Filed 3/3/16
                     CERTIFIED FOR PARTIAL PUBLICATION*

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                     DIVISION FIVE


THE PEOPLE,                                        B257829

        Plaintiff and Respondent,                  (Los Angeles County
                                                   Super. Ct. No. YA084177)
        v.

KEVIN ADAMS et al.

        Defendants and Appellants.



        APPEALS from judgments of the Superior Court of Los Angeles County, Alan B.
Honeycutt, Judge. Affirmed as modified and remanded with directions.
        Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant Devon Delshawn Moreland.
        David H. Goodwin, under appointment by the Court of Appeal, for Defendant and
Appellant Kevin Adams.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Jaime L.
Fuster, Deputy Attorneys General, for Plaintiff and Respondent.




*      Pursuant to California Rules of Court, rules 8.1100 and 8.1110, parts I, II,
III(C)(1)-(3) and IV are certified for publication.
                                   I. INTRODUCTION


       A jury convicted defendants, Davon Delshawn Moreland and Kevin Adams, of:
forcible rape in concert (Pen. Code1, § 264.1, subd. (a)); forcible oral copulation in
concert (former Pen. Code, § 288a, subd. (d)(1), Stats. 2010, ch. 219, § 8); aggravated
kidnapping (§ 209, subd. (b)(1)); assault by means of force likely to produce great bodily
injury (former § 245, subd. (a)(1), Stats. 2004, ch. 494, § 1); second degree robbery
(§ 211); and willful, deliberate, premeditated attempted murder (§§ 664, 187, subd. (a)).
With respect to the sex offenses, the jury found true section 667.61, subdivisions (a), (d)
and (e) allegations. The jury further found true multiple gang, great bodily injury and
firearm use enhancement allegations. (Former §§ 186.22, subd. (b)(1)(C), Stats. 2010,
ch. 256, § 1; 12022, subd. (a)(1), Stats. 2004, ch. 494, § 3; 12022.3, subd. (a), Stats. 2008,
ch. 599, § 5; 12022.5, subd. (a), Stats. 2004, ch. 494, § 4; 12022.7, subd. (a), Stats. 2002,
ch. 126, § 6; 12022.8, Stats. 2008, ch. 599, § 6; and 12022.53, subds. (b), (e), Stats. 2006,
ch. 901, § 11.1.) Mr. Moreland admitted he had sustained a prior serious and violent
felony robbery conviction within the meaning of sections 667, subdivision (e)(1) and
1170.12, subdivision (c)(1).
       In the published portion of this opinion, we modify defendants’ presentence
custody credits. Also, we hold that under section 667.61 as amended in 2006, defendants
were not entitled to presentence conduct credits. Finally, in the published portion of the
opinion, we hold that the indeterminate aggravated kidnapping sentences must be stayed.
(§ 209, subd. (d).) Resolution of the aggravated kidnapping sentence issue requires
discussion of the jury instructions. In the unpublished portion of the opinion, we issue
other orders concerning sex offense fines, penalties and surcharges as well as the
abstracts of judgment. We affirm the judgments in all other respects.




1      Further statutory references are to the Penal Code except where otherwise noted.

                                              2
                                  II. THE EVIDENCE


                               A. The Prosecution’s Case


                                     1. The crimes


      Defendants were cousins and fellow members of a violent street gang. May 2 was
the gang’s “birthday” or “gang day.” On May 2, 2011, Diane T. was working as a
prostitute. Diane and Geoffrey Odhiambo were sitting in his car in an alley. Defendants
pulled in behind and blocked Mr. Odhiambo’s car. Defendants were in a four-door white
car. Defendants approached Mr. Odhiambo’s car. Mr. Moreland pointed a black gun at
Mr. Odhiambo’s head. Mr. Moreland took Mr. Odhiambo’s car keys and money. Mr.
Adams asked Diane for money. He forcibly searched inside her pants and bra. Mr.
Adams grabbed Diane and dragged her to the white car. Mr. Adams raped Diane in the
backseat. Mr. Adams then moved to the driver’s seat. Over the course of an hour or
more, while Mr. Adams drove, Mr. Moreland repeatedly sexually and physically
assaulted Diane in the backseat. Mr. Moreland was armed with a gun during the assaults.
Mr. Moreland forced Diane several times to orally copulate him. He repeatedly raped
her. Mr. Moreland attempted to sodomize her. He repeatedly hit her on the head. Mr.
Moreland threatened her with the gun. He told Diane repeatedly, “Don’t look at me.”
The car stopped several times. Mr. Moreland purchased condoms. He obtained cash.
Mr. Adams told Diane to do what Mr. Moreland told her to do and she would not be hurt.
Mr. Moreland wanted Diane to help them rob her clients but she refused. At Mr.
Moreland’s instruction, Mr. Adams drove to a cul-de-sac and stopped.
      Mr. Moreland ordered Diane out of the car. He punched her in the face breaking
her jaw. Mr. Moreland told Diane to get on her knees. He ordered her to orally copulate
him. Diane refused. Mr. Moreland pointed the gun at Diane’s forehead and fired twice.
But the gun malfunctioned. Diane heard it click. Diane saw Mr. Moreland “messing
with the gun.” He was hitting it against his hand. Diane got up and started to run. Mr.

                                            3
Moreland ran toward the car. She heard him arguing with Mr. Adams. Mr. Adams said,
“Stop, bitch.” Diane stopped behind a truck. Mr. Adams pointed the gun at her. She
heard a click. Diane ran to a nearby house and summoned help. Defendants left the
scene.


                                    2. The investigation


         After law enforcement officers arrived at the cul-de-sac, Diane described her
assailants. Diane said one suspect was a 25 to 35 year old light skinned male Black,
approximately 6 feet tall with a muscular build. The second suspect was a 25 to 30 year
old dark skinned Black male, approximately 6 feet tall with a thin build. Mr. Moreland
testified at trial that in May 2011, he was 6 feet 3 to 4 inches tall and weighed 230
pounds. Mr. Moreland further testified Mr. Adams was 5 feet 11 inches to 6 feet tall.
Diane also worked with a forensic artist, Sandra Enslow, to create sketches of the
perpetrators. At trial, Diane testified, “[The sketch artist] drew them perfect.” The jury
was able to compare the sketches to defendants’ booking photographs as well as to how
they appeared in the courtroom. Upon our own review, it is apparent that the sketches
bear a striking resemblance to the defendants.
         On May 12, 2011, 10 days after Diane was assaulted, Mr. Adams was arrested for
possessing a black .22-caliber revolver. The weapon was fully loaded with .22-short
cartridges. The caliber designation for the firearm was .22-long. The revolver’s cylinder
was held in place by a metal screw instead of the usual pin. The metal screw impeded the
revolver’s firing pin, potentially causing it to malfunction. The gun discharged only once
in 6 test firings using .22-short-caliber ammunition. The gun discharged only 3 times in
6 test firings using .22-long caliber bullets. When the weapon failed to discharge, it made
a clicking sound. The parties subsequently stipulated, “[O]n June 24, 2011, in case
number BA385835, People v. Kevin Adams, a felony criminal case was filed alleging that
defendant Kevin Adams . . . was carrying a concealed firearm on his person, in violation
of Penal Code section 12025[, subdivision] (a)(2), and that on November 20, 2012,

                                              4
defendant Kevin Adams . . . pled no contest to that charge[.]” During the investigation
and at trial, both victims identified Mr. Adams’s gun as similar to the weapon used
against them.
       On May 15, 2012, law enforcement officers arranged a “bench operation.”
Defendants, who were both in custody, were seated together on a bench. They were
ostensibly waiting to be interviewed by detectives about another case. Their conversation
was recorded. An audiotape of the conversation was played at trial. The conversation
was as follows: “Adams: Yeah, at first I thought they was gonna bring up that little rape
charge . . . ad[d] charge on that rape . . . That’s what I thought they were gonna bring up.
[¶] Moreland: Yeah . . . [¶] Adams: But this shit . . . this the last shit on my mind
nigga . . . I don’t know nothing about this nigga. [¶] Moreland: Damn bro . . . [c]aught
the fuck up . . . [¶] Adams: And . . . [¶] Moreland: I never would have came to jail my
nigga. [¶] Adams: And look when they add charge me last time, . . . they did bring that
shit up . . . [¶] Moreland: Hmm? [¶] Adams: They did, they brought that shit up . . .
my nigga . . . with the nigga. They said the bitch don’t want to cooperate with the police
so he said . . . we can’t do no case . . . put nobody on it . . . because she don’t want to talk
to police, woo, woo, woo. . . . and I found out nigger that’s D Monk . . . that D Monk[’]s
hoe . . . . Nigga . . . [¶] Moreland: Yeah. [¶] Adams: I’m in the dorm with D Monk’s
brother . . . and he told me like yeah the little Mexican bitch got raped by two niggas,
woo woo. He said, he said that . . . [¶] . . . [¶] Adams: All right, he said that . . . she
said that the two niggas that raped her were from [defendants’ gang] . . . but we don’t
know what [sect] they from . . . we don’t know who they is . . . woo, woo, woo . . . but
she said the bitch aint going to court . . . won’t talk to police . . . . All right, so I was cool
about that you feel me . . . When I came out here that’s what I thought they was gonna
bring up . . .” And defendants had another conversation as follows: “Moreland: They
add charge you right here? For real? [¶] Adams: [Yes], that’s why I’m nervous. Yeah.
I ain’t gonna put that shit to happen . . . Remember that, that night [of the gang] function?
And (INAUDIBLE) left? [¶] Moreland: No, hell no. [¶] Adams: I hope it’s not that.”
[sect of the gang] they from . . . we don’t know who they is . . . woo, woo, woo

