Filed 10/4/18
             CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION FIVE



THE PEOPLE,                                   B257829

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

KEVIN ADAMS et al.,

        Defendants and Appellants.



      APPEALS from judgments of the Superior Court of Los
Angeles County, Alan B. Honeycutt, Judge. Affirmed as modified
and remanded with directions.
      Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant Devon Delshawn Moreland.
      David H. Goodwin, under appointment by the Court of
Appeal, for Defendant and Appellant Kevin Adams.

*    Pursuant to California Rules of Court, rules 8.1100 and
8.1110, parts II, III, and IV(C)(1)-(3) are certified for publication.
      Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster,
Deputy Attorneys General, for Plaintiff and Respondent.

                      I. INTRODUCTION

       This case is before us a second time after the Supreme
Court granted review and transferred the case back with
directions to vacate our original opinion and reconsider our
decision in light of People v. Contreras (2018) 4 Cal.5th 349
(Contreras), which addressed the issues a trial court must
consider in sentencing a juvenile nonhomicide offender consistent
with the Eighth Amendment.
       In our original opinion, issued March 3, 2016, we affirmed
defendants’ multiple convictions and held defendant Davon
Delshawn Moreland forfeited his Eighth Amendment challenge to
his 35-year parole eligibility term and, in any event, the term was
not cruel and unusual punishment. We also modified defendants’
sentences and directed the trial court on remand to hold a
hearing on defendants’ ability to pay sex offense fines together
with applicable penalties and surcharges.
       Having reconsidered our decision in light of Contreras, we
again affirm the convictions, order modifications, and direct the
trial court on remand to hold a hearing on ability to pay. In
addition, we remand the matter for resentencing of Mr.
Moreland. The trial court is directed to consider, in light of
Contreras, any mitigating circumstances of Mr. Moreland’s
crimes and life and the impact of any new legislation and
regulations on appropriate sentencing. (Contreras, supra, 4




                                 2
Cal.5th at p. 383.) The court is further directed to impose a time
by which Mr. Moreland may seek parole, consistent with
Contreras.1 (Ibid.) We express no view on whether the sentence
to be imposed on resentencing must differ materially from the
current sentence Mr. Moreland is serving. Rather, we leave the
impact of Contreras to the trial court in the first instance.

                        II.   OVERVIEW

    A jury convicted Mr. Moreland and his codefendant Kevin
Adams of forcible rape in concert (Pen. Code, § 264.1, subd. (a))2;
forcible oral copulation in concert (former Pen. Code, § 288a,
subd. (d)(1), Stats. 2010, ch. 219, § 8); aggravated kidnapping (§
209, subd. (b)(1)); assault by means of force likely to produce
great bodily injury (former § 245, subd. (a)(1), Stats. 2004, ch.
494, § 1); second degree robbery (§ 211); and willful, deliberate,
premeditated attempted murder (§§ 187, subd. (a), 664). With
respect to the sex offenses, the jury found true the section 667.61,
subdivisions (a), (d) and (e) allegations. The jury further found
true multiple gang, great bodily injury and firearm use


1
      The Supreme Court’s transfer order was based on Mr.
Moreland’s petition for review concerning his Eighth Amendment
challenge to his sentence. With the exception of our discussion of
Contreras, supra, 4 Cal.5th 349 and its effect on Mr. Moreland’s
sentence, including his 35-year parole eligibility term, this
opinion is substantially the same as our original opinion issued
on March 3, 2016, as modified on March 16, 2016.

2
      All further statutory references are to the Penal Code
unless otherwise indicated.



                                 3
enhancement allegations. (Former §§ 186.22, subd. (b)(1)(C),
Stats. 2010, ch. 256, § 1; 12022, subd. (a)(1), Stats. 2004, ch. 494,
§ 3; 12022.3, subd. (a), Stats. 2008, ch. 599, § 5; 12022.5, subd.
(a), Stats. 2004, ch. 494, § 4; 12022.7, subd. (a), Stats. 2002, ch.
126, § 6; 12022.8, Stats. 2008, ch. 599, § 6; and 12022.53, subds.
(b), (e), Stats. 2006, ch. 901, § 11.1.) Mr. Moreland admitted he
had sustained a prior serious and violent felony robbery
conviction within the meaning of sections 667, subdivision (e)(1)
and 1170.12, subdivision (c)(1).
        In the published portion of this opinion, we modify
defendants’ presentence custody credits. Also, we hold that
under section 667.61 as amended in 2006, defendants were not
entitled to presentence conduct credits. Finally, in the published
portion of the opinion, we hold that the indeterminate aggravated
kidnapping sentences must be stayed. (§ 209, subd. (d).)
Resolution of the aggravated kidnapping sentence issue requires
discussion of the jury instructions. In the unpublished portion of
the opinion, we issue other orders concerning sex offense fines,
penalties and surcharges as well as the abstracts of judgment.
Subject to our order remanding the matter for resentencing, we
affirm the judgments in all other respects.




                                  4
                     III. THE EVIDENCE

                  A. The Prosecution’s Case

                        1. The crimes

       Defendants were cousins and fellow members of a violent
street gang. May 2 was the gang’s “birthday” or “gang day.” On
May 2, 2011, Diane T. was working as a prostitute. Diane and
Geoffrey Odhiambo were sitting in his car in an alley.
Defendants pulled in behind and blocked Mr. Odhiambo’s car.
Defendants were in a four-door white car. Defendants
approached Mr. Odhiambo’s car. Mr. Moreland pointed a black
gun at Mr. Odhiambo’s head. Mr. Moreland took Mr. Odhiambo’s
car keys and money. Mr. Adams asked Diane for money. He
forcibly searched inside her pants and bra. Mr. Adams grabbed
Diane and dragged her to the white car. Mr. Adams raped Diane
in the backseat. Mr. Adams then moved to the driver’s seat.
Over the course of an hour or more, while Mr. Adams drove, Mr.
Moreland repeatedly sexually and physically assaulted Diane in
the backseat. Mr. Moreland was armed with a gun during the
assaults. Mr. Moreland forced Diane several times to orally
copulate him. He repeatedly raped her. Mr. Moreland attempted
to sodomize her. He repeatedly hit her on the head. Mr.
Moreland threatened her with the gun. He told Diane
repeatedly, “Don’t look at me.” The car stopped several times.
Mr. Moreland purchased condoms. He obtained cash. Mr.
Adams told Diane to do what Mr. Moreland told her to do and she
would not be hurt. Mr. Moreland wanted Diane to help them rob




                               5
her clients but she refused. At Mr. Moreland’s instruction, Mr.
Adams drove to a cul-de-sac and stopped.
       Mr. Moreland ordered Diane out of the car. He punched
her in the face breaking her jaw. Mr. Moreland told Diane to get
on her knees. He ordered her to orally copulate him. Diane
refused. Mr. Moreland pointed the gun at Diane’s forehead and
fired twice. But the gun malfunctioned. Diane heard it click.
Diane saw Mr. Moreland “messing with the gun.” He was hitting
it against his hand. Diane got up and started to run. Mr.
Moreland ran toward the car. She heard him arguing with Mr.
Adams. Mr. Adams said, “Stop, bitch.” Diane stopped behind a
truck. Mr. Adams pointed the gun at her. She heard a click.
Diane ran to a nearby house and summoned help. Defendants
left the scene.

                       2. The investigation

       After law enforcement officers arrived at the cul-de-sac,
Diane described her assailants. Diane said one suspect was a 25
to 35 year old light skinned male Black, approximately 6 feet tall
with a muscular build. The second suspect was a 25 to 30 year
old dark skinned Black male, approximately 6 feet tall with a
thin build. Mr. Moreland testified at trial that in May 2011, he
was 6 feet 3 to 4 inches tall and weighed 230 pounds. Mr.
Moreland further testified Mr. Adams was 5 feet 11 inches to 6
feet tall. Diane also worked with a forensic artist, Sandra
Enslow, to create sketches of the perpetrators. At trial, Diane
testified, “[The sketch artist] drew them perfect.” The jury was
able to compare the sketches to defendants’ booking photographs
as well as to how they appeared in the courtroom.




                                6
       On May 12, 2011, 10 days after Diane was assaulted, Mr.
Adams was arrested for possessing a black .22-caliber revolver.
The weapon was fully loaded with .22-short cartridges. The
caliber designation for the firearm was .22-long. The revolver’s
cylinder was held in place by a metal screw instead of the usual
pin. The metal screw impeded the revolver’s firing pin,
potentially causing it to malfunction. The gun discharged only
once in 6 test firings using .22-short-caliber ammunition. The
gun discharged only 3 times in 6 test firings using .22-long
caliber bullets. When the weapon failed to discharge, it made a
clicking sound. The parties subsequently stipulated, “[O]n June
24, 2011, in case number BA385835, People v. Kevin Adams, a
felony criminal case was filed alleging that defendant Kevin
Adams . . . was carrying a concealed firearm on his person, in
violation of Penal Code section 12025[, subdivision] (a)(2), and
that on November 20, 2012, defendant Kevin Adams . . . pled no
contest to that charge[.]” During the investigation and at trial,
both victims identified Mr. Adams’s gun as similar to the weapon
used against them.
       On May 15, 2012, law enforcement officers arranged a
“bench operation.” Defendants, who were both in custody, were
seated together on a bench. They were ostensibly waiting to be
interviewed by detectives about another case. Their conversation
was recorded. An audiotape of the conversation was played at
trial. The conversation was as follows: “Adams: Yeah, at first I
thought they was gonna bring up that little rape charge . . . ad[d]
charge on that rape . . . That’s what I thought they were gonna
bring up. [¶] Moreland: Yeah . . . [¶] Adams: But this shit . . .
this the last shit on my mind nigga . . . I don’t know nothing
about this nigga. [¶] Moreland: Damn bro . . . [c]aught the fuck




