Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050710673
Reardon, J.
After he pled guilty to having committed robbery and multiple sexual offenses, a jury convicted appellant Nathan Bryan Kinkade of aggravated kidnapping. (Pen. Code, §§ 209, subd. (b), 211, 212.5, subd. (c), 261, subd. (a)(2), 286, subd. (c)(2), 288a, subd. (c)(2), 289, subd. (a)(1); former § 664 [as amended by Stats. 2005, ch. 52, § 1].) Based on these convictions and on certain weapons and other sentencing findings, he was sentenced to a life term in prison. (§§ 667.61, subd. (b), 1203, subd. (e)(1), 12022, subd. (b)(1).) On appeal, Kinkade persuades us that (1) the trial court committed prejudicial error by failing to instruct the jury sua sponte on simple kidnapping as a lesser included offense of aggravated kidnapping. He also contends (2) that he was denied his constitutional right to represent himself at trial; (3) that insufficient evidence supports his conviction for aggravated kidnapping and (4) the findings that he was armed with and personally used a deadly weapon during the commission of that offense; and (5) that aspects of his original sentence constituted multiple punishment or lacked statutory authorization. We reduce the aggravated kidnapping conviction to one for simple kidnapping and remand to the trial court for resentencing on all counts.
Kinkade is also known as Nathan Bryan Fraser.
All statutory references are to the Penal Code unless otherwise indicated.
Although section 664 has been amended since the date of the December 2006 offenses, the former and current provisions are substantially the same for our purposes. (Compare Stats. 2006, ch. 468, § 1 with Stats. 2005, ch. 52, § 1.)
See footnote 15, post.
I. FACTS
A. The Crimes
On the afternoon of December 13, 2006, Jane Doe was walking in a Richmond park, pushing her six-month-old daughter in a stroller. A tall young man—later identified as appellant Nathan Bryan Kinkade—approached her and spoke with her briefly before continuing on his way. Five or 10 minutes later, Jane Doe was in an isolated part of the park. Kinkade approached her from behind, putting his hand over her mouth and placing a knife to her neck. He instructed her not to scream and pushed her down, knocking over the stroller and the baby along with it. Kinkade told Jane Doe that he wanted money, but did not want to hurt her. He wore a knife sheath on a string around his neck.
At six feet four inches tall, Kinkade was 10 inches taller than Jane Doe.
Jane Doe spoke Polish as her first language.
Jane Doe righted the stroller and saw that her daughter was unharmed. She pretended not to understand English very well in order to confuse Kinkade. She also tried to convince him that the baby was not hers, but merely a child in her care. She told him that she did not have any money. When he asked to go to the home of her fictitious employer to see if there was anything there that he could have, she told Kinkade that there were people at the house.
Jane Doe pushed her child’s stroller toward some nearby houses, hoping that she might be seen and rescued. She told Kinkade that she was leading him to her house. There were several paths through the park—she chose not to take the ones that led to more isolated areas. She moved as fast as Kinkade would allow her to go—she did not want to make him angry for fear that he would use the knife. She wanted to get to a place where people could see them. She talked with him, trying to prolong the situation and trying to collect information about him. She hoped to get to a place where people could see them so she and her child would have a better chance of survival.
During this phase of the incident, Kinkade’s knife was in his hand all the time. With him at her side, Jane Doe pushed the stroller up a path leading to the nearby houses, only to discover that the homes were enclosed by a metal fence and a locked gate. No one was there. Feeling trapped, Jane Doe began to scream, hoping someone would hear her. Kinkade ordered her not to scream and—observing the knife in his hand—she complied.
Kinkade asked Jane Doe to show him her breast. Still at the locked gate, she offered him her gold earrings, hoping this might satisfy him. He took them, but still wanted to see her breast. Jane Doe wanted to avoid physical contact with Kinkade, who still held the knife. She told him that she would do so if he promised to let her and the baby go. He agreed and she pulled up her shirt for a second and showed him her breast. At the time, her daughter was in the stroller between Jane Doe and Kinkade, who still held the knife.
She also had a cell telephone, but she decided not to offer this to him, because she wanted to be able to call for help.
During cross-examination at trial, Jane Doe testified that she gave him her earrings before he asked her to show herself.
