felt it lacked discretion to sentence that count concurrently.