                                                5
(INAUDIBLE) but she said the bitch ain’t going to court (INAUDIBLE) won’t talk to
police . . . All right, so I was cool about that you feel me . . . When I came out here that’s
what I thought they was gonna bring up. [¶] Moreland: I go to court tomorrow.”
Further conversation ensued: “Moreland: They add charge you right here? For real? [¶]
Adams: . . . that’s why I’m nervous. Yeah. I ain’t gonna put that shit to happen . . .
Remember that, that night [the May 5 gang] function? And (INAUDIBLE) left? [¶]
Moreland: No, hell no. [¶] Adams: I hope it’s not that.”
       Detective Derek White testified concerning the foregoing conversations.
According to the detective, Mr. Adams was concerned he was going to be charged with a
new case, for rape. Mr. Adams talked about a Hispanic prostitute being raped. And how
she was not cooperating with the police. Mr. Adams was nervous about it. He thought
the rape case was the reason he had been brought in. Detective White summarized:
“They’re concerned about being add charged for a rape and talking about a [certain gang]
function, which is May 2nd. That caught my attention. And then the other part . . . about
a Hispanic girl being raped. It all came together that I believe they were talking about a
rape that occurred on May 2nd.”
       The victim, Diane, was missing for approximately 10 months. In late 2012,
however, detectives located her. On December 1, 2012, one year and seven months after
the assault, Detective White showed Diane two photographic lineups. Initially, Diane
identified Mr. Moreland as the driver. She told the detective, “He was the one that
initially raped me . . . .” But later she said she had the two men confused and she
identified Mr. Moreland as the person who repeatedly assaulted and tried to kill her. She
remembered Mr. Moreland. She told detectives it was him “a hundred percent.” She
said, “I know that face.” She then identified Mr. Adams as one of two men depicted in
the lineup who could “possibly [be] the driver,” but she was unsure.
       Surveillance video from a bakery near the cul-de-sac was introduced. The
videotape showed a white car passing in the direction of the cul-de-sac at the approximate
time of the crimes and, several minutes later, returning in the other direction. Mr.
Moreland’s girlfriend, Terica Fuller, owned a white, four-door Honda Civic that looked

                                              6
similar to the car depicted in the video. At times, Mr. Moreland used Ms. Fuller’s
Honda. Diane was shown a photograph of Ms. Fuller’s Honda. Diane believed it was the
car used by her assailants. In addition, Diane had told law enforcement officers the
dashboard in her assailants’ vehicle lit up. The dashboard of Ms. Fuller’s car had an
illuminated display.
        At the preliminary hearing and again at trial, Mr. Odhiambo identified Mr.
Moreland as the man who committed the robbery. At trial, Mr. Odhiambo stated
unequivocally that Mr. Moreland was that man. Mr. Odhiambo testified, “I know he’s
the one who pointed the gun.” Mr. Odhiambo was unable, however, to identify the
second man. Also, at both the preliminary hearing and at trial, Diane identified Mr.
Adams as the driver and Mr. Moreland as the other assailant.


                           3. The deoxyribonucleic acid evidence


        Senior criminalist Christopher Lee collected potential biological evidence from the
cul-de-sac including what looked like fresh spit, a piece of a condom wrapper and three
blood stains. Mr. Lee delivered the items to the laboratory where they would be
processed. At trial, Mr. Lee described the spit: “[It was] relatively large. It didn’t
appear dry . . . . It appeared relatively fresh.”
        Criminalist Ashley Platt initially screened the collected evidence for the potential
presence of deoxyribonucleic acid. She contemporaneously completed standard,
preprinted forms and documented the results of her tests. She forwarded evidence
containing potential biological material for deoxyribonucleic acid analysis. Ms. Platt did
not testify at trial.
        Consistent with protocol, criminalist Yukis Partos conducted a technical review of
Ms. Platt’s work. Ms. Partos reviewed the entire file including case notes and test results.
Ms. Partos testified at trial. She explained that the reason for the technical review was,
“[T]o ensure that all of us are following the policy and procedures of our laboratory, the
testing is done correctly using the correct control samples, the results are reliable,

                                               7
scientifically done, and to make sure that everything that had to be done is conducted
correctly and second analyst who is the technical reviewer are agreeing with the testing
done by the original analyst.” Ms. Partos testified Ms. Platt followed protocol and
performed appropriate tests in a proper manner.
       Criminalist Kirsten Fraser also testified at trial. Ms. Fraser analyzed the material
forwarded by Ms. Platt. Ms. Fraser generated deoxyribonucleic profiles. At the time she
generated the profiles, the only reference samples she had were from the victim. The
bloodstains all matched the victim. The possible saliva was from a single source, an
unknown male. The victim was a major contributor to the deoxyribonucleic acid on the
condom wrapper—1 in 16.2 trillion. There was a possible unknown male contributor as
well. Ms. Fraser uploaded the saliva and condom wrapper profiles to a national database.
She was notified of a match to Mr. Adams. Ms. Fraser subsequently received reference
samples from defendants. She generated deoxyribonucleic acid profiles for each of them.
Upon comparison, Ms. Fraser found the saliva matched Mr. Adams. Mr. Moreland was a
possible contributor to the deoxyribonucleic acid mixture found on the condom
wrapper—1 in 293 billion. As noted above, the victim was the major contributor to that
mix.


                                   B. The Defense Case


       Mr. Moreland testified in his own defense. He denied committing the crimes. He
testified that although he had joined the gang when he was 13, he was no longer a gang
member. Mr. Moreland testified that May 2 was a big day for a certain gang. Mr.
Moreland said, “[E]verybody from the gang goes to that one certain party on this one odd
day.” Further, he said, “It’s like a reunion.” But Mr. Moreland denied attending the May
2, 2011 gang function. He admitted he had previously been convicted of robbery in case
No. BA374588. He had entered a plea in that case on February 15, 2011. Mr. Moreland
told the jury: he was a 17-year-old senior in high school when the present crimes were
committed; he was playing football and had college scholarship offers; he had made a

                                             8
commitment to play football at Oregon State University; and he would not have
jeopardized his future by committing any crime.


                                   III. DISCUSSION


 [Parts III(A)-(B) are deleted from publication. See post at page 15 where publication is
                                       to resume.]


     A. Mr. Adams’s Appeal—The Admission of Deoxyribonucleic Acid Evidence


                                     1. Introduction


      As discussed above, Ms. Platt—who initially tested collected evidence for the
potential presence of deoxyribonucleic acid—did not testify at trial. Ms. Partos—who
reviewed Ms. Platt’s work—did testify at trial. Mr. Adams asserts allowing Ms. Partos to
testify concerning Ms. Platt’s preliminary tests violated the Sixth Amendment
confrontation clause.


                                      2. Forfeiture


      Mr. Adams did not raise this issue in the trial court. Defense counsel, Michael
Clark, did not object to Ms. Partos’s testimony and did not cross-examine her. On the
Monday following Ms. Partos’s Friday testimony, Mr. Clark raised a chain of custody
objection. Mr. Clark argued Ms. Partos’s testimony could not be offered in place of Ms.
Platt’s testimony to establish a chain of custody. Defendant has not raised any chain of
custody argument on appeal. Moreover, because he did not raise the present
confrontation clause issue in the trial court, Mr. Adams forfeited his argument. (People
v. Lucas (2014) 60 Cal.4th 153, 330, disapproved on another point in People v. Romero
and Self (2015) 62 Cal.4th 1, 53, fn. 19; People v. Redd (2010) 48 Cal.4th 691, 730.)

                                            9
                      3. There was no confrontation clause violation


       Even if Mr. Adams’s argument was preserved, no Sixth Amendment violation
occurred. Ms. Platt identified possible biological evidence and forwarded it to be
examined for deoxyribonucleic acid. Ms. Platt contemporaneously recorded her tests and
their results. Ms. Platt did not certify or attest to the contents of her report. And the
report’s primary purpose did not pertain to a criminal prosecution. Therefore, her report
lacked the critical components to be considered testimonial. (People v. Edwards (2013)
57 Cal.4th 658, 705; People v. Dungo (2012) 55 Cal.4th 608, 619; compare Bullcoming v.
New Mexico (2011) 564 U.S. __, __, __ [131 S.Ct. 2705, 2710, 2717]; Melendez-Diaz v.
Massachusetts (2009) 557 U.S. 305, 307-311.) Ms. Partos testified Ms. Platt followed
protocol and performed appropriate tests in a proper manner. The deoxyribonucleic acid
evidence connecting Mr. Adams to the present crimes was not introduced through Ms.
Partos. It was introduced through Ms. Fraser’s in-court testimony. Ms. Fraser was the
criminalist who independently analyzed the biological material. Each of the three
criminologists who considered the biological evidence had the same sole purpose—to
perform her task in accordance with mandated procedures. The technicians’ reports’
primary purpose was not to accuse. Deoxyribonucleic acid profiles are not inherently
inculpatory. They can be exculpatory. The criminalists performed the tests in
accordance with accepted procedures with no idea whether the results would exonerate or
inculpate any individual. In fact, Ms. Fraser completed her initial report before any
suspect was identified. Her report was generated not to obtain evidence against Mr.
Adams or any other individual, but to assist law enforcement to catch a dangerous
criminal who was still at large. Ms. Fraser had no way of knowing the deoxyribonucleic
profiles she produced would turn out to inculpate anyone whose profile was in a law
enforcement database. Given all of the foregoing considerations, allowing Ms. Partos to
testify as to Ms. Platt’s preliminary tests did not violate Mr. Adams’s Sixth Amendment
confrontation rights. (Williams v. Illinois (2012) 567 U.S. __, __, __ [132 S.Ct. 2221,
2228, 2243] [plur. opn. of Alito, J.]; People v. Lopez (2012) 55 Cal.4th 569, 581-585;

                                              10
People v. Dungo, supra, 55 Cal.4th at pp. 619-621; People v. Barba (2013) 215
Cal.App.4th 712, 740-743; People v. Holmes (2012) 212 Cal.App.4th 431, 436-439.)


