1 Filed 2/27/13 P. v. Solano-Rosario CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. ODALIS SOLANO-ROSARIO, Defendant and Appellant. A134242
(Sonoma County Super. Ct. No. SCR572570)

I.
INTRODUCTION After a jury trial, appellant was convi cted of numerous offenses stemming from his violent sexual attack on a woman, Jane Doe. 1 Specifically, appellant was found guilty of Count I, alleging forcible sexual pene tration (Pen. Code, § 289, subd. (a)(1)). 2 In connection with this conviction, the ju ry found true the aggravated kidnapping enhancement (§ 667.61, subds. (a), (d), (e)). Appellant was also found guilty of Count II, alleging kidnapping with the in tent to commit forcible sexua l penetration (§ 209, subd. (b)(1)), and Count III, alleging assault with the intent to commit forcible sexual penetration (§ 220, subd. (a)). On appeal, appellant claims “the evidence was insufficient to convict of any form of kidnapping.” He also argues that the jury was prejudicially misled by the instructions

1 As was done at trial, we refer to the victim throughout this opinion as Jane Doe to protect her privacy.

2 All statutory references are to the Penal Code.2 given on the risk of harm to the victim, and the instructions given on the use of circumstantial evidence in pr oving the charged offenses. Finally, he claims the court
erred when it denied all conduct cred it for his presentence confinement. We affirm the judgment. However, as re spondent concedes, appellant’s challenge to the trial court’s decision not to award any conduct credits has mer it. Consequently, we amend the abstract of judgment to show 115 additional days of presentence conduct
credit.
II.
FACTS AND PROCED URAL HISTORY On November 16, 2009, ju st after 2:00 p.m., Jane Doe, who was nine months pregnant, arrived at the long driveway she sh ared with several neighbors, leading to her family’s rural property in Sebastopol, Ca lifornia. She was driving the family’s Volkswagen van and pulled into the driveway with her two little boys in the back, who were ages 3 and 6. As she drove toward her house located at the end of the driveway, she noticed a man she did not know standing in fr ont of a residence. That man was later identified as appellant. Jane Doe testified that she waved at appe llant in a “friendly” fashion as she drove by. When she made it to her property, she pa rked the van in front of her house, got out, and began attending to her child ren. Jane Doe noticed that appellant was walking toward her on the driveway. Appellant approached Jane Doe, saying he was her neighbor. As they spoke Jane Doe was feeling increasingly uncomfortable; and she walked a short distance from her van, to put some distance between appellant a nd her children. Appellant then asked Jane Doe if she could give him some “love.” Jane Doe responded, “No, I don’t give out love in that way . . . .” Appellant then grabbed Jane Doe’s hand and tried to kiss it. Jane Doe immediately pulled her hand away. She told a ppellant to leave her property and that she would call the police if he did not.
As Jane Doe started to walk back to he r van to get her cell phone, appellant put his arms around her in a “bear hug.” Jane Doe’s hands were down at her side when he threw3 his arms around her, grabbed her from the front, and started pushing her backward. Appellant moved Jane Doe with a backward shoving motion anywhere from 20 to 35 feet. He shoved her toward the fence line, shrouded with hedges an d grass. Jane Doe described the location to which appellant shov ed her as being “in the bushes” and away from the common driveway that sh e shared with her neighbors. As soon as appellant got her in that lo cation, she fell to the ground. Appellant straddled her and immediately started pulli ng her pants down. Jane Doe was wearing “stretchy yoga pants” that were “very comfor table for a “[nine-]month pregnant woman.” As appellant did this, Jane Doe was screaming at the top of her lungs and thrashing about, trying to keep her pants up while appellant was trying to pull them down. Appellant began touching Jane Doe’s bare vagina, inserting his fingers. Neighbors from surrounding properties he ard Jane Doe’s screams. James and Sean Cook, who were across the field, ran ov er when they heard he r scream for help. When they got to Jane Doe, they saw appellant on top of her with her pants pulled down. As they got closer, appellant told them so mething to the effect of “mind your own
business.” Sean Cook took out his cell phone and dialed 911. Another person in the area, John Scoma, arrived on th e scene, jumped over the fence, and started to confront appellant. At that point, appellant took off running down the shared driveway toward Highway 116. Mr. Scoma gave chase and confronted appellant on the driveway. Appellant res ponded by pulling out a kn ife and brandishing
it. 3 Upon seeing the knife, Mr. Scoma felt thre atened and stopped hi s pursuit. Appellant successfully fled the scene. Deputies from the Sonoma C ounty Sheriff’s Department arrived. Shortly thereafter, Jane Doe was transported by ambulance to the hospital for
examination and treatment.

