Filed 7/22/16 P. v. Jennings CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069659

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF1311017)

MAURICE CHARLES JENNINGS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County,

Jeffrey Prevost, Judge. Affirmed in part, reversed in part, and remanded.

         Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Lise S.

Jacobson, Deputy Attorneys General for Plaintiff and Respondent.
                                    INTRODUCTION

       A jury convicted Maurice Charles Jennings of three counts of forcible oral

copulation (Pen. Code,1 § 288a, subd. (c)(2); counts 1, 7, & 8), one count of forcible

sexual penetration (§ 289, subd. (a)(l)(A); count 2), one count of assault with the intent to

commit rape (§ 220, subd. (a)(1); count 3), two counts of kidnapping for robbery (§ 209,

subd. (b)(1); counts 4 & 5), and one count of kidnapping (§ 207, subd. (a); count 6), as a

lesser included offense of kidnapping for robbery. As to all counts, the jury found

Jennings personally used a firearm when committing the offenses (§§ 1192.7, subd.

(c)(8), 12022.53, subd. (b)) (firearm use enhancement). As to counts 4 through 8, the

jury found applicable the One Strike law (§ 667.61) burglary circumstance (§ 667.61,

subd. (e)(2)), and as to counts 1, 2, 3, 7 and 8, the jury found applicable the One Strike

law firearm use circumstance (§ 667.61, subd. (e)(4)).2 The court additionally found

Jennings had a prior serious felony conviction (§ 667, subd. (a)) and a prior strike

conviction (§ 667, subds. (b)-(i)). The court imposed both determinate and indeterminate

prison sentences, which we discuss in more detail in part IV.A.3, post.

       Jennings appeals, contending: (1) the court erred in admitting other crimes

evidence; (2) there was insufficient evidence to support his kidnapping and kidnapping



1      Further statutory references are also to the Penal Code unless otherwise stated.

2      Unless otherwise stated, our One Strike law references are to the version of the
law in effect at the time Jennings committed his crimes. (Former § 667.61, as amended
by Stats. 2006, ch. 337, § 33; Initiative (Prop. 83, § 12, as approved by voters, Gen. Elec.
(Nov. 7, 2006).)

                                              2
for robbery convictions; (3) the court erred in imposing One Strike sentences of 25 years

to life on counts 1 and 2 because there were no valid One Strike circumstances applicable

to these counts; (4) the court erred in imposing a One Strike sentence of 25 years to life,

rather than 15 years to life, on count 8 because there was only one valid One Strike

circumstance applicable to this count; (5) the One Strike circumstance findings for the

three kidnapping convictions should be stricken because the One Strike law does not

apply to these offenses; (6) the sentences for great bodily injury enhancements in counts

1, 2, 3, 7 and 8 should be stricken because the prosecution did not allege and the jury did

not find true any great bodily injury enhancements in this case; (7) he is entitled to an

additional day of presentence custody credit; and (8) the abstract of judgment and minute

order should be modified to correct a miscount in his aggregate sentence.

       We conclude Jennings's first two points lack merit. We conclude Jennings's third

and fourth points are partially meritorious as the court applied one invalid One Strike

circumstance for the sentences in counts 1, 2 and 8. The People concede the merits of

Jennings's remaining points.

       The People also raise some points of their own, specifically contending the court

made several other sentencing errors requiring correction, which we discuss in more

detail in part V, post. Jennings explicitly concedes some of these errors and implicitly

concedes others. In light of the errors, he requests we vacate his sentence and remand the

matter for resentencing.

       We agree the quantity, scope, and magnitude of the sentencing errors in this case

warrant a remand for resentencing. In all other respects, we affirm the judgment.

                                              3
                                     BACKGROUND

       Jennings entered a massage business operating as a brothel. A French door led

from the lobby to a common area in the back of the business. There were three massage

rooms accessible from the common area as well as a bathroom, an office, a breakroom

for the Latin masseuses (Latin breakroom), and a kitchen area leading to a breakroom for

Asian masseuses (Asian breakroom).

       Jennings entered one of the massage rooms, where victim 1 met him. Jennings

told victim 1 he wanted the "Latin girl," referring to victim 2. Victim 1 left and went to

the Asian breakroom. Victim 2 was with someone in an adjacent massage room.

       After waiting a bit, Jennings left the massage room and walked through the

common area into the Latin breakroom, where victim 2 kept her purse. Jennings then

went to the common area, spoke with victim 3, and returned to the massage room.

       Victim 3 told victim 1 Jennings had asked for victim 1 to return to the

massage room. When victim 1 did so, Jennings directed her to take off her clothes.

Victim 1 declined and told Jennings "to just get the massage." Jennings touched her

breast and she swatted his hand away, telling him she did not like him. He directed her to

sit on the table, which she did. He took a chrome gun out of his pants and set the trigger.

She thought she was going to die. He told her he would kill her because she was not

treating him the way he wanted to be treated.

