Filed 10/4/18

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN ADAMS et al.,

Defendants and Appellants.

 B257829

 (Los Angeles County

 Super. Ct. No. YA084177)

APPEALS from judgments of the Superior Court of Los 

Angeles County, Alan B. Honeycutt, Judge. Affirmed as modified 

and remanded with directions.

Vanessa Place, under appointment by the Court of Appeal, 

for Defendant and Appellant Devon Delshawn Moreland.

David H. Goodwin, under appointment by the Court of 

Appeal, for Defendant and Appellant Kevin Adams.

* Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, parts II, III, and IV(C)(1)-(3) are certified for publication.
2

Kamala D. Harris, Attorney General, Gerald A. Engler, 

Chief Assistant Attorney General, Lance E. Winters, Senior 

Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster, 

Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

This case is before us a second time after the Supreme 

Court granted review and transferred the case back with 

directions to vacate our original opinion and reconsider our 

decision in light of People v. Contreras (2018) 4 Cal.5th 349 

(Contreras), which addressed the issues a trial court must 

consider in sentencing a juvenile nonhomicide offender consistent 

with the Eighth Amendment.

In our original opinion, issued March 3, 2016, we affirmed 

defendants’ multiple convictions and held defendant Davon 

Delshawn Moreland forfeited his Eighth Amendment challenge to 

his 35-year parole eligibility term and, in any event, the term was 

not cruel and unusual punishment. We also modified defendants’ 

sentences and directed the trial court on remand to hold a 

hearing on defendants’ ability to pay sex offense fines together 

with applicable penalties and surcharges.

Having reconsidered our decision in light of Contreras, we 

again affirm the convictions, order modifications, and direct the 

trial court on remand to hold a hearing on ability to pay. In 

addition, we remand the matter for resentencing of Mr. 

Moreland. The trial court is directed to consider, in light of 

Contreras, any mitigating circumstances of Mr. Moreland’s

crimes and life and the impact of any new legislation and 

regulations on appropriate sentencing. (Contreras, supra, 4 
3

Cal.5th at p. 383.) The court is further directed to impose a time 

by which Mr. Moreland may seek parole, consistent with 

Contreras.

1 (Ibid.) We express no view on whether the sentence 

to be imposed on resentencing must differ materially from the 

current sentence Mr. Moreland is serving. Rather, we leave the 

impact of Contreras to the trial court in the first instance.

II. OVERVIEW

A jury convicted Mr. Moreland and his codefendant Kevin 

Adams of forcible rape in concert (Pen. Code, § 264.1, subd. (a))2; 

forcible oral copulation in concert (former Pen. Code, § 288a, 

subd. (d)(1), Stats. 2010, ch. 219, § 8); aggravated kidnapping (§ 

209, subd. (b)(1)); assault by means of force likely to produce 

great bodily injury (former § 245, subd. (a)(1), Stats. 2004, ch. 

494, § 1); second degree robbery (§ 211); and willful, deliberate, 

premeditated attempted murder (§§ 187, subd. (a), 664). With 

respect to the sex offenses, the jury found true the section 667.61, 

subdivisions (a), (d) and (e) allegations. The jury further found 

true multiple gang, great bodily injury and firearm use 

1

The Supreme Court’s transfer order was based on Mr. 

Moreland’s petition for review concerning his Eighth Amendment 

challenge to his sentence. With the exception of our discussion of 

Contreras, supra, 4 Cal.5th 349 and its effect on Mr. Moreland’s 

sentence, including his 35-year parole eligibility term, this 

opinion is substantially the same as our original opinion issued 

on March 3, 2016, as modified on March 16, 2016. 

2

All further statutory references are to the Penal Code 

unless otherwise indicated.
4

enhancement allegations. (Former §§ 186.22, subd. (b)(1)(C), 

Stats. 2010, ch. 256, § 1; 12022, subd. (a)(1), Stats. 2004, ch. 494, 

§ 3; 12022.3, subd. (a), Stats. 2008, ch. 599, § 5; 12022.5, subd. 

(a), Stats. 2004, ch. 494, § 4; 12022.7, subd. (a), Stats. 2002, ch. 

126, § 6; 12022.8, Stats. 2008, ch. 599, § 6; and 12022.53, subds. 

(b), (e), Stats. 2006, ch. 901, § 11.1.) Mr. Moreland admitted he 

had sustained a prior serious and violent felony robbery 

conviction within the meaning of sections 667, subdivision (e)(1) 

and 1170.12, subdivision (c)(1). 

In the published portion of this opinion, we modify 

defendants’ presentence custody credits. Also, we hold that 

under section 667.61 as amended in 2006, defendants were not 

entitled to presentence conduct credits. Finally, in the published 

portion of the opinion, we hold that the indeterminate aggravated 

kidnapping sentences must be stayed. (§ 209, subd. (d).) 

Resolution of the aggravated kidnapping sentence issue requires 

discussion of the jury instructions. In the unpublished portion of 

the opinion, we issue other orders concerning sex offense fines, 

penalties and surcharges as well as the abstracts of judgment. 

Subject to our order remanding the matter for resentencing, we 

affirm the judgments in all other respects.
5

III. THE EVIDENCE

A. The Prosecution’s Case

1. The crimes

Defendants were cousins and fellow members of a violent 

street gang. May 2 was the gang’s “birthday” or “gang day.” On

May 2, 2011, Diane T. was working as a prostitute. Diane and 

Geoffrey Odhiambo were sitting in his car in an alley. 

Defendants pulled in behind and blocked Mr. Odhiambo’s car. 

Defendants were in a four-door white car. Defendants 

approached Mr. Odhiambo’s car. Mr. Moreland pointed a black 

gun at Mr. Odhiambo’s head. Mr. Moreland took Mr. Odhiambo’s 

car keys and money. Mr. Adams asked Diane for money. He 

forcibly searched inside her pants and bra. Mr. Adams grabbed 

Diane and dragged her to the white car. Mr. Adams raped Diane 

in the backseat. Mr. Adams then moved to the driver’s seat. 

Over the course of an hour or more, while Mr. Adams drove, Mr. 

Moreland repeatedly sexually and physically assaulted Diane in 

the backseat. Mr. Moreland was armed with a gun during the 

assaults. Mr. Moreland forced Diane several times to orally 

copulate him. He repeatedly raped her. Mr. Moreland attempted 

to sodomize her. He repeatedly hit her on the head. Mr. 

Moreland threatened her with the gun. He told Diane

repeatedly, “Don’t look at me.” The car stopped several times. 

Mr. Moreland purchased condoms. He obtained cash. Mr. 

Adams told Diane to do what Mr. Moreland told her to do and she 

would not be hurt. Mr. Moreland wanted Diane to help them rob 
6

her clients but she refused. At Mr. Moreland’s instruction, Mr. 

Adams drove to a cul-de-sac and stopped. 

Mr. Moreland ordered Diane out of the car. He punched 

her in the face breaking her jaw. Mr. Moreland told Diane to get 

on her knees. He ordered her to orally copulate him. Diane 

refused. Mr. Moreland pointed the gun at Diane’s forehead and 

fired twice. But the gun malfunctioned. Diane heard it click. 

Diane saw Mr. Moreland “messing with the gun.” He was hitting 

it against his hand. Diane got up and started to run. Mr. 

Moreland ran toward the car. She heard him arguing with Mr. 

Adams. Mr. Adams said, “Stop, bitch.” Diane stopped behind a 

truck. Mr. Adams pointed the gun at her. She heard a click. 

Diane ran to a nearby house and summoned help. Defendants 

left the scene. 

2. The investigation

After law enforcement officers arrived at the cul-de-sac, 

Diane described her assailants. Diane said one suspect was a 25 

to 35 year old light skinned male Black, approximately 6 feet tall 

with a muscular build. The second suspect was a 25 to 30 year

old dark skinned Black male, approximately 6 feet tall with a 

thin build. Mr. Moreland testified at trial that in May 2011, he 

was 6 feet 3 to 4 inches tall and weighed 230 pounds. Mr. 

Moreland further testified Mr. Adams was 5 feet 11 inches to 6

feet tall. Diane also worked with a forensic artist, Sandra 

Enslow, to create sketches of the perpetrators. At trial, Diane 

testified, “[The sketch artist] drew them perfect.” The jury was 

able to compare the sketches to defendants’ booking photographs

as well as to how they appeared in the courtroom.
7

On May 12, 2011, 10 days after Diane was assaulted, Mr. 

Adams was arrested for possessing a black .22-caliber revolver. 

The weapon was fully loaded with .22-short cartridges. The 

caliber designation for the firearm was .22-long. The revolver’s 

cylinder was held in place by a metal screw instead of the usual 

pin. The metal screw impeded the revolver’s firing pin,

potentially causing it to malfunction. The gun discharged only 

once in 6 test firings using .22-short-caliber ammunition. The 

gun discharged only 3 times in 6 test firings using .22-long 

caliber bullets. When the weapon failed to discharge, it made a 

clicking sound. The parties subsequently stipulated, “[O]n June 

24, 2011, in case number BA385835, People v. Kevin Adams, a 

felony criminal case was filed alleging that defendant Kevin 

Adams . . . was carrying a concealed firearm on his person, in 

violation of Penal Code section 12025[, subdivision] (a)(2), and 

that on November 20, 2012, defendant Kevin Adams . . . pled no 

contest to that charge[.]” During the investigation and at trial, 

both victims identified Mr. Adams’s gun as similar to the weapon 

used against them. 

On May 15, 2012, law enforcement officers arranged a 

“bench operation.” Defendants, who were both in custody, were 

seated together on a bench. They were ostensibly waiting to be 

interviewed by detectives about another case. Their conversation 

was recorded. An audiotape of the conversation was played at 

trial. The conversation was as follows: “Adams: Yeah, at first I 

thought they was gonna bring up that little rape charge . . . ad[d]

charge on that rape . . . That’s what I thought they were gonna 

bring up. [¶] Moreland: Yeah . . . [¶] Adams: But this shit . . . 

this the last shit on my mind nigga . . . I don’t know nothing 

about this nigga. [¶] Moreland: Damn bro . . . [c]aught the fuck 
8

up . . . [¶] Adams: And . . . [¶] Moreland: I never would have 

came to jail my nigga. [¶] Adams: And look when they add 

charge me last time, . . . they did bring that shit up . . . [¶] 

Moreland: Hmm? [¶] Adams: They did, they brought that shit 

up . . . my nigga . . . with the nigga. They said the bitch don’t 

want to cooperate with the police so he said . . . we can’t do no 

case . . . put nobody on it . . . because she don’t want to talk to 

police, woo, woo, woo. . . . and I found out nigger that’s D 

Monk . . . that D Monk[’]s hoe . . . . Nigga . . . [¶] Moreland: 

Yeah. [¶] Adams: I’m in the dorm with D Monk’s brother . . . 

and he told me like yeah the little Mexican bitch got raped by two 

niggas, woo woo. He said, he said that . . . [¶] . . . [¶] Adams: 

All right, he said that . . . she said that the two niggas that raped 

her were from [defendants’ gang] . . . but we don’t know what 

[sect] they from . . . we don’t know who they is . . . woo, woo, 

woo . . . but she said the bitch aint going to court . . . won’t talk to 

police . . . . All right, so I was cool about that you feel me . . . 