3 Appellant was charged in Count IV with assault upon John Scoma with a deadly weapon. (§ 245, subd. (a)(1).) On October 31, 2011, at the close of the prosecution’s case, the court granted a motion of acquittal as to Count IV under section 1118.1.4 Jane Doe was not substantially injured, but had some soreness and scratches. The jury was informed that her pr egnancy had proceeded to full term, and in December 2009 (i.e., one month after the crime) she gave birth to a healthy child. On the day after the sexual assault, Nove mber 17, 2009, appellant’s mother gave
consent to law enforcement to enter her home to search for appellant. With the help of a trained canine, appellant was pulled out from underneath the house where he was hiding in a crawlspace. As appellant acknowledges on appeal, he never denied attacking Jane Doe with the intent to sexually assault he r. Appellant defines the “tru e issue” at trial as whether “the People had proved the essential elemen ts of both aggravated kidnapping and the
‘One Strike’ enhancement.” That is: “Did the movement of the victim substantially
increase the risk of harm to her over and ab ove that inherent in the intended crime?” After deliberating for less than an hou r, the jury returned its verdict finding appellant guilty of Counts I, II, and III and findi ng the alleged enhancements to be true. On December 29, 2011, the cour t sentenced appellant to a te rm of 25 years to life for forcible penetration, with th e circumstance alleged under se ction 667.61. The sentences imposed on Counts II and III were stayed purs uant to section 654. Credit for time already served was granted, and other sentencing fines, penalties, restitution, and conditions were imposed. This appeal followed.
III.
DISCUSSION
A. Substantial Evidence Demonstrat es Appellant Kidnapped Jane Doe and Substantially Increased the Risk of Harm to Her On appeal, appellant claims “the eviden ce was insufficient to convict him of both the ‘One Strike’ enhancement and of aggravat ed kidnapping.” Pursuant to California’s5 One Strike law, 4 a finding under section 667.61, subd ivision (a), requires imposition of a sentence of 25 years to life when a defendant is convicted of co mmitting one of the enumerated sexual offenses, including forcible sexual penetration, under one or more of the circumstances specified in subdivision (d). One of the specified circumstances, as found true by the jury in this case in Count I, is that the defendant “kidnapped the victim of the present offense and the movement of th e victim substantially increased the risk of
harm to the victim over and above the level of risk necessarily inherent in the underlying offense . . . .” (§ 667.61, subd. (d)(2).) Also, as alleged in Count II, the jury fo und appellant guilty of violating section 209, subdivision (b), a related statute, which defines aggravated kidnapping (kidnapping for purposes of committing robbery, rape, an d other specified offenses). It punishes offenders with life in prison with the possibility of parole “onl y” if “the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of
harm to the victim over and above that ne cessarily present in, the intended underlying offense.” (§ 209 , subd. (b)(1), (2).) Appellant contends the evidence is insu fficient to support the jury’s verdict finding the One Strike enhancement true base d on kidnapping as alleged in Count I and finding appellant guilty of the aggravated kidnapping as alle ged in Count II. He claims his movement of Jane Doe from the driveway into the grassy area near the fence was merely incidental to the underlying sexual o ffense and did not substantially increase the risk of harm to her. We first point out that there are minor differences in the standards governing the asportation element of each of these charged offenses. Section 667.61, subdivision (d)(2), the On e Strike enhancement, requires proof that “[t]he defendant kidnapped the victim of the present offense and the movement of
the victim substantially increased the risk of harm to the vi ctim over and above that level

