Filed 3/24/16




                     CERTIFIED FOR PARTIAL PUBLICATION*

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                         F069270
        Plaintiff and Respondent,
                                                              (Super. Ct. No. F12910447)
                v.

JOHN MICHAEL KELLY,                                                    OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.

        Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff
and Respondent.
                                             -ooOoo-




        *Pursuant  to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part 2.
                                       INTRODUCTION
       Does the “One Strike” law (Pen. Code,1 § 667.61) apply to a defendant who
kidnaps his victim immediately after the completion of forcible sex offenses against her?
We conclude it does.
       Defendant John Michael Kelly was charged with two counts of forced oral
copulation (§ 288a, subd. (c)(2)(A), counts 1 and 2) and one count of aggravated
kidnapping (§ 209, subd. (b)(1), count 3). Special circumstances of aggravated
kidnapping (§ 667.61, subd. (d)(2)) and simple kidnapping (§ 667.61, subd. (e)(1)) were
also alleged as to counts 1 and 2 under the One Strike law.
       A jury convicted defendant of both counts of forcible oral copulation (§ 288a,
subd. (c)(2)(A)), and the lesser included offense of simple kidnapping (§ 207, subd. (a))
as to count 3. The jury found true the aggravated kidnapping circumstance on count 1,
but as to the same count, found not true the simple kidnapping circumstance. The trial
court declared a mistrial as to the special circumstances alleged on count 2 after the jury
was unable to reach a unanimous decision on these allegations. Defendant was sentenced
to an indeterminate term of 25 years to life on count 1, with a consecutive eight-year
determinate sentence on count 3, and an eight-year determinate sentence for count 2,
imposed concurrent to count 1.
       On appeal, defendant contends: (1) the evidence was insufficient to support the
aggravated kidnapping circumstance; (2) the jury committed reversible error in finding
true the aggravated kidnapping circumstance, but finding not true the lesser included
circumstance of simple kidnapping; and (3) the trial court erred in sentencing defendant
for the aggravated kidnapping circumstance and the substantive offense of simple
kidnapping because he was punished twice for the same act of kidnapping. We agree
with defendant’s third claim and will order the abstract of judgment modified. In all
other respects, the judgment is affirmed.

       1All   undefined statutory references are to the Penal Code unless otherwise indicated.

                                                 2.
                                           FACTS
Prosecution’s Case
          On December 24, 2012, at approximately 5:45 p.m., Dulce R. was walking home
on M Street in Fresno. As she was walking, she observed a gray Ford Mustang drive by
her twice. Unfamiliar with the area, Dulce reached a dead end on M Street and Heaton
and turned around. When she turned around, she saw a man, defendant, walking toward
her. Dulce crossed the street and defendant crossed as well. Defendant caught up to her
and pushed her six to eight steps backwards to a grassy area by the side of a warehouse.
          Dulce, who speaks essentially no English, told defendant, “No, please.”
Defendant told her to be quiet and not to yell. Dulce thought he wanted money and
offered defendant $20 and her cell phone. Defendant threw her phone and purse on the
ground and pushed her onto the ground. He pushed Dulce’s shirt and bra up and began
kissing her mouth and breasts. She repeatedly told defendant “no.” He pulled down
Dulce’s pants and orally copulated her. Defendant then stood up, pulled Dulce to her
knees by her arm and her hair, and forced her to orally copulate him.
          After 10 minutes, defendant grabbed Dulce by the arm and forced her into his
vehicle, a gray Ford Mustang. He threw her purse in the backseat of his car and drove to
the Bag-O-Bag liquor store in Fresno. Defendant left Dulce in the car while he went
inside. As soon as he was inside, Dulce fled to a nearby Walgreens, where she passed
out. When she awoke, police and emergency personnel had arrived.
          Dulce showed Officer Ana Chavarin of the Fresno Police Department the route
she took to walk home and the location where the incident occurred. Chavarin observed
the grass where the incident occurred appeared to be flattened. Police sighted
defendant’s Mustang the next day. The vehicle was stopped and Dulce’s purse was
recovered from the backseat.
          A criminalist determined defendant’s DNA was on Dulce’s lower lip and right
breast.