                                 7
up . . . [¶] Adams: And . . . [¶] Moreland: I never would have
came to jail my nigga. [¶] Adams: And look when they add
charge me last time, . . . they did bring that shit up . . . [¶]
Moreland: Hmm? [¶] Adams: They did, they brought that shit
up . . . my nigga . . . with the nigga. They said the bitch don’t
want to cooperate with the police so he said . . . we can’t do no
case . . . put nobody on it . . . because she don’t want to talk to
police, woo, woo, woo. . . . and I found out nigger that’s D
Monk . . . that D Monk[’]s hoe . . . . Nigga . . . [¶] Moreland:
Yeah. [¶] Adams: I’m in the dorm with D Monk’s brother . . .
and he told me like yeah the little Mexican bitch got raped by two
niggas, woo woo. He said, he said that . . . [¶] . . . [¶] Adams:
All right, he said that . . . she said that the two niggas that raped
her were from [defendants’ gang] . . . but we don’t know what
[sect] they from . . . we don’t know who they is . . . woo, woo,
woo . . . but she said the bitch aint going to court . . . won’t talk to
police . . . . All right, so I was cool about that you feel me . . .
When I came out here that’s what I thought they was gonna
bring up . . .” And defendants had another conversation as
follows: “Moreland: They add charge you right here? For real?
[¶] Adams: [Yes], that’s why I’m nervous. Yeah. I ain’t gonna
put that shit to happen . . . Remember that, that night [of the
gang] function? And (INAUDIBLE) left? [¶] Moreland: No, hell
no. [¶] Adams: I hope it’s not that.” [sect of the gang] they from
. . . we don’t know who they is . . . woo, woo, woo (INAUDIBLE)
but she said the bitch ain’t going to court (INAUDIBLE) won’t
talk to police . . . All right, so I was cool about that you feel me . . .
When I came out here that’s what I thought they was gonna
bring up. [¶] Moreland: I go to court tomorrow.” Further
conversation ensued: “Moreland: They add charge you right




                                    8
here? For real? [¶] Adams: . . . that’s why I’m nervous. Yeah.
I ain’t gonna put that shit to happen . . . Remember that, that
night [the May 5 gang] function? And (INAUDIBLE) left? [¶]
Moreland: No, hell no. [¶] Adams: I hope it’s not that.”
       Detective Derek White testified concerning the foregoing
conversations. According to the detective, Mr. Adams was
concerned he was going to be charged with a new case, for rape.
Mr. Adams talked about a Hispanic prostitute being raped. And
how she was not cooperating with the police. Mr. Adams was
nervous about it. He thought the rape case was the reason he
had been brought in. Detective White summarized: “They’re
concerned about being add charged for a rape and talking about a
[certain gang] function, which is May 2nd. That caught my
attention. And then the other part . . . about a Hispanic girl
being raped. It all came together that I believe they were talking
about a rape that occurred on May 2nd.”
       The victim, Diane, was missing for approximately 10
months. In late 2012, however, detectives located her. On
December 1, 2012, one year and seven months after the assault,
Detective White showed Diane two photographic lineups.
Initially, Diane identified Mr. Moreland as the driver. She told
the detective, “He was the one that initially raped me . . . .” But
later she said she had the two men confused and she identified
Mr. Moreland as the person who repeatedly assaulted and tried
to kill her. She remembered Mr. Moreland. She told detectives it
was him “a hundred percent.” She said, “I know that face.” She
then identified Mr. Adams as one of two men depicted in the
lineup who could “possibly [be] the driver,” but she was unsure.
       Surveillance video from a bakery near the cul-de-sac was
introduced. The videotape showed a white car passing in the




                                 9
direction of the cul-de-sac at the approximate time of the crimes
and, several minutes later, returning in the other direction. Mr.
Moreland’s girlfriend, Terica Fuller, owned a white, four-door
Honda Civic that looked similar to the car depicted in the video.
At times, Mr. Moreland used Ms. Fuller’s Honda. Diane was
shown a photograph of Ms. Fuller’s Honda. Diane believed it was
the car used by her assailants. In addition, Diane had told law
enforcement officers the dashboard in her assailants’ vehicle lit
up. The dashboard of Ms. Fuller’s car had an illuminated
display.
       At the preliminary hearing and again at trial, Mr.
Odhiambo identified Mr. Moreland as the man who committed
the robbery. At trial, Mr. Odhiambo stated unequivocally that
Mr. Moreland was that man. Mr. Odhiambo testified, “I know
he’s the one who pointed the gun.” Mr. Odhiambo was unable,
however, to identify the second man. Also, at both the
preliminary hearing and at trial, Diane identified Mr. Adams as
the driver and Mr. Moreland as the other assailant.

              3. The deoxyribonucleic acid evidence

      Senior criminalist Christopher Lee collected potential
biological evidence from the cul-de-sac including what looked like
fresh spit, a piece of a condom wrapper and three blood stains.
Mr. Lee delivered the items to the laboratory where they would
be processed. At trial, Mr. Lee described the spit: “[It was]
relatively large. It didn’t appear dry . . . . It appeared relatively
fresh.”
      Criminalist Ashley Platt initially screened the collected
evidence for the potential presence of deoxyribonucleic acid. She




                                 10
contemporaneously completed standard, preprinted forms and
documented the results of her tests. She forwarded evidence
containing potential biological material for deoxyribonucleic acid
analysis. Ms. Platt did not testify at trial.
      Consistent with protocol, criminalist Yukis Partos
conducted a technical review of Ms. Platt’s work. Ms. Partos
reviewed the entire file including case notes and test results. Ms.
Partos testified at trial. She explained that the reason for the
technical review was, “[T]o ensure that all of us are following the
policy and procedures of our laboratory, the testing is done
correctly using the correct control samples, the results are
reliable, scientifically done, and to make sure that everything
that had to be done is conducted correctly and second analyst
who is the technical reviewer are agreeing with the testing done
by the original analyst.” Ms. Partos testified Ms. Platt followed
protocol and performed appropriate tests in a proper manner.
      Criminalist Kirsten Fraser also testified at trial. Ms.
Fraser analyzed the material forwarded by Ms. Platt. Ms. Fraser
generated deoxyribonucleic profiles. At the time she generated
the profiles, the only reference samples she had were from the
victim. The bloodstains all matched the victim. The possible
saliva was from a single source, an unknown male. The victim
was a major contributor to the deoxyribonucleic acid on the
condom wrapper—1 in 16.2 trillion. There was a possible
unknown male contributor as well. Ms. Fraser uploaded the
saliva and condom wrapper profiles to a national database. She
was notified of a match to Mr. Adams. Ms. Fraser subsequently
received reference samples from defendants. She generated
deoxyribonucleic acid profiles for each of them. Upon
comparison, Ms. Fraser found the saliva matched Mr. Adams.




                                11
Mr. Moreland was a possible contributor to the deoxyribonucleic
acid mixture found on the condom wrapper—1 in 293 billion. As
noted above, the victim was the major contributor to that mix.

                      B. The Defense Case

       Mr. Moreland testified in his own defense. He denied
committing the crimes. He testified that although he had joined
the gang when he was 13, he was no longer a gang member. Mr.
Moreland testified that May 2 was a big day for a certain gang.
Mr. Moreland said, “[E]verybody from the gang goes to that one
certain party on this one odd day.” Further, he said, “It’s like a
reunion.” But Mr. Moreland denied attending the May 2, 2011
gang function. He admitted he had previously been convicted of
robbery in case No. BA374588. He had entered a plea in that
case on February 15, 2011. Mr. Moreland told the jury he was a
17-year-old senior in high school when the crimes were
committed; he was playing football and had college scholarship
offers; he had made a commitment to play football at Oregon
State University; and he would not have jeopardized his future
by committing any crime.




                                12
                        IV. DISCUSSION

[Parts IV(A)-(B) are deleted from publication. See post at page 26
                 where publication is to resume.]

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

                         1. Introduction

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

                          2. Forfeiture

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




                                13
Self (2015) 62 Cal.4th 1, 53, fn. 19; People v. Redd (2010) 48
Cal.4th 691, 730.)

          3. There was no confrontation clause violation

       Even if Mr. Adams’s argument was preserved, no Sixth
Amendment violation occurred. Ms. Platt identified possible
biological evidence and forwarded it to be examined for
deoxyribonucleic acid. Ms. Platt contemporaneously recorded her
tests and their results. Ms. Platt did not certify or attest to the
contents of her report. And the report’s primary purpose did not
pertain to a criminal prosecution. Therefore, her report lacked
the critical components to be considered testimonial. (People v.
Edwards (2013) 57 Cal.4th 658, 705; People v. Dungo (2012) 55
Cal.4th 608, 619; compare Bullcoming v. New Mexico (2011) 564
U.S. 644, 652, 654-655 [131 S.Ct. 2705, 2710, 2717]; Melendez-
Diaz v. Massachusetts (2009) 557 U.S. 305, 307-311.) Ms. Partos
testified Ms. Platt followed protocol and performed appropriate
tests in a proper manner. The deoxyribonucleic acid evidence
connecting Mr. Adams to the present crimes was not introduced
through Ms. Partos. It was introduced through Ms. Fraser’s in-
court testimony. Ms. Fraser was the criminalist who
independently analyzed the biological material. Each of the three
criminologists who considered the biological evidence had the
same sole purpose—to perform her task in accordance with
mandated procedures. The technicians’ reports’ primary purpose
was not to accuse. Deoxyribonucleic acid profiles are not
inherently inculpatory. They can be exculpatory. The
criminalists performed the tests in accordance with accepted
procedures with no idea whether the results would exonerate or




                                 14
inculpate any individual. In fact, Ms. Fraser completed her
initial report before any suspect was identified. Her report was
generated not to obtain evidence against Mr. Adams or any other
individual, but to assist law enforcement to catch a dangerous
criminal who was still at large. Ms. Fraser had no way of
knowing the deoxyribonucleic profiles she produced would turn
out to inculpate anyone whose profile was in a law enforcement
database. Given all of the foregoing considerations, allowing Ms.
Partos to testify as to Ms. Platt’s preliminary tests did not violate
Mr. Adams’s Sixth Amendment confrontation rights. (Williams v.
Illinois (2012) 567 U.S. 50, 58, 83-84 [132 S.Ct. 2221, 2228, 2243]
[plur. opn. of Alito, J.]; People v. Lopez (2012) 55 Cal.4th 569, 581-
585; People v. Dungo, supra, 55 Cal.4th at pp. 619-621; People v.
Barba (2013) 215 Cal.App.4th 712, 740-743; People v. Holmes
(2012) 212 Cal.App.4th 431, 436-439.)