When I came out here that’s what I thought they was gonna 

bring up . . .” And defendants had another conversation as 

follows: “Moreland: They add charge you right here? For real? 

[¶] Adams: [Yes], that’s why I’m nervous. Yeah. I ain’t gonna 

put that shit to happen . . . Remember that, that night [of the 

gang] function? And (INAUDIBLE) left? [¶] Moreland: No, hell 

no. [¶] Adams: I hope it’s not that.” [sect of the gang] they from 

. . . we don’t know who they is . . . woo, woo, woo (INAUDIBLE) 

but she said the bitch ain’t going to court (INAUDIBLE) won’t 

talk to police . . . All right, so I was cool about that you feel me . . . 

When I came out here that’s what I thought they was gonna 

bring up. [¶] Moreland: I go to court tomorrow.” Further 

conversation ensued: “Moreland: They add charge you right 
9

here? For real? [¶] Adams: . . . that’s why I’m nervous. Yeah. 

I ain’t gonna put that shit to happen . . . Remember that, that 

night [the May 5 gang] function? And (INAUDIBLE) left? [¶] 

Moreland: No, hell no. [¶] Adams: I hope it’s not that.”

Detective Derek White testified concerning the foregoing 

conversations. According to the detective, Mr. Adams was 

concerned he was going to be charged with a new case, for rape. 

Mr. Adams talked about a Hispanic prostitute being raped. And 

how she was not cooperating with the police. Mr. Adams was 

nervous about it. He thought the rape case was the reason he 

had been brought in. Detective White summarized: “They’re 

concerned about being add charged for a rape and talking about a 

[certain gang] function, which is May 2nd. That caught my 

attention. And then the other part . . . about a Hispanic girl 

being raped. It all came together that I believe they were talking 

about a rape that occurred on May 2nd.” 

The victim, Diane, was missing for approximately 10 

months. In late 2012, however, detectives located her. On 

December 1, 2012, one year and seven months after the assault, 

Detective White showed Diane two photographic lineups. 

Initially, Diane identified Mr. Moreland as the driver. She told 

the detective, “He was the one that initially raped me . . . .” But 

later she said she had the two men confused and she identified 

Mr. Moreland as the person who repeatedly assaulted and tried 

to kill her. She remembered Mr. Moreland. She told detectives it 

was him “a hundred percent.” She said, “I know that face.” She

then identified Mr. Adams as one of two men depicted in the 

lineup who could “possibly [be] the driver,” but she was unsure. 

Surveillance video from a bakery near the cul-de-sac was 

introduced. The videotape showed a white car passing in the 
10

direction of the cul-de-sac at the approximate time of the crimes 

and, several minutes later, returning in the other direction. Mr. 

Moreland’s girlfriend, Terica Fuller, owned a white, four-door 

Honda Civic that looked similar to the car depicted in the video. 

At times, Mr. Moreland used Ms. Fuller’s Honda. Diane was 

shown a photograph of Ms. Fuller’s Honda. Diane believed it was 

the car used by her assailants. In addition, Diane had told law 

enforcement officers the dashboard in her assailants’ vehicle lit 

up. The dashboard of Ms. Fuller’s car had an illuminated 

display. 

At the preliminary hearing and again at trial, Mr. 

Odhiambo identified Mr. Moreland as the man who committed 

the robbery. At trial, Mr. Odhiambo stated unequivocally that 

Mr. Moreland was that man. Mr. Odhiambo testified, “I know 

he’s the one who pointed the gun.” Mr. Odhiambo was unable, 

however, to identify the second man. Also, at both the 

preliminary hearing and at trial, Diane identified Mr. Adams as 

the driver and Mr. Moreland as the other assailant. 

3. The deoxyribonucleic acid evidence

Senior criminalist Christopher Lee collected potential 

biological evidence from the cul-de-sac including what looked like

fresh spit, a piece of a condom wrapper and three blood stains. 

Mr. Lee delivered the items to the laboratory where they would 

be processed. At trial, Mr. Lee described the spit: “[It was] 

relatively large. It didn’t appear dry . . . . It appeared relatively 

fresh.” 

Criminalist Ashley Platt initially screened the collected 

evidence for the potential presence of deoxyribonucleic acid. She 
11

contemporaneously completed standard, preprinted forms and 

documented the results of her tests. She forwarded evidence 

containing potential biological material for deoxyribonucleic acid 

analysis. Ms. Platt did not testify at trial.

Consistent with protocol, criminalist Yukis Partos 

conducted a technical review of Ms. Platt’s work. Ms. Partos 

reviewed the entire file including case notes and test results. Ms. 

Partos testified at trial. She explained that the reason for the 

technical review was, “[T]o ensure that all of us are following the 

policy and procedures of our laboratory, the testing is done 

correctly using the correct control samples, the results are 

reliable, scientifically done, and to make sure that everything 

that had to be done is conducted correctly and second analyst 

who is the technical reviewer are agreeing with the testing done 

by the original analyst.” Ms. Partos testified Ms. Platt followed 

protocol and performed appropriate tests in a proper manner. 

Criminalist Kirsten Fraser also testified at trial. Ms. 

Fraser analyzed the material forwarded by Ms. Platt. Ms. Fraser 

generated deoxyribonucleic profiles. At the time she generated 

the profiles, the only reference samples she had were from the 

victim. The bloodstains all matched the victim. The possible

saliva was from a single source, an unknown male. The victim 

was a major contributor to the deoxyribonucleic acid on the 

condom wrapper—1 in 16.2 trillion. There was a possible 

unknown male contributor as well. Ms. Fraser uploaded the 

saliva and condom wrapper profiles to a national database. She 

was notified of a match to Mr. Adams. Ms. Fraser subsequently 

received reference samples from defendants. She generated 

deoxyribonucleic acid profiles for each of them. Upon 

comparison, Ms. Fraser found the saliva matched Mr. Adams. 
12

Mr. Moreland was a possible contributor to the deoxyribonucleic 

acid mixture found on the condom wrapper—1 in 293 billion. As 

noted above, the victim was the major contributor to that mix. 

B. The Defense Case

Mr. Moreland testified in his own defense. He denied 

committing the crimes. He testified that although he had joined 

the gang when he was 13, he was no longer a gang member. Mr. 

Moreland testified that May 2 was a big day for a certain gang. 

Mr. Moreland said, “[E]verybody from the gang goes to that one 

certain party on this one odd day.” Further, he said, “It’s like a 

reunion.” But Mr. Moreland denied attending the May 2, 2011 

gang function. He admitted he had previously been convicted of 

robbery in case No. BA374588. He had entered a plea in that 

case on February 15, 2011. Mr. Moreland told the jury he was a 

17-year-old senior in high school when the crimes were 

committed; he was playing football and had college scholarship 

offers; he had made a commitment to play football at Oregon 

State University; and he would not have jeopardized his future 

by committing any crime. 
13

IV. DISCUSSION

[Parts IV(A)-(B) are deleted from publication. See post at page 26

where publication is to resume.]

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

Evidence

1. Introduction

As discussed above, Ms. Platt—who initially tested 

collected evidence for the potential presence of deoxyribonucleic 

acid—did not testify at trial. Ms. Partos—who reviewed Ms. 

Platt’s work—did testify at trial. Mr. Adams asserts allowing 

Ms. Partos to testify concerning Ms. Platt’s preliminary tests 

violated the Sixth Amendment confrontation clause. 

2. Forfeiture

Mr. Adams did not raise this issue in the trial court. 

Defense counsel, Michael Clark, did not object to Ms. Partos’s 

testimony and did not cross-examine her. On the Monday 

following Ms. Partos’s Friday testimony, Mr. Clark raised a chain 

of custody objection. Mr. Clark argued Ms. Partos’s testimony 

could not be offered in place of Ms. Platt’s testimony to establish 

a chain of custody. Defendant has not raised any chain of 

custody argument on appeal. Moreover, because he did not raise 

the present confrontation clause issue in the trial court, Mr. 

Adams forfeited his argument. (People v. Lucas (2014) 60 Cal.4th 

153, 330, disapproved on another point in People v. Romero and 
14

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

Cal.4th 691, 730.)

3. There was no confrontation clause violation

Even if Mr. Adams’s argument was preserved, no Sixth 

Amendment violation occurred. Ms. Platt identified possible 

biological evidence and forwarded it to be examined for 

deoxyribonucleic acid. Ms. Platt contemporaneously recorded her 

tests and their results. Ms. Platt did not certify or attest to the 

contents of her report. And the report’s primary purpose did not 

pertain to a criminal prosecution. Therefore, her report lacked 

the critical components to be considered testimonial. (People v. 

Edwards (2013) 57 Cal.4th 658, 705; People v. Dungo (2012) 55 

Cal.4th 608, 619; compare Bullcoming v. New Mexico (2011) 564

U.S. 644, 652, 654-655 [131 S.Ct. 2705, 2710, 2717]; MelendezDiaz v. Massachusetts (2009) 557 U.S. 305, 307-311.) Ms. Partos 

testified Ms. Platt followed protocol and performed appropriate 

tests in a proper manner. The deoxyribonucleic acid evidence 

connecting Mr. Adams to the present crimes was not introduced 

through Ms. Partos. It was introduced through Ms. Fraser’s incourt testimony. Ms. Fraser was the criminalist who

independently analyzed the biological material. Each of the three

criminologists who considered the biological evidence had the 

same sole purpose—to perform her task in accordance with 

mandated procedures. The technicians’ reports’ primary purpose 

was not to accuse. Deoxyribonucleic acid profiles are not 

inherently inculpatory. They can be exculpatory. The 

criminalists performed the tests in accordance with accepted 

procedures with no idea whether the results would exonerate or 
15

inculpate any individual. In fact, Ms. Fraser completed her 

initial report before any suspect was identified. Her report was 

generated not to obtain evidence against Mr. Adams or any other 

individual, but to assist law enforcement to catch a dangerous 

criminal who was still at large. Ms. Fraser had no way of 

knowing the deoxyribonucleic profiles she produced would turn 

out to inculpate anyone whose profile was in a law enforcement 

database. Given all of the foregoing considerations, allowing Ms. 

Partos to testify as to Ms. Platt’s preliminary tests did not violate 

Mr. Adams’s Sixth Amendment confrontation rights. (Williams v. 

Illinois (2012) 567 U.S. 50, 58, 83-84 [132 S.Ct. 2221, 2228, 2243] 

[plur. opn. of Alito, J.]; People v. Lopez (2012) 55 Cal.4th 569, 581-

585; People v. Dungo, supra, 55 Cal.4th at pp. 619-621; People v. 

Barba (2013) 215 Cal.App.4th 712, 740-743; People v. Holmes

(2012) 212 Cal.App.4th 431, 436-439.)

4. Any violation was harmless beyond a reasonable doubt

Confrontation clause violations are subject to harmless 

error analysis under Chapman v. California (1967) 386 U.S. 18, 

24. (People v. Capistrano (2014) 59 Cal.4th 830, 873; People v. 