                                              3.
Defense’s Case
       Defendant testified in his own defense. He claimed he was driving home when he
saw Dulce walking on M street and Ventura. Believing she was a sex worker, he drove
by her again at Tulare Street and Van Ness. Defendant drove around the block, parked
his car, and jogged over to her. He offered Dulce $20 for sex and claimed she agreed.
They walked to a grassy area 10 feet from the street, by the side of a warehouse.
       Defendant and Dulce began kissing. He claimed he felt like it was love at first
sight and he believed he was making her his girlfriend. Defendant performed oral sex on
Dulce, and she performed oral sex on him. He maintained it was consensual.
       After 10 minutes, Dulce suggested they go to her house and defendant agreed.
They walked arm in arm to defendant’s car, like a couple. Dulce was not sure how to get
to her house so they decided to go to defendant’s home. As they were driving, she
received a phone call and began to act anxious. Dulce asked defendant to stop at a liquor
store and gave him money to purchase beer. When he came out of the store, she was
gone. Defendant was not surprised Dulce left because she was acting nervous during the
car ride. Defendant found Dulce’s purse in his car after he drove home. Unable to find
any identification in her purse, he took the money he found inside.
                                      DISCUSSION
1.     The Aggravated Kidnapping Circumstance
       The jury found defendant guilty of two counts of forcible oral copulation, a felony
sex offense under section 667.61, subdivision (c). As to count 1, the jury also found true
an aggravated kidnapping circumstance (§ 667.61, subd. (d)(2)).
       On appeal, defendant argues the circumstance does not apply because the
prosecutor elected to proceed on one of two possible theories of kidnapping: defendant’s
movement of the victim to the liquor store. He asserts this act is insufficient to support
the circumstance because the kidnapping did not occur until after the acts of forcible oral
copulation concluded. We disagree.


                                             4.
       Defendant was sentenced to an indeterminate term of 25 years to life pursuant to
the One Strike law, an alternative sentencing scheme applicable to eligible felony sex
offenses (People v. Jones (1997) 58 Cal.App.4th 693, 709). The scheme provides a
sentence of 15 or 25 years to life in prison where a defendant is convicted of a sex crime
enumerated within subdivision (c) of section 667.61, and certain factual allegations are
found true, most of which concern the manner in which the offense was committed
(§ 667.61, subds. (d), (e)).
       We agree with defendant’s assertion the prosecutor elected to prove the
aggravated kidnapping circumstance based on defendant’s act of moving the victim by
driving her 3.7 miles to a liquor store. At trial, the prosecutor presented evidence of two
acts of kidnapping. The first was defendant’s initial act of forcing the victim to the
grassy area by the warehouse. The second was defendant’s act of driving the victim to
the liquor store.
       In closing argument, the prosecutor emphasized to the jury defendant’s act of
driving the victim to a liquor store constituted the aggravated kidnapping circumstance.
Pursuant to section 667.61, subdivision (d)(2), an aggravated kidnapping circumstance
requires proof (1) the defendant kidnapped the victim; and, (2) “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 prosecutor
argued defendant substantially increased the risk of harm to the victim when he moved
her to the liquor store because she was alone with defendant in his car, unable to scream
for help, and her only means of escape was to exit a moving vehicle.
       Where a pleading charges a defendant with one criminal act but the evidence tends
to show more than one such act, the prosecutor must elect the specific act relied upon to
prove the charge to the jury, or the court must instruct the jury that it must unanimously
agree that the defendant committed the same specific criminal act. (People v. Thompson
(1995) 36 Cal.App.4th 843, 850.) Here, the prosecutor elected to prove the aggravated


                                             5.
kidnapping circumstance based on defendant’s act of moving the victim to the liquor
store, not the slight movement of the victim from the sidewalk to the grassy area by the
warehouse. Although he also requested a unanimity instruction, the prosecutor’s
statements in closing argument were a clear and direct election, and it can be reasonably
inferred the instruction was requested as a precautionary measure.
       Based on this theory, defendant argues there is insufficient evidence to support the
aggravated kidnapping circumstance because the kidnapping did not occur until after the
sexual offense had concluded. He contends the circumstance only applies where a
qualifying sex offense occurs in or during the commission of a kidnapping.
       People v. Jones, supra, 58 Cal.App.4th 693 is instructive on the issue. In Jones,
the defendant raised a challenge to the sufficiency of the evidence supporting an
aggravating kidnapping circumstance. (Id. at pp. 712-713.) The defendant argued the
circumstance applied only if he kidnapped the victim with the specific intent to commit a
sexual offense, but there was insufficient evidence of such intent. (Id. at p. 716.) The
Fourth Appellate District disagreed, reasoning the express language of subdivision (d)(2)
of section 667.61 does not require specific intent. (Jones, at p. 717.) The court further
opined “[it] would appear the circumstance would apply if the defendant commits the
sexual offense, then, as an afterthought, kidnaps the victim ….” (Ibid.)
       Although the issue in Jones was whether the aggravated kidnapping circumstance
requires specific intent, rather than whether a sex offense must occur during the
commission of a kidnapping, the reasoning is persuasive. Nothing in section 667.61,
subdivision (d)(2) provides the circumstance applies only where a defendant commits a
sex offense, in or during the commission of a kidnapping. (See People v. Luna (2012)
209 Cal.App.4th 460, 467 [analyzing a similar provision, simple kidnapping (§ 667.61,
subd. (e)(1)), and holding similar to aggravated kidnapping, simple kidnapping does not
require the defendant commit the sex offense during a kidnapping].)




