Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Riverside County Super. Ct. No. RIF119770, Bernard J. Schwartz, Judge.
IRION, J.
A jury convicted Trent Graddy of rape (Pen. Code, § 261, subd. (a)(2)), oral copulation (§ 288a, subd. (c)(2)), sexual battery (§ 243.4, subd. (a)), and committing a lewd act with a minor (§ 288, subd. (c)(1)). The jury also returned aggravated kidnapping findings under the "One Strike" sentencing law with respect to the rape and oral copulation convictions (§ 667.61, subd. (d)(2)). The jury acquitted Graddy of a separate count of kidnapping with intent to commit rape or oral copulation (§ 209, subd. (b)(1)). In accordance with the One Strike law, the trial court sentenced Graddy to 37 years to life in prison.
All statutory references are to the Penal Code unless otherwise specified.
Graddy appeals, contending that his life prison term under the One Strike law must be reversed because the two aggravated kidnapping findings on which the sentence was based are invalid. Specifically, Graddy contends the findings are invalid because: (i) he was never charged with a One Strike allegation on the rape and oral copulation counts for which he was convicted, but instead the allegation was improperly transferred to those counts during trial from the count on which he was subsequently acquitted; and (ii) the trial court improperly instructed the jurors that asportation (i.e., coerced movement for "more than a slight or trivial distance" and beyond that which is "incidental to the commission of" the underlying crimes) was not required to prove the "kidnapping" element of the aggravated kidnapping enhancement. Graddy also alleges various errors in the computation of his sentence — errors that the Attorney General concedes.
Graddy's initial brief on appeal raised these contentions in the context of a challenge to the trial court's failure to grant his request for a new trial on these grounds. Prior to the Attorney General's response to his contentions, Graddy filed a supplemental brief recasting his contentions as independent grounds for reversal that did not rely on their being raised or ruled upon in the new trial motion.
We agree that the One Strike sentencing enhancements must be stricken based on instructional error that relieved the prosecution of its constitutionally-imposed burden of proving each element of the One Strike enhancements beyond a reasonable doubt. For Graddy to be imprisoned for life under the One Strike law, the jury was required to find, among other things, that he "kidnapped" the victim of his crimes as that term is defined by law. (§ 667.61, subd. (d)(2).) The trial court's instructional error, coupled with the jury's acquittal of Graddy on the kidnapping count for which it was properly instructed, leaves significant doubt as to whether the jury did so here. Consequently the trial court's instructional error cannot be deemed "harmless," and we are required to strike the One Strike enhancements.
The underlying convictions for rape, oral copulation, sexual battery and lewd conduct with a minor are not challenged on appeal and are unaffected by our decision.
I
FACTS
In October 2004, 15-year-old Tara F. was at a park in Corona with a group of teenage friends. Her friends were drinking vodka, and Tara drank "less than half a shot" and became dizzy. At around 7:00 p.m., Tara's friends Jacob and Josh D. (the D.'s) arrived at the park and joined the group. At some point, Graddy, who lived in the area, also joined the kids at the park. Although 28 years old, Graddy frequented the park and knew many of the kids who spent time there. Graddy, the D.'s, Tara and some of the other teenagers went to the D.'s home where the group continued drinking tequila and vodka. Graddy tried to give Tara some shots of alcohol.
At around 10:45, knowing that Tara had an 11:00 p.m. curfew, some of Tara's friends decided that Graddy, who was the oldest and was also going home, should accompany Tara home. As Tara had her bike with her, the D.'s loaned Graddy their kid sister's bike.
After leaving the D.'s house, Tara and Graddy biked toward Tara's home, passing alongside the park. As they passed the park, Graddy stopped his bicycle and asked Tara to help him with the bicycle chain. Tara testified that after she stopped her bike, Graddy grabbed her throat from behind, and told her not to scream and "to do what he said." Graddy then went over to Tara's bike, picked it up and told Tara to stay in front of him. Tara picked up Graddy's bike, and began walking with Graddy toward the restrooms at the park. During the walk, Tara was able to get about 2 to 3 feet behind Graddy, but was too afraid to flee.
When Graddy and Tara reached the restroom area, Graddy pushed her against the wall by the throat and told her to take her clothes off. Tara shook her head no, but after Graddy told her he would rip her clothes off, Tara complied. Graddy forced Tara to masturbate him, performed oral copulation on her, penetrated her vagina with his penis, and then forced her to give him a "hand job." Graddy ejaculated and some of the semen got on Tara's pants. When Tara returned home, she told her parents what had happened and they called the police.
