Diaz

I. Introduction

Defendant Jose Guadalupe Diaz was convicted by jury of sexually assaulting and attempting to rob a woman he accosted on the street and forced into a nearby park. His 80-year-to-life state prison sentence resulted from the combined effect of the so-called three strikes and one strike sentencing statutes. We remand for resentencing and otherwise affirm.

In the published portion of our opinion we interpret the meaning of the word “kidnapped” in Penal Code section 667.61, subdivision (d)(2), which is a part of the one-strike sex-offender statute. We also find sufficient evidence to support the jury’s verdict as to that form of kidnapping.

II. Procedural History

Defendant was charged and convicted in count 1 of attempted second degree robbery (Pen. Code* , §§ 664/211), in count 2 of forcible penetration by a foreign object (§ 289, subd. (a)), and in count 3 with assault with intent to commit rape (§ 220). Count 2 included one strike kidnapping allegations, both simple (§ 667.61, subds. (b) & (e)(1)) and aggravated (§ 667.61, subds. (a) & (d)(2)). Defendant’s 1990 conviction of five counts of attempted murder (§§ 664/187) was charged both as five strikes (§…