Livingston (2012) 53 Cal.4th 1145, 1159.) Any error in not 

requiring Ms. Platt to testify was harmless beyond a reasonable 

doubt. Ms. Fraser testified based on her own independent test 

results matching Mr. Adams’s deoxyribonucleic acid to the fresh 

saliva found in the cul-de-sac. Ms. Fraser was subject to crossexamination. (People v. Banks (2014) 59 Cal.4th 1113, 1165-

1166, disapproved on another ground in People v. Scott (2015) 61 

Cal.4th 363, 391, fn. 3 [any error harmless where criminalist 

testified to her own independent conclusions as to 
16

deoxyribonucleic acid]; People v. Edwards, supra, 57 Cal.4th at p.

707 [harmless error where pathologist reached independent 

conclusion as to cause of death].) The following constituted 

abundant evidence of guilt: Ms. Fraser’s testimony concerning 

the deoxyribonucleic acid match—the presence of Mr. Adams’s 

spit in the cul-de-sac; Diane’s identification of Mr. Adams; Mr. 

Adams’s possession of the uniquely defective gun used to commit

the crimes; and Mr. Adams’s recorded incriminating conversation 

with Mr. Moreland. (People v. Capistrano, supra, 59 Cal.4th at p. 

873; People v. Harris (2013) 57 Cal.4th 804, 840.) The inability to 

cross-examine Ms. Platt did not affect the trial’s outcome as to 

Mr. Adams.

B. Mr. Moreland’s Appeal

1. Consolidated charges

The trial court consolidated the present charges against 

Mr. Moreland (counts 2 through 7) with forcible rape charges 

involving a second alleged victim, Eboni C. (§ 954.) The forcible

rape of Eboni C. occurred on a different occasion (count 1). The 

trial court also ruled, initially, that the Eboni C. evidence was 

admissible as evidence of Mr. Moreland’s propensity to commit 

sexual assaults under Evidence Code section 1108, subdivision 

(a). 

Eboni C. testified as follows. She was related to Mr. 

Moreland by marriage. Mr. Moreland was the cousin of the niece 

of Eboni C. Eboni C. was at the niece’s grandmother’s house on 

April 21, 2012, less than a year after Diane was assaulted. Mr. 

Moreland also lived in the home. Eboni C. was sitting on Mr. 
17

Moreland’s bed when he walked into his bedroom. Mr. Moreland

assaulted Eboni C. He choked her, bit her on the neck and raped 

her. Eboni C. felt pain and bled from her vagina. A sexual 

assault nurse examined Eboni C. The sexual assault nurse made 

physical findings consistent with Eboni C.’s account. Forensic 

evidence was also introduced connecting Mr. Moreland to the 

alleged rape. 

After Eboni C. testified at trial, however, the forcible rape 

charges in count 1 were dismissed. The trial court instructed the 

jury to disregard the testimony of Eboni C. and all of the evidence 

relevant to that charge. The trial court further instructed the 

jury not to speculate about why the charges were no longer before 

them. The instruction was as follows: “Count 1 as it relates to 

Eboni C., that count is no longer before you. You are not going to 

be called upon to make any decision in regard to that count. 

You’re not to speculate as to why that charge is no longer before 

you. All of the previous testimony that was introduced during 

the trial as it related to count 1, that testimony will be stricken. 

You are not to consider that testimony for any purpose.”

We need not consider whether the trial court abused its 

discretion when it consolidated the two cases or when it ruled the 

evidence as to each was cross-admissible. (§ 954; Evid. Code, § 

1108, subd. (a).) This is because, as discussed above, the trial 

court dismissed count 1 and directed the jury not to consider the 

Eboni C. evidence for any purpose. The dispositive question is 

whether, despite the trial court’s instruction to the jury, the 

Eboni C. evidence rendered Mr. Moreland’s trial fundamentally 

unfair. (People v. Merriman (2014) 60 Cal.4th 1, 46; People v. 

Thomas (2012) 53 Cal.4th 771, 800-801.) The burden is on the 

defendant to demonstrate a due process denial. (People v. Soper
18

(2009) 45 Cal.4th 759, 783; People v. Johnson (1988) 47 Cal.3d 

576, 591.) The judgment will be reversed on this ground only if it 

is reasonably probable the jury’s verdict was tainted by the Eboni 

C. evidence. (People v. Merriman, supra, 60 Cal.4th at p. 49; 

People v. Bean (1988) 46 Cal.3d 919, 940.) Relevant 

considerations include whether the evidence as to each victim 

was relatively straightforward and distinct; the evidence as to 

each charge was independently ample to support the defendant’s 

conviction; the facts as to one victim as compared to the other 

were likely to unduly inflame the jury; or one case was 

significantly weaker than the other. (People v. Thomas, supra, 53 

Cal.4th at pp. 798-799; People v. Soper, supra, 45 Cal.4th at p. 

784.) 

Here, the evidence in each of the two cases was 

straightforward and distinct. The evidence in each case was 

independently sufficient to support a conviction without regard to 

the other. The present case was not significantly weaker than 

the evidence as to Eboni C. The facts as to Eboni C. as compared 

to Diane were not likely to unduly inflame the jury. Eboni C. 

testified she was raped once by Mr. Moreland, who was known to 

her. The crimes committed against Diane were vicious and 

protracted and involved an attempt to murder her. Moreover, 

there was abundant evidence connecting Mr. Moreland to the 

crimes against Diane. Both Mr. Odhiambo and Diane positively 

identified Mr. Moreland on repeated occasions. Mr. Odhiambo 

was certain Mr. Moreland was the robber. Mr. Odhiambo

testified, “I know he’s the one who pointed the gun.” Diane told 

Detective White she was “a hundred percent” sure Mr. Moreland 

was the man who assaulted and tried to murder her. She said, “I 

know that face.” Mr. Moreland made incriminatory statements
19

in the recorded conversation with Mr. Adams. Mr. Adams was 

arrested in possession of the gun used to perpetrate the crimes. 

Mr. Moreland’s girlfriend owned the car defendants used. 

Further, deoxyribonucleic acid consistent with Mr. Moreland’s 

was found on the condom wrapper in the cul-de-sac. 

Additionally, as noted above, the trial court instructed the jury 

not to consider any of the evidence as to count 1. Prior to closing 

arguments, the trial court repeated that instruction. 

Furthermore, the trial court instructed the jury on the 

presumption of innocence, the elements of each crime, the 

requisite burden of proof, and the need to consider each charge 

separately. We presume the jury understood and followed those 

instructions. (People v. Merriman, supra, 60 Cal.4th at pp. 48-49; 

People v. Pearson (2013) 56 Cal.4th 393, 477.) Those instructions 

mitigated any prejudicial spillover risk. (People v. Merriman, 

supra, 60 Cal.4th at pp. 48-49; People v. Thomas, supra, 53 

Cal.4th at p. 801; People v. Soper, supra, 45 Cal.4th at p. 784.) 

Mr. Moreland has not met his burden to show the Eboni C. 

evidence had a spillover effect that persuaded the jury to convict 

him of the charged crimes against Diane.

2. Cruel and unusual punishment

a. Background

On August 14, 2014, the trial court sentenced Mr. 

Moreland to a lengthy term in prison and set a minimum parole 

eligibility term of 35 years. The court considered mitigating 

factors including Mr. Moreland’s age at the time of his offenses

(17 years); his abandonment by his birth mother; his upbringing
20

by older adoptive parents in an unstable home environment 

located in a “gang neighborhood”; his belief that he had no choice 

but to join a gang; and his learning disability and attention 

deficit hyperactivity disorder. Citing a report, the court also

found Mr. Moreland “presents himself . . . [as] very immature” 

and was impulsive in his decision-making. 

In addition, citing Graham v. Florida (2010) 560 U.S. 48 

(Graham) and People v. Caballero (2012) 55 Cal.4th 262 

(Caballero), the trial court explained that Mr. Moreland was 

entitled to an opportunity to demonstrate rehabilitation and 

fitness to reenter society. Based on Mr. Moreland’s life 

expectancy and age at sentencing (20 years), the court reasoned

that “[i]f [Mr. Moreland] were eligible for parole at age 55, this 

would give him a meaningful opportunity by demonstrating his 

rehabilitation and fitness to reenter society.” The court ruled 

that Mr. Moreland would be eligible for parole “no later than 35 

years from today’s date.” 

In our prior opinion, we held Mr. Moreland forfeited his 

appellate argument that his sentence was cruel and unusual 

under the Eighth Amendment and, even if the issue was properly 

before us, we would not conclude the sentence was cruel and 

unusual. 

After we issued our opinion, the Supreme Court, on May 

18, 2016, granted Mr. Moreland’s petition for review and held the 

matter pending its decision in People v. Franklin (2016) 63 

Cal.4th 261 (Franklin). On August 17, 2016, after the opinion in 

Franklin issued, the Supreme Court further deferred disposition 

of Mr. Moreland’s petition pending its decision in Contreras, 

supra, 4 Cal.5th 349. 
21

On June 13, 2018, the Supreme Court transferred the 

matter to this court with directions to vacate and reconsider our 

decision in light of Contreras, supra, 4 Cal.5th 349. On June 15, 

2018, we notified the parties of their right, under California 

Rules of Court, rule 8.200(b), to submit supplemental opening 

and responding briefs. 

On June 18, 2018, Mr. Moreland submitted his 

supplemental opening brief arguing that, under Contreras, supra, 

4 Cal.5th 349, his “sentence of 205-years-to-life is . . . manifestly 

unconstitutional.” He asked us to remand the matter to the trial 

court to give him an opportunity to make a record under 

Franklin, supra, 63 Cal.4th 261 for an eventual youth offender 

parole hearing. 

On June 21, 2018, the Attorney General submitted a 

supplemental responding brief agreeing that the matter should 

be remanded to the trial court but only for resentencing under 

Contreras, supra, 4 Cal.5th 349. The Attorney General argued 

the trial court on remand should not conduct a record 

development hearing under Franklin, supra, 63 Cal.4th 261, 

because Mr. Moreland―who was sentenced as a One Strike 

juvenile sex offender under section 667.61,3 as well as a Three 

3

“Approximately six months after the Legislature enacted 

the ‘Three Strikes’ law as urgency legislation, it adopted section 

667.61, the One Strike law. (People v. Rayford (1994) 9 Cal. 4th 

1, 8 [36 Cal.Rptr.2d 317, 884 P.2d 1369]; People v. Ervin (1996) 

50 Cal.App.4th 259, 264 [57 Cal.Rptr.2d 728].) This section sets 

forth an alternative and harsher sentencing scheme for certain 

enumerated sex crimes perpetrated by force, including rape, 

foreign object penetration, sodomy, and oral copulation. [Fn. 

omitted.] The section applies if the defendant has previously 

been convicted of one of seven specified offenses, or if the current 
22

Strikes offender under sections 1170.12 and 667, subdivisions (b) 

through (i)―is not eligible for a youth offender parole hearing (§ 

3051, subd. (h)).4

b. Contreras

Starting from the premise that “‘children are 

constitutionally different from adults for purposes of sentencing,’” 

the United States Supreme Court “‘has derived a number of 

limitations on juvenile sentencing : (1) no individual may be 

executed for an offense committed when he or she was a juvenile 

[citation]; (2) no juvenile who commits a nonhomicide offense may 

be sentenced to [life without the possibility of parole, or LWOP] 

[citation]; and (3) no juvenile who commits a homicide offense 

may be automatically sentenced to LWOP [citation].’ [Citation].” 