    4. Any violation was harmless beyond a reasonable doubt

       Confrontation clause violations are subject to harmless
error analysis under Chapman v. California (1967) 386 U.S. 18,
24. (People v. Capistrano (2014) 59 Cal.4th 830, 873; People v.
Livingston (2012) 53 Cal.4th 1145, 1159.) Any error in not
requiring Ms. Platt to testify was harmless beyond a reasonable
doubt. Ms. Fraser testified based on her own independent test
results matching Mr. Adams’s deoxyribonucleic acid to the fresh
saliva found in the cul-de-sac. Ms. Fraser was subject to cross-
examination. (People v. Banks (2014) 59 Cal.4th 1113, 1165-
1166, disapproved on another ground in People v. Scott (2015) 61
Cal.4th 363, 391, fn. 3 [any error harmless where criminalist
testified to her own independent conclusions as to




                                 15
deoxyribonucleic acid]; People v. Edwards, supra, 57 Cal.4th at p.
707 [harmless error where pathologist reached independent
conclusion as to cause of death].) The following constituted
abundant evidence of guilt: Ms. Fraser’s testimony concerning
the deoxyribonucleic acid match—the presence of Mr. Adams’s
spit in the cul-de-sac; Diane’s identification of Mr. Adams; Mr.
Adams’s possession of the uniquely defective gun used to commit
the crimes; and Mr. Adams’s recorded incriminating conversation
with Mr. Moreland. (People v. Capistrano, supra, 59 Cal.4th at p.
873; People v. Harris (2013) 57 Cal.4th 804, 840.) The inability to
cross-examine Ms. Platt did not affect the trial’s outcome as to
Mr. Adams.

                    B. Mr. Moreland’s Appeal

                     1. Consolidated charges

       The trial court consolidated the present charges against
Mr. Moreland (counts 2 through 7) with forcible rape charges
involving a second alleged victim, Eboni C. (§ 954.) The forcible
rape of Eboni C. occurred on a different occasion (count 1). The
trial court also ruled, initially, that the Eboni C. evidence was
admissible as evidence of Mr. Moreland’s propensity to commit
sexual assaults under Evidence Code section 1108, subdivision
(a).
       Eboni C. testified as follows. She was related to Mr.
Moreland by marriage. Mr. Moreland was the cousin of the niece
of Eboni C. Eboni C. was at the niece’s grandmother’s house on
April 21, 2012, less than a year after Diane was assaulted. Mr.
Moreland also lived in the home. Eboni C. was sitting on Mr.




                                16
Moreland’s bed when he walked into his bedroom. Mr. Moreland
assaulted Eboni C. He choked her, bit her on the neck and raped
her. Eboni C. felt pain and bled from her vagina. A sexual
assault nurse examined Eboni C. The sexual assault nurse made
physical findings consistent with Eboni C.’s account. Forensic
evidence was also introduced connecting Mr. Moreland to the
alleged rape.
       After Eboni C. testified at trial, however, the forcible rape
charges in count 1 were dismissed. The trial court instructed the
jury to disregard the testimony of Eboni C. and all of the evidence
relevant to that charge. The trial court further instructed the
jury not to speculate about why the charges were no longer before
them. The instruction was as follows: “Count 1 as it relates to
Eboni C., that count is no longer before you. You are not going to
be called upon to make any decision in regard to that count.
You’re not to speculate as to why that charge is no longer before
you. All of the previous testimony that was introduced during
the trial as it related to count 1, that testimony will be stricken.
You are not to consider that testimony for any purpose.”
       We need not consider whether the trial court abused its
discretion when it consolidated the two cases or when it ruled the
evidence as to each was cross-admissible. (§ 954; Evid. Code, §
1108, subd. (a).) This is because, as discussed above, the trial
court dismissed count 1 and directed the jury not to consider the
Eboni C. evidence for any purpose. The dispositive question is
whether, despite the trial court’s instruction to the jury, the
Eboni C. evidence rendered Mr. Moreland’s trial fundamentally
unfair. (People v. Merriman (2014) 60 Cal.4th 1, 46; People v.
Thomas (2012) 53 Cal.4th 771, 800-801.) The burden is on the
defendant to demonstrate a due process denial. (People v. Soper




                                17
(2009) 45 Cal.4th 759, 783; People v. Johnson (1988) 47 Cal.3d
576, 591.) The judgment will be reversed on this ground only if it
is reasonably probable the jury’s verdict was tainted by the Eboni
C. evidence. (People v. Merriman, supra, 60 Cal.4th at p. 49;
People v. Bean (1988) 46 Cal.3d 919, 940.) Relevant
considerations include whether the evidence as to each victim
was relatively straightforward and distinct; the evidence as to
each charge was independently ample to support the defendant’s
conviction; the facts as to one victim as compared to the other
were likely to unduly inflame the jury; or one case was
significantly weaker than the other. (People v. Thomas, supra, 53
Cal.4th at pp. 798-799; People v. Soper, supra, 45 Cal.4th at p.
784.)
       Here, the evidence in each of the two cases was
straightforward and distinct. The evidence in each case was
independently sufficient to support a conviction without regard to
the other. The present case was not significantly weaker than
the evidence as to Eboni C. The facts as to Eboni C. as compared
to Diane were not likely to unduly inflame the jury. Eboni C.
testified she was raped once by Mr. Moreland, who was known to
her. The crimes committed against Diane were vicious and
protracted and involved an attempt to murder her. Moreover,
there was abundant evidence connecting Mr. Moreland to the
crimes against Diane. Both Mr. Odhiambo and Diane positively
identified Mr. Moreland on repeated occasions. Mr. Odhiambo
was certain Mr. Moreland was the robber. Mr. Odhiambo
testified, “I know he’s the one who pointed the gun.” Diane told
Detective White she was “a hundred percent” sure Mr. Moreland
was the man who assaulted and tried to murder her. She said, “I
know that face.” Mr. Moreland made incriminatory statements




                                18
in the recorded conversation with Mr. Adams. Mr. Adams was
arrested in possession of the gun used to perpetrate the crimes.
Mr. Moreland’s girlfriend owned the car defendants used.
Further, deoxyribonucleic acid consistent with Mr. Moreland’s
was found on the condom wrapper in the cul-de-sac.
Additionally, as noted above, the trial court instructed the jury
not to consider any of the evidence as to count 1. Prior to closing
arguments, the trial court repeated that instruction.
Furthermore, the trial court instructed the jury on the
presumption of innocence, the elements of each crime, the
requisite burden of proof, and the need to consider each charge
separately. We presume the jury understood and followed those
instructions. (People v. Merriman, supra, 60 Cal.4th at pp. 48-49;
People v. Pearson (2013) 56 Cal.4th 393, 477.) Those instructions
mitigated any prejudicial spillover risk. (People v. Merriman,
supra, 60 Cal.4th at pp. 48-49; People v. Thomas, supra, 53
Cal.4th at p. 801; People v. Soper, supra, 45 Cal.4th at p. 784.)
Mr. Moreland has not met his burden to show the Eboni C.
evidence had a spillover effect that persuaded the jury to convict
him of the charged crimes against Diane.

                2. Cruel and unusual punishment

                        a. Background

       On August 14, 2014, the trial court sentenced Mr.
Moreland to a lengthy term in prison and set a minimum parole
eligibility term of 35 years. The court considered mitigating
factors including Mr. Moreland’s age at the time of his offenses
(17 years); his abandonment by his birth mother; his upbringing




                                19
by older adoptive parents in an unstable home environment
located in a “gang neighborhood”; his belief that he had no choice
but to join a gang; and his learning disability and attention
deficit hyperactivity disorder. Citing a report, the court also
found Mr. Moreland “presents himself . . . [as] very immature”
and was impulsive in his decision-making.
       In addition, citing Graham v. Florida (2010) 560 U.S. 48
(Graham) and People v. Caballero (2012) 55 Cal.4th 262
(Caballero), the trial court explained that Mr. Moreland was
entitled to an opportunity to demonstrate rehabilitation and
fitness to reenter society. Based on Mr. Moreland’s life
expectancy and age at sentencing (20 years), the court reasoned
that “[i]f [Mr. Moreland] were eligible for parole at age 55, this
would give him a meaningful opportunity by demonstrating his
rehabilitation and fitness to reenter society.” The court ruled
that Mr. Moreland would be eligible for parole “no later than 35
years from today’s date.”
       In our prior opinion, we held Mr. Moreland forfeited his
appellate argument that his sentence was cruel and unusual
under the Eighth Amendment and, even if the issue was properly
before us, we would not conclude the sentence was cruel and
unusual.
       After we issued our opinion, the Supreme Court, on May
18, 2016, granted Mr. Moreland’s petition for review and held the
matter pending its decision in People v. Franklin (2016) 63
Cal.4th 261 (Franklin). On August 17, 2016, after the opinion in
Franklin issued, the Supreme Court further deferred disposition
of Mr. Moreland’s petition pending its decision in Contreras,
supra, 4 Cal.5th 349.




                                20
       On June 13, 2018, the Supreme Court transferred the
matter to this court with directions to vacate and reconsider our
decision in light of Contreras, supra, 4 Cal.5th 349. On June 15,
2018, we notified the parties of their right, under California
Rules of Court, rule 8.200(b), to submit supplemental opening
and responding briefs.
       On June 18, 2018, Mr. Moreland submitted his
supplemental opening brief arguing that, under Contreras, supra,
4 Cal.5th 349, his “sentence of 205-years-to-life is . . . manifestly
unconstitutional.” He asked us to remand the matter to the trial
court to give him an opportunity to make a record under
Franklin, supra, 63 Cal.4th 261 for an eventual youth offender
parole hearing.
       On June 21, 2018, the Attorney General submitted a
supplemental responding brief agreeing that the matter should
be remanded to the trial court but only for resentencing under
Contreras, supra, 4 Cal.5th 349. The Attorney General argued
the trial court on remand should not conduct a record
development hearing under Franklin, supra, 63 Cal.4th 261,
because Mr. Moreland―who was sentenced as a One Strike
juvenile sex offender under section 667.61,3 as well as a Three

3
       “Approximately six months after the Legislature enacted
the ‘Three Strikes’ law as urgency legislation, it adopted section
667.61, the One Strike law. (People v. Rayford (1994) 9 Cal. 4th
1, 8 [36 Cal.Rptr.2d 317, 884 P.2d 1369]; People v. Ervin (1996)
50 Cal.App.4th 259, 264 [57 Cal.Rptr.2d 728].) This section sets
forth an alternative and harsher sentencing scheme for certain
enumerated sex crimes perpetrated by force, including rape,
foreign object penetration, sodomy, and oral copulation. [Fn.
omitted.] The section applies if the defendant has previously
been convicted of one of seven specified offenses, or if the current



                                 21
Strikes offender under sections 1170.12 and 667, subdivisions (b)
through (i)―is not eligible for a youth offender parole hearing (§
3051, subd. (h)).4

                         b. Contreras

       Starting from the premise that “‘children are
constitutionally different from adults for purposes of sentencing,’”
the United States Supreme Court “‘has derived a number of
limitations on juvenile sentencing : (1) no individual may be
executed for an offense committed when he or she was a juvenile
[citation]; (2) no juvenile who commits a nonhomicide offense may
be sentenced to [life without the possibility of parole, or LWOP]
[citation]; and (3) no juvenile who commits a homicide offense
may be automatically sentenced to LWOP [citation].’ [Citation].”
(Contreras, supra, 4 Cal.5th at p. 359, citing Miller v. Alabama
(2012) 567 U.S. 460, 471; Roper v. Simmons (2005) 543 U.S. 551,
578; Graham, supra, 560 U.S. at p. 74.)
       In Caballero, supra, 55 Cal.4th 262, a juvenile defendant
was sentenced to 110 years to life for three counts of attempted
murder and would not become eligible for parole for over 100
years. Our Supreme Court held the sentence was the functional
equivalent of LWOP and, under Graham, violated the Eighth



offense was committed under one or more specified
circumstances.” (People v. Manecebo (2002) 27 Cal.4th 735, 742.)

