Babich

Steven John Babich was charged in the first count of an information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), in the second count with felony false imprisonment by violence (§§ 236, 237), and in the third count with battery on a person in a dating relationship with defendant (§ 243, subd. (e)). The jury convicted defendant of the crimes charged in the second and third counts, but on the first count convicted him only of the lesser included offense, simple assault (§ 240). On appeal, defendant contends his trial attorney rendered ineffective assistance in that he failed to request instructions on misdemeanor false imprisonment as a lesser included offense of the charged felony. We conclude the court should have given such instructions sua sponte, as the evidence would have supported a finding that the false imprisonment was committed without “violence, menace, fraud, or deceit.” (§ 237.) The error requires reversal of the false imprisonment conviction.

Facts

The victim, Rachel Mitchell, had dated defendant on and off for several years, living with him for part of that time. On August 26, 1990, Mitchell returned from a trip to Los Angeles taken…