Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. (Super. Ct. No. 07NF1936)
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
A jury convicted Jorge Luna of one count of kidnapping (Pen. Code, § 207, subd. (a) [count 1]),*fn1 one count of rape (§ 261, subd. (a)(2) [count 2]), and one count of aggravated assault (§ 245, subd. (a)(1) [count 3]). As to count 2, the jury found true the allegation Luna kidnapped the victim "in the commission of" rape pursuant to section 667.61, subdivisions (b) (section 667.61(b)) and (e)(1) (section 667.61(e)(1)). Based on the jury's true finding, the trial court sentenced Luna to prison for an indeterminate term of 15 years to life on count 2 pursuant to section 667.61(b). The trial court imposed a consecutive two-year term on count 3 and stayed execution of sentence on count 1 pursuant to section 654.
Luna's appeal from the judgment is limited to challenging the jury's true finding on the allegation under section 667.61(e)(1) and the resulting 15-year-to-life sentence on count 2 imposed under section 667.61(b). Luna contends that to impose the indeterminate sentence under section 667.61(b), section 667.61(e)(1) required the jury to find he kidnapped the victim with the intent to rape her, and the trial court's instruction did not require the jury to make that finding.
We disagree and affirm the judgment. We hold section 667.61(e)(1) does not require a finding the defendant kidnapped the victim with the intent to commit a sexual offense against that victim in order to impose the indeterminate, heightened sentence under section 667.61(b). The plain language of section 667.61(e)(1) requires a finding only that the defendant kidnapped the victim of the sexual offense. The legislative history and purpose of section 667.61 support our interpretation. The jury instruction given on the enhancement allegation under section 667.61(e)(1) therefore was not erroneous, and the trial court did not err by imposing an indeterminate sentence of 15 years to life under section 667.61(b).
On May 17, 2007, A.R., who was a student at Anaheim High School, told Luna over the phone that she wanted to end their two-year-long romantic relationship. He responded by telling her if she "wasn't his, then [she] was no one's." At about 7:50 a.m. on May 18, 2007, Luna appeared on the high school campus and confronted A.R. When she refused to go with him, he grabbed her by the wrist and walked away from the school with her.
Luna led A.R. off campus into an alley just past an apartment complex. There, he repeatedly hit her and told her he would throw her dead body into a nearby trash bin. Luna choked A.R., but stopped before she lost consciousness. He led her to another apartment complex and into an elevator, where he told her to choose the floor on which she wanted to die. She was unresponsive, so Luna pushed the button for the penthouse. After arriving on that floor, Luna led A.R. out of the elevator and onto a balcony.
A.R. feared Luna would push her over the balcony rail, so she apologized for ending their relationship and asked if they could try to "work things out." Assuaged, Luna asked if she would like to return to school. She said yes. He told her, "there's one thing that we're going . . . to do before I let you go back to school." He then took her into a stairway and raped her. A.R. reported the incident to the police shortly after Luna took her back to school.
SECTION 667.61(e)(1) DID NOT REQUIRE A FINDING LUNA KIDNAPPED A.R. WITH THE INTENT TO RAPE HER FOR THE TRIAL COURT TO IMPOSE THE ...