Kinkade said that he wanted to see more. She understood him to want to see the lower part of her body. Several times, Jane Doe reminded him of his promise to let them go, but he did not react. She feared that this situation was headed in a dangerous direction, and particularly feared that her baby might be hurt. Jane Doe told him that she would only show him more if he threw his knife behind the fence. She wanted to make it difficult for him to gain access to the knife.
Kinkade threw the knife over a wooden fence that appeared to be a bit shorter than Jane Doe was. He reminded her of her promise and demanded that she show him her bottom. Jane Doe did not want to expose herself more fully to him—she only agreed to do so to keep him from injuring or killing herself or her child. She pulled her jeans down to her knees and turned around when he ordered her to do so. Jane Doe kept an eye on her baby in the stroller. She pulled her pants up, hoping that this would be the end of her ordeal.
Jane Doe told Kinkade that he should keep his promise and let them go. He did not—instead, he indicated that he wanted her to move behind a tree. Seeing that this location was more hidden and fearful that she was at risk of sexual assault, Jane Doe began to cry. She asked Kinkade why he wanted her to go there and he said that he wanted to have sex with her. Jane Doe did not want this to happen.
Jane Doe said that she did not want to go where Kinkade indicated—she told him that they should go to another location where they might not be seen. In fact, she hoped to delay or prevent being sexually attacked. Jane Doe pushed and pulled the stroller up a hill and started walking along the rim of the hill, hoping that this would make her more visible from the houses. She could see cars nearby and hoped to reach them. As the trio went up the hill, Kinkade kept a constant hold on the stroller.
Kinkade ordered Jane Doe to stop and go back down the hill. He prevented her from moving the stroller any further. She told him that if they had sexual intercourse, it would be without her consent. Kinkade told her that he understood this. Jane Doe put the brake on the stroller, left it at the top of the hill and went back down the hill with Kinkade. This location was hidden from the view of nearby houses by a solid wood fence.
Jane Doe went down the hill with Kinkade because she feared for her child’s safety. She feared that he might push the stroller down the hill into the fence, hurting the baby, if she did not do so. Jane Doe asked for her earrings back, so that she might get his fingerprints. While he raped her twice, forced her to orally copulate him, digitally penetrated her and twice attempted to sodomize her, Jane Doe watched the stroller at the top of the hill. At one point, Kinkade grabbed her head and pulled her to a location on the other side of a drainage ditch, where more sexual activity occurred. During the assault, Jane Doe removed a flashlight from Kinkade’s jacket, hoping that it would have his fingerprints on them.
When the assault was over, Jane Doe put her jeans back on and ran back up the hill to the baby in her stroller. Kinkade went along the fence below her, along the flat path, toward the place where he had left his knife. Jane Doe had difficulty pushing the stroller with her baby in it through the overgrown brush, so she picked up the stroller and carried it. She moved as quickly as she could along the rim of the hill to the nearby area where cars were parked. She feared that Kinkade would retrieve his knife and use it to kill her and the baby, in order to silence them.
Once Jane Doe got to a more populated area, she called 911 on her cell phone and hid behind one of the houses for safety. Ten minutes later, the police arrived and she told them what had happened. Within 30 minutes after the assault ended, Jane Doe led police to the place where Kinkade had thrown his knife, but it was not to be found. She gave his flashlight to police.
Jane Doe described her assailant to police, who produced a sketch of him. She also drew her own sketch of the knife. Two days later, a Richmond police officer who knew that Jane Doe had been sexually assaulted at knifepoint spotted Kinkade, who resembled the sketched assailant. Kinkade wore a sheathed knife hanging by a string around his neck.
B. Pretrial Matters
In July 2007, an information was filed charging Kinkade with two counts each of forcible rape, forcible sodomy and forcible sexual penetration. The information also alleged single counts of forcible oral copulation, second degree robbery and aggravated kidnapping—specifically, kidnapping for sexual purposes. (§§ 209, subd. (b), 211, 212.5, subd. (c), 261, subd. (a)(2), 286, subd. (c)(2), 288a, subd. (c)(2), 289, subd. (a)(1).) The information charged that Kinkade used a deadly weapon—a knife—during the commission of each of these offenses. (§§ 667.61, subds. (b), (e), 12022, subd. (b)(1).) Kinkade pled not guilty to these charges and denied all enhancement allegations.
