California Court of Appeal Aug 31, 2020 No. E071218Published
Filed 8/31/20 CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071218
v. (Super.Ct.No. SWF1807006)
MARK JASON HARTLAND, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge.
Affirmed and remanded with directions.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Randall D.
Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exceptions of parts B. and C. of the DISCUSSION.
1
A jury convicted Mark Jason Hartland of one count each of kidnapping, assault by
means likely to produce great bodily injury, and domestic violence resulting in a
felony (§ 667, subd. (a).) Hartland was sentenced to 21 years in state prison.
Relying on People v. Oliver (1961) 55 Cal.2d 761, 765 (Oliver) and In re
Michele D. (2002) 29 Cal.4th 600 (Michele D.), Hartland argues that the trial court
prejudicially erred by failing to instruct the jury that if the kidnapping victim was so
intoxicated as to lack the capacity to consent, then Hartland could not be found guilty of
kidnapping unless he acted with illegal purpose or illegal intent. In the published portion
of our opinion, we reject Hartland’s argument because we decline to extend the doctrine
of Oliver and Michele D. to the kidnapping of an intoxicated, resisting, adult victim.
In the unpublished portion of our opinion, we address issues concerning
sentencing and custody credits. We remand for the trial court to exercise its newly
gained discretion to dismiss or strike the prior serious felony conviction. We also order
the correction of clerical errors in the abstract of judgment and the sentencing minute
order. We otherwise affirm the judgment.
1 Unlabeled statutory references are to the Penal Code.
2
BACKGROUND
A. New Year’s Eve 2017—Incident with A.S.
Hartland and A.S. started dating in 2016 and had a six-month-old son together by
December 2017. Early in the afternoon on December 31, 2017, the couple and their son
went to spend New Year’s Eve at the home of their friends, Breanna M. and Chris V.
Between approximately 3:00 p.m. and midnight, A.S. drank four to six bottles of hard
cider. 2 Hartland drank beer throughout the day and had started drinking before A.S.
picked him up.
Shortly before midnight, Hartland and A.S. got into an argument about a post on
social media. Hartland threw his phone. A.S. went to check on the baby, grabbed her
wallet and her phone, and left the house. She told Hartland that she was leaving “to go
get an Uber” and that she would see him the next morning. She “just wanted to get
away” and did not want the argument to “escalate,” as had happened in the past. She
wanted to take her son with her but worried that doing so would result in a “bigger
argument” between herself and Hartland. She was worried that Hartland was going to
follow her because she had “tried to leave before and he ha[d]n’t let [her] leave.”
A.S. walked for 15 minutes to a liquor store parking lot a couple of blocks away.
She did not think that she could safely drive. She “could feel the effects of the alcohol”
and was “buzzed” but was not “wasted.” Breanna described A.S. as being “drunk,” based
on A.S. acting “louder,” “more obnoxious,” and “more bubbly” than the few other times
2 Breanna testified that she also saw A.S. drink more than one glass of sangria. A.S. denied drinking any wine that day.
3
that they had been around each other. A.S. was familiar with the area in which Breanna
and Chris lived and considered it unsafe.
Hartland followed A.S. in her car. He pulled into the liquor store parking lot and
yelled at her to get into the car. A.S. refused, saying, “No, I’m not going. I’m not
going.” Hartland insisted and got out of the car. A.S. screamed for help. Hartland
grabbed her and tried to push her toward the car. She screamed, “I don’t want to go. I
want to go home,” “at the top of [her] lungs.” She flailed her arms and attempted to drop
to the ground. Hartland was behind her, picked her up, and dragged her to the car.
Another car pulled up and someone exited that car. Hartland lifted A.S. up and threw her
into the car. He ran around to the driver’s side and drove away. A.S. was afraid and
thought that she might die.
When in the car, A.S. continued to scream for Hartland to let her go. Hartland told
her to shut up. Hartland grabbed A.S. by the throat and began choking her while he
continued driving. He held her by the neck so that she was hunched over into his lap.