                                             6.
       Unlike aggravated kidnapping (§ 667.61, subd. (d)(2)), other circumstances within
the same statutory scheme explicitly provide the qualifying sex offense must occur during
the commission of the circumstance. Section 667.61 provides for an increased penalty
where the defendant: “inflicted aggravated mayhem or torture on the victim or another
person in the commission of the present offense …” (id., (d)(3)), “committed the present
offense during the commission of a burglary …” (id., (d)(4)), “used a dangerous or
deadly weapon … in the commission of the present offense …” (id., (e)(3)), tied up or
bound “the victim or another person in the commission of the present offense” (id.,
(e)(5)), or “administered a controlled substance to the victim in the commission of the
present offense …” (id., (e)(6)). In drafting section 667.61, we presume the Legislature
was aware of the construction of the phrase “in the commission of,” and because the term
was not employed in subdivision (d)(2), we infer the omission was intentional.
(Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576 [“When
the Legislature ‘has employed a term or phrase in one place and excluded it in another, it
should not be implied where excluded’”].) We will, therefore, not read the phrase into
subdivision (d)(2) of section 667.61.
       We also observe the Jones court’s interpretation of the kidnapping circumstance is
in accord with the purpose of the statute: to ensure serious sex offenders receive lengthy
prison sentences upon their first conviction when their crimes are committed under
circumstances elevating their victim’s vulnerability. (People v. Palmore (2000) 79
Cal.App.4th 1290, 1296.) It would be absurd to construe the statute to apply only where
a kidnapping precedes a sexual offense when the risk of harm to a victim who is sexually
assaulted and then kidnapped is no less substantial. Indeed, had the victim here not
escaped before defendant took her to his home, we can only surmise what additional
harm would have been inflicted upon her.
       However, even if the Legislature had intended the circumstance apply only to
sexual offenses which occur during the commission of kidnapping, the circumstance


                                            7.
would still apply here. The Sixth Appellate District explained in People v. Alvarado
(2001) 87 Cal.App.4th 178, 189-190, in interpreting statutes that provide enhanced
punishment for conduct performed during the commission of a felony, such as section
667.61, courts look to felony-murder cases to define the phrase “in the commission of.”
For purposes of felony murder, a felony sex offense has been held to be continuous as
long as the victim has not been disposed of or remains confined (People v. Guzman
(1988) 45 Cal.3d 915, 952), until the perpetrator reaches a place of temporary safety
(People v. Portillo (2003) 107 Cal.App.4th 834, 843), or as long as the perpetrator
maintains control over the victim (People v. Castro (1994) 27 Cal.App.4th 578, 586).
       We need not decide how the temporal duration of a sex crime must be measured
for purposes of aggravated kidnapping because the facts of the instant case plainly
warrant application of the circumstance. Although the physical act of forcible oral
copulation concluded when defendant kidnapped the victim, the offense had not. Rather
than releasing the victim or fleeing the scene of the crime, defendant forced her into his
vehicle and drove her to a liquor store. Thus, even if the aggravated kidnapping
circumstance implicitly required a sex offense occur during or in the commission of
kidnapping, the circumstance would apply here.
       Based on the foregoing interpretation, we conclude substantial evidence supports
the jury’s finding on the aggravated kidnapping circumstance. Aggravated kidnapping,
pursuant to section 667.61, subdivision (d)(2), applies where (1) the perpetrator is
convicted of a sexual offense specified in subdivision (c) of the statute; (2) the perpetrator
kidnapped the victim of the offense; and, (3) the movement of the victim substantially
increased the risk of harm to the victim above that necessarily inherent in the underlying
offense.
       Defendant was convicted of two acts of forcible oral copulation against the victim,
a sex offense specified in subdivision (c) of section 667.61. After the sexual assault, he
forced the victim into his vehicle and drove her to a liquor store. Kidnapping requires the


                                              8.
People to prove: (1) the victim was moved a substantial distance; (2) the movement was
accomplished by use of physical force or fear; and, (3) the movement was nonconsensual.
(People v. Jones (2003) 108 Cal.App.4th 455, 462; People v. Martinez (1999) 20 Cal.4th
225, 237 [a substantial distance must be more than trivial or slight].) Because the victim
here testified defendant forced her into his vehicle, despite her repeated pleading, and
other evidence demonstrated defendant drove the victim a substantial distance, 3.7 miles,
to the liquor store, this element has been satisfied.
       The last element, which considers the increased risk of harm to the victim, is also
satisfied where there is substantial asportation of the victim. (People v. Jones, supra, 58
Cal.App.4th at p. 713.) The jury may also consider the defendant’s “‘decreased
likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape,
and the attacker’s enhanced opportunity to commit additional crimes.’” (Ibid.)
       As noted, defendant drove the victim 3.7 miles to a liquor store, a substantial
distance. Moreover, his movement of the victim—from the grassy area near a relatively
public setting into the isolation of his vehicle—decreased the likelihood of his detection
and increased the risk of harm to the victim based on her foreseeable attempts to escape.
Until defendant arrived at the store, the victim’s only option to escape was to exit a
moving vehicle. We conclude substantial evidence supports the aggravated kidnapping
circumstance.

2.     The Jury’s Findings as to the Kidnapping Circumstances
       In his second claim on appeal, defendant challenges the jury’s true finding on the
aggravated kidnapping circumstance and not true finding on the lesser included simple
kidnapping circumstance. He contends double jeopardy precludes conviction of the
greater circumstance where a defendant is found not guilty of a lesser included
circumstance.