In December 2007, Kinkade moved to dismiss the sodomy, sexual penetration and kidnapping counts, as well as most of the sentence enhancements alleged with all but the robbery count. (§ 995.) The trial court granted the motion to dismiss the sodomy and sexual penetration charges, but allowed the prosecution to amend the information on those counts. In March 2008, a first amended information was filed, charging two counts of attempted forcible sodomy and a single count of sexual penetration. In all other significant respects, the amended information was the same as the original one. (§§ 209, subd. (b), 211, 212.5, subd. (c), 261, subd. (a)(2), 286, subd. (c)(2), 288a, subd. (c)(2), 289, subd. (a)(1), 667.61, subds. (b), (e), 12022, subd. (b)(1); former § 664.)
Kinkade withdrew his not guilty plea to all but the kidnapping charge and pled guilty to the robbery and sex offense counts. He admitted a deadly weapon use sentencing enhancement allegation on the robbery charge. He waived a jury trial on all enhancements related to the sexual offenses. Those enhancements were to be tried by the court based on the evidence presented to the jury on the remaining aggravated kidnapping charge. Another allegation related to the robbery charge was stricken on the People’s motion. (See § 667.61, subds. (b)-(c).)
C. Trial and Sentencing
At trial, Jane Doe testified about the events of December 13, 2006. She told the jury that she was terrified and thought only of how to protect herself and her child from harm. Kinkade was bigger and younger than she was. He moved more quickly than she could, especially as she had to move a baby stroller through the vegetation at the top of the hill. Jane Doe estimated that about 25 feet lay between the place where she left her child at the top of the hill and the place at the bottom of the hill where she was assaulted. It may have taken her and Kinkade 10 seconds to walk down the steeply pitched hill. She estimated that the place where Kinkade threw his knife was between 40 and 60 meters away from where he assaulted her.
Kinkade moved for acquittal on the aggravated kidnapping charge and an arming enhancement, without success. (§ 1118.1.) He made two Marsden motions, which were also denied. A third Marsden motion made during closing argument was found to be untimely, as was Kinkade’s request to defend himself. He made outbursts during defense counsel’s closing argument, prompting an unsuccessful motion for mistrial.
People v. Marsden (1970) 2 Cal.3d 118, 122-126 (Marsden).
The jury found Kinkade guilty of aggravated kidnapping—kidnapping for sexual purposes. It found all related deadly weapon arming and use allegations to be true. (§§ 209, subd. (b), 667.61, subds. (b), (e), 1203, subd. (e)(1), 12022, subd. (b)(1).) The trial court found all deadly weapon use enhancements related to the robbery and sexual offense counts to be untrue.
Kinkade’s motion for new trial on the ground that there was insufficient evidence of aggravated kidnapping or deadly weapon arming or use during the commission of that offense was denied. He was sentenced to an indeterminate life term for kidnapping. A related deadly weapon enhancement term was imposed, but stayed. Kinkade was sentenced to concurrent terms for the robbery and sex offenses.
II. SELF-REPRESENTATION
A. Motion in Trial Court
First, Kinkade contends that he was denied his constitutional right to represent himself at trial. He seeks reversal of his kidnapping conviction. (See U.S. Const., 6th Amend.) This issue arose late in the trial, during closing argument. Outside the presence of the jury, Kinkade raised a Marsden issue. The trial court explained its ruling denying the latest of these motions and suggested that defense counsel’s closing argument was about to begin.
Then, Kinkade sought to relieve defense counsel. The trial court pointed out that he had no authority to remove appointed counsel. When the trial court ordered the jury brought back into the courtroom, Kinkade protested that his attorney was not acting in his best interests. Again, the trial court observed that a hearing on this issue had already been conducted. Kinkade replied: “Then pro per me.” Deeming this to be a motion for self-representation, the trial court denied it as untimely. Kinkade protested this ruling by acting out in court.
