Filed 1/27/16 In re W.E. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re W.E., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E063193
Plaintiff and Respondent,
(Super.Ct.No. J257039)
v.
OPINION
W.E.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Barbara A.
Buchholz, Judge. Reversed in part; affirmed in part.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C.
Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
1
An amended juvenile petition was filed alleging that appellant and defendant W.E.
(minor) committed the crime of kidnapping (Pen. Code, § 207, subd. (a), count 1)1, false
imprisonment (§ 236, count 2), assault with intent to commit a felony (§ 220,
subd. (a)(2), count 3), attempted forcible rape (§§ 664/261, subd. (a)(2), count 4), and
kidnapping to commit rape (§ 209, subd. (b)(1), count 5). A juvenile court found true the
allegations in counts 1, 2, 3, and 5, and dismissed count 4. The court declared minor a
ward and committed him to the Department of Juvenile Justice for a maximum term of
seven years on count 5. It also committed him to eight years on count 1, three years on
count 2, and nine years on count 3, but stayed those terms pursuant to section 654.
On appeal, minor contends that the court erred in sustaining counts 1 and 2
because kidnapping and false imprisonment are lesser included offenses of kidnapping to
commit rape. The People concede, and we agree, that the court’s true findings on counts
1 and 2 should be reversed. Otherwise, we affirm.
FACTUAL BACKGROUND
The victim was a 16-year-old high school student. One afternoon, she was
walking home from the store when she saw minor across the street. She had met him
before through her friend. He said hi to her and asked if he could walk her home. On the
walk back, minor told her they would take a shortcut. When they were walking, he
grabbed her wrist and pulled her into an abandoned house. When she tried to escape, he
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2
grabbed her by the neck and pulled her back, causing her to hit her head on the wall. The
victim then blacked out. When she woke up, she found herself on the floor with her
pants pulled down below her crotch. Minor was standing over her with both of his legs
on the outside of her legs and his pants and underwear completely off. The victim
immediately got up and pulled her pants on. Minor tried to grab her, and she kicked him
in the groin area. He fell, and she ran out of the house.
ANALYSIS
The True Findings on Counts 1 and 2 Should Be Reversed
Minor argues that the court erred in sustaining the amended petition on counts 1
and 2, since kidnapping (§ 207, subd. (a), count 1) and false imprisonment (§ 236,
count 2) are lesser included offenses of kidnapping to commit rape (§ 209, subd. (b),
count 5). The People concede, and we agree.
A defendant “cannot be convicted of both an offense and a lesser offense
necessarily included within that offense, based upon his or her commission of the
identical act.” (People v. Sanchez (2001) 24 Cal.4th 983, 987 (Sanchez); see People v.
Pearson (1986) 42 Cal.3d 351, 355 [“[M]ultiple convictions may not be based on
necessarily included offenses.”].) “An offense is necessarily included within another if
‘the statutory elements of the greater offense . . . include all the elements of the lesser
offense . . . .’” (People v. Lewis (2008) 43 Cal.4th 415, 518 (Lewis), overruled on other
grounds in People v. Black (2014) 58 Cal.4th 912, 919.)
3
Here, the amended petition alleged that minor committed the crime of kidnapping
(§ 207, subd. (a), count 1) and false imprisonment (§ 236, count 2), as well as kidnapping
to commit rape (§ 209, subd. (b)(1), count 5). The court found true the allegations on all
three counts. However, as the People concede, simple kidnapping (§ 207, subd. (a)) is a
lesser included offense of kidnapping to commit rape (§ 209, subd. (b)(1)). (See Lewis,
supra, 43 Cal.4th at p. 518.) The latter offense requires the additional element of an
intent to commit rape, an intent which must be formed before the kidnapping
commences. (CALCRIM No. 1203; see People v. Bailey (1974) 38 Cal.App.3d 693,
699.) The People also correctly concede that false imprisonment (§ 236) is a lesser
included offense of kidnapping to commit rape. (People v. Shadden (2001) 93
Cal.App.4th 164, 171 (Shadden).) We note that all of the allegations against minor
stemmed from the single incident when he pulled the victim into the abandoned house.
(See Sanchez, supra, 24 Cal.4th at p. 987.)
In sum, the record undisputedly shows that the true findings for simple kidnapping
(count 1), false imprisonment (count 2), and kidnapping to commit rape (count 5) were
all based on the same conduct. Simple kidnapping (§ 207, subd. (a)) and false
imprisonment (§ 236) are lesser included offenses of kidnapping to commit rape (§ 209,
subd. (b)(1)). (Lewis, supra, 43 Cal.4th at p. 518; Shadden, supra, 93 Cal.App.4th at
p. 171.) As such, the true findings on counts 1 and 2 must be reversed. (See Shadden, at
p. 171.)
4
DISPOSITION
The juvenile court’s findings sustaining the allegations that minor committed
kidnapping (§ 207, subd. (a), count 1) and false imprisonment (§ 236, count 2) are
reversed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.
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