Filed 8/18/15 P. v. Wright CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)




THE PEOPLE,                                                                                  C072781

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F05836)

         v.

KEITH WRIGHT,

                   Defendant and Appellant.




         During a one-month period in the summer of 2011, defendant Keith Wright
entered three separate residences in the Natomas area of Sacramento and robbed the
residents of their valuables at gunpoint. He entered all three residences between midnight
and 12:30 a.m. In two of the incidents, he locked the victims in the trunk of their car
before he made his escape. In the last incident, the resident was a woman living alone,
and he forced her to orally copulate him before stealing her money and valuables.




                                                             1
       Much of the property stolen in the home robberies was later recovered at
defendant’s home. In one of the robberies, defendant took some rare foreign currency,
which he later exchanged at a currency exchange. Security footage showed defendant
and his mother exchanging the foreign currency. All but one of the victims identified
defendant as their attacker. The other said defendant looked like the attacker, but could
not make a positive identification.
       The jury convicted defendant on multiple counts of first degree residential
burglary, first degree robbery, kidnapping, kidnapping to commit robbery, false
imprisonment, and forced oral copulation. The trial court sentenced defendant to an
indeterminate term of 114 years to life plus 120 years 8 months.
       We disagree with defendant’s argument that his conviction must be reversed
because of prosecutorial misconduct and instructional error. We also disagree with his
argument that there was insufficient evidence to support the asportation element of
kidnapping. We disagree with defendant’s argument that the forced oral copulation
offenses should not be punished with consecutive sentences because they did not involve
separate occasions. We disagree with defendant’s claim he received ineffective
assistance of counsel at sentencing.
       We agree with defendant’s argument that one of his convictions for kidnapping
with the intent to rob Doe must be reversed because the evidence established only a
single uninterrupted period of confinement. We also agree that all of his false
imprisonment convictions must be reversed because they are necessarily included in the
offense of kidnapping. We agree that the trial court should have stayed the burglary
sentences pursuant to Penal Code section 654.1 We do not agree that the kidnapping




1   Further statutory references to sections of an undesignated code are to the Penal Code.

                                             2
sentences should have been stayed for the kidnappings of Rashid, Uddin, and Doe, but
we agree the kidnapping sentence should have been stayed for the kidnapping of Bryant.
       Finally, we disagree with defendant’s argument that the order requiring him to
reimburse the county for his court-appointed attorney fees be stricken because the court
made no express finding of unusual circumstances.
       We will remand the matter for resentencing, as more fully explained below.
                   FACTUAL AND PROCEDURAL BACKGROUND
       A. Crimes Against Gary Bryant
       The first of the home-invasion robberies occurred around 12:25 a.m. on July 21,
2011. The victim was 60-year-old Gary Bryant, who was at his home in south Natomas.
Bryant’s testimony was hampered somewhat by a stroke he suffered either in January
2011 or January 2012. The stroke affected his ability to describe events and details, but it
did not affect his ability to remember important events, and he considered the incident an
important event.
       Bryant opened his exterior garage door and took out a load of garbage. He
returned inside the house to collect more trash, leaving the exterior garage door open and
the door from the garage to the house unlocked. As he was in the hallway preparing to
take out the second load of garbage, he saw a man in the hallway pointing a gun at him.
The man was Black, approximately six feet one inch tall, muscular, and in his mid-
twenties to early thirties. Bryant identified defendant as the person he saw, both at the
preliminary hearing and at trial. Defendant was wearing a long-sleeve, hooded sweatshirt
with the hood up, dark pants, and two-tone tennis shoes.
       Defendant pointed the gun at Bryant and demanded “[w]here is the fucking guns
and where is the money[?]” Defendant ordered Bryant to get on his knees and crawl
from room to room. Defendant made Bryant crawl to five different rooms, with a gun to
Bryant’s neck, repeatedly demanding money and guns. Defendant repeatedly told Bryant



                                             3
not to look at him. Defendant rummaged through everything in the house. Bryant
estimated defendant was inside the house for about two hours.
       Defendant finally made Bryant crawl to the garage and lie down. He lay or knelt
there for about a half-hour while defendant went through Bryant’s car. Bryant waited
another half-hour, and not hearing anything, went back into the house. Bryant’s phone
was disconnected, so he went next door to call 911. Bryant later found his cell phone
with the battery removed in the toilet.
       Defendant took three guns from Bryant: a semiautomatic, a revolver, and a
shotgun. He also took a Garmin global positioning satellite (GPS) unit, a radar detector,
and a handheld safe and its contents and keys. Inside the safe was $4,000 in cash, and
collector coins, including Susan B. Anthony dollars.
       B. Crimes Against Rashid and Uddin
       The second incident occurred around 12:30 a.m. on August 8, 2011. Babar Rashid
and Arbab Uddin lived in a house in south Natomas. Uddin was in the garage smoking a
cigarette and lying on a couch with the garage door open, when a man came up behind
him with a gun. The man was African-American, approximately six feet one inch to six
feet three inches tall, about 230 to 250 pounds, and in his early to mid-thirties. Uddin
identified defendant at trial as the intruder. The man grabbed Uddin by the collar, made
him stand up, and walked him to the door into the house while holding a gun to his head.
He told Uddin to close the garage door, and asked how many people were inside the
house. Uddin told him there was only one other person. They went inside and found
Rashid asleep on the couch in the living room.
       Rashid woke up and saw Uddin with a man holding a gun to his head. Rashid
described the gunman at trial as African-American, six feet one inch to six feet two
inches tall, at least 220 to 230 pounds, and between 30 and 40 years old. He was wearing
a hooded sweatshirt and his face was covered with a bandana. Rashid was not able to



                                             4
definitively identify defendant at trial, but stated that defendant was the same height and
build, same race and skin tone as the intruder.
       The gunman kept asking “[w]here the fuck is the gun.” He also asked if they had
marijuana. He made the two go upstairs to Rashid’s bedroom and get down on the floor.
When he demanded money, Rashid told him there was money in his closet. Rashid had
about $500 in United States currency, and between 7,500 to 9,000 Qatari Riyals.
Defendant proceeded to take things out of Rashid’s closet and put them in a pillowcase
he took off of one of the pillows. He then made the two go to Uddin’s bedroom. He told
them not to look at his face. He took around $100 cash, including Pakistani money. He
then took them back downstairs, where he took a Play Station 3. He took the pair into the
garage and asked for the car key. He opened the trunk and made them get in.
       While they were in the trunk, they could hear the gunman upstairs in the two
bedrooms directly above the garage. He was upstairs approximately 15 minutes before
coming back to the garage to ask Rashid and Uddin where to find the “weed” and the
gun. They told him they did not have any. A few minutes later they heard the front door
close and heard the man running outside. They eventually exited the trunk by using the
release button. They went to a neighbor’s house to call the police.
       Defendant took Uddin’s and Rashid’s cell phones and the cash, the Play Station 3,
and several games for the Play Station 3, including Call of Duty: World at War, Call of
Duty Four: Modern Warfare, Call of Duty: Modern Warfare Two, Grand Theft Auto
Four, and Madden Ten.
       At trial Uddin identified the jeans worn by the intruder by the color, style, and cuts
and hole in one leg. The jeans were found in defendant’s residence.
       A forensic examination of a laptop recovered from defendant’s residence revealed
that shortly after the incident at Uddin and Rashid’s home, at 2:24 a.m., an internet search
was conducted for “Qatar Central Bank, 500 riyals in USA currency . . . .” Two more
searches were done from the computer comparing Qatar and United States currency at

                                             5
2:28 a.m. and again at 2:36 a.m. The next day, August 9, 2011, around 11:00 a.m.,
defendant and his mother, Elizabeth Stewart, went to the Travelex office on Capitol Mall
in Sacramento. They exchanged 7,500 Qatari Riyal, all in 500 Riyal bills, which
amounted to $1,807.31. The consultant who exchanged the money for defendant and his
mother testified that Qatari Riyals are very rarely exchanged in Sacramento, and that this
was only the first or second time she had seen the currency in the 14 years she had
worked at Travelex.
       C. Crimes Against Jane Doe
       On August 21, 2011, Jane Doe lived in an apartment in the Natomas area of
Sacramento. Around midnight she was using her computer and had her headphones on.
She had the sliding door to the enclosed patio unlocked and open to save energy. She
heard a noise, looked around, and saw a man inside her apartment, pointing a gun at her.
The man was African-American, at least 200 pounds, a little over six feet tall, and Doe
guessed his age was mid-twenties by the clothing he wore. He was wearing a white,
long-sleeve, hooded shirt. He wore the hood up and wore a bandana covering his face.
The bandana covered everything but his eyes. In court, Doe identified the defendant as
her attacker.
       Defendant told her to get down on the ground and not to look at him. After about
two minutes, he told her to go into her bedroom. Defendant found two cell phones near
her bed, which she told him were not activated. He took the batteries out of the phones
and tossed them into the toilet. He told her to take off her clothes. Defendant ordered her
into the bathroom and told her to lie face down. He looked through her closet, and asked
her if she had anything valuable or any jewelry. He asked her where she put the money.
When Doe told him she had no cash or valuables, he called her a liar.
       Defendant told her to sit back on the bed, and allowed her to put her underwear
back on because she was on her menstrual cycle. He threatened her and told her he
would not do anything to her if she gave him something. He asked her if she knew who