B. Timely Invocation Required
A criminal defendant has a federal constitutional right to represent himself or herself if he or she elects to do so. (Faretta v. California (1975) 422 U.S. 806, 833-834 (Faretta); People v. Windham (1977) 19 Cal.3d 121, 124 (Windham); see U.S. Const., 6th Amend.) A defendant has an absolute right to self-representation if the motion is asserted in a proper and timely manner. (People v. Butler (2009) 47 Cal.4th 814, 824-825; Windham, supra, 19 Cal.3d at p. 128.) In order to be timely, the motion must be made within a reasonable time before commencement of trial. (Windham, supra, 19 Cal.3d at pp. 124, 127-129; see People v. Dent (2003) 30 Cal.4th 213, 221; People v. Clark (1992) 3 Cal.4th 41, 98.) If the motion is untimely, the defendant has no absolute federal constitutional right to self-representation under Faretta. Instead, as a matter of state law, the motion for self-representation is addressed to the trial court’s discretion. (People v. Dent, supra, 30 Cal.4th at p. 221; People v. Frierson (1991) 53 Cal.3d 730, 742; see Windham, supra, 19 Cal.3d at p. 128 fn. 5.)
C. Absolute Right
On appeal, Kinkade acknowledges that the California Supreme Court deems the right of self-representation asserted after trial begins to be discretionary under state law, rather than an absolute right under federal law. (See Windham, supra, 19 Cal.3d at pp. 124, 127-129.) He argues thatthis Supreme Court ruling was wrongly decided and urges us to reconsider it. As an appellate court, we lack the authority to overrule this state’s high court. We are bound to apply the law as the California Supreme Court pronounces it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) As Kinkade moved for self-representation near the end of his trial, his Faretta request was clearly untimely and fell within the discretion of the trial court. (Windham, supra, 19 Cal.3d at pp. 124, 127-129.)
D. Abuse of Discretion
Alternatively, Kinkade argues that if the trial court had discretion to grant or deny his request for self-representation, it abused that discretion by denying his motion. An analysis of the timeliness of a motion for self-representation turns on several factors: the quality of counsel’s representation, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay that might reasonably be expected to follow the granting of the motion. (Windham, supra, 19 Cal.3d at p. 128; People v. Scott (2001)91 Cal.App.4th 1197, 1204.)
These factors support the trial court’s exercise of its discretion. As appellate counsel concedes, the trial court noted the good quality of experienced defense counsel’s representation when denying Kinkade’s Marsden motions. Kinkade acted out of frustration because of his perception that his Marsden motion was unfairly denied. The motion for self-representation was made very late in the trial, during closing arguments and shortly before deliberations were to begin. Considering these circumstances, we find that the trial court acted within its discretion when it denied Kinkade’s untimely motion to represent himself. (See Windham, supra, 19 Cal.3d at p. 128; People v. Scott, supra, 91 Cal.App.4th at p. 1204.)
The Attorney General also argues that Kinkade’s motion was not unequivocal. In light of our finding that it was untimely, we need not address this question.
III. KIDNAPPING
A. Instructional Error
Next, Kinkade argues that the trial court erred by failing to instruct the jury on simple kidnapping as a lesser included offense to aggravated kidnapping—kidnapping for sexual purposes. Because of this instructional failure, he reasons that the jury was unaware of an alternative lesser included offense that he asserts was supported by the prosecution’s evidence. Kinkade asks us to either reduce his aggravated kidnapping conviction to one for simple kidnapping or to reverse his conviction and remand for a new trial. The jury was instructed on the elements of aggravated kidnapping—kidnapping for purposes of committing rape, oral copulation, sodomy and sexual penetration. (CALCRIM No. 1203 (June 2007 rev.).) It was also instructed on the option of convicting Kinkade of the lesser included offense of felony false imprisonment, but no lesser included offense jury instruction on simple kidnapping was given. (CALCRIM No. 1240.)
The jury was instructed as follows with CALCRIM No. 1203 (June 2007 rev.) that in order to be found guilty of kidnapping for purposes of rape, oral copulation, sodomy and sexual penetration, that the People were required to prove that “[O]ne, the defendant intended to commit rape or oral copulation or sodomy or sexual penetration. [¶] Two, acting with that intent, the defendant took, held or detained another person by using force or by instilling a reasonable fear. [¶] Three, using that force or fear[, ] the defendant moved the other person or made the other person move a substantial distance. [¶] Four, the other person was moved or made to [move] a distance beyond that merely incidental to the commission of [the] rape or oral copulation or sodomy or sexual penetration. [¶] And, five, the other person did not consent to the movement. [¶] And, six, the defendant did not actually and reasonably believe that the other person consented to the movement.”