4     Section 3051, subdivision (h) provides, in pertinent part,
“This section shall not apply to cases in which sentencing occurs
pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of
Section 667, or Section 667.61 . . . .”



                                 22
Amendment. (Id. at p. 268.) The court explained “the state may
not deprive [youths] at sentencing of a meaningful opportunity to
demonstrate their rehabilitation and fitness to reenter society in
the future.” (Ibid.) Instead, “the sentencing court must consider
all mitigating circumstances attendant in the juvenile’s crime
and life, including but not limited to his or her chronological age
at the time of the crime, whether the juvenile offender was a
direct perpetrator or an aider and abettor, and his or her physical
and mental development, so that it can impose a time when the
juvenile offender will be able to seek parole from the parole
board.” (Id. at pp. 268-269.)
       Subsequently in Contreras, supra, 4 Cal.5th 349, the
Supreme Court held that sentences of 50 and 58 years to life
imposed on juveniles convicted of kidnapping and sexual offenses,
with parole eligibility at ages 66 and 74, violated the same
Eighth Amendment principles that barred the imposition of
LWOP for their crimes. (Id. at pp. 360, 367-370; see id. at p. 369
[sentence of 50 years to life is functionally equivalent to LWOP].)
       The court rejected the argument that a term of
imprisonment is not the functional equivalent of LWOP if it
provides a juvenile offender an opportunity for parole within his
or her expected natural lifetime. (Contreras, supra, 4 Cal.5th at
p. 360.) The court explained this “actuarial approach gives rise to
a tangle of legal and empirical difficulties” including the
influence of gender, race and other factors on life expectancy,
creating a risk of disparate sentencing. (Id. at pp. 361-363.)
Moreover, life expectancy is an average. (Id. at pp. 363-364.) “An
opportunity to obtain release does not seem ‘meaningful’ or
‘realistic’ within the meaning of Graham if the chance of living




                                23
long enough to make use of that opportunity is roughly the same
as a coin toss.” (Id. at p. 364.)
       Instead of the “misguided” actuarial approach to functional
equivalence, courts should ask if “a term-of-years sentence may
function like LWOP with respect to the Eighth Amendment
concerns that constrain lawful punishment for juvenile
nonhomicide offenders . . . .” (Contreras, supra, 4 Cal.5th at p.
364, emphasis omitted.) “To resolve this question, the proper
starting point is not a life expectancy table but the reasoning of
the high court in Graham.” (Ibid.) While Graham does not
require the state to release juvenile nonhomicide offenders during
their natural lives, it “‘prohibit[s] States from making the
judgment at the outset that those offenders never will be fit to
reenter society.’” (Id. at p. 367, quoting Graham, supra, 560 U.S.
at p. 75.) “‘What the State must do . . . is give [juvenile
nonhomicide offenders] some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.’”
(Ibid., quoting Graham, supra, 560 U.S. at p. 75.)
       Contreras observed “the high court [in Graham] did not
define the maximum length of incarceration before parole
eligibility that would be permissible in light of the concerns it set
forth . . . .” (Contreras, supra, 4 Cal.5th at p. 367.) “But the high
court made clear the nature of its concerns: A lawful sentence
must recognize ‘a juvenile nonhomicide offender’s capacity for
change and limited moral culpability.’” (Ibid., quoting Graham,
supra, 560 U.S. at p. 74.) “A lawful sentence must offer ‘hope of
restoration’ [citation], ‘a chance to demonstrate maturity and
reform’ [citation], a ‘chance for fulfillment outside prison walls,’
and a ‘chance for reconciliation with society’ [citation]. A lawful
sentence must offer ‘the opportunity to achieve maturity of




                                 24
judgment and self-recognition of human worth and potential.’
[Citation.] A lawful sentence must offer the juvenile offender an
‘incentive to become a responsible individual.’ [Citation.]” (Ibid.)
“Ultimately, [the trial court must make] a considered judgment
as to whether the parole eligibility date of a lengthy sentence
offers a juvenile offender a realistic hope of release and a genuine
opportunity to reintegrate into society.” (Id. at p. 373.)
       In the case before it, the court in Contreras opined that the
defendants’ “[c]onfinement with no possibility of release until age
66 or age 74 seems unlikely to allow for the reintegration that
Graham contemplates.” (Contreras, supra, 4 Cal.5th at p. 368.)
The court therefore remanded the matter for resentencing in
light of its opinion. (Id. at p. 379.)

                        c. Remand for resentencing and
                           determination of parole eligibility
                           term

      Here, the trial court was well aware of the sentencing
considerations discussed in Graham, supra, 560 U.S. 48 and
Caballero, supra, 55 Cal.4th 262 and addressed those factors at
the sentencing hearing. The court also considered Mr.
Moreland’s life expectancy in determining his sentence, although
the record does not disclose the extent to which the sentence was
based on the court’s life expectancy analysis. As noted above,
Contreras subsequently disapproved an actuarial approach to
sentencing. (Contreras, supra, 4 Cal.5th at pp. 360-364, 372-373.)
      Because the trial court did not have the benefit of the
Supreme Court’s decision in Contreras, supra, 4 Cal.5th 349
when it sentenced Mr. Moreland, we vacate Mr. Moreland’s




                                 25
sentence and remand to the trial court for resentencing. On
remand, the trial court is directed to consider, in light of
Contreras, any mitigating circumstances of Mr. Moreland’s
crimes and life and the impact of any new legislation and
regulations on appropriate sentencing. The trial court is further
directed to impose a time by which Mr. Moreland may seek
parole, consistent with Contreras. (Id. at p. 383.)
      We deny Mr. Moreland’s request that we direct the trial
court on remand to hold a hearing under Franklin, supra, 63
Cal.4th 261 to allow Mr. Moreland to make a record for an
eventual youth offender parole hearing. It is undisputed that, as
the law currently stands, Mr. Moreland is not eligible for a youth
offender parole hearing under section 3051. As a result, Franklin
does not authorize a remand for record development. If, in the
future, the Legislature modifies the law in a way that makes Mr.
Moreland eligible for a youth offender parole hearing (see
Contreras, supra, 4 Cal.5th at p. 382), Mr. Moreland may file an
appropriate motion in the trial court.

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

                   C. Other Sentencing Issues

                  1. Presentence custody credit

      The trial court awarded Mr. Adams 562 days of
presentence custody credit. However, the parties agree that Mr.
Adams was in custody for conduct attributable to the present
case from January 2, 2013, to July 18, 2014, a period of 563 days.
A defendant is entitled to credit for all days in presentence




                                26
custody including the day of arrest and the day of sentencing.
(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48; People v.
Morgain (2009) 177 Cal.App.4th 454, 469.) Mr. Adams’s
judgment must be modified and his abstract of judgment
corrected to reflect 563 days of presentence custody credit.
      The trial court awarded Mr. Moreland 603 days of
presentence custody credit. However, according to the record
before us, Mr. Moreland was arrested on December 12, 2012. He
was sentenced on August 14, 2014. Therefore he was in
presentence custody for 611 days. (People v. Rajanayagam,
supra, 211 Cal.App.4th at p. 48; People v. Morgain, supra, 177
Cal.App.4th at p. 469.) Mr. Moreland’s judgment must be
modified and his abstract of judgment corrected to reflect 611
days of presentence custody credit.

                  2. Presentence conduct credit

       Because they were convicted of violent felonies as defined
in section 667.5, subdivision (c), the trial court limited
defendants’ presentence conduct credit to 15 percent under
section 2933.1, subdivision (c). We asked the parties to brief the
question whether the 2006 amendment to section 667.61,
subdivision (j), eliminated defendants’ eligibility for conduct
credit. (Stats. 2006, ch. 337, § 33, p. 2641.) We hold as a matter
of statutory interpretation that it did. The parties agree.
       Our review is governed by well established rules of
statutory construction. Our Supreme Court examined these rules
in Even Zohar Construction & Remodeling, Inc. v. Bellaire
Townhouses, LLC (2015) 61 Cal.4th 830, 837-838: “‘Our
fundamental task in construing’ . . . any legislative enactment, ‘is