Police responded immediately. A subsequent physical examination of Tara revealed faint bruising and tenderness on her neck and inner forearm and superficial scratches on her chest area. Tara had a reddened hymen which was consistent with her report of forced intercourse. Tara's jeans were examined and DNA in the semen found on the jeans was determined to match Graddy's DNA.
II
PROCEDURAL HISTORY
On January 4, 2006, the Riverside County District Attorney filed an information charging Graddy with five felony counts: (count 1) forcible rape (§ 261, subd. (a)(2)); (count 2) forcible oral copulation (§ 288a, subd. (c)(2)); (count 3) sexual battery (§ 243.4, subd. (a)); (count 4) kidnapping with intent to commit rape/oral copulation (§ 209, subd. (b)(1)); and (count 5) committing a lewd act with a person who was 14 or 15 years old, while being 10 years older than the victim (§ 288, subd. (c)(1)). The information included a One Strike allegation attached to count 4 which, tracking the language of the One Strike law, stated that in committing that offense Graddy "kidnapped . . . the victim . . . and the movement of the victim substantially increased the risk of harm to the victim over and above the level of risk necessarily inherent in the underlying offense, within the meaning of . . . section 667.61, subdivision (d)[(2)]."
At the close of the presentation of evidence, the court informed the prosecutor that the One Strike allegation did not apply to count 4 (kidnapping with intent to commit rape/oral copulation), but would apply to counts 1 (rape) and 2 (oral copulation). The prosecutor agreed, and the trial court then instructed the jury accordingly.
Count 4 did not support a One Strike allegation because the underlying offense charged in that count, kidnapping for rape/oral copulation, is not one of the underlying offenses listed in the One Strike statute. (See § 667.5, subd. (c).)
With respect to the enhancement, the court instructed the jury verbally and in a written instruction titled "CALJIC No. 17.24.1" as follows:
"It is alleged that at the time of the commission of the crimes charged in counts 1 and 2, the defendant kidnapped the alleged victim in the present case, and the movement of the alleged victim substantially increased the risk of harm to her over and above the level of risk necessarily inherent in the underlying offenses, within the meaning of . . . section 667.61, subdivision (d)(2). If you find the defendant guilty of either of the crimes charged in counts 1 or 2, you must then determine whether or not the truth of this allegation has been proved. The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. Include a special finding on that question, using a form that will be supplied to you." (See CALJIC No. 17.24.1.)
The court also instructed the jury that Graddy was "accused in count 4 of having committed the crime of kidnapping to commit rape or oral copulation" and defined that offense verbally and in a written instruction titled "CALJIC No. 9.54." The instruction included a lengthy definition of kidnapping:
"Kidnapping is the unlawful movement by physical force" or "because of a reasonable apprehension of harm" "without that person's consent" for "a substantial distance where such movement is not merely incidental to the commission of the rape or oral copulation, and where the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of rape or oral copulation itself."
"Brief movements to facilitate the crimes of rape or oral copulation are incidental to the commission of rape or oral copulation. On the other hand, movements to facilitate the rape or oral copulation that are for a substantial distance, rather than brief, are not incidental to the commission of rape or oral copulation." (See CALJIC No. 9.54.)
The instruction on count 4 further broke out the requisite elements of the charged offense, including two elements related to the definition of kidnapping: that "[a] person was unlawfully moved by the use of physical force, or was unlawfully compelled to move because of a reasonable apprehension of harm," and "[t]he movement of the person was for a substantial distance, that is, a distance more than slight, brief or trivial." The instruction also stated that "[t]he specific intent to commit rape or oral copulation must be present when the kidnapping commences." (See CALJIC No. 9.54.)
After receiving these instructions, the jury began its deliberations. During its third day of deliberations, the jury sent two notes to the court. The first stated that the jury had reached verdicts with respect to all of the counts and allegations except for count 4; the court instructed the jury to continue deliberating. The second note stated:
"We have a question. If the defendant is found not guilty or a hung jury exists on this count (#4) how does it [a]ffect 1A & 2A [the One Strike enhancements]? Does it cancel it out?
"Is the definition of kidnapping in # 4 the same for 1A and 2A?"
The court proposed a response to the note, to which the prosecutor and defense counsel agreed, and presented it to the jury. The response stated:
"1. Each count and allegation is a distinct crime. You must decide each separately. Your verdicts and findings must be decided separately and based on the facts and the law in this case. You are not to be concerned with the effect of a guilty or not guilty verdict on any one count as it could [a]ffect any other count.