                                            6
sent him there to kill her. Then, as he pointed his gun at her, he told her to unzip his
pants and pull out his penis and suck on it.
       She was crying and gagging, but he forced her. Doe estimated she performed oral
sex on defendant for a total of 15 to 20 minutes. During that time she stopped, took his
penis out of her mouth, then started again five to ten times. He ejaculated all over her
chest and in her mouth. Some of it got on her thighs as well. He told her to go to the
bathroom and wash off and brush her teeth.
       Defendant told Doe to get dressed, then told her to get her wallet. He told her to
open it and take out any cash, but she only had a dollar. He then asked her how much she
had in the bank and where she banked. She told him she had money in the bank at Wells
Fargo. He asked what her daily limit was, and she told him it was $300.
       She drove her car with defendant in the passenger seat to the nearest Wells Fargo.
He told her where to park and which automated teller machine (ATM) to use. She
withdrew $300. He told her to try again, so she tried again twice, but was not able to get
any more money. They went back to the car and he told her to drive to the Bank of
America. She tried three times at the Bank of America, but was unable to withdraw any
money. She drove back to her apartment.
       When they went back inside the apartment, he made her look for valuables, and
got upset when she did not find any. He threatened to shoot her if she did not find
something valuable to give him. She decided to give him her platinum wedding rings so
he would leave and not harm her. But after she gave them to him, he kept threatening
her.
       He told her to go back into the living room, and before he came into the room she
hid her cell phone, which was in the back pocket of her shorts between the sofa cushions.
He asked her where her cell phone was. She told him he got rid of all her cell phones.
He noticed a phone box on her dining table. It was a phone that Doe’s sister, Katie, had



                                               7
just purchased for Doe’s daughter. Doe had entered her sister Katie’s number into the
phone. Defendant put the phone in his pocket.
       He took her driver’s license, saying he needed proof in case she called the cops on
him. He also ordered her back into her bedroom, told her to take off her top, told her to
smile and act as if she was having the best time of her life, and took a picture with the
phone she purchased for her daughter. He then ordered her to go into the garage, and
climb into the trunk of her car. He closed her in the trunk. He told her to wait ten
minutes before she got out. She waited, then went back in the apartment, got the phone
she had hidden, and called her brother. Her brother called 911.
       In addition to the $300, defendant took Doe’s platinum wedding ring, her external
hard drive, her iPod Nano, her driver’s license, and the new cell phone her sister bought
for her daughter.
       Doe’s mouth, chest, and thigh were swabbed for secretions. A DNA analysis of
the chest and thigh swab were the same as defendant’s DNA profile. The DNA profile
was estimated to occur approximately 1 in 17 septillion of the African-American
population.
       Forensic examination of the laptop computer recovered from defendant’s
residence revealed that between 11:16 p.m. and 11:59 p.m. on the night after the morning
Doe was attacked, seven searches were conducted of “Natomas home invasions” and
“Natomas home invasions’ suspect” and similar searches.
       D. Investigation of Defendant
       Police focused on defendant after discovering the exchange of Qatari Riyal
currency in Stewart’s name. They discovered her son, defendant, lived near her in
Natomas, and that he fit the physical description of the suspect in the home invasion
robberies. They also learned that the cell phone that had been taken from Doe was
powered on once for a brief amount of time on August 23, 2011. The phone pinged off
of a tower that served the area of defendant’s residence.

                                              8
       Defendant was taken into custody. His house was searched. At his home, police
found Rashid’s Play Station 3, five games taken from Rashid and Uddin’s home, some
Pakistani currency, Qatari currency, Uddin’s cell phone, Rashid’s cell phone, Bryant’s
hand held safe, Bryant’s shotgun, Bryant’s Garmin GPS unit and mount, stamped
envelopes like the ones Bryant kept coins in and collector coins, including Susan B.
Anthony dollars, like those stolen from Bryant, Doe’s pink iPod, and Doe’s daughter’s
cell phone. The key to Bryant’s safe was found on defendant’s key ring. Also recovered
from defendant’s house was a bandana that matched the bandana defendant wore during
the Doe assault.
       A forensic examination of defendant’s cell phone revealed a series of text
exchanges with Latoya Richardson, a friend of defendant’s. The exchange began with a
12-digit number (120770302783) Richardson texted to defendant. Defendant admitted
this was an eBay sales number. Defendant sent a message back saying, “It all wrong, the
ring is blurry & there is no certificate posted. The discription is off, the center dimond is
0.51.” Richardson answered, “Ok i will send the certificate and log on now so u can edit
it, i got some more pics on my camera! Relax it can be fixed.” Approximately five
minutes later, Richardson wrote, “U rushing me, dam if u would just trust me and gave
me a couple of days it wouldn’t be a rushed job! Either u can let me fix it or u can!”
Defendant replied, “The ring should be in the photo solo, white people do trip on buying
a use ring from Black folks . . Lol.” Richardson wrote, “If u want it done right, give me
time to do it! Don’t knock me, i was rushed ok!” Near the end of the conversation, after
Richardson complained about being rushed, defendant wrote, “Man its been two days &
all u need is two photo & its perfect what u talking about? Two photos.” Richardson
replied, “Owwww! Yeah true but its not like i don’t do shit all day! An its been 1 day
keith. U gave it 2 me yesterday morning! Its good tho!”




                                              9
       Documents from eBay indicated that item number 120770302783 was a ladies
platinum wedding set. The price was $611 and the sale started August 29, 2011, and
ended September 5, 2011. The seller’s name was LaToya Richardson.
       E. Defense
       A defense expert testified regarding the unreliability of eyewitness testimony.
       Defendant testified on his own behalf. He testified he was six feet three or four
inches tall and weighed 310 pounds. He claimed he had not been at any of the victims’
houses on the relevant dates. He said the property found at his house was either
purchased by him or given to him by someone who owed him a debt. He claimed one of
the persons he purchased the property from was Sony Lee, Jane Doe’s brother.
Defendant confirmed at trial that Sony’s name was spelled and pronounced like the
manufacturer of the Sony Play Station. Defendant claimed he received the Qatari Riyals
from Sony Lee. Sony asked him to exchange the currency because defendant’s wife
worked for a bank. On rebuttal, Sonny (not Sony) Lee, Jane Doe’s brother, testified he
did not know defendant.
       Defendant claimed he had dated Jane Doe for about nine months, although he was
married. He claimed she gave him the cell phone containing her seminude picture and
the iPod nano. He claimed that on August 21, Doe came to Madera, where he was
attending a family reunion. They met at a Wal-Mart. She was picking up her children
from her ex-husband. He assumed she picked them up in Modesto, which he claimed
was half-way between Sacramento and San Jose, where the ex-husband lived. He said
she performed oral sex on him while they were in the Wal-Mart parking lot. Afterward,
he went back to his family reunion. Later that night he went with two people whose
names he could not remember to a strip club in Fresno. He could remember neither the
name nor location of the strip club. He never told law enforcement either that he was at a
strip club in Fresno the night of Doe’s attack, or that he had oral sex with Doe in the Wal-
Mart parking lot that day because they never asked.

                                            10
       Defendant claimed the text messages with Richardson were about a ring she had
and was trying to sell. He was just helping her out and giving her advice.
       F. Verdict and Sentence
       The jury rendered a guilty verdict on all charges as follows: first degree
residential burglary (§ 459) against Doe, Rashid and Uddin, and Bryant (counts one,
eleven, & eighteen); first degree robbery (§ 211) against Doe, Rashid, Uddin, and Bryant
(counts two, twelve, thirteen, & nineteen); four counts of forcible oral copulation (§ 288a,
subd. (c)(2)) against Doe (counts four, five, six, & seven); two counts of kidnapping to
commit robbery (§209, subd. (b)(1)) against Doe (counts eight & nine); false
imprisonment (§ 236) against Doe, Rashid, and Uddin (counts ten, sixteen, & seventeen);
and kidnapping (§ 207, subd. (a)) against Rashid, Uddin, and Bryant (counts fourteen,
fifteen, & twenty). The jury also found true the following enhancements: that defendant
used a firearm pursuant to section 12022.5, subdivision (a)(1) in counts one, ten, eleven,
sixteen, seventeen, and eighteen; that defendant personally used a firearm pursuant to
section 12022.53, subdivision (b) in counts two through nine, twelve through fifteen,
nineteen, and twenty; that defendant used a deadly weapon pursuant to section 12022.3,
subdivision (a) in counts four through seven; that defendant committed counts four
through seven during the commission of a burglary pursuant to section 667.61,
subdivision (e)(2); and that defendant personally used a firearm during the commission of
counts four through seven pursuant to section 667.61, subdivision (e)(3).
       The People’s motion to dismiss count three (assault with intent to commit rape)
due to insufficiency of the evidence was granted. The jury found not true the allegations
in counts four through seven that the forcible oral copulation occurred during the
commission of a burglary with the intent to commit forcible oral copulation.
       The trial court sentenced defendant to an indeterminate term of 114 years to life,
plus a determinate term of 120 years 8 months.



                                            11
                                      DISCUSSION
                                            I
                                Prosecutorial Misconduct
       A. Uncalled Witnesses
       The prosecutor argued in closing argument that defendant’s testimony was entirely
fabricated. As the prosecutor argued, given the DNA evidence and the discovery of the
victims’ property at his home, defendant had to come up with something. Thus, to
counter the most damaging evidence, the DNA, defendant claimed he had a consensual
sexual relationship with Jane Doe. To counter the stolen property in his garage, he
claimed he purchased it from Doe’s brother Sonny, whose name he pronounced
incorrectly.
       It was in the context of arguing that defendant’s testimony was a complete
fabrication, that the prosecutor made the following comment:

              “If I wanted to question Mr. Wright on everything that he testified to
       the other day, we’d still be going. I’d have called someone from Nike.[2]
       I’d have called someone from EA Sports.[3] I would have called a whole
       bunch more people, but sometimes you just have to know when to say
       when. And he had told so many lies at that point it was time to say when.
       That’s it.