4 Section 667.61, often called the “One St rike” law, was enacted to ensure that serious sexual offenders receive long prison sentence s regardless of whether they have any prior criminal convictions. ( People v. Wutzke (2002) 28 Cal.4th 923, 929-930; People v. Alvarado (2001) 87 Cal.Ap p.4th 178, 186.)6 of risk necessarily inherent in the underlying offense . . . .” (Italic s added.) However, as numerous courts have pointed out, section 209, subdivis ion (b)(2), which defines aggravated kidnapping, does not require th e prosecution to prove that the movement substantially increased the risk of harm to the victim. (See People v. Robertson (2012) 208 Cal.App.4th 965, 979-982, and numerous cases cited therein.) Section 209, subdivision (b)(2), simp ly requires proof that a defendant’s movement of the victim
increased the risk of harm to the victim over a nd above that which is inherent in the underlying offense itself. Even though these statutes impose sligh tly different standards, the instructions given in this case with respec t to the asportation requirement only contained the stricter evidentiary requirement that the movement substantially increase the risk of harm to the victim. This instruction, which was more de manding of the prosecution, actually worked to appellant’s advantage because it made it ha rder for the jury to convict appellant of aggravated kidnapping under sect ion 209, subdivision (b)(2), than if the jury had been given a legally correct instruction. In accor dance with the instruc tion given the jury, we apply the more stringent evidentiary standard in our review of the evidence––that is, we
examine the record to determine whether there is s ubstantial evidence appellant’s
movement of Jane Doe substantially increased the risk of harm to he r. If the evidence is sufficient to support the jury’s verdict under that standard, by nece ssity, it also supports the jury’s verdict finding appellant guilty of aggravated kidnapping under section 209, subdivision (b)(2). Our analysis of the evidence of asporta tion is guided by the fa miliar standard of review: “ ‘On appeal, an appellate court de ciding whether sufficien t evidence supports a
verdict must determine whether the record contains substantial evidence—which we repeatedly have described as evidence that is reasonable, credible, and of solid value— from which a jury could find the accused guilty beyond a reasona ble doubt.’ [Citations.] We presume in support of the judgment ‘the existence of every fact the trier could reasonably deduce from the ev idence.’ [Citation.]” ( People v. Vines (2011) 51 Cal.4th 830, 869.)7 Whether a defendant’s movement of a victim is merely incidental to the underlying offense is determin ed by the scope and nature of the movement, including the actual distance the victim is moved (although no minimum distance is required) and the environment in which the movement occurred. ( People v. Rayford (1994) 9 Cal.4th 1, 12 ( Rayford ); see People v. Dominguez (2006) 39 Cal.4th 1141, 1151-1152 ( Dominguez ).) “[I]ncidental movements are brief and insubsta ntial, and frequently consist of movement around the premises where the incident began. [Citations.]” ( People v. Diaz (2000) 78 Cal.App.4th 243, 247.) By contrast, “[ w]here movement changes the victim’s environment, it does not have to be great in distance to be substantial. [Citation.]” ( People v. Shadden (2001) 93 Cal.Ap p.4th 164, 169 ( Shadden ) [dragging a store clerk
nine feet from the front counter of a store to a small back room for the purpose of raping her was sufficient to support aggravat ed kidnapping conviction].) Whether the
movement caused a substantial increase in the ri sk of harm to the victim is dependent on “the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the a ttacker’s enhanced opportunity to commit additional crimes. [Citations.]” ( Rayford , at p. 13; accord, Dominguez , at p. 1152.) Appellant urges that the movement in the present case was brief and insubstantial,
from one isolated location to another simila r location a short distance away, and did not
increase the risk to Jane Doe ov er that inherent in the perpetration of the sexual offense. He compares this case to People v. Stanworth (1974) 11 Cal.3d 588 ( Stanworth ), overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 237.
In Stanworth , while the victim was walking along a road on the way home from a shopping center in the early ev ening, the defendant grabbed her from behind, held an ice pick at her throat, dragged her into an open field about 25 feet fro m the road, bound her hands, raped her, and took money from her purse. ( Stanworth , 11 Cal.3d at p. 597.) The
