People v. Martinez CA2/3

BACKGROUND

1. The charges and verdict. The information charged appellant with kidnapping to commit rape (§ 209, subd. (b)(1); count 1), simple kidnapping (§ 207, subd. (a); count 2), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count 3), second degree robbery (§ 211; count 4), sexual battery by restraint (§ 243.4, subd. (a); count 5) and assault to commit a felony, violations of rape, sodomy, oral copulation “and a violation of sections 264.1, 288 and 289” (§ 220, subd. (a)(1); count 6). At the close of the evidence, the trial court instructed the jury as to the above offenses, as well as to lesser included offenses of imprisonment by violence or menace, false imprisonment without violence or duress, battery and assault. The trial court instructed the jury that simple theft or larceny was a lesser included offense of robbery (CALCRIM No. 1800, concerning petty theft within the meaning of section 484, subdivision (a)). The jury returned a verdict of guilty as to only one offense, the robbery.

1 All further statutory references are to the Penal Code unless otherwise specified.

2 2. The trial evidence. We view the evidence in the light most favorable to the…