2  A pair of Nike shoes seized from defendant’s home appeared similar to the shoes
worn by the suspect that were captured in Doe’s apartment complex’s surveillance photos
and the Travelex security camera photos. Defendant testified he owned an “abundance”
of Nike shoes because he was sponsored for five years by Nike when he played in the
National Football League (NFL).
3   It is unclear what relevance EA Sports has to the issue of defendant’s credibility.
Defendant’s opening brief claims EA Sports manufactured the Madden video game
stolen in the Rashid/Uddin robbery and found in defendant’s home. Defendant testified
that he got the Madden games free as a royalty for playing in the NFL. Defendant did not
say that EA Sports manufactured the game, and defendant points to no such evidence.

                                            12
               “The defense would just have you believe that all of these victims
       are liars, all of them.

              “As I said in my opening argument, the only person that sat in that
       stand and had to admit to being a liar because he was forced to was the
       defendant.”
       Defendant argues this comment deprived him of his Sixth Amendment right of
confrontation because it implied there were additional witnesses with evidence favorable
to the prosecution.
       1. Issue Forfeited for Failure to Object
       Defense counsel did not object to the above statement. A defendant cannot
complain on appeal of the prosecutor’s misconduct unless there was a timely objection
and admonition to the jury to disregard the impropriety. (People v. Benson (1990) 52
Cal.3d 754, 794.) There is no forfeiture if an objection would have been futile or if the
harm could not have been cured. (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
       Defendant claims an objection is futile if the court previously overruled an
objection “made in a similar vein.” He points to an earlier overruled objection to
evidence not in the record. (See part I.B., post.) Defendant is incorrect. A single, prior
similar objection overruled by the trial court is insufficient to demonstrate that an
objection would have been futile. As in both of the cases cited by defendant, People v.
Bain (1971) 5 Cal.3d 839, 848-849, fn. 1, and People v. Hill, supra, 17 Cal.4th at pp.
820-821, it must have been the “unusual circumstance[]” (People v. Hill, at p. 822) where
the prosecutor engaged in “continual misconduct, coupled with the trial court’s failure to
rein in [the prosecutor’s] excesses, [which] create[s] a trial atmosphere so poisonous that
[defense counsel is] thrust upon the horns of a dilemma. On the one hand, he could
continually object to [the prosecutor’s] misconduct and risk repeatedly provoking the trial
court’s wrath, . . . [or] decline to object, thereby forcing defendant to suffer the prejudice
caused by [the prosecutor’s] constant misconduct.” (Id. at p. 821.) No such circumstance
existed here.


                                              13
       2. Merits
       We nevertheless address the merits of the argument because defendant also asserts
an ineffective assistance of counsel claim. We conclude the prosecutor’s statement did
not amount to misconduct.
       The prosecutor’s argument did not suggest that she was in possession of
undisclosed inculpatory evidence that was being withheld from the jury, nor did she
attempt to state in her argument what the testimony of any such witness would be. The
prosecutor did not claim that she actually had more witnesses she could have called to
testify regarding the untruth of defendant’s statements, only that his testimony was so full
of untruths that bringing in all the witnesses to give such testimony would have been
infeasible because of the undue consumption of time. No reasonable juror would have
construed the prosecutor’s statements as implying that she was asking the jury to take her
word that there were witnesses ready to impeach defendant’s testimony if called. That
was not the point of her comments, only that defendant’s lies were so abundant, it would
be impractical to bring in testimony to refute them all.
       B. Arguing Facts Not in Evidence
       Defendant correctly argues that the prosecutor argued facts not in evidence when
she stated that eBay photographs were available only 90 days. However, the error was
harmless.
       During her initial closing argument, the prosecutor argued that the text messages
between defendant and Richardson regarding the eBay transaction were evidence they
were selling the platinum wedding ring set defendant stole from Doe on eBay. Defense
counsel’s argument cast doubt on the prosecutor’s theory by pointing out that there were
no pictures of the eBay transaction to confirm they were the rings stolen from Doe. In
rebuttal, the prosecutor stated, “EBay, [defense counsel] said, you know, there’s no
evidence of that. There’s no photos shown. Well, there are no photos. They are only
kept for 90 days. You can’t get them after 90 days.”

                                             14
       Defense counsel objected that those facts were not in evidence, but the trial court
overruled the objection. The prosecutor continued, “That’s why I showed you those text
messages. That is the evidence. That and those documents from eBay.”
       It was error for the prosecutor to refer to the fact that eBay photographs are
deleted after 90 days when that fact was not in evidence. However, the error was not a
violation of the federal Constitution, and was harmless under California law.
       “ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” (People v.
Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.)
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” (People v.
Espinoza, supra, 3 Cal.4th at p. 820.)’ ” (People v. Hill, supra, 17 Cal.4th at p. 819.)
       The prosecutor’s argument did not violate the federal Constitution because the one
incident of arguing facts not in evidence did not constitute a “pattern of conduct” that
infected the trial with unfairness.
       The prosecutor’s statement referring to facts not in evidence was misconduct
under California law. (People v. Hill, supra, 17 Cal.4th at p. 828.) Despite the
misconduct, the error is not sufficient to merit reversal of defendant’s conviction.
Prosecutor misconduct does not require reversal in the absence of prejudice. (People v.
Bolton (1979) 23 Cal.3d 208, 214.) Where, as here, there is no federal constitutional
violation as a result of the prosecutor’s misconduct, the test of prejudice is “whether it is
‘reasonably probable that a result more favorable to the defendant would have occurred
had the district attorney refrained from the comment attacked by the defendant.
[Citations.]’ [Citation.]” (Id. at p. 214.) Our conclusion is the same under the harmless

                                              15
beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17
L.Ed.2d 705].
       The evidence against defendant was overwhelming. All four victims either
identified defendant as the perpetrator or indicated he generally matched the perpetrator’s
height, weight, race, and age. One of the victims identified a piece of clothing at
defendant’s residence as that worn by the perpetrator. The evidence was overwhelming
that all the crimes were committed by the same person because: (1) all the victims and
the defendant lived in the same geographic area; (2) all the crimes took place after
midnight; (3) in all instances the perpetrator entered through an open door; (4) in all the
crimes the suspect was armed with a handgun; (5) the suspect told all victims not to look
at him; (6) the suspect asked three of the victims where the “fucking” guns and money
were; (7) the suspect made three of the victims lie on the floor; (8) in two of the incidents
defendant forced the victims in the trunks of their cars; and (9) in two of the incidents he
disassembled the victims’ cell phones and threw them in the toilet.     A bandana identical
to the one worn in the Doe assault was identical to that found in defendant’s garage and
stolen property from all three robberies was found at defendant’s home. Within hours of
Rashid’s Qatari Riyals being stolen, a search for the value of Qatari Riyals was
performed on defendant’s computer. The next day, defendant went with his mother to
exchange for dollars the quantity of Qatari Riyals stolen, an exceedingly rare transaction
in Sacramento. On the day Doe was assaulted, defendant conducted multiple internet
searches regarding Natomas home invasions. Defendant’s DNA was found on Doe.
       A half-carat platinum wedding ring was stolen from Doe, and a week later
defendant texted a friend regarding her efforts to sell on his behalf a half-carat platinum
wedding ring. In light of the overwhelming evidence against defendant, and numerous
fabrications in his testimony, the jury would have concluded defendant was guilty of all
charges even if the prosecutor had not told the jury there were no pictures of the ring sold
on eBay because the records were destroyed after 90 days.

                                             16
                                              II
                                         Instructions
        A. CALCRIM No. 222
        In the oral instructions to the jury, the trial court gave the standard CALCRIM No.
222 instruction as follows: “Evidence is the sworn testimony of witnesses, the exhibits
admitted into evidence, and anything else I told you to consider as evidence. [¶] Nothing
that the attorneys say is evidence. In their opening statements and closing arguments, the
attorneys will discuss the case, but their remarks are not evidence. Their questions are
not evidence. Only the witnesses’ answers are evidence. The attorneys’ questions are
significant only if they help you understand the witnesses’ answers. Do not assume that
something is true just because one of the attorneys asked a question that suggested it was
true. . . .”
        However, in the written instructions given to the jury, the word “attorneys” was
replaced with the word “parties” as follows: “Nothing that the parties say is evidence. In
their opening statements and closing arguments, the parties discuss the case, but their
remarks are not evidence. Their questions are not evidence. Only the witnesses’ answers
are evidence. The parties’ questions are significant only if they helped you to understand
the witnesses’ answers. Do not assume that something is true just because one of the
parties asked a question that suggested it was true. . . .” (Italics added.)
        Noting that where there is a discrepancy between the written and oral instruction,
the written instructions control, defendant argues that because he was a party to this
action and his attorney was not, the written instruction prohibited the jury from
considering his trial testimony as evidence. This, he claims, denied his constitutional
right to testify on his own behalf. We conclude any error was harmless.
        We review the merits of the claimed instructional error even though there was no
objection below because defendant claims the instruction affected a substantial right, i.e.,