       See footnote,   ante, page 1.

                                              9.
       Defendant also asserts the jury’s finding must be reversed because the trial court
violated section 1161 by not determining the jury’s true intent after reviewing the verdict
forms. We are not persuaded by either argument.
       Inconsistent verdicts are generally accepted as an occasional product of our
criminal justice system. (People v. Palmer (2001) 24 Cal.4th 856, 860.) “[I]f an
acquittal of one count is factually irreconcilable with a conviction on another, or if a not
true finding of an enhancement allegation is inconsistent with a conviction of the
substantive offense, effect is given to both.” (People v. Santamaria (1994) 8 Cal.4th 903,
911.) “The rule applies equally to inconsistent enhancement findings ….” (People v.
Miranda (2011) 192 Cal.App.4th 398, 405.) The “[justice] system accepts the possibility
that ‘the jury arrived at an inconsistent conclusion through “mistake, compromise, or
lenity.”’” (People v. Guerra (2009) 176 Cal.App.4th 933, 943.)
       Although this principle is well-settled, defendant contends the jury’s inconsistent
verdicts violate the double jeopardy clause. The double jeopardy clauses of the Fifth
Amendment to the United States Constitution and article I, section 15 of the California
Constitution provide that a person may not be twice placed “in jeopardy” for the “same
offense” after acquittal. Double jeopardy bars against prosecuting an individual for the
same act after an acquittal or conviction. (People v. Bright (1996) 12 Cal.4th 652, 660,
overruled on other grounds as stated in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.)
       Defendant argues his punishment for the aggravated kidnapping circumstance is
prohibited under the double jeopardy clause because the jury found not true the lesser
included simple kidnapping circumstance. However, defendant was tried but once, and
he was not punished for the lesser included circumstance. As such, double jeopardy does
not apply.
       Defendant also contends the trial court violated section 1161 by failing to instruct
the jury to reconsider its verdict on the inconsistent circumstance findings. Section 1161
provides, in relevant part: “When there is a verdict of conviction, in which it appears to


                                             10.
the Court that the jury have mistaken the law, the Court may explain the reason for that
opinion and direct the jury to reconsider their verdict …; but when there is a verdict of
acquittal, the court cannot require the jury to reconsider it.” (Italics added; see People v.
Carbajal (2013) 56 Cal.4th 521, 530.)
       According to the plain language of section 1161, a trial court has the right to direct
a jury to continue deliberations, but it is not obligated to do so. Defendant fails to cite
any authority imposing an affirmative obligation on the trial court to direct the jury to
reconsider an inconsistent verdict. Although such a direction would have been prudent
here, we find no reversible error from the court’s failure to do so.
       In People v. Davis (1988) 202 Cal.App.3d 1009, 1014-1015 (Davis), a jury found
the defendant guilty of second degree murder, but not guilty of the lesser included
offenses of voluntary and involuntary manslaughter. The jury was instructed on first
degree murder, second degree murder, and voluntary and involuntary manslaughter. (Id.
at p. 1014.) The trial court also instructed the jurors to consider the possible homicide
verdicts in order of decreasing severity until they unanimously agreed on a guilty verdict,
deadlocked at a level, or agreed on a not guilty verdict at all levels. (Ibid.)
       The issue before this court was not jury reconsideration, but whether the
inconsistent verdict amounted to reversible error. (Davis, supra, 202 Cal.App.3d at p.
1016.) This court characterized the jury’s failure to follow the court’s instruction as a
technical error; the jurors mistakenly believed they had to complete all forms given to
them, and signed the manslaughter verdicts rather than leaving them blank. (Id. at p.
1017.) The defendant did not challenge the sufficiency of the evidence of his second
degree murder conviction, and he was not prejudiced as a result of the error. (Ibid.) As
such, the court found no basis for reversal of the defendant’s conviction. (Ibid.)
       In People v. Caird (1998) 63 Cal.App.4th 578, 585-586 (Caird), the trial court
sent the jury back to reconsider its verdict after the jury found the defendant guilty of a
forcible lewd act, but not guilty of the lesser included offense of a nonforcible lewd act.