(Contreras, supra, 4 Cal.5th at p. 359, citing Miller v. Alabama

(2012) 567 U.S. 460, 471; Roper v. Simmons (2005) 543 U.S. 551, 

578; Graham, supra, 560 U.S. at p. 74.)

In Caballero, supra, 55 Cal.4th 262, a juvenile defendant 

was sentenced to 110 years to life for three counts of attempted 

murder and would not become eligible for parole for over 100 

years. Our Supreme Court held the sentence was the functional 

equivalent of LWOP and, under Graham, violated the Eighth 

 

offense was committed under one or more specified 

circumstances.” (People v. Manecebo (2002) 27 Cal.4th 735, 742.)

4 Section 3051, subdivision (h) provides, in pertinent part, 

“This section shall not apply to cases in which sentencing occurs 

pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of 

Section 667, or Section 667.61 . . . .”
23

Amendment. (Id. at p. 268.) The court explained “the state may 

not deprive [youths] at sentencing of a meaningful opportunity to 

demonstrate their rehabilitation and fitness to reenter society in 

the future.” (Ibid.) Instead, “the sentencing court must consider 

all mitigating circumstances attendant in the juvenile’s crime 

and life, including but not limited to his or her chronological age 

at the time of the crime, whether the juvenile offender was a 

direct perpetrator or an aider and abettor, and his or her physical 

and mental development, so that it can impose a time when the 

juvenile offender will be able to seek parole from the parole 

board.” (Id. at pp. 268-269.)

Subsequently in Contreras, supra, 4 Cal.5th 349, the

Supreme Court held that sentences of 50 and 58 years to life 

imposed on juveniles convicted of kidnapping and sexual offenses, 

with parole eligibility at ages 66 and 74, violated the same 

Eighth Amendment principles that barred the imposition of 

LWOP for their crimes. (Id. at pp. 360, 367-370; see id. at p. 369 

[sentence of 50 years to life is functionally equivalent to LWOP].) 

The court rejected the argument that a term of 

imprisonment is not the functional equivalent of LWOP if it 

provides a juvenile offender an opportunity for parole within his 

or her expected natural lifetime. (Contreras, supra, 4 Cal.5th at 

p. 360.) The court explained this “actuarial approach gives rise to 

a tangle of legal and empirical difficulties” including the

influence of gender, race and other factors on life expectancy, 

creating a risk of disparate sentencing. (Id. at pp. 361-363.)

Moreover, life expectancy is an average. (Id. at pp. 363-364.) “An 

opportunity to obtain release does not seem ‘meaningful’ or 

‘realistic’ within the meaning of Graham if the chance of living 
24

long enough to make use of that opportunity is roughly the same 

as a coin toss.” (Id. at p. 364.)

Instead of the “misguided” actuarial approach to functional 

equivalence, courts should ask if “a term-of-years sentence may 

function like LWOP with respect to the Eighth Amendment 

concerns that constrain lawful punishment for juvenile 

nonhomicide offenders . . . .” (Contreras, supra, 4 Cal.5th at p. 

364, emphasis omitted.) “To resolve this question, the proper 

starting point is not a life expectancy table but the reasoning of 

the high court in Graham.” (Ibid.) While Graham does not 

require the state to release juvenile nonhomicide offenders during 

their natural lives, it “‘prohibit[s] States from making the 

judgment at the outset that those offenders never will be fit to 

reenter society.’” (Id. at p. 367, quoting Graham, supra, 560 U.S. 

at p. 75.) “‘What the State must do . . . is give [juvenile 

nonhomicide offenders] some meaningful opportunity to obtain 

release based on demonstrated maturity and rehabilitation.’” 

(Ibid., quoting Graham, supra, 560 U.S. at p. 75.)

Contreras observed “the high court [in Graham] did not 

define the maximum length of incarceration before parole 

eligibility that would be permissible in light of the concerns it set 

forth . . . .” (Contreras, supra, 4 Cal.5th at p. 367.) “But the high 

court made clear the nature of its concerns: A lawful sentence 

must recognize ‘a juvenile nonhomicide offender’s capacity for 

change and limited moral culpability.’” (Ibid., quoting Graham, 

supra, 560 U.S. at p. 74.) “A lawful sentence must offer ‘hope of 

restoration’ [citation], ‘a chance to demonstrate maturity and 

reform’ [citation], a ‘chance for fulfillment outside prison walls,’ 

and a ‘chance for reconciliation with society’ [citation]. A lawful 

sentence must offer ‘the opportunity to achieve maturity of 
25

judgment and self-recognition of human worth and potential.’ 

[Citation.] A lawful sentence must offer the juvenile offender an 

‘incentive to become a responsible individual.’ [Citation.]” (Ibid.) 

“Ultimately, [the trial court must make] a considered judgment 

as to whether the parole eligibility date of a lengthy sentence 

offers a juvenile offender a realistic hope of release and a genuine 

opportunity to reintegrate into society.” (Id. at p. 373.)

In the case before it, the court in Contreras opined that the 

defendants’ “[c]onfinement with no possibility of release until age 

66 or age 74 seems unlikely to allow for the reintegration that 

Graham contemplates.” (Contreras, supra, 4 Cal.5th at p. 368.)

The court therefore remanded the matter for resentencing in 

light of its opinion. (Id. at p. 379.)

c. Remand for resentencing and 

determination of parole eligibility

term

Here, the trial court was well aware of the sentencing 

considerations discussed in Graham, supra, 560 U.S. 48 and 

Caballero, supra, 55 Cal.4th 262 and addressed those factors at 

the sentencing hearing. The court also considered Mr. 

Moreland’s life expectancy in determining his sentence, although 

the record does not disclose the extent to which the sentence was 

based on the court’s life expectancy analysis. As noted above,

Contreras subsequently disapproved an actuarial approach to 

sentencing. (Contreras, supra, 4 Cal.5th at pp. 360-364, 372-373.)

Because the trial court did not have the benefit of the 

Supreme Court’s decision in Contreras, supra, 4 Cal.5th 349

when it sentenced Mr. Moreland, we vacate Mr. Moreland’s 
26

sentence and remand to the trial court for resentencing. On 

remand, the trial court is directed to consider, in light of 

Contreras, any mitigating circumstances of Mr. Moreland’s 

crimes and life and the impact of any new legislation and 

regulations on appropriate sentencing. The trial court is further 

directed to impose a time by which Mr. Moreland may seek 

parole, consistent with Contreras. (Id. at p. 383.)

We deny Mr. Moreland’s request that we direct the trial 

court on remand to hold a hearing under Franklin, supra, 63 

Cal.4th 261 to allow Mr. Moreland to make a record for an 

eventual youth offender parole hearing. It is undisputed that, as 

the law currently stands, Mr. Moreland is not eligible for a youth 

offender parole hearing under section 3051. As a result, Franklin

does not authorize a remand for record development. If, in the 

future, the Legislature modifies the law in a way that makes Mr. 

Moreland eligible for a youth offender parole hearing (see 

Contreras, supra, 4 Cal.5th at p. 382), Mr. Moreland may file an 

appropriate motion in the trial court.

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

C. Other Sentencing Issues

1. Presentence custody credit

The trial court awarded Mr. Adams 562 days of 

presentence custody credit. However, the parties agree that Mr. 

Adams was in custody for conduct attributable to the present 

case from January 2, 2013, to July 18, 2014, a period of 563 days. 

A defendant is entitled to credit for all days in presentence
27

custody including the day of arrest and the day of sentencing. 

(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48; People v. 

Morgain (2009) 177 Cal.App.4th 454, 469.) Mr. Adams’s 

judgment must be modified and his abstract of judgment 

corrected to reflect 563 days of presentence custody credit.

The trial court awarded Mr. Moreland 603 days of 

presentence custody credit. However, according to the record 

before us, Mr. Moreland was arrested on December 12, 2012. He 

was sentenced on August 14, 2014. Therefore he was in 

presentence custody for 611 days. (People v. Rajanayagam, 

supra, 211 Cal.App.4th at p. 48; People v. Morgain, supra, 177 

Cal.App.4th at p. 469.) Mr. Moreland’s judgment must be 

modified and his abstract of judgment corrected to reflect 611

days of presentence custody credit.

2. Presentence conduct credit

Because they were convicted of violent felonies as defined 

in section 667.5, subdivision (c), the trial court limited

defendants’ presentence conduct credit to 15 percent under 

section 2933.1, subdivision (c). We asked the parties to brief the 

question whether the 2006 amendment to section 667.61, 

subdivision (j), eliminated defendants’ eligibility for conduct 

credit. (Stats. 2006, ch. 337, § 33, p. 2641.) We hold as a matter 

of statutory interpretation that it did. The parties agree.

Our review is governed by well established rules of 

statutory construction. Our Supreme Court examined these rules 

in Even Zohar Construction & Remodeling, Inc. v. Bellaire 

Townhouses, LLC (2015) 61 Cal.4th 830, 837-838: “‘Our 

fundamental task in construing’ . . . any legislative enactment, ‘is 
28

to ascertain the intent of the lawmakers so as to effectuate the 

purpose of the statute.’ (Day v. City of Fontana (2001) 25 Cal.4th 

268, 272.) We begin as always with the statute’s actual words, 

the ‘most reliable indicator’ of legislative intent, ‘assigning them 

their usual and ordinary meanings, and construing them in 

context. If the words themselves are not ambiguous, we presume 

the Legislature meant what it said, and the statute’s plain 

meaning governs. On the other hand, if the language allows 

more than one reasonable construction, we may look to such aids 

as the legislative history of the measure and maxims of statutory 

construction. In cases of uncertain meaning, we may also 

consider the consequences of a particular interpretation, 

including its impact on public policy.’ (Wells v. One2One 

Learning Foundation (2006) 39 Cal.4th 1164, 1190.)” (Accord, 

People v. Johnson (2015) 61 Cal.4th 674, 682.) 

As enacted in 1994, section 667.61, subdivision (j) provided: 

“Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 

1 of Part 3 [Credit on Term of Imprisonment] shall apply to 

reduce the minimum term of 25 years in the state prison imposed 

pursuant to subdivision (a) or 15 years in the state prison 

imposed pursuant to subdivision (b). However, in no case shall 

the minimum term of 25 or 15 years be reduced by more than 15 

percent for credits granted pursuant to Section 2933 [prison 

conduct credit], 4019 [presentence custody conduct credit], or any 

other law providing for conduct credit reduction. In no case shall 

any person who is punished under this section be released on 

parole prior to serving at least 85 percent of the minimum term of 

25 or 15 years in the state prison.” (Stats. 1994 (1993-1994 1st 

Ex. Sess.) ch. 14, § 1, p. 8572, italics added.) Section 667.61, 

subdivision (j) by its terms, specifically its express reference to 
29

section 4019, limited to 15 percent the presentence conduct credit 

available to a defendant sentenced under section 667.61.