A trial court has a sua sponte duty to instruct the jury on a necessarily included offense if the evidence raises a question of whether all elements of the charged offense were present and if there is evidence that would justify a conviction of the lesser offense. No sua sponte duty to instruct on necessarily included offenses arises unless there is substantial evidence that the offense committed was less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Bunyard (1988) 45 Cal.3d 1189, 1232-1233.) To warrant instruction on a necessarily included offense, there must be evidence from which a jury composed of reasonable persons could conclude that the lesser offense was committed, but that the greater offense was not. (People v. Blair (2005) 36 Cal.4th 686, 745; People v. Breverman, supra, 19 Cal.4th at p. 162.)
An offense is necessarily included within another offense if the statutory elements of the greater offense include all elements of the lesser one. (People v. Lewis (2008) 43 Cal.4th 415, 518.) Clearly, simple kidnapping is a necessarily included offense of aggravated kidnapping—a kidnapping committed in order to commit specified underlying offenses. (See §§ 207, subd. (a), 209, subd. (b); People v. Lewis, supra, 43 Cal.4th at p. 518 [kidnapping for robbery]; People v. Bailey (1974) 38 Cal.App.3d 693, 699 [same].)
To be guilty of aggravated kidnapping committed with an intent to commit sexual offenses, Kinkade had to form the intent to commit sexual offenses before the kidnapping commenced. (See People v. Lewis, supra, 43 Cal.4th at p. 519 [kidnapping for robbery]; People v. Tribble (1971) 4 Cal.3d 826, 831-832; People v. Bailey, supra, 38 Cal.App.3d at p. 699 [kidnapping for robbery].) If the intent to commit sexual offenses is formed after the victim is seized, the offense is simple kidnapping. (See People v. Bailey, supra, 38 Cal.App.3d at p. 699.)
In this matter, there was evidence that when Kinkade first confronted Jane Doe with his knife, his purpose was to rob her. Although Jane Doe feared that he might intend to sexually assault her, he did not engage in any sexual conduct or verbalize any sexual intent until after he and Jane Doe had moved from the initial site of the attack to the locked gate. From this evidence, a jury could reasonably have concluded that when the kidnapping began, Kinkade’s intent was only to rob Jane Doe, not to sexually assault her. It could have found that once Kinkade realized that Jane Doe had nothing to steal, he formed the intent to sexually assault her. Although the jury was not required to reach these conclusions, the trial court was obligated to instruct the jury that it had the option of finding that Kinkade was not guilty of aggravated kidnapping, but guilty of the lesser included offense of simple kidnapping instead. The trial court erred when it did not give a simple kidnapping lesser included offense jury instruction sua sponte.
The error was exacerbated because the prosecutor argued—contrary to law—that the jury was not required to find that Kinkade formed his intent to commit sexual offenses before the kidnapping began.
We consider whether the error was harmless or prejudicial. When a trial court fails to give a required lesser included offense instruction, the conviction may be reversed only if the evidence demonstrates that it is reasonably probable that the defendant would have obtained a more favorable result if the error had not occurred. (People v. Breverman, supra, 19 Cal.4th at p. 178.) The question of when Kinkade formed the intent to commit sexual offenses—at the onset of the kidnapping or later, after it became clear that his expressed intent to rob Jane Doe was not to be accomplished—was disputed. The intent required for aggravated kidnapping must arise at the onset of the kidnapping—a significant difference from the general intent for simple kidnapping that may arise at any time during the commission of the offense. (People v. Bailey, supra, 38 Cal.App.3d at p. 699; see People v. Lewis, supra, 43 Cal.4th at p. 519.) Given the issue raised by the evidence about when Kinkade formed his intent to commit sexual assault, we conclude that the instructional error was prejudicial.
