P. v. Real

Filed 5/19/06 P. v. Real CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Cynthia Rayvis, Judge. Affirmed in part and reversed in part with directions.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, and Stacy S. Schwartz, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Jose Real challenges his kidnapping to commit rape conviction on the ground the trial court failed to instruct the jury on the elements of rape. We conclude the trial court erred, and the error requires reversal.

BACKGROUND AND PROCEDURAL HISTORY

Appellant induced his 17-year-old cousin L.E. to travel with him to purchase a cash register. He instead drove to a deserted ranch, where he tied L.E.'s wrists and ankles with a rope and demanded that she remove her clothing. She refused. Appellant untied her shirt and placed his hand on her breast. He ultimately untied her, and she demanded that he take her home. He finally agreed to do so, but instead drove around for an hour before returning to the ranch. He dragged her from the car, poked her with a large machete to force her to walk toward a building, and dragged her into some bushes. L.E. screamed and kicked appellant. She ran back to the car and demanded that appellant take her home. After she agreed to lie to her parents about what had happened, he drove her home, where he was arrested.

A jury convicted appellant of kidnapping to commit rape, sexual battery by restraint, and assault with a deadly weapon. The court sentenced appellant to prison for life, plus three years.

DISCUSSION

Appellant was charged with kidnapping to commit rape. (Pen. Code, § 209, subd. (b)(1).) The trial court instructed the jury with CALJIC No. 9.54, which does not set forth the elements of rape. No other instruction given to the jury defined rape. During deliberations, the jury asked the court to define â€