Filed 8/18/26 P. v. Ellison CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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.
******
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.
2
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 third-
strike 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
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