[1119]Opinion
BOREN, J. 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 two rapes were committed on separate occasions .... V. Appellant was not given full credit for time served and conduct credit . . . .”
Viewed in accordance with the usual rules on appeal (People v. Barnes (1986) 42 Cal.3d 284, 303 [228 Cal.Rptr. 228, 721 P.2d 110]), the evidence established that shortly after 8 p.m. on September 9, 1988, Maria N. was walking home from work along Anaheim Street when she heard someone shout. She ignored the shouting and continued walking. Appellant approached and asked if he could accompany her. She told him to go away and not bother her but he continued to follow her. He told her he wanted to help her and he knew the location of her destination. While she was walking very fast on Anaheim towards Figueroa, she felt something sharp like a knife in her ribs. Appellant told her if she did not keep walking he would kill her. They walked past Harbor College and he pushed her to a little embankment inside of a park. She began to scream and he put a piece of rope around her neck, hit her in the nose and told her to “shut up.” The rope was strangling her and she put the middle finger of her right hand inside of the rope so that she could breathe.
Appellant led her through the park for about 15 minutes before tying her to a tree. When he could not get her clothes off while she was tied to the tree, [1120]he untied her, threw her on the ground and ordered her to take her clothes off. She complied and, while he was raping her, she screamed and tried to push him off, scratching his back. He then turned her over, put her on her knees and inserted his finger into her anus before inserting his penis. After turning her over on her back again, he raped her a second time. He placed his penis near her mouth and she pushed it away.2
After forcing her to get dressed, appellant made her continue to walk with him through the park and held her hand. She asked him to let her go but he told her she could tell on him and he was going to kill her. While looking for a way to escape, she said she would be his sweetheart and they could continue seeing each other. They walked for about 15 minutes before she saw 2 policemen. She then grabbed him by the shirt, called him names and ran towards the police, crying. There were bruises or red marks on her neck. Appellant was arrested and the police found that he had a comb with a point in his possession.
Several days later Ms. N. returned to the park with Los Angeles Police Detective Jeffrey Christ, and identified the area of the incident, identified the rope appellant had used and showed him the path on which she was taken. The officer estimated the distance from Avalon Street and Anaheim to Figueroa as a little over a mile, the distance from Figueroa and Anaheim to the edge of the park at “L” Street as about a half-a-mile, and the distance between the parking lot area just off “L” Street and Figueroa to a marsh area in the park along foot paths around to the end of the parking lot area as 8/10 mile.
A medical examination of Ms. N. revealed raised red swollen marks on her neck and around her rib area, her third finger was swollen and red, and there were abrasions on her left knee. A vaginal examination resulted in findings consistent with what Ms. N. had reported. Ms. N. indicated to the doctor that there had been no penetration of her rectum by appellant’s finger or penis, and also answered no when asked about oral copulation of the genitals.
Appellant denied the charges against him and testified Ms. N. came out of the park and asked for money as he was walking home. He told her he did not have any. When they were near the policemen, she grabbed and pushed him.
The contention that the false imprisonment conviction must be stricken because appellant was also convicted of kidnapping is well taken. [1121]Respondent concedes that false imprisonment is a necessarily lesser included offense of kidnapping and the conviction must be vacated. (People v. Patrick (1981) 126 Cal.App.3d 952, 965 [179 Cal.Rptr. 276]; People v. Ratcliffe (1981) 124 Cal.App.3d 808, 819-821 [177 Cal.Rptr. 627].)
Appellant’s contention that there was insufficient evidence of asportation, apart from that incidental to the rape, to sustain a separate kidnapping conviction is without merit. It amounts to no more than a request for this court to reweigh the evidence and substitute its judgment for that of the jury. That is not the function of the appellate court. (People v. Barnes, supra, 42 Cal.3d at p. 303.) Although the record is not clear on the exact distance involved, it is apparent that the asportation was substantial and covered at least a half a mile to the park, with a lengthy walk into the park thereafter. Clearly, the distances involved were not trivial nor merely incidental to the rapes. (See People v. Stanworth (1974) 11 Cal.3d 588, 600-603 [114 Cal.Rptr. 250, 522 P.2d 1058]; cf. People v. Green (1980) 27 Cal.3d 1, 66-67 [164 Cal.Rptr. 1, 609 P.2d 468].)
Appellant’s contention that the trial court erred in finding that the two rapes were committed on separate occasions is without merit. (People v. Harrison (1989) 48 Cal.3d 321, 325-334 [256 Cal.Rptr. 401, 768 P.2d 1078].) From the record, it appears that there was a break in time between the two rapes. Although appellant was not convicted of the other sexual charges, it is apparent that other activity occurred in the interim and, as the court found, the “two acts of rape were definitely distinct and independent of each other.”
Appellant’s contention that he was not given full credit for actual custody and conduct is well taken. He was arrested September 9, 1988, and sentenced on April 10, 1989. The record reflects that appellant was remanded to custody after every court appearance and is entitled to 214 days of actual custody, plus 106 days of conduct credit, for a total of 320 days. (People v. Smith (1989) 211 Cal.App.3d 523, 527 [259 Cal.Rptr. 515].)
The judgment is modified by vacating the conviction for false imprisonment (count II) and to reflect credit for 214 days of actual custody, plus 106 conduct credit, for a total of 320 days’ precommitment credit, and, as modified, is affirmed.
Ashby, J., concurred.
Appellant was also charged with, but acquitted of, sexual penetration by a foreign object (Pen. Code, § 289) and sodomy by use of force (Pen. Code, § 286, subd. (c)). The jury was also unable to reach a verdict as to whether defendant was guilty of attempted forcible oral copulation, and a mistrial was declared.
Ms. N. later testified that the second rape was the last act of appellant.