Filed 5/29/14 P. v. Walker CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
RANDY T. WALKER,
Defendant and Appellant. B249270
(Los Angeles County Super. Ct. No. MA044770)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, Charles A. Chung, Judge. Reversed in part and Affirmed in part. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and Herbert S. Te tef, Deputy Attorneys General, for Plaintiff and Respondent.2 A jury convicted appellant Randy T. Wa lker of rape (count 1, Pen. Code, § 261, subd. (a)(2)) 1 and kidnapping for the purpose of robbery (count 6, § 209, subd. (b)(1)). The jury found true the al legation in both counts that he used a handgun (§ 12022.53, subd. (b)), and in th e rape count found true three “One Strike” allegations (§ 667.61, subds. (a), (d ), and (e)) that he committed the offense during a first degree burglary, that he kidnapped the victim and substantially increased the risk of harm to her, and that he engaged in the tying or binding of the victim. Although the information alleged a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subs. (a)-(d)) and defendant waived his right to a jury trial on that allegation, no bench trial was held and the record fails to reflect that defendant admitted the allegation. Nonetheless, the trial court sentenced defendant as if he had suffered a prior strike to a term of 50 years to life: 25 years to life under the One Strike law on the rape count, doubled under the Three Strikes law. The court also imposed and stayed a term of 10 years for the handgun use allegation. The sentence on the remaining count was stayed under section 654. Defendant appeals from the judgment. He contends that: (1) the evidence was insufficient to support his convictio n of kidnapping for robbery, because the evidence failed to prove that the movement of the victim was mo re than incidental to the underlying robbery and increased the risk of harm to her beyond that present in the robbery; (2) the evidence was in sufficient to support the One Strike allegation under section 667.61, subdivision (d)(2) in the rape count that he kidnapped the victim and substantially increas ed the risk of harm inherent in the underlying rape; and (3) the trial court erred in instru cting on the section 667.61, subdivision (d)(2) allegati on. We asked the parties to address two additional

1 All further statutory references are to the Penal Code.3 issues: (1) whether the trial court erre d in staying the 10-year enhancement for handgun use under section 12022.53, subdiv ision (b) on the rape count, and (2) whether the case must be remanded for additional proceedings on appellant’s alleged prior strike conviction. As explained below, we find the evidence sufficient to support the kidnapping for robbery conviction and the section 667.61, subdivision (d)(2) allegation. Although the trial court erre d in instructing on the allegation, we
conclude that the error is harmle ss beyond a reasonable doubt. We further
conclude that the trial court erred in staying the handgun use enhancement on the rape count, and that the case must be remanded for additional proceedings on the alleged strike conviction and for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND Factual Background On October 14, 2003, Elizabeth G. left her home in Palmda le to take her
older children to school. She left her two younger children at home with her thenhusband Ezequiel, who was invol ved in drug dealing. While Elizabeth was gone, two Afri can-American men entered the house, confronted Ezequiel, and demanded money. According to Ezequiel, 2 they dragged him to the master bedroom, and gagged and bound him with belts. One of the men struck him on the head with his gun, and the other with a heated a knife on the
stove in the kitchen. The men said that they were goi ng to “shove [the knife] up his ass.” Ezequiel told them that th ere was money under the bed. The men took the money, and also took jewelry from the bedroom dresser. Elizabeth returned

2 Ezequiel’s statements were introduced though the testimony of Los Angeles County Sheriff’s Deputy Randy Levinson, who interviewed him shortly after the crimes.4 home, and one of the men – the larger of th e two, later identified as appellant – ran
to the front door. As Elizabeth reached the front door, ca rrying gallons of milk in each hand, someone opened the door. Sh e entered, but before sh e could put down the milk, appellant came from behind the door and gr abbed her from behind by the neck. Elizabeth initially thought it was Ezequiel playing. Appellant guided her by the back of the neck from the living room area through a hallway into the master bedr oom, her hands still carrying the milk. When she reached the bedroom, she dropped the milk and realized that the man guiding her by the neck was not Eze quiel, who was lying face down on the bedroom floor, hands and feet bound. Also, Elizabeth’s son, who was asleep in the room, woke up and hid under the bed. Elizabeth’s ba by was on a chair in the