       Scared, victim 1 begged Jennings, telling him she was wrong and sorry. He

pointed the gun at her head, had her kneel down, and directed her to take off her clothes,

which she did. While continually pointing the gun at her head, he unzipped his pants,

                                             4
took out his penis, and directed her to orally copulate him. She touched her mouth to his

penis for about a minute, then he directed her to lie down on the bed. Once she complied,

he touched her breast and digitally penetrated her vagina for about two to three minutes,

then directed her to get a condom. After telling him the condoms were in the kitchen

area, she dressed and left the massage room with him. She headed toward the French

door separating the common area from the lobby, intending to flee. However, he put his

hand on her back and brought her back into the common area near the office. She saw

victim 3 in the office and said "robber" to victim 3 in Korean.

       Jennings demanded money from victim 3 and he and victim 3 walked into the

office, where victim 3 gave him an envelope with the day's receipts. He and victim 3

returned to where victim 1 stood in the common area. Around this time, victim 2 entered

the common area. Jennings demanded victim 2's money, showed victim 2 the gun in his

pocket, and walked all three victims to the Latin breakroom. Once in the breakroom, he

pointed his gun at victim 2 and ordered her to give him her money. Victim 2 saw that the

money in her purse had already been taken, so she gave him the money she had tucked in

her bra.3

       Jennings then demanded victim 1's money. Since victim 1 kept her money in her

handbag, which was in the Asian breakroom, he walked the three victims from the Latin

breakroom, through the common area and the kitchen area, into the Asian breakroom.



3      Victim 2 later discovered her cell phone and car keys had also been taken from her
purse.

                                             5
Once there, victim 1 gave Jennings $700, then victim 3 told him to leave. He said he

would not leave because victim 1 was not treating him the way he wanted to be treated.

He was angry because victim 1 had tried to flee earlier and he threatened to kill her.

       With gun in hand, Jennings ordered the three victims to undress. Victims 1 and 2

undressed, but pleaded with him to leave victim 3 alone because of her age. He ordered

victim 3 to lie face down. With gun still in hand, he lowered his pants and ordered

victims 1 and 2 to kneel down and orally copulate him. While victim 1 did so, he placed

the gun on an armrest of a couch. He then grabbed victim 2 by the hair, put the gun on

her head and pulled her face toward his penis, causing her mouth to touch his penis.

       The oral copulation continued for about five minutes until the office phone rang.

Victim 2 convinced Jennings to let victim 3 answer the phone. Victim 3 went to the

office, grabbed the phone, and left the business. Jennings and victims 1 and 2 watched

victim 3 leave the business on a security monitor in the Asian breakroom. He said,

"shit," pulled up his pants and fled. The jury watched a security video recording of the

lobby, common area and exterior of the massage parlor at the time of the crimes.

       Police did not identify and arrest Jennings until several years after the incident.

As part of the investigation into the identity of the person seen in the security video

recording, the police released several still shots from the recording. One of Jennings's

extended family members saw the still shots on a news Web site and thought Jennings

resembled the robber. She provided the police with a personal video recording of

Jennings, which the jury watched. In the personal video recording, Jennings stated that,

in 2009, police had severely beaten, assaulted and tasered him, and had beaten and killed

                                              6
his brother in front of him. He stated he had recently seen "some photos of [himself]

being linked to rape." He stated he was incapable of committing such a crime and the

release of the photos was retaliation for a lawsuit he filed against the police department.

       Several years after the crimes, victim 1 identified Jennings as the perpetrator in a

photographic lineup. At trial, the extended family member testified Jennings resembled

the man in the security video recording, he had a similar gait, and he owned a similar

shirt. She also testified Jennings used to be of a similar weight, but he had lost a

significant amount of weight since 2008.

       A computer forensic examiner examined a cell phone taken from Jennings after

Jennings's arrest. The phone contained a recent photo of a chrome or silver-plated

handgun with a magazine.

                                       DISCUSSION

                                              I

                                             A

                                              1

       Over Jennings's objection, the court allowed the prosecutor to admit evidence of

two other robberies committed by Jennings. The first robbery occurred about nine years

before the crimes in this case. As to this robbery, the parties stipulated Jennings "was

previously convicted of … robbery, on [September 7, 1999]. When the police pulled

over [Jennings] that day, a gun was found in [Jennings's] vehicle along with three live

bullets on his person."



                                              7
       The second robbery occurred a few months after the crimes in this case. As to this

robbery, the owner of an acupuncture and massage business testified Jennings entered the

lobby of her business, went into her office, pulled out a gun, and pointed it at an

employee standing nearby. The employee covered her face with her hands and shook.

Jennings demanded money and the employee quickly pulled out money from her pants

pocket. Jennings then pointed the gun at the owner. The owner, who had been in the

Chinese army but was not familiar with American guns, wondered if the gun was real

because of its light color. She showed him her empty pockets and told him, "No money.

No money." Jennings saw her bag next to her and demanded money from her a second

time. The owner gave him her money. Jennings also removed a cell phone from her bag.

The owner asked him to give the phone back to her, but he threw it into another room and

then left. The jury watched a video recording of the robbery.

       The purpose of admitting evidence of the first robbery was to show Jennings's

intent to commit the crimes charged in this case, including the intent to use an operable

firearm. The purpose of admitting evidence of the second robbery was to show both

Jennings's intent to commit the crimes charged in this case and his identity.

                                              2

       After the court read the stipulation regarding the first robbery, the court informed

the jury the stipulation was admitted only for the purpose of determining the intent of the

perpetrator of the crimes in this case. Before the prosecutor introduced evidence of the

second robbery, the court instructed the jury with a tailored version of CALCRIM No.