court found that the movement of the victim was not substantial but “merely incidental” to the commission of the rape and robbery, and that there wa s no evidence the “relatively brief movement . . . removed her from public view or in any other manner substantially8 increased the risk, beyond that inherent in the underlying crimes, that she would suffer physical harm.” ( Id. at p. 598.)
In Dominguez , supra, 39 Cal.4th 1141, the court exam ined similar facts but found
sufficient evidence the forc ed movement in that case increa sed the victim’s risk of harm. The evidence showed that, in th e middle of the night, the defendant forced the victim to
move from the shoulder of a road, down a 10 to 12-foot embankment and partially into a walnut orchard, about 25 fe et away from the road. ( Id . at pp. 1150-1151.) Because of the steepness of the embankment and trees in the or chard, it was unlikely a driver on the road would see the victim in the area to which she was moved. ( Id. at p. 1153.) Thus, although she was not moved a great distance , the court concluded that the movement “changed the victim’s environm ent from a relatively open area alongside the road to a place significantly more secluded, substantially decreasing the possibility of detection, escape or rescue.” ( Ibid. ) Distinguishing Stanworth , the Dominguez court concluded that the movement “removed [the victim] from pub lic view and substantially increased her risk of harm.” ( Dominguez , at p. 1154.) We believe the present case is more like Dominguez than Stanworth. Viewing the evidence in the light most favorab le to the jury’s verdict, as we must under our standard of review, the record contains substantial evidence from which a reasonable jury could conclude beyond a reasonable doubt that the movement was more than incidental to the
commission of the sexual assault and substantia lly increased the risk of harm to Jane Doe above that inherent in the underlying crime. After approaching Jane Doe when she wa s standing near her van attending to her children, appellant surprised her by stepping in front of her, grabbi ng her in a bear hug, and forcing her backward into a bushy area on the fence line beside the driveway. Jane Doe’s testimony was very clear that appellant intentionally moved her off the driveway and into the bushes against her will. She testif ied “I didn’t really have any sort of say where I was going.” ( Shadden
, supra , 93 Cal.App.4th at p. 169 [“Where a defendant drags a victim to another place, and then a ttempts a rape, the jury may reasonably infer that the movement was neither part of nor n ecessary to the rape”].) She struggled to try9 to keep her feet under her, but she ended up falling backward on the ground. The grassy area where appellant pushed her was variously estimated to be about 20 to 35 feet from where appellant first grabbed her. It was o ff the driveway and out of sight from where her neighbors could see her from their residenc es. Jane Doe was therefore less likely to be seen in the area to which appellant move d her than on the driveway where he first confronted her. Appellant also increased the odds that he could foil any attempt by Jane Doe to escape because he expa nded the distance between Ja ne Doe and all methods of escape (her van and home) and any way to get help (her children and cell phone). Consequently, when appellant pushed Ja ne Doe away from her driveway, her van, and her children, into a more concealed area, her environment dramatically changed by reducing her ability to escape, decreasing the likelihood of detectio n, and elevating the risk of serious inju ry or death. ( People v. Hoard (2002) 103 Cal.App. 4th 599, 607 [“[A] rape victim is certainly more at risk when concealed from public view and therefore more vulnerable to attack”].) We find ample ev idence supporting the jury’s conviction of aggravated kidnapping under se ction 209, subdivision (b)(2) and the true finding under section 667.61, subdivision (d)(2). 5 B. Increase in Risk of Psychologica l Harm to Find One Strike Enhancement True under section 667.61, subdivision (d)(2) Appellant next claims the jury was in appropriately invited to use the potential
increase in risk of mental harm to Jane Doe as a reas on to find true the Count I enhancement under section 667.61, subdivis ion (d)(2). As noted previously, section 667.61, subdivision (d)(2), the One Strike al legation, requires proof “[t]he defendant kidnapped the victim of the present offense a nd the movement of the victim substantially

