Filed 5/2/13 P. v. Landaverde CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.
JESSE SOLIS LANDAVERDE,
Defendant and Appellant. B241431
(Los Angeles County Super. Ct. No. YA082395)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Eric C. Taylor, Judge. Affirmed as modified, and remanded with directions.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant A ttorney General, Mary Sanchez and Rene Judkiewicz, Deputy Attorneys Genera l, for Plaintiff and Respondent.

_____________ _____________2 Defendant Jesse Solis Landaverde appeal s from his conviction of forcible oral copulation, second degree robbe ry and kidnapping for carj acking. He contends: (1) allowing a uniformed officer to stand next to defendant while he testified was prejudicial error; (2) the ju ry was not properly instructed on a kidnapping special circumstance attached to the oral copulation charge (Pen. Code, § 667.61, subd. (a)); and (3) the life sentence imposed on the kidnapping for carj acking conviction was an
unauthorized sentence. 1 We modify the judgment to st ay the sentence on the kidnapping for carjacking conviction, but otherwise affirm.

FACTUAL AND PROCED URAL BACKGROUND

Defendant’s contentions make a detailed re citation of the facts unnecessary. It is sufficient to state that, view ed in accordance with th e usual rules on appeal ( People v.
Zamudio (2008) 43 Cal.4th 327, 357-358), the evidence established that at about 10:00 a.m. on December 28, 2007, defendant accosted the vi ctim at knife point in a parking lot as she was leaving her car to go in to her place of business. After the victim complied with defendant’s demand that she gi ve him her keys and purse, the defendant
snatched a necklace from her neck. Defendant next inst ructed the victim to sit in the
driver’s seat of her car and forced her to or ally copulate him while he stood next to the open driver’s side car door. At defendant’s instruction, the vi ctim got into the back seat of her car. Once she had done so, defendant drove the car out of the parking lot. The victim was eventually able to open the rear passenger door and escape. Police arrived within minutes of a call to 911. They brought the victim to a hospital where she
underwent a sexual assault examination duri ng which DNA from an unknown male was collected from her person. The victim’s car was recovered about two weeks later; her purse was in it but her wallet, mone y and cell phone were missing. More than four years later defenda nt’s DNA was matched with the DNA recovered from the victim. He was charged with forcible oral copulation (count 1),

1 All future undesignated statutor y references are to the Penal Code.3 second degree robbery (count 2), carjacking (count 3) a nd kidnapping for carjacking (count 4). Enhancements for personal use of a deadly weapon (§ 12022, subd. (b)(1)) were alleged as to all counts; as to count 1, a section 12022.3, subdivision (a) deadly weapon use enhancement and a section 667.61, subdivisi on (e)(1) kidnapping special circumstance were also alleged. At trial, the victim positively identified de fendant as her assail ant. She had been unable to positively identify de fendant from a photographic lin eup and at the preliminary hearing she had testified that he “resembled ” her attacker. An expert testified that defendant’s DNA was compared to the unknown male’s DNA collected during the sexual
assault examination. Defendant could not be excluded as the contributor of that DNA. Defendant was Hispanic and th e probability of finding a rand om unrelated Southwestern Hispanic who could not be ex cluded was one in 409,800; the probability of finding a random unrelated Southeastern Hispanic was one in 460,200. The odds increased for
unrelated African-Americans and Caucasians , but decreased for unrelated Asians. Defendant testified that he was not the person who assaulted the victim; he maintained he
had never seen her before th ese criminal proceedings. The jury convicted defendant on a ll counts and found true the gun use
enhancements and the kidnapping special circumstance. Defendant was sentenced to a total of 27 years to life in pr ison comprised of 25 years to life on count 1 (forcible oral copulation) based on the deadly weapon us e and kidnapping special circumstances (§ 667.61, subd. (e)(1) & (3)), plus a consecu tive two-year low term on count 2 (robbery), plus a consecutive life with th e possibility of parole term on count 4 (kidnapping for carjacking). The trial court dismissed count 3 (carjacking) in the interest of justice pursuant to section 1385. Defendant timely appealed.4 DISCUSSION

