People v. Ramirez CA2/3 ( 2015 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
1
All further statutory references are to the Penal Code unless otherwise specified.
2
Section 654, subdivision (a), 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.”
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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.
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