5 Because we find the evidence fully supports appellant’s conviction for aggravated kidnapping, it necessa rily follows that the lesser included offense of simple kidnapping was also supported by the evidence. (See People v. Lewis (2008) 43 Cal.4th 415, 518 [simple kidnapping is a necessa rily included offense of aggravated kidnapping].) Therefore, we decline to disc uss appellant’s alternative argument, that the lesser included offense of simp le kidnapping in violation of section 207, subdivision (a), was also not proven at trial.10 increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offe nse . . . .” (Italics added.) Appellant complains the jury was improperly instructed in such a manner that they c ould find that a substantial increase in risk of harm was proven for pu rposes of the One Strike allegation simply
based on an increase in mental harm in the form of Jane Doe’s fear. A defendant’s challenge to the propriety of the trial court’s jury instructions normally raises an issue of law that we review de novo. ( People v. Posey (2004) 32 Cal.4th 193, 218 ( Posey ) [“The independent or de novo sta ndard of review is applicable in assessing whether instructi ons correctly state the law”]

. ) As the parties concede, no California decision has ever actually considered
whether mental or emotional harm is suffici ent to support the increased “risk of harm”
element of the section 667.61 allegation. However, under an alogous legal circumstances,
in People v. Nguyen (2000) 22 Cal.4th 872 ( Nguyen ), our Supreme Court held that the Legislature intended the increased risk of ha rm necessary for the asportation element of aggravated kidnapping (§ 209, subd. (b)) not be limited to increased risk of physical harm, but may be satisfied if there was a “sub stantially increased risk of either physical

or mental harm.” ( Id. at pp. 885-886.) Therefore, for purposes of section 209, subdivision (b), the Nguyen court held that the word “h arm” includes “psychological trauma to the victim.” ( Id. at p. 886.) Although section 667.61 is similarly worded , appellant claims that the legislative intent underlying the One Strike allegation su pports the conclusion that only a substantial increase in risk of physical harm, not ment al harm, may be considered when proving the increased risk of harm element. According to appellant, since the instructions as given failed to focus adequately on the differences between the risk of harm as specified in section 209, subdivision (b)(2) and the risk of harm as specified in section 667.61, subdivision (d)(2), the in structions could have improperly a llowed the jury to believe that mental harm alone was sufficient to prove ther e was a substantial increase in the risk of harm for purposes of finding the section 6 67.61, subdivision (d)(2) enhancement true.11 “When considering a challenge to a ju ry instruction, we do not view the
instruction in artificial isolati on but rather in the context of the overall charge. [Citation.] For ambiguous instructions, the test is whet her there is a reasonable likelihood that the jury misunderstood and misapplied th e instruction. [Citation.]” ( People v. Mayfield (1997) 14 Cal.4th 668, 777 ( Mayfield ); see Posey , supra , 32 Cal.4th at p. 218 [it is a legal issue if jury instructions are correct statements of law].) When judged by these sta ndards, even assuming appellant is correct and that the jury should not be allowed to use the increased risk of ps ychological harm to convict appellant of the One Strike allegation, we fi nd no indication that the instructions given the jury were incorrect or misl eading. With respect to aggr avated kidnapping in violation of section 209, subdivision (b), the instructi on identified the factors that the jury must consider in determining whether the movement substantially increased the risk of harm. In conformance with the Supreme Court’s decision in Nguyen , supra , 22 Cal.4th at page 885, this instruction st ated, “The defendant is charge d in Count II with kidnapping for the purpose of sexual penetration in viol ation of [section 209, subdivision (b)]. . . . As
used here , substantial distance means more than a slight or trivial distance. The movement must have . . . substantially increased the risk of physical or psychological
harm to the person beyond that ne cessarily present in the forc ible sexual penetration.” (Italics added.) With respect to section 667.61, the One Strike enhancement, the trial court used the standard jury instruction set out in CALCRIM No. 1203, which refers to a “risk of harm” without specifying whether that harm ma y be either mental or physical: “If you find the defendant guilty of the crime charged in Count I, you must then decide whether the People have proved the ad ditional allegation that the de fendant kidnapped Jane Doe, increasing the risk of harm to her. . . .” The instruction goes on to state, “In deciding whether . . . the movement substantially increa sed the risk of harm, you must consider all the circumstances relating to the movement.”12 Appellant claims the jury was “misled” as a result of the court’ s instructions on the One Strike allegation, because when co mbined with the prosecutor’s argument, 6 the jury was left with the impression that it could fi nd the One Strike alle gation had been proven by moving someone against his or her will for a substantial distance where that movement substantially increases the risk of mental, not phys ical, harm to that person. However, in making this argument, appellant c oncedes, as he must, th at “the jury was not specifically told it could consider ps ychological harm with respect to the enhancement . . . .” Indeed, the only mention of “psychol ogical harm” appears in the instructions describing the elements of aggrav ated kidnapping in violation of section 209, subdivision (b); and the instruc tion contains the limiting phrase, “[ a ] s used here .” (Italics added.) We therefore disagree with appellant that the instructions given here were erroneous. These instructions accurately and adequately defined the legal principles at issue. Accordingly, we fi nd no instructional error. ( People v. Breverman (1998) 19 Cal.4th 142, 154 ( Breverman ) [the trial court must inst ruct the jury on the general principles of law relevant to th e issues raised by the evidence].) Furthermore, we reject appe llant’s argument that the cour t had a sua sponte duty to give an instruction that only an increased risk of physical harm fulfills the increased risk of harm element for the One Strike allegation. While the trial cour t has a duty to give legally correct instructions, “the trial court is under no obligation to amplify or explain in the absence of a request that it do so. [Citations.]” ( Mayfield
, supra , 14 Cal.4th at p. 778.) If a jury is instructed on basic prin ciples of law applicable to the charges, but a clarifying instruction is desired, the burden is on the defendant to request one. ( People v.
Garvin (2003) 110 Cal.App.4th 484, 488-489.)