                                27
to ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute.’ (Day v. City of Fontana (2001) 25 Cal.4th
268, 272.) We begin as always with the statute’s actual words,
the ‘most reliable indicator’ of legislative intent, ‘assigning them
their usual and ordinary meanings, and construing them in
context. If the words themselves are not ambiguous, we presume
the Legislature meant what it said, and the statute’s plain
meaning governs. On the other hand, if the language allows
more than one reasonable construction, we may look to such aids
as the legislative history of the measure and maxims of statutory
construction. In cases of uncertain meaning, we may also
consider the consequences of a particular interpretation,
including its impact on public policy.’ (Wells v. One2One
Learning Foundation (2006) 39 Cal.4th 1164, 1190.)” (Accord,
People v. Johnson (2015) 61 Cal.4th 674, 682.)
      As enacted in 1994, section 667.61, subdivision (j) provided:
“Article 2.5 (commencing with Section 2930) of Chapter 7 of Title
1 of Part 3 [Credit on Term of Imprisonment] shall apply to
reduce the minimum term of 25 years in the state prison imposed
pursuant to subdivision (a) or 15 years in the state prison
imposed pursuant to subdivision (b). However, in no case shall
the minimum term of 25 or 15 years be reduced by more than 15
percent for credits granted pursuant to Section 2933 [prison
conduct credit], 4019 [presentence custody conduct credit], or any
other law providing for conduct credit reduction. In no case shall
any person who is punished under this section be released on
parole prior to serving at least 85 percent of the minimum term of
25 or 15 years in the state prison.” (Stats. 1994 (1993-1994 1st
Ex. Sess.) ch. 14, § 1, p. 8572, italics added.) Section 667.61,
subdivision (j) by its terms, specifically its express reference to




                                28
section 4019, limited to 15 percent the presentence conduct credit
available to a defendant sentenced under section 667.61.
        Section 667.61 was amended in 2006—prior to the present
crimes—to eliminate the existing section 667.61, subdivision (j)
and any reference to presentence conduct credits. (Stats. 2006,
ch. 337, § 33, p. 2641.) It is uncertain on its face whether the
amendment was intended to eliminate presentence conduct credit
for defendants sentenced under section 667.61, or to authorize
full conduct credit under section 4019. We turn, therefore, to the
legislative history. Committee reports evidence the Legislature’s
intent to eliminate conduct credit for defendants sentenced under
section 667.61, the so-called “One-Strike Law.” The Senate
Committee on Public Safety’s analysis of Senate Bill No. 1128
unambiguously states: “Elimination of Sentencing Credits for
One-Strike Inmates [¶] Existing law provides that a defendant
sentenced to a term of imprisonment of either 15 years to life or
25 years to life under the provisions of the ‘one-strike’ sentencing
scheme shall not have his or her sentence reduced by more than
15% by good-time/work-time credits. (Penal Code 667.61, subd.
(j).) [¶] This bill eliminates conduct/work credits for inmates
sentenced under the one-strike law.” (Sen. Com. on Public
Safety, Analysis of Sen. Bill No. 1128 (as amended March 7,
2006) p. N; accord, id. at p. W [“This bill eliminates sentencing
credits that under existing law can reduce a defendant’s
minimum term by up to 15%”]; Sen. Rules Com., Off. of Senate
Floor Analyses, 3d Reading Analysis of Sen. Bill No. 1128 (as
amended May 26, 2006) pp. 8-9 [Sen. Bill No. 1128 eliminates
eligibility “for credit to reduce the minimum term imposed”]; Sen.
Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No.
1128 (as amended May 30, 2006) p. 9 [same].) In Couzens and




                                29
Bigelow, Sex Crimes: California Law and Procedure (The Rutter
Group, 2015) section 13:15, page 13-78, the authors conclude:
“Section[] . . . 667.61 (One Strike law) . . . [was] amended in 2006
to eliminate the provision that allowed such crimes to accrue 15
% conduct credits, whether before or after sentencing[.] Now
there are no conduct credits allowed against the minimum term.”
We hold, therefore, that defendants given indeterminate terms
under section 667.61 are not entitled to any presentence conduct
credit. The present judgments must be modified and the
abstracts of judgment amended to so reflect as to both
defendants.

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

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

     Section 667.61 subdivision (a) provides that an accused
under specified circumstances can be subject to an indeterminate
sentence of 25 years to life.5 (See People v. Carbajal (2013) 56
Cal.4th 521, 534; People v. Anderson (2009) 47 Cal.4th 92, 102.)
Section 667.61, subdivision (c) identifies the offenses which can
result in an indeterminate term if a specified qualifying
circumstance is present. Two of the offenses which can result in


5
       Section 667.61, subdivision (a) states, “Except as provided
in subdivision (j), (l), or (m), any person who is convicted of an
offense specified in subdivision (c) under one or more of the
circumstances specified in subdivision (d) or under two or more of
the circumstances specified in subdivision (e) shall be punished
by imprisonment in the state prison for 25 years to life.”



                                  30
an indeterminate term when accompanied by a qualifying
circumstance are present in this case: rape and oral copulation
in concert. (§ 667.61, subds. (c)(3) and (7).) The qualifying
circumstances are found in section 667.61, subdivisions (d) and
(e). One of the qualifying circumstances which can result in an
indeterminate 25-years-to-life sentence is specified in section
667.61, subdivision (d)(2) which states, “The defendant
kidnapped the victim of the present offense and the movement of
the victim substantially increased the risk of harm to the victim
over and above that level of risk necessarily inherent in the
underlying offense in subdivision (c).” (See People v. Byrd (2011)
194 Cal.App.4th 88, 100-101; People v. Jones (1997) 58
Cal.App.4th 693, 712-716.) In our case, the jury convicted
defendant of rape and forcible oral copulation in concert and
found the section 667.61, subdivision (d)(2) kidnapping qualifying
circumstance allegation true. Both defendants were sentenced on
count 4 to indeterminate life terms for kidnapping to commit rape
and oral copulation in violation of section 209, subdivision (b).
The count 4 indeterminate sentences carry specified minimum
parole eligibility dates.
      Ultimately, what we will decide is whether defendants may
be punished under section 209, subdivision (b). As we shall
explain in greater detail, section 209, subdivision (d) prohibits
punishment under sections 667.61 and 209, subdivision (b) for
the same act. Before we reach this conclusion though, we must
resolve a preliminary jury instruction issue. The parties agree
there is no issue concerning the adequacy of the charging
documents.




                               31
 b. The jury instruction conference and instructions as to counts
                            2, 3 and 4

       On May 12, 2014, after the conclusion of testimony, the
trial court indicated that it would finalize the instructions on the
next day. On May 13, 2014, after all of the testimony was
completed the day before, the trial court discussed jury
instructions with all counsel outside the jurors’ presence. The
trial court began its review of the instructions that would be
given: “We are going to review the instructions. If you have any
objection, comments, concerns, please state them. I am reading
the [CALCRIM] number.” The trial court expressly stated it
would give the CALCRIM No. 3179 instruction which directs the
jury to decide whether the section 667.61, subdivision (d)(2)
kidnapping qualifying circumstance was true. Neither counsel
for defendants objected to the instruction. After the trial court
recited all of the CALCRIM instructions it intended to read, the
trial court addressed all three counsel. The trial court’s inquiries
and the three lawyers’ responses are as follows: “[The Court:] I
will read the instructions in the order in which I have indicated,
and then we will continue with the reading [of] the instructions
and/or the final arguments this afternoon. [¶] Anything else we
need to take up at this time, Mr. DeBlanc? [¶] Mr. DeBlanc:
Nothing else, your honor. [¶] The Court: Mr. Clark, anything
further at this time? [¶] Mr. Clark: No. [¶] The Court: Ms.
Hicks? [¶] Ms. Hicks: Your Honor, I am looking up that
12022(a)(1) because I just realized that one is not included in
here, but if we need to, I will let the court know.” As can be
noted, neither defense attorney interjected an objection to the




                                 32
CALCRIM No. 3179 instruction concerning the section 667.61,
subdivision (d)(2) kidnapping qualifying circumstance allegation.
       The jury was instructed as to the elements of rape (count 2)
and forcible oral copulation (count 3) in concert pursuant to
CALCRIM Nos. 1000, 1001, 1015 and 1016. In addition, the
jurors were instructed concerning the section 667.61, subdivision
(d)(2) kidnapping qualifying circumstance in compliance with
CALCRIM No. 3179: “If you find the defendant guilty of the
crimes charged in Counts 2 and/or 3, you must then decide
whether, for each crime, the People have proved the additional
allegation that the defendant kidnapped Diane []. You must
decide whether the People have proved this allegation for each
crime and return a separate finding for each crime. [¶] To decide
whether the defendant kidnapped Diane [] please refer to the
separate instructions that I have given you on kidnapping. You
must apply those instructions when you decide whether the
People have proved this additional allegation. [¶] The People
have the burden of proving each allegation beyond a reasonable
doubt. If the People have not met this burden, you must find that
the allegation has not been proved.”
       Two sets of CALCRIM instructions were given concerning
two forms of kidnapping. The jury was instructed pursuant to
CALCRIM No. 1203 concerning kidnapping to commit rape or
another sex offense. This instruction related directly to the
charge in count 4. In the margin, we have reproduced the
instructions given concerning the asportation element of
kidnapping to commit rape or another sex offense.6 In addition,

6     The jury was instructed as follows concerning the
asportation element of the charged offense in count 4, kidnapping
to commit rape or forcible oral copulation: “The defendant is



                                33
the jurors were instructed pursuant to CALCRIM No. 1215 as to
the elements of simple kidnapping. The simple kidnapping
instructions related to two issues. The jury was instructed that
simple kidnapping was a lesser included offense of kidnapping to
commit rape or oral copulation. Also, while explaining the
kidnapping qualifying circumstance pursuant to CALCRIM No.
3179, the jurors were directed to the kidnapping instructions.
The simple kidnapping instructions were clearly delineated and,
as noted, referred to by the trial court when instructing
concerning kidnapping qualifying circumstance pursuant to
CALCRIM No. 3179.