Kinkade asks us to reduce his conviction to one for simple kidnapping. If the evidence is clearly sufficient to uphold a conviction of simple kidnapping, then prejudicial error resulting from a failure to give this lesser included offense jury instruction may be cured by modifying an aggravated kidnapping conviction to one for simple kidnapping. (See People v. Bailey, supra, 38 Cal.App.3d at p. 700 [misinstruction case].) To determine whether evidence of simple kidnapping was sufficient to uphold a conviction on this lesser included offense, we next consider Kinkade’s sufficiency of evidence challenge to the aggravated kidnapping conviction.
B. Sufficiency of Evidence
1. Aggravated Kidnapping
Kinkade contends that there is insufficient evidence to support his conviction for aggravated kidnapping. He asserts that the evidence of asportation was lacking, for two reasons—because the movement of the victim was not substantial but merely incidental to the commission of the sexual offenses, and because that movement did not substantially increase the risk of harm to the victim over and above that necessarily present in the underlying offenses. Both of these claims of error bear most significantly on elements of aggravated kidnapping that are not present in a simple kidnapping case. (§§ 207, subd. (a), 209, subd. (b)(1)-(2); People v. Martinez (1999) 20 Cal.4th 225, 232-238 [increased risk of harm is relevant to determination of asportation for simple kidnapping, but is not required].) As we have reduced the conviction to one for simple kidnapping, we need not address these aspects of Kinkade’s claims of error.
Before trial, Kinkade moved to dismiss the charge of kidnapping for sexual purposes for these reasons, without success. (§ 995.) His motions for acquittal and for new trial on this basis were also denied.
2. Simple Kidnapping
By its guilty verdict on the charge of aggravated kidnapping, the jury necessarily found the elements of the lesser included offense of simple kidnapping were proven by the prosecution. On appeal, we consider whether the issues that Kinkade raises to challenge the aggravated kidnapping conviction have some bearing on a reduced conviction for the lesser included offense of simple kidnapping.
Every person who forcibly or by fear steals, takes, holds, detains or arrests a person and carries him or her to another part of the same county is guilty of simple kidnapping. (§ 207, subd. (a).) The offense of simple kidnapping contains three elements—unlawful movement of a person by physical force or fear, movement without the person’s consent, and movement for a substantial distance. (People v. Jones (2003) 108 Cal.App.4th 455, 462.) Kinkade’s use of a knife and Jane Doe’s resulting fear for herself and her child are undisputed. Thus, the only simple kidnapping issues that may be drawn from Kinkade’s challenge to his aggravated kidnapping conviction are whether Jane Doe’s movement was without her consent and whether the movement took place over a sufficient distance to constitute asportation.
Kinkade discusses these issues in a manner that segments the incident into discrete parts. However, kidnapping is a continuing offense. A single abduction followed by a continuous period of detention cannot be divided into separate acts resulting in multiple kidnapping convictions. (People v. Jackson (1998) 66 Cal.App.4th 182, 189-190; People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335; see 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 246, pp. 854-855.) Thus, we analyze the entire incident to determine if there was evidence from which a reasonable jury could find asportation for purposes of simple kidnapping.
Kinkade suggests that Jane Doe’s movements were not taken under compulsion. He argues that when he placed a knife to Jane Doe’s neck, there was no evidence that he intended to move her. He suggests that she chose to move, and notes that she chose which path to take. We disagree. At trial, Jane Doe testified that he asked to go to a place where he might find something to steal and that she told him that she was leading him there. At the locked gate, Kinkade told her to move to a location behind a tree, but Jane Doe did not go there. Instead, she moved her child to the top of a hill, while Kinkade held fast to the baby stroller every step of the way. Jane Doe left her child atop the hill and went down the hill in compliance with Kinkade’s command to go to the place where she was sexually assaulted, because she feared for her child’s safety. During the sexual assault, Kinkade dragged her by the hair across a drainage ditch and committed another sex offense. This evidence would allow a reasonable jury to infer that Jane Doe’s movement was compelled, not voluntary.
The fact that Jane Doe initially chose which path to take through the park does not negate this inference. She testified that once she and her child were in danger, she chose the less isolated of several paths through the park, in order to reduce that danger and increase the possibility of rescue. This evidence allowed the jury to infer that Jane Doe did not choose the path she did of her own free will, but in reaction to Kinkade, who she hoped would thus be less likely to assault, injure or kill herself or her child. Substantial evidence supports the jury’s inherent finding that Jane Doe’s movement was made without her consent.