A. The Trial Court’s Failure to State Re asons For Placing a Deputy Next to Defendant While He Testified Was an Ab use of Discretion, But Harmless

Defendant contends it was an abuse of di scretion for the trial court to maintain a general policy of having a depu ty stand next to a testifying criminal defendant, rather than deciding whether such a se curity measure is necessary on a case-by-case basis. We agree that adhering to such a general po licy without articulating reasons for its application in a specific case is an abuse of discretion, but find the error harmless under
the circumstances.
We review for abuse of discretion the tria l court’s exercise of its broad powers to maintain courtroom security. ( People v. Hernandez (2011) 51 Cal.4th 733, 741 ( Hernandez ); People v. Stevens (2009) 47 Cal.4th 625, 632 ( Stevens ).) Some extraordinary security practices – e.g. visibl e physical restraints, prison clothing – have
such an inordinate risk of infri nging on a criminal defendant’s ri ght to a fair trial that they must be justified by a showing of manifest need sufficient to overcome the risk of prejudice. ( Stevens, at p. 632.) The presence of armed guards is not such a practice. “[A] deputy’s presence at the witness st and during a defendant ’s testimony is not inherently prejudicial.” ( Id . at p. 638.) “Unless they are present in unreasonable numbers, [the presence of armed guards] n eed not be justified by the court or the prosecutor.” ( People v. Duran (1976) 16 Cal.3d 282, 291, fn. 8.) This is consistent with Holbrook v. Flynn (1986) 475 U.S. 560, 568-569, in which the United States Supreme Court held that the “conspicuous, or at least noticeable, deployment of security personnel in a courtroom during trial” is not “the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an esse ntial interest specific to
each trial.”
In Stevens, the court held that, although not inhe rently prejudicial, the stationing of an armed guard next to a testifying crimin al defendant is not immune from the trial court’s duty to “exercise its own discreti on to determine whether a given security5 measure is appropriate on a case-by-case basis. [Citations.] . . . The trial court should state its reasons for stationing a guard at or near the witness stand and explain on the record why the need for this security measure outwe ighs potential prejudice to the testifying defendant. In addition, although we impose no sua sponte duty for it to do so, the court should consider, upon request, giving a cautionary instruction, either at the time of the defendant’s testimony or with closing instructions, telling the jury to disregard security measures related to the defenda nt’s custodial status. [Citation.]” ( Stevens , supra , 47 Cal.4th at p. 642.)
In Hernandez, supra , 51 Cal.4th at page 736, our Su preme Court recently held that
it is an abuse of discretion to defer to a general policy of stationing a deputy at the witness stand during a criminal defendant’s testimony without articulating a case-specific reason why it is a necessary secu rity measure. However, the Hernandez court found the
error harmless under People v. Watson (1956) 46 Cal.2d 818, reasoning that the defendant wore street clothes, did not enter the court room through a different door and, other than the deputy’s presen ce, the jury had little indica tion that defendant was in protective custody. Additionally, nothing in the record in that ca se suggested that the deputy’s demeanor was anything other th an respectful and appropriate. ( Hernandez, at p. 746.) Here, the trial court and defense counse l engaged in the following colloquy after defendant announced that he was going to testify:
“THE COURT: . . . When there is so mebody in custody, the bailiff stands with the defendant at the stand. Would you lik e a comment on that? Do you think it’s required? There’s a case . . . that discu ssed what we are supposed to do. I can look it up, but the bailiff will be standing there. [¶] [DEF ENSE COUNSEL]: I understand. For purposes of the record we would object because it’s his testimony and it makes him appear scary. I will subm it. [¶] THE COURT: Okay. I could tell them to ignore the bailiff but, again, that highlights the fact that there’s a bailiff standing there. [¶] [DEFENSE COUNSEL]: What ever your practice is is fine with me. [¶] THE COURT: Any ob jection [to] my saying nothing? [¶]6 [DEFENSE COUNSEL]: Am I objecting – [¶] THE COURT: Is there any objection to my saying noth ing with respect to the ba iliff, People? [¶] [THE PROSECUTOR]: Submitted.” Immediately following this discussion, the defe ndant was brought to the stand outside the presence of the jury. After th e jury was re-seated and the prosecutor announced that the People were resting their case, the defendant testifie d. There is no reason to doubt that the trial court followed through with its stated intention to have the bailiff “stand with the defendant” during his testimony. 2 From the exchange between the court and counsel, it appears that the trial court had a general policy of having the bailiff stan d next to a testifying criminal defendant. Although not inherently prejudicial under Stevens , as the Hernandez court stated, it was
an abuse of discretion for the trial court to rely solely on such a policy without articulating why such a security measure was necessary in this case. The trial court’s
solicitation of comments from counsel on the policy was not su fficient to satisfy the trial
court’s obligation to articulate case-specific re asons for following the general policy. Nevertheless, we find the error harmless under the Watson standard because it is not reasonably probable that the defendant would have obtained a more favorable result
absent the error. The defendant was escorted to and from the witn ess stand outside the presence of the jury; nothing sugge sts that he was not in street clothes. Further, nothing in the record suggests the bailiff was anything other than respectful a nd appropriate. Nor
was the case close on the facts. Althou gh unable to identify defendant from a photographic lineup, at the preliminary hear ing the victim said defendant resembled her attacker, and she positively id entified defendant at trial. DNA evidence corroborated the