375. The instruction informed the jury the prosecutor would be presenting evidence of

                                              8
another, uncharged robbery and the jury could only consider the evidence if the

prosecutor proved Jennings committed the uncharged offense by a preponderance of the

evidence. The instruction further informed the jury, "If you decide [Jennings] committed

the uncharged offense you may, but are not required to, consider that evidence for the

limited purpose of deciding whether or not: One, [Jennings] was the person who

committed the offense alleged in this case; or, two, [Jennings] acted with the intent to

commit robbery. In evaluating this evidence, consider the similarity or lack of similarity

between the uncharged offense and the charged offense. Do not consider this evidence

for any other purpose. Do not conclude from this evidence that [Jennings] has a bad

character or is disposed to commit crime. [¶] If you conclude that [Jennings] committed

the uncharged offense, that conclusion is only one factor to consider along with all of the

other evidence. It is not sufficient by itself to prove [Jennings] is guilty of any charge in

this case or that any allegation has been proved. The People must still prove each charge

and allegation beyond a reasonable doubt."

       The court gave two substantially similar instructions to the jury before

deliberations. One instruction related to the first robbery and indicated the jury could use

the evidence of it for the limited purpose of determining whether Jennings intended to

commit the crimes charged in this case. The other instruction related to the second

robbery and indicated the jury could only use the evidence of it for the limited purposes

of determining whether Jennings was the perpetrator in this case and whether he intended

to commit the crimes charged in this case.



                                              9
       The court also instructed the jury with CALCRIM No. 303. This instruction

informed the jury: "During the trial, certain evidence was admitted for a limited purpose.

You may consider that evidence only for that purpose and for no other."

                                              B

       Jennings contends the court abused its discretion and deprived him of a fair trial

by allowing admission of the other crimes evidence. He contends admission of the

evidence was not necessary to show either intent or identity because neither issue was

reasonably disputable. He further contends the evidence was more prejudicial than

probative under Evidence Code section 352.

       The Supreme Court has articulated the following principles to guide our review:

" ' "Evidence that a defendant has committed crimes other than those currently charged is

not admissible to prove that the defendant is a person of bad character or has a criminal

disposition; but evidence of uncharged crimes is admissible to prove, among other things,

the identity of the perpetrator of the charged crimes, the existence of a common design or

plan, or the intent with which the perpetrator acted in the commission of the charged

crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove

identity, common design or plan, or intent only if the charged and uncharged crimes are

sufficiently similar to support a rational inference of identity, common design or plan, or

intent. [Citation.]" [Citation.]

       " ' "The least degree of similarity (between the uncharged act and the charged

offense) is required in order to prove intent. [Citation.] ... In order to be admissible to

prove intent, the uncharged conduct must be sufficiently similar to support the inference

                                              10
that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]'

[Citation.]" [Citation.] "A greater degree of similarity is required in order to prove the

existence of a common design or plan. … [E]vidence of uncharged misconduct must

demonstrate 'not merely a similarity in the results, but such a concurrence of common

features that the various acts are naturally to be explained as caused by a general plan of

which they are individual manifestations.' " [Citation.] "The greatest degree of similarity

is required for evidence of uncharged misconduct to be relevant to prove identity. …

[T]he uncharged misconduct and the charged offense must share common features that

are sufficiently distinctive so as to support the inference that the same person committed

both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual

and distinctive as to be like a signature.' [Citation.]" [Citation.] " ' "The highly unusual

and distinctive nature of both the charged and [uncharged] offenses virtually eliminates

the possibility that anyone other than the defendant committed the charged offense."

[Citation.]' " [Citation.]

       " 'If evidence of prior conduct is sufficiently similar to the charged crimes to be

relevant to prove the defendant's intent, common plan, or identity, the trial court then

must consider whether the probative value of the evidence "is 'substantially outweighed

by the probability that its admission [would] ... create substantial danger of undue

prejudice, of confusing the issues, or of misleading the jury.' (Evid. Code, § 352.)"

[Citation.] "Rulings made under [Evidence Code sections 1101 and 352, … ] are

reviewed for an abuse of discretion. [Citation.]" [Citation.] "Under the abuse of

discretion standard, 'a trial court's ruling will not be disturbed, and reversal ... is not

                                               11
required, unless the trial court exercised its discretion in an arbitrary, capricious, or

patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (People v.

Rogers (2013) 57 Cal.4th 296, 325-326.)

       Here, the charges and allegations against Jennings required the prosecutor to

prove, among other facts, that Jennings intended to rob the three victims with an operable

firearm. Jennings disputed these facts, arguing the video recording of the incident was

consistent with a contract dispute over services paid for, but not received, and any gun he

may have had was fake. The other crimes evidence was probative of these disputed facts.

The evidence of the first robbery was probative of Jennings's intent to use an operable

firearm, and the evidence of both robberies was probative of Jennings's intent to commit

robbery.4 The second robbery was particularly probative of Jennings's intent to commit

robbery because it occurred close in time to the crimes charged in this case and was

markedly similar in that it involved the use of a firearm to rob a massage business's

female staff of their money. Although neither other crimes robberies involved a sexual

assault, the absence of an associated sexual assault did not preclude the other crimes

evidence from being probative. (See People v. Malone (1988) 47 Cal.3d 1, 21 [absence

of sexual assault does not necessarily prevent uncharged crime from being sufficiently

similar to show intent and identity].)




