Lyons

Richard S. Lyons appeals from a judgment of conviction based upon a jury finding him guilty of oral copulation, sodomy, kidnapping, as well as two counts of attempted manslaughter and three counts of auto theft. (Pen. Code, §§ 288a, subd. (c); 286, subd. (c); 207, subd. (a); 664/192; Veh. Code, § 10851.) Defendant also pled guilty to being a felon with a firearm. (Pen. Code, § 12021, subd. (a).) For the reasons stated below we reverse one count of attempted manslaughter and remand the case for resentencing.

Facts

At noontime on October 27, 1990, Andrea S., a prostitute, was at 18th and Mission Streets in San Francisco waiting for a bus. A light blue van pulled up and stopped in front of her. The driver, whom Andrea identified as defendant, asked whether Andrea was working. When Andrea gave a negative response, he offered to drive her to where she was going. Andrea accepted.

Andrea entered the van and sat on the bench seat behind the driver, since there was no passenger seat in front. She engaged in some small talk for a while, then looked up and saw defendant pointing a gun at her. Andrea begged defendant to put the gun away; she promised to do anything he wanted so…