                                              17
the right to testify on his own behalf. (People v. Ramos (2008) 163 Cal.App.4th 1082,
1087.)
         “When an appellate court addresses a claim of jury misinstruction, it must assess
the instructions as a whole, viewing the challenged instruction in context with other
instructions, in order to determine if there was a reasonable likelihood the jury applied
the challenged instruction in an impermissible manner. [Citations.]” (People v. Wilson
(2008) 44 Cal.4th 758, 803-804.) We also consider the arguments made by counsel “in
assessing the probable impact of the instruction on the jury.” (People v. Young (2005) 34
Cal.4th 1149, 1202.)
         Although the substitution of “parties” for “attorneys” in the instruction may have
constituted a technical error, the error was harmless beyond a reasonable doubt.
(Chapman v. California, supra, 386 U.S. 18, 24 [17 L.Ed.2d 705].) Before the jury heard
any testimony, the trial court gave CALCRIM No. 104 as follows: “Nothing that the
attorneys say is evidence. In their opening statements and closing arguments, the
attorneys will discuss the case, but their remarks are not evidence. Their questions are
not evidence. Only the witnesses’ answers are evidence. . . .” The court gave this
instruction again at the close of evidence. Also, as stated, the oral instruction referred to
the attorneys rather than the parties. Thus, when the trial court gave essentially the
identical instruction, but substituted the word “parties” for “attorneys” the jury must have
understood that the distinction being made was between the statements of the witnesses--
which was evidence--and the statements of the attorneys representing the parties--which
was not evidence.
         Furthermore, the jury understood that the defendant, as a party, did not give an
opening statement or closing argument, nor did he ask questions. Therefore, the jury
would have understood that the trial court was referring to defendant’s attorney and the
prosecutor when it gave the instruction. Finally, both the prosecutor and defense counsel
reviewed defendant’s testimony during closing argument. The jury would not have

                                              18
understood that it could disregard defendant’s testimony, when the attorneys gave that
testimony so much attention.
       Considering all the above, there is no reasonable likelihood the jury understood
the instruction to mean it could disregard defendant’s testimony.
       B. CALCRIM No. 302
       The trial court gave the following standard instruction regarding conflicting
evidence: “If you determine there is a conflict in the evidence, you must decide what
evidence, if any, to believe. Do not simply count the number of witnesses who agree or
disagree on a point and accept the testimony of the greater number of witnesses. On the
other hand, do not disregard the testimony of any witness without a reason or because of
prejudice or a desire to favor one side or the other. What is important is whether the
testimony or any other evidence convinces you, not just the number of witnesses who
testify about a certain point.”
       Defendant argues that while the instruction is correct with respect to inculpatory
evidence, it is erroneous when applied to exculpatory evidence. He argues that
inculpatory evidence must be found convincing beyond a reasonable doubt, but
exculpatory evidence need not be found convincing or believable. It need only raise a
reasonable doubt as to guilt. He argues it was error to instruct the jury to evaluate
exculpatory and inculpatory evidence according to the same standard. He claims the
instruction diluted the People’s burden of proof by suggesting that the jury may believe
defendant’s witnesses only if it finds that their testimony is believable and convincing,
rather than capable of raising a reasonable doubt.
       Defendant forfeited the argument by failing to object or request a modification
below. A defendant who believes an instruction is incomplete or needs clarification is
obligated to request an additional or clarifying instruction. (People v. Maury (2003) 30
Cal.4th 342, 426.) Failure to request such clarification forfeits the claim on appeal.



                                             19
(People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on another point in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn 22.)
       In any event there is no merit to the argument. The instruction CALCRIM No.
302 says nothing at all about reasonable doubt, and several other instructions were given
that reiterated the prosecution’s burden of proving guilt beyond a reasonable doubt, i.e.,
CALCRIM Nos. 103 and 220 (“A defendant in a criminal case is presumed to be
innocent. This presumption requires that the People prove a defendant guilty beyond a
reasonable doubt.”) and CALCRIM No. 315 (“The People have the burden of proving
beyond a reasonable doubt that it was the defendant who committed the crime. If the
People have not met this burden, you must find the defendant not guilty.”). CALCRIM
No. 302 “does not tell the jury to disregard the prosecution’s burden of proof or to decide
the case on the basis of disbelief of defense witnesses or presentation of more compelling
evidence by the prosecution than by the defense.” (People v. Ibarra (2007) 156
Cal.App.4th 1174, 1191)
       Furthermore, the instruction leaves it to the jury to “decide what evidence, if any ,
to believe.” (CALCRIM No. 302.) Logically, this means the jury may conclude there is
a reasonable doubt as to guilt even if it does not believe defendant’s exculpatory
evidence. The instruction does not say that the jury must believe defendant’s exculpatory
evidence before it may conclude there is a reasonable doubt as to his guilt. The jury was
correctly instructed.
       C. CALCRIM No. 376
       Without objection from defendant, the trial court instructed the jury with
CALCRIM No. 376 as follows: “If you conclude that the defendant knew he possessed
property and you conclude that the property had in fact been recently stolen, you may not
convict the defendant of robbery and/or burglary based on those facts alone. However, if
you also find that supporting evidence tends to prove his guilt, then you may conclude
that the evidence is sufficient to prove he committed robbery and/or burglary. [¶] The

                                             20
supporting evidence need only be slight and need not be enough by itself to prove guilt.
You may consider how, where, and when the defendant possessed the property, along
with any other relevant circumstances tending to prove his guilt of robbery and/or
burglary. [¶] Remember that you may not convict the defendant of any crime unless you
are convinced that each fact essential to the conclusion that the defendant is guilty of that
crime has been proved beyond a reasonable doubt.”
       Thus, the instruction allowed the jury to infer defendant was guilty of burglary and
robbery from the fact that he knowingly possessed property that had been recently stolen,
only if there was at least slight supporting evidence tending to prove guilt. Such an
instruction contains a permissive inference.
       Defendant argues this instruction violated the test set forth in Ulster County Court
v. Allen (1979) 442 U.S. 140 [60 L.Ed.2d 777] (Ulster County) because it reduced the
People’s burden of proof by its reference to “slight” supporting evidence, and smothered
the presumption of innocence. We review the merits of defendant’s argument even
though he made no objection at trial because he asserts a violation of substantial
constitutional rights. (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574.) We
nevertheless find no merit to his arguments.
       Defendant argues the instruction violated due process because it did not comport
with Ulster County, supra, 442 U.S. 140. Ulster County held that a permissive
presumption that “leaves the trier of fact free to credit or reject the inference and does not
shift the burden of proof . . . affects the application of the ‘beyond a reasonable doubt’
standard only if, under the facts of the case, there is no rational way the trier could make
the connection permitted by the inference.” (Id. at p. 157.) “A permissive inference
violates the Due Process Clause only if the suggested conclusion is not one that reason
and common sense justify in light of the proven facts before the jury.” (Francis v.
Franklin, (1985) 471 U.S. 307, 314-315 [85 L. Ed. 2d 344].)



                                               21
       Defendant argues an inference that he was guilty of the crimes of robbery and
burglary from the fact that he was in possession of the stolen property was not a rational
inference. He recognizes that the Supreme Court has “repeatedly upheld the giving of the
instruction . . . .” (People v. Gamache (2010) 48 Cal.4th 347, 375.) But, he argues, the
instruction did not pass muster under the facts of this case. He claims the inference of
guilt that arose in this case from his possession of the stolen property was “much weaker”
because he offered an innocent explanation for his possession of the property.
       Defendant’s explanation for possession of the property was inherently
unbelievable. He claimed to have acquired the stolen property from “Sony” Lee, Jane
Doe’s brother, a 39-year-old network engineer whose name defendant did not know how
to pronounce. Sonny Lee testified he did not know defendant and had never met him.
The intruder every victim described was someone who looked like defendant, not
someone who looked like Sonny Lee, who testified at trial. This, coupled with the
victims’ identification of defendant as their intruder, made the inference of guilt “ ‘ “one
that reason and common sense justify in light of the proven facts before the jury.” ’ ”
(People v. Gamache, supra, 48 Cal.4th 347, 375.)
       Defendant also argues CALCRIM No. 376 undermines the presumption of
innocence and the standard of proof beyond a reasonable doubt. The California Supreme
Court has rejected the contention that the instruction lowers the People’s burden of
proving guilt beyond a reasonable doubt. “CALJIC No. 2.15 [(CALCRIM No. 376’s
predecessor)] did not directly or indirectly address the burden of proof, and nothing in the
instruction absolved the prosecution of its burden of establishing guilt beyond a
reasonable doubt.”4 (People v. Prieto (2003) 30 Cal.4th 226, 248.) Additionally,


4   CALJIC No. 2.15 read:

   “If you find that a defendant was in [conscious] possession of recently [stolen]
[extorted] property, the fact of that possession is not by itself sufficient to permit an

                                              22
CALCRIM No. 376, unlike its predecessor contains the added instruction: “Remember
that you may not convict the defendant of any crime unless you are convinced that each
fact essential to the conclusion that the defendant is guilty of that crime has been proved
beyond a reasonable doubt.”
       Defendant claims the jury instruction “derives historically from a substantial
evidence test used by reviewing courts to test the sufficiency of the evidence on appeal.”
He then cites a number of federal Fifth Circuit cases concerning an instruction permitting
the jury to link a defendant to a proven criminal conspiracy with only slight evidence.
(United States v. Partin (5th Cir. 1977) 552 F.2d 621, 628; United States v. Hall (5th Cir.
1976) 525 F.2d 1254; United States v. Gray (5th Cir. 1980) 626 F. 2d 494, 500.) That
instruction read, “ ‘when a conspiracy has been established by competent proof, only
slight evidence is necessary to connect a person with the conspiracy.’ ” (United States v.
Hall, at p. 1255.) He quotes United States v. Hall which held, “this instruction correctly
describes the standard a court should use to determine whether the evidence against a
particular defendant supports submission of the case to the jury, but the language should
not be used in the charge to a jury.” (Id. at pp. 1255-1256, fn. omitted.)
       The Fifth Circuit cases did not involve a permissive inference at all, rather the
offending instruction allowed the jury to connect a person to the commission of a crime
on only slight evidence. The instruction here, by contrast, “is a permissive, cautionary


inference that the defendant is guilty of the crime of ___. Before guilt may be inferred,
there must be corroborating evidence tending to prove defendant's guilt. However, this
corroborating evidence need only be slight, and need not by itself be sufficient to warrant
an inference of guilt.

