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Name: People v. Grayson
Case #: C030812
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/29/2000
Subsequent History: Review denied 12/13/00

While the trial court may have erred in failing to exclude, under Evidence Code section 352, a letter found among the effects of one of the defendants, neither defendant suffered any prejudice from its admission. The inference that one of the defendants wrote the letter was not inescapable, and in any event the letter suggested nothing that was not already in evidence. In sentencing appellant for both kidnaping and pandering, the trial court violated Penal Code section 654, subdivision (a). The sentence for pandering should have been stayed, and the Court of Appeal so modified the judgment. Kidnaping is not a lesser-included offense of procuring because kidnaping requires asportation and procuring, even if committed by force, does not require asportation. While false imprisonment is a lesser included offense of kidnaping, here the charges related to different acts, and appellant was properly convicted of each. Appellant Grayson’s inquiry to the trial court regarding the preserving for appeal a claim of ineffective assistance of counsel was not a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118, and the trial court had no duty to make further inquiry. The trial court did not err here in refusing to give a unanimity instruction for the kidnaping count or for the firearm use enhancement. While there may have been more than one possible act to satisfy the asportation element of kidnaping, and more than one occasion of firearm use, the prosecution here made an election as to which act it was relying on as to the kidnaping, and as to the firearm use enhancement. The trial court did not err in refusing to instruct on the offense of contributing to the delinquency of a minor as a lesser included offense of procuring. Where, as here, the evidence which would have justified a conviction on the lesser offense also justified a conviction on the greater offense, there is no duty to instruct on the lesser offense. Moreover, any error was harmless because it was not reasonably probable that appellant would have obtained a more favorable outcome had the jury been so instructed on the lesser included offense of contributing to the delinquency of a minor. Although the victim denied the events at trial, her pretrial statement to the police was sufficient to support the conviction for violating Penal Code section 266a, procuring by force or false inducement for purposes of prostitution. Defendants knowingly brought from Los Angeles to Sacramento a 14-year-old girl who they lured into their car under false pretenses and for the purposes of prostitution. The evidence in support of appellant’s conviction for bringing an explosive into the jail in violation of Penal Code section 4574, subdivision (a), was sufficient where an expert concluded there was no reason to believe the unspent ammunition appellant had secreted in her body was not explosive.