                4. Any violation was harmless beyond a reasonable doubt


       Confrontation clause violations are subject to harmless error analysis under
Chapman v. California (1967) 386 U.S. 18, 24. (People v. Capistrano (2014) 59 Cal.4th
830, 873; People v. Livingston (2012) 53 Cal.4th 1145, 1159.) Any error in not requiring
Ms. Platt to testify was harmless beyond a reasonable doubt. Ms. Fraser testified based
on her own independent test results matching Mr. Adams’s deoxyribonucleic acid to the
fresh saliva found in the cul-de-sac. Ms. Fraser was subject to cross-examination.
(People v. Banks (2014) 59 Cal.4th 1113, 1165-1166, disapproved on another ground in
People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3 [any error harmless where criminalist
testified to her own independent conclusions as to deoxyribonucleic acid]; People v.
Edwards, supra, 57 Cal.4th at p. 707 [harmless error where pathologist reached
independent conclusion as to cause of death].) The following constituted abundant
evidence of guilt: Ms. Fraser’s testimony concerning the deoxyribonucleic acid match—
the presence of Mr. Adams’s spit in the cul-de-sac; Diane’s identification of Mr. Adams;
Mr. Adams’s possession of the uniquely defective gun used to commit the crimes; and
Mr. Adams’s recorded incriminating conversation with Mr. Moreland. (People v.
Capistrano, supra, 59 Cal.4th at p. 873; People v. Harris (2013) 57 Cal.4th 804, 840.)
The inability to cross-examine Ms. Platt did not affect the trial’s outcome as to Mr.
Adams.




                                            11
                                 B. Mr. Moreland’s Appeal


                                  1. Consolidated charges


       The trial court consolidated the present charges against Mr. Moreland (counts 2
through 7) with forcible rape charges involving a second alleged victim, Eboni C.
(§ 954.) The forcible rape of Eboni C. occurred on a different occasion (count 1). The
trial court also ruled, initially, that the Eboni C. evidence was admissible as evidence of
Mr. Moreland’s propensity to commit sexual assaults under Evidence Code section 1108,
subdivision (a).
       Eboni C. testified as follows. She was related to Mr. Moreland by marriage. Mr.
Moreland was the cousin of the niece of Eboni C. Eboni C. was at the niece’s
grandmother’s house on April 21, 2012, less than a year after Diane was assaulted. Mr.
Moreland also lived in the home. Eboni C. was sitting on Mr. Moreland’s bed when he
walked into his bedroom. Mr. Moreland assaulted Eboni C. He choked her, bit her on
the neck and raped her. Eboni C. felt pain and bled from her vagina. A sexual assault
nurse examined Eboni C. The sexual assault nurse made physical findings consistent
with Eboni C.’s account. Forensic evidence was also introduced connecting Mr.
Moreland to the alleged rape.
       After Eboni C. testified at trial, however, the forcible rape charges in count 1 were
dismissed. The trial court instructed the jury to disregard the testimony of Eboni C. and
all of the evidence relevant to that charge. The trial court further instructed the jury not
to speculate as to why the charges were no longer before them. The instruction was as
follows: “Count 1 as it relates to Eboni C., that count is no longer before you. You are
not going to be called upon to make any decision in regard to that count. You’re not to
speculate as to why that charge is no longer before you. All of the previous testimony
that was introduced during the trial as it related to count 1, that testimony will be stricken.
You are not to consider that testimony for any purpose.”



                                              12
       We need not consider whether the trial court abused its discretion when it
consolidated the two cases or when it ruled the evidence as to each was cross-admissible.
(§ 954; Evid. Code, § 1108, subd. (a).) This is because, as discussed above, the trial court
dismissed count 1 and directed the jury not to consider the Eboni C. evidence for any
purpose. The dispositive question is whether, despite the trial court’s instruction to the
jury, the Eboni C. evidence rendered Mr. Moreland’s trial fundamentally unfair. (People
v. Merriman (2014) 60 Cal.4th 1, 46; People v. Thomas (2012) 53 Cal.4th 771, 800-801.)
The burden is on the defendant to demonstrate a due process denial. (People v. Soper
(2009) 45 Cal.4th 759, 783; People v. Johnson (1988) 47 Cal.3d 576, 591.) The
judgment will be reversed on this ground only if it is reasonably probable the jury’s
verdict was tainted by the Eboni C. evidence. (People v. Merriman, supra, 60 Cal.4th at
p. 49; People v. Bean (1988) 46 Cal.3d 919, 940.) Relevant considerations include
whether: the evidence as to each victim was relatively straightforward and distinct; the
evidence as to each charge was independently ample to support the defendant’s
conviction; the facts as to one victim as compared to the other were likely to unduly
inflame the jury; or one case was significantly weaker than the other. (People v. Thomas,
supra, 53 Cal.4th at pp. 798-799; People v. Soper, supra, 45 Cal.4th at p. 784.)
       Here, the evidence in each of the two cases was straightforward and distinct. The
evidence in each case was independently sufficient to support a conviction without regard
to the other. The present case was not significantly weaker than the evidence as to Eboni
C. The facts as to Eboni C. as compared to Diane were not likely to unduly inflame the
jury. Eboni C. testified she was raped once by Mr. Moreland, who was known to her.
The crimes committed against Diane were vicious and protracted and involved an attempt
to murder her. Moreover, there was abundant evidence connecting Mr. Moreland to the
crimes against Diane. Both Mr. Odhiambo and Diane positively identified Mr. Moreland
on repeated occasions. Mr. Odhiambo was certain Mr. Moreland was the robber. Mr.
Odhiambo testified, “I know he’s the one who pointed the gun.” Diane told Detective
White she was “a hundred percent” sure Mr. Moreland was the man who assaulted and
tried to murder her. She said, “I know that face.” Mr. Moreland made incriminatory

                                             13
statements in the recorded conversation with Mr. Adams. Mr. Adams was arrested in
possession of the gun used to perpetrate the crimes. Mr. Moreland’s girlfriend owned the
car defendants used. Further, deoxyribonucleic acid consistent with Mr. Moreland’s was
found on the condom wrapper in the cul-de-sac. Additionally, as noted above, the trial
court instructed the jury not to consider any of the evidence as to count 1. Prior to
closing arguments, the trial court repeated that instruction. Furthermore, the trial court
instructed the jury on the presumption of innocence, the elements of each crime, the
requisite burden of proof, and the need to consider each charge separately. We presume
the jury understood and followed those instructions. (People v. Merriman, supra, 60
Cal.4th at pp. 48-49; People v. Pearson (2013) 56 Cal.4th 393, 477.) Those instructions
mitigated any prejudicial spillover risk. (People v. Merriman, supra, 60 Cal.4th at pp.
48-49; People v. Thomas, supra, 53 Cal.4th at p. 801; People v. Soper, supra, 45 Cal.4th
at p. 784.) Mr. Moreland has not met his burden to show the Eboni C. evidence had a
spillover effect that persuaded the jury to convict him of the charged crimes against
Diane.


                              2. Cruel and unusual punishment


         After considering Mr. Moreland’s youth at the time of the crimes, 17 years of age,
and his personal background (Graham v. Florida (2010) 560 U.S. 48, 74-75; People v.
Caballero (2012) 55 Cal.4th 262, 267-269), the trial court set a minimum parole
eligibility term of 35 years. Mr. Moreland argues that sentence is cruel and unusual. He
does not address the relevant circumstances discussed in Caballero. Instead, he asserts
his sentence is cruel and unusual because his minimum parole eligibility is 10 years
longer than the 25 years for youth offenders under section 3051. Mr. Moreland forfeited
this argument by failing to raise it in the trial court. (People v. Speight (2014) 227
Cal.App.4th 1229, 1247-1248; People v. Em (2009) 171 Cal.App.4th 964, 971, fn. 5;
People v. Norman (2003) 109 Cal.App.4th 221, 229.) Even if the issue were properly
before us, we would not conclude Mr. Moreland’s sentence is cruel or unusual. First,

                                             14
because he was sentenced under sections 667, subdivisions (b) to (i), 667.61 and 1170.12,
Mr. Moreland is not entitled to the benefit of section 3051. (§ 3051, subd. (h).) Second,
Mr. Moreland had a prior serious and violent felony conviction. Third, he personally
committed deliberate, brutal and vicious crimes. Mr. Moreland will become eligible for
parole approximately in his early 50s. Under these circumstances, a 35-year minimum
parole eligibility term is not cruel or unusual.


