Filed 5/2/13 P. v. Landaverde CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B241431

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA082395)
         v.

JESSE SOLIS LANDAVERDE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Eric C. Taylor, Judge. Affirmed as modified, and remanded with directions.

         Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant
and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       Defendant Jesse Solis Landaverde appeals from his conviction of forcible oral
copulation, second degree robbery and kidnapping for carjacking. He contends:
(1) allowing a uniformed officer to stand next to defendant while he testified was
prejudicial error; (2) the jury was not properly instructed on a kidnapping special
circumstance attached to the oral copulation charge (Pen. Code, § 667.61, subd. (a)); and
(3) the life sentence imposed on the kidnapping for carjacking conviction was an
unauthorized sentence.1 We modify the judgment to stay the sentence on the kidnapping
for carjacking conviction, but otherwise affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

       Defendant’s contentions make a detailed recitation of the facts unnecessary. It is
sufficient to state that, viewed in accordance with the usual rules on appeal (People v.
Zamudio (2008) 43 Cal.4th 327, 357-358), the evidence established that at about
10:00 a.m. on December 28, 2007, defendant accosted the victim at knife point in a
parking lot as she was leaving her car to go into her place of business. After the victim
complied with defendant’s demand that she give him her keys and purse, the defendant
snatched a necklace from her neck. Defendant next instructed the victim to sit in the
driver’s seat of her car and forced her to orally copulate him while he stood next to the
open driver’s side car door. At defendant’s instruction, the victim got into the back seat
of her car. Once she had done so, defendant drove the car out of the parking lot. The
victim was eventually able to open the rear passenger door and escape. Police arrived
within minutes of a call to 911. They brought the victim to a hospital where she
underwent a sexual assault examination during which DNA from an unknown male was
collected from her person. The victim’s car was recovered about two weeks later; her
purse was in it but her wallet, money and cell phone were missing.
       More than four years later defendant’s DNA was matched with the DNA
recovered from the victim. He was charged with forcible oral copulation (count 1),


1      All future undesignated statutory references are to the Penal Code.

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second degree robbery (count 2), carjacking (count 3) and kidnapping for carjacking
(count 4). Enhancements for personal use of a deadly weapon (§ 12022, subd. (b)(1))
were alleged as to all counts; as to count 1, a section 12022.3, subdivision (a) deadly
weapon use enhancement and a section 667.61, subdivision (e)(1) kidnapping special
circumstance were also alleged.
       At trial, the victim positively identified defendant as her assailant. She had been
unable to positively identify defendant from a photographic lineup and at the preliminary
hearing she had testified that he “resembled” her attacker. An expert testified that
defendant’s DNA was compared to the unknown male’s DNA collected during the sexual
assault examination. Defendant could not be excluded as the contributor of that DNA.
Defendant was Hispanic and the probability of finding a random unrelated Southwestern
Hispanic who could not be excluded was one in 409,800; the probability of finding a
random unrelated Southeastern Hispanic was one in 460,200. The odds increased for
unrelated African-Americans and Caucasians, but decreased for unrelated Asians.
Defendant testified that he was not the person who assaulted the victim; he maintained he
had never seen her before these criminal proceedings.
       The jury convicted defendant on all counts and found true the gun use
enhancements and the kidnapping special circumstance. Defendant was sentenced to a
total of 27 years to life in prison comprised of 25 years to life on count 1 (forcible oral
copulation) based on the deadly weapon use and kidnapping special circumstances
(§ 667.61, subd. (e)(1) & (3)), plus a consecutive two-year low term on count 2 (robbery),
plus a consecutive life with the possibility of parole term on count 4 (kidnapping for
carjacking). The trial court dismissed count 3 (carjacking) in the interest of justice
pursuant to section 1385. Defendant timely appealed.