    “As corroboration, you may consider [the attributes of possession—time, place and
manner,] [that the defendant had an opportunity to commit the crime charged,] [the
defendant's conduct,] [[his] [her] false or contradictory statements, if any,] [and] [or]
[other statements [he] [she] may have made with reference to the property] [a false
account of how [he] [she] acquired possession of the stolen property] [any other evidence
which tends to connect the defendant with the crime charged].”

                                             23
instruction which inures to a criminal defendant’s benefit by warning the jury not to infer
guilt merely from a defendant’s conscious possession of recently stolen goods, without at
least some corroborating evidence tending to show the defendant’s guilt.” (People v.
Barker (2001) 91 Cal.App.4th 1166, 1174.) Otherwise, the jury’s natural inclination
might be to convict a defendant solely on the highly incriminating fact that he is in
possession of the stolen goods.
       Finally, “CALCRIM No. 376 makes it quite apparent that the ‘slight’ supporting
evidence is not to be considered in isolation, but together with all of the other evidence
for purposes of determining whether there is proof beyond a reasonable doubt that the
defendant committed robbery. [Citation.] The instruction expressly requires the jury to
be ‘convinced that each fact essential to the conclusion that the defendant is guilty of that
crime has been proved beyond a reasonable doubt.’ (CALCRIM No. 376.) Thus,
CALCRIM No. 376 does nothing to diminish the prosecution’s burden of proof.”
(People v. Lopez (2011) 198 Cal.App.4th 698, 711.)
                                          III
                               Doe Kidnapping Convictions
       Defendant was convicted in counts eight and nine of two counts of kidnapping
with intent to rob Jane Doe, for which he received consecutive seven-year-to-life
sentences. Defendant argues one of the kidnapping convictions must be reversed,
because “the evidence established a single, uninterrupted period of confinement, with no
interval in which the victim regained her freedom . . . .” The People agree, and we accept
the concession.
       Defendant also argues the abstract of judgment should be corrected to reflect that
the sentence for kidnapping with intent to rob is life with the possibility of parole, rather
than seven years to life. The People also concede this issue, and we will order the
abstract corrected.




                                              24
       A. Single Kidnapping
       In closing argument, after listing the elements of the offense of kidnapping for
robbery, the prosecutor argued: “And what this goes to is the two instances at the bank,
all right? What does the defendant say before they even go out to the garage? Get your
debit card, we are going to the bank. That shows his intent right there. I’m intending to
commit a robbery before we even get in the car. He intended to commit a robbery when
he ordered her into the car and made her drive to the Wells Fargo. [¶] The same thing
when she gets back in the car, gives him the $300, he tells her to drive to the Bank of
America and does the same thing again. Doesn’t matter whether or not he actually
committed a robbery. For instance, at the Bank of America, she couldn’t withdraw any
more money.”
       “[T]he crime of kidnapping continues until such time as the kidnapper releases or
otherwise disposes of the victim and has reached a place of temporary safety . . . .”
(People v. Barnett (1998)17 Cal.4th 1044, 1159.) Thus, a single abduction followed by a
continuous period of detention results in only one kidnapping offense. (People v.
Thomas (1994) 26 Cal.App.4th 1328.)
       Here, even though defendant took Doe to two different banks, she remained
forcibly detained the entire time. Defendant threatened her with his gun before she exited
the car at each bank, and Doe was too afraid to try to escape while she was at the ATM.
The kidnapping continued until Doe was freed. (People v. Platz (2006) 136 Cal.App.4th
1091, 1107.) Therefore, there can be only one kidnapping offense against Doe.5




5   Because we determine that one of the kidnapping convictions must be reversed, we
need not address defendant’s argument that the trial court had a sua sponte duty to
instruct the jury on how to determine when one kidnapping ends and another begins.

                                            25
       B. Sentence for Kidnapping for Robbery is Life with Possibility of Parole
       The trial court sentenced defendant to an “indeterminate term of life with
minimum eligible parole dates on those crimes [(the two kidnappings for the purpose of
robbing Doe)] of seven years.” However, the abstract of judgment listed the punishment
for those crimes as seven years to life. Defendant notes that the punishment for a
violation of section 209, subdivision (b) is life with the possibility of parole. A different
statute, section 3046, subdivision (a)(1), provides that no prisoner imprisoned under a life
sentence may be paroled before serving at least seven years.
       Defendant argues the sentence recorded in the abstract of judgment is potentially
prejudicial if section 3046 is ever amended or repealed, because he could not benefit
from a change in the law if the seven-year term is incorporated into his sentence as a
mandatory minimum.
       The People agree that the minimum parole date is not a part of the sentence, and
that abstract should be amended. We shall order it.
                                            IV
                              False Imprisonment Convictions
       Defendant was convicted in counts eight, nine, fourteen, and fifteen of kidnapping
Rashid, Uddin, and Doe. He was also convicted in counts ten, sixteen, and seventeen of
false imprisonment for the same victims, and sentenced to consecutive terms of eight
years for each count. The false imprisonment convictions were based on defendant’s
actions in locking the victims in the trunks of their cars.
       Defendant argues he may not be convicted of both kidnapping and false
imprisonment because false imprisonment is a necessarily included offense of
kidnapping. The People concede the issue, and we agree.
       “The law prohibits simultaneous convictions for both a greater offense and a lesser
offense necessarily included within it, when based on the same conduct.” (People v.
Milward (2011) 52 Cal.4th 580, 589.) An offense is a necessarily included in a greater


                                              26
offense “if the greater crime ‘ “cannot be committed without also necessarily
committing” ’ the lesser offense.” (Id. at p. 588.) False imprisonment is a necessarily
included offense of kidnapping. (People v. Magana (1991) 230 Cal.App.3d 1117, 1120-
1121.)
         As indicated previously, Doe’s kidnapping did not end until she was freed, thus
her time locked in her trunk was part of her kidnapping. As to Rashid and Uddin, the
prosecutor argued the jury could find defendant guilty of kidnapping based on his forcing
the victims into the trunk of the car. The false imprisonment convictions must be
reversed because they were based on the same conduct as the kidnapping convictions.
                                             V
                             Sufficient Evidence of Asportation
         Defendant was convicted of kidnapping Rashid, Uddin, and Bryant. The trial
court gave the following instruction on the elements of kidnapping: “One, the defendant
took, held, or detained another person by using force or by instilling reasonable fear; [¶]
[t]wo, using that force or fear, the defendant moved the other person or made the other
person move a substantial distance; [¶] [t]hree, the other person did not consent to the
movement; and [¶] [f]our, the defendant did not actually and reasonably believe that the
other person consented to the movement. [¶] . . . [¶] Substantial distance means 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 the robbery, whether the movement increased the risk of physical or
psychological harm, increased the danger of a foreseeable escape attempt, gave the
attacker a greater opportunity to commit additional crimes, or decreased the likelihood of
detection.”




                                             27
       Defendant argues the evidence showed no more than room-to-room movement
within the victims’ houses, and that such movement is insufficient to support a conviction
for kidnapping. We disagree that just because the movement was solely within the
victims’ homes and attached garages, the movement was necessarily insubstantial.
Defendant cites two cases for this proposition, People v. Sheldon (1989) 48 Cal.3d 935
and People v. Brown (1974) 11 Cal.3d 784. However, both were decided before People
v. Martinez (1999) 20 Cal.4th 225 (Martinez), the Supreme Court decision that changed
the test for determining a “substantial distance” in simple kidnapping from a
determination based solely on the actual distance moved to a consideration of the
“ ‘scope and nature’ ” of the movement. (Id. at pp. 235-236.)
       The test set forth in Martinez directs a consideration of the “totality of the
circumstances,” which includes: (1) the actual distance moved, (2) whether the
movement increased the risk of harm above that which existed prior to the movement, (3)
whether the movement decreased the likelihood of detection, and (4) whether the
movement increased the danger inherent in the victim’s foreseeable attempts to escape
and the defendant’s enhanced opportunity to commit additional crimes. (Martinez, supra,
20 Cal.4th at p. 237.) Where, as here, the case involves an associated crime, the jury
must also consider whether the “distance a victim was moved was incidental to the
commission of that crime in determining the movement’s substantiality.” (Id. at p. 237.)
       The jury was correctly instructed in the factors it should consider in determining
whether the movement was substantial, and we conclude there was sufficient evidence to
support the jury’s determination in each case.
       Rashid and Uddin were both locked in the trunk of a car after being taken from
room to room inside the house and out into the garage. This movement decreased the
likelihood of detection and enhanced defendant’s opportunity to go through the house
looking for more things to steal. Closing the two victims up in the trunk of the car was
not merely incidental to the robbery, as the robbery could have been committed without