room. Appellant threw Elizabeth on the floor, tied her hands together with a belt,
and removed her clothes. Th e other man – the skinnier of the two – put a sock in
her mouth and tied it with a be lt to gag her. The men kept asking Ezequiel where he had more money. Accord ing to Ezequiel, the men said that they would rape Elizabeth if he would not gi ve them more money. Appellant then raped Elizabeth usi ng a condom. Ezequiel told her in Spanish not to get desperate, they woul d have a chance to do something.
The men left the house. Elizabet h and Ezequiel were able to free themselves. However, the men returned to the bedroom. Appellant was holding a gun. Ezequiel struggled with the men whil e Elizabeth ran out of the house and into the street screaming for help. The men left the house and drove away. Ezequiel, who had obtained his own gun, shot at th em. A neighbor saw Elizabeth and called
911.5 DNA evidence from a c ondom found at the scen e matched appellant. Elizabeth identified appellant in a six-pack photographic lineup and at trial as the man who raped her.

DISCUSSION
I. Kidnapping for Robbery Appellant contends that there is in sufficient evidence of asportation to sustain his conviction for kidnapping for robbery. He is incorrect. “‘In assessing a claim of insufficie ncy of evidence, the reviewing court’s
task is to review the whole record in th e light most favorable to the judgment to
determine whether it disclose s substantial evidence – th at is, evidence that is reasonable, credible, and of solid value – su ch that a reasonable trier of fact could find the defendant guilty beyond a re asonable doubt. [Citation.]” ( People v.
James (2007) 148 Cal.App.4th 446, 452 ( James ).) “‘In evaluating the sufficiency of evidence, “the relevant que stion on appeal is not whether we are convinced beyond a reasonable doubt” [c itation], but “whether ‘“ any rational trier of fact”’ could have been so persuade d.” . . .’ [Citation.]” ( People v. Hovarter (2008) 44 Cal.4th 983, 997.) Appellant was convicted of kidnappi ng to commit robbery pursuant to section 209, subdivision (b)(1). Simple ki dnapping is defined as follows: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” (§ 207, subd. (a).) Kidnapping for robbery “‘shall only apply if the movement of the victim is beyond that mere ly incidental to the commission of, and
increases the risk of harm to the victim over and above that necessarily present in,6 the intended’ robbery. [Citations.]” ( People v. Leavel (2012) 203 Cal.App.4th 823, 833 ( Leavel ); § 209, subd. (b).) 3 “‘With regard to the first prong, the jury considers the “scope and nature” of the movement, which includes the actual dist ance a victim is moved. [Citations.] There is, however, no minimum distance a de fendant must move a victim to satisfy the first prong.’ [Citation.] We also c onsider the ‘context of the environment in which the movement occurred.’ [Cita tion.] ‘This standard suggests a multifaceted, qualitative evaluati on rather than a simple qua ntitative assessment.’ [Citation.] “The second prong ‘“‘inclu des consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.’”’ [Citation.]” ( Leavel
, supra , 203 Cal.App.4th at pp. 833-834.) “A conviction of kidnapping for robbery requires an increase in the harm to the victim beyond that contained in a hypot hetical standstill robbery, where the risk of harm ‘arises from the perpetrator’s use of force or fear, and from brief movements incidental to the robbery.’ [Citation.] ‘The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced

movement .’ [Citation.]” ( James , supra , 148 Cal.App.4th at p. 455.) “[I]t has often
been held that defendants who have moved their victims within the premises in