6 With respect to the prosecutor’s closi ng argument, when talking generally about kidnapping, the prosecutor said “the harm can be psychological or ph ysical.” Appellant has not asserted prosecutorial misconduct as to these comments, but even if he had, such a claim would fail. The prosecutor’s remark was neither legally incorrect or, when considered in context with the inst ructions given the jury, misleading.13 Consequently, if appellant wanted a custom ized jury instructi on informing the jury
that the increased risk of ha rm under the One Strike law could only be based on an increased risk of physical harm, it was his burd en to request such a pinpoint, clarifying, or amplifying instruction. ( People v. Lang (1989) 49 Cal.3d 991, 1024; see People v. Fiu (2008) 165 Cal.App.4th 360, 3 70 [“ ‘A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate cl arifying or amplifying language’. . . ”].) Appellant never requested a clarifying instruc tion on this point. Therefore, the court did not err by failing to further define the term “increased risk of harm” as included in its
instructions on the sec tion 667.61 allegation.
C. Instructions Given on Circumstantial Evidence
CALCRIM Nos. 224 and 225 instruct on the proper use of circumstantial
evidence. CALCRIM No. 225 fo cuses on circumstantial evidence to prove intent, while
CALCRIM No. 224 is more inclus ive, instructing the jury ho w to evaluate circumstantial evidence with regard to intent, as well as the othe r elements of the crime. ( People v. Samaniego (2009) 172 Cal.App.4t h 1148, 1171-1172 ( Samaniego ).) Appellant requested the court instruct the jury with CALCRIM No. 224. After reviewing both CALCRIM No. 224 and CALCRIM No. 225, the trial court denied appellant’s request and instructed the jury with CALCRI M No. 225––which is limited to a discussion of circumstantial evidence as it is used to prove intent or ment al state. The issue on appeal is whether the trial court erred by denying appellant’s request for CA LCRIM No. 224 and instead instructing the jury w ith CALCRIM No. 225. As we have seen, the trial court must inst ruct the jury on the ge neral principles of
law relevant to the issues raised by the evidence. ( Breverman , supra , 19 Cal.4th at p. 154.) This includes the duty to instruct on how to evaluate circumstantial evidence if the prosecution relies substantially on circum stantial evidence to pr ove any element of the case. ( People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [“ the court on its own motion should have given an instruc tion embodying the principle that to justify a conviction on14 circumstantial evidence the facts and circumst ances must not only be entirely consistent with the theory of guilt but must be inconsistent w ith any other rational conclusion”].) “CALCRIM Nos. 224 and 225 provide e ssentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive. [Citation.]” ( Samaniego , supra , 172 Cal.App.4th at p. 1172.) CALCRIM No. 224 “is the proper instruc tion to give unless the only elem ent of the offense that rests substantially or entirely on ci rcumstantial evidence is that of specific intent or mental state. [Citations.]” ( People v. Cole (2004) 33 Cal.4th 1158, 1222; accord Bench Notes to CALCRIM No. 225 (2012) pp. 59-60 [“Give this instruction when the defendant’s intent or mental state is the only element of the o ffense that rests substantially or entirely on
circumstantial evidence. If other elements of the offense also rest s ubstantially or entirely on circumstantial evidence, do not give this instruction. Give CALCRIM No. 224, Circumstantial Evidence: Sufficiency of Evidence ”].) Appellant claims that because his intent or mental state was not the only element of the charged offenses that rested substantially or entir ely on circumstantial evidence, the use of CALCRIM No. 225 was improper, and th e jury should have been instructed on
how to consider circumstan tial evidence in a ccordance with CA LCRIM No. 224. Appellant argues that circumstantial evidence was pivotal to the jury’s consideration of the question: “Did the movement of the victim substantially increase the risk of harm to
her over and above that inherent in the intended crime?” However, contrary to appellant’s conten tion on appeal, the events surrounding the movement of the victim were proven primaril y with direct evidence . Jane Doe offered direct testimony concerning the manner in wh ich appellant placed her in a bear hug and pushed her to a more secluded location adjacent to the fence line before she was rescued by her neighbors. Her desc ription of the area was corroborated by videos and photographs. Indeed, in closing argument the prosecutor emphasize d that these events were supported by direct evidence. She re minded the jury that “when Jane Doe was testifying, she talked about this particular area on the driveway and she talked about being moved from this area in the driveway back behind these shrubs.” According to the15 prosecutor, “We know that he moved her a subs tantial distance and that that movement
increased the risk of harm to her. Stra ightforward.” Any circumstantial evidence concerning appellant’s movement was incident al or largely corroborative of the direct
evidence. Consequently, we conclude that appellant’s intent was the only element that rested substantially or entirely on circumstan tial evidence. CAL CRIM No. 225, which instructed the jury how to evaluate circum stantial evidence with rega rd to intent, was the proper instruction. ( Samaniego , supra , 172 Cal.App.4th at p. 1172.) Therefore, the trial court did not err by instructing the jury with CALCRIM No. 225 instead of CALCRIM
No. 224.
D. Failure to Aw ard Conduct Credit With respect to his sentence, appellant ch allenges the denial of conduct credits by the trial court. Appellant contends that th e trial court erred by denying conduct credit of 115 days, representing 15 percen t of his presentence time of 773 actual days. Respondent