                                             28
putting the victims in the trunk. Arguably, the movement also increased the risk of harm
to the victims. Had there not been a safety release in the trunk, the victims would not
have been able to escape until someone discovered them, if anyone discovered them.
       Bryant, who was 60 years old, was made to crawl on his hands and knees from
room to room in his house while defendant held a gun to his neck. There was sufficient
evidence in the record from which the jury could have concluded Bryant had suffered a
stroke a few months before the incident.6 7 The jury could have concluded that forcing
Bryant to crawl from room to room was movement that increased the risk of physical
harm to Bryant, who was older and had recently suffered a stroke. This was sufficient for
the jury to conclude the movement of Bryant was substantial and not trivial or slight.
                                       VI
        Firearm Enhancement and Count One Burglary Sentence Must Be Stayed
       Defendant was convicted of forcible oral copulation against Doe in counts four
through seven. As to those four counts, the complaint alleged that defendant committed
them during the commission of a burglary within the meaning of section 667.61,
subdivision (e)(2) and personally used a deadly or dangerous weapon within the meaning
of section 667.61, subdivision (e)(3). The trial court sentenced defendant to four 25-year-
to-life sentences for counts four through seven pursuant to section 667.61, also known as
the “One Strike” law.
       As is relevant, section 667.61 provides that an indeterminate term of 25 years to
life shall be imposed if the defendant has been found guilty of forced oral copulation, and



6  The stroke affected Bryant’s memory. He said on direct that he had the stroke in
January 2012. He stated on cross that the stroke occurred in January 2011, six months
before the incident.
7   At the preliminary hearing Bryant said the stroke was in 2011. He also indicated he
had severe neuropathy in his legs. Although this information was not before the jury, the
jury would have been able to see Bryant and assess his physical condition.

                                            29
at least two specified circumstances apply, including: (1) oral copulation during the
commission of burglary, and (2) with the personal use of a firearm. Accordingly,
defendant received a term of 25 years to life for each of counts four through seven.
       Subdivision (f) of section 667.61 “provides that if only the minimum number of
qualifying circumstances required for One Strike sentencing treatment have been pled
and proved, they must be used as the basis for imposing the One Strike term rather than
to impose lesser enhancements or punishment under any other law.” (People v. Mancebo
(2002) 27 Cal.4th 735, 742.) Notwithstanding the provisions of subdivision (f), the trial
court imposed a 10-year enhancement on each of counts four through seven pursuant to
section 12022.53, subdivision (b), for personal use of a firearm in the commission of a
felony, in addition to the 25-year-to-life One Strike sentences. It also imposed a
consecutive one-year four-month sentence for the burglary of Doe (count one).
       Defendant argues the firearm use enhancements as to counts four through seven
must be stricken, and the burglary sentence imposed in count one must be stayed. The
People concede, and we agree.
                                           VII
                        Multiple Counts of Forced Oral Copulation
       As indicated, defendant was convicted of four counts of forced oral copulation
against Doe, for which he received consecutive sentences of 25 years to life for each.
The authorization for the consecutive terms was section 667.6, subdivision (d), which
provides: “A full, separate, and consecutive term shall be imposed for each violation of
an offense specified in subdivision (e) [(including forced oral copulation)] if the crimes
involve separate victims or involve the same victim on separate occasions. [¶] In
determining whether crimes against a single victim were committed on separate
occasions under this subdivision, the court shall consider whether, between the
commission of one sex crime and another, the defendant had a reasonable opportunity to
reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.


                                             30
Neither the duration of time between crimes, nor whether or not the defendant lost or
abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the
issue of whether the crimes in question occurred on separate occasions.”
       Doe estimated she performed oral sex on defendant for 15 to 20 minutes. He
asked her twice if she wanted to stop, and the second time she did stop for a moment,
they had a brief conversation, then he told her to start again. She estimated that she took
defendant’s penis out of her mouth, then started again approximately 10 or more times.
At one point, defendant asked Doe to use her hands only, then told her to put his penis
back in her mouth. There were approximately 10 times that Doe took defendant’s penis
out of her mouth, and was told to start again.
       Defendant argues there was insufficient evidence to support the trial court’s
determination that the crimes involved separate occasions. Citing People v. Corona
(1988) 206 Cal.App.3d 13, 17-18 and People v. Pena (1992) 7 Cal.App.4th 1294, 1299,
he argues Doe’s testimony “did not establish any significant interval between sexual acts
affording a reasonable opportunity for reflection.”
       However, People v. Corona did not require a significant interval between sexual
acts; in fact in Corona we concluded there was “no evidence of any interval ‘between’
[the] sex crimes . . . .” (People v. Corona, supra, 206 Cal.App.3d at p. 18, italics added.)
Likewise, People v. Pena did not require a significant interval between sexual acts, and
indicated the defendant could not be punished for both rape and oral copulation because
he “did not cease his sexually assaultive behavior, and, therefore, could not have resumed
sexually assaultive behavior.” (People v. Pena, supra, 7 Cal.App.4th at p. 1316.)
       In reviewing whether there was sufficient evidence to support the trial court’s
determination that the four incidents of forced oral copulation occurred on separate
occasions, this court is “ ‘not at liberty to overturn the result unless no reasonable trier of
fact could decide that there was a reasonable opportunity for reflection.’ ” (People v.



                                              31
Pena, supra, 7 Cal.App.4th at pp. 1314-1315, quoting People v. Corona, supra, 206
Cal.App.3d at p. 18, fn. 2.)
       “Under the broad standard established by Penal Code section 667.6, subdivision
(d), the Courts of Appeal have not required a break of any specific duration or any
change in physical location.” (People v. Jones (2001) 25 Cal.4th 98, 104.) “[T]he
duration of time between the acts and the retention of the opportunity to attack again are
not themselves determinative. . . . [W]here . . . the trial court finds the time and the
circumstances were sufficient to afford the defendant with the required opportunity to
reflect upon his actions and he thereafter resumed his sexually abusive conduct, that
finding will be upheld unless no reasonable trier of fact could have so concluded.”
(People v. Plaza (1995) 41 Cal.App.4th 377, 385.)
       In determining whether the “separate occasions” standard is unconstitutionally
vague, this court opined: “It takes no particular depth of reasoning to be able to
distinguish between a situation where a perpetrator engages in a continuous course of
conduct involving multiple sex offenses with no break in between and one in which the
individual offenses are separated by some other activity, either of the defendant or
another, that interrupts the assault and affords the perpetrator an opportunity to reflect on
what he or she is doing. The activity need not involve any type of movement of the
victim and need not be of any particular duration. It may be nothing more than car lights
going by that cause the perpetrator to pause and reflect before proceeding, as in King, or
some activity not amounting to a sex offense, like pausing to listen to the victim’s
answering machine or punching the wall, as in Plaza.” (People v. Solis (2012) 206
Cal.App.4th 1210, 1220.)
       We conclude that the break which occurred when defendant allowed Doe to stop
fellating him and conversed with her briefly was sufficient evidence from which the trial
court could conclude the defendant had a reasonable opportunity for reflection.
Likewise, when Doe either stopped fellating defendant, or was stimulating his penis with

                                              32
her hands, only to be told to resume oral sex, the court could conclude defendant had a
reasonable opportunity to reflect on his actions, and chose to again force Doe to perform
oral sex. The trial court correctly imposed consecutive sentences for each conviction of
forced oral copulation.
                                          VIII
                    Trial Court’s Reason for Sentence Was Sufficient
       In imposing four consecutive 25-year-to-life sentences on the forced oral
copulation convictions, the trial court stated: “[California Rules of Court,] Rule 4.426
applies with regard to the sexual assault offenses. These crimes were committed against
a single victim but were committed on separate occasions, and therefore I am going to
sentence you under subsection 667.6 subdivision (d).” Defendant argues the trial court’s
statement was insufficient under People v. Irvin (1996) 43 Cal.App.4th 1063, 1070-1072.
       In People v. Irvin, the defendant was convicted of 20 sex crimes and the trial court
imposed consecutive sentences on all 20 counts.8 (People v. Irvin, supra, 43 Cal.App.4th
at p. 1020) The defendant argued there were only four separate occasions. (Id. at p.
1071.) The court of appeal remanded for resentencing because it doubted “any



8   In sentencing the defendant to consecutive sentences the trial court stated in relevant
part: “ ‘The jury having found that there were separate counts of each particular offense
committed, it then is incumbent upon me to determine whether or not the crimes against
the victim were committed on separate occasions. I have to consider whether in the
commission of any of these offenses the defendant had a reasonable opportunity to reflect
upon his actions, upon such reflection, then resume the sexually assaultive behavior that
he engaged in. [¶] I am making the determination that . . . there was opportunity for a
reflection on behalf of the defendant. This went over a duration of time these various
acts were committed, then there was a brief interval. As Miss Frazier indicated, he would
stop, have a brief conversation, catch his breath, go back and commit other acts. There
was some moving around within the house when these acts were committed. In other
words, at one point in time several of the acts were in one room, they went on into
another room when the acts continued there. [¶] Accordingly, I find that under those
dictates that a consecutive sentence would be in order.’ ” (People v. Irvin, supra, 43
Cal.App.4th 1063, 1069-1070.)

