Magana

*1119 Opinion

Jesus Magana appeals from the judgment entered following a jury trial in which he was convicted of kidnapping (Pen. Code, § 207, subd. (a)), false imprisonment (Pen. Code, § 236) and two counts of forcible rape (Pen. Code, § 261, subd. (2)) for which the victim was kidnapped (Pen. Code, §§ 207, 667.8, subd. (a)). 1 He was sentenced to the three-year middle term for false imprisonment, and consecutive eight-year upper terms for each of the forcible rapes, with a three-year enhancement for kidnapping for purpose of rape for a total term of twenty-two years. A five-year middle term for kidnapping was stayed pursuant to Penal Code section 654. He was given credit for 191 days of actual custody plus 96 days of conduct credits, for a total of 287 days’ credit. He contends: “I. The false imprisonment conviction must be stricken as an improper double conviction since false imprisonment is a lesser included offense of kidnapping .... II. In the event the false imprisonment conviction is not stricken, sentence must be stayed under Penal Code section 654 .... III. The evidence was insufficient to support a conviction of kidnapping .... IV. The court erred in finding that the…

Concurring and Dissenting.— I respectfully dissent from that portion of the majority opinion that reverses and dismisses defendant’s conviction for felony false imprisonment. I concur in the remainder of the opinion.

*1122 Defendant’s contention that he may not be convicted of false imprisonment because it is a necessarily included offense of kidnapping and the Attorney General’s concession in that regard are without merit. 1 The kidnapping and the felony false imprisonment were separate acts which, under the unique set of facts present in this case, constituted distinct crimes. The felony false imprisonment was not an offense included within the kidnapping. Penal Code section 20 states, “In every crime or public offense there must exist a union, or joint operation of act and intent . . . .” In the present case, there is no doubt defendant intended to falsely imprison Maria N.; he tied her to the tree. Rather, the issue is whether separate acts occurred so as to give rise to liability to false imprisonment.

Substantial evidence supports the implied finding of the jurors that defendant committed a felony false imprisonment separate and apart from the kidnapping. An act is…

Jesus Magana appeals from the judgment entered following a jury trial in which he was convicted of kidnapping (Pen. Code, § 207, subd. (a)), false imprisonment (Pen. Code, § 236) and two counts of forcible rape (Pen. Code, § 261, subd. (2)) for which the victim was kidnapped (Pen. Code, §§ 207, 667.8, subd. (a)). [1] He was sentenced to the three-year middle term for false imprisonment, and consecutive eight-year upper terms for each of the forcible rapes, with a three-year enhancement for kidnapping for purpose of rape for a total term of twenty-two years. A five-year middle term for kidnapping was stayed pursuant to Penal Code section 654. He was given credit for 191 days of actual custody plus 96 days of conduct credits, for a total of 287 days' credit. He contends: "I. The false imprisonment conviction must be stricken as an improper double conviction since false imprisonment is a lesser included offense of kidnapping.... II. In the event the false imprisonment conviction is not stricken, sentence must be stayed under Penal Code section 654.... III. The evidence was insufficient to support a conviction of kidnapping.... IV. The court erred in finding that…