A.S. felt like she could not breathe, and she feared for her life. At some point A.S.
opened the passenger door to jump out of the moving car. She thought it would be better
to suffer an injury from “jumping out of the car than get strangled by him.”
Hartland grabbed A.S. to prevent her from jumping out. He threw her against the
passenger side door, and her head hit the window. Hartland stopped the car and used one
hand to grab A.S. by the neck again. A.S. could not breathe. He held onto her neck for
approximately five seconds.
4
A.S. exited the car shortly after Hartland let go of her neck. Hartland exited too
and blocked A.S. from walking away by shoving her with his chest and not allowing her
to step around him. This lasted for approximately five to 10 minutes, but she eventually
was able to walk back to Breanna and Chris’s house. She saw both of them and told
them that Hartland had hit her.
When Hartland got back to the house, Chris went outside to talk to him, and A.S.
could hear Hartland and Chris yelling at each other. Hartland came upstairs to talk to
A.S., but she did not want to speak to him. Hartland took the baby, so A.S. left the house
again, walked down the street, and called 911.
A sheriff’s deputy arrived at approximately 1:00 a.m. and spoke with A.S. A.S.
had a bruise on her neck, a scratch on her face, and redness on her neck, her collarbone,
the right side of her face, and her jaw. The sheriff’s deputy could tell that A.S. “had been
drinking” but did not think that she was “heavily intoxicated.” She spoke coherently
without slurring her words, was not swaying side to side, and did not have a “strong
odor[]” of alcohol. The deputy also interviewed Breanna. Breanna told him that A.S.
was welcome to spend the night at her house even though A.S. was “probably sober
enough to drive.”
B. Hartland’s Admitted Prior Violence Against A.S. and Other Women
Hartland admitted that he had physically assaulted A.S. on multiple occasions.
A.S. described two of those incidents, one in 2016 and one in September 2017. On both
occasions, Hartland had been drinking. During the September 2017 incident, Hartland
5
grabbed A.S., took her phone, pulled her hair, tackled her to the ground, scratched or hit
her, and bit her. A.S. attempted to get away from him, but Hartland would not let her
leave the house.
Three women whom Hartland had dated between 2009 and 2016 testified. Each of
them recounted multiple incidents of Hartland physically assaulting them. Hartland
admitted that he had assaulted all of these women. The parties stipulated that he was
convicted of misdemeanor battery against a girlfriend in 2015. He also admitted that he
had a greater propensity for acting violently toward his girlfriends when he was drinking.
C. Hartland’s Testimony
Hartland testified that although he was too intoxicated to drive safely on the night
in question, he drove around looking for A.S. because Breanna and Chris told him that it
was not safe for her to be walking around that neighborhood. (Both Breanna and Chris
testified that they did tell Hartland that.) When Hartland found A.S. in the parking lot,
A.S. started screaming profanities at him. He got out of the car, placed his hand on her
back, and guided her toward the car while the two argued. When they were within six
feet of the car, A.S. “start[ed] freaking out.” She jerked back, hit Hartland, flailed
around, and threw herself onto the ground. Hartland picked up A.S. by her waist, opened
the car door, and pushed her into the car. A.S. was screaming at Hartland, telling him to
let her go and that she did not want to go back to Breanna and Chris’s house. According
to Hartland, he placed A.S. in the car against her wishes because “[i]t was not safe for her
to be out there.”
6
While driving back to the house, Hartland and A.S. continued to argue. A.S.
started crying and threatened to kill herself. She opened the car door and tried to jump
out. Hartland grabbed her by the hair and pulled her back inside the car. They were
travelling at approximately 20 miles per hour.
Hartland pulled A.S. onto his lap and held her down by her neck because the car
door remained open. Hartland closed the door and parked two or three houses down the
street from Breanna and Chris’s house. He turned off the engine, and they remained in
the car arguing. Hartland called A.S. a “bitch,” and she hit him in the face. Hartland
grabbed her by the neck and held her down in his lap. He then lifted her up by her neck
and threw her off of him. A.S. hit the passenger side window.
