Filed 1/19/16 P. v. Gracia CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B259584
                                                                           (Super. Ct. No. VA122592)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

GILBERT ANTHONY GRACIA,

     Defendant and Appellant.



                   Gilbert Anthony Gracia was being kidnapped by Anthony Sanchez over a
drug transaction. Sanchez's cousin, Roger, overheard the ruckus and came to his aid.
Gracia shot and killed Roger. Gracia appeals from his conviction by jury of first degree
murder (Pen. Code,1 §§ 187, subd. (a), 189). He contends that the trial court erred in
failing to instruct the jury on the lesser included offenses of second degree murder and
voluntary manslaughter. Appellant was also convicted of possession of a firearm by a
former felon (§ 12021, subd. (a)(1)); kidnapping to commit robbery (§ 209, subd. (b)(1));
kidnapping (§ 207, subd. (a)); and two assaults with a firearm (§ 245, subd. (a)(2)). The
jury found true firearm allegations (§ 12022.53, subds. (b), (c), (d)), and special
circumstance allegations that the murder was committed during the commission of a

1
    All statutory references are to the Penal Code unless otherwise stated.
kidnapping (§§ 190.2, subd. (a)(17)(B), 207) and a robbery (§§ 190.2, subd. (a)(17)(A),
211)). The trial court sentenced appellant to life in prison without the possibility of
parole, plus 38 years. Appellant also contends that the court erred by imposing a parole
revocation fine, and that his kidnapping conviction must be reversed because it is a lesser
included offense of kidnapping to commit robbery. Respondent correctly concedes the
latter contention. We reverse the kidnapping conviction and otherwise affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
              Appellant and Richard Martinez gave Michael Leon several hundred dollars
to buy methamphetamine from Jose Antonio (Tony) Sanchez.2 Leon gave Sanchez the
money but Sanchez kept it, claiming that Leon owed him money from an earlier drug
deal. Leon returned empty-handed and reported what had happened.
              A week later, appellant, Martinez and three others went to a house where
Sanchez was visiting his cousin Roger Sanchez (Roger) and other relatives. They waited
in a nearby alley until Sanchez came out. Martinez and appellant confronted Sanchez
and asked for their money. Sanchez said he was keeping the money because Leon owed
it to him. Appellant took out a gun and said, "Let me make this easier for you." He
placed the gun against Sanchez's temple and tried to shove him into a car. Hearing the
commotion, Roger yelled something to the effect that "that" was not going to happen.
Appellant turned and fatally shot Roger.
              After shooting Roger, appellant turned back to Sanchez. He placed his arm
around Sanchez's neck and put him in a car, while pointing a gun at him. Martinez sat in
the back seat of the car. He and appellant told Sanchez to empty his pockets. Sanchez
complied and gave appellant about $80-$100. They took Sanchez to his house, where he
obtained more money and some "dope," which he gave to appellant and Martinez. They
put Sanchez back in the car, drove around for a while, then dropped him off on a street
corner.
                                       DISCUSSION
2
 The prosecution charged Richard Martinez with voluntary manslaughter. He pled guilty
and testified for the prosecution.

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                           Lesser Included Offense Instructions
              Appellant contends that the trial court erred by denying his request for jury
instructions on second degree murder and voluntary manslaughter as lesser included
offenses of first degree murder. We disagree.
              A trial court has a duty to instruct on the general principles of law closely
and openly connected with the facts before the court, and which are necessary for the
jury's understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
An accusatory pleading gives notice to the defendant that the prosecution intends to
prove all the elements of any lesser necessarily included offense of the charged offense
and that the defendant must be prepared to defend against such offenses. (People v. Birks
(1998) 19 Cal.4th 108, 118.) Accordingly, due process requires a trial court to instruct
the jury on lesser necessarily included offenses when there is a question whether all
elements of the charged offense are present, provided there is substantial evidence
justifying conviction of a lesser included offense. (People v. Gray (2005) 37 Cal.4th 168,
219.)
              Second degree murder and voluntary manslaughter are lesser included
offenses of first degree malicious murder. (People v. Taylor (2010) 48 Cal.4th 574, 623.)
The element of malice required for murder will be implied when the killing results from
an intentional act that is dangerous to life and the killer knows that his conduct endangers
the life of another and acts with conscious disregard for life. (Id. at pp. 623, 624.) But
malice is not required for first degree felony murder. Second degree murder and
voluntary manslaughter are not recognized as lesser included offenses of first degree
felony murder. (People v. Cavitt (2004) 33 Cal.4th 187, 197, 205; see also Taylor, supra,
at p. 623.)
              In arguing that the trial court erred by denying his request for lesser
included offense instructions, appellant stresses that the information included allegations
of murder with malice as well as felony murder. Despite those allegations, the court was
not required to give the requested instructions because there was not substantial evidence
justifying a conviction of a lesser offense. "Where the evidence points indisputably to a