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



                               34
      The instruction on the asportation element of a simple
kidnapping was as follows: “To prove Kidnapping, the People
must prove that: [¶] 1. The defendant took, held, or detained
another person by using force or by instilling reasonable fear; [¶]
2. Using that force or fear, the defendant moved the other person
or made the other person move a substantial distance; [¶] AND
[¶] 3. The other person did not consent to the movement; [¶]
AND [¶] 4. The defendant did not actually and reasonably
believe that the other person consented to the movement. [¶] . . .
[¶] Substantial distance means more than a slight or trivial
distance. In deciding whether the distance was substantial, you
must consider all the circumstances relating to the movement.
Thus, in addition to considering the actual distance moved, you
may also consider other factors such as whether the distance the
other person was moved was beyond that merely incidental to the
commission of rape and or oral copulation, whether the
movement increased the risk of physical or psychological harm,
increased the danger of a foreseeable escape attempt, or gave the
attacker a greater opportunity to commit additional crimes, or
decreased the likelihood of detection.” (CALCRIM No. 1215.) As
to both the kidnapping to commit rape or oral copulation and the
simple kidnapping issues, the jurors were fully instructed
concerning the consent element of those two crimes. (CALCRIM
Nos. 1203, 1215.) There is no issue concerning consent
instructions in this case.

      c. The prosecutor’s and defense attorneys’ arguments

     In her opening summation, the deputy district attorney
argued to the jurors they should find the section 667.61,




                                35
subdivisions (a) and (d)(2) kidnapping qualifying circumstance
allegation true. The prosecutor argued as to Mr. Moreland in
connection with the special allegation appearing in the verdict
form: “Kidnap. There’s an allegation, kidnapped the victim of
the present offense. Right? Was there a kidnap that happened in
the commission of the rape sometime during that time while they
had control of her? Here’s the thing about the kidnap: The
kidnap continues. [It’s] not just the taking of her to the car. [It’s]
the driving around because that movement is putting her in a
place of less safety. So [it’s] the entire driving, even driving all
the way to the cul-de-sac. That’s all part of the kidnap. Did that
happen in the commission of the rape? True. So you write in
true.” The prosecutor briefly referred to the kidnapping
qualifying circumstance allegation when discussing the charges
against Mr. Adams. No objection of any kind was interposed by
either defense attorney to the prosecutor’s argument concerning
the section 667.61, subdivision (d)(2) kidnapping qualifying
circumstance.
      In their arguments, defense counsel never discussed
CALCRIM No. 3179 nor the elements of the section 667.61,
subdivision (d)(2) kidnapping qualifying circumstance allegation.
Their arguments focused on: jury instructions concerning
reasonable doubt and the conduct of jurors; the lack of
believability of the prosecution witnesses including the fact that
Diane was a prostitute; the problems with identification
testimony; and gang and ballistics testimony. Neither of the two
defense attorneys argued their clients were guilty only of any
lesser included offenses. Mr. Adams’s counsel requested a not
guilty verdict be returned.




                                 36
          d. The counts 2, 3 and 4 verdicts and findings

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




                                37
sections 667.61, subdivisions (a) and (e) and 12022.53,
subdivision (b); Mr. Moreland kidnapped the victim within the
meaning of section 667.61 subdivisions (a) and (d); the sexual
assault was committed for the benefit of a street gang within the
meaning of section 186.22, subdivision (b)(1)(C); and Mr.
Moreland inflicted great bodily injury upon the victim within the
meaning of sections 667.61, subdivisions (a) and (d) and 12022.8,
subdivision (a). As to count 3, the forcible oral copulation charge,
the jury found the two great bodily injury allegations to be not
true. (§§ 667.61, subds. (a) & (d), 12022.8.) But the jurors found
as to count 3 the following special allegations were true as to Mr.
Moreland: he personally used a firearm within the meaning of
sections 667.61, subdivisions (a) and (e) and 12022.3, subdivision
(a); he kidnapped the victim within the meaning of section
667.61, subdivisions (a) and (d); and the crime was committed for
the benefit of a street gang. (§ 186.22, subd. (b)(1)(C).) As to
count 4, the section 209, subdivision (b)(1) kidnapping to commit
another crime charge, the jury found the following special
allegations to be true: the crime was committed for the benefit of
a street gang within the meaning of section 186.22, subdivision
(b)(1)(C); Mr. Moreland personally used a firearm within the
meaning of section 12022.53, subdivision (b); and he inflicted
great bodily injury on the victim within the meaning of section
12022.7, subdivision (a).

                e. The counts 2, 3 and 4 sentences

      As to Mr. Adams, for count 2, forcible rape in concert, he
received an indeterminate sentence of 25 years to life. In
addition, as to count 2, Mr. Adams received 10 years for firearm




                                 38
use which was stayed pursuant to section 12022.53, subdivision
(e)(2). As a result of the gang allegation, an additional 10 years
was imposed pursuant to section 186.22, subdivision (d)(1)(C).
The total count 2 sentence was 35 years to life. As to count 3,
forcible oral copulation in concert, Mr. Adams was sentenced to
state prison for a term of 25 years to life plus 10 years for the
gang enhancement. The count 3 section 12022.3, subdivision (a)
firearm use finding was stayed pursuant to section 12022.53,
subdivision (e)(2). The two sexual assault sex counts were
ordered to run consecutively pursuant to section 667.6,
subdivision (d). Even if mandatory consecutive sentencing was
inappropriate, the trial court indicated it would exercise its
discretion pursuant to section 667.6, subdivision (c) and impose
consecutive sentences. As to count 4, the kidnapping to commit
rape or oral copulation conviction, Mr. Adams received a life
term. Pursuant to section 186.22, subdivision (b)(5), Mr. Adams
received a minimum term of 15 years. The 10-year firearm use
finding was stayed pursuant to section 12022.53, subdivision
(e)(2). The trial court made no oral statement as to whether it
was imposing consecutive or concurrent terms on the sex offenses
charges, counts 2 and 3, and the kidnapping conviction, count 4.
The abstract of judgment states the count 4 kidnapping to
commit rape or oral copulation sentence was to run consecutively
with the sex offenses.
       As to Mr. Moreland, similar sentences were imposed as to
counts 2, 3 and 4. However, Mr. Moreland had been subject to a
prior serious felony juvenile dispositional order and was a minor
when the present crimes were committed. Thus, Mr. Moreland’s
sentence differs in several respects from that imposed on Mr.
Adams. Mr. Adams was not a juvenile at the time of the




                                39
commission of the offenses specified in the second amended
information. As to count 2, Mr. Moreland received a sentence of
50 years to life (25 years to life doubled because of his prior
serious felony juvenile disposition) plus an additional: 10-year
term pursuant to section 12022.53, subdivision (b); 5 years for
great bodily injury pursuant to section 12022.8, subdivision (a);
plus 10 years as a result of the section 186.22, subdivision
(b)(1)(C) gang enhancement finding. As to count 3, Mr. Moreland
received a 50-years-to-life sentence plus 10 years for firearm use
and the gang enhancement. The sentences as to counts 2 and 3
were ordered to run consecutively pursuant to section 667.6
subdivisions (c) and (d). As to count 4, the kidnapping to commit
rape or oral copulation conviction, defendant received a life
sentence. The oral pronouncement of judgment makes no
reference to counts 2 and 3, the sexual assault charges, running
consecutively to the aggravated kidnapping sentence. The
abstract of judgment states that counts 3, oral copulation in
concert, and 4, kidnapping to commit rape and oral copulation,
were ordered to run consecutively. Pursuant to section 186.22,
subdivision (b)(5), Mr. Moreland received a 15 year minimum
parole eligibility term. As noted, Mr. Moreland was a juvenile
when he engaged in the crimes alleged in the second amended
information. Pursuant to People v. Caballero, supra, 55 Cal.4th
at pages 268-269, the trial court imposed a minimum parole
eligibility date of 35 years from the date of sentencing. (See
Graham v. Florida, supra, 560 U.S. at p. 82.)




                                40
 f. The instructional error concerning kidnapping as defined by
    section 667.61, subdivision (d)(2) was harmless beyond a
                        reasonable doubt

       As noted, section 667.61, subdivision (d)(2) permits the
imposition of an indeterminate 25-years-to-life sentence under
these circumstances: “(d) The following circumstances shall
apply to the offenses specified in subdivision (c): [¶] . . . [¶] (2)
The defendant kidnapped the victim of the present offense and
the movement of the victim substantially increased the risk of
harm to the victim over and above that level of risk necessarily
inherent in the underlying offense in subdivision (c).” The section
667.61, subdivision (d)(2) qualifying circumstance has two
elements. The first element requires the victim be kidnapped.
The second element requires that victim’s movement
substantially increase the risk of harm to him or her above that
level of danger necessarily inherent in the sex offense. (People v.
Jones, supra, 58 Cal.App.4th at p. 713.) Section 667.61,
subdivision (d)(2) contains an element (substantial increase in
the risk of harm) beyond that in simple and aggravated
kidnapping. Aggravated kidnapping has as an element an
increase in the risk of the harm over that present in the
enumerated offenses. (People v. Robertson (2012) 208
Cal.App.4th 965, 979-980; People v. James (2007) 148
Cal.App.4th 446, 454, fn. 5.) Prior to 1998, section 209
aggravated kidnapping had as an element a substantial increase
in the risk of harm to the victim beyond that present in the
enumerated offense. But in 1997, section 209, subdivision (b)(2)
was amended to remove the “substantially” increase the risk of
harm element from the statutory definition of aggravated




                                 41
kidnapping. (Stats. 1997, ch. 817, § 2, pp. 5519-5520; People v.
Vines (2011) 51 Cal.4th 830, 869, fn. 20; People v. Martinez (1999)
20 Cal.4th 225, 232 & fn. 2.)
       The relevant sex offenses specified in section 667.61,
subdivision (c) are in concert rape or forcible oral copulation. And
as previously noted, the jurors were instructed pursuant to
CALCRIM No. 3179 that they must decide the additional
allegation of whether defendant kidnapped Diane. As part of the
CALCRIM No. 3179 qualifying circumstance instruction, the
jurors were instructed as follows: “To decide whether the
defendant kidnapped Diane [], please refer to the separate
instructions that I have given you on kidnapping. You must
apply those instructions when you decide whether the People
have proved this additional allegation.”
       The jurors were instructed concerning kidnapping
pursuant to CALCRIM No. 1215. We have previously set forth
the entirety of the CALCRIM No. 1215 instruction concerning
kidnapping. (See part IV(C)(3)(b), supra.) The instruction
defines asportation. There is no issue concerning the asportation
element raised by CALCRIM No. 1215. But, as previously noted,
CALCRIM No. 1215 also includes a discussion concerning risk of
harm in the context of whether the movement was substantial.
One of the factors in evaluating whether an asportation has been
for a substantial distance is the increase in the risk of harm from
the movement. (People v. Martinez, supra, 20 Cal.4th at p. 237
[“the jury might properly consider not only the actual distance
the victim is moved, but also such factors as whether that
movement increased the risk of harm above that which existed
prior to the asportation”]; see People v. Johnson, supra, 61
Cal.4th at p. 771 [same].)