agrees. Appellant received total credits for 773 da ys spent in pretrial custody, consisting of 552 days while his competence to stand tr ial was being evaluated, plus 221 actual days. However, he was awarde d no days of conduct credit. Appellant claims he was entitled to 15 percent conduct cr edit for the entire period of pretrial confinement. Respondent concedes, and we agree, that in a case such as this, “there is no reason to deny conduct credits of fifteen per cent pursuant to section 2933.1 . . . .” 7 Respondent suggests that “the appellate court may perform the calculation and order the abstract of judgment to be corrected accor dingly.” We therefore order the abstract of judgment
amended to show an additional 115 days of presentence con duct credit, for a total award

7 Persons who have been convicted of certain qualif ying violent felonies are subject to a restriction upon the conduct cred it that may be earned by such persons during presentence incarceration and applied against a term of imprisonment. (§ 2933.1, subd. (c).) ( In re Pope (2010) 50 Cal.4th 777, 781-782.) Be cause appellant was convicted of a violent felony, his conduct credits were limited to 15 percent. ( Ibid .)16 of 888 days credit for presentence confinemen t (773 days of actual credit, plus 115 conduct days).
IV.
DISPOSITION The judgment is affirmed. However, the abstract of judgment is ordered amended to show 115 additional days of presentence conduct credit.

_ ____________ ____________ RUVOLO, P. J.

We concur:

_____________ ____________ REARDON, J.

_____________ ____________ RIVERA, J.