People v. Ayala CA2/5

Filed 2/26/13 P. v. Ayala CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B233612

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA065579) v.

JOSE A. AYALA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael Jesic, Judge. Affirmed as modified. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback II and Mark E. Weber, Deputy Attorneys General, for Plaintiff and Respondent. _______________

Appellant Jose Ayala was convicted, following a jury trial, of one count of false imprisonment by violence in violation of Penal Code section 236,1 one count of kidnapping in violation of section 207, two counts of assault with a firearm in violation of section 245, subdivision (a)(2), one count of making criminal threats in violation of section 422 and one count of kidnapping for ransom in violation of section 209, subdivision (a). The jury found true the allegations that a principal was armed with a firearm in the commission of the false imprisonment, criminal threats and kidnapping offenses within the meaning of section 12022, subdivision (a)(1). The trial court stayed sentence on the false imprisonment and section 207 kidnapping pursuant to section 654. The court imposed a term of life in prison with the possibility of parole for the kidnapping for ransom conviction. The trial court imposed a determinate term of five years in state prison, consisting of the mid-term of three years for the first assault conviction, plus one year (one-third the midterm) for the second assault conviction, plus one year (one-third the midterm plus one-third of the firearm enhancement term) for the criminal threats conviction. Appellant appeals from the judgment of conviction, contending that the trial court erred in failing to stay sentence on the criminal threats and two assault convictions pursuant to section 654. He further contends that his conviction for false imprisonment must be stricken, as it is a lesser included offense of kidnapping. Respondent contends that the restitution fine shown in the abstract of judgment should be corrected to reflect the amount imposed by the trial court at sentencing. We agree that one of the assault convictions must be stayed pursuant to section 654 and the conviction for false imprisonment by violence stricken. We also agree that the amount of the restitution fine should be stricken. We affirm the judgment of conviction in all other respects.