4     Given this conclusion, we need not determine whether the evidence of the second
robbery was probative of Jennings's identity.

                                              12
       In addition to being probative, the other crimes evidence was not unduly

prejudicial. Neither robbery was more serious or inflammatory than the crimes in this

case, neither was too remote in time to be probative, and neither was individually or

collectively cumulative. (See People v. Jones (2012) 54 Cal.4th 1, 51.) Accordingly, we

conclude Jennings has not established the court abused its discretion in admitting the

other crimes evidence or that admission of the evidence deprived him of a fair trial.

(People v. Fuiava (2012) 53 Cal.4th 622, 670.)

                                             II

       Jennings next contends we must reverse his convictions for kidnapping for

robbery in counts 4 (victim 2) and 5 (victim 1) because there was insufficient evidence to

support the asportation element for these offenses. We disagree.

       When considering a defendant's challenge to the sufficiency of the evidence, we

review the entire record most favorably to the judgment to determine whether the record

contains substantial evidence from which a rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt. We do not reweigh evidence or

reassess a witness's credibility and we presume the existence of every fact the trier of fact

could reasonably deduce from the evidence. (People v. Lindberg (2008) 45 Cal.4th 1,

27.)

       "Any person who kidnaps or carries away any individual to commit robbery" is

guilty of aggravated kidnapping. (§ 209, subd. (b)(1); People v. Martinez (1999) 20

Cal.4th 225, 232 (Martinez).) To satisfy the asportation element for aggravated

kidnapping, the movement of the victim must have: (1) been more than merely incidental

                                             13
to the underlying crime, and (2) increased the risk of physical or psychological harm to

the victim beyond that inherent in the underlying crime. (§ 209, subd. (b)(2); People v.

Vines (2011) 51 Cal.4th 830, 869-870 & fn. 20 (Vines); People v. Tuan Van Nguyen

(2000) 22 Cal.4th 872, 885-886; Martinez, supra, at p. 232 & fn. 4.) To determine

whether the movement was merely incidental to the underlying crime, the trier of fact

must consider the nature and scope of the movement, including the actual distance the

victim was moved as well as the environmental context in which the movement occurred.

(Vines, supra, at p. 870; Martinez, at p. 233; People v. Leavel (2012) 203 Cal.App.4th

823, 833 (Leavel).) No minimum distance is required as long as the movement is

substantial. (Vines, at p. 871, Martinez, at p. 233; Leavel, supra, at p. 833.) To

determine whether the movement increased the risk of harm to the victim, the trier of fact

must consider such factors as whether the movement decreased the likelihood of the

crime's detection, increased the inherent danger of a victim's foreseeable attempts to

escape, or enhanced the perpetrator's opportunity to commit additional crimes. (Vines, at

pp. 870-871; Martinez, at p. 233; Leavel, at pp. 833-834.)

       "The essence of aggravated kidnapping is the increase in the risk of harm to the

victim caused by the forced movement." (People v. Dominguez (2006) 39 Cal.4th 1141,

1152 (Dominguez).) Thus, both asportation requirements are necessarily intertwined and

determining whether they have been met requires a "multifaceted, qualitative evaluation"

of the totality of the circumstances, rather than "a simple quantitative assessment." (Ibid.;

accord, Vines, supra, 51 Cal.4th at p. 870, Martinez, supra, 20 Cal.4th at p. 233; Leavel,

supra, 203 Cal.App.4th at p. 833.) We must consider how all the attendant

                                             14
circumstances, including distance moved, relate to the ultimate question of increased risk

of harm. (Dominguez, supra, at p. 1152.) Consequently, a lengthier movement which

does not increase the victim's risk of harm may not satisfy the asportation element while a

shorter movement which does increase the victim's risk of harm may. (Ibid.)

       Here, the evidence showed Jennings moved victims 1 and 2 from a common area

to the Latin breakroom and then back through the common area and kitchen to the Asian

breakroom. While the common area was visible from the lobby, the breakrooms were not

visible from either the lobby, the common area, or from one another. Thus, the

movement of the victims to the breakrooms increased Jennings's opportunity to commit

additional crimes against them and decreased the likelihood of the crimes' detection.

(See People v. Simmons (2015) 233 Cal.App.4th 1458, 1472-1474.) Although the

movement's dangers need not materialize for the movement to have increased the victims'

risk of harm (Vines, supra, 51 Cal.4th at p. 870), the movement's dangers did materialize

in this case. Instead of leaving the business as soon as he obtained the victims' money,

Jennings exploited the Asian breakroom's secluded location and forced the victims at

gunpoint to orally copulate him. Under these circumstances, we cannot conclude "the

'scope and nature' of this movement was 'merely incidental' to the commission of the

robbery." (Id. at p. 871.) Rather, the movement served purposes squarely recognized as

supporting a finding the asportation element for aggravated kidnapping was met. (People

v. Corcoran (2006) 143 Cal.App.4th 272, 280.)




                                            15
                                              III

       Jennings similarly contends we must reverse his conviction for kidnapping in

count 6 (victim 3) because there was insufficient evidence to support the asportation

element for this offense. Again we disagree.