                           [Part III (C)(1)-(3) is to be published.]


                                 C. Other Sentencing Issues


                               1. Presentence custody credit


       The trial court awarded Mr. Adams 562 days of presentence custody credit.
However, the parties agree that Mr. Adams was in custody for conduct attributable to the
present case from January 2, 2013, to July 18, 2014, a period of 563 days. A defendant is
entitled to credit for all days in presentence custody including the day of arrest and the
day of sentencing. (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48; People v.
Morgain (2009) 177 Cal.App.4th 454, 469.) Mr. Adams’s judgment must be modified
and his abstract of judgment corrected to reflect 563 days of presentence custody credit.
       The trial court awarded Mr. Moreland 603 days of presentence custody credit.
However, according to the record before us, Mr. Moreland was arrested on December 12,
2012. He was sentenced on August 14, 2014. Therefore he was in presentence custody
for 611 days. (People v. Rajanayagam, supra, 211 Cal.App.4th at p. 48; People v.
Morgain, supra, 177 Cal.App.4th at p. 469.) Mr. Moreland’s judgment must be modified
and his abstract of judgment corrected to reflect 611 days of presentence custody credit.




                                              15
                               2. Presentence conduct credit


       Because they were convicted of violent felonies as defined in section 667.5,
subdivision (c), the trial court limited defendants’ presentence conduct credit to 15
percent under section 2933.1, subdivision (c). We asked the parties to brief the question
whether the 2006 amendment to section 667.61, subdivision (j), eliminated defendants’
eligibility for conduct credit. (Stats. 2006, ch. 337, § 33, p. 2641.) We hold as a matter
of statutory interpretation that it did. The parties agree.
       Our review is governed by well established rules of statutory construction. Our
Supreme Court examined these rules in Even Zohar Construction & Remodeling, Inc. v.
Bellaire Townhouses, LLC (2015) 61 Cal.4th at 830, 837-838: “‘Our fundamental task in
construing’ . . . any legislative enactment, ‘is to ascertain the intent of the lawmakers so
as to effectuate the purpose of the statute.’ (Day v. City of Fontana (2001) 25 Cal.4th
268, 272.) We begin as always with the statute’s actual words, the ‘most reliable
indicator’ of legislative intent, ‘assigning them their usual and ordinary meanings, and
construing them in context. If the words themselves are not ambiguous, we presume the
Legislature meant what it said, and the statute’s plain meaning governs. On the other
hand, if the language allows more than one reasonable construction, we may look to such
aids as the legislative history of the measure and maxims of statutory construction. In
cases of uncertain meaning, we may also consider the consequences of a particular
interpretation, including its impact on public policy.’ (Wells v. One2One Learning
Foundation (2006) 39 Cal.4th 1164, 1190.)” (Accord, People v. Johnson (2015) 61
Cal.4th 674, 682.)
       As enacted in 1994, section 667.61, subdivision (j) provided: “Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 [Credit on Term of
Imprisonment] shall apply to reduce the minimum term of 25 years in the state prison
imposed pursuant to subdivision (a) or 15 years in the state prison imposed pursuant to
subdivision (b). However, in no case shall the minimum term of 25 or 15 years be
reduced by more than 15 percent for credits granted pursuant to Section 2933 [prison

                                              16
conduct credit], 4019 [presentence custody conduct credit], or any other law providing
for conduct credit reduction. In no case shall any person who is punished under this
section be released on parole prior to serving at least 85 percent of the minimum term of
25 or 15 years in the state prison.” (Stats. 1994 (1993-1994 1st Ex. Sess.) ch. 14, § 1, p.
8572, italics added.) Section 667.61, subdivision (j) by its terms, specifically its express
reference to section 4019, limited to 15 percent the presentence conduct credit available
to a defendant sentenced under section 667.61.
       Section 667.61 was amended in 2006—prior to the present crimes—to eliminate
the existing section 667.61, subdivision (j) and any reference to presentence conduct
credits. (Stats. 2006, ch. 337, § 33, p. 2641.) It is uncertain on its face whether the
amendment was intended to eliminate presentence conduct credit for defendants
sentenced under section 667.61, or to authorize full conduct credit under section 4019.
We turn, therefore, to the legislative history. Committee reports evidence the
Legislature’s intent to eliminate conduct credit for defendants sentenced under section
667.61, the so-called “One-Strike Law.” The Senate Committee on Public Safety’s
analysis of Senate Bill No. 1128 unambiguously states: “Elimination of Sentencing
Credits for One-Strike Inmates [¶] Existing law provides that a defendant sentenced to a
term of imprisonment of either 15 years to life or 25 years to life under the provisions of
the ‘one-strike’ sentencing scheme shall not have his or her sentence reduced by more
than 15% by good-time/work-time credits. (Penal Code 667.61, subd. (j).) [¶] This bill
eliminates conduct/work credits for inmates sentenced under the one-strike law.” (Sen.
Com. on Public Safety, Analysis of Sen. Bill No. 1128 (as amended March 7, 2006) p. N;
accord, id. at p. W [“This bill eliminates sentencing credits that under existing law can
reduce a defendant’s minimum term by up to 15%”]; Sen. Rules Com., Off. of Senate
Floor Analyses, 3d Reading Analysis of Sen. Bill No. 1128 (as amended May 26, 2006)
pp. 8-9 [Sen. Bill No. 1128 eliminates eligibility “for credit to reduce the minimum term
imposed”]; Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1128
(as amended May 30, 2006) p. 9 [same].) In Couzens and Bigelow, Sex Crimes:
California Law and Procedure (The Rutter Group, 2015) section 13:15, page 13-78, the

                                             17
authors conclude: “Section[] . . . 667.61 (One Strike law) . . . [was] amended in 2006 to
eliminate the provision that allowed such crimes to accrue 15 % conduct credits, whether
before or after sentencing[.] Now there are no conduct credits allowed against the
minimum term.” We hold, therefore, that defendants given indeterminate terms under
section 667.61 are not entitled to any presentence conduct credit. The present judgments
must be modified and the abstracts of judgment amended to so reflect as to both
defendants.


    3. Defendants’ count 4 sentences for kidnapping to commit rape or oral copulation


                 a. the issues arising from the count 2, 3 and 4 sentences


       Section 667.61 subdivision (a) provides that an accused under specified
circumstances can be subject to an indeterminate sentence of 25 years to life.2 (See
People v. Carbajal (2013) 56 Cal.4th 521, 534; People v. Anderson (2009) 47 Cal.4th 92,
102.) Section 667.61, subdivision (c) identifies the offenses which can result in an
indeterminate term if a specified qualifying circumstance is present. Two of the offenses
which can result in an indeterminate term when accompanied by a qualifying
circumstance are present in this case: rape and oral copulation in concert. (§§ 667.61,
subds. (c)(3) and (7).) The qualifying circumstances are found in section 667.61,
subdivisions (d) and (e). One of the qualifying circumstances which can result in an
indeterminate 25-years-to-life sentence is specified in section 667.61, subdivision (d)(2)
which states, “The defendant kidnapped the victim of the present offense and the
movement of the victim substantially increased the risk of harm to the victim over and



2      Section 667.61, subdivision (a) states, “Except as provided in subdivision (j), (l),
or (m), any person who is convicted of an offense specified in subdivision (c) under one
or more of the circumstances specified in subdivision (d) or under two or more of the
circumstances specified in subdivision (e) shall be punished by imprisonment in the state
prison for 25 years to life.”

                                            18
above that level of risk necessarily inherent in the underlying offense in subdivision (c).”
(See People v. Byrd (2011) 194 Cal.App.4th 88, 100-101; People v. Jones (1997) 58
Cal.App.4th 693, 712-716.) In our case, the jury convicted defendant of rape and forcible
oral copulation in concert and found the section 667.61, subdivision (d)(2) kidnapping
qualifying circumstance allegation true. Both defendants were sentenced on count 4 to
indeterminate life terms for kidnapping to commit rape and oral copulation in violation of
section 209, subdivision (b). The count 4 indeterminate sentences carry specified
minimum parole eligibility dates.
       Ultimately, what we will decide is whether defendants may be punished under
section 209, subdivision (b). As we shall explain in greater detail, section 209,
subdivision (d) prohibits punishment under sections 667.61 and 209, subdivision (b) for
the same act. Before we reach this conclusion though, we must resolve a preliminary
jury instruction issue. The parties agree there is no issue concerning the adequacy of the
charging documents.


        b. the jury instruction conference and instructions as to counts 2, 3 and 4


       On May 12, 2014, after the conclusion of testimony, the trial court indicated that it
would finalize the instructions on the next day. On May 13, 2014, after all of the
testimony was completed the day before, the trial court discussed jury instructions with
all counsel outside the jurors’ presence. The trial court began its review of the
instructions that would be given: “We are going to review the instructions. If you have
any objection, comments, concerns, please state them. I am reading the [CALCRIM]
number.” The trial court expressly stated it would give the CALCRIM No. 3179
instruction which directs the jury to decide whether the section 667.61, subdivision (d)(2)
kidnapping qualifying circumstance was true. Neither counsel for defendants objected to
the instruction. After the trial court recited all of the CALCRIM instructions it intended
to read, the trial court addressed all three counsel. The trial court’s inquiries and the three
lawyers’ responses are as follows: “[The Court:] I will read the instructions in the order

