People v. Gary CA4/3

California Court of Appeal Sep 1, 2022 No. G060766Unpublished

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Holding. The court held that attempted forcible rape is a lesser included offense of kidnapping for the purpose of rape under the statutory elements test, requiring reversal of the attempted rape conviction.

Issues

Whether attempted forcible rape is a necessarily included lesser offense of kidnapping for the purpose of rape under the statutory elements test.
Whether the trial court must conduct a full resentencing upon the reversal of one of the counts of conviction.

Disposition. Reversed in part and remanded for resentencing.

Quotations verified verbatim against the opinion

“Gary contends the attempted rape conviction must be reversed because it is a lesser included offense of kidnapping for the purpose of committing rape. We agree.”

“Thus, we reverse Gary’s conviction for the lesser included offense of attempted forcible rape under the statutory elements test.”

“The attempted forcible rape conviction is reversed. On remand, the trial court is directed to conduct a new sentencing hearing and to prepare an amended abstract of judgment.”

Filed 9/1/22 P. v. Gary CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G060766

v. (Super. Ct. No. 18CF2725)

JAMES GARY, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Reversed in part and remanded for resentencing. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant James Gary grabbed a female victim off a sidewalk, forcibly dragged her to a nearby concealed location, and committed sex offenses against her. A jury convicted Gary of kidnapping for the purpose of committing rape, sexual penetration by force, attempted forcible rape, attempted forcible oral copulation, and sexual battery. The trial court imposed a total aggregate sentence of 158 years to life. Gary contends the attempted forcible rape conviction must be reversed because it is necessarily included in the crime of kidnapping for the purpose of rape. We agree. Gary also contends numerous sentencing errors, some of them due to recent 1 changes in the law. (See, e.g., Pen. Code, § 654.) Finally, Gary contends there were some errors in the abstract of judgment regarding fines and fees. We reverse the judgment in part (the attempted forcible rape conviction). This will necessitate a remand for resentencing; therefore, we need not address Gary’s remaining contentions. In all other regards, the judgment is affirmed.

People v. Gary CA4/3

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

JAMES GARY, OPINION

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