"2. No. Please review all elements of CALJIC # 9.54 and 17.24.1."
The jury then convicted Graddy on counts 1 (rape), 2 (oral copulation), 3 (sexual battery) and 5 (lewd conduct with a minor); returned One Strike aggravated kidnapping finding on counts 1 and 2; and acquitted Graddy on count 4 (kidnapping for rape/oral copulation).
After speaking with the jurors following the verdict, Graddy's counsel moved for a new trial. In the motion, counsel argued that the court's instructions were erroneous because they suggested that slight movements incidental to the rape/oral copulation were sufficient to establish the One Strike aggravated kidnapping enhancement. Defense counsel represented that he had spoken to four of the jurors after the verdict, and all four had understood the court's instructions to mean that while nonsubstantial movement was insufficient to establish guilt of the kidnapping for rape/oral copulation offense, it was sufficient for purposes of the One Strike finding. The trial court denied the motion.
III
DISCUSSION
On appeal, Graddy contends that the trial court erred by failing to properly instruct the jury on the elements of the One Strike aggravated kidnapping enhancement and erroneously suggesting that the asportation element of the enhancement could be established through insubstantial movement that was incidental to the underlying offenses of rape/oral copulation. Graddy claims that this error violated his constitutional right to a jury trial on each of the elements of the enhancement, and requires reversal. We address this contention after setting forth the applicable legal principles.
In keeping with common labeling practice, we refer to the One Strike sentencing enhancement in section 667.61, subdivision (d)(2) as the "aggravated kidnapping" enhancement in order to distinguish it from the One Strike "simple kidnapping" enhancement in section 667.61, subdivision (e)(1). The aggravated kidnapping enhancement is, of course, related to, but distinct from, the aggravated kidnapping offenses, such as kidnapping with intent to commit rape, listed in section 209, subdivision (b)(1).
A. Applicable Legal Principles
"The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." (People v. Blair (2005) 36 Cal.4th 686, 744.) "That obligation includes instructions on all of the elements of a charged offense" (People v. Cummings (1993) 4 Cal.4th 1233, 1311), "the elements of the one strike circumstances" (People v. Jones (1997) 58 Cal.App.4th 693, 709 (Jones); see CALCRIM No. 3175, Authority, p. 974), and the definition of terms appearing within those elements when those terms either " 'do[] not have a plain, unambiguous meaning,' " have a " 'particular and restricted meaning' " or have "a technical meaning peculiar to the law or an area of law." (People v. Roberge (2003) 29 Cal.4th 979, 988 (Roberge).) In addition, section 1138 "imposes a 'mandatory' duty to clear up any instructional confusion expressed by the jury." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212 (Gonzalez); § 1138 [requiring that if the jurors "desire to be informed on any point of law arising in the case," they must be brought to court, where "the information required must be given"]; People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee) ["The court has a primary duty to help the jury understand the legal principles it is asked to apply"]; People v. Thompkins (1987) 195 Cal.App.3d 244, 250 (Thompkins) ["A jury's request for reinstruction or clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration"].)
Even when the court does not have a sua sponte duty to instruct on a particular legal point, "when it does choose to instruct, it must do so correctly" (People v. Castillo (1997) 16 Cal.4th 1009, 1015), and a potentially misleading or confusing instruction constitutes error if " ' "there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' " (People v. Frye (1998) 18 Cal.4th 894, 957 (Frye); People v. Avena (1996) 13 Cal.4th 394, 417 [same].)
While the One Strike provisions are often labeled "sentencing enhancements" or "penalty provisions" as opposed to separate "offenses," for constitutional purposes they are the functional equivalent of separate offenses because the enhancements increase the maximum penalty for the underlying offenses beyond the otherwise applicable statutory maximum. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19 ["when the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. Indeed, it fits squarely within the usual definition of an 'element' of the offense"]; Porter v. Superior Court (2007) 148 Cal.App.4th 889, 907 ["The idea that a penalty provision or sentence enhancement . . . is separate from the underlying offense and does not set forth an element of a greater offense has been firmly rejected in the wake of Apprendi"].) Consequently, "instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element" of a One Strike enhancement "violates the defendant's rights under both the United States and California Constitutions." (People v. Flood (1998) 18 Cal.4th 470, 479, 480 (Flood); People v. Sengpadychith (2001) 26 Cal.4th 316, 326 (Sengpadychith) ["a trial court's failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision 'increases the penalty for [the underlying] crime beyond the prescribed statutory maximum' "].)