                                            33
reasonable trier of fact could find that every act or offense was committed on a separate
occasion.” (Id. at p. 1071.) It stated, “if the court decides to resentence defendant under
subdivision (d), it must give a factual explanation supporting its finding of ‘separate
occasions’ for each count sentenced under that subdivision. An overall statement of the
court’s general impression of the evidence is insufficient.” (Id. at p. 1072.)
       Defendant argues the trial court’s statement in this case was insufficient, and that
the case must be remanded to give the trial court an opportunity to state its rationale as to
each offense. We disagree.
       The question defendant has presented for us is whether there was sufficient
evidence that the sex offenses were committed on separate occasions. We concluded
there was sufficient evidence in the record to support the trial court’s finding. Here,
unlike Irvin, the record leaves no room for doubt whether a reasonable trier of fact could
find each offense was committed on a separate occasion. Thus, we do not require more
specific findings for a meaningful review.
       Furthermore, although section 1170, subdivision (c) requires the trial court to
“state the reasons for its sentence choice on the record,” the trial court has no sentence
choice under section 667.6, subdivision (d), if it determines the offenses occurred on
separate occasions. If the trial court determines that section 667.6, subdivision (d)
applies, consecutive terms are not a choice, but are mandatory. No statement of reasons
is required for imposition of a mandatory term. (People v. Craft (1986) 41 Cal.3d 554,
559, superseded by statute on another point as stated in People v. Jones, supra, 25 Cal.4th
98, 112 ; People v. Smith (1984) 155 Cal.App.3d 539, 543.) Nothing in section 667.6,
subdivision (d) indicates that the trial court must state reasons to support its finding of
“separate occasions.” We will not remand for resentencing on this ground.




                                              34
                                             IX
                                        Section 654
        Section 654 provides in part: “An act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” The section applies not only to a single act in
the ordinary sense, but to a course of conduct that comprises an indivisible transaction.
(People v. Davis (1966) 241 Cal.App.2d 51, 55.) Defendant argues several of the
sentences the trial court imposed should have been stayed pursuant to section 654.
        A. Burglary and Robbery
        Defendant was convicted in count eleven of burglary of the Rashid-Uddin
residence and in count eighteen of burglary of the Bryant residence. He was also
convicted in counts twelve, thirteen, and nineteen of robbing Rashid, Uddin, and Bryant.
Neither of the one-year four-month burglary sentences was stayed.
        Section 654 precludes punishment for both burglary and robbery where the
burglary was incident to the objective of stealing from the victim. (People v. Green
(1985) 166 Cal.App.3d 514, 518.) The People concede that defendant harbored a single
intent and objective of stealing from the victims when he committed the offenses, and
that the burglary offenses must be stayed. We accept the concession, and agree with the
People that the firearm enhancements imposed as to the burglary counts must also be
stayed.
        Defendant’s additional argument that the burglary sentence must by stayed under
section 654 as to the offense against Doe is moot in light of our decision in section VI,
ante.
        B. Robbery and Kidnapping.
        As to the robbery and kidnapping counts involving Rashid, Uddin, and Bryant,
defendant argues the kidnapping sentences should be stayed because the kidnapping of


                                             35
those victims was part of a continuous course of conduct motivated by a single intent and
objective, which was to commit robbery. The People respond that defendant’s intent and
objective with respect to Uddin and Rashid was to falsely imprison them in the trunk of
the car, and the intent and objective with respect to Bryant was to dominate and control
Bryant.
       The pertinent question is whether the kidnappings facilitated or were incidental the
commission of the robberies. (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 818.)
Even if the kidnappings were incidental to the commission of the robberies, they may be
separately punished if the means employed were so extreme they can no longer be
considered merely incidental. (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.)
Thus, in People v. Nguyen the court held the defendant could be separately sentenced for
attempted murder and robbery when he and his accomplice entered a market, and the
defendant emptied the cash register while his accomplice took the clerk to a back room
and shot the clerk in the back. (Id. at pp. 185, 191.) The shooting was so extreme and
unnecessary it could not be considered merely incidental to the robbery, even though it
facilitated the robbery.
       1. Bryant
       As to Bryant, there is no apparent reason for the kidnapping, which consisted of
making Bryant crawl from room to room at gunpoint, other than to facilitate the robbery.
The People claim the reason was to dominate and control Bryant, but the domination and
control was for the purpose of carrying out the robbery. We also conclude that forcing
the victim to crawl from room to room, rather than walk, was not so extreme and
unnecessary as to be deserving of separate punishment. We will stay the sentence for the
kidnapping of Bryant, as well as the enhancement imposed on the kidnapping conviction.
       2. Rashid and Uddin
       The Rashid and Uddin robbery is different to the extent the kidnapping consisted
of taking the victims to the garage and locking them in the trunk of the car. Three cases

                                            36
are pertinent to our analysis. The first is People v. Nguyen, supra, 204 Cal.App.3d at pp.
185, in which the court held that the defendant could be separately punished for robbery
and attempted murder, even though the attempted murder was accomplished by
defendant’s companion while defendant was in the process of robbing the till. In
response to the argument that the intent and objective was to allow escape, thus facilitate
the commission of the robbery, the court stated: “at some point the means to achieve an
objective may become so extreme they can no longer be termed ‘incidental’ and must be
considered to express a different and a more sinister goal than mere successful
commission of the original crime. [¶] We should not lose sight of the purpose
underlying section 654, which is ‘to insure that a defendant’s punishment will be
commensurate with his culpability.’ ” (Id. at p. 191.)
       Also pertinent is People v. Foster (1988) 201 Cal.App.3d 20, 27-28 (Foster), in
which the court held that section 654 did not foreclose a sentence for both false
imprisonment and robbery where the defendant locked the victims in the cooler of a mini-
mart. The defendant argued the false imprisonment was merely incidental to the robbery,
but the court held that since the imprisonment occurred after the robbers had obtained all
of the money, the imprisonment was not necessary or incidental to the commission of the
robbery. (Id. at p. 27.) “Locking the victims in the store cooler was potentially
dangerous to their safety and health. It is analogous to a needless or vicious assault
committed after a robbery, which has long been held separately punishable and
distinguishable from an assault which is merely incidental to robbery.” (Id. at pp. 27-
28.)
       Finally, in People v. Saffle (1992) 4 Cal.App.4th 434, 437 (Saffle), after the
defendant had sexually assaulted the victim and while armed with a knife, forbade the
victim to answer a knock at the door. The court held that section 654 did not bar separate
punishments for false imprisonment and the sex offenses because “once the sexual
offenses were completed, Saffle’s objective changed. He was no longer interested in

                                             37
fulfilling a sexual objective; he was seeking to prevent [the victim] from reporting the
incident.” (Saffle, at p. 440.)
       Thus, gratuitous acts of violence against an unresisting victim, such as locking
victims in a cooler (Foster), or committing an additional crime to facilitate escape or to
discourage the reporting of a crime (Saffle), may be grounds for separate punishment.
Here, the trial court could have reasonably assumed one reason for putting the victims in
the trunk was to prevent them from reporting the crime in a timely fashion and to
facilitate escape. Moreover, the act of putting Uddin and Rashid in the trunk of the car
was so extreme that it can no longer be considered incidental to the robbery. (People v.
Nguyen, supra, 204 Cal.App.3d 181, 191.) Uddin testified he pleaded with defendant not
to put them in the trunk, and told defendant they could die in the trunk because no one
would know they were in the trunk, and no one would be coming to the house. Neither
victim knew when they were forced into the trunk that it had a release button. Locking
the victims in the trunk is analogous to Foster, where the victims were locked in a cooler.
(Foster, supra, 201 Cal.App.3d 20.) It was potentially dangerous to the victims’ safety
and health. (Id. at p. 27.)
       The trial court properly sentenced defendant separately for the kidnapping and
robbery of Rashid and Uddin.
       C. Robbery and Kidnapping for Robbery of Doe
       Defendant argues his sentence for robbing Doe must be stayed in light of his
sentences for kidnapping Doe to commit robbery. We disagree.
       The facts here are similar to People v. Porter (1987) 194 Cal.App.3d 34. There,
the defendant and his companion attacked the victim in his car and demanded money.
(Id. at p. 36.) When the victim had an insufficient amount of cash, the defendant and his
companion forced the victim to drive to an ATM, intending to have him withdraw money
from his account. (Id. at pp. 36-37.) The victim was able to escape. (Id. at p. 37.)



                                             38
       The court rejected the defendant’s claim that section 654 barred punishment for
both kidnapping for the purpose of robbery and robbery. (People v. Porter, supra, 194
Cal.App.3d at pp. 37-38) The court stated it was reasonable to infer that the defendant
initially planned only to rob the victim, but thereafter came up with the idea to kidnap the
victim to his bank to withdraw money. (Id. at p. 38.) “In this case the record suggests
that appellant was convicted of the robbery of the victim’s wallet and of kidnapping for
the purpose of a different robbery involving the compelled withdrawal of funds from an
automated teller, which was unsuccessful. This is not, therefore, a case of punishing
appellant for kidnapping for the purpose of robbery and for committing ‘that very
robbery.’ [Citation.] Nor is this a case of multiple punishment for taking several items
during the course of a robbery. [Citation.] What began as an ordinary robbery turned
into something new and qualitatively very different. No longer satisfied with simply
taking the contents of the victim’s wallet, appellant decided to forcibly compel the victim
to drive numerous city blocks to a bank where, only with the victim’s compelled
assistance, could appellant achieve a greater reward. The trial court could reasonably
treat this as a new and independent criminal objective, not merely incidental to the
original objective and not a continuation of an indivisible course of conduct. In the
unusual circumstances of this case, appellant could be punished both for the robbery he
committed and the kidnapping for the purpose of a distinctly different type of robbery.”
(Id. at pp 38-39.)
       We agree with this reasoning. There is sufficient evidence that defendant
committed robbery at Doe’s house, then kidnapped her to commit robbery at her bank
when she did not have enough of value in her home. The kidnapping for robbery thus
was motivated by a new and independent criminal objective that was not merely
incidental to the original objective.