       "Every person who forcibly, or by any other means of instilling fear, steals or

takes, or holds, detains, or arrests any person in this state, and carries the person into

another country, state, or county, or into another part of the same county, is guilty of

kidnapping." (§ 207, subd. (a).) "To prove a defendant guilty of kidnapping, the

prosecution must establish 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. (§ 207, subd. (a).)" (People v. Burney

(2009) 47 Cal.4th 203, 232.) Determining whether the prosecution established the

second element requires consideration of the totality of the circumstances, including the

actual distance the victim is moved as well as whether the movement increased the risk of

harm above what existed before the movement, decreased the likelihood of detection,

increased the danger inherent in the victim's foreseeable attempts to escape, and increased

the perpetrator's opportunity to commit additional crimes. (Martinez, supra, 20 Cal.4th at

p. 237; People v. Bell (2009) 179 Cal.App.4th 428, 436.)

       Here, the evidence shows Jennings moved victim 3 from the common area to the

Latin breakroom and then back through the common area and kitchen to the Asian

breakroom. The movement was not merely incidental to the robbery of victim 3 because

                                              16
the robbery of victim 3 occurred before the movement. (See People v. Delacerda (2015)

236 Cal.App.4th 282, 291.) The movement increased victim 3's risk of harm because she

was moved from a visible area to a secluded area, making it less likely for Jennings's

additional crimes to be detected. (See id. at p. 295; People v. Arias (2011) 193

Cal.App.4th 1428, 1435.) "These factors support the asportation requirement for

kidnapping." (People v. Arias, supra, at p. 1435.)

                                               IV

                                               A

                                               1

       Part of Jennings's sentence fell within the purview of the One Strike law because

the jury found some One Strike circumstances applied in this case. The One Strike law

sets forth an alternative, harsher sentencing scheme for certain sex crimes. At the time of

the offenses in this case, the law provided for a sentence of 15 years to life for a

qualifying offense committed under one or more of the circumstances listed in section

667.61, subdivision (e). (§ 667.61, subd. (b), (e).) The law additionally provided for a

sentence of 25 years to life for a qualifying offense committed under two or more of the

circumstances listed in section 667.61, subdivision (e), or one or more of the

circumstances listed in section 667.61, subdivision (d). (§ 667.61, subds. (a), (d), (e).)

The law further provided the alternative penalties applied "only if the existence of any

circumstances specified in [section 667.61] subdivision (d) or (e) is alleged in the

accusatory pleading …, and is either admitted by the defendant in open court or found to

be true by the trier of fact." (§ 667.61, subd. (j).)

                                               17
                                             2

                                             a

       The pleadings in this case evolved considerably from the case's inception until its

submission to the jury. The initial pleading, the felony complaint, contained five counts:

three alleging forcible oral copulation, one alleging assault to commit rape, and one

alleging kidnapping for robbery. Each count alleged a firearm use enhancement and a

One Strike law burglary circumstance. Each count also included words alleging a One

Strike law firearm use circumstance, but cited to the code section for a One Strike law

great bodily injury circumstance. Two of the forcible oral copulation counts each alleged

One Strike law aggravated kidnapping and kidnapping circumstances. None of the

counts alleged a One Strike law multiple victim circumstance.

       The next pleading, the information, alleged eight counts: two counts of forcible

oral copulation, two counts of forcible penetration, one count of attempted rape, one

count of assault to commit rape, one count of kidnapping for robbery, and one count of

robbery. All but the robbery count alleged a firearm use enhancement. The two forcible

oral copulation counts and the two forcible penetration counts each alleged One Strike

law aggravated kidnapping, kidnapping, and burglary circumstances. These same counts

also each alleged a One Strike law great bodily injury circumstance and correctly cited to

the code section for this circumstance. None of the counts alleged One Strike law firearm

use or multiple victim circumstances.

       Just before the commencement of jury selection, the prosecution amended the

information by interlineation to change the robbery count to a kidnapping for robbery

                                            18
count. The amendment did not change any of the enhancement or One Strike

circumstance allegations.

       Immediately after presenting its case-in-chief and without objection from

Jennings, the prosecution filed the operative pleading in this case, the second amended

information. The second amended information alleged eight counts: three counts of

forcible oral copulation, three counts of kidnapping for robbery, one count of forcible

sexual penetration, and one count of assault with intent to commit rape. Each count

alleged a firearm use enhancement and a One Strike law burglary circumstance. All but

the kidnapping for robbery counts also alleged a One Strike law great bodily injury

circumstance, again citing to the correct code section for this circumstance. None of the

counts alleged a One Strike law firearm use circumstance; however, the last paragraph

under the count 8 heading alleged a One Strike law multiple victim circumstance

(§ 667.61, subd. (e)(4)).

                                             b

                                             i

       Before closing arguments, in response to Jennings's motion for entry of a

judgment of acquittal (§ 1118), the prosecution conceded there was insufficient evidence

to support the burglary circumstance allegations in counts 1 and 2. In the light of the

prosecution's concession, the court dismissed the burglary circumstance allegations for

these counts.




