People v. Ramirez CA2/3

Filed 3/27/15 P. v. Ramirez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE THE PEOPLE, B250507

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. KA100231) v.

JOSE A. RAMIREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. Affirmed as modified.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________ Defendant and appellant, Jose A. Ramirez, appeals his conviction for attempted murder, kidnapping, false imprisonment by violence, assault with a deadly weapon, and driving without a license (Pen. Code, §§ 664, 187, 207, 236, 237, 245; Veh. Code, § 12500).1 He was sentenced to state prison for a term of eight years four months.

The judgment is affirmed as modified.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

Defendant Ramirez’s convictions stemmed from an incident that occurred the day after he broke up with his girlfriend, Reyna Duarte. On November 30, 2012, as Duarte was walking home from work, Ramirez forced her into his car and threatened to kill them both by crashing. He drove wildly at more than 100 miles per hour on the 10 freeway and then slammed his car into a guardrail without braking. Duarte survived the collision.

CONTENTION

Ramirez was improperly convicted of both kidnapping and false imprisonment by violence for the same conduct.

DISCUSSION

Ramirez contends, and the Attorney General concedes, that he was improperly convicted of both kidnapping and false imprisonment for the same conduct.

Multiple convictions may not be based on necessarily included offenses. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) “In most cases ‘this court has . . . affirmed multiple convictions for a single act or indivisible course of conduct,’ leaving it to the sentencing court to determine whether to stay execution of sentence on one or more convictions pursuant to section 654[2] in order to avoid multiple punishment for the same act. [Citation.] A defendant, however, 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. [Citation.]” (People v. Sanchez (2001) 24 Cal.4th 983, 987, disapproved on other grounds by People v. Reed (2006) 38 Cal.4th 1224, 1228.)

False imprisonment by violence (§§ 236, 237) is a lesser included offense of kidnapping. (People v. Gibbs (1970) 12 Cal.App.3d 526, 547; see also People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121; accord People v. Patrick (1981) 126 Cal.App.3d 952, 965.) Accordingly, Ramirez was improperly convicted of both kidnapping and false imprisonment.

We will vacate the conviction and sentence for count 3, false imprisonment by violence.

DISPOSITION

Ramirez’s conviction and sentence on count 3 (false imprisonment by violence) is hereby vacated. The judgment is affirmed as modified. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

KITCHING, J.

ALDRICH, J.