B. The Error Is Not Forfeited
Before reaching Graddy's claim of instructional error, we must first evaluate the Attorney General's contention that any error was "either invited or forfeited" because Graddy's counsel acquiesced to the court's instructions. Applying well-established principles of appellate law, we reject the Attorney General's contention.
"The trial court's duty to fully and correctly instruct the jury on the basic principles of law relevant to the issues raised by the evidence in a criminal case is so important that it cannot be nullified by defense counsel's negligent or mistaken failure to object to an erroneous instruction or the failure to request an appropriate instruction." (People v. Avalos (1984) 37 Cal.3d 216, 229 (Avalos).) Consequently, a forfeiture of an appellate challenge alleging instructional error regarding the basic principles of law at issue in a criminal trial will only be found if "[t]he record . . . reflect[s] that counsel had a deliberate tactical purpose" for its omission and " 'deliberately caused the court to fail to fully instruct.' " (Ibid.) There is no such showing here; as far as the record shows, defense counsel's failure to object to the instructions given was the very "negligent or mistaken" acquiescence that cannot support a finding of forfeiture. (Ibid.) Thus we cannot deem the instructional error invited or otherwise forfeited as urged by the Attorney General. (People v. Moon (2005) 37 Cal.4th 1, 28 [no forfeiture where defense counsel "acquiesced in the instruction" by stating " '[t]hat's correct' " when the court stated its assumption that both counsel were jointly requesting the instruction, and no tactical reason for acquiescence was apparent]; Jones, supra, 58 Cal.App.4th at p. 708 [defense counsel's statement that " 'I don't have any problem with [disputed instruction] either way' " did not constitute forfeiture of claim on appeal].)
Apparently attempting to glean some tactical purpose from the record, the Attorney General notes that Graddy did not request an instruction on the lesser included offense of simple kidnapping. This contention, however, fails to recognize that even if Graddy had a tactical purpose in declining to request that instruction (to avoid conviction of the lesser offense of simple kidnapping), that purpose would not apply to a failure to request a proper definition of the kidnapping element of the One Strike enhancements. Further, to support a forfeiture on appeal, the defense's tactical purpose must be apparent from the record, and here the Attorney General's suggestion of some tangentially related tactical consideration constitutes, at most, speculation. (Avalos, supra, 37 Cal.3d at p. 229.)
In addition, section 1259 provides a separate basis for rejecting the Attorney General's forfeiture argument. Under that section, an appellate court will consider an alleged instructional error, even when defense counsel acquiesced to an erroneous instruction, if the resulting error affected the "substantial rights of the defendant." (§ 1259; Flood, supra, 18 Cal.4th at p. 482, fn. 7 [citing § 1259 in reviewing appellate challenge to trial court's removal of element of offense from jury's consideration despite absence of objection].) Here, where the instructional error essentially removed from the jury's consideration a disputed element of a sentencing enhancement that mandated a life prison sentence, the error affects Graddy's "substantial rights." Consequently, we reach the merits of Graddy's claim.
C. The Trial Court's Instructions Were Erroneous
The Attorney General contends that even assuming Graddy's instructional challenge is not forfeited, there was no error. We disagree.
For a life prison term to be authorized by section 667.61, subdivision (d)(2) of the One Strike law, the jury must find two things, in addition to the defendant's guilt on the underlying offense: (i) that "[t]he defendant kidnapped the victim" and (ii) "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 [rape/oral copulation]." (§ 667.61, subd. (d)(2), italics added; People v. Diaz (2000) 78 Cal.App.4th 243, 246 (Diaz).) As the voluminous case law interpreting the term "kidnap" demonstrates, that term has a "particular" meaning when used in the Penal Code that is "neither plain nor unambiguous" and, consequently, must be defined by instruction. (See Roberge, supra, 29 Cal.4th at p. 988 [requiring term " 'likely' " to be defined for purposes of criminal statute because term's meaning is "neither plain nor unambiguous"]; see, e.g., CALJIC No. 9.54 [defining "kidnapping" for purposes of aggravated kidnapping offense]; CALJIC No. 9.50 [defining "kidnapping" for purposes of simple kidnapping offense]; CALCRIM No. 3175 [defining "kidnapped" for purposes of § 667.61, subd. (d)(2)'s aggravated kidnapping enhancement]; cf. People v. Martinez (1999) 20 Cal.4th 225, 232-238 (Martinez) [discussing legal definition of "kidnap" over five pages of the California Reports and noting that "more than one Court of Appeal" has been perplexed by the legal definition of the term].)
