P. v. Zamudio
A jury convicted Salvador Zamudio of rape by a foreign object (count 1), forcible oral copulation (count 2), burglary (counts 3 & 6), robbery (count 4), and kidnapping (count 5). It also found true all the special allegations set forth in the information, including allegations that the sex offenses in counts 1 and 2 were committed with the use of a dangerous or deadly weapon, during the commission of a burglary, and that Zamudio kidnapped the victim. (Pen. Code, 667.61, subds. (a), (c) & (e)(1), (2) & (4); undesignated statutory references are to the Penal Code.) The court sentenced Zamudio to a term of 25 years to life plus 14 years 8 months.
On appeal, Zamudio challenges the sufficiency of the evidence to support the kidnapping conviction in count 5, the true finding of kidnapping under section 667.61, subdivision (e)(1) in counts 1 and 2, and the robbery conviction in count 4. In addition, Zamudio contends that the court erred in instructing the jury on kidnapping and by failing to stay the robbery sentence in count 4. The Attorney General agrees with Zamudio that he is entitled to one additional day of presentence custody credit.
As we explain, the court erred in instructing the jury on kidnapping and in failing to stay the robbery sentence. Accordingly, we reverse the conviction of count 5, strike the true finding of kidnapping in counts 1 and 2, strike the deadly weapon enhancement, and direct the court on remand to stay either the sentence for burglary in count 3 or robbery in count 4, and correct the abstract of judgment to add one day of presentence custody credit. Court affirm the judgment in all other respects.
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