After Hartland and A.S. both exited the car, A.S. attempted to run up the street
while screaming and yelling. Hartland blocked her from running up the street for
approximately 20 minutes until Breanna and Chris came outside. Hartland eventually
followed A.S. inside and tried to talk to her, but she refused. A.S. stormed out of the
house again, and Hartland did not follow her.
Hartland spoke with a sheriff’s deputy that morning. Hartland told the deputy that
his friends had told him to go to bed; he did not say that they had told him to go after
A.S. because of the unsafe neighborhood. Hartland told the deputy that he had gently
escorted A.S. to the car without using any force. He also told the deputy that A.S. had hit
him and that he may have hit her in response to “try[] to push her off.”
7
DISCUSSION
A. Kidnapping Instruction
For the kidnapping offense, the trial court instructed the jury with CALCRIM No.
1215, which, as given to the jury, provided that the prosecution had to prove the
following elements: (1) “The defendant took, held, or detained another person by using
force or by instilling reasonable fear;” (2) “Using that force or fear, the defendant moved
the other person or made the other person move a substantial distance;” (3) “The other
person did not consent to the movement;” and (4) “The defendant did not actually and
reasonably believe that the other person consented to the movement.” On appeal,
Hartland contends that the trial court prejudicially erred by not also instructing the jury
that if A.S. lacked capacity to consent because she was intoxicated, then Hartland could
not be found guilty of kidnapping unless he acted with illegal purpose or illegal motive.
We conclude that Hartland’s contention lacks merit. 3
A trial court is obligated to “instruct on general principles of law relevant to the
issues raised by the evidence and necessary for the jury’s understanding of the case.”
(People v. Martinez (2010) 47 Cal.4th 911, 953.) Whether the jury was properly
instructed on the elements of an offense is a mixed question of fact and law that is
3 Hartland did not object to the kidnapping instruction that was given or request that it be modified in any way. We reject the People’s argument that Hartland consequently forfeited these arguments on appeal. Hartland claims that his substantial rights were affected by the instruction because it allowed a guilty finding without considering what he contends are necessary elements of the offense in the circumstances presented here. As Hartland correctly points out, the “claim therefore is not of the type that must be preserved by objection.” (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.)
8
predominantly legal and therefore subject to de novo review. (People v. Cole (2004) 33
Cal.4th 1158, 1208.) ‘“[A] trial judge must only give those instructions which are
supported by substantial evidence,’ and ‘has the authority to refuse requested instructions
on a defense theory for which there is no supporting evidence.’” (People v. Larsen
(2012) 205 Cal.App.4th 810, 823.)
In general, “to prove the crime of kidnapping, the prosecution must prove three
elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the
movement was without the person’s consent; and (3) the movement of the person was for
a substantial distance.” (People v. Jones (2003) 108 Cal.App.4th 455, 462 (Jones);
§ 207, subd. (a).) In People v. Oliver (1961) 55 Cal.2d 761, 765 (Oliver), however, the
Supreme Court recognized that the consent requirement for kidnapping “presents special
problems when the victim is an infant too young to give or withhold consent.” (People v.
Hill (2000) 23 Cal.4th 853, 855 (Hill); Oliver, supra, at p. 768.) “Many situations readily
suggest themselves under which a minor, unable to give his [or her] consent because of
his [or her] immature years, might be forcibly taken and transported by an adult for a
good or innocuous purpose, and in which it would be unthinkable that the adult should be
held guilty of kidnapping.” (Oliver, at p. 765.) To avoid such a result, the Supreme
Court in Oliver held that a person could be guilty of kidnapping a person “who by reason
of immaturity or mental condition is unable to give his [or her] legal consent thereto”
“only if the taking and carrying away is done for an illegal purpose or with an illegal
9
intent.” (Id. at p. 768; Hill, supra, at p. 855.) Oliver involved the kidnapping of a two-
year old child. (Oliver, at p. 763.)