                                              11.
The jury returned with the same finding. (Id. at p. 586.) The trial court polled jury
members individually and determined the jury had intended to convict the defendant of
the greater offense and, therefore, did not intend to reach a decision on the lesser included
offense. (Ibid.) As a result, the trial court struck the jury’s finding on the lesser included
offense. (Ibid.)
       On appeal, the defendant argued the trial court erred in sending the jury back to
reconsider its not guilty verdict. (Caird, supra, 63 Cal.App.4th at pp. 585-586.) Under
section 1161, trial courts are statutorily prohibited from directing juries to reconsider
verdicts of acquittal. The Caird court held the jury was not asked to reconsider a not
guilty finding, the trial court merely clarified the jury’s intent as to the inconsistent
verdict forms. (Id. at p. 588.) The court denied reversal, finding the jury’s inconsistent
verdict was a technical error, and further explained, technical defects may be disregarded
where the jury’s intent is unmistakably clear and the defendant is not prejudiced. (Id. at
p. 589.)
       Here, as in Davis, the issue is not one of jury reconsideration under section 1161.
The trial court declined to exercise its judgment to direct the jury to reconsider its
inconsistent finding on the aggravated kidnapping circumstance. In addition, we do not
find the jury’s verdicts to be so inconsistent as to require reversal.
       Similar to Davis and Caird, the verdicts here appear to be merely a technical error.
Although the trial court characterized the jury’s inconsistent verdicts as an act of mercy,
we need not speculate as to the cause of the error because the jury’s intent is
unmistakable from the record. During deliberations, the jury sent a note to the court to
ask whether a unanimous vote had to occur to find the enhancements true or not true.
The court responded affirmatively, and the jury found the aggravated kidnapping
circumstance true. The trial court polled the jury individually and the verdict was
affirmed by each member. Thus, the jury evidently intended to find the aggravated
kidnapping circumstance true.


                                              12.
3.     Defendant’s Sentence on Count 3
       Defendant contends the trial court was required to stay his sentence for simple
kidnapping (§ 207, subd. (a)) on count 3 because he was also sentenced for the
aggravated kidnapping circumstance on count 1. He contends his sentence is
unauthorized under section 654 because he was punished twice for the same act of
kidnapping. We agree.
       Section 654, subdivision (a) provides the following, in relevant part: “An act or
omission that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” Section 654 applies where a single act violates more than one statute. (Neal
v. State of California (1960) 55 Cal.2d 11, 20.) The purpose of the statute is to ensure a
defendant’s punishment is commensurate with his or her culpability. (People v. Latimer
(1993) 5 Cal.4th 1203, 1211.)
       Our Supreme Court has held section 654 bars multiple enhancements punishing
the same aspect of a criminal act. (People v. Ahmed (2011) 53 Cal.4th 156, 163-164
(Ahmed.) With respect to enhancements going to the nature of the offense, i.e., conduct
enhancements, the court explained resort to section 654 is necessary only when a specific
sentencing statute does not provide an answer as to whether a crime may be punished
under multiple provisions. (Ahmed, at pp. 162-163.)
       Although section 667.61 is an alternative sentencing scheme rather than an
enhancement (People v. Acosta (2002) 29 Cal.4th 105, 118), the aggravated kidnapping
circumstance at issue here is functionally equivalent to a conduct enhancement because it
focuses on the manner in which the underlying offense was committed, rather than on the
status of the offender. In any event, the issue before this court is not whether the
aggravated kidnapping circumstance (§ 667.61, subd. (d)(2)) was punished twice because
defendant was not convicted of the substantive offense of aggravated kidnapping (§ 209).



                                             13.
The issue is whether defendant was punished twice for the same act of simple
kidnapping.
       In the instant case, the prosecutor advised the jury during closing argument that
defendant’s act of driving the victim to the liquor store was the act supporting the
aggravated kidnapping charge on count 3, as well as the aggravated kidnapping
circumstances as to both counts 1 and 2. The jury found the aggravated kidnapping
circumstance true as to count 1 and found defendant guilty of the lesser included offense
of simple kidnapping as to count 3. The trial court sentenced defendant to an
indeterminate term of 25 years to life on count 1, with a consecutive eight-year
determinate sentence on count 3. Because the trial court did not stay defendant’s
sentence for simple kidnapping, he was punished twice for the same act in contravention
of section 654.
       The Attorney General contends section 654 does not apply and relies on People v.
Byrd (2011) 194 Cal.App.4th 88, 91 (Byrd), a case presenting a similar issue to the
instant case. In Byrd, the defendant argued the trial court erred when it sentenced him for
forcible sodomy (§ 286, subd. (c)(2)) with an aggravated kidnapping circumstance
(§ 667.61, subd. (d)(2)), but refused to stay his sentence for simple kidnapping (§ 207).
The defendant argued that because the aggravated kidnapping circumstance and the
simple kidnapping conviction were based on the same act of kidnapping, he was being
punished twice. (Byrd, at p. 92.) The trial court refused to stay Byrd’s sentence for
simple kidnapping under section 654, finding the defendant’s conduct established two
separate objectives for the kidnapping. (Byrd, at pp. 96-97.)
       The appellate court found no error. (Byrd, supra, 194 Cal.App.4th at p. 102.) The
Byrd court held section 667.61, subdivision (f) was controlling, not section 654. (Byrd, at
p. 97.) Subdivision (f) provides, in part, if only the minimum number of qualifying
circumstances required for one strike sentencing has been pled and proved, that
circumstance must be used as the basis for imposing the one strike term, to the exclusion