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                                       DISCUSSION

A.     The Trial Court’s Failure to State Reasons For Placing a Deputy Next to
       Defendant While He Testified Was an Abuse of Discretion, But Harmless

       Defendant contends it was an abuse of discretion for the trial court to maintain a
general policy of having a deputy stand next to a testifying criminal defendant, rather
than deciding whether such a security measure is necessary on a case-by-case basis. We
agree that adhering to such a general policy without articulating reasons for its
application in a specific case is an abuse of discretion, but find the error harmless under
the circumstances.
       We review for abuse of discretion the trial court’s exercise of its broad powers to
maintain courtroom security. (People v. Hernandez (2011) 51 Cal.4th 733, 741
(Hernandez); People v. Stevens (2009) 47 Cal.4th 625, 632 (Stevens).) Some
extraordinary security practices – e.g. visible physical restraints, prison clothing – have
such an inordinate risk of infringing on a criminal defendant’s right to a fair trial that they
must be justified by a showing of manifest need sufficient to overcome the risk of
prejudice. (Stevens, at p. 632.) The presence of armed guards is not such a practice.
“[A] deputy’s presence at the witness stand during a defendant’s testimony is not
inherently prejudicial.” (Id. at p. 638.) “Unless they are present in unreasonable
numbers, [the presence of armed guards] need not be justified by the court or the
prosecutor.” (People v. Duran (1976) 16 Cal.3d 282, 291, fn. 8.) This is consistent with
Holbrook v. Flynn (1986) 475 U.S. 560, 568-569, in which the United States Supreme
Court held that the “conspicuous, or at least noticeable, deployment of security personnel
in a courtroom during trial” is not “the sort of inherently prejudicial practice that, like
shackling, should be permitted only where justified by an essential interest specific to
each trial.”
       In Stevens, the court held that, although not inherently prejudicial, the stationing of
an armed guard next to a testifying criminal defendant is not immune from the trial
court’s duty to “exercise its own discretion to determine whether a given security


                                               4
measure is appropriate on a case-by-case basis. [Citations.] . . . The trial court should
state its reasons for stationing a guard at or near the witness stand and explain on the
record why the need for this security measure outweighs potential prejudice to the
testifying defendant. In addition, although we impose no sua sponte duty for it to do so,
the court should consider, upon request, giving a cautionary instruction, either at the time
of the defendant’s testimony or with closing instructions, telling the jury to disregard
security measures related to the defendant’s custodial status. [Citation.]” (Stevens,
supra, 47 Cal.4th at p. 642.)
       In Hernandez, supra, 51 Cal.4th at page 736, our Supreme Court recently held that
it is an abuse of discretion to defer to a general policy of stationing a deputy at the
witness stand during a criminal defendant’s testimony without articulating a case-specific
reason why it is a necessary security measure. However, the Hernandez court found the
error harmless under People v. Watson (1956) 46 Cal.2d 818, reasoning that the
defendant wore street clothes, did not enter the court room through a different door and,
other than the deputy’s presence, the jury had little indication that defendant was in
protective custody. Additionally, nothing in the record in that case suggested that the
deputy’s demeanor was anything other than respectful and appropriate. (Hernandez, at
p. 746.)
       Here, the trial court and defense counsel engaged in the following colloquy after
defendant announced that he was going to testify:
       “THE COURT: . . . When there is somebody in custody, the bailiff stands with
       the defendant at the stand. Would you like a comment on that? Do you think it’s
       required? There’s a case . . . that discussed what we are supposed to do. I can
       look it up, but the bailiff will be standing there. [¶] [DEFENSE COUNSEL]: I
       understand. For purposes of the record we would object because it’s his testimony
       and it makes him appear scary. I will submit. [¶] THE COURT: Okay. I could
       tell them to ignore the bailiff but, again, that highlights the fact that there’s a
       bailiff standing there. [¶] [DEFENSE COUNSEL]: Whatever your practice is is
       fine with me. [¶] THE COURT: Any objection [to] my saying nothing? [¶]

