Castro

Defendant Rodolfo Castro was convicted of felony false imprisonment (Pen. Code, § 236) 1 as well as child molestation (§ 647.6, subd. (a)). He appeals his conviction for felony false imprisonment on the ground that there was insufficient evidence at trial to support the conviction. In the alternative, he contends the trial court erred in failing to instruct, sua *139 sponte, on the lesser included offense of misdemeanor false imprisonment. We agree the court erred in failing to provide an instruction on misdemeanor false imprisonment, a point conceded by respondent, and we cannot conclude the error was harmless. Accordingly, we reverse and remand.

FACTS

During the week of October 13, 2003, around 6:50 a.m., then 16-year-old Diana N. was walking to a bus stop on her way to high school. She noticed that a white van was being driven slowly near her. The driver, whom Diana identified in court as appellant, called out to her, “Hey, hey,” but Diana ignored him.

On October 21, as Diana was walking to her bus stop, appellant slowly drove by in a burgundy car. He kept asking Diana, “Hey, hey, do you want a ride? Do you want a ride?” Diana tried to ignore appellant, but…

I fully concur in the opinion. Because of the unusual circumstances in this case, I write separately only to state my view of the options on remand.

The conviction for lewd conduct (Pen. Code, § 647.6, subd. (a)) on count 2 is unaffected by our holding. As to count 1, the prosecution may request that the court reinstate the conviction of the lesser related offense of battery (Pen. Code, § 242), and the court may then resentence on that conviction in count 1 and the lewd conduct conviction on count 2.

On the other hand, the prosecution may seek to retry appellant on the charge of felony false imprisonment in count 1. In that event, resentencing on counts 1 and 2 would await the outcome of the trial on the felony false imprisonment charge. Because the jury in the instant trial acquitted appellant of attempted kidnapping on count 1, he is not subject to retrial on that charge.

Because assault (Pen. Code, § 241) is a lesser included offense of battery, the conviction of assault on count 1 should remain dismissed, as defendant can only be sentenced on the greater offense of battery.

Defendant Rodolfo Castro was convicted of felony false imprisonment (Pen.Code, § 236) [1] as well as child molestation (§ 647.6, subd. (a)). He appeals his conviction for felony false imprisonment on the ground that there was insufficient evidence at trial to support the conviction. In the alternative, he contends the trial court erred in failing to instruct, sua sponte, on the lesser included offense of misdemeanor false imprisonment. We agree the court erred in failing to provide an instruction on misdemeanor false imprisonment, a point conceded by respondent, and we cannot conclude the error was harmless. Accordingly, we reverse and remand.

During the week of October 13, 2003, around 6:50 a.m., then 16-year-old Diana N. was walking to a bus stop on her way to high school. She noticed that a white van was being driven slowly near her. The driver, whom Diana identified in court as appellant, called out to her, "Hey, hey," but Diana ignored him.

On October 21, as Diana was walking to her bus stop, appellant slowly drove by in a burgundy car. He kept asking Diana, "Hey, hey, do you want a ride? Do you want a ride?" Diana tried to ignore appellant, but eventually…