                                42
       For clarity’s purposes we reiterate the risk of harm
instructions here: “In deciding whether the distance was
substantial, you must consider all the circumstances relating to
the movement. Thus, in addition to considering the actual
distance moved, you may also consider other factors such as
whether the distance the other person was moved was beyond
that merely incidental to the commission of rape and or oral
copulation, whether the movement increased the risk of physical
or psychological harm, increased the danger of a foreseeable
escape attempt, or gave the attacker a greater opportunity to
commit additional crimes, or decreased the likelihood of
detection.” (Italics added.) The CALCRIM No. 1215 simple
kidnapping risk of harm instruction, as given here, does not
require the jury to find an increased risk of harm resulting from
the asportation. By contrast, section 667.61, subdivision (d)(2)
requires that the movement increased the risk of harm beyond
that present in the two sex offenses charged in counts 2 and 3.
       Defendant argues the jurors were not properly instructed
concerning the section 667.61, subdivision (d)(2) increased risk of
harm element. We agree. There is a sua sponte duty to instruct
concerning the section 667.61, subdivision (d)(2) kidnapping
qualifying circumstance. (People v. Jones, supra, 58 Cal.App.4th
at p. 709; see People v. Mancebo (2002) 27 Cal.4th 735, 748.)
Here, the jurors were referred to a definition of kidnapping for
purposes of section 667.61, subdivision (d)(2) to CALCRIM No.
1215. CALCRIM No. 1215 does not adequately instruct the
jurors concerning the substantial increase in the risk of harm
element of a section 667.61, subdivision (d)(2) kidnapping
qualifying circumstance. CALCRIM No. 1215 does not require
the jury to find the asportation substantially increased the risk of




                                 43
harm over that level of risk necessarily inherent in the sex
offenses. And the reference to the increase of risk in CALCRIM
No. 1215 appears in a disjunctive discussion of how to evaluate
the substantial distance element of kidnapping. However, we
conclude the failure to properly instruct on the increased risk of
harm element of the section 667.61, subdivision (d)(2) kidnapping
qualifying circumstance was harmless beyond a reasonable
doubt. (People v. Luna (2012) 209 Cal.App.4th 460, 468 [§ 667.61,
subd. (e)(1) kidnapping qualifying circumstance]; People v. Jones,
supra, 58 Cal.App.4th at pp. 715-716 [§667.61, subd. (d)(2)
aggravated kidnapping].)
       No doubt, the jurors impliedly found that the movement of
Diane increased the risk of harm to her. As noted, the jurors
were instructed on the charge of kidnapping for the purpose of
rape or oral copulation pursuant to CALCRIM No. 1203. The
jurors were instructed, “The movement must have increased the
risk of physical or psychological harm to that person beyond that
necessarily present in the rape or oral copulation.” As instructed,
in order to convict defendant of aggravated kidnapping within
the meaning of section 209, subdivision (b)(1), the jurors were
required to find the movement increased the risk of harm to
Diane. As we have noted, after January 1, 1998, an increase in
the risk of harm was an essential element of section 209
subdivision (b)(1) aggravated kidnapping. Thus, the jury
impliedly found that there was an increase in the risk of harm
because of the lengthy asportation that occurred in our case.
(People v. Mincey (1992) 2 Cal.4th 408, 438 [“[A] trial court’s
failure to instruct on a lesser included offense is not prejudicial if,
as here, the jury necessarily resolved the factual question
adversely to the defendant under other instructions.”]; People v.




                                  44
Stankewitz (1990) 51 Cal.3d 72, 99 [“By finding the firearm-use
allegation to be true, the jury impliedly found that defendant was
a direct participant, or, at a minimum, that he aided the robbery
with the requisite intent.”].) Thus, the sole prejudicial error issue
that remains relates to the “substantial” increase in the risk of
harm element in section 667.61, subdivision (d)(2). While
deciding the aggravated kidnapping charge in count 4, the jurors
impliedly found that there had been an increase in risk of harm
during the lengthy asportation.
      In addition to the jury’s implied findings, the error was
harmless because the substantial risk of harm issue was
uncontested. The omission of an element during jury instruction
may be harmless when the factual issue is uncontested by the
defense. (People v. Mil (2012) 53 Cal.4th 400, 410 [“the omission
of an element of a . . . sentencing factor is harmless when ‘the
omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have
been the same absent the error.’”]; People v. Garcia (2001) 25
Cal.4th 744, 761 [same].) The substantial increase in risk
element of section 667.61, subdivision (d)(2) was uncontested by
Mr. Adams. Mr. Adams called no witnesses and chose to rely on
the state of the evidence. Mr. Adams’s lawyer never argued that
the asportation did not substantially increased the risk of harm
and never mentioned the 667.61, subdivision (d)(2) qualifying
circumstance instructions nor special finding. Mr. Moreland
denied being present throughout the sexual assaults, kidnapping,
attempted murder and other crimes committed against Diane.
However, during jury argument, Mr. Moreland’s counsel never
discussed the substantially increased risk of harm element nor
anything concerning the 667.61, subdivision (d)(2) qualifying




                                 45
circumstance issue. The substantial increase in the risk of harm
entire issue was uncontested and, with good reason, because the
lengthy asportation allowed defendants to leave the presence of
Mr. Odhiamo. He testified that as soon as the robbery was
completed and Diane was removed forcibly from his car,
defendants fled with her. During the movement, the jurors found
that both defendants personally used a firearm. Further, it was
during the lengthy asportation Diane was repeatedly sexually
assaulted.
      The calculus of whether the evidence was overwhelming is
closer as to Mr. Moreland. He denied any participation in the
sexual assaults and other violent crimes. However, we have
reviewed the entirety of the testimony and evidence. The
evidence was overwhelming in terms of the issue before us—
whether the victim’s movement substantially increased the risk
of harm to her. The failure to instruct the jury as to the
substantial increase in the risk of harm element of section
667.61, subdivision (d)(2) was harmless beyond a reasonable
doubt. (Neder v. United States (1999) 527 U.S. 1, 17; People v.
Mil, supra, 53 Cal.4th at pp. 410-411.) Hence, we conclude that
no instructional errors permit reversal and we must thus resolve
the section 209, subdivision (d) question.

                 g. Section 209, subdivision (d)

      Section 209, subdivision (d) states: “Subdivision (b) shall
not be construed to supersede or affect Section 667.61. A person
may be charged with a violation of subdivision (b) and Section
667.61. However, a person may not be punished under
subdivision (b) and Section 667.61 for the same act that




                                46
constitutes a violation of both subdivision (b) and Section 667.61.”
(Italics added.) The “the same act that constitutes a violation of
both subdivision (b) and Section 667.61” language utilized by the
Legislature in section 209, subdivision (d) is somewhat unclear.
Section 209, subdivision (d) was adopted as part of Assembly Bill
No. 59 (1997-1998 Reg. Sess.) (Assembly Bill No. 59, hereafter).
(Stats. 1997, ch. 817, § 2, pp. 5519-5520.) None of the legislative
committee reports prepared for Assembly Bill No. 59 discuss
section 209, subdivision (d). (Assem. Com. on Appropriations,
Rep. on Assem. Bill No. 59 as amended Mar. 10, 1997; Assem.
Com. on Public Safety, Rep. on Assem. Bill No. 59 as amended
Mar. 10, 1997; Assem. Third Reading Rep. on Assem. Bill No. 59
as amended June 3, 1997; Sen. Com. on Public Safety, Rep. on
Assem. Bill No. 59 as amended June 3, 1997; Sen. Appropriations
Committee, Fiscal Summary of Assem. Bill No. 59, as amended
Aug. 25, 1997; Sen. Rules Com., Office of Sen. Floor Analyses,
Third Reading Analysis of Assem. Bill No. 59 as amended Sept. 4,
1997.)
       Pursuant to section 209, subdivision (d), defendants could
not be punished for the same act that violated both sections 209,
subdivision (b) and 667.61. The act prohibited by section 209,
subdivision (b), as applicable here, is kidnapping to commit rape
or oral copulation. The section 667.61 conduct is the section
667.61, subdivisions (c)(3) and (7) rape or oral copulation in
concert violations under the section 667.61, subdivision (d)(2)
qualifying circumstances. Section 667.61, subdivision (d)(2)
requires a kidnapping occur. The violations of section 209,
subdivision (b) and 667.61 subdivisions (c)(3) and (7) under the
section 667.61, subdivision (d)(2) qualifying circumstances have
two common elements. In our context, the section 209




                                47
subdivision (b) violation requires the commission of a kidnapping
with the intent to commit one of the enumerated sex offenses.
(People v. Dominguez (2006) 39 Cal.4th 1141, 1151, fn. 6; People
v. Bell (2009) 179 Cal.App.4th 428, 435, fn. 2.) The 667.61
subdivisions (c)(3) and (7) violations under the section 667.61,
subdivision (d)(2) qualifying circumstances involve both the
kidnapping and commission of a section 209, subdivision (b)
enumerated sex offense.
       There are two elements in section 209, subdivision (b)
which differ from those in section 667.61, subdivision (d)(2). The
first different element is the intent with which the aggravated
kidnapping was committed. As we explained, aggravated
kidnapping to commit a specified sex offense in violation of
section 209, subdivision (b) requires an intent to commit one of
the enumerated crimes. (People v. Dominguez, supra, 39 Cal.4th
at p. 1151, fn. 6; People v. Bell, supra, 179 Cal.App.4th at p. 435,
fn. 2.) The second different element between sections 209,
subdivision (b) and 667.61, subdivision (d)(2) involves the risk of
harm. As we have noted, in order to violate section 209,
subdivision (b), there is no requirement the risk of harm be
substantially greater than that for the enumerated sex offense.
(People v. Vines, supra, 51 Cal.4th at p. 869, fn. 20; People v.
Martinez, supra, 20 Cal.4th at p. 232 & fn. 4.) By contrast,
section 667.61, subdivision (d)(2) requires there be a substantial
increase in the risk of harm. But the Legislature used the term
“same act” that violates both sections. The same act language
evinces a legislative intent to avoid punishment of an act, not an
offense with the precise same elements. And section 209,
subdivision (d) refers to the entirety of section 667.61 not to any
particular qualifying circumstances. Thus, the differences in




                                 48
statutory elements we have discussed between sections 209,
subdivision (b) and section 667.61, subdivision (d)(2) are
irrelevant in our case.
      At issue is existence of a common act occurring against a
single victim on the same day which violates section 209,
subdivision (b) and section 667.61. All the parties, including the
Attorney General, agree that section 209, subdivision (d) refers to
an act. And here, the parties agree for purposes of section 209,
subdivision (d), that the relevant act is the kidnapping of Diane
with the intent to commit either charged sex offense. It is this
act that constitutes a violation of both section 209, subdivision (b)
and section 667.61. Therefore, pursuant to section 209,
subdivision (d), the trial court was required to stay the
punishment on count 4, kidnapping to commit rape or oral
copulation, as to each defendant. (See People v. Garza (2003) 107
Cal.App.4th 1081, 1084.) For that act, the aggravated
kidnapping sentence must be stayed. The judgments must be
modified and the abstracts of judgment amended to so provide.