                                               5
       [DEFENSE COUNSEL]: Am I objecting – [¶] THE COURT: Is there any
       objection to my saying nothing with respect to the bailiff, People? [¶] [THE
       PROSECUTOR]: Submitted.”
Immediately following this discussion, the defendant was brought to the stand outside the
presence of the jury. After the jury was re-seated and the prosecutor announced that the
People were resting their case, the defendant testified. There is no reason to doubt that
the trial court followed through with its stated intention to have the bailiff “stand with the
defendant” during his testimony.2
       From the exchange between the court and counsel, it appears that the trial court
had a general policy of having the bailiff stand next to a testifying criminal defendant.
Although not inherently prejudicial under Stevens, as the Hernandez court stated, it was
an abuse of discretion for the trial court to rely solely on such a policy without
articulating why such a security measure was necessary in this case. The trial court’s
solicitation of comments from counsel on the policy was not sufficient to satisfy the trial
court’s obligation to articulate case-specific reasons for following the general policy.
       Nevertheless, we find the error harmless under the Watson standard because it is
not reasonably probable that the defendant would have obtained a more favorable result
absent the error. The defendant was escorted to and from the witness stand outside the
presence of the jury; nothing suggests that he was not in street clothes. Further, nothing
in the record suggests the bailiff was anything other than respectful and appropriate. Nor
was the case close on the facts. Although unable to identify defendant from a
photographic lineup, at the preliminary hearing the victim said defendant resembled her
attacker, and she positively identified defendant at trial. DNA evidence corroborated the




2      The record does not indicate exactly where the bailiff was positioned during
defendant’s testimony and defendant does not contend the bailiff did not maintain a
respectful distance or that he behaved in a manner that distracted from, or cast doubt on
defendant’s testimony.


                                              6
victim’s identification. Under these circumstances, defendant has failed to establish
prejudice from the error.3

B.     The Trial Court Correctly Instructed on the Kidnapping Special Circumstance

       On count 1 (forcible oral copulation), defendant was charged with a kidnapping
“special” circumstance under the “One Strike” law which establishes increased
punishment for certain sex offenders. (See § 667.61, subd. (a), (c)(7) & (e)(1).)
Defendant challenges the following instruction given pursuant to CALCRIM No. 3179
regarding that special circumstance:
       “If you find the defendant guilty of the crime charged in Count 1 [forcible oral
       copulation], you must then decide whether, for each crime, the People have proved
       the additional allegation that the defendant kidnapped [the victim]. . . . [¶] To
       decide whether the defendant kidnapped [the victim], please refer to the separate
       instructions that I have given you on kidnapping for carjacking. 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.”
He contends the instruction was incorrect because it did not instruct that the kidnapping
“had to be committed for the purpose of committing the oral copulation and/or that there
had to be a nexus between the two crimes in that defendant committed the sex offense
during or in the commission of kidnapping.” That is not the law. A virtually identical




3      On appeal, defendant argues that the error violated his federal Constitutional right
to due process and a fair trial. But the objection that the presence of the bailiff would
make defendant “look scary” was not sufficient to assert a constitutional claim. As such,
defendant has waived his right to raise such a claim on appeal. (Cf. People v. Burgener
(2003) 29 Cal.4th 833, 869.) Even if cognizable, we would find the error harmless under
Chapman v. California (1967) 386 U.S. 18, 24.


                                             7
contention was recently rejected by the court in People v. Luna (2012) 209 Cal.App.4th
460 (Luna).4 We find the reasoning of that case persuasive and adopt it here.
       Section 667.61 “was enacted to ensure that serious sexual offenders receive long
prison sentences regardless whether they have any prior criminal convictions.
[Citation.]” (Luna, supra, 209 Cal.App.4th at p. 465.) Subdivisions (a) and (c)(7) of the
statute impose a 25-year-to-life sentence on any person convicted of forcible oral
copulation “under . . . two or more of the circumstances specified in subdivision (e) . . . .”
Relevant here is subdivision (e)(1), which identifies the following special circumstance:
“. . . the defendant kidnapped the victim of the present offense in violation of”
section 209.5 (kidnapping during commission of carjacking).5
       The defendant in Luna argued that imposition of the indeterminate term under
section 667.61, subdivision (e)(1) required the jury to find he kidnapped the victim with
the intent to rape her and that CALCRIM No. 3179 was inadequate because it did not
require the jury to make the specific intent finding. (Luna, supra, 209 Cal.App.4th at
p. 464.) The Luna court held that neither the plain language nor legislative history of
section 667.61, subdivision (e)(1) required that the kidnapping have been for the intent or
purpose of carrying out the sex offense. (Id. at p. 466.) First, the court reasoned that
other subparts of subdivision (e) expressly require that the defendant commit the present
offense “in the commission of” some other act or commit some other act “during the
commission of the present offense,” whereas subdivision (e)(1) has no such requirement.
“This difference in language demonstrates the Legislature knew how to require a
relationship or nexus between the sex offense and the circumstance identified in section