A critical component of any definition of "kidnapping" is an explanation of the "degree of asportation" required. (People v. Reed (2000) 78 Cal.App.4th 274, 284 ["kidnapping, be it simple or aggravated, requires a degree of asportation"]; Diaz, supra, 78 Cal.App.4th at p. 246 ["kidnapping within the meaning of section 667.61, subdivision (d)(2) requires movement of the victim that is more than incidental to the underlying sex offense"].) The proper asportation requirement for purposes of defining "kidnapped" in section 667.61, subdivision (d)(2) is set forth in the standard CALCRIM jury instruction. (See CALCRIM No. 3175 ["Sex Offenses: Sentencing Factors — Aggravated Kidnapping"]; Bench Notes to CALCRIM No. 3175 ["The court has a sua sponte duty to give this instruction on the sentencing factor when charged"].) As reflected in that instruction (as well as in the standard instructions for aggravated kidnapping and simple kidnapping), the asportation element requires proof of some substantial movement, i.e., movement of "more than a slight or trivial distance," and cannot consist of movement that is "merely incidental to the commission of" the underlying crime. (CALCRIM No. 3175; Diaz, at p. 248, fn. 4 [recognizing that with respect to the asportation requirement of the § 667 enhancement, "[t]he jury was properly instructed that the movement must be 'for a substantial distance where the movement is not merely incidental to the commission of the' underlying offense"]; Martinez, supra, 20 Cal.4th at p. 237 ["in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement's substantiality"].)
While, as noted, a definition of kidnapping, including the language described above, is encapsulated in standard jury instructions, including one specifically tailored to the enhancement at issue in this case (see CALCRIM No. 3175; see also CALJIC No. 9.50 [defining simple kidnapping]), when instructing on the enhancement, the trial court did not provide any such definition to the jury. Instead, the court simply restated the statutory language of the One Strike enhancement under CALJIC No. 17.24.1, a skeleton instruction intended for "Miscellaneous Enhancement or Probation Denial Allegations." This stood in sharp contrast to the standard instruction that the court provided for purposes of the kidnapping for rape/oral copulation offense (CALJIC No. 9.54) which, as discussed above, comprehensively defined "kidnapping."
During its deliberations, the jury fittingly sought clarification as to whether the lengthy definition of "kidnapping" provided in CALJIC No. 9.54 also applied to define the term "kidnapped" in the succinct instruction it had received on the One Strike aggravated kidnapping enhancement. Specifically, the jury asked whether "the definition of kidnapping in # 4 [kidnapping to commit rape/oral copulation] [is] the same for 1A and 2A [the One Strike enhancements]?" The trial court's response to this insightful question was perfunctory and, as we shall explain, erroneous, stating simply, "No. Please review all elements of CALJIC # 9.54 and 17.24.1."
There were two flaws in the trial court's response. First, the court's instruction that the jury should discern the appropriate definition of "kidnapped" for purposes of the One Strike enhancements by reviewing the "elements of CALJIC # 17.24.1" failed to seriously address, much less "clear up [the] instructional confusion expressed by the jury." (Gonzalez, supra, 51 Cal.3d at p. 1212; Thompkins, supra, 195 Cal.App.3d at p. 250 [reversing murder conviction because trial court's "succinct response" to a juror note failed to address potential confusion among jurors as to critical point of law].) The instruction labeled CALJIC No. 17.24.1 did not include any discussion of the "elements" of the enhancement and, more importantly given the jury's question, failed to provide any definition of "kidnapping." Consequently, the court's mere referral to the statutory language of the enhancement contained in CALJIC No. 17.24.1 was an inadequate response to the jurors' note, particularly considering the jurors' understandable confusion regarding the legal definition of the term "kidnapped," and the centrality of that definition to their task. (People v. Howard (1988) 44 Cal.3d 375, 408 [" ' " ' "An instruction in the language of a statute is proper only if the jury would have no difficulty in understanding the statute without guidance from the court" ' " ' "]; Thompkins, at p. 253 [cautioning trial courts to avoid "merely repeat[ing] for a jury the text of an instruction it has already indicated it doesn't understand"].)