Section 667.61 was amended in 2006—prior to the present 

crimes—to eliminate the existing section 667.61, subdivision (j)

and any reference to presentence conduct credits. (Stats. 2006, 

ch. 337, § 33, p. 2641.) It is uncertain on its face whether the 

amendment was intended to eliminate presentence conduct credit 

for defendants sentenced under section 667.61, or to authorize 

full conduct credit under section 4019. We turn, therefore, to the 

legislative history. Committee reports evidence the Legislature’s 

intent to eliminate conduct credit for defendants sentenced under 

section 667.61, the so-called “One-Strike Law.” The Senate 

Committee on Public Safety’s analysis of Senate Bill No. 1128 

unambiguously states: “Elimination of Sentencing Credits for 

One-Strike Inmates [¶] Existing law provides that a defendant 

sentenced to a term of imprisonment of either 15 years to life or 

25 years to life under the provisions of the ‘one-strike’ sentencing 

scheme shall not have his or her sentence reduced by more than 

15% by good-time/work-time credits. (Penal Code 667.61, subd. 

(j).) [¶] This bill eliminates conduct/work credits for inmates 

sentenced under the one-strike law.” (Sen. Com. on Public 

Safety, Analysis of Sen. Bill No. 1128 (as amended March 7, 

2006) p. N; accord, id. at p. W [“This bill eliminates sentencing 

credits that under existing law can reduce a defendant’s 

minimum term by up to 15%”]; Sen. Rules Com., Off. of Senate 

Floor Analyses, 3d Reading Analysis of Sen. Bill No. 1128 (as 

amended May 26, 2006) pp. 8-9 [Sen. Bill No. 1128 eliminates 

eligibility “for credit to reduce the minimum term imposed”]; Sen. 

Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No.

1128 (as amended May 30, 2006) p. 9 [same].) In Couzens and
30

Bigelow, Sex Crimes: California Law and Procedure (The Rutter 

Group, 2015) section 13:15, page 13-78, the authors conclude: 

“Section[] . . . 667.61 (One Strike law) . . . [was] amended in 2006 

to eliminate the provision that allowed such crimes to accrue 15 

% conduct credits, whether before or after sentencing[.] Now 

there are no conduct credits allowed against the minimum term.” 

We hold, therefore, that defendants given indeterminate terms

under section 667.61 are not entitled to any presentence conduct 

credit. The present judgments must be modified and the 

abstracts of judgment amended to so reflect as to both 

defendants.

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

or oral copulation

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

Section 667.61 subdivision (a) provides that an accused 

under specified circumstances can be subject to an indeterminate 

sentence of 25 years to life.5 (See People v. Carbajal (2013) 56 

Cal.4th 521, 534; People v. Anderson (2009) 47 Cal.4th 92, 102.) 

Section 667.61, subdivision (c) identifies the offenses which can 

result in an indeterminate term if a specified qualifying 

circumstance is present. Two of the offenses which can result in 

5

Section 667.61, subdivision (a) states, “Except as provided 

in subdivision (j), (l), or (m), any person who is convicted of an 

offense specified in subdivision (c) under one or more of the 

circumstances specified in subdivision (d) or under two or more of 

the circumstances specified in subdivision (e) shall be punished 

by imprisonment in the state prison for 25 years to life.”
31

an indeterminate term when accompanied by a qualifying 

circumstance are present in this case: rape and oral copulation 

in concert. (§ 667.61, subds. (c)(3) and (7).) The qualifying 

circumstances are found in section 667.61, subdivisions (d) and 

(e). One of the qualifying circumstances which can result in an 

indeterminate 25-years-to-life sentence is specified in section 

667.61, subdivision (d)(2) which states, “The defendant 

kidnapped the victim of the present offense and the movement of 

the victim substantially increased the risk of harm to the victim 

over and above that level of risk necessarily inherent in the 

underlying offense in subdivision (c).” (See People v. Byrd (2011) 

194 Cal.App.4th 88, 100-101; People v. Jones (1997) 58 

Cal.App.4th 693, 712-716.) In our case, the jury convicted 

defendant of rape and forcible oral copulation in concert and 

found the section 667.61, subdivision (d)(2) kidnapping qualifying 

circumstance allegation true. Both defendants were sentenced on 

count 4 to indeterminate life terms for kidnapping to commit rape 

and oral copulation in violation of section 209, subdivision (b). 

The count 4 indeterminate sentences carry specified minimum 

parole eligibility dates. 

Ultimately, what we will decide is whether defendants may 

be punished under section 209, subdivision (b). As we shall 

explain in greater detail, section 209, subdivision (d) prohibits 

punishment under sections 667.61 and 209, subdivision (b) for 

the same act. Before we reach this conclusion though, we must 

resolve a preliminary jury instruction issue. The parties agree 

there is no issue concerning the adequacy of the charging 

documents. 
32

b. The jury instruction conference and instructions as to counts 

2, 3 and 4 

On May 12, 2014, after the conclusion of testimony, the 

trial court indicated that it would finalize the instructions on the 

next day. On May 13, 2014, after all of the testimony was 

completed the day before, the trial court discussed jury 

instructions with all counsel outside the jurors’ presence. The 

trial court began its review of the instructions that would be 

given: “We are going to review the instructions. If you have any 

objection, comments, concerns, please state them. I am reading 

the [CALCRIM] number.” The trial court expressly stated it 

would give the CALCRIM No. 3179 instruction which directs the 

jury to decide whether the section 667.61, subdivision (d)(2) 

kidnapping qualifying circumstance was true. Neither counsel 

for defendants objected to the instruction. After the trial court 

recited all of the CALCRIM instructions it intended to read, the 

trial court addressed all three counsel. The trial court’s inquiries 

and the three lawyers’ responses are as follows: “[The Court:] I 

will read the instructions in the order in which I have indicated, 

and then we will continue with the reading [of] the instructions 

and/or the final arguments this afternoon. [¶] Anything else we 

need to take up at this time, Mr. DeBlanc? [¶] Mr. DeBlanc: 

Nothing else, your honor. [¶] The Court: Mr. Clark, anything 

further at this time? [¶] Mr. Clark: No. [¶] The Court: Ms. 

Hicks? [¶] Ms. Hicks: Your Honor, I am looking up that 

12022(a)(1) because I just realized that one is not included in 

here, but if we need to, I will let the court know.” As can be 

noted, neither defense attorney interjected an objection to the 
33

CALCRIM No. 3179 instruction concerning the section 667.61, 

subdivision (d)(2) kidnapping qualifying circumstance allegation. 

The jury was instructed as to the elements of rape (count 2) 

and forcible oral copulation (count 3) in concert pursuant to 

CALCRIM Nos. 1000, 1001, 1015 and 1016. In addition, the 

jurors were instructed concerning the section 667.61, subdivision 

(d)(2) kidnapping qualifying circumstance in compliance with 

CALCRIM No. 3179: “If you find the defendant guilty of the 

crimes charged in Counts 2 and/or 3, you must then decide 

whether, for each crime, the People have proved the additional 

allegation that the defendant kidnapped Diane []. You must 

decide whether the People have proved this allegation for each 

crime and return a separate finding for each crime. [¶] To decide 

whether the defendant kidnapped Diane [] please refer to the 

separate instructions that I have given you on kidnapping. You 

must apply those instructions when you decide whether the 

People have proved this additional allegation. [¶] The People 

have the burden of proving each allegation beyond a reasonable 

doubt. If the People have not met this burden, you must find that 

the allegation has not been proved.” 

Two sets of CALCRIM instructions were given concerning 

two forms of kidnapping. The jury was instructed pursuant to 

CALCRIM No. 1203 concerning kidnapping to commit rape or 

another sex offense. This instruction related directly to the 

charge in count 4. In the margin, we have reproduced the 

instructions given concerning the asportation element of 

kidnapping to commit rape or another sex offense.6 In addition, 

6 The jury was instructed as follows concerning the 

asportation element of the charged offense in count 4, kidnapping 

to commit rape or forcible oral copulation: “The defendant is 
34

the jurors were instructed pursuant to CALCRIM No. 1215 as to 

the elements of simple kidnapping. The simple kidnapping 

instructions related to two issues. The jury was instructed that 

simple kidnapping was a lesser included offense of kidnapping to 

commit rape or oral copulation. Also, while explaining the 

kidnapping qualifying circumstance pursuant to CALCRIM No. 

3179, the jurors were directed to the kidnapping instructions. 

The simple kidnapping instructions were clearly delineated and, 

as noted, referred to by the trial court when instructing 

concerning kidnapping qualifying circumstance pursuant to 

CALCRIM No. 3179. 

 

charged in Count 4 with kidnapping for the purpose of rape or 

oral copulation in violation of Penal Code section 209(b). [¶] To 

prove that the defendant is guilty of this crime, the People must 

prove that: [¶] 1. The defendant intended to commit rape or oral 

copulation on Diane []; [¶] 2. Acting with that intent, the 

defendant took, held, or detained another person by using force or 

by instilling a reasonable fear; [¶] 3. Using that force or fear, 

the defendant moved the other person or made the other person 

move a substantial distance; [¶] 4. The other person was moved 

or made to move the distance beyond that merely incidental to 

the commission of a rape or oral copulation; [¶] 5. When that 

movement began, the defendant already intended to commit rape 

or oral copulation; [¶] AND [¶] 6. The other person did not 

consent to the movement. [¶] AND [¶] 7. The defendant did 

not actually and reasonably believe that the other person 

consented to the movement. [¶] As used here, substantial 

distance means more than a slight or trivial distance. The 

movement must have increased the risk of physical or 

psychological harm to that person beyond that necessarily 

present in the rape or oral copulation. In deciding whether the 

movement was sufficient, consider all the circumstances relating 

to the movement.”
35

The instruction on the asportation element of a simple 

kidnapping was as follows: “To prove Kidnapping, the People 

must prove that: [¶] 1. The defendant took, held, or detained 

another person by using force or by instilling reasonable fear; [¶] 

2. Using that force or fear, the defendant moved the other person 

or made the other person move a substantial distance; [¶] AND 

[¶] 3. The other person did not consent to the movement; [¶] 

AND [¶] 4. The defendant did not actually and reasonably 

believe that the other person consented to the movement. [¶] . . . 

[¶] Substantial distance means more than a slight or trivial 

distance. In deciding whether the distance was substantial, you 

must consider all the circumstances relating to the movement. 

Thus, in addition to considering the actual distance moved, you 

may also consider other factors such as whether the distance the 

other person was moved was beyond that merely incidental to the 

commission of rape and or oral copulation, whether the 

movement increased the risk of physical or psychological harm, 

increased the danger of a foreseeable escape attempt, or gave the 

attacker a greater opportunity to commit additional crimes, or 

decreased the likelihood of detection.” (CALCRIM No. 1215.) As 

to both the kidnapping to commit rape or oral copulation and the 

simple kidnapping issues, the jurors were fully instructed 

concerning the consent element of those two crimes. (CALCRIM 

Nos. 1203, 1215.) There is no issue concerning consent 

instructions in this case.

c. The prosecutor’s and defense attorneys’ arguments

In her opening summation, the deputy district attorney 

argued to the jurors they should find the section 667.61, 
36

subdivisions (a) and (d)(2) kidnapping qualifying circumstance

allegation true. The prosecutor argued as to Mr. Moreland in 

connection with the special allegation appearing in the verdict 

form: “Kidnap. There’s an allegation, kidnapped the victim of 

the present offense. Right? Was there a kidnap that happened in 

the commission of the rape sometime during that time while they 

had control of her? Here’s the thing about the kidnap: The 

kidnap continues. [It’s] not just the taking of her to the car. [It’s] 

the driving around because that movement is putting her in a 

place of less safety. So [it’s] the entire driving, even driving all 

the way to the cul-de-sac. That’s all part of the kidnap. Did that 

happen in the commission of the rape? True. So you write in 

true.” The prosecutor briefly referred to the kidnapping 

qualifying circumstance allegation when discussing the charges 

against Mr. Adams. No objection of any kind was interposed by 

either defense attorney to the prosecutor’s argument concerning 

the section 667.61, subdivision (d)(2) kidnapping qualifying 

circumstance.