                                              19
in which I have indicated, and then we will continue with the reading [of] the instructions
and/or the final arguments this afternoon. [¶] Anything else we need to take up at this
time, Mr. DeBlanc? [¶] Mr. DeBlanc: Nothing else, your honor. [¶] The Court: Mr.
Clark, anything further at this time? [¶] Mr. Clark: No. [¶] The Court: Ms. Hicks? [¶]
Ms. Hicks: Your Honor, I am looking up that 12022(a)(1) because I just realized that one
is not included in here, but if we need to, I will let the court know.” As can be noted,
neither defense attorney interjected an objection to the CALCRIM No. 3179 instruction
concerning the section 667.61, subdivision (d)(2) kidnapping qualifying circumstance
allegation.
       The jury was instructed as to the elements of rape (count 2) and forcible oral
copulation (count 3) in concert pursuant to CALCRIM Nos. 1000, 1001, 1015 and 1016.
In addition, the jurors were instructed concerning the section 667.61, subdivision (d)(2)
kidnapping qualifying circumstance in compliance with CALCRIM No. 3179: “If you
find the defendant guilty of the crimes charged in Counts 2 and/or 3, you must then
decide whether, for each crime, the People have proved the additional allegation that the
defendant kidnapped Diane []. You must decide whether the People have proved this
allegation for each crime and return a separate finding for each crime. [¶] To decide
whether the defendant kidnapped Diane [] please refer to the separate instructions that I
have given you on kidnapping. 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.”
       Two sets of CALCRIM instructions were given concerning two forms of
kidnapping. The jury was instructed pursuant to CALCRIM No. 1203 concerning
kidnapping to commit rape or another sex offense. This instruction related directly to the
charge in count 4. In the margin, we have reproduced the instructions given concerning




                                             20
the asportation element of kidnapping to commit rape or another sex offense.3 In
addition, the jurors were instructed pursuant to CALCRIM No. 1215 as to the elements of
simple kidnapping. The simple kidnapping instructions related to two issues. The jury
was instructed that simple kidnapping was a lesser included offense of kidnapping to
commit rape or oral copulation. Also, while explaining the kidnapping qualifying
circumstance pursuant to CALCRIM No. 3179, the jurors were directed to the kidnapping
instructions. The simple kidnapping instructions were clearly delineated and, as noted,
referred to by the trial court when instructing concerning kidnapping qualifying
circumstance pursuant to CALCRIM No. 3179.
      The instruction on the asportation element of a simple kidnapping was as follows:
“To prove Kidnapping, the People must prove 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; [¶] AND [¶] 4. The defendant did not actually and reasonably believe that
the other person consented to the movement. [¶] . . . [¶] Substantial distance means

3       The jury was instructed as follows concerning the asportation element of the
charged offense in count 4, kidnapping to commit rape or forcible oral copulation: “The
defendant is charged in Count 4 with kidnapping for the purpose of rape or oral
copulation in violation of Penal Code section 209(b). [¶] To prove that the defendant is
guilty of this crime, the People must prove that: [¶] 1. The defendant intended to
commit rape or oral copulation on Diane []; [¶] 2. Acting with that intent, the defendant
took, held, or detained another person by using force or by instilling a reasonable fear;
[¶] 3. Using that force or fear, the defendant moved the other person or made the other
person move a substantial distance; [¶] 4. The other person was moved or made to
move the distance beyond that merely incidental to the commission of a rape or oral
copulation; [¶] 5. When that movement began, the defendant already intended to
commit rape or oral copulation; [¶] AND [¶] 6. The other person did not consent to the
movement. [¶] AND [¶] 7. The defendant did not actually and reasonably believe that
the other person consented to the movement. [¶] As used here, substantial distance
means more than a slight or trivial distance. The movement must have increased the risk
of physical or psychological harm to that person beyond that necessarily present in the
rape or oral copulation. In deciding whether the movement was sufficient, consider all
the circumstances relating to the movement.”

                                            21
more than a slight or trivial distance. In deciding whether the distance was substantial,
you must consider all the circumstances relating to the movement. Thus, in addition to
considering the actual distance moved, you may also consider other factors such as
whether the distance the other person was moved was beyond that merely incidental to
the commission of rape and or oral copulation, whether the movement increased the risk
of physical or psychological harm, increased the danger of a foreseeable escape attempt,
or gave the attacker a greater opportunity to commit additional crimes, or decreased the
likelihood of detection.” (CALCRIM No. 1215.) As to both the kidnapping to commit
rape or oral copulation and the simple kidnapping issues, the jurors were fully instructed
concerning the consent element of those two crimes. (CALCRIM Nos. 1203, 1215.)
There is no issue concerning consent instructions in this case.


                   c. the prosecutor’s and defense attorneys’ arguments


       In her opening summation, the deputy district attorney argued to the jurors they
should find the section 667.61, subdivisions (a) and (d)(2) kidnapping qualifying
circumstance allegation true. The prosecutor argued as to Mr. Moreland in connection
with the special allegation appearing in the verdict form: “Kidnap. There’s an allegation,
kidnapped the victim of the present offense. Right? Was there a kidnap that happened in
the commission of the rape sometime during that time while they had control of her?
Here’s the thing about the kidnap: The kidnap continues. [It’s] not just the taking of her
to the car. [It’s] the driving around because that movement is putting her in a place of
less safety. So [it’s] the entire driving, even driving all the way to the cul-de-sac. That’s
all part of the kidnap. Did that happen in the commission of the rape? True. So you
write in true.” The prosecutor briefly referred to the kidnapping qualifying circumstance
allegation when discussing the charges against Mr. Adams. No objection of any kind was
interposed by either defense attorney to the prosecutor’s argument concerning the section
667.61, subdivision (d)(2) kidnapping qualifying circumstance.



                                             22
       In their arguments, defense counsel never discussed CALCRIM No. 3179 nor the
elements of the section 667.61, subdivision (d)(2) kidnapping qualifying circumstance
allegation. Their arguments focused on: jury instructions concerning reasonable doubt
and the conduct of jurors; the lack of believability of the prosecution witnesses including
the fact that Diane was a prostitute; the problems with identification testimony; and gang
and ballistics testimony. Neither of the two defense attorneys argued their clients were
guilty only of any lesser included offenses. Mr. Adams’s counsel requested a not guilty
verdict be returned.


                       d. the counts 2, 3 and 4 verdicts and findings


       On May 16, 2014, the jury returned its verdicts. As to count 2, Mr. Adams was
convicted of forcible rape while acting in concert and the following special allegations
were found to be true: he personally used a firearm within the meaning of sections
667.61, subdivisions (a) and (e) and 12022.53, subdivisions (b) and (e); he kidnapped the
victim within the meaning of section 667.61, subdivisions (a) and (d); and the sexual
assault was committed for the benefit of a street gang within the meaning of section
186.22, subdivision (b)(1)(C). As to count 3, Mr. Adams was convicted of oral
copulation by acting in concert and the jury found two special allegations to be true. The
jury found Mr. Adams kidnapped the victim within the meaning of section 667.61,
subdivisions (a) and (d). In addition, the jury found the offense was committed for the
benefit of a street gang within the meaning of section 186.22, subdivision (b)(1)(C).
However, the jury found the firearm use allegation within the meaning of section 667.61,
subdivisions (a) and (e) was not true. As to count 4, the jury convicted Mr. Adams of
kidnapping to commit another crime in violation of section 209, subdivision (b)(1). The
jury found the gang and firearm use allegations to be true. (§§ 186.22, subd. (b)(1)(C);
12022.53, subds. (b) & (e).)
       As to Mr. Moreland, the jury returned the same guilty verdicts on counts 2 (rape in
concert), 3 (forcible oral copulation in concert) and kidnapping to commit another crime.

                                            23
However, as to Mr. Moreland, more extensive special allegations findings were returned.
As to count 2, the forcible rape in concert charge, the jury found the following special
allegations to be true: Mr. Moreland personally used a firearm within the meaning of
sections 667.61, subdivisions (a) and (e) and 12022.53, subdivision (b); Mr. Moreland
kidnapped the victim within the meaning of section 667.61 subdivisions (a) and (d); the
sexual assault was committed for the benefit of a street gang within the meaning of
section 186.22, subdivision (b)(1)(C); and Mr. Moreland inflicted great bodily injury
upon the victim within the meaning of sections 667.61, subdivisions (a) and (d) and
12022.8, subdivision (a). As to count 3, the forcible oral copulation charge, the jury
found the two great bodily injury allegations to be not true. (§§ 667.61, subds. (a) & (d),
12022.8.) But the jurors found as to count 3 the following special allegations were true
as to Mr. Moreland: he personally used a firearm within the meaning of sections 667.61,
subdivisions (a) and (e) and 12022.3, subdivision (a); he kidnapped the victim within the
meaning of section 667.61, subdivisions (a) and (d); and the crime was committed for the
benefit of a street gang. (§ 186.22, subd. (b)(1)(C).) As to count 4, the section 209,
subdivision (b)(1) kidnapping to commit another crime charge, the jury found the
following special allegations to be true: the crime was committed for the benefit of a
street gang within the meaning of section 186.22, subdivision (b)(1)(C); Mr. Moreland
personally used a firearm within the meaning of section 12022.53, subdivision (b); and he
inflicted great bodily injury on the victim within the meaning of section 12022.7,
subdivision (a).