More recently, in In re Michele D. (2002) 29 Cal.4th 600, 603 (Michele D.), a case
involving the kidnapping of a 12-month-old child, the Supreme Court reaffirmed the
holding in Oliver, supra, 55 Cal.2d 761 and recognized “that infants and young children
are [also] in a different position vis-a-vis the force requirement for kidnapping than those
who can apprehend the force being used against them and resist it.” (Id. at p. 610.) The
Court concluded that “the amount of force required to kidnap an unresisting infant or
child is simply the amount of physical force required to take and carry the child away a
substantial distance for an illegal purpose or with an illegal intent.” (Ibid.)
In 2003, the Legislature added subdivision (e) to section 207 to incorporate the
holding of Michele D. (Stats. 2003, ch. 23, § 1; § 207, subd. (e) [“For purposes of those
types of kidnapping requiring force, the amount of force required to kidnap an unresisting
infant or child is the amount of physical force required to take and carry the child away a
substantial distance for an illegal purpose or with an illegal intent”].) CALCRIM No.
1201 likewise incorporates the distinct requirements of force and consent for kidnapping
cases involving “a child/ [or] a person with a mental impairment who was not capable of
giving legal consent to the movement” as set forth in Oliver and Michele D., including
that “[t]he defendant used (physical force/deception) to take and carry away an
unresisting (child/ [or] person with a mental impairment).” (CALCRIM No. 1201.)
10
Hartland contends that Oliver and Michele D. stand for the proposition that
whenever there is sufficient evidence “to raise a reasonable doubt as to the victim’s legal
capacity to consent and substantial evidence of the defendant’s innocent intent, the
question must be presented to the jury subject to the beyond a reasonable doubt
standard.” He further contends that there is a reasonable doubt as to the victim’s capacity
whenever the victim’s judgment was “impaired by intoxication,” as shown in this case by
the facts that A.S. had been drinking and that she went out walking alone, late at night, in
a dangerous neighborhood. Given those facts and Hartland’s testimony that he was
merely trying to help A.S. by removing her from the danger of the liquor store parking lot
and bringing her to the safety of their friends’ home, Hartland argues that the jury should
have determined whether he harbored the necessary illegal purpose or illegal intent under
Oliver and Michele D.
We reject Hartland’s argument because there is no authority for the proposition
that the Oliver/Michele D. requirement of illegal purpose or illegal intent applies to the
kidnapping of an intoxicated, resisting, adult victim. Oliver involved an unresisting two-
year-old child. (Oliver, supra, 55 Cal.2d at p. 763.) Michele D. involved an unresisting
12-month-old child. (Michele D., supra, 29 Cal.4th at p. 603.) We are aware of only one
published decision that applies the Oliver/Michele D. doctrine to the kidnapping of an
adult victim, and in that case the victim was unresisting, completely incapacitated by
intoxication, and only intermittently conscious. (People v. Daniels (2009) 176
1201 likewise apply only to an unresisting child or an unresisting mentally impaired
person.
At oral argument, Hartland’s counsel contended that we are reading Oliver too
narrowly, because dicta in Oliver addresses the kidnapping of adult victims who lack the
capacity to consent. We are not persuaded. It is true that the Supreme Court in Oliver
discussed some hypotheticals involving adult victims even though the case before the
Court involved a two-year-old child. For example, the opinion states that if a good
Samaritan “forcibly carr[ies] a helplessly intoxicated man lying in the middle of the
highway to a place of greater safety” or “forcibly take[s] a delirious man or one who is
unconscious to a hospital or to a doctor,” then the good Samaritan would not be guilty of
kidnapping, because “evil and unlawful purpose” would be lacking. (Oliver, supra, 55
Cal.2d at p. 766.) But those hypotheticals are distinguishable on two grounds. First, they
do not involve victims who are resisting. The victims are described as “helplessly
intoxicated,” “delirious,” or “unconscious,” but never as resisting. (Ibid.) Second, the
victims in the Supreme Court’s hypotheticals are incapacitated to a degree that goes far
beyond lack of capacity to consent—again, they are “helplessly intoxicated,” “delirious,”
or “unconscious.” (Ibid.) For both of those reasons, the hypotheticals do not cast doubt
on our conclusion that Oliver’s holding should not be extended to intoxicated, resisting,
adult victims.