In their arguments, defense counsel never discussed 

CALCRIM No. 3179 nor the elements of the section 667.61, 

subdivision (d)(2) kidnapping qualifying circumstance allegation. 

Their arguments focused on: jury instructions concerning 

reasonable doubt and the conduct of jurors; the lack of 

believability of the prosecution witnesses including the fact that 

Diane was a prostitute; the problems with identification 

testimony; and gang and ballistics testimony. Neither of the two 

defense attorneys argued their clients were guilty only of any 

lesser included offenses. Mr. Adams’s counsel requested a not 

guilty verdict be returned.
37

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

On May 16, 2014, the jury returned its verdicts. As to 

count 2, Mr. Adams was convicted of forcible rape while acting in 

concert and the following special allegations were found to be 

true: he personally used a firearm within the meaning of sections 

667.61, subdivisions (a) and (e) and 12022.53, subdivisions (b) 

and (e); he kidnapped the victim within the meaning of section 

667.61, subdivisions (a) and (d); and the sexual assault was 

committed for the benefit of a street gang within the meaning of 

section 186.22, subdivision (b)(1)(C). As to count 3, Mr. Adams 

was convicted of oral copulation by acting in concert and the jury 

found two special allegations to be true. The jury found Mr. 

Adams kidnapped the victim within the meaning of section 

667.61, subdivisions (a) and (d). In addition, the jury found the 

offense was committed for the benefit of a street gang within the 

meaning of section 186.22, subdivision (b)(1)(C). However, the 

jury found the firearm use allegation within the meaning of 

section 667.61, subdivisions (a) and (e) was not true. As to count 

4, the jury convicted Mr. Adams of kidnapping to commit another 

crime in violation of section 209, subdivision (b)(1). The jury 

found the gang and firearm use allegations to be true. (§§ 186.22, 

subd. (b)(1)(C); 12022.53, subds. (b) & (e).) 

As to Mr. Moreland, the jury returned the same guilty 

verdicts on counts 2 (rape in concert), 3 (forcible oral copulation 

in concert) and kidnapping to commit another crime. However, 

as to Mr. Moreland, more extensive special allegations findings 

were returned. As to count 2, the forcible rape in concert charge, 

the jury found the following special allegations to be true: Mr. 

Moreland personally used a firearm within the meaning of 
38

sections 667.61, subdivisions (a) and (e) and 12022.53, 

subdivision (b); Mr. Moreland kidnapped the victim within the 

meaning of section 667.61 subdivisions (a) and (d); the sexual 

assault was committed for the benefit of a street gang within the 

meaning of section 186.22, subdivision (b)(1)(C); and Mr. 

Moreland inflicted great bodily injury upon the victim within the 

meaning of sections 667.61, subdivisions (a) and (d) and 12022.8, 

subdivision (a). As to count 3, the forcible oral copulation charge, 

the jury found the two great bodily injury allegations to be not 

true. (§§ 667.61, subds. (a) & (d), 12022.8.) But the jurors found 

as to count 3 the following special allegations were true as to Mr. 

Moreland: he personally used a firearm within the meaning of 

sections 667.61, subdivisions (a) and (e) and 12022.3, subdivision 

(a); he kidnapped the victim within the meaning of section 

667.61, subdivisions (a) and (d); and the crime was committed for 

the benefit of a street gang. (§ 186.22, subd. (b)(1)(C).) As to 

count 4, the section 209, subdivision (b)(1) kidnapping to commit 

another crime charge, the jury found the following special 

allegations to be true: the crime was committed for the benefit of 

a street gang within the meaning of section 186.22, subdivision 

(b)(1)(C); Mr. Moreland personally used a firearm within the 

meaning of section 12022.53, subdivision (b); and he inflicted 

great bodily injury on the victim within the meaning of section 

12022.7, subdivision (a). 

e. The counts 2, 3 and 4 sentences

As to Mr. Adams, for count 2, forcible rape in concert, he 

received an indeterminate sentence of 25 years to life. In 

addition, as to count 2, Mr. Adams received 10 years for firearm 
39

use which was stayed pursuant to section 12022.53, subdivision 

(e)(2). As a result of the gang allegation, an additional 10 years 

was imposed pursuant to section 186.22, subdivision (d)(1)(C). 

The total count 2 sentence was 35 years to life. As to count 3, 

forcible oral copulation in concert, Mr. Adams was sentenced to 

state prison for a term of 25 years to life plus 10 years for the 

gang enhancement. The count 3 section 12022.3, subdivision (a) 

firearm use finding was stayed pursuant to section 12022.53, 

subdivision (e)(2). The two sexual assault sex counts were 

ordered to run consecutively pursuant to section 667.6, 

subdivision (d). Even if mandatory consecutive sentencing was 

inappropriate, the trial court indicated it would exercise its 

discretion pursuant to section 667.6, subdivision (c) and impose 

consecutive sentences. As to count 4, the kidnapping to commit 

rape or oral copulation conviction, Mr. Adams received a life 

term. Pursuant to section 186.22, subdivision (b)(5), Mr. Adams 

received a minimum term of 15 years. The 10-year firearm use 

finding was stayed pursuant to section 12022.53, subdivision 

(e)(2). The trial court made no oral statement as to whether it 

was imposing consecutive or concurrent terms on the sex offenses 

charges, counts 2 and 3, and the kidnapping conviction, count 4. 

The abstract of judgment states the count 4 kidnapping to 

commit rape or oral copulation sentence was to run consecutively 

with the sex offenses. 

As to Mr. Moreland, similar sentences were imposed as to 

counts 2, 3 and 4. However, Mr. Moreland had been subject to a 

prior serious felony juvenile dispositional order and was a minor 

when the present crimes were committed. Thus, Mr. Moreland’s 

sentence differs in several respects from that imposed on Mr. 

Adams. Mr. Adams was not a juvenile at the time of the 
40

commission of the offenses specified in the second amended 

information. As to count 2, Mr. Moreland received a sentence of 

50 years to life (25 years to life doubled because of his prior 

serious felony juvenile disposition) plus an additional: 10-year 

term pursuant to section 12022.53, subdivision (b); 5 years for 

great bodily injury pursuant to section 12022.8, subdivision (a); 

plus 10 years as a result of the section 186.22, subdivision 

(b)(1)(C) gang enhancement finding. As to count 3, Mr. Moreland 

received a 50-years-to-life sentence plus 10 years for firearm use 

and the gang enhancement. The sentences as to counts 2 and 3 

were ordered to run consecutively pursuant to section 667.6 

subdivisions (c) and (d). As to count 4, the kidnapping to commit 

rape or oral copulation conviction, defendant received a life 

sentence. The oral pronouncement of judgment makes no 

reference to counts 2 and 3, the sexual assault charges, running 

consecutively to the aggravated kidnapping sentence. The 

abstract of judgment states that counts 3, oral copulation in 

concert, and 4, kidnapping to commit rape and oral copulation, 

were ordered to run consecutively. Pursuant to section 186.22, 

subdivision (b)(5), Mr. Moreland received a 15 year minimum 

parole eligibility term. As noted, Mr. Moreland was a juvenile 

when he engaged in the crimes alleged in the second amended 

information. Pursuant to People v. Caballero, supra, 55 Cal.4th 

at pages 268-269, the trial court imposed a minimum parole 

eligibility date of 35 years from the date of sentencing. (See 

Graham v. Florida, supra, 560 U.S. at p. 82.)
41

f. The instructional error concerning kidnapping as defined by 

section 667.61, subdivision (d)(2) was harmless beyond a 

reasonable doubt

As noted, section 667.61, subdivision (d)(2) permits the 

imposition of an indeterminate 25-years-to-life sentence under 

these circumstances: “(d) The following circumstances shall 

apply to the offenses specified in subdivision (c): [¶] . . . [¶] (2) 

The defendant kidnapped the victim of the present offense and 

the movement of the victim substantially increased the risk of 

harm to the victim over and above that level of risk necessarily 

inherent in the underlying offense in subdivision (c).” The section 

667.61, subdivision (d)(2) qualifying circumstance has two 

elements. The first element requires the victim be kidnapped. 

The second element requires that victim’s movement 

substantially increase the risk of harm to him or her above that 

level of danger necessarily inherent in the sex offense. (People v. 

Jones, supra, 58 Cal.App.4th at p. 713.) Section 667.61, 

subdivision (d)(2) contains an element (substantial increase in 

the risk of harm) beyond that in simple and aggravated 

kidnapping. Aggravated kidnapping has as an element an 

increase in the risk of the harm over that present in the 

enumerated offenses. (People v. Robertson (2012) 208 

Cal.App.4th 965, 979-980; People v. James (2007) 148 

Cal.App.4th 446, 454, fn. 5.) Prior to 1998, section 209 

aggravated kidnapping had as an element a substantial increase 

in the risk of harm to the victim beyond that present in the 

enumerated offense. But in 1997, section 209, subdivision (b)(2) 

was amended to remove the “substantially” increase the risk of 

harm element from the statutory definition of aggravated 
42

kidnapping. (Stats. 1997, ch. 817, § 2, pp. 5519-5520; People v. 

Vines (2011) 51 Cal.4th 830, 869, fn. 20; People v. Martinez (1999) 

20 Cal.4th 225, 232 & fn. 2.) 

The relevant sex offenses specified in section 667.61, 

subdivision (c) are in concert rape or forcible oral copulation. And 

as previously noted, the jurors were instructed pursuant to 

CALCRIM No. 3179 that they must decide the additional 

allegation of whether defendant kidnapped Diane. As part of the 

CALCRIM No. 3179 qualifying circumstance instruction, the 

jurors were instructed as follows: “To decide whether the 

defendant kidnapped Diane [], please refer to the separate 

instructions that I have given you on kidnapping. You must 

apply those instructions when you decide whether the People 

have proved this additional allegation.” 

The jurors were instructed concerning kidnapping 

pursuant to CALCRIM No. 1215. We have previously set forth 

the entirety of the CALCRIM No. 1215 instruction concerning 

kidnapping. (See part IV(C)(3)(b), supra.) The instruction 

defines asportation. There is no issue concerning the asportation 

element raised by CALCRIM No. 1215. But, as previously noted, 

CALCRIM No. 1215 also includes a discussion concerning risk of 

harm in the context of whether the movement was substantial. 