                                              3
killing committed in the perpetration of one of the felonies section 189 lists, the only
guilty verdict a jury may return is first degree murder. [Citations.] Under these
circumstances, a trial court 'is justified in withdrawing' the question of degree 'from the
jury' and instructing it that the defendant is either not guilty, or is guilty of first degree
murder." (People v. Mendoza (2000) 23 Cal.4th 896, 908-909.)
               The evidence established that appellant shot Roger during the commission
of a robbery and a kidnapping. Appellant demanded money from Sanchez. Sanchez
refused his demand, and appellant responded by putting a gun to Sanchez's temple, and
attempting to put him in a car. When Roger tried to assist Sanchez, appellant fatally shot
Roger in the chest and resumed his attack on Sanchez. Because the elements of felony
murder and the special circumstance coincide, the true findings as to the robbery and
kidnapping special circumstances establish that the jury would have convicted appellant
of first degree murder under a felony murder theory, regardless of whether more
extensive instructions were given on second degree murder and voluntary manslaughter.
(People v. Castaneda (2011) 51 Cal.4th 1292, 1328.)
                                    Parole Revocation Fine
               Citing People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1186,
appellant contends that the trial court erred by imposing a section 1202.45 parole
revocation fine. We disagree.
               The court cannot impose a parole revocation fine where a defendant's
sentence does not include a determinate term of imprisonment under section 1170.
(People v. Oganesyan, supra, 70 Cal.App.4th at pp. 1181-1186.) A court may, however,
impose a parole revocation fine where a defendant's aggregate sentence also includes a
determinate term. (People v Brasure (2008) 42 Cal.4th 1037, 1075. In Brasure, our
supreme court upheld the imposition of a section 1202.45 parole revocation fine upon a
defendant who received a determinate term sentence in addition to a death sentence. As
the Brasure court observed, section 3000, subdivision (a)(1) requires that determinate
terms include a period of parole, even where a defendant is unlikely to serve any part of
the parole period. A determinate sentence also includes "a suspended [section 1202.45]

                                                4
parole revocation restitution fine." (Id. at p. 1075.) Appellant's sentence includes a
determinate term of 13 years for his count 7 assault with a deadly weapon conviction,
which could later involve a term of parole (§ 3000, subd. (a)(1)) and a parole revocation
fine (§ 1202.45). Consequently, the trial court properly imposed and suspended a parole
revocation fine. (Brasure, supra, at p. 1075.)
                                    Simple Kidnapping
              Appellant asserts and respondent concedes that appellant's simple
kidnapping conviction (count 5) must be reversed because it is a necessarily included
offense of his conviction of kidnapping for robbery (count 4). We agree. Multiple
convictions may not be based on necessarily included offenses arising out of a single act
or course of conduct. (People v. Reed (2006) 38 Cal.4th 1224, 1226, 1231.) When a
defendant is convicted of an offense and a necessarily included lesser offense, the remedy
is to reverse the conviction of the lesser included offense. (People v. Moran (1970) 1
Cal.3d 755, 763.) We so direct.
                                      DISPOSITION
              The simple kidnapping charged in count 5 is reversed. In all other respects,
the judgment is affirmed.
              NOT TO BE PUBLISHED.


                                          PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                             5
                             John A. Torribio, Judge

                      Superior Court County of Los Angeles
                      ______________________________


             Lynda A. Romero, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General,
and Stephanie A. Miyoshi and Stacy S. Schwartz, Deputy Attorneys General, for
Plaintiff and Respondent.