          [Part IV (C)(4)-(7) is deleted from publication.]

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

       The trial court orally imposed as to counts 4 and 6 a section
186.22, subdivision (b)(5) 15-year minimum parole eligibility
term. However, Mr. Moreland had previously been convicted of a
serious felony. Therefore, the 15-year minimum parole eligibility
term in each count should have been doubled. (§§ 667, subd.
(e)(1), 1170.12, subd. (c)(1); People v. Jefferson (1999) 21 Cal.4th
86, 90; see People v. Acosta (2002) 29 Cal.4th 105, 113-114.) This




                                 49
is subject, of course, to the trial court’s order setting an
indeterminate term of 35 years to life under People v. Caballero,
supra, 55 Cal.4th at pages 268-269. The judgment must be
modified and the abstract of judgment amended to so provide.

                     5. The sex offenses fines

       The trial court imposed a $300 sex offenses fine (§ 290.3) on
each defendant on each of counts 2 (§ 264.1, subd. (a)) and 3 (§
288a, subd. (d)(1)). We asked the parties to brief several issues in
relation to this fine. First, defendants were subject to the fine on
count 4 (§ 209, subd. (b)(1)) in additional to counts 2 and 3. This
is a question of statutory interpretation. Here, the Legislature’s
intent is clear from the statutory language. (See, e.g., In re D.B.
(2014) 58 Cal.4th 941, 946-947 [Welf. & Inst. Code, § 733, subd.
(c)]; People v. Licas (2007) 41 Cal.4th 362, 367-371 [§ 12034, subd.
(c)].) Section 290.3, subdivision (a) provides in part, “Every
person who is convicted of any offense specified in subdivision (c)
of Section 290 shall . . . be punished by a fine . . . .” (Italics
added.) The offenses specified in section 290, subdivision (c)
include, “Section . . . 209 [kidnapping] committed with intent to
violate Section . . . 288a [oral copulation].” Defendants were
convicted in count 4 of kidnapping to commit rape or oral
copulation in violation of section 209, subdivision (b)(1).
Defendants were convicted in count 3 of acting in concert to
commit forcible oral copulation in violation of section 288a,
subdivision (d)(1). Therefore, defendants violated section 209
with intent to violate section 288a, an offense subject to the
section 290.3 fine. The trial court’s unexplained failure to impose
the fines on count 4 is not, however, jurisdictional error. (People




                                50
v. Walz (2008) 160 Cal.App.4th 1364, 1371; People v. Burnett
(2004) 116 Cal.App.4th 257, 261-262.) The prosecutor did not
object to the trial court’s failure to impose the fines on count 4.
On this silent record, we presume the trial court determined
defendants did not have the ability to pay the additional fine.
(Ibid; see People v. Smith (2001) 24 Cal.4th 849, 852.)
       Second, effective September 20, 2006, section 290.3,
subdivision (a) provides for sex offenses fines in the amount of
$300 “upon the first conviction” and $500 “upon the second and
each subsequent conviction.” (Stats. 2006, Ch. 337, § 18, p. 2610.)
Because defendants were each convicted of more than one count
subject to the sex offenses fine, they each had a second and
subsequent conviction within the meaning of the statute. (People
v. O’Neal (2004) 122 Cal.App.4th 817, 822; see People v. Walz,
supra,160 Cal.App.4th at p. 1371.) Therefore, each defendant
was subject to a $300 fine on count 2, and a $500 fine on count 3.
(Ibid.)
       Third, the trial court failed to impose mandatory penalties
and surcharges on the fines. This is an error that can be raised
for the first time on appeal. (People v. Talibdeen (2002) 27
Cal.4th 1151, 1157; People v. Castellanos (2009) 175 Cal.App.4th
1524, 1530.) As of the date of the present offenses, May 2, 2011,
each sex offenses fine was subject to: a 100 percent state penalty
(§ 1464, subd. (a)(1)); a 70 percent county penalty (Gov. Code, §
76000, subd. (a)(1)); a 20 percent state surcharge (§ 1465.7, subd.
(a)); a 30 percent state court construction penalty (Gov. Code, §
70372, subd. (a)(1)); a 10 percent deoxyribonucleic acid penalty
(Gov. Code, § 76104.6, subd. (a)(1)); a 30 percent state-only
deoxyribonucleic acid penalty (Gov. Code, § 76104.7, subd. (a));
and a 20 percent emergency medical services penalty (Gov. Code,




                                51
§ 76000.5, subd. (a)(1)). (See People v. Johnson (2015) 234
Cal.App.4th 1432, 1457-1458; People v. Hamed (2013) 221
Cal.App.4th 928, 940-941.)
       Fourth, the matter must be remanded for an ability to pay
determination. Section 290.3, subdivision (a) mandates
imposition of the fine “unless the court determines that the
defendant does not have the ability” to pay it. Here, the trial
court impliedly concluded defendants each had the ability to pay
a $600 fine. However, if imposed as discussed above, the fines,
penalties and surcharges will greatly exceed $600. Therefore,
upon remittitur issuance, the trial court must consider
defendants’ ability to pay the fines, penalties and surcharges.
(People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249-1250;
People v. Walz, supra, 160 Cal.App.4th at pp. 1370-1371.) The
trial court must conduct a hearing concerning each defendant’s
ability to pay the sex offenses fines in light of the total financial
obligation, which includes the foregoing penalties and
surcharges. (People v. Johnson, supra, 234 Cal.App.4th at pp.
1458-1459; People v. Corrales (2013) 213 Cal.App.4th 696, 702.)
If additional fines are imposed, the trial court is to personally
insure the superior court clerk prepares amended abstracts of
judgment detailing the base fines, penalties and surcharge.
(People v. Johnson, supra, 234 Cal.App.4th at p. 1459; People v.
Hamed, supra, 221 Cal.App.4th at p. 940; People v. Valenzuela,
supra,172 Cal.App.4th at p. 1250.)




                                  52
              6. Mr. Adams’s Abstract of Judgment

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

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

      Mr Moreland’s abstract of judgment states that count 6,
attempted willful, deliberate and premeditated murder, is to run
consecutive to count 2, rape in concert. However, the oral
pronouncement of judgment does not reflect such an order. Thus,
absent some other reason that requires consecutive sentencing,
the abstract of judgment must be corrected to state that counts 2
and 6 are to run concurrently. (§ 669, subd. (b) [in the absence of
a contrary ruling, sentences are to run concurrently]; People v.
Myles (2012) 53 Cal.4th 1181, 1222, fn. 14, 1226 [the abstract of
judgment must comport to the oral pronouncement]; In re
Calhoun (1976) 17 Cal.3d 75, 79-80 [sentences are presumed to
run concurrently].)
      The Attorney General argues though that consecutive
sentences were mandatory pursuant to sections 667, subdivision




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(c)(6) and 1170.12, subdivision (a)(6). However, the trial court
never orally imposed consecutive sentences on the attempted
murder and sexual assault counts. There is substantial evidence
the attempted murder involved the same firearm used to commit
the sex crimes and arose out of the same set of operative facts.
(People v. Lawrence (2000) 24 Cal.4th 219, 233; People v. Garcia
(2008) 167 Cal.App.4th 1550, 1566-1567.) Had the trial court
orally ordered consecutive sentencing on counts 2 and 6, we
would have upheld the order under sections 667, subdivision
(c)(6) and 1170.12, subdivision (a)(6). Such an order would have
been supported by substantial evidence. But the “common act or
criminal conduct” determination is fact-driven and is reviewed for
substantial evidence. (See People v. Osband (1996) 13 Cal.4th
622, 730 [where consecutive sentences were imposed for rape and
robbery, substantial evidence supported the trial court’s implied
finding that the accused entertained more than one objective];
People v. Garcia, supra, 167 Cal.App.4th at pp. 1566-1567 [no
substantial evidence supported mandatory consecutive
sentencing]; People v. Chan (2005) 128 Cal.App.4th 408, 424 [no
substantial evidence supported the trial court’s order imposing
concurrent sentences where the sex offenses were committed on
separate occasions].) In the face of the trial court’s silence and
the presence of substantial evidence that common acts or conduct
are present, we respectfully disagree with the Attorney General.




                               54
               [Part V is deleted from publication.]
                        V. DISPOSITION

       The judgment as to Mr. Moreland is modified to impose
minimum parole eligibility terms of 30 years on counts 4 and 6.
The judgments are further modified to award Mr. Adams 563
days of presentence custody credit and to award Mr. Moreland
611 days of such credit. The reference to a Penal Code section
12022.53, subdivision (b) finding in Mr. Adams’s abstract of
judgment must be stricken. Mr. Moreland’s abstract of judgment
is modified to delete the reference to count 2 running
consecutively to count 6. The judgments are modified as to both
defendants to stay the punishment on count 4 and to delete the
conduct credit awards.
       Mr. Moreland’s sentence is vacated and the matter is
remanded to the trial court for resentencing in light of Contreras,
supra, 4 Cal.5th 349. The court is directed to consider any
mitigating circumstances of Mr. Moreland’s crimes and life and
the impact of any new legislation and regulations on appropriate
sentencing. The court is further directed to impose a time by
which Mr. Moreland may seek parole consistent with Contreras.
       On remand, the trial court will also hold a hearing to
determine each defendant’s ability to pay the sex offense fines
together with applicable penalties and surcharges. The
judgments are affirmed in all other respects.
       Upon resentencing and resolution of the ability to pay
issue, the trial court is to personally insure that the superior
court clerk prepares fully correct amended abstracts of judgment
as discussed in the opinion’s body. The clerk of the superior court




                                55
is to forward copies of the amended abstracts of judgment to the
Department of Corrections and Rehabilitation.

        CERTIFIED FOR PARTIAL PUBLICATION



                  JASKOL, J. *
We concur:



                  BAKER, J., Acting P.J.



                  MOOR, J.




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



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