In support of his position, Hartland also cites People v. Giardino (2000) 82
Cal.App.4th 454 (Giardino) concerning rape of an intoxicated person. We agree that
12
both Giardino and the analogy with rape are instructive, but they do not aid Hartland. As
Giardino explains, in a rape case “the consent defense fails if the victim either did not
actually consent or lacked the capacity to give legally cognizable consent.” (Id. at
p. 460.) Thus, for example, if a rape victim actively resists, then the victim does not
actually consent, and that is sufficient to prove the element of lack of consent. In those
circumstances, it is no defense to claim that the victim was so intoxicated as to lack the
capacity to give or withhold consent, so the victim’s withholding consent was legally
invalid in the same way that a victim’s giving actual consent may be legally invalid if the
victim is so intoxicated as to lack capacity. In short, “No” means no, even if the victim is
intoxicated. The perpetrator does not get to decide that the victim’s overt withholding of
consent is of no consequence because of the victim’s intoxication.
Analogous reasoning applies to the kidnapping of a resisting adult victim. The
resistance means the victim does not actually consent to being transported, and that is
sufficient to prove the element of lack of consent. It is no defense to claim that the victim
was so intoxicated that the withholding of consent was legally invalid and that the
perpetrator acted with innocent intent.
At oral argument, Hartland’s counsel took issue with our reliance on the resistance
of the victim, arguing that the Oliver/Michele D. doctrine should apply to forcible
transportation of resisting adults in certain exigent circumstances. For example, a good
Samaritan who drags a mother out of a burning building when the mother resists because
she believes her child is trapped inside should not, on Hartland’s counsel’s argument, be
13
guilty of kidnapping. We find the argument unpersuasive because the intuitive force of
such hypotheticals involving exigent circumstances has nothing to do with consent or
lack of capacity. Rather, the argument for exonerating the good Samaritans in such
hypotheticals would be based on the affirmative defense of necessity. (See People v.
Pepper (1996) 41 Cal.App.4th 1029, 1035 [stating the elements of the necessity
defense].) Our conclusion that the Oliver/Michele D. doctrine does not apply to
intoxicated, resisting, adult victims does not affect the availability of the necessity
defense, and the availability of that defense does not undermine our conclusion about the
scope of Oliver and Michele D.
We recognize, as the Supreme Court observed in Oliver, that there are
circumstances in which a child “might be forcibly taken and transported by an adult for a
good or innocuous purpose, and in which it would be unthinkable that the adult should be
held guilty of kidnapping.” (Oliver, supra, 55 Cal.2d at p. 765.) Moreover, there are
circumstances in which the court’s observation might be true of a resisting child or even a
resisting adult. A parent who takes a resisting child to school or to the doctor is
presumably not guilty of kidnapping, and the same would presumably be true of a
conservator who takes a resisting, disabled, adult conservatee to the doctor or to adult
daycare. (Cf. Scott S. v. Superior Court (2012) 204 Cal.App.4th 326, 341.) But in those
situations, there is a preexisting and legally recognized relationship (parent/child or
conservator/conservatee) that gives certain individuals the authority to make decisions for
other individuals who lack the legal capacity to make their own. That factor is not
14
present in the case of a merely intoxicated adult who is not otherwise disabled (and hence
is not conserved).
For all of these reasons, we decline Hartland’s invitation to extend the
Oliver/Michele D. doctrine to the case of an intoxicated, resisting, adult victim. The trial
court did not err by failing to instruct the jury that if A.S. lacked the capacity to consent,
then Hartland was not guilty of kidnapping unless he acted with illegal purpose or illegal
intent.