One of the factors in evaluating whether an asportation has been 

for a substantial distance is the increase in the risk of harm from 

the movement. (People v. Martinez, supra, 20 Cal.4th at p. 237 

[“the jury might properly consider not only the actual distance 

the victim is moved, but also such factors as whether that 

movement increased the risk of harm above that which existed 

prior to the asportation”]; see People v. Johnson, supra, 61 

Cal.4th at p. 771 [same].)
43

For clarity’s purposes we reiterate the risk of harm 

instructions here: “In deciding whether the distance was 

substantial, you must consider all the circumstances relating to 

the movement. Thus, in addition to considering the actual 

distance moved, you may also consider other factors such as 

whether the distance the other person was moved was beyond 

that merely incidental to the commission of rape and or oral 

copulation, whether the movement increased the risk of physical 

or psychological harm, increased the danger of a foreseeable 

escape attempt, or gave the attacker a greater opportunity to 

commit additional crimes, or decreased the likelihood of 

detection.” (Italics added.) The CALCRIM No. 1215 simple 

kidnapping risk of harm instruction, as given here, does not 

require the jury to find an increased risk of harm resulting from 

the asportation. By contrast, section 667.61, subdivision (d)(2) 

requires that the movement increased the risk of harm beyond 

that present in the two sex offenses charged in counts 2 and 3. 

Defendant argues the jurors were not properly instructed 

concerning the section 667.61, subdivision (d)(2) increased risk of 

harm element. We agree. There is a sua sponte duty to instruct 

concerning the section 667.61, subdivision (d)(2) kidnapping 

qualifying circumstance. (People v. Jones, supra, 58 Cal.App.4th 

at p. 709; see People v. Mancebo (2002) 27 Cal.4th 735, 748.) 

Here, the jurors were referred to a definition of kidnapping for 

purposes of section 667.61, subdivision (d)(2) to CALCRIM No. 

1215. CALCRIM No. 1215 does not adequately instruct the 

jurors concerning the substantial increase in the risk of harm 

element of a section 667.61, subdivision (d)(2) kidnapping 

qualifying circumstance. CALCRIM No. 1215 does not require

the jury to find the asportation substantially increased the risk of 
44

harm over that level of risk necessarily inherent in the sex 

offenses. And the reference to the increase of risk in CALCRIM 

No. 1215 appears in a disjunctive discussion of how to evaluate 

the substantial distance element of kidnapping. However, we 

conclude the failure to properly instruct on the increased risk of 

harm element of the section 667.61, subdivision (d)(2) kidnapping 

qualifying circumstance was harmless beyond a reasonable 

doubt. (People v. Luna (2012) 209 Cal.App.4th 460, 468 [§ 667.61, 

subd. (e)(1) kidnapping qualifying circumstance]; People v. Jones, 

supra, 58 Cal.App.4th at pp. 715-716 [§667.61, subd. (d)(2) 

aggravated kidnapping].) 

No doubt, the jurors impliedly found that the movement of 

Diane increased the risk of harm to her. As noted, the jurors 

were instructed on the charge of kidnapping for the purpose of 

rape or oral copulation pursuant to CALCRIM No. 1203. The 

jurors were instructed, “The movement must have increased the 

risk of physical or psychological harm to that person beyond that 

necessarily present in the rape or oral copulation.” As instructed, 

in order to convict defendant of aggravated kidnapping within 

the meaning of section 209, subdivision (b)(1), the jurors were 

required to find the movement increased the risk of harm to 

Diane. As we have noted, after January 1, 1998, an increase in 

the risk of harm was an essential element of section 209 

subdivision (b)(1) aggravated kidnapping. Thus, the jury 

impliedly found that there was an increase in the risk of harm 

because of the lengthy asportation that occurred in our case. 

(People v. Mincey (1992) 2 Cal.4th 408, 438 [“[A] trial court’s 

failure to instruct on a lesser included offense is not prejudicial if, 

as here, the jury necessarily resolved the factual question 

adversely to the defendant under other instructions.”]; People v. 
45

Stankewitz (1990) 51 Cal.3d 72, 99 [“By finding the firearm-use 

allegation to be true, the jury impliedly found that defendant was 

a direct participant, or, at a minimum, that he aided the robbery 

with the requisite intent.”].) Thus, the sole prejudicial error issue 

that remains relates to the “substantial” increase in the risk of 

harm element in section 667.61, subdivision (d)(2). While 

deciding the aggravated kidnapping charge in count 4, the jurors 

impliedly found that there had been an increase in risk of harm 

during the lengthy asportation.

In addition to the jury’s implied findings, the error was 

harmless because the substantial risk of harm issue was 

uncontested. The omission of an element during jury instruction 

may be harmless when the factual issue is uncontested by the 

defense. (People v. Mil (2012) 53 Cal.4th 400, 410 [“the omission 

of an element of a . . . sentencing factor is harmless when ‘the 

omitted element was uncontested and supported by 

overwhelming evidence, such that the jury verdict would have 

been the same absent the error.’”]; People v. Garcia (2001) 25 

Cal.4th 744, 761 [same].) The substantial increase in risk 

element of section 667.61, subdivision (d)(2) was uncontested by 

Mr. Adams. Mr. Adams called no witnesses and chose to rely on 

the state of the evidence. Mr. Adams’s lawyer never argued that 

the asportation did not substantially increased the risk of harm 

and never mentioned the 667.61, subdivision (d)(2) qualifying 

circumstance instructions nor special finding. Mr. Moreland 

denied being present throughout the sexual assaults, kidnapping, 

attempted murder and other crimes committed against Diane. 

However, during jury argument, Mr. Moreland’s counsel never

discussed the substantially increased risk of harm element nor 

anything concerning the 667.61, subdivision (d)(2) qualifying 
46

circumstance issue. The substantial increase in the risk of harm 

entire issue was uncontested and, with good reason, because the 

lengthy asportation allowed defendants to leave the presence of 

Mr. Odhiamo. He testified that as soon as the robbery was 

completed and Diane was removed forcibly from his car, 

defendants fled with her. During the movement, the jurors found 

that both defendants personally used a firearm. Further, it was 

during the lengthy asportation Diane was repeatedly sexually

assaulted. 

The calculus of whether the evidence was overwhelming is

closer as to Mr. Moreland. He denied any participation in the 

sexual assaults and other violent crimes. However, we have 

reviewed the entirety of the testimony and evidence. The 

evidence was overwhelming in terms of the issue before us—

whether the victim’s movement substantially increased the risk 

of harm to her. The failure to instruct the jury as to the 

substantial increase in the risk of harm element of section 

667.61, subdivision (d)(2) was harmless beyond a reasonable 

doubt. (Neder v. United States (1999) 527 U.S. 1, 17; People v. 

Mil, supra, 53 Cal.4th at pp. 410-411.) Hence, we conclude that 

no instructional errors permit reversal and we must thus resolve 

the section 209, subdivision (d) question.

g. Section 209, subdivision (d)

Section 209, subdivision (d) states: “Subdivision (b) shall 

not be construed to supersede or affect Section 667.61. A person 

may be charged with a violation of subdivision (b) and Section 

667.61. However, a person may not be punished under 

subdivision (b) and Section 667.61 for the same act that 
47

constitutes a violation of both subdivision (b) and Section 667.61.” 

(Italics added.) The “the same act that constitutes a violation of 

both subdivision (b) and Section 667.61” language utilized by the 

Legislature in section 209, subdivision (d) is somewhat unclear. 

Section 209, subdivision (d) was adopted as part of Assembly Bill 

No. 59 (1997-1998 Reg. Sess.) (Assembly Bill No. 59, hereafter). 

(Stats. 1997, ch. 817, § 2, pp. 5519-5520.) None of the legislative 

committee reports prepared for Assembly Bill No. 59 discuss 

section 209, subdivision (d). (Assem. Com. on Appropriations, 

Rep. on Assem. Bill No. 59 as amended Mar. 10, 1997; Assem. 

Com. on Public Safety, Rep. on Assem. Bill No. 59 as amended 

Mar. 10, 1997; Assem. Third Reading Rep. on Assem. Bill No. 59 

as amended June 3, 1997; Sen. Com. on Public Safety, Rep. on 

Assem. Bill No. 59 as amended June 3, 1997; Sen. Appropriations 

Committee, Fiscal Summary of Assem. Bill No. 59, as amended 

Aug. 25, 1997; Sen. Rules Com., Office of Sen. Floor Analyses, 

Third Reading Analysis of Assem. Bill No. 59 as amended Sept. 4, 

1997.) 

Pursuant to section 209, subdivision (d), defendants could 

not be punished for the same act that violated both sections 209, 

subdivision (b) and 667.61. The act prohibited by section 209, 

subdivision (b), as applicable here, is kidnapping to commit rape 

or oral copulation. The section 667.61 conduct is the section 

667.61, subdivisions (c)(3) and (7) rape or oral copulation in 

concert violations under the section 667.61, subdivision (d)(2) 

qualifying circumstances. Section 667.61, subdivision (d)(2) 

requires a kidnapping occur. The violations of section 209, 

subdivision (b) and 667.61 subdivisions (c)(3) and (7) under the 

section 667.61, subdivision (d)(2) qualifying circumstances have 

two common elements. In our context, the section 209 
48

subdivision (b) violation requires the commission of a kidnapping

with the intent to commit one of the enumerated sex offenses. 

(People v. Dominguez (2006) 39 Cal.4th 1141, 1151, fn. 6; People 

v. Bell (2009) 179 Cal.App.4th 428, 435, fn. 2.) The 667.61 

subdivisions (c)(3) and (7) violations under the section 667.61, 

subdivision (d)(2) qualifying circumstances involve both the 

kidnapping and commission of a section 209, subdivision (b) 

enumerated sex offense. 

There are two elements in section 209, subdivision (b) 

which differ from those in section 667.61, subdivision (d)(2). The 

first different element is the intent with which the aggravated 

kidnapping was committed. As we explained, aggravated 

kidnapping to commit a specified sex offense in violation of 

section 209, subdivision (b) requires an intent to commit one of 

the enumerated crimes. (People v. Dominguez, supra, 39 Cal.4th 

at p. 1151, fn. 6; People v. Bell, supra, 179 Cal.App.4th at p. 435, 

fn. 2.) The second different element between sections 209, 

subdivision (b) and 667.61, subdivision (d)(2) involves the risk of 

harm. As we have noted, in order to violate section 209, 

subdivision (b), there is no requirement the risk of harm be 

substantially greater than that for the enumerated sex offense. 

(People v. Vines, supra, 51 Cal.4th at p. 869, fn. 20; People v. 

Martinez, supra, 20 Cal.4th at p. 232 & fn. 4.) By contrast, 

section 667.61, subdivision (d)(2) requires there be a substantial 

increase in the risk of harm. But the Legislature used the term 

“same act” that violates both sections. The same act language 

evinces a legislative intent to avoid punishment of an act, not an 

offense with the precise same elements. And section 209, 

subdivision (d) refers to the entirety of section 667.61 not to any 

particular qualifying circumstances. Thus, the differences in 
49

statutory elements we have discussed between sections 209, 

subdivision (b) and section 667.61, subdivision (d)(2) are 

irrelevant in our case. 