There was also sufficient evidence to support the jury’s inherent finding that Jane Doe’s movement was substantial. Some asportation is required for simple kidnapping. The victim must be moved a distance that is “substantial in character” to constitute asportation for purposes of simple kidnapping. A slight or trivial movement is not sufficient. (People v. Martinez, supra, 20 Cal.4th at p. 233; see People v. Morgan (2007) 42 Cal.4th 593, 605.) The trier of fact may consider the totality of the circumstances, including distance, the scope and nature of the movement, the increased risk of harm, and other contextual factors when determining whether substantial movement occurred sufficient to prove asportation. (People v. Martinez, supra, 20 Cal.4th at pp. 236-237.)
During the course of the kidnapping, Jane Doe moved herself and her child from the place where Kinkade first confronted her with his knife, along a path, up to the locked gate, and up a hill. She then left her child and moved back down the hill at Kinkade’s express order. This last movement increased the risk of harm to Jane Doe, as it put her in a less visible location, making it less likely that the sexual offenses would be observed. Clearly, there was sufficient evidence of movement to support a finding of asportation for purposes of simple kidnapping.
There was substantial and clear evidence to support a finding that Kinkade was guilty of simple kidnapping. Thus, we find that the proper remedy for the trial court’s erroneous failure to give a lesser included offense jury instruction on simple kidnapping is to reduce the aggravated kidnapping conviction to one for simple kidnapping.
IV. DEADLY WEAPON FINDINGS
Kinkade also asserts that there is insufficient evidence to support the findings that he was armed with and personally used a deadly weapon during the commission of the kidnapping. (See §§ 667.61, 1203, subd. (e)(1), 12022, subd. (b)(1).) He reasons that once he threw his knife over the fence and walked 150 feet away from it, he was not armed and did not use a weapon within the meaning of the deadly weapon use enhancement. Based on the finding that Kinkade was armed, the trial court found him ineligible for probation. (§ 1203, subd. (e)(1).) It also imposed and struck a one-year enhancement for use of a deadly weapon during the commission of this offense. (§ 12022, subd. (b)(1).) On appeal, Kinkade asks us to strike these findings for insufficiency of evidence. (See, e.g., People v. Jackson (1995) 32 Cal.App.4th 411, 423.)
Kinkade also asks us to strike the section 667.61 finding purportedly making him eligible for a 15-year-to-life term for aggravated kidnapping. As we find that section 667.61 does not apply to this case for other reasons, we need not address that aspect of his sufficiency of evidence claim of error. (See pt. V.B.2., post.)
This sufficiency of evidence argument is intertwined with the question of when Kinkade formed the intent to commit sexual offenses for purposes of aggravated kidnapping. That timing issue no longer concerns us, as we have reduced his aggravated kidnapping conviction to one for simple kidnapping. (See, e.g., People v. Bailey, supra, 38 Cal.App.3d at p. 699.) Clearly, Jane Doe’s testimony that Kinkade put a knife to her throat at the onset of the kidnapping constitutes substantial evidence supporting the arming and use findings. Thus, we uphold the implied findings that Kinkade was armed with and personally used a deadly weapon during the commission of the reduced offense.
V. SENTENCING
A. Remand for Resentencing
The trial court imposed an indeterminate life term for aggravated kidnapping and determinate, concurrent terms for the robbery and the sexual offenses. Instead, Kinkade should have been sentenced for simple kidnapping—a determinate offense punishable by a term of three, five or eight years in state prison—and for the other offenses. (§§ 207, subd. (a), 208, subd. (a).) The sentence for simple kidnapping is less than that for the completed sexual offenses, each of which is punishable by a term of three, six or eight years in prison. (§§ 261, subd. (a)(2), 264, 288a, subd. (c)(2), 289, subd. (a)(1).) Faced with the correct array of sentencing choices for Kinkade’s multiple offenses, the trial court may have imposed different sentences for the sexual offenses and the robbery. In these circumstances, a simple reduction of the kidnapping sentence on appeal would be inappropriate, as that would interfere with the trial court’s exclusive discretion to determine an appropriate sentence for that offense, considered in the context of Kinkade’s other offenses. (See, e.g., People v. Green (1956) 47 Cal.2d 209, 235-236; see also 6 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Appeal, § 168, p. 415.) Thus, we remand the entire matter for resentencing.
