Filed 2/26/13 P. v. Ayala CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B233612

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. LA065579)
         v.

JOSE A. AYALA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael Jesic, Judge. Affirmed as modified.
         Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback
II and Mark E. Weber, Deputy Attorneys General, for Plaintiff and Respondent.
                                                 _______________
       Appellant Jose Ayala was convicted, following a jury trial, of one count of false
imprisonment by violence in violation of Penal Code section 236,1 one count of
kidnapping in violation of section 207, two counts of assault with a firearm in violation of
section 245, subdivision (a)(2), one count of making criminal threats in violation of
section 422 and one count of kidnapping for ransom in violation of section 209,
subdivision (a). The jury found true the allegations that a principal was armed with a
firearm in the commission of the false imprisonment, criminal threats and kidnapping
offenses within the meaning of section 12022, subdivision (a)(1).
       The trial court stayed sentence on the false imprisonment and section 207
kidnapping pursuant to section 654. The court imposed a term of life in prison with the
possibility of parole for the kidnapping for ransom conviction. The trial court imposed a
determinate term of five years in state prison, consisting of the mid-term of three years
for the first assault conviction, plus one year (one-third the midterm) for the second
assault conviction, plus one year (one-third the midterm plus one-third of the firearm
enhancement term) for the criminal threats conviction.
       Appellant appeals from the judgment of conviction, contending that the trial court
erred in failing to stay sentence on the criminal threats and two assault convictions
pursuant to section 654. He further contends that his conviction for false imprisonment
must be stricken, as it is a lesser included offense of kidnapping. Respondent contends
that the restitution fine shown in the abstract of judgment should be corrected to reflect
the amount imposed by the trial court at sentencing. We agree that one of the assault
convictions must be stayed pursuant to section 654 and the conviction for false
imprisonment by violence stricken. We also agree that the amount of the restitution fine
should be stricken. We affirm the judgment of conviction in all other respects.




       1
           All further statutory references are to the Penal Code unless otherwise indicated.

                                               2
                                            Facts
       In June 2010, 15-year-old I.P. was staying with Marina Gonzalez in an apartment
at 6859 Laurel Canyon Boulevard. I.P. was a runaway. Appellant lived a few doors
down in the same building. One day, I.P. and a friend entered appellant's apartment to
look for I.P.'s cell phone. I.P. found the phone in appellant's bedroom with the battery
removed, became angry and decided to steal various items from appellant's apartment,
including laptop computers, some video game consoles, an iPod, and a phone.
       A few days later, a man named Woody came to Gonzalez's apartment looking for
I.P. Woody and I.P. went out into the hallway. Woody asked her where the stolen items
were. When I.P. tried to go back into Gonzalez's apartment, Woody grabbed her arm.
Woody pulled out a revolver, placed it against I.P.'s ribs and he walked her, holding her
arm, down to appellant's apartment. Woody told I.P. that she was not going anywhere
"until we find our stuff." Inside appellant's apartment, appellant placed I.P. in a chair and
tied her hands behind her back. Woody kept asking I.P. where his missing items were.
       Appellant untied I.P.'s hands and told her to make a phone call to have the stolen
items returned. I.P. could not recall a number to call. Woody broke the phone in half and
appellant retied I.P.'s hands. Woody demanded that I.P. tell them where the stolen items
were and hit her on the side of her face with the hand that was holding the revolver.
Woody later gave the revolver to a third man, codefendant Douglas Castaneda.
Castaneda then pointed the revolver at I.P. and threatened to kill her if she did not tell
them where the stolen items were.
       After about 15 or 20 minutes, appellant and the other men decided to move I.P. to
a body shop that appellant owned. The shop was three or four miles from appellant's
apartment. Appellant put a blanket over I.P.'s head and walked her from his apartment to
his SUV. At the same time, Woody held a gun to I.P.'s head and threatened to shoot her
if she screamed. Appellant drove, with I.P. in the front passenger seat next to him.
Woody sat in the back.
       At the body shop, appellant and Woody chained I.P. to a chair. Castaneda arrived,
got a shotgun from the shop's bathroom, pointed the shotgun at I.P. and asked I.P. where