                                            19
                                              ii

       The court subsequently instructed the jury on the burglary circumstance allegation,

indicating the instruction applied to counts 4 through 8. The court did not indicate the

instruction applied to count 3, even though count 3 included a burglary circumstance

allegation. The court also instructed the jury on the multiple victim circumstance

allegation, indicating, without objection from Jennings, the instruction applied to counts

1, 2, 3, 7 and 8. The court did not instruct the jury on the great bodily injury

circumstance; however, without objection from Jennings, the court instructed the jury on

the firearm use circumstance, indicating the instruction applied to counts 1, 2, 3, 7 and 8.

                                              iii

       The jury received and returned verdicts finding the burglary circumstance

occurred during the commission of the offenses in counts 4, 5, 6, 7, and 8, but not during

the commission of the offense in counts 1 through 3. The court later struck the verdicts

as to counts 1 and 2 because of the previously entered judgment of acquittal.

       The jury also received and returned verdicts finding the firearm use circumstance

occurred during the commission of the crimes in counts 1, 2, 3, 7 and 8. The jury did not

receive or return any verdicts relating to the great bodily injury circumstance allegations

or the multiple victim circumstance allegation.

                                              iv

       Because of the absence of jury findings on the multiple victim circumstance

allegation, the court indicated it would likely strike the allegation at the sentencing



                                              20
hearing. However, the matter was not specifically discussed at the hearing and the court

proceeded to sentence Jennings as if the jury had made the requisite finding.

                                             3

       The probation officer's report prepared for the hearing recommended a sentence of

248 years to life in state prison; however, both the prosecution and the court expressed

the view Jennings should not receive the maximum possible sentence. After taking a

brief recess to "run some numbers," the court sentenced Jennings as follows:

       For count 1, a term of 25 years to life under the One Strike law plus consecutive

terms of 10 years for the firearm use enhancement and three years for a great bodily

injury enhancement;

       For count 2, a concurrent term of 25 years to life under the One Strike law plus a

concurrent three-year term for a great bodily injury enhancement and a stayed

consecutive 10-year term for the firearm use enhancement;

       For count 3, a concurrent four-year term, doubled to eight years for the prior strike

conviction, plus a concurrent three-year term for a great bodily injury enhancement and a

stayed consecutive 10-year term for the firearm use enhancement;5

       For count 4, a concurrent term of seven years to life plus a stayed consecutive 10-

year term for the firearm use enhancement;




5       Although the court originally imposed a concurrent sentence for this count, it later
stated it had imposed a consecutive sentence. We need not resolve the discrepancy
because we are remanding the matter for resentencing. (See part VI, post.)

                                             21
       For count 5, a concurrent term of seven years to life plus a stayed consecutive 10-

year term for the firearm use enhancement;

       For count 6, a consecutive five-year term, doubled to 10 years for the prior strike

conviction, plus a stayed consecutive 10-year term for the firearm use enhancement;

       For count 7, a concurrent term of 25 years to life under the One Strike law plus a

concurrent three-year term for a great bodily injury enhancement and a stayed

consecutive 10-year term for the firearm use enhancement; and

       For count 8, a consecutive term of 25 years to life under the One Strike law plus

stayed terms of 10 years for the firearm use enhancement and three years for a great

bodily injury enhancement. The court also imposed a consecutive five-year term for the

prior serious felony conviction.

                                             B

       The anomalies in the handling of the One Strike circumstance allegations have

prompted several sentencing-related issues. Starting with the easiest to resolve, Jennings

contends the One Strike circumstance findings attendant to his kidnapping and

aggravating kidnapping convictions in counts 4 through 6 must be stricken because the

One Strike law does not apply to these offenses. He is correct. (§ 667.61, subd. (c).)

The People properly concede the issue. The People also properly request we dismiss the

One Strike circumstance finding attendant to Jennings's assault with intent to commit

rape conviction in count 3 for the same reason.




                                             22
                                             C

       Next, while the second amended information alleged a great bodily injury

circumstance for each count, it did not separately allege any great bodily injury

enhancements under sections 12022.7, subdivision (a), and 12022.8. In addition, the

court did not instruct the jury on and the jury did not make findings as to any great bodily

injury circumstance or great bodily injury enhancement allegations. Nonetheless, as part

of the sentences for counts 1, 2, 3, 7 and 8, the court imposed three-year terms for great

bodily injury enhancements. Jennings contends, the People concede, and we agree these

three-year terms must be stricken because the prosecution did not plead and prove any

great bodily injury enhancements. (See People v. Mancebo (2002) 27 Cal.4th 735, 754

(Mancebo) [appellate court properly strikes sentencing enhancements not properly

pleaded or proven].)

                                             D

       Turning to more complex issues, the court's One Strike sentences for counts 1, 2

and 8 assume application of both the firearm use circumstance and the multiple victim

circumstance. Jennings contends we must reverse the One Strike sentences for counts 1

and 2 and reduce the One Strike sentence for count 8 because the prosecution did not

properly plead the firearm use circumstance and the prosecutor did not properly plead or

prove the multiple victim circumstance. We agree in part.