                            e. the counts 2, 3 and 4 sentences


       As to Mr. Adams, for count 2, forcible rape in concert, he received an
indeterminate sentence of 25 years to life. In addition, as to count 2, Mr. Adams received
10 years for firearm use which was stayed pursuant to section 12022.53, subdivision
(e)(2). As a result of the gang allegation, an additional 10 years was imposed pursuant to
section 186.22, subdivision (d)(1)(C). The total count 2 sentence was 35 years to life. As

                                            24
to count 3, forcible oral copulation in concert, Mr. Adams was sentenced to state prison
for a term of 25 years to life plus 10 years for the gang enhancement. The count 3 section
12022.3, subdivision (a) firearm use finding was stayed pursuant to section 12022.53,
subdivision (e)(2). The two sexual assault sex counts were ordered to run consecutively
pursuant to section 667.6, subdivision (d). Even if mandatory consecutive sentencing
was inappropriate, the trial court indicated it would exercise its discretion pursuant to
section 667.6, subdivision (c) and impose consecutive sentences. As to count 4, the
kidnapping to commit rape or oral copulation conviction, Mr. Adams received a life term.
Pursuant to section 186.22, subdivision (b)(5), Mr. Adams received a minimum term of
15 years. The 10-year firearm use finding was stayed pursuant to section 12022.53,
subdivision (e)(2). The trial court made no oral statement as to whether it was imposing
consecutive or concurrent terms on the sex offenses charges, counts 2 and 3, and the
kidnapping conviction, count 4. The abstract of judgment states the count 4 kidnapping
to commit rape or oral copulation sentence was to run consecutively with the sex
offenses.
       As to Mr. Moreland, similar sentences were imposed as to counts 2, 3 and 4.
However, Mr. Moreland had been subject to a prior serious felony juvenile dispositional
order and was a minor when the present crimes were committed. Thus, Mr. Moreland’s
sentence differs in several respects from that imposed on Mr. Adams. Mr. Adams was
not a juvenile at the time of the commission of the offenses specified in the second
amended information. As to count 2, Mr. Moreland received a sentence of 50 years to
life (25 years to life doubled because of his prior serious felony juvenile disposition) plus
an additional: 10-year term pursuant to section 12022.53, subdivision (b); 5 years for
great bodily injury pursuant to section 12022.8, subdivision (a); plus 10 years as a result
of the section 186.22, subdivision (b)(1)(C) gang enhancement finding. As to count 3,
Mr. Moreland received a 50-years-to-life sentence plus 10 years for firearm use and the
gang enhancement. The sentences as to counts 2 and 3 were ordered to run consecutively
pursuant to section 667.6 subdivisions (c) and (d). As to count 4, the kidnapping to
commit rape or oral copulation conviction, defendant received a life sentence. The oral

                                             25
pronouncement of judgment makes no reference to counts 2 and 3, the sexual assault
charges, running consecutively to the aggravated kidnapping sentence. The abstract of
judgment states that counts 3, oral copulation in concert, and 4, kidnapping to commit
rape and oral copulation, were ordered to run consecutively. Pursuant to section 186.22,
subdivision (b)(5), Mr. Moreland received a 15 year minimum parole eligibility term. As
noted, Mr. Moreland was a juvenile when he engaged in the crimes alleged in the second
amended information. Pursuant to People v. Caballero, supra, 55 Cal.4th at pages 268-
269, the trial court imposed a minimum parole eligibility date of 35 years from the date
of sentencing. (See Graham v. Florida, supra, 560 U.S. at p. 82.)


f. the instructional error concerning kidnapping as defined by section 667.61, subdivision
                      (d)(2) was harmless beyond a reasonable doubt


       As noted, section 667.61, subdivision (d)(2) permits the imposition of an
indeterminate 25-years-to-life sentence under these circumstances: “(d) The following
circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . [¶] (2)
The defendant kidnapped the victim of the present offense and the movement of the
victim substantially increased the risk of harm to the victim over and above that level of
risk necessarily inherent in the underlying offense in subdivision (c).” The section
667.61, subdivision (d)(2) qualifying circumstance has two elements. The first element
requires the victim be kidnapped. The second element requires that victim’s movement
substantially increase the risk of harm to him or her above that level of danger
necessarily inherent in the sex offense. (People v. Jones, supra, 58 Cal.App.4th at p.
713.) Section 667.61, subdivision (d)(2) contains an element (substantial increase in the
risk of harm) beyond that in simple and aggravated kidnapping. Aggravated kidnapping
has as an element an increase in the risk of the harm over that present in the enumerated
offenses. (People v. Robertson (2012) 208 Cal.App.4th 965, 979-980; People v. James
(2007) 148 Cal.App.4th 446, 454, fn. 5.) Prior to 1998, section 209 aggravated
kidnapping had as an element a substantial increase in the risk of harm to the victim

                                             26
beyond that present in the enumerated offense. But in 1997, section 209, subdivision
(b)(2) was amended to remove the “substantially” increase the risk of harm element from
the statutory definition of aggravated kidnapping. (Stats. 1997, ch. 817, § 2, pp. 5519-
5520; People v. Vines (2011) 51 Cal.4th 830, 869, fn. 20; People v. Martinez (1999) 20
Cal.4th 225, 232 & fn. 2.)
       The relevant sex offenses specified in section 667.61, subdivision (c) are in
concert rape or forcible oral copulation. And as previously noted, the jurors were
instructed pursuant to CALCRIM No. 3179 that they must decide the additional
allegation of whether defendant kidnapped Diane. As part of the CALCRIM No. 3179
qualifying circumstance instruction, the jurors were instructed as follows: “To decide
whether the defendant kidnapped Diane [], please refer to the separate instructions that I
have given you on kidnapping. You must apply those instructions when you decide
whether the People have proved this additional allegation.”
       The jurors were instructed concerning kidnapping pursuant to CALCRIM No.
1215. We have previously set forth the entirety of the CALCRIM No. 1215 instruction
concerning kidnapping. (See part III(C)(3)(b), supra.) The instruction defines
asportation. There is no issue concerning the asportation element raised by CALCRIM
No. 1215. But, as previously noted, CALCRIM No. 1215 also includes a discussion
concerning risk of harm in the context of whether the movement was substantial. One of
the factors in evaluating whether an asportation has been for a substantial distance is the
increase in the risk of harm from the movement. (People v. Martinez, supra, 20 Cal.4th
at p. 237 [“the jury might properly consider not only the actual distance the victim is
moved, but also such factors as whether that movement increased the risk of harm above
that which existed prior to the asportation”]; see People v. Johnson, supra, 61 Cal.4th at
p. 771 [same].)
       For clarity’s purposes we reiterate the risk of harm instructions here: “In deciding
whether the distance was substantial, you must consider all the circumstances relating to
the movement. Thus, in addition to considering the actual distance moved, you may also
consider other factors such as whether the distance the other person was moved was

                                             27
beyond that merely incidental to the commission of rape and or oral copulation, whether
the movement increased the risk of physical or psychological harm, increased the danger
of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit
additional crimes, or decreased the likelihood of detection.” (Italics added.) (Italics
added.) The CALCRIM No. 1215 simple kidnapping risk of harm instruction, as given
here, does not require the jury to find an increased risk of harm resulting from the
asportation. By contrast, section 667.61, subdivision (d)(2) requires that the movement
increased the risk of harm beyond that present in the two sex offenses charged in counts 2
and 3.
         Defendant argues the jurors were not properly instructed concerning the section
667.61, subdivision (d)(2) increased risk of harm element. We agree. There is a sua
sponte duty to instruct concerning the section 667.61, subdivision (d)(2) kidnapping
qualifying circumstance. (People v. Jones, supra, 58 Cal.App.4th at p. 709; see People v.
Mancebo (2002) 27 Cal.4th 735, 748.) Here, the jurors were referred to a definition of
kidnapping for purposes of section 667.61, subdivision (d)(2) to CALCRIM No. 1215.
CALCRIM No. 1215 does not adequately instruct the jurors concerning the substantial
increase in the risk of harm element of a section 667.61, subdivision (d)(2) kidnapping
qualifying circumstance. CALCRIM No. 1215 does not require the jury to find the
asportation substantially increased the risk of harm over that level of risk necessarily
inherent in the sex offenses. And the reference to the increase of risk in CALCRIM No.
1215 appears in a disjunctive discussion of how to evaluate the substantial distance
element of kidnapping. However, we conclude the failure to properly instruct on the
increased risk of harm element of the section 667.61, subdivision (d)(2) kidnapping
qualifying circumstance was harmless beyond a reasonable doubt. (People v. Luna
(2012) 209 Cal.App.4th 460, 468 [§ 667.61, subd. (e)(1) kidnapping qualifying
circumstance]; People v. Jones, supra, 58 Cal.App.4th at pp. 715-716 [§667.61, subd.
(d)(2) aggravated kidnapping].)
         No doubt, the jurors impliedly found that the movement of Diane increased the
risk of harm to her. As noted, the jurors were instructed on the charge of kidnapping for