                                              3
the stolen items were. Castaneda also told I.P. that "if I mention this to the cops that he
was going to kill me and my whole family."
       The men eventually told I.P. they were going to let her go. They told her that if
she did not return with the stolen items in two days, or if she went to the police, they
would kill her and her family. They told her to write down the names of her family
members and their address. She had to do this twice, then Woody compared the two lists
to see if they matched. Castaneda again threatened I.P. that "he will kill my family if I
tell the cops or if anything happens to his boys . . . ."
       Appellant and Woody took I.P. to appellant's SUV, drove her a few blocks away
from the body shop, told her to get out and left her on the side of the road. I.P. flagged
down an elderly couple who gave her a ride and dropped her off near Gonzalez's
apartment building. I.P. went to the apartment, gathered her belongings and left.
       For the first few days after her abduction, I.P. did not tell anyone what had
happened because she was scared by the threats to kill her and her family. Then, I.P.
turned herself in. A day after turning herself in, I.P. reported her abduction to a mental
health counselor who called the police.
       Los Angeles Police Department officers investigated I.P.'s claims, searched
appellant's apartment and body shop and arrested appellant on July 14, 2010.
       Appellant did not present any evidence at trial. His codefendant Castaneda called
several witnesses. Castaneda was found not guilty of any of the charges against him, and
the testimony of his witnesses is not relevant to any issue on appellant's appeal, and so
that testimony is omitted.


                                          Discussion
       1. Section 654
       Appellant contends that the trial court violated section 654 when it imposed
separate sentences on the kidnapping for ransom, assaults and criminal threats
convictions. We agree in part.



                                                4
       Section 654 provides in pertinent part: "An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision." (§ 654, subd. (a).)
       "'Whether a course of criminal conduct is divisible and therefore gives rise to more
than one act within the meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.' [Citation.]" (People v.
Latimer (1993) 5 Cal.4th 1203, 1208.)
       In determining whether section 654's prohibition against double punishment
applies, courts must examine the defendant's objective in violating different provisions of
the Penal Code. (People v. Britt (2004) 32 Cal.4th 944, 952.) "[T]here must be evidence
to support the implied finding of the trial court that this defendant formed a separate
objective and intent for the several offenses for which he was sentenced." (People v.
Laster (1971) 18 Cal.App.3d 381, 394.)
       Appellant contends that there is evidence of only one intent for all of the crimes.
His intent in kidnapping I.P. was to get his property back, and the assaults and criminal
threats were made to ensure that she returned with his property after she was released to
retrieve the property. Respondent contends that there is evidence of two different
objectives. Appellant wanted to get his property back, but he also wanted to avoid
detection and conviction after I.P. was released. We agree with respondent in large part.
       Appellant received four separate sentences. He was sentenced consecutively for
kidnapping for ransom, two counts of assault with a firearm and one count of criminal
threats. One of the assault convictions must be stayed pursuant to section 654.




                                             5
       Appellant was convicted of kidnapping for ransom, reward, or extortion in
violation of section 209, subdivision (a).2 Extortion is the obtaining of property from
another, with her consent, induced by a wrongful use of force or fear. (§ 518.) Here, the
objective of appellant's kidnapping for ransom or extortion was to get his property back
from the kidnap victim, I.P. The first assault, using a revolver in the apartment, was
accompanied only by demands that the victim return the property, and can only be
viewed as having the objective of getting appellant's property back. The assault was in
apparent response to the victim's refusal to tell appellant where his property was or to call
someone and tell them to bring the property back and was clearly designed to get the
victim to return the property. It was not a gratuitous act of violence but was part of the
extortion. (Compare People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191 [§ 654 did
not apply when robber shot victim after victim gave up valuables and was lying on floor]
and cases cited therein; see also People v. Cardenas (1982) 31 Cal.3d 897 [§ 654 did not
apply when robber shot one victim in the back for no apparent reason while another
victim opened safe].)
       The extortion, in turn, was the object of the kidnapping. A violation of section
209 occurs when a person kidnaps "another person by any means whatsoever with intent
to hold or detain, or who holds or detains, that person for ransom, reward or to commit
extortion." (§ 209, subd. (a).) As such, the assault cannot be punished separately. (See
People v. McKinzie (2012) 54 Cal.4th 1302 [carjacking and kidnapping for robbery could
not be punished separately when prosecutor argued that taking the victim's car was the
object of the robbery]; People v. Lewis (2008) 43 Cal.4th 415 [kidnappings for robbery
and robberies of the kidnap victims could not be punished separately when the crimes
were committed with the single objective of robbing the victims of their cars and or cash
from their bank accounts].)


       2
        Appellant was also convicted of simple kidnapping in violation of section 207.
Simple kidnapping carries a sentence of three, five or eight years in state prison. (§ 208.)
Sentence on the simple kidnapping conviction was stayed in favor of kidnapping for
ransom conviction which carries a life sentence and so it is not at issue.