                                              1

       Regarding the firearm use circumstance, "the express pleading requirements of

section 667.61, subdivisions (f) and (i), read together, require that an information afford a

                                             23
One Strike defendant fair notice of the qualifying statutory circumstance or

circumstances that are being pled, proved, and invoked in support of One Strike

sentencing. Adequate notice can be conveyed by a reference to the description of the

qualifying circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with

a reference to section 667.61 or, more specifically, 667.61, subdivision (e), or by

reference to its specific numerical designation under subdivision (e), or some

combination thereof." (Mancebo, supra, 27 Cal.4th at pp. 753-754.) "[I]n addition to the

statutory requirements that [the qualifying circumstance or circumstances] be pleaded and

proven, a defendant has a cognizable due process right to fair notice of the specific

[circumstance] allegations that will be invoked to increase punishment for his crimes."

(Id. at p. 747.)

       Here, there is no question the prosecutor failed to properly plead the firearm use

circumstance. The allegations in the felony complaint were ambiguous because it

contained words alleging the firearm use circumstance, but it cited the code section for

the great bodily injury circumstance. The information and second amended information

remedied the ambiguity, but not in favor of alleging the firearm use circumstance.

Rather, these pleadings both contained words alleging the great bodily injury

circumstance and cited the corresponding code section for this circumstance.

       Nonetheless, we conclude the prosecution's failure to properly plead the firearm

use circumstance did not affect the court's One Strike sentences in this case. The

complaint, the information, and the second amended information all alleged One Strike

circumstances as well as firearm use enhancements. Collectively, the allegations

                                            24
provided Jennings notice the prosecutor was seeking to bring any potential sentence

within the purview of the One Strike law and to increase any potential sentence due to

Jennings's personal firearm use. Indeed, Jennings's firearm use was a key issue at trial.

(See part I, ante.) Jennings's actual appreciation of the prosecution's sentencing

objectives and his implicit consent to their eventual melding was evidenced by Jennings's

failure to object to the instructions, arguments, or verdicts on the firearm use

circumstance. Accordingly, Jennings forfeited any challenge to the court's application of

the firearm use circumstance in sentencing him. (See People v. Houston (2012) 54

Cal.4th 1186, 1229 [defendant forfeited claim of sentencing error based on the violation

of statutory pleading requirements where the defendant knew the sentencing

ramifications of a conviction before the jury received the case, the court properly

instructed the jury on the factors affecting sentencing, and the jury made express findings

on the facts affecting sentencing].)

                                              2

       Regarding the multiple victim circumstance, the parties do not dispute the second

amended information pleaded this circumstance. Rather, the parties dispute whether the

multiple victim circumstance allegation applied only to count 8, where it appears, or to

the other counts as well. Conflicting views on this point are emerging within the

appellate courts. One appellate court recently held "[t]he People must allege the specific

One Strike law circumstances it wishes to invoke as to each count it seeks to subject to

the One Strike law's heightened penalties." (People v. Perez (2015) 240 Cal.App.4th

1218, 1227 (Perez).) Another appellate court recently held the bright-line pleading rule

                                             25
established in Perez is overbroad, and it is sufficient for due process and statutory

purposes if the prosecutor corrects any One Strike circumstance pleading deficiencies at

the preliminary hearing and delivers a transcript of the preliminary hearing to the

defendant. (People v. Mariscal (2016) 247 Cal.App.4th 403, 415, petn. for review

pending, petn. filed June 21, 2016.)

       However, we need not address the conflict to resolve this appeal. Assuming,

without deciding, the prosecution properly pleaded the multiple victim circumstance in

this case, the court improperly applied the circumstance during sentencing because the

jury did not find the circumstance allegation to be true, as expressly required by section

667.61, subdivision (j). (See People v. Nilsson (2015) 242 Cal.App.4th 1, 15-17 [where a

statute authorizing a sentencing enhancement contains an unambiguous pleading and

proof requirement, a court may not impose the enhancement if the jury was not tasked

with determining and did not determine the truth of the enhancement allegation, even if

the evidence supports its truth].) The prosecution's failure to take the necessary steps to

obtain a jury verdict on the multiple victim circumstance constitutes a waiver of the

circumstance's application.6 (See People v. Salas (2001) 89 Cal.App.4th 1275, 1282-

1283 [prosecution waives application of sentence enhancement by failing to take steps at

trial to secure verdicts].) Therefore, the sentences for counts 1, 2 and 8 must be modified

to the extent they are based on the application of the multiple victim circumstance.


6      Given this conclusion, we need not address whether the court's application of the
multiple victim circumstance was harmless error. (Mancebo, supra, 27 Cal.4th at p. 749
[no need for a harmless error analysis where the waiver doctrine applies].)

                                             26
                                                 V

                                                 A

       Proper application of the One Strike law was not the only problematic aspect of

Jennings's sentence. Again beginning with the easiest issue to resolve, the court awarded

Jennings 457 days of presentence credit, consisting of 397 days of custody credit and 60

days of conduct credit. Jennings contends, the People concede, and we agree Jennings is

entitled to one additional day of presentence credit.

       A defendant sentenced to state prison is entitled to presentence custody credit

against his prison term for each day he spent in custody before sentencing. (§ 2900.5,

subd. (a).) In addition, at the time Jennings committed the offenses in this case, a

defendant could earn presentence conduct credit for work and good behavior at the rate

two days for every four days in custody. (People v. Chilelli (2014) 225 Cal.App.4th 581,

587; People v. Garcia (2012) 209 Cal.App.4th 530, 534; former § 4019, subds. (b), (c),

as amended by Stats. 1982, ch. 1234, § 7.) However, for a defendant like Jennings, who

is convicted of a violent felony, the amount of earnable presentence conduct credit is

limited to 15 percent of the amount of presentence custody credit. (§§ 667.5, subd. (c),

2933.1, subd. (a), (c).)