                                             28
the purpose of rape or oral copulation pursuant to CALCRIM No. 1203. The jurors were
instructed, “The movement must have increased the risk of physical or psychological
harm to that person beyond that necessarily present in the rape or oral copulation.” As
instructed, in order to convict defendant of aggravated kidnapping within the meaning of
section 209, subdivision (b)(1), the jurors were required to find the movement increased
the risk of harm to Diane. As we have noted, after January 1, 1998, an increase in the
risk of harm was an essential element of section 209 subdivision (b)(1) aggravated
kidnapping. Thus, the jury impliedly found that there was an increase in the risk of harm
because of the lengthy asportation that occurred in our case. (People v. Mincey (1992) 2
Cal.4th 408, 438 [“[A] trial court’s failure to instruct on a lesser included offense is not
prejudicial if, as here, the jury necessarily resolved the factual question adversely to the
defendant under other instructions.”]; People v. Stankewitz (1990) 51 Cal.3d 72, 99 [“By
finding the firearm-use allegation to be true, the jury impliedly found that defendant was
a direct participant, or, at a minimum, that he aided the robbery with the requisite
intent.”].) Thus, the sole prejudicial error issue that remains relates to the “substantial”
increase in the risk of harm element in section 667.61, subdivision (d)(2). While
deciding the aggravated kidnapping charge in count 4, the jurors impliedly found that
there had been an increase in risk of harm during the lengthy asportation.
       In addition to the jury’s implied findings, the error was harmless because the
substantial risk of harm issue was uncontested. The omission of an element during jury
instruction may be harmless when the factual issue is uncontested by the defense.
(People v. Mil (2012) 53 Cal.4th 400, 410 [“the omission of an element of a . . .
sentencing factor is harmless when ‘the omitted element was uncontested and supported
by overwhelming evidence, such that the jury verdict would have been the same absent
the error.’”]; People v. Garcia (2001) 25 Cal.4th 744, 761 [same].) The substantial
increase in risk element of section 667.61, subdivision (d)(2) was uncontested by Mr.
Adams. Mr. Adams called no witnesses and chose to rely on the state of the evidence.
Mr. Adams’s lawyer never argued that the asportation did not substantially increased the
risk of harm and never mentioned the 667.61, subdivision (d)(2) qualifying circumstance

                                              29
instructions nor special finding. Mr. Moreland denied being present throughout the
sexual assaults, kidnapping, attempted murder and other crimes committed against Diane.
However, during jury argument, Mr. Moreland’s counsel never discussed the
substantially increased risk of harm element nor anything concerning the 667.61,
subdivision (d)(2) qualifying circumstance issue. The substantial increase in the risk of
harm entire issue was uncontested and, with good reason, because the lengthy asportation
allowed defendants to leave the presence of Mr. Odhiamo. He testified that as soon as
the robbery was completed and Diane was removed forcibly from his car, defendants fled
with her. During the movement, the jurors found that both defendants personally used a
firearm. Further, it was during the lengthy asportation Diane was repeatedly sexually
assaulted.
No doubt, the calculus of whether the evidence was overwhelming is closer as to Mr.
Moreland. He denied any participation in the sexual assaults and other violent crimes.
However, we have reviewed the entirety of the testimony and evidence. The evidence
was overwhelming in terms of the issue before us—whether the victim’s movement
substantially increased the risk of harm to her. The failure to instruct the jury as to the
substantial increase in the risk of harm element of section 667.61, subdivision (d)(2) was
harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 17;
People v. Mil, supra, 53 Cal.4th at pp. 410-411.) Hence, we conclude that no
instructional errors permit reversal and we must thus resolve the section 209, subdivision
(d) question.


                               g. section 209, subdivision (d)


       Section 209, subdivision (d) states: “Subdivision (b) 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
subdivision (b) and Section 667.61.” (Italics added.) The “the same act that constitutes a

                                             30
violation of both subdivision (b) and Section 667.61” language utilized by the Legislature
in section 209, subdivision (d) is somewhat unclear. Section 209, subdivision (d) was
adopted as part of Assembly Bill No. 59 (1997-1998 Reg. Sess.) (Assembly Bill No. 59,
hereafter). (Stats. 1997, ch. 817, § 2, pp. 5519-5520.) None of the legislative committee
reports prepared for Assembly Bill No. 59 discuss section 209, subdivision (d). (Assem.
Com. on Appropriations, Rep. on Assem. Bill No. 59 as amended Mar. 10, 1997; Assem.
Com. on Public Safety, Rep. on Assem. Bill No. 59 as amended Mar. 10, 1997; Assem.
Third Reading Rep. on Assem. Bill No. 59 as amended June 3, 1997; Sen. Com. on
Public Safety, Rep. on Assem. Bill No. 59 as amended June 3, 1997; Sen. Appropriations
Committee, Fiscal Summary of Assem. Bill No. 59, as amended Aug. 25, 1997; Sen.
Rules Com., Office of Sen. Floor Analyses, Third Reading Analysis of Assem. Bill No.
59 as amended Sept. 4, 1997.)
       Pursuant to section 209, subdivision (d), defendants could not be punished for the
same act that violated both sections 209, subdivision (b) and 667.61. The act prohibited
by section 209, subdivision (b), as applicable here, is kidnapping to commit rape or oral
copulation. The section 667.61 conduct is the section 667.61, subdivisions (c)(3) and (7)
rape or oral copulation in concert violations under the section 667.61, subdivision (d)(2)
qualifying circumstances. Section 667.61, subdivision (d)(2) requires a kidnapping
occur. The violations of section 209, subdivision (b) and 667.61 subdivisions (c)(3) and
(7) under the section 667.61, subdivision (d)(2) qualifying circumstances have two
common elements. In our context, the section 209 subdivision (b) violation requires the
commission of a kidnapping with the intent to commit one of the enumerated sex
offenses. (People v. Dominguez (2006) 39 Cal.4th 1141, 1151, fn. 6; People v. Bell
(2009) 179 Cal.App.4th 428, 435, fn. 2.) The 667.61 subdivisions (c)(3) and (7)
violations under the section 667.61, subdivision (d)(2) qualifying circumstances involve
both the kidnapping and commission of a section 209, subdivision (b) enumerated sex
offense.
       No doubt, there are two elements in section 209, subdivision (b) which differ from
those in section 667.61, subdivision (d)(2). The first different element is the intent with

                                             31
which the aggravated kidnapping was committed. As we explained, aggravated
kidnapping to commit a specified sex offense in violation of section 209, subdivision (b)
requires an intent to commit one of the enumerated crimes. (People v. Dominguez, supra,
39 Cal.4th at p. 1151, fn. 6; People v. Bell, supra, 179 Cal.App.4th at p. 435, fn. 2.) The
second different element between sections 209, subdivision (b) and 667.61, subdivision
(d)(2) involves the risk of harm. As we have noted, in order to violate section 209,
subdivision (b), there is no requirement the risk of harm be substantially greater than that
for the enumerated sex offense. (People v. Vines, supra, 51 Cal.4th at p. 869, fn. 20;
People v. Martinez, supra, 20 Cal.4th at p. 232 & fn. 4.) By contrast, section 667.61,
subdivision (d)(2) requires there be a substantial increase in the risk of harm. But the
Legislature used the term “same act” that violates both sections. The same act language
evinces a legislative intent to avoid punishment of an act, not an offense with the precise
same elements. And section 209, subdivision (d) refers to the entirety of section 667.61
not to any particular qualifying circumstances. Thus, the differences in statutory
elements we have discussed between sections 209, subdivision (b) and section 667.61,
subdivision (d)(2) are irrelevant in our case.
       At issue is existence of a common act occurring against a single victim on the
same day which violates 209, subdivision (b) and section 667.61. All the parties,
including the Attorney General, agree that section 209, subdivision (d) refers to an act.
And here, the parties agree for purposes of section 209, subdivision (d), that the relevant
act is the kidnapping of Diane with the intent to commit either charged sex offense. It is
this act that constitutes a violation of both section 209, subdivision (b) and section
667.61. Therefore, pursuant to section 209, subdivision (d), the trial court was required
to stay the punishment on count 4, kidnapping to commit rape or oral copulation, as to
each defendant. (See People v. Garza (2003) 107 Cal.App.4th 1081, 1084.) For that act,
the aggravated kidnapping sentence must be stayed. The judgments must be modified
and the abstracts of judgment amended to so provide.




                                             32
 [Part III (C)(4)-(7) is deleted from publication. See post at page 38 where publication is
                                          to resume.]


                         4. Mr. Moreland’s count 4 and 6 sentences


       The trial court orally imposed as to counts 4 and 6 a section 186.22, subdivision
(b)(5) 15-year minimum parole eligibility term. However, Mr. Moreland had previously
been convicted of a serious felony. Therefore, the 15-year minimum parole eligibility
term in each count should have been doubled. (§§ 667, subd. (e)(1), 1170.12, subd.
(c)(1); People v. Jefferson (1999) 21 Cal.4th 86, 90; see People v. Acosta (2002) 29
Cal.4th 105, 113-114.) This is subject, of course, to the trial court’s order setting an
indeterminate term of 35 years to life under People v. Caballero, supra, 55 Cal.4th at
pages 268-269. The judgment must be modified and the abstract of judgment amended to
so provide.