Second, and of greater significance, the court's response to the jurors' note was not only perfunctory, but was also wrong. The court's response informed the jurors that "the definition of kidnapping" in CALJIC No. 9.54 was not applicable to define the kidnapping required for the One Strike enhancements. There is, however, no salient distinction between the definitions of kidnapping under the two statutes. (Compare CALCRIM No. 3175 [aggravated kidnapping enhancement] to CALCRIM No. 1203 [aggravated kidnapping offense]; CALJIC No. 9.54 [aggravated kidnapping offense].) The definition of kidnapping in CALJIC No. 9.54 that the jury had been provided requires that the victim be coerced to move and that the coerced movement be: (i) for a substantial distance, i.e., not "slight, brief or trivial"; and (ii) not "incidental to the commission of the rape or oral copulation." As each of these requirements applies with equal force to the definition of "kidnapped" for purposes of the One Strike enhancements (see CALCRIM No. 3175; Diaz, supra, 78 Cal.App.4th at p. 246), the appropriate one-word answer to the jurors' question was "yes [the definition is the same]" rather than "no [it is not]."
The trial court and counsel appeared to have overlooked that the jury was asking whether the definitions of kidnapping were the same for both statutes, not whether the elements of the statutory provisions were the same. In addition, the court and the prosecutor appeared to be mistaken as to the requisite requirement of asportation under the enhancement, with the prosecutor erroneously contending, with the court's agreement, that "under [section] 209[, subdivision ](b) [kidnapping to commit rape/oral copulation] there has to be a substantial movement. Under the [section 667.61] allegation, there is no requirement for a substantial movement." (Italics added.)
The Attorney General implicitly concedes this point by contending that "the jury was adequately informed with respect to section 667.61 that the movement in a kidnapping must be for a 'substantial distance' " by the court's use of CALJIC No. 9.54 to instruct on the aggravated kidnapping charge. (See Beardslee, supra, 53 Cal.3d at p. 97 ["Where the original instructions are themselves full and complete, the court has discretion . . . to determine what additional explanations are sufficient to satisfy the jury's request for information"].)
In sum, the jurors, initially left without any guidance regarding the definition of "kidnapped" for purposes of the enhancement, were subsequently misinformed as to that definition by the court's erroneous response to their note seeking clarification. By stating that the kidnapping definition in CALJIC No. 9.54 did not apply to the enhancement, the court's response to the jurors' note erroneously implied that while movement of a substantial distance and beyond that incidental to the commission of the rape/oral copulation was required for the aggravated kidnapping offense (per CALJIC No. 9.54), it was not required for the aggravated kidnapping enhancement (per CALJIC No. 17.24.1). Stated another way, under the court's instruction, there is a " 'reasonable likelihood' " (Frye, supra, 18 Cal.4th at p. 957) that the jury concluded that all that was required for the aggravated kidnapping enhancement finding was the existence of some coerced movement, even movement that was brief, slight or incidental to the rape/oral copulation offenses, so long as that movement "substantially increased the risk of harm" to Tara. (§ 667.61, subd. (d)(2); Diaz, supra, 78 Cal.App.4th at p. 247 ["incidental movements" not amounting to kidnapping "are brief and insubstantial, and frequently consist of movement around the premises where the incident began"]; cf. People v. Washington (2005) 127 Cal.App.4th 290, 301 ["any movement of a robbery victim increases the risk of harm to the victim over and above that present in a standstill robbery"].) This was error.
While the error described above was itself a violation of Graddy's rights under the California and United States Constitutions (Flood, supra, 18 Cal.4th at pp. 479-480); Sengpadychith, supra, 26 Cal.4th at p. 326), this error was compounded by an apparent oversight with respect to the language of the verdict forms provided to the jury on the One Strike aggravated kidnapping findings. Under the One Strike statute, the aggravated kidnapping enhancement applies only if the jury makes, in essence, two findings, that: "[t]he defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c)." (§ 667.61, subd. (d)(2), italics added; id., subd. (j).) Inexplicably, the verdict forms provided to the jury (and consequently the written findings returned by the jury, as well as the oral findings announced by the foreperson) did not track the statutory language of the enhancement, but awkwardly paraphrased that language into a single, conglomerate finding. The jury's findings state: "We, the jury . . ., find that in the commission of the offense charged under count[s 1 and 2], the kidnapping and movement of the victim did substantially increase the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense . . . ." (Italics added.) This variance between the jury's findings, which assume a kidnapping, and the statutory text, which requires an explicit finding that a kidnapping has occurred, if not error in and of itself, clearly exacerbated the instructional error described above. (See § 667.61, subd. (j) ["The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact"].)
One possible explanation for this variance is that the verdict form was drafted to accord with the original erroneous attachment of the finding to the aggravating kidnapping offense (count 4), in which case a kidnapping would have been found prior to the jury's consideration of the enhancement.