B. Serious Felony Conviction Enhancement
Effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) amended
section 667, subdivision (a), and section 1385, subdivision (b), to allow a court to strike
or to dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch.
1013, § 2, eff. Jan. 1, 2019; People v. Zamora (2019) 35 Cal.App.5th 200, 208
(Zamora).) At the time of Hartland’s sentencing, the trial court was required to impose a
five-year enhancement for his prior serious felony conviction. (Former § 667, subd.
(a)(1).) The parties agree, and this court has already held that this change in law applies
retroactively to those like Hartland whose sentences were not final when Senate Bill No.
1393 became effective. (Zamora, supra, at p. 208; People v. Garcia (2018) 28
Cal.App.5th 961, 971-973 (Garcia).)
The People nevertheless oppose remand. They contend that resentencing is
unwarranted because “it is clear from the record that the trial court would not have
dismissed [Hartland’s] serious felony prior even if had the power to do so.” (Boldface
15
and initial capitalization omitted.) This argument is based on the trial court’s denial of
Hartland’s motion under section 1385 and People v. Superior Court (Romero) (1996) 13
Cal.4th 497 (Romero), the sentences imposed, and comments the judge made at both the
motion hearing and the sentencing hearing.
In general, “when the record shows that the trial court proceeded with sentencing
on the erroneous assumption it lacked discretion, remand is necessary so that the trial
court may have the opportunity to exercise its sentencing discretion at a new sentencing
hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228; People v. Metcalf
(1996) 47 Cal.App.4th 248, 252 [“Since the trial court affirmatively indicated, and
erroneously believed, that it had no discretion to [strike] a prior offense, we must ‘remand
the case to the trial court to permit it to resentence defendant with an accurate view of its
powers’”].) That is because “[d]efendants are entitled to sentencing decisions made in
the exercise of the ‘informed discretion’ of the sentencing court.” (People v. Belmontes
(1983) 34 Cal.3d 335, 348, fn. 8.)
However, a remand for resentencing is unnecessary “if the record shows that the
sentencing court clearly indicated that it would not, in any event, have exercised its
discretion” to reach a different result. (Romero, supra, 13 Cal.4th at p. 530, fn. 13;
Garcia, supra, 28 Cal.App.5th at p. 973, fn. 3.) “The trial court need not have
specifically stated at sentencing it would not strike the enhancement if it had the
discretion to do so. Rather, we review the trial court’s statements and sentencing
16
decisions to infer what its intent would have been.” (People v. Jones (2019) 32
Cal.App.5th 267, 273 (Jones); People v. Johnson (2019) 32 Cal.App.5th 26, 68-69.)
Here, the record does not clearly indicate that the trial court would have declined
to exercise its discretion to strike the prior serious felony conviction. Denial of a Romero
motion does not necessarily indicate how a trial court would exercise its discretion under
section 1385, subdivision (b), to strike the prior serious felony conviction for sentencing
purposes. (People v. Bell (2020) 47 Cal.App.5th 153, 200 (Bell).) In the present case,
when the trial court denied the Romero motion, it concluded after weighing numerous
factors, including the violence involved in the prior offense of first degree burglary and
the violence involved in the present offenses against A.S., that “it would be an abuse of
discretion to strike [Hartland’s] prior at this time.”
Then, in denying probation, the trial court considered aggravating factors such as
the severity of the crime and stated, “The crime involved great violence, great bodily
harm, threat of bodily harm, and other acts disposing a high degree of cruelty,
viciousness, or callousness.” The trial court also considered mitigating circumstances,
such as the role of drugs and alcohol and “ADHD” in Hartland’s life and that one of his
previous girlfriends who testified against him also wrote a character letter in support of
him for sentencing. Overall, however, the trial court found that the aggravating factors
substantially outweighed the mitigating factors. The trial court then imposed the upper