4       The defendant in Luna challenged a 15-year-to-life sentence imposed under
section 667.61, subdivision (b), whereas the defendant in this case challenges a 25-year-
to-life sentence imposed under subdivision (a) of the same statute. We find the Luna
analysis applies equally here.

5       Kidnapping was one of two circumstances used to trigger the 25-year-to-life
sentence set forth in section 667.61, subdivision (a). Defendant does not challenge the
true finding on the section 12022.3, subdivision (a) deadly weapon enhancement, which
was the second circumstance.

                                              8
667.61, subdivision (e) when it wanted to create one. If the Legislature had intended to
draft section 667.61(e)(1) to mean the defendant must have kidnapped the victim with the
intent to commit a sex offense against the victim, the Legislature could and would have
done so.” (Id. at p. 467.) Second, the court recounted the legislative history of
section 667.61, subdivision (e)(1) and found it supported its interpretation of the statute.
(Id. at pp. 468-471.) In particular, a version of section 667.61, subdivision (e)(1) which
required kidnapping with the intent of committing a sex crime never made it into the
enacted version of the statute. (Id. at p. 471.) The court in Luna concluded: “It is
reasonable to conclude the Legislature determined a defendant who kidnaps the victim,
an act that consistently places the victim in a position of elevated vulnerability, and
commits a sexual offense against the same victim, should meet the requirements of a
serious and dangerous sex offender under section 667.61. The defendant is a serious and
dangerous sex offender whose actions place the victim in a position of elevated
vulnerability. If the defendant targets the same victim for multiple dangerous and serious
felonies, heightened punishment at the time of sentencing comports with legislative
intent.” (Id. at p. 471.)
       We agree with the analysis of the Luna court. Nothing in the plain language of the
section 667.61, subdivision (e)(1) requires that the kidnapping had to be for the purpose
of committing the sex offense, in this case oral copulation; the legislative history and
purpose of the statue comports with that conclusion. Accordingly, the trial court’s
instructions were correct.

C.     The Sentence Imposed on the Kidnapping During a Carjacking Conviction Was
       Unauthorized

       Defendant contends and the People concede that the life with the possibility of
parole sentence imposed on count 4 was an unauthorized sentence. We agree.
       When only the minimum number of special circumstances required for the
enhanced punishment under section 667.61, subdivision (a) are pled and proved,
section 667.61, subdivision (f) requires sentence to be imposed only according to that


                                              9
statute to the exclusion of any other provision of law, unless another provision provides
for a greater punishment. Here, only the minimum two special circumstances for
imposition of the 25-year-to-life punishment – use of a deadly weapon and kidnapping –
were pled and proved. Therefore, defendant was required to be sentenced under
section 667.61, subdivision (a) only and could not also be sentenced for the kidnapping
for carjacking (count 4). (See People v. Rodriguez (2012) 207 Cal.App.4th 204, 215.)
       Defendant and the People disagree as to the proper remedy for this sentencing
error. Defendant argues the judgment on count 4 must be reversed and the matter
remanded to the trial court for resentencing. The People request that we correct the error.
We exercise our authority to modify the judgment by staying the sentence imposed on
count 4. (Cf. People v. Byrd (2011) 194 Cal.App.4th 88, 101-102.)

                                      DISPOSITION

       We modify the judgment by staying the sentence imposed on count 4 under
section 667.61, subdivision (f). In all other respects the judgment is affirmed. The
matter is remanded to the trial court with directions that the trial court prepare and
forward to the Department of Corrections and Rehabilitation a certified copy of an
amended abstract of judgment.




                                                  RUBIN, J.
WE CONCUR:



              BIGELOW, P. J.



              FLIER, J.



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