       Jennings was arrested on September 27, 2013, and sentenced on October 30, 2014,

which is 399 days. Consequently, the court should have awarded him 399 days of

presentence custody credit and 59 days of presentence conduct credit (15 percent of 399),

for a total of 458 days of presentence credit.



                                             27
                                            B

       Among its verdicts, the jury found firearm enhancement allegations true for each

count. The court imposed consecutive 10-year terms for the enhancement as to each

count, but stayed imposition of the sentence as to counts 2 through 8.

       The People contend and Jennings agrees the court erred in failing to stay the term

for the firearm use enhancement for count 1 because the firearm use circumstance was

necessary to the court's One Strike sentence. (See part IV.A.3 and D.1, ante.) If a One

Strike circumstance is necessary and used to impose a One Strike sentence, the same

circumstances cannot be used to impose punishment under another provision of the law.

(§ 667.61, subd. (f) ["If only the minimum number of circumstances … that are required

for [a One Strike sentence] to apply have been pled and proved, that circumstance or

those circumstances shall be used as the basis for imposing [the One Strike sentence],

rather than being used to impose the punishment authorized under any other provision of

law, unless another provision of law provides for a greater penalty or the punishment

under another provision of law can be imposed in addition to the punishment provided by

this section"].)

       The firearm use circumstance was also necessary to the court's One Strike

sentences for counts 7 and 8. (See part IV.A.3 and D.1, ante.) Therefore, the court

correctly stayed the terms for the firearm use enhancements for these counts. However,

as the One Strike law does not apply to counts 3 through 6 (see part IV.B, ante), the court

had no basis to stay the terms for the firearm use enhancements for these counts.

(§ 12022.53, subd. (b); People v. Oates (2004) 32 Cal.4th 1048, 1056.)

                                            28
                                             C

       Before sentencing Jennings, the court found true an allegation Jennings had a prior

strike conviction and declined Jennings's invitation to dismiss the finding under section

1385. Given the court's decision, the People contend, Jennings implicitly concedes, and

we agree the court erred by failing to double the minimum term for the indeterminate

sentences it imposed. Under sections 667, subdivision (e)(1), and 1170.12, subdivision

(c)(1), if the prosecution has pleaded and proved one prior strike conviction, " 'the

determinate term or minimum term for an indeterminate term shall be twice the term

otherwise provided as punishment for the current felony conviction." (People v. Acosta

(2002) 29 Cal.4th 105, 109.)

                                             D

       Before sentencing Jennings, the court further found true an allegation Jennings had

a prior serious felony conviction. The court only imposed one five-year term for this

enhancement finding. The People contend the court was required to impose a sentence

for this enhancement finding on each count with an indeterminate term. Jennings

implicitly concedes this point.

       Under the determinate sentencing law, a prior serious felony sentence

enhancement may only be imposed once as part of the aggregate sentence for multiple

determinate terms. (People v. Sasser (2015) 61 Cal.4th 1, 17.) This limitation does not

apply to indeterminate sentences. (People v. Williams (2004) 34 Cal.4th 397, 402.)

Accordingly, the court should have imposed one five-year prior serious felony conviction



                                             29
sentence enhancement as part of Jennings's aggregate determinate sentence as well as for

each count with an indeterminate term. (See id. at p. 404.)

                                             VI

       In his reply, Jennings requests we remand the matter for resentencing rather than

attempt to recalculate his sentence on appeal. We agree a remand for resentencing is

warranted given the quantity, scope and magnitude of the sentencing issues identified on

appeal; the existence of some discretionary sentence choices for the court; and the

prosecution's stated intent not to seek and the court's stated intent not to impose the

maximum possible sentence. (See People v. Navarro (2007) 40 Cal.4th 668, 681

[significant changed circumstances warrant remand for a resentencing to allow the trial

court to exercise its sentencing discretion in light of the changed circumstances].) Since

we are remanding the matter for resentencing, we need not address Jennings's contention

the court miscounted his aggregate sentence.

                                       DISPOSITION

       The sentence is vacated and the matter is remanded for resentencing in accordance

with this opinion. In particular, the sentence upon remand should reflect the following

enhancements and One Strike circumstances: counts 1 and 2firearm use enhancement

(stayed) and firearm use circumstance; counts 3 through 6firearm use enhancement;

and counts 7 and 8firearm use enhancement (stayed), burglary circumstance, and

firearm use circumstance. The sentence should also reflect one five-year prior serious

felony conviction enhancement for the combined counts with determinate terms and one


                                             30
five-year prior serious felony conviction sentence enhancement for each count with an

indeterminate term. Finally, unless the court chooses to exercise its discretion to dismiss

the prior strike conviction finding, the sentence for each count should reflect the

existence of the finding. Upon resentencing, the clerk of the superior court is directed to

prepare a new abstract of judgment and forward a certified copy to the Department of

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




                                                                       McCONNELL, P. J.

WE CONCUR:



                    HUFFMAN, J.


                        NARES, J.




                                             31