D. The Error Requires Reversal of the One Strike Findings
Having established that the instructions regarding the One Strike aggravated kidnapping findings were erroneous, we next analyze whether that error warrants reversal. The appropriate standard of review for this inquiry is that which applies in cases of federal constitutional error, as the erroneous instructions at issue here relieved the prosecution of its constitutionally-mandated burden of establishing an element (asportation) of the One Strike aggravated kidnapping finding. (Sengpadychith, supra, 26 Cal.4th at p. 326 ["a trial court's failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision 'increases the penalty for [the underlying] crime beyond the prescribed statutory maximum' "]; People v. Avila (1995) 35 Cal.App.4th 642, 653 [concluding that "defendant's federal constitutional jury trial right was violated when the jury was not instructed that in order to convict him of . . . aggravated kidnapping . . ., it must find the asportation subjected her to a substantial risk of harm over and above that inherent in the crime of rape itself"].) Consequently, reversal is required unless "it appears beyond a reasonable doubt that the error did not contribute to this jury's verdict." (Flood, supra, 18 Cal.4th at p. 504; Sengpadychith, at p. 326; cf. Thompkins, supra, 195 Cal.App.3d at pp. 252-253 ["there is no category of instructional error more prejudicial than when the trial judge makes a mistake in responding to a jury's inquiry during deliberations"].)
In his opening brief, Graddy asserts that the federal constitutional error standard — harmless beyond a reasonable doubt (see Chapman v. California (1967) 386 U.S. 18, 24) — applies; in supplemental briefing, he contends the error is structural error requiring automatic reversal. (Flood, supra, 18 Cal.4th at p. 503 [concluding that harmless error analysis rather than automatic reversal is required where jury instruction removed an element from jury consideration because, among other things, the element was established by "overwhelming and uncontradicted evidence"].) The Attorney General argues that the error is "harmless," but fails to state the standard that applies and does not address whether the error is structural. As we conclude that the error was not harmless under the Chapman standard (a conclusion we would also reach even under the less demanding People v. Watson (1956) 46 Cal.2d 818, 836 standard), we need not address the question of whether the error was structural error, requiring automatic reversal.
As discussed below, we conclude that the court's improper instructions on the asportation element of the One Strike enhancements were not harmless beyond a reasonable doubt. To the contrary, the record indicates, in light of the trial testimony and the jury's own inconsistent findings, that the improper instructions did, in fact, influence the jury's verdict on the One Strike enhancements to Graddy's detriment.
The court's instructional error regarding whether substantial movement was required for the One Strike enhancement finding was particularly significant because there was vigorous dispute at trial as to whether that asportation requirement had, in fact, been established. The prosecution contended, based on Tara's testimony, that legally sufficient asportation occurred when, after Tara and Graddy stopped their bikes at the park, Graddy forced Tara to walk the 500 plus feet to the park restroom. Tara testified that Graddy grabbed her by the neck, threatened her, and told her to walk toward the restrooms; and that she lagged behind him during the walk, but was too frightened to flee because Graddy had taken her bike and Tara was pushing a "little girl's bike" (the D.'s kid sister's bike) that was not fast enough to outrun a person on foot. If the jury believed this testimony (a suggestion that, as noted below, is belied by the jury's verdict of acquittal on the aggravated kidnapping offense), substantial movement was indeed established.
Tara's testimony on this critical question, however, was not undisputed. One of the prosecution witnesses, Deputy Rosas, who interviewed Tara on the night of the rape, testified that Tara told him Graddy initially only grabbed her throat during the actual rape in the restroom area, and that she walked her own bike to the restrooms, leaving Graddy with the D.'s kid sister's bike. In addition, the defense emphasized at trial that the walk to the restrooms must have been consensual, because Tara testified that after they stopped biking, she and Graddy walked in a circuitous route that exposed them to public view (and passing vehicles), rather than a more direct, less visible route to the restroom. In closing argument, the prosecutor acknowledged "[t]he route doesn't make sense," but relied on the fact that the sprinklers at the park must have been on to explain this incongruity (an explanation that was not cited by Tara in her own testimony). Further detracting from the prosecution's case regarding asportation, a defense witness, Kevin M., testified that Tara described the rape to him by stating that she encountered Graddy about 20 feet outside the restrooms trying to fix a flat tire and that when she walked to the restroom, Graddy followed her and raped her.
There was evidence that the sprinkler system was scheduled to begin running between 10:30 and 11:00 on the evening of the assault. Tara, however, did not testify that the sprinklers were on or explain the circuitous route she described as being dictated by the sprinklers.
