Luna

L

Introduction

A jury convicted Jorge Luna of one count of kidnapping (Pen. Code, § 207, subd. (a) [count l]), 1 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 *464 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…