                                            14.
of any other provision of law, unless another provision provides for a greater punishment.
Because Byrd was punished for aggravated kidnapping under the One Strike law and not
simple kidnapping, his sentence for the substantive offense of simple kidnapping was not
prohibited under section 667.61, subdivision (f).
       The Byrd court explained aggravated kidnapping (§ 667.61, subd. (d)(2)) and
simple kidnapping (§ 667.61, subd. (e)(1)) are distinct circumstances. (Byrd, supra, 194
Cal.App.4th at p. 101.) The court also noted the statutory language of aggravated
kidnapping (§ 209) prohibits punishment under both section 209 and section 667.61 for
the same act; whereas simple kidnapping under section 207 contains no such prohibition.
(Byrd, at p. 102.) From the absence of this language, the court inferred Byrd could be
punished for kidnapping under section 207 and aggravated kidnapping under section
667.61, subdivision (d)(2). (Byrd, at p. 102.)
       We disagree with the reasoning in Byrd for several reasons. First, we do not read
section 667.61, subdivision (f) to circumvent application of section 654 under the facts in
Byrd. In finding subdivision (f) of section 667.61 controlling, rather than section 654,
Byrd found instructive our Supreme Court’s decision in People v. Mancebo (2002) 27
Cal.4th 735 (Mancebo). (Byrd, supra, 194 Cal.App.4th at p. 98.) However, the Mancebo
case had nothing to do with the staying of punishment or section 654.
       The issue before the court in Mancebo was whether a gun use circumstance was
available to support two section 12022.5, subdivision (a) enhancements when the gun use
was pled and proven as the only basis for sentencing under the One Strike law.
(Mancebo, supra, 27 Cal.4th at p. 738.) Under former section 667.61, subdivision (f),

       “[i]f only the minimum number of circumstances specified in subdivision
       (d) or (e) which are required for the punishment provided in subdivision (a)
       or (b) to apply have been pled and proved, that circumstance or those
       circumstances shall be used as the basis for imposing the term provided in
       subdivision (a) or (b) rather than being used to impose the punishment
       authorized under any other law, unless another law provides for a greater
       penalty. However, if any additional circumstance or circumstances
       specified in subdivision (d) … have been pled and proved, the minimum

                                            15.
       number of circumstances shall be used as the basis for imposing the term
       provided in subdivision (a), and any other additional circumstance or
       circumstances shall be used to impose any punishment or enhancement
       authorized under any other law.”
       A circumstance is pled and proved under section 667.61 if it is alleged “in the
accusatory pleading and either admitted by the defendant in open court or found to be
true by the trier of fact.” (Former § 667.61, subd. (i).) In Mancebo, both the original and
amended information failed to allege a multiple victim circumstance under section
667.61, subdivision (e)(5). (Mancebo, supra, 27 Cal.4th at p. 745.) As such, the gun use
was the only circumstance pled and proved under section 667.61, subdivision (f).
(Mancebo, at p. 745.) Since the other gun use enhancements did not provide for greater
punishment than the One Strike law, the act could only be punished under the One Strike
law. (Mancebo, at pp. 743-744.)
       The Byrd court found Mancebo factually distinguishable but, nonetheless,
instructive.2 (Byrd, supra, 194 Cal.App.4th at p. 98.) We agree Mancebo is factually
distinguishable, but we do not agree Mancebo was instructive.
       In Mancebo, subdivision (f) of section 667.61 required the gun use circumstance
to be applied exclusively to the One Strike law. (Mancebo, supra, 27 Cal.4th at pp. 743-
744.) As such, recourse to section 654 was unnecessary. We fail to see how section
667.61, subdivision (f) governed the court’s analysis in Byrd. The issue before the court

       2The Byrd   court’s premise, i.e., that Mancebo’s reasoning is instructive on the issue of
section 654, is perplexing to say the least. The court stated: “We note that in reaching its
decision, our Supreme Court relied entirely on the ‘plain wording’ of subdivision (f) and various
other provisions of section 667.61, as discussed post, and not on section 654, subdivision (a), in
determining that the 10-year term for personal gun use should have been stayed. (See People v.
Mancebo, supra, 27 Cal.4th at p. 743.)” (Byrd, supra, 194 Cal.App.4th at pp. 98-99.) However,
the gun use enhancements were ordered stricken, not stayed, by the Court of Appeal. Neither
party urged that any punishment imposed on the gun use enhancements should have been stayed.
In affirming the Court of Appeal, the Supreme Court agreed the gun use enhancements were
“improperly imposed” by the trial court “in contravention of the provisions of section 667.61,
subdivision (f). Those enhancements were therefore properly ordered stricken, and the One
Strike sentence otherwise properly affirmed.” (Mancebo, supra, 27 Cal.4th at p. 754.)
      Because Byrd’s analysis began from an erroneous premise, the remaining analysis
became foundationally flawed.