The Attorney General discounts Kevin M.'s testimony by stating that it was "confused and inconsistent." While it is true that the 16-year-old witness had difficulty pinpointing the timing of this conversation, his testimony cannot otherwise be so easily discounted, and certainly cannot be dismissed as biased in Graddy's favor given that he testified he believed Tara when she told him Graddy raped her.
The conflicting evidence regarding whether Tara was coerced to move from the street adjoining the park to the restroom created a factual question as to whether the asportation required for the One Strike aggravated kidnapping enhancements had been proven beyond a reasonable doubt. By suggesting, in response to the jury's question, that asportation as defined in the court's aggravated kidnapping offense instruction was not, in fact, required to establish the One Strike enhancements, the court took this factual question from the jury, extinguishing the potential for its resolution in Graddy's favor. Instead, the court's instructions permitted the jury to find the One Strike enhancements proven through the establishment of any coerced movement at all, including incidental movements during the rape and oral copulation (such as Graddy's pushing Tara up against the wall by her throat), so long as the movement increased the risk of harm to Tara.
There was, of course, little dispute that if, as the jury found, Tara testified truthfully about the rape itself (a finding amply supported by Graddy's own admission in a jailhouse phone call that he engaged in oral copulation with Tara, and the presence of Graddy's semen on Tara's jeans), Graddy repeatedly forced her to move during the rape and oral copulation, and that this movement "substantially increased [her] risk of harm." (§ 667.61, subd. (d)(2).)
Indeed, the prejudicial impact of the trial court's instructional error is particularly apparent in this case in light of the fact that when properly instructed on asportation for purposes of the aggravated kidnapping offense, the jury reached a not guilty verdict. This finding that Graddy did not kidnap Tara with the intent to commit rape/oral copulation is difficult, if not impossible, to reconcile on the facts of this case with the jury's findings on the One Strike enhancements that, in the process of committing rape/oral copulation, Graddy did kidnap Tara. In light of the court's instructional error, however, the verdicts can be easily explained: the jury acquitted Graddy of the aggravated kidnapping offense because the prosecution failed to prove the asportation element (i.e., substantial movement), but reached the opposite conclusion on the One Strike aggravated kidnapping findings in the erroneous belief that no such asportation requirement applied.
The Attorney General's attempt to reconcile the verdicts without reference to the instructional error is patently unconvincing. The Attorney General contends that the jury probably found that Graddy did kidnap Tara by coercing her to move the 500 plus feet to the restroom, but that when he did so, he lacked the requisite intent to commit a sexual offense as required for the offense of kidnapping for rape/oral copulation, but not for the enhancement. (Jones, supra, 58 Cal.App.4th at p. 717 ["It would appear [§ 667.61, subd. (d)(2)] would apply if the defendant commits the sexual offense, then, as an afterthought, kidnaps the victim; or if the defendant kidnaps the victim for another purpose, e.g., to commit robbery, then, as an afterthought, commits the sexual offense"].) There is absolutely nothing in the evidence, however, to suggest that Graddy had some other intent in taking Tara to the restroom (e.g., robbery), and thus, absent an intent to rape her, there is no plausible explanation for why he would have coerced her to accompany him there. As the prosecutor stated in arguing this point in closing, Graddy was not going to the restroom "to chit-chat."
In light of the initial questions in the jurors' note, it is also possible that had the jury been properly instructed that the definitions of kidnapping were the same for both statutes, it would then have convicted Graddy of the aggravated kidnapping offense in order to maintain consistency with its verdict on the enhancements. However, we cannot presume that the jury would have disregarded its instructions to render a verdict in this manner; in fact, we must presume the opposite. (People v. Holt (1997) 15 Cal.4th 619, 662 ["Jurors are presumed to understand and follow the court's instructions"].)
In sum, the trial court erred by instructing the jury that the requirements of substantial, nonincidental movement enumerated in CALJIC No. 9.54 did not apply to the aggravated kidnapping enhancement. Given the vigorous dispute regarding whether substantial movement was established in this case and the jury's inconsistent verdicts on the question, we cannot conclude that this error was harmless. Consequently, we strike the One Strike enhancements on counts 1 and 2.
As we reverse the jury's enhancement finding on the grounds noted above, we do not address Graddy's argument that the enhancement must also be stricken because he received inadequate notice of the One Strike allegation by virtue of the flawed information, and also do not reach the other sentencing errors alleged (and conceded) as they are rendered moot by our ruling.
DISPOSITION
The One Strike enhancements on counts 1 and 2 are stricken. The case is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: NARES, Acting P. J., McINTYRE, J.