People v. Ellison CA2/5

Opinion

Filed 8/18/26 P. v. Ellison CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B340742

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA497180)

v.

WESLEY MALIK ELLISON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Deborah S. Brazil, Judge. Affirmed in part; reversed in part.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jason Tran, Supervising Deputy

Attorney General, and Megan M. Moine, Deputy Attorney General, for Plaintiff and Respondent.

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A jury convicted Wesley Malik Ellison (defendant) of kidnapping, attempted kidnapping and false imprisonment for the same conduct. Defendant argues that he cannot stand convicted of all three offenses, and the People initially conceded error. We accept the People’s concession as to the false imprisonment count but reject it as to the attempted kidnapping count. Accordingly, we vacate defendant’s false imprisonment conviction, affirm his attempted kidnapping conviction, and order the sentence of the attempted kidnapping sentence stayed under Penal Code section 654.1 FACTUAL AND PROCEDURAL BACKGROUND I. Facts In early 2021, defendant had intimate relationships with three women—Melissa O., Sydney B., and Lacey.

A. Kidnapping of Sydney B. (April 2021) On April 13, 2021, defendant was at his home with Sydney B. After becoming angry and frustrated, defendant punched a wall and knocked over several bathroom shelves. When Sydney started to pack her belongings to escape his tantrum, defendant grabbed her backpack, emptied its contents onto the floor, threw some of her belongings outside, forcefully closed the door, and prevented her from leaving. Defendant then began punching Sydney—on her legs and thighs, her abdomen and her arms, with such force that he bruised her liver.

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

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B. Kidnapping of Melissa O. (May 2021) Around 10:00 p.m. on May 14, 2021, Melissa stopped by defendant’s residence to retrieve her belongings, and defendant accused her of causing problems in his relationships with Sydney and Lacey. As Melissa and defendant quarreled inside, Lacey spray painted defendant’s car as it was parked outside.

Upon learning of Lacey’s vandalism, defendant took Melissa’s phone and car keys, grabbed her by the arm, and forced her into her car. Defendant then spent the next hour driving around—first to his cousin’s house, then to Lacey’s house, then back to the cousin’s house, and ultimately back to his house. Throughout the drives, defendant screamed and slapped Melissa whenever she asked what was happening. He retrieved a gun from his cousin’s house during his first visit there, and then kept the gun on his lap as he drove.

Once back at defendant’s house, he dragged Melissa back into the house and demanded that she “find a way” to pay for what Lacey did to his car. When Melissa said she did not have any money, defendant took her jewelry (three rings, two gold anklets, a necklace, a bracelet and earrings) as a “form of payment.” When defendant threatened to “shoot” her, Melissa started calling friends and family for money. Melissa’s father eventually agreed to pay, and defendant ordered Melissa to have her father deliver the money to Sydney’s house. Melissa then secretly texted her father with her actual location. After defendant received confirmation from Sydney that Melissa’s father had delivered the money, defendant refused to let Melissa go and punched and bit her. When she tried to flee, defendant pulled her to the ground and she hit her head on the floor and lost consciousness.

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When Melissa woke up, defendant started to pull her towards his car. Melissa’s father drove by and got out to confront defendant. Defendant then fled. II. Procedural Background In the operative amended information, the People charged defendant with (1) the kidnapping of Melissa on the night of May 14 (Pen. Code, § 207, subd. (a)); (2) inflicting corporal injury on Melissa, as a person in a prior dating relationship (§ 273.5, subd. (a)); (3) robbery of Melissa (§ 211); (4) false imprisonment of Melissa (§ 236); (5) attempted kidnapping of Melissa (§§ 664, 207, subd. (a)); and (6) inflicting corporal injury on Sydney with whom he had a current dating relationship (§ 273.5, subd. (a)).2 The People further alleged that defendant’s 2016 and 2019 convictions for burglary (§ 459) constituted “strikes” within the meaning of our State’s Three Strikes Law (§§ 1170.12, subds. (a)- (d), 667, subds. (b)-(j)).

At trial, the People clarified that the kidnapping count covered defendant’s conduct during the initial hours when defendant transported Melissa against her will to several locations in her car, and that the attempted kidnapping count covered defendant’s conduct in trying to transport Melissa against her will at the “very end where [Melissa’s] dad ends up finding them.”

A jury convicted defendant of the above-recounted charges.

Defendant then admitted the strike allegations and the

2 Defendant was also charged with extortion (§ 518), and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The People dismissed the extortion count pursuant to section 1382, and the jury acquitted defendant of the firearm possession charge.

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aggravating factor allegation that he had served a prior prison term. (Cal. Rules of Court, rule 4.421(b)(3).)

