People v. Gracia CA2/6

California Court of Appeal Feb 2, 2016 No. B259584MUnpublished

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Holding. The court held that the trial court properly refused to instruct the jury on lesser included offenses of first degree murder because the evidence established felony murder, and it correctly imposed a parole revocation fine because the defendant received a determinate sentence. The court reversed the defendant's conviction for simple kidnapping as it is a lesser included offense of kidnapping to commit robbery.

Issues

Did the trial court err in refusing to instruct the jury on second degree murder and voluntary manslaughter?
Did the trial court err in imposing a parole revocation fine?
Must the conviction for simple kidnapping be reversed as a lesser included offense of kidnapping to commit robbery?

Disposition. affirmed in part and reversed in part

Quotations verified verbatim against the opinion

“Second degree murder and voluntary manslaughter are not recognized as lesser included offenses of first degree felony murder.”

“The court cannot impose a parole revocation fine where a defendant's sentence does not include a determinate term of imprisonment under section 1170.”

“Multiple convictions may not be based on necessarily included offenses arising out of a single act or course of conduct.”

Filed 2/2/16 P. v. Gracia CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B259584 (Super. Ct. No. VA122592) Plaintiff and Respondent, (Los Angeles County)

v. ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] GILBERT ANTHONY GRACIA,

Defendant and Appellant.

THE COURT: It is ordered that the opinion filed herein on Janaury 19, 2016, be modified as follows: 1. On page 1, first sentence of the first full paragraph which reads, “Gilbert Anthony Gracia was being kidnapped by Anthony Sanchez over a drug transaction” is deleted and replaced with the following sentence: “Anthony Sanchez was being kidnapped by Gilbert Anthony Gracia over a drug transaction.” [There is no change in the judgment.]

Filed 1/19/16 P. v. Gracia CA2/6 (unmodified version) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B259584 (Super. Ct. No. VA122592) Plaintiff and Respondent, (Los Angeles County)

People v. Gracia CA2/6

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

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