                                              6
       The second assault, involving a shotgun at the body shop, was made concurrently
with threats to kill the victim and her family if the victim contacted police and thus had
the additional objective of avoiding detection. Since there was a separate objective for
this assault, it may be sentenced separately.
       Criminal threats to the victim were also made at the body shop and also had the
additional intent of avoiding detection. Many of the criminal threats were made after the
men decided to let the victim go and after the victim used the bathroom. I.P.'s testimony
about events after she returned from the bathroom focused on the men's verbal threats.3
These threats were designed, at least in part, to force her to write down her name and
address and her family's name. As the prosecutor argued, the kidnappers viewed this
writing as "insurance" for the future. This, the criminal threats had a different and an
additional objective than the assault with the shotgun. Further, the two acts can be
viewed as divided by the men's decision to end the kidnapping. Thus, the two acts were
not part of an indivisible course of conduct and could be sentenced separately. (See
People v. Trotter (1992) 7 Cal.App.4th 363, 366-368 [three shots fired at pursuing officer
with intent to deter pursuit could be punished separately under section 654].)


       2. False imprisonment
       The trial court stayed sentence on the false imprisonment by violence conviction
pursuant to section 654. Appellant contends that false imprisonment is a lesser included
offense of kidnapping, and that both convictions cannot stand. He contends that such
double conviction violates his right to due process. Respondent contends that appellant
has forfeited this claim by failing to raise it in the trial court. We agree that the
conviction for false imprisonment should be stricken. We see no forfeiture.
       As the California Supreme Court has explained: "[T]his court has long held that
multiple convictions may not be based on necessarily included offenses. [Citations.] We


       3
        The victim's testimony about events prior to the bathroom break focused on the
shotgun.

                                                7
recently affirmed this policy in People v. Cole (1982) 31 Cal.3d 568, in which the
defendant was convicted of robbery and grand theft for the same act. We held the grand
theft conviction must be reversed 'because it is a lesser necessarily included offense of
the crime of robbery.' [Citation.]" (People v. Pearson (1986) 42 Cal.3d 351, 355.)
       This Court long ago found that false imprisonment is a lesser included offense of
kidnapping. (People v. Apo (1972) 25 Cal.App.3d 790, 796.) Thus, as our colleagues in
the First District Court of Appeal recognized, "[i]f both the false imprisonment count and
kidnaping count relate to the same act, double conviction as well as double punishment is
prohibited." (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 819-820.)
       Here, the false imprisonment charge and the kidnapping charge were based on the
same act.4 Accordingly, the false imprisonment conviction must be stricken.
       Respondent bases its forfeiture argument on the dissent to a case decided by this
Court more than twenty years ago. (People v. Magana (1991) 230 Cal.App.3d 1117,
1122, fn. 1 [conc. & dis. opn. of Turner, P. J.].) The majority opinion is Magana had
remained good law for over 20 years. We decline respondent's invitation to overrule it
and adopt the position of the dissent. We do not find respondent's other citations, to a
family law case and a civil case, to be persuasive.


       3. Restitution fine
       Respondent contends that the abstract of judgment should be corrected to reflect
the amount imposed by the trial court at the sentencing hearing. We agree.
       "The oral pronouncement of judgment controls over any discrepancy with the
minutes or the abstract of judgment. [Citations.]" (People v. Sharret (2011) 191
Cal.App.4th 859, 864.) The trial court imposed a restitution fine of $200 at the
sentencing hearing. The minute order and abstract of judgment show a fine of $100.



       4
        The prosecutor even argued that if the jury convicted appellant of kidnapping or
kidnapping for ransom, then "by default" or "automatically," appellant was guilty of false
imprisonment.

                                             8
                                        Disposition
       The conviction for false imprisonment by violence (count 1) is stricken. Sentence
is stayed on the count 3 assault with a firearm conviction pursuant to section 654.
Sentence on the count 4 assault conviction is now the midterm of three years. Appellant's
determinate sentence is now four years in state prison. The $100 restitution shown in the
abstract of judgment is ordered corrected to $200 to reflect the amount of the fine
imposed by the trial court at sentencing. The judgment of conviction is affirmed in all
other respects. The clerk of the superior court is directed to prepare an amended abstract
of judgment reflecting these changes and corrections and to deliver a copy to the
Department of Corrections and Rehabilitation.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                 ARMSTRONG, Acting P. J.


We concur:



              MOSK, J.



              KRIEGLER, J.




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