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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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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