3 Prior to 1997, aggravated kidnapping requ ired that the movement of the victim “substantially” increase the risk of harm to the victim. ( People v. Vines (2011) 51 Cal.4th 830, 869, fn. 20.) The Legislature modifi ed the asportation standard in 1997 by eliminating the “substantial” requirement. ( Ibid. ) This modification is of no import here, because we find that the higher standard of su bstantial increase in the risk of harm is established.7 which they were found did not increase the risk to the victims [citations], while
defendants who moved their victims to more secluded or enclosed areas did substantially increase the risk [citations].” ( Id . p. 456.) Here, appellant contends that the eviden ce is insufficient to support a finding of asportation because Elizabeth was mo ved only from the living room to the bedroom. True, the evidence showed that appellant moved Elizabeth within the premises from the front do or area where she entered the house into the master bedroom – a relatively short distance. Nonetheless, the evidence overwhelmingly proved that this movement was not me rely incidental to the robbery and substantially increased the risk of harm. The movement of Eli zabeth to the master bedroom was unnecessary to th e robbery. Appellant could have demanded that she or Ezequiel or both reveal the location of additional money or jewelry immediately upon grabbing her as she entered the house. (See Leavel, supra, 203 Cal.App.4th at p. 828 [movement that is unnecessary to commit robbery is not incidental.].) Also, the movement substantia lly increased the risk of ha rm in that it moved her to a more secluded part of the house where the second perpetrator was present, where Ezequiel already was bound and on th e floor, and where she was bound and gagged, making it more diffi cult for her to escape and placing her at risk of additional crimes. Indeed, it was in that location where the intruders earlier had
threatened to insert a hot knife into E zequiel’s rectum, and it was in that room where appellant raped Elizab eth, resulting in his rape conviction in count 1. Moreover additional potential victims – Eli zabeth’s children – were present in the bedroom, as was Ezequiel. The children’s pr esence greatly increas ed the risk that Elizabeth and Ezequiel might resist or atte mpt to escape in order to save each other and the children, resulting in greatly increased danger to Elizabeth from the intruders’ possible violent response. This evidence amply supports the conclusion8 that the movement of Elizabeth was not incidental to the robbery, and greatly
increased the risk of harm to her. Appellant relies on People v. Hoard (2002) 103 Cal.App.4th 599 ( Hoard ), in
which the defendant entere d a jewelry store, displa yed a gun, and moved two women employees into an o ffice at the back, where he bound them with duct tape. On appeal, the court held that the movement of the two women did not substantially increase the risk of harm to them. ( Id. at p. 607.) The court reasoned
that the movement of the wo men to the back of the stor e merely gave the defendant “free access to the jewelry and allowe d him to conceal the robbery from any entering customers who might have thwarted him.” ( Ibid. ) The court thus
concluded that the movement “served onl y to facilitate the crime with no other apparent purpose.” ( Ibid .)
The facts of Hoard are manifestly dissimilar fro m the instant case. The movement of Elizabeth was not done merely to facilitate the robbery. As we have explained, Elizabeth and a ppellant were already conceal ed from view inside the house, and appellant could have demanded that she and Ezequiel reveal the location of more money i mmediately upon grabbing her by the neck. Rather, the movement to the master bedroom greatly in creased the risk of harm to Elizabeth – the other perpetrator was there; the intr uders already had threatened to maim Ezequiel there with a hot knife; E lizabeth was bound and gagged there and appellant then raped her; the two young children and Ezequiel were there. Obviously, the risk of harm to Elizabet h by the movement to the master bedroom increased exponentially beyond that i nherent in the robbery itself. Appellant argues that because Elizab eth initially thought it was Ezequiel moving her, she consented to the movement and therefore no kidnapping occurred. He relies on the principle that “‘[a]s portation by fraud alone does not constitute9 general kidnapping,’” because movement by force or fear is required. ( People v. Majors (2004) 33 Cal.4th 321, 327 ( Majors ).) However, there was no evidence that Elizabeth’s movement was accomplis hed through fraud alone (or that there was any fraud at all) and, more fundamentally, no evidence that Elizabeth
consented to be moved. Although Elizabeth testified that she thought it was Ezequiel who was guiding her until sh e saw Ezequiel bound and gagged in the master bedroom, she did not testify that she consented to the movement from the living room to the master bedroom. To the contrary, her testimony showed that despite her belief, her movement was accomplished by force. When she entered the house, she was carrying gallons of m ilk in each hand. Before she could put them down, she was grabbed from behind by the neck. She was then guided, still held by the neck, to the mast er bedroom, where she was th rown to the floor, bound, and gagged. That before she reached the bedroom Elizabeth erroneously thought it was Ezequiel rather than appellant who used this force does not mean that the force cannot support appellant’s kidnapping for robbery conviction. “Of course, it goes without saying that asportation may be accomplished by means that are both fraudulent and involve force or fear.” ( Majors, supra, 33 Cal.4th at p. 328.) In other words, regardless of Elizabeth’s initi al belief that Ezequiel was moving her, that movement was accomplis hed by appellant’s use of fo rce, and as a result he committed a kidnapping.
We conclude that the evidence was sufficient to support the conviction of kidnapping for robbery.