The trial court imposed a prison sentence of 25 years to life, plus five years and eight months, calculated as follows:

-- On the kidnapping count, the court imposed a thirdstrike sentence of 25 years to life;

-- On the inflicting corporal injury count on Melissa, the court imposed a consecutive four-year sentence;

-- On the false imprisonment count, the court imposed a consecutive eight-month sentence; and -- On the inflicting corporal injury count on Sydney, the court imposed a consecutive one-year sentence. The court imposed concurrent sentences of two years and six months for the attempted kidnapping count, and three years on the robbery count.

Defendant filed this timely appeal.

DISCUSSION

Defendant contends that (1) his conviction for the attempted kidnapping must be reversed because the completed kidnapping conviction covers the same conduct; and (2) his conviction for false imprisonment must be reversed because it is a lesser-included offense of the completed kidnapping crime of which he was convicted. We review de novo these legal questions of whether convictions merge. (People v. Chun (2009) 45 Cal.4th 1172.) I. Attempted Kidnapping Conviction Defendant is correct that the crime of kidnapping is a continuing offense that begins once the victim is forcibly moved and continues “until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of

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temporary safety.” (People v. Barnett (1998) 17 Cal.4th 1044, 1159; People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335.) Thus, defendant could not stand convicted of two counts of kidnapping based on the uninterrupted, seven-hour period where Melissa remained under defendant’s control.

But defendant stands convicted of kidnapping and attempted kidnapping. As our Supreme Court recently held in People v. Fontenot (2019) 8 Cal.5th 57, 76, attempted kidnapping is no longer viewed as a lesser-included offense to the completed crime of kidnapping because the former requires proof of specific intent and the latter requires proof of asportation. As a result, the rule that merges a completed crime with its lesser-included offense (see, e.g., People v. Medina (2007) 41 Cal.4th 685, 702) does not apply to the crimes of kidnapping and attempted kidnapping, and defendant is properly convicted of both crimes— but cannot be sentenced on both crimes under section 654 given the uninterrupted kidnapping in this case (Pen. Code, § 954; People v. Sanders (2012) 55 Cal.4th 731, 736; accord, CALCRIM No. 460 [“The defendant may be guilty of attempt even if [the jury] conclude[s] that Kidnapping was actually completed”]; see also Pen. Code, § 663).

Defendant resists this conclusion in the supplemental briefing we requested on this issue, urging that the “unit of prosecution doctrine” “support[s] a conviction for only one count of kidnap[p]ing.” To be sure, courts must determine “‘[t]he proper unit of prosecution’” for each crime based on whether “‘“the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once.”’” (People v. Wilson (2015) 234 Cal.App.4th 193, 199.) This doctrine explains why there could only be a single count of kidnapping, but does not account for the

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fact that attempted kidnapping and completed kidnapping are separate crimes, and that it is possible for defendant to stand convicted of both crimes. Defendant also argues that it makes no sense for a defendant to “suffer greater penal consequences [for being convicted of attempted kidnapping and kidnapping] than the person who was convicted of two kidnap[p]ings based on a single period of continuous control over the victim.” We agree that the result here seems counterintuitive, but it is dictated by the holding of Fontenot; what is more, section 654 precludes the imposition of an additional sentence for the attempted kidnapping count.

We consequently reject defendant’s argument (and the People’s initial concession) that we must vacate the attempted kidnapping conviction; instead, we affirm the conviction but order that the attendant sentence be stayed pursuant to section 654. II. False Imprisonment Conviction Unlike attempted kidnapping, the crime of false imprisonment is a lesser included offense of kidnapping. (People v. Delacerda (2015) 236 Cal.App.4th 282, 296; People v. Chacon (1995) 37 Cal.App.4th 52, 65.) As a result, the lesser-included crime merges upon conviction of the greater offense, and defendant’s false imprisonment conviction based on the same underlying conduct must be vacated. (See People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820 [“[i]f both the false imprisonment count and kidnap[p]ing count relate to the same act, double conviction . . . is prohibited”]; see also People v. Jandres (2014) 226 Cal.App.4th 340, 362 [“a defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act”].) Therefore, the conviction for false imprisonment must be

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vacated. (See People v. Milward (2011) 52 Cal.4th 580, 589 [‘“[w]hen the jury expressly finds defendant guilty of both the greater and lesser offense . . . the conviction of [the greater] offense is controlling, and the conviction of the lesser offense must be reversed’”].)

DISPOSITION

Defendant’s conviction for false imprisonment (and the attendant sentence on that count) is vacated, while defendant’s conviction for attempted kidnapping is affirmed but the attendant sentence stayed pursuant to section 654. In all other respects, the judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, P. J. HOFFSTADT

We concur:

_________________________, J. BAKER

_________________________, J. MOOR