                                             39
       D. False Imprisonment and Kidnapping, Robbery
       Defendant argues the sentences for falsely imprisoning Doe, Rashid, and Uddin in
counts ten, sixteen, and seventeen must be stayed in light of the sentences for kidnapping,
kidnapping to commit robbery, and robbery. In light of our holding in section IV, ante,
the argument is moot.
                                           X
                                     Double Jeopardy
       Defendant argues his federal constitutional guarantee against double jeopardy was
violated when he received multiple convictions for kidnapping Doe to commit robbery,
received multiple convictions and sentences for three counts of felony false
imprisonment, received four firearms use enhancements on three of the oral copulation
convictions and one burglary of Doe conviction, and received “several unstayed
sentences” in violation of section 654.
       Because of our holdings in sections III, IV, VI, and IX A., B.1. and D., ante, the
argument is moot except for the claim of unstayed sentences for robbery and kidnapping
of Rashid, Uddin, and Doe. For the reasons expressed in section IX, ante, defendant’s
constitutional claim with respect to the sentences for robbery and kidnappings of Rashid,
Uddin, and Doe is without merit.
                                           XI
                           Assistance of Counsel at Sentencing
       Defendant claims his trial counsel provided ineffective assistance at sentencing
when he argued that two of the forcible oral copulation offenses were on separate
occasions rather than all on one occasion, and when he failed to object after the trial court
found he committed the offenses on four separate occasions.
       The sentencing memorandum submitted by defense counsel to the court argued:
“Testimony at trial established that there was only one significant break during the oral
copulation. During this break, defendant asked if Ms. Doe wanted to stop, a brief



                                             40
discussion occurred, and then defendant ordered her to continue orally copulating him.
This was clearly a situation where the defendant had a ‘reasonable opportunity to reflect’
and then ‘resumed sexually assaultive behavior.’ Thus, there were only two ‘separate
occasions’ of forced oral copulation, not four.” The memorandum argued that since there
was only one significant break during the conduct, count five should run concurrent to
count four, and count seven should run concurrent to count six.
       Two days later, the probation report was filed, predictably recommending that the
trial court sentence defendant to four separate, consecutive terms of 25 years to life. The
trial court agreed, finding all four sexual offenses were committed on separate occasions,
and sentencing defendant to four consecutive indeterminate terms.
       Defendant argues that when his trial counsel argued he should receive only two
consecutive indeterminate terms, counsel was arguing against him, thereby violating his
right to effective representation.
       “To establish entitlement to relief for ineffective assistance of counsel the burden
is on the defendant to show (1) trial counsel failed to act in the manner to be expected of
reasonably competent attorneys acting as diligent advocates and (2) it is reasonably
probable that a more favorable determination would have resulted in the absence of
counsel’s failings. [Citations.] ‘[Where] the record shows that counsel’s omissions
resulted from an informed tactical choice within the range of reasonable competence, the
conviction must be affirmed.’ [Citation.] ‘In some cases, however, the record on appeal
sheds no light on why counsel acted or failed to act in the manner challenged. In such
circumstances, unless counsel was asked for an explanation and failed to provide one or
unless counsel was asked for an explanation and failed to provide one or unless there
simply could be no satisfactory explanation, these cases are affirmed on appeal.’
[Citation.]” (People v. Lewis (1990) 50 Cal.3d 262, 288.)
       Additionally, defendant must show prejudice. “[D]efendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

                                              41
proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668,
694 [80 L.Ed.2d 674, 698].)
       This case is one in which the record sheds no light on why counsel argued for two
consecutive, indeterminate sentences, rather than arguing for only one sentence for all
four oral copulation convictions. Since counsel was not asked for an explanation he
failed to provide, we must affirm unless there can be no satisfactory explanation for
counsel’s actions. Even if there can be no satisfactory explanation, we will affirm if there
is no prejudice.
       Defendant has shown no prejudice in this case. His trial counsel made the
argument that there should be only two indeterminate sentences, and still the trial court
sentenced defendant to four consecutive indeterminate terms. There is no reasonable
probability the result would have been different if defense counsel had argued for only
one indeterminate term.
       Defendant also argues his counsel rendered ineffective assistance when he failed
to object after the court found the four sex offenses were committed on separate
occasions. He claims that an objection would have alerted the court to its obligation to
make a fact-specific analysis of the evidence to explain its basis for finding that each
offense was committed on a separate occasion. Then, he claims, the court would have
realized there was an insufficient basis for finding that all four offenses were committed
on separate occasions.
       As we concluded in part VIII, ante, the trial court had no obligation to make a
fact-specific analysis of the evidence to explain its basis for finding each offense was
committed on a separate occasion. Counsel does not render ineffective assistance by
failing to make a nonmeritorious objection. (People v. Memro (1995) 11 Cal.4th 786,
874, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)




                                             42
                                              XII
                                         Attorney Fees
       The Penal Code authorizes the trial court to order a criminal defendant to pay all
or a part of the cost of legal assistance he or she has been provided. Section 987.8,
subdivision (b) provides in pertinent part: “In any case in which a defendant is provided
legal assistance, either through the public defender or private counsel appointed by the
court, upon conclusion of the criminal proceedings in the trial court, or upon the
withdrawal of the public defender or appointed private counsel, the court may, after
notice and a hearing, make a determination of the present ability of the defendant to pay
all or a portion of the cost thereof.”
       Where the probation report recommends the defendant reimburse the county for
the cost of trial representation, the matter of attorney fees may be heard at the sentencing
hearing. (People v. Phillips (1994) 25 Cal.App.4th 62, 74-75, superseded by statute on
another point as stated in People v. Trujillo (2015) 60 Cal.4th 860.) Although section
987.8 does not mandate an express finding of an ability to pay, the statute contains a
presumption that those sentenced to prison do not have the ability to pay, thus the court
must make an express finding of unusual circumstances before ordering the defendant to
reimburse the county for attorney fees. (People v. Verduzco (2012) 210 Cal.App.4th
1406, 1421.)
       Defendant argues the order regarding attorney fees must be stricken because the
court made no express finding of unusual circumstances. We disagree both with the
conclusion that no express finding was made, and with defendant’s proposed remedy.
“The preferred solution when a trial court fails to make a necessary finding is to remand
the case for a new hearing on the matter.” (People v. Prescott (2013) 213 Cal.App.4th
1473, 1476.) Thus, even if we were to conclude the trial court made no express finding,
the remedy would be to remand the case for a new hearing.




                                              43
       The probation report recommended defendant be ordered to reimburse the county
for the cost of his appointed counsel. At the sentencing hearing, the trial court inquired
about information in the probation report indicating defendant received a pension from
the NFL in the amount of $580,000 annually. Defense counsel represented that the
information was a “misunderstanding” and that defendant was not currently receiving a
pension. The prosecutor weighed in that defendant had testified at trial that he “gets a
pension from the NFL. He testified to that under oath.”9 The prosecutor indicated she
had asked the probation officer whether it was correct that the defendant reported
receiving $580,000 per year from his NFL pension, and the probation officer responded
yes. The probation officer said she had confronted defendant about it again, and he
insisted that he got that amount of money.
       At the sentencing hearing, the trial court stated: “I was really interested in that
statement by probation about your income, and based on what has been said, I believe it
to be true. You are or at least have been and may be currently receiving well over one-
half million dollars a year in an NFL pension. Needless to say, I do not see defendants
sitting in orange jumpers in front of me facing the type of sentence that you face that
receive that type of income, and all[] you had to do for it was walk to your mailbox. That
is a stunning fact.” Later, the trial court ruled, “[Y]ou shall fully repay the County of
Sacramento for the services rendered by the Public Defender’s Office.”
       The trial court’s statements were the equivalent of an express finding of unusual
circumstances. The trial court noted defendant’s large pension, and stated that it was
unusual for a defendant to receive a half-million dollars a year in income. It was
unnecessary for the court to state that these facts constituted a court finding.




9   In response to questioning from his counsel, defendant testified he was retired from
the NFL and that he received a full pension.

                                              44
                                      DISPOSITION
       The judgment of conviction is reversed as to counts nine (kidnapping with intent
to rob Doe), ten (false imprisonment of Doe), sixteen (false imprisonment of Rashid), and
seventeen (false imprisonment of Uddin). The case is remanded with directions to
modify the judgment as follows: (1) The sentences for counts eight and nine (kidnapping
for robbery of Doe) are life with the possibility of parole; (2) The sentence and
enhancement for count one (burglary of Doe) is stayed; (3) the 10-year firearm use
enhancements for counts four, five, six, and seven are stricken; (4) the sentences and
section 12022.5, subdivision (a) enhancements for counts eleven and eighteen (burglary
of Rashid, Uddin, & Bryant) are stayed; and (5) the sentence and section 12022.5,
subdivision (a) enhancement for count twenty (kidnapping Bryant) is stayed. As so
modified, the judgment is affirmed.
       The trial court is directed to issue an amended abstract of judgment reflecting
these modifications, and to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.



                                             BLEASE                    , Acting P. J.


We concur:


         NICHOLSON                 , J.


         HOCH                      , J.




                                            45