II. Section 667.61, Subdivis ion (d)(2) Allegation In the rape count, the jury found tr ue three One Strike allegations under section 667.61. On appeal, appellant cha llenges the sufficiency of the evidence of10 only one: the allegation under secti on 667.61, subdivision (d)(2), that he kidnapped the victim and substantially incr eased the risk harm inherent in the underlying rape. This “circumstance [under section 667.61, subdivision (d)(2)] requires movement of the victim which s ubstantially increases the risk of harm over and above that necessarily present in the underlying sexual offense

. (§ 667.61, subd. (d)(2).)” ( People v. Jones (1997) 58 Cal.App.4th 693, 713, italics added.)
For the same reasons that the ev idence was sufficient to support the kidnapping for robbery conviction, it was su fficient to prove that the movement of Elizabeth substantially increased the risk of harm beyond that inherent in the rape.
There was no need to move Elizabeth to the master bedroom to accomplish the rape. She and appellant al ready were concealed from view inside the house.
The movement to the master bedroom placed her in a more secluded part of the house where she was bound and gagged. The s econd perpetrator was present there, as were Ezequiel and her two young ch ildren. For the same reasons these circumstances greatly increased the risk of harm to Elizabeth beyond that inherent in the robbery, so too they greatly incr eased the risk of harm to her beyond that inherent in the rape. Indeed, the eviden ce of the substantial increase in harm was overwhelming.

III. Jury Instruction on One Strike Allegation The One Strike allegation under secti on 667.61, subdivision (d)(2), required a finding that the movement of Elizabeth s ubstantially increased the risk of harm inherent in the rape. Appella nt correctly argues that the trial court failed to instruct
on this element.11 The court instructed the ju ry as follows: “If you find the defendant guilty of the crime charged in Count 1 [rape], you mu st then decide whether the People have proved the additional allegation that the defendant kidnapped the victim, increasing the risk of harm to her and return a sepa rate finding. [¶] To decide whether the defendant kidnapped the victim, increa sing the risk of harm to her, please refer to the separate instructions that I have given you on kidnapping. You must apply those instructions when you decide whet her the People have proved this additional allegation . [¶] The People have the burde n of proving each allegation beyond a reasonable doubt. If the People have not me t this burden, you must find that the allegation has not been pr oved.” (Italics added.) The separate instructions on kidnapping informed the jury, in relevant part,
that it must determine whether the movement of the victim substantially increased
the risk of harm above that present in the crime of robbery . The instructions did not mention rape. Thus, the jury was ne ver instructed to determine whether the movement substantially increased the risk of harm beyond that inherent in rape. Respondent concedes that the court e rred, but argues that the error was harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 24.) We agree. In convi cting appellant of kidnapping for robbery, the jury necessarily concluded that, under the inst ructions, the movement of Elizabeth substantially increased the risk of harm to her present in the crime of robbery. On this record, we see no rational reason th at the jury could conclude that the movement substantially increased the risk of harm present in the robbery, but that it did not substantially increase the risk of harm present in the rape. As we have already explained, the same evidence overw helmingly supports such a finding with respect to both the robbery and the ra pe. Thus, beyond a reasonable doubt, the12 court’s error in instructing on the One Strike allegation un der section 667.61, subdivision (d)(2), did not affect the verdict on that allegation.

IV. The Prior Strike Conviction
The record fails to contain a true findi ng on appellant’s alle ged prior strike conviction. Although appellant waived his ri ght to a jury on that allegation, he did not admit the allegation, and the court ne ver found it to be true. Therefore, the
case must be remanded for a dditional proceedings on the allegation. Appellant asserts that on remand he is entitled, if he chooses, to reassert his right to a jury trial. We agree. There is no bar to appellant deciding on remand to invoke his right to a jury trial on the prior strike conviction.

V. Use Enhancement In sentencing appellant on the rape c ount, the trial court stayed the 10-year enhancement for the finding of handgun us e under section 12022.53, subdivision (b). That enhancement cannot be stayed. ( People v. Gonzalez (2008) 43 Cal.4th 1118, 1126-1127.) Therefore, when resent encing on remand, the court is directed to impose the 10-year enhancement on th e rape count and not stay it.13 DISPOSITION
The case is reversed insofar as it purports to contain a true finding on appellant’s alleged prior st rike conviction. The case is remanded for additional proceedings on that allegation and for resent encing. In resentencing, the court is directed to impose and not stay the 10-year enhancement under section 12022.53, subdivision (b), on the rape count (count 1) . In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE , J

.

We concur:

EPSTEIN, P. J.

MANELLA , J

.