2 The record does not indicate exactly where the bailiff was positioned during defendant’s testimony and defe ndant does not contend the bailiff did not maintain a respectful distance or that he behaved in a ma nner that distracted from, or cast doubt on defendant’s testimony.7 victim’s identification. Under these circum stances, defendant has failed to establish prejudice from the error. 3

B. The Trial Court Correctly Instructed on the Kidnapping Special Circumstance
On count 1 (forcible oral copulation), defendant was charged with a kidnapping “special” circumstance under the “One St rike” law which establishes increased punishment for certain sex offenders. (See § 667.61, subd. (a), (c)(7) & (e)(1).) Defendant challenges the following instruc tion given pursuant to CALCRIM No. 3179 regarding that special circumstance: “If you find the defendant guilty of the cr ime charged in Count 1 [forcible oral copulation], you must then decide whethe r, for each crime, the People have proved the additional allegation that the defendant kidnapped [the victim]. . . . [¶] To decide whether the defendant kidnapped [the victim], please refer to the separate instructions that I have given you on ki dnapping for carjacking. You must apply those instructions when you decide whethe r the People have proved this additional allegation. [¶] The People have the bu rden 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.”
He contends the instruction was incorrect be cause it did not instruct that the kidnapping
“had to be committed fo r the purpose of committing the oral copulation and/or that there
had to be a nexus between the two crimes in that defendant comm itted the sex offense during or in the commission of kidnapping.” Th at is not the law. A virtually identical

3 On appeal, defendant argues that the e rror violated his federal Constitutional right to due process and a fair trial. But the objection that the presence of the bailiff would make defendant “look scary” was not sufficient to assert a constitutional claim. As such, defendant has waived his right to raise such a claim on appeal. (Cf. People v. Burgener (2003) 29 Cal.4th 833, 869.) Even if cognizable, we would find the error harmless under Chapman v. California (1967) 386 U.S. 18, 24.8 contention was recently rejected by the court in People v. Luna (2012) 209 Cal.App.4th 460 ( Luna ). 4 We find the reasoning of that case persuasive and adopt it here.
Section 667.61 “was enacted to ensure that serious sexual offenders receive long prison sentences regardless whether they have any prior criminal convictions. [Citation.]” ( Luna, supra , 209 Cal.App.4th at p. 465.) S ubdivisions (a) and (c)(7) of the statute impose a 25-year-to-life sentence on any person convicted of forcible oral copulation “under . . . two or mo re of the circumstances specifie d in subdivision (e) . . . .”
Relevant here is subdivision (e)(1), which identifies the follo wing special circumstance: “. . . the defendant kidnapped the victim of the present offense in violation of” section 209.5 (kidnapping duri ng commission of carjacking). 5
The defendant in Luna argued that imposition of th e indeterminate term under section 667.61, subdivision (e)(1) required the ju ry to find he kidnap ped the victim with the intent to rape her and that CALCRIM No. 3179 was inadequate because it did not require the jury to make th e specific intent finding. ( Luna, supra, 209 Cal.App.4th at p. 464.) The Luna court held that neither the plain language nor legislative history of section 667.61, subdivision (e)(1) required that the kidnapping have been for the intent or purpose of carrying out the sex offense. ( Id . at p. 466.) First, the court reasoned that other subparts of subdivision (e) expressly re quire that the defendant commit the present
offense “in the commission of” some other act or commit some other act “during the commission of the present offe nse,” whereas subdivision (e)(1) has no such requirement. “This difference in language demonstrates the Legislature knew how to require a relationship or nexus between the sex offens e and the circumstance identified in section