At issue is existence of a common act occurring against a 

single victim on the same day which violates section 209, 

subdivision (b) and section 667.61. All the parties, including the 

Attorney General, agree that section 209, subdivision (d) refers to 

an act. And here, the parties agree for purposes of section 209, 

subdivision (d), that the relevant act is the kidnapping of Diane

with the intent to commit either charged sex offense. It is this

act that constitutes a violation of both section 209, subdivision (b) 

and section 667.61. Therefore, pursuant to section 209, 

subdivision (d), the trial court was required to stay the 

punishment on count 4, kidnapping to commit rape or oral 

copulation, as to each defendant. (See People v. Garza (2003) 107 

Cal.App.4th 1081, 1084.) For that act, the aggravated 

kidnapping sentence must be stayed. The judgments must be 

modified and the abstracts of judgment amended to so provide. 

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

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

The trial court orally imposed as to counts 4 and 6 a section 

186.22, subdivision (b)(5) 15-year minimum parole eligibility

term. However, Mr. Moreland had previously been convicted of a 

serious felony. Therefore, the 15-year minimum parole eligibility 

term in each count should have been doubled. (§§ 667, subd. 

(e)(1), 1170.12, subd. (c)(1); People v. Jefferson (1999) 21 Cal.4th 

86, 90; see People v. Acosta (2002) 29 Cal.4th 105, 113-114.) This 
50

is subject, of course, to the trial court’s order setting an 

indeterminate term of 35 years to life under People v. Caballero, 

supra, 55 Cal.4th at pages 268-269. The judgment must be 

modified and the abstract of judgment amended to so provide.

5. The sex offenses fines

The trial court imposed a $300 sex offenses fine (§ 290.3) on 

each defendant on each of counts 2 (§ 264.1, subd. (a)) and 3 (§ 

288a, subd. (d)(1)). We asked the parties to brief several issues in 

relation to this fine. First, defendants were subject to the fine on 

count 4 (§ 209, subd. (b)(1)) in additional to counts 2 and 3. This 

is a question of statutory interpretation. Here, the Legislature’s 

intent is clear from the statutory language. (See, e.g., In re D.B.

(2014) 58 Cal.4th 941, 946-947 [Welf. & Inst. Code, § 733, subd. 

(c)]; People v. Licas (2007) 41 Cal.4th 362, 367-371 [§ 12034, subd. 

(c)].) Section 290.3, subdivision (a) provides in part, “Every 

person who is convicted of any offense specified in subdivision (c) 

of Section 290 shall . . . be punished by a fine . . . .” (Italics 

added.) The offenses specified in section 290, subdivision (c) 

include, “Section . . . 209 [kidnapping] committed with intent to 

violate Section . . . 288a [oral copulation].” Defendants were

convicted in count 4 of kidnapping to commit rape or oral 

copulation in violation of section 209, subdivision (b)(1). 

Defendants were convicted in count 3 of acting in concert to 

commit forcible oral copulation in violation of section 288a, 

subdivision (d)(1). Therefore, defendants violated section 209 

with intent to violate section 288a, an offense subject to the 

section 290.3 fine. The trial court’s unexplained failure to impose 

the fines on count 4 is not, however, jurisdictional error. (People 
51

v. Walz (2008) 160 Cal.App.4th 1364, 1371; People v. Burnett 

(2004) 116 Cal.App.4th 257, 261-262.) The prosecutor did not 

object to the trial court’s failure to impose the fines on count 4. 

On this silent record, we presume the trial court determined 

defendants did not have the ability to pay the additional fine. 

(Ibid; see People v. Smith (2001) 24 Cal.4th 849, 852.)

Second, effective September 20, 2006, section 290.3, 

subdivision (a) provides for sex offenses fines in the amount of 

$300 “upon the first conviction” and $500 “upon the second and 

each subsequent conviction.” (Stats. 2006, Ch. 337, § 18, p. 2610.) 

Because defendants were each convicted of more than one count

subject to the sex offenses fine, they each had a second and 

subsequent conviction within the meaning of the statute. (People 

v. O’Neal (2004) 122 Cal.App.4th 817, 822; see People v. Walz, 

supra,160 Cal.App.4th at p. 1371.) Therefore, each defendant 

was subject to a $300 fine on count 2, and a $500 fine on count 3. 

(Ibid.)

Third, the trial court failed to impose mandatory penalties 

and surcharges on the fines. This is an error that can be raised 

for the first time on appeal. (People v. Talibdeen (2002) 27 

Cal.4th 1151, 1157; People v. Castellanos (2009) 175 Cal.App.4th 

1524, 1530.) As of the date of the present offenses, May 2, 2011, 

each sex offenses fine was subject to: a 100 percent state penalty

(§ 1464, subd. (a)(1)); a 70 percent county penalty (Gov. Code, §

76000, subd. (a)(1)); a 20 percent state surcharge (§ 1465.7, subd. 

(a)); a 30 percent state court construction penalty (Gov. Code, § 

70372, subd. (a)(1)); a 10 percent deoxyribonucleic acid penalty 

(Gov. Code, § 76104.6, subd. (a)(1)); a 30 percent state-only 

deoxyribonucleic acid penalty (Gov. Code, § 76104.7, subd. (a)); 

and a 20 percent emergency medical services penalty (Gov. Code, 
52

§ 76000.5, subd. (a)(1)). (See People v. Johnson (2015) 234 

Cal.App.4th 1432, 1457-1458; People v. Hamed (2013) 221 

Cal.App.4th 928, 940-941.) 

Fourth, the matter must be remanded for an ability to pay 

determination. Section 290.3, subdivision (a) mandates

imposition of the fine “unless the court determines that the 

defendant does not have the ability” to pay it. Here, the trial 

court impliedly concluded defendants each had the ability to pay 

a $600 fine. However, if imposed as discussed above, the fines, 

penalties and surcharges will greatly exceed $600. Therefore, 

upon remittitur issuance, the trial court must consider 

defendants’ ability to pay the fines, penalties and surcharges. 

(People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249-1250; 

People v. Walz, supra, 160 Cal.App.4th at pp. 1370-1371.) The 

trial court must conduct a hearing concerning each defendant’s

ability to pay the sex offenses fines in light of the total financial 

obligation, which includes the foregoing penalties and 

surcharges. (People v. Johnson, supra, 234 Cal.App.4th at pp. 

1458-1459; People v. Corrales (2013) 213 Cal.App.4th 696, 702.) 

If additional fines are imposed, the trial court is to personally 

insure the superior court clerk prepares amended abstracts of 

judgment detailing the base fines, penalties and surcharge. 

(People v. Johnson, supra, 234 Cal.App.4th at p. 1459; People v. 

Hamed, supra, 221 Cal.App.4th at p. 940; People v. Valenzuela, 

supra,172 Cal.App.4th at p. 1250.)
53

6. Mr. Adams’s Abstract of Judgment

The trial court orally stated it was staying a section 

12022.3 firearm use enhancement finding as to Mr. Adams in 

count 3. In addition, Mr. Adams’s abstract of judgment 

references a purported firearm use finding under section 

12022.53, subdivision (b). However, the jury did not return any 

firearm use finding as to count 3 under either section 12022.3 or 

section 12022.53, subdivision (b). Therefore, the reference to a 

section 12022.53, subdivision (b) finding in Mr. Adams’s abstract 

of judgment must be stricken. (People v. Jones (2012) 54 Cal.4th

1, 89; People v. Mitchell (2001) 26 Cal.4th 181, 185.) 

7. Mr. Moreland’s Abstract of Judgment And the 

Attorney General’s Argument

Mr Moreland’s abstract of judgment states that count 6, 

attempted willful, deliberate and premeditated murder, is to run 

consecutive to count 2, rape in concert. However, the oral 

pronouncement of judgment does not reflect such an order. Thus, 

absent some other reason that requires consecutive sentencing, 

the abstract of judgment must be corrected to state that counts 2 

and 6 are to run concurrently. (§ 669, subd. (b) [in the absence of 

a contrary ruling, sentences are to run concurrently]; People v. 

Myles (2012) 53 Cal.4th 1181, 1222, fn. 14, 1226 [the abstract of 

judgment must comport to the oral pronouncement]; In re 

Calhoun (1976) 17 Cal.3d 75, 79-80 [sentences are presumed to 

run concurrently].) 

The Attorney General argues though that consecutive 

sentences were mandatory pursuant to sections 667, subdivision 
54

(c)(6) and 1170.12, subdivision (a)(6). However, the trial court 

never orally imposed consecutive sentences on the attempted 

murder and sexual assault counts. There is substantial evidence 

the attempted murder involved the same firearm used to commit 

the sex crimes and arose out of the same set of operative facts. 

(People v. Lawrence (2000) 24 Cal.4th 219, 233; People v. Garcia

(2008) 167 Cal.App.4th 1550, 1566-1567.) Had the trial court 

orally ordered consecutive sentencing on counts 2 and 6, we 

would have upheld the order under sections 667, subdivision 

(c)(6) and 1170.12, subdivision (a)(6). Such an order would have 

been supported by substantial evidence. But the “common act or 

criminal conduct” determination is fact-driven and is reviewed for 

substantial evidence. (See People v. Osband (1996) 13 Cal.4th 

622, 730 [where consecutive sentences were imposed for rape and 

robbery, substantial evidence supported the trial court’s implied 

finding that the accused entertained more than one objective]; 

People v. Garcia, supra, 167 Cal.App.4th at pp. 1566-1567 [no 

substantial evidence supported mandatory consecutive 

sentencing]; People v. Chan (2005) 128 Cal.App.4th 408, 424 [no 

substantial evidence supported the trial court’s order imposing 

concurrent sentences where the sex offenses were committed on 

separate occasions].) In the face of the trial court’s silence and 

the presence of substantial evidence that common acts or conduct 

are present, we respectfully disagree with the Attorney General.
55

[Part V is deleted from publication.]

V. DISPOSITION

The judgment as to Mr. Moreland is modified to impose 

minimum parole eligibility terms of 30 years on counts 4 and 6. 

The judgments are further modified to award Mr. Adams 563 

days of presentence custody credit and to award Mr. Moreland 

611 days of such credit. The reference to a Penal Code section 

12022.53, subdivision (b) finding in Mr. Adams’s abstract of 

judgment must be stricken. Mr. Moreland’s abstract of judgment 

is modified to delete the reference to count 2 running 

consecutively to count 6. The judgments are modified as to both 

defendants to stay the punishment on count 4 and to delete the 

conduct credit awards.

Mr. Moreland’s sentence is vacated and the matter is 

remanded to the trial court for resentencing in light of Contreras, 

supra, 4 Cal.5th 349. The court is directed to consider any 

mitigating circumstances of Mr. Moreland’s crimes and life and 

the impact of any new legislation and regulations on appropriate 

sentencing. The court is further directed to impose a time by 

which Mr. Moreland may seek parole consistent with Contreras. 

On remand, the trial court will also hold a hearing to 

determine each defendant’s ability to pay the sex offense fines 

together with applicable penalties and surcharges. The 

judgments are affirmed in all other respects.

Upon resentencing and resolution of the ability to pay 

issue, the trial court is to personally insure that the superior 

court clerk prepares fully correct amended abstracts of judgment 

as discussed in the opinion’s body. The clerk of the superior court 
56

is to forward copies of the amended abstracts of judgment to the 

Department of Corrections and Rehabilitation.

CERTIFIED FOR PARTIAL PUBLICATION

JASKOL, J. *

We concur:

BAKER, J., Acting P.J.

MOOR, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.