                                   5. The sex offenses fines


       The trial court imposed a $300 sex offenses fine (§ 290.3) on each defendant on
each of counts 2 (§ 264.1, subd. (a)) and 3 (§ 288a, subd. (d)(1)). We asked the parties to
brief several issues in relation to this fine. First, defendants were subject to the fine on
count 4 (§ 209, subd. (b)(1)) in additional to counts 2 and 3. This is a question of
statutory interpretation. Here, the Legislature’s intent is clear from the statutory
language. (See, e.g., In re D.B. (2014) 58 Cal.4th 941, 946-947 [Welf. & Inst. Code, §
733, subd. (c)]; People v. Licas (2007) 41 Cal.4th 362, 367-371 [§ 12034, subd. (c)].)
Section 290.3, subdivision (a) provides in part, “Every person who is convicted of any
offense specified in subdivision (c) of Section 290 shall . . . be punished by a fine . . . .”
(Italics added.) The offenses specified in section 290, subdivision (c) include, “Section
. . . 209 [kidnapping] committed with intent to violate Section . . . 288a [oral
copulation].” Defendants were convicted in count 4 of kidnapping to commit rape or oral

                                               33
copulation in violation of section 209, subdivision (b)(1). Defendants were convicted in
count 3 of acting in concert to commit forcible oral copulation in violation of section
288a, subdivision (d)(1). Therefore, defendants violated section 209 with intent to
violate section 288a, an offense subject to the section 290.3 fine. The trial court’s
unexplained failure to impose the fines on count 4 is not, however, jurisdictional error.
(People v. Walz (2008) 160 Cal.App.4th 1364, 1371; People v. Burnett (2004) 116
Cal.App.4th 257, 261-262.) The prosecutor did not object to the trial court’s failure to
impose the fines on count 4. On this silent record, we presume the trial court determined
defendants did not have the ability to pay the additional fine. (Ibid; see People v. Smith
(2001) 24 Cal.4th 849, 852.)
       Second, effective September 20, 2006, section 290.3, subdivision (a) provides for
sex offenses fines in the amount of $300 “upon the first conviction” and $500 “upon the
second and each subsequent conviction.” (Stats. 2006, Ch. 337, § 18, p. 2610.) Because
defendants were each convicted of more than one count subject to the sex offenses fine,
they each had a second and subsequent conviction within the meaning of the statute.
(People v. O’Neal (2004) 122 Cal.App.4th 817, 822; see People v. Walz, supra,160
Cal.App.4th at p. 1371.) Therefore, each defendant was subject to a $300 fine on count
2, and a $500 fine on count 3. (Ibid.)
       Third, the trial court failed to impose mandatory penalties and surcharges on the
fines. This is an error that can be raised for the first time on appeal. (People v. Talibdeen
(2002) 27 Cal.4th 1151, 1157; People v. Castellanos (2009) 175 Cal.App.4th 1524,
1530.) As of the date of the present offenses, May 2, 2011, each sex offenses fine was
subject to: a 100 percent state penalty (§ 1464, subd. (a)(1)); a 70 percent county penalty
(Gov. Code, § 76000, subd. (a)(1)); a 20 percent state surcharge (§ 1465.7, subd. (a)); a
30 percent state court construction penalty (Gov. Code, § 70372, subd. (a)(1)); a 10
percent deoxyribonucleic acid penalty (Gov. Code, § 76104.6, subd. (a)(1)); a 30 percent
state-only deoxyribonucleic acid penalty (Gov. Code, § 76104.7, subd. (a)); and a 20
percent emergency medical services penalty (Gov. Code, § 76000.5, subd. (a)(1)). (See



                                             34
People v. Johnson (2015) 234 Cal.App.4th 1432, 1457-1458; People v. Hamed (2013)
221 Cal.App.4th 928, 940-941.)
       Fourth, the matter must be remanded for an ability to pay determination. Section
290.3, subdivision (a) mandates imposition of the fine “unless the court determines that
the defendant does not have the ability” to pay it. Here, the trial court impliedly
concluded defendants each had the ability to pay a $600 fine. However, if imposed as
discussed above, the fines, penalties and surcharges will greatly exceed $600. Therefore,
upon remittitur issuance, the trial court must consider defendants’ ability to pay the fines,
penalties and surcharges. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249-
1250; People v. Walz, supra, 160 Cal.App.4th at pp. 1370-1371.) The trial court must
conduct a hearing concerning each defendants’ ability to pay the sex offenses fines in
light of the total financial obligation, which includes the foregoing penalties and
surcharges. (People v. Johnson, supra, 234 Cal.App.4th at pp. 1458-1459; People v.
Corrales (2013) 213 Cal.App.4th 696, 702.) If additional fines are imposed, the trial
court is to personally insure the superior court clerk prepares amended abstracts of
judgment detailing the base fines, penalties and surcharge. (People v. Johnson, supra,
234 Cal.App.4th at p. 1459; People v. Hamed, supra, 221 Cal.App.4th at p. 940; People
v. Valenzuela, supra,172 Cal.App.4th at p. 1250.)


                          6. Mr. Adams’s Abstract of Judgment


       The trial court orally stated it was staying a section 12022.3 firearm use
enhancement finding as to Mr. Adams in count 3. In addition, Mr. Adams’s abstract of
judgment references a purported firearm use finding under section 12022.53, subdivision
(b). However, the jury did not return any firearm use finding as to count 3 under either
section 12022.3 or section 12022.53, subdivision (b). Therefore, the reference to a
section 12022.53, subdivision (b) finding in Mr. Adams’s abstract of judgment must be
stricken. (People v. Jones (2012) 54 Cal.4th 1, 89; People v. Mitchell (2001) 26 Cal.4th
181, 185.)

                                             35
    7. Mr. Moreland’s Abstract of Judgment And the Attorney General’s Argument


       Mr Moreland’s abstract of judgment states that count 6, attempted willful,
deliberate and premeditated murder, is to run consecutive to count 2, rape in concert.
However, the oral pronouncement of judgment does not reflect such an order. Thus,
absent some other reason that requires consecutive sentencing, the abstract of judgment
must be corrected to state that counts 2 and 6 are to run concurrently. (§ 669, subd. (b)
[in the absence of a contrary ruling, sentences are to run concurrently]; People v. Myles
(2012) 53 Cal.4th 1181, 1222, fn. 14, 1226 [the abstract of judgment must comport to the
oral pronouncement]; In re Calhoun (1976) 17 Cal.3d 75, 79-80 [sentences are presumed
to run concurrently].)
       The Attorney General argues though that consecutive sentences were mandatory
pursuant to sections 667, subdivision (c)(6) and 1170.12, subdivision (a)(6). However,
the trial court never orally imposed consecutive sentences on the attempted murder and
sexual assault counts. There is substantial evidence the attempted murder involved the
same firearm used to commit the sex crimes and arose out of the same set of operative
facts. (People v. Lawrence (2000) 24 Cal.4th 219, 233; People v. Garcia (2008) 167
Cal.App.4th 1550, 1566-1567.) Had the trial court orally ordered consecutive sentencing
on counts 2 and 6, we would have upheld the order under sections 667, subdivision (c)(6)
and 1170.12, subdivision (a)(6). Such an order would have been supported by substantial
evidence. But the “common act or criminal conduct” determination is fact-driven and is
reviewed for substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730
[where consecutive sentences were imposed for rape and robbery, substantial evidence
supported the trial court’s implied finding that the accused entertained more than one
objective]; People v. Garcia, supra, 167 Cal.App.4th at pp. 1566-1567 [no substantial
evidence supported mandatory consecutive sentencing]; People v. Chan (2005) 128
Cal.App.4th 408, 424 [no substantial evidence supported the trial court’s order imposing
concurrent sentences where the sex offenses were committed on separate occasions].) In



                                            36
the face of the trial court’s silence and the presence of substantial evidence that common
acts or conduct are present, we respectfully disagree with the Attorney General.


                       [The balance of the opinion is to be published.]


                                     IV. DISPOSITION


       The judgment as to Mr. Moreland is modified to impose minimum parole
eligibility terms of 30 years on counts 4 and 6. The judgments are further modified to
award Mr. Adams 563 days of presentence custody credit and to award Mr. Moreland
611 days of such credit. The reference to a Penal Code section 12022.53, subdivision (b)
finding in Mr. Adams’s abstract of judgment must be stricken. Mr. Moreland’s abstract
of judgment is modified to delete the reference to count 2 running consecutively to count
6. The judgments are modified as to both defendants to stay the punishment on count 4
and to delete the conduct credit awards. Upon remittitur issuance, a hearing is to be held
as to each defendants ability to pay the sex offense fines together with applicable
penalties and surcharges. The judgments are affirmed in all other respects. Upon
resolution of the ability to pay issue, the trial court is to personally insure that the
superior court clerk prepares fully correct amended abstracts of judgment as discussed in
the opinion’s body. The clerk of the superior court is to forward copies of the amended
abstracts of judgment to the Department of Corrections and Rehabilitation.
                              CERTIFIED FOR PARTIAL PUBLICATION


                              TURNER, P.J.
We concur:
               BAKER, J.                     KUMAR, J. *



*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                               37