                                               16.
was not whether the aggravated kidnapping circumstance (§ 667.61, subd. (d)(2)) was
punished twice under multiple provisions of the law, because it was not. The issue was
whether Byrd’s act of simple kidnapping was punished twice.
       Second, Byrd noted section 667.61 distinguishes between aggravated and simple
kidnapping. (Byrd, supra, 194 Cal.App.4th at p. 101.) The simple kidnapping
circumstance (§ 667.61, subd. (e)(1)) statutorily references the substantive offense of
simple kidnapping as one of its qualifying circumstances:

              “(e) The following circumstances shall apply to the [sex] offenses
       specified in subdivision (c):

              “(1) Except as provided in paragraph (2) of subdivision (d), the
       defendant kidnapped the victim of the present offense in violation of
       Section 207 [simple kidnapping], 209 [kidnapping for intent to commit
       rape], or 209.5 [kidnapping during the commission of a carjacking].”
       (§ 667.61, italics added.)
       While aggravated and simple kidnapping are, indeed, distinct subdivisions under
section 667.61, aggravated kidnapping cannot be demonstrated unless the People prove
the defendant kidnapped the victim of the proscribed sex offense. (See CALCRIM
No. 3175.) Section 667.61, subdivision (d)(2) and section 207 both require the People
prove the defendant (1) took, held, or detained another person by using force or instilling
reasonable fear; and, (2) moved the victim a substantial distance, i.e., a distance more
than incidental to the underlying offense. The aggravated kidnapping circumstance has
the additional requirement the movement of the victim substantially increased the risk of
harm to him or her necessarily present in the underlying sex offense.
       Assuming only one act of kidnapping was punished in Byrd under both the
aggravated kidnapping circumstance and section 207, that would mean the defendant was
punished twice for the same act. In proving simple kidnapping (§ 207), the People
necessarily proved all but one element of the aggravated kidnapping circumstance
(§ 667.61, subd. (d)(2)) based on the same set of facts.



                                            17.
       Byrd also noted simple kidnapping (§ 207) and aggravated kidnapping (§ 209) are
distinguishable in that section 209 expressly prohibits punishment for an act that also
falls under section 667.61, and subdivision (b) of section 209; whereas, section 207
contains no such prohibition. (Byrd, supra, 194 Cal.App.4th at p. 102.) Subdivision
(b)(1) of section 209 punishes kidnapping with the intent “to commit robbery, rape,
spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289.”
Section 209, subdivision (d) prohibits punishment for the same act that violates both
subdivision (b) of section 209 and section 667.61.
       We are not persuaded the absence of a similar provision in section 207 supports
the inference an individual may be punished for simple kidnapping (§ 207) and an
aggravated kidnapping circumstance (§ 667.61, subd. (d)(2)) based on the same act. In
reaching the conclusion section 654 does not apply because section 209 prohibits double
punishment and section 207 does not do so expressly, the Byrd court has turned the
appropriate analysis on its head.
       It is precisely because section 207 neither prohibits double punishment nor
requires double punishment that the court must turn to section 654 to determine whether
the sentence should be stayed under the facts and circumstances of the case. As to
section 209, resort to a section 654 analysis is unnecessary because, as previously noted,
courts must first look to the provisions of the statute to determine the appropriate
sentence or punishment. Section 209 does not mandate additional punishment but does
foreclose it in certain circumstances, such as where section 667.61 applies. When those
circumstances are present, the statute itself provides the answer, thereby rendering
section 654 irrelevant. On the other hand, since section 207 does not specifically prohibit
imposition of a sentence under any specified circumstances, section 654, the more
general statute, fills that void. “Only if the specific statutes do not provide the answer
should the court turn to section 654.” (Ahmed, supra, 53 Cal.4th at p. 163.)




                                             18.
       Finally, the Byrd court held the plain language of subdivision (f) of section 667.61
indicated the focus was on circumstances, rather than on underlying acts. (Byrd, supra,
194 Cal.App.4th at p. 102.) The Byrd court explained section 667.61, subdivision (f)
uses the words “that circumstance” or “those circumstances,” as opposed to the word
“act” or “omission” used by section 654. (Byrd, supra, at p. 102.)
       We do not agree with the appellate court’s finding subdivision (f) of section
667.61 circumvented section 654 under the facts presented in Byrd. The aggravated
kidnapping circumstance pled and proven in Byrd was not punished under any other
provision of the law, other than the One Strike law; thus, subdivision (f) of section 667.61
was not dispositive of the issue before the court.
       Moreover, section 654’s use of the words “act” and “omission” does not mean
circumstances—which focus on how a crime is committed—are exempt from the statute.
As our Supreme Court noted in Ahmed, “section 654 bars multiple punishment for the
same aspect of a criminal act.” (Ahmed, supra, 53 Cal.4th at p. 164.) Based on the
foregoing, we do not find Byrd persuasive and we decline to follow its reasoning. Byrd’s
interpretation essentially writes section 654 out of the law.
       Byrd is also factually distinguishable from the instant case. As a fallback
argument, the appellate court explained in a footnote that if section 654 did, in fact,
apply, the court would still affirm the sentence because the trial court found two distinct
acts of kidnapping had occurred. (Byrd, supra, 194 Cal.App.4th at p. 102, fn. 9.) A
defendant may be punished multiple times for the same act without violating section 654
under specific circumstances. For example, if there are multiple victims (People v.
Martin (2005) 133 Cal.App.4th 776, 781-782), if the act is committed with different
criminal objectives (People v. Alvarado, supra, 87 Cal.App.4th at p. 196), or if a series of
acts are committed within a period of time during which reflection was possible (People
v. Surdi (1995) 35 Cal.App.4th 685, 689), section 654 does not apply.