4 The defendant in Luna challenged a 15-year-to-life sentence imposed under section 667.61, subdivision (b), whereas the defendant in this case challenges a 25-yearto-life sentence imposed under subdivision (a ) of the same statute. We find the Luna analysis applies equally here.

5 Kidnapping was one of two circumstances used to trigger the 25-year-to-life sentence set forth in section 667.61, subdivis ion (a). Defendant does not challenge the true finding on the section 12022.3, subdivis ion (a) deadly weapon enhancement, which was the second circumstance.9 667.61, subdivision (e) when it wanted to cr eate one. If the Legislature had intended to draft section 667.61(e)(1) to mean the defendant must have kidnapped the victim with the intent to commit a sex offense against the vi ctim, the Legislature could and would have done so.” ( Id . at p. 467.) Second, the court re counted the legislative history of section 667.61, subdivision (e)(1) and found it s upported its interpretati on of the statute. ( Id . at pp. 468-471.) In particular, a versi on of section 667.61, subdivision (e)(1) which required kidnapping with the intent of committing a sex crime never made it into the enacted version of the statute. ( Id . at p. 471.) The court in Luna concluded: “It is reasonable to conclude the Legislature dete rmined a defendant who kidnaps the victim, an act that consistently places the victim in a position of elevated vulnerability, and commits a sexual offense against the same victim, should meet the requirements of a serious and dangerous sex offender under sect ion 667.61. The defendant is a serious and dangerous sex offender whose actions plac e the victim in a position of elevated vulnerability. If the defendant targets the same victim for multiple dangerous and serious felonies, heightened punishment at the time of sentencing comports with legislative intent.” ( Id . at p. 471.) We agree with the analysis of the Luna court. Nothing in the plain language of the section 667.61, subdivision (e)(1) requires that the kidnapping had to be for the purpose of committing the sex offense, in this case or al copulation; the legislative history and purpose of the statue comports with that conclusion. Accordingly, the trial court’s
instructions were correct.

C. The Sentence Imposed on the Kidnapping During a Carjacking Conviction Was Unauthorized

Defendant contends and the People concede that th e life with the possibility of parole sentence imposed on count 4 was an unauthorized sentence. We agree. When only the minimum number of sp ecial circumstances required for the enhanced punishment under section 667.61, subdivision (a) are pled and proved, section 667.61, subdivision (f) requires senten ce to be imposed onl y according to that10 statute to the exclusion of any other provisi on of law, unless another provision provides for a greater punishment. Here, only the minimum two special circumstances for imposition of the 25-year-to-life punishment – use of a deadly weap on and kidnapping – were pled and proved. Therefore, defe ndant was required to be sentenced under section 667.61, subdivision (a) only and coul d not also be sentenced for the kidnapping for carjacking (count 4). (See People v. Rodriguez (2012) 207 Cal.A pp.4th 204, 215.) Defendant and the People disagree as to the proper remedy for this sentencing error. Defendant argues the judgment on co unt 4 must be reversed and the matter remanded to the trial court for resentencing. Th e People request that we correct the error. We exercise our authority to modify the judgment by staying the sentence imposed on count 4. (Cf. People v. Byrd (2011) 194 Cal.Ap p.4th 88, 101-102.)

DISPOSITION
We modify the judgment by staying the sentence imposed on count 4 under section 667.61, subdivision (f). In all other respects the judgment is affirmed. The
matter is remanded to the trial court with di rections that the trial court prepare and forward to the Department of Corrections and Rehabilitation a certified copy of an amended abstract of judgment.

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

FLIER, J.