term for each of the three offenses. 4
4 The sentences for the assault and the domestic violence convictions were stayed under section 654.
17
While those decisions and statements suggest that the judge might not be inclined
to impose a shorter sentence by striking the prior serious felony conviction, we do not
find them dispositive on the issue. The trial court’s statements about aggravating factors
were made in the context of denying the Romero motion and in explaining why probation
was not appropriate. The trial court did not make any “general statement about
defendant’s aggregate term.” (Bell, supra, 47 Cal.App.5th at p. 200; cf. Jones, supra, 32
Cal.App.5th at p. 275 [remand for resentencing futile because the trial court stated that it
“took ‘great satisfaction’ in imposing the ‘very lengthy sentence’ it imposed”].)
Moreover, although the trial court imposed the longest sentence that it could and rejected
imposing a more lenient sentence, striking or dismissing the enhancement for sentencing
purposes now would leave Hartland with a 16-year sentence, which is one year longer
than if the trial court had imposed the midterm sentence for the kidnapping offense. 5
There is no clear indication in the record whether the trial court would consider that one
additional year to be a satisfactorily harsher sentence than the shorter option that it
previously rejected.
We therefore cannot say that the record clearly indicates how the trial court would
exercise its discretion to dismiss or strike the prior serious felony conviction
5 If the trial court had imposed the midterm of five years, that would have been doubled to 10 years because of the prior strike. (§§ 208, subd. (a), 667, subd. (e)(1).) Along with the then-mandatory five-year enhancement for the prior serious felony conviction, the aggregate sentence would have been 15 years.
18
enhancement for sentencing purposes. We remand so that the trial court can exercise its
newly gained discretion to dismiss or strike the serious felony enhancement.
C. Actual Custody Credits
Hartland argues and the People agree that the sentencing minute order and the
abstract of judgment must be corrected to reflect the trial court’s oral pronouncement of
Hartland’s actual custody credits. We concur. When “there is a discrepancy between the
oral pronouncement of judgment and the minute order or the abstract of judgment, the
People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) At sentencing, the trial court
awarded Hartland 243 days of actual custody credits and 36 days of conduct credits,
totaling 279 days. Neither party disputes the accuracy of this calculation. The sentencing
minute order and the abstract of judgment, however, inaccurately provide that Hartland
received 29 days of conduct credit and 272 days of total credit. The sentencing minute
order and the abstract of judgment must be amended to include the correct amount of
credit for the time that Hartland served.
DISPOSITION
The matter is remanded for the trial court to exercise its discretion under section
667, subdivision (a), and section 1385, subdivision (b), to determine whether to dismiss
or strike the serious felony conviction enhancement. The trial court is further ordered to
(1) amend the abstract of judgment and the sentencing minute order to reflect that
Hartland received 36 days of conduct credits and a total of 279 days of credit, and (2)
19
forward a copy of the amended abstract of judgment to the California Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION MENETREZ J.
We concur:
CODRINGTON Acting P. J. SLOUGH J.
20
AI Brief
AI-generated · verify before citing
Holding. The court held that the doctrine requiring proof of illegal purpose or intent for kidnapping an incapacitated person does not extend to the kidnapping of an intoxicated, resisting adult victim. It further remanded the case for the trial court to exercise its discretion regarding the dismissal of a prior serious felony conviction.
Issues
Whether the trial court erred by failing to instruct the jury that kidnapping an intoxicated adult requires proof of illegal purpose or intent.
Whether the case must be remanded for the trial court to exercise its discretion to strike a prior serious felony conviction under Senate Bill No. 1393.
Disposition. Affirmed and remanded with directions.
Quotations verified verbatim against the opinion
“we decline to extend the doctrine of Oliver and Michele D. to the kidnapping of an intoxicated, resisting, adult victim.”
“We remand for the trial court to exercise its newly gained discretion to dismiss or strike the prior serious felony conviction.”
“The trial court did not err by failing to instruct the jury that if A.S. lacked the capacity to consent, then Hartland was not guilty of kidnapping unless he acted with illegal purpose or illegal intent.”