                                             19.
       These circumstances are inapplicable here where there was one victim, no
evidence of separate and distinct objectives and, as discussed, the same act of kidnapping
was relied upon to support both the aggravated kidnapping circumstance and the simple
kidnapping conviction. Nonetheless, we have laid out what we believe is the appropriate
analysis, especially in light of cases decided after Byrd, such as Ahmed. The bottom line,
we think, is that the Byrd decision got it wrong.
       We are aware of decisions following Ahmed where an enhancement and a
substantive offense—both based on the same act—were found not to contravene section
654, such as People v. Dydouangphan (2012) 211 Cal.App.4th 772 (Dydouangphan) and
People v. Calderon (2013) 214 Cal.App.4th 656 (Calderon). These cases are
distinguishable and do not compel a similar result here.
       In Dydouangphan, the defendant shot at an occupied vehicle, resulting in the death
of one of the occupants. The defendant was convicted of voluntary manslaughter (count
1), assault with a firearm (count 2), and shooting at an occupied vehicle (count 3).
(Dydouangphan, supra, 211 Cal.App.4th at p. 779.) In addition, two enhancements were
imposed, one of which was the defendant personally discharged a firearm resulting in
great bodily injury or death as to count 3. (Id. at pp. 779, 786.) The defendant argued, in
part, section 654 applied because his conviction for voluntary manslaughter punished him
for the death of the victim, but this same act was already punished by the enhancement
for personally discharging a firearm resulting in the death of the victim. (Dydouangphan,
at pp. 781-782.) This court rejected the defendant’s argument, explaining the
enhancement punished a specific aspect of the crime, the defendant’s personal use of a
firearm that caused death; whereas, voluntary manslaughter punished the victim’s death.
(Id. at p. 785.)
       In Calderon, the defendant stole a vehicle and attempted to run over the owner of
the vehicle as he fled. (Calderon, supra, 214 Cal.App.4th at p. 659.) He was convicted
of carjacking, among other substantive offenses. (Id. at p. 661.) The jury found true an


                                            20.
enhancement that the defendant personally used a deadly and dangerous weapon—the
automobile—in the commission of the carjacking. (Ibid.) The defendant argued he was
punished twice for the same act of driving at the victim with the vehicle, and the
enhancement should have been stayed under section 654. (Calderon, at p. 661.) The
appellate court disagreed, finding the enhancement punished the defendant’s use of a
deadly weapon during the commission of a carjacking, while the substantive offense
punished the criminal act of carjacking. (Id. at p. 665.)
       In both Dydouangphan and Calderon the enhancements at issue punished aspects
of the crime distinct from the substantive offenses. Both enhancements punished the
method in which the crime was accomplished, while the substantive offense punished the
crime itself. In the instant case, the aspect of the crime punished by the aggravated
kidnapping circumstance is kidnapping, however, count 3 punishes the same act of
kidnapping.
       In addition, both Dydouangphan and Calderon echo a concern expressed in
Ahmed that a literal application of section 654 would effectively eliminate enhancements
and reduce punishment, because an enhancement and an underlying offense always
involve the same act. (Calderon, supra, 214 Cal.App.4th at p. 667, quoting
Dydouangphan, supra, 211 Cal.App.4th at p. 785 [“‘literal application of section 654
would result in a bar to imposition of any sentence enhancement’”].)
       However, the “enhancement” at issue here—the One Strike law—contains an
express provision precluding such a result. Pursuant to subdivision (f) of section 667.61,
if only the minimum number of circumstances are pled and proved for application of the
One Strike law, that circumstance must be applied to the One Strike law “unless another
provision of law provides for a greater penalty or the punishment under another provision
of law can be imposed in addition to the punishment provided by [the One Strike law].”
This provision reflects the Legislature’s intent to punish serious sex offenders more
severely by mandating the greatest penalty possible. Thus, the concern expressed in


                                            21.
Dydouangphan and Calderon does not apply here because section 654 would not
eliminate punishment under the One Strike law.
       Based on the foregoing, Dydouangphan and Calderon are distinguishable from the
instant case. Defendant was punished twice for the same act of driving the victim to the
liquor store, and the trial court erred in refusing to stay his sentence for simple
kidnapping on count 3. The correct procedure would have been to impose a sentence on
count 3, but then stay execution of the sentence. We will order the abstract of judgment
amended consistent with this opinion.
                                       DISPOSITION
       The trial court is ordered to prepare an amended abstract of judgment with service
to all appropriate agencies to reflect the following modification: Defendant’s sentence as
to count 3 is stayed pursuant to section 654.
       In all other respects, the judgment is affirmed.

                                                           ___________________________
                                                                               PEÑA, J.
WE CONCUR:


 __________________________
HILL, P.J.


 __________________________
LEVY, J.




                                              22.
