P. v. Gutierrez
Defendant Ernesto Gutierrez was convicted by jury of simple kidnapping (Pen. Code, § 207, subd. (a)),[1] false imprisonment by violence (§§ 236, 237, subd. (a)), and dissuading a witness (§ 136.1, subd. (c)(3)). Gutierrez argues that: (1) the trial court erred by failing to instruct the jury, sua sponte, on the defenses of self-defense and necessity, and on whether Gutierrez’s movement of the victim was merely incidental to another crime; and (2) the evidence is insufficient to support his conviction of dissuading a witness. We reject these arguments. We agree with the parties that the false imprisonment conviction must be reversed, because that crime is a lesser included offense of kidnapping. We also agree with the parties that the trial court erred in sentencing, and that Gutierrez’s sentence must be corrected.
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