We acknowledge that the sentencing record is confused. The sentence orally pronounced on the aggravated kidnapping was for a life term. The clerk’s minutes and the abstract of judgment reflects a 15-year-to-life term. If there is a conflict between the sentence orally pronounced by the court and that clerically recorded in the written abstract of judgment, the oral pronouncement of judgment prevails. (See People v. Mesa (1975) 14 Cal.3d 466, 471-472.)
B. Challenges to Original Sentence
1. Multiple Punishment
In his appeal, Kinkade challenged the sentence imposed by the trial court. As he will be sentenced anew, we offer this brief guidance for the benefit of the trial court on resentencing. First, Kinkade contends that the concurrent sentences for the six sexual offenses should not have been imposed, but should have been stayed to avoid multiple punishment. An act that is made punishable in different ways by different provisions of the Penal Code may be punished under either provision, but not both. (§ 654, subd. (a); Neal v. State of California (1960) 55 Cal.2d 11, 18.) When a defendant is convicted of kidnapping and sexual offenses, if the defendant had only a single intent, then he cannot be punished for both the kidnapping and the sexual offenses. (See People v. Latimer (1993) 5 Cal.4th 1203, 1216-1217; People v. Jackson, supra, 32 Cal.App.4th at pp. 417-418; see also People v. Lewis, supra, 43 Cal.4th at p. 519 [robbery].) If the trial court concludes that Kinkade had only one intent during the kidnapping, then it may sentence him for the kidnapping or the sexual offenses, but not all of them. If the trial court finds that Kinkade had multiple purposes for the simple kidnapping, it should make that finding on the record at resentencing, to avoid further challenge on multiple punishment grounds.
Kinkade also challenged the imposition and stay of a 15-year-to-life sentence for kidnapping pursuant to section 667.61, arguing that such a term was unauthorized by law. As the People concede, he is correct. Section 667.61 sets out a 15-year-to-life sentence for a person convicted of certain specified sexual offenses, if a qualifying circumstance such as kidnapping or deadly weapon use is pled and proven. (§ 667.61, subds. (b)-(c), (e)(1), (4), (j).) By imposing and staying a section 667.61 term after imposing a life term pursuant to section 209, the trial court appears to have viewed the section 667.61 term as an enhancement of the basic term for aggravated kidnapping. The California Supreme Court has held otherwise, deeming section 667.61 to be an “alternative, harsher sentencing scheme” for those crimes that fall within its ambit. (People v. Mancebo (2002) 27 Cal.4th 735, 738, 741.)
In fact, Kinkade cannot be sentenced to a section 667.61 term for kidnapping, because kidnapping is not one of the specified offenses set out in that provision. Only a person convicted of specified sexual offenses qualifies for sentencing under section 667.61. (§ 667.61, subd. (a); see People v. Mancebo, supra, 27 Cal.4th at pp. 738, 741-742.) The allegation in the first amended information and the jury’s finding that this allegation was proven was without effect. As such, it may not enter into the trial court’s consideration of an appropriate sentence on remand.
Nor can Kinkade be sentenced to such a term for the specified sexual offenses of which he was convicted. For these offenses, the allegations of deadly weapon use were found to be untrue. The amended information failed to give Kinkade notice that he might be exposed to a section 667.61 term based on the qualifying circumstance of kidnapping, such that this cannot form a basis for the alternative sentencing, either. (§ 667.61, subds. (b), (c)(1), (5), (7), (e)(1), (4), (j); see People v. Mancebo, supra, 27 Cal.4th at pp. 744, 749, 754.) On remand, no section 667.61 sentence can be lawfully imposed.
VI. REMITTITUR
The aggravated kidnapping conviction is reversed and reduced to one for simple kidnapping. The matter is remanded to the trial court for resentencing on all counts.
We concur: Ruvolo, P.J.Rivera, J.