P. v. Kuebler
Filed 4/18/06 P. v. Kuebler CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 ONE
| THE PEOPLE, Plaintiff and Respondent, v. AARON MICHAEL KUEBLER, Defendant and Appellant. | B180692 (Los Angeles County Super. Ct. No. GA 049386) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Michelle R. Rosenblatt, Judge. Affirmed in part, reversed in part, vacated in part and remanded 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, Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
_________
After a jury waiver, the trial court convicted Aaron Kuebler of two counts of lewd acts on children under 14 years old (counts 1 and 3), and found that both counts involved multiple victims, and that in count 1 Kuebler kidnapped and moved the victim, substantially increasing her risk of harm; two counts of misdemeanor false imprisonment as lesser-included crimes of violent false imprisonment (counts 5 and 6); and kidnapping of a child under 14 years old (count 7). (Pen. Code, §§ 288 subd. (a), 667.61, subds. (a), (b), (d)(2), (e)(5); 236, 237, subd. (a); 207, subd. (b); all further undesignated section references are to the Penal Code.) The court imposed a 25 years-to-life sentence mandated under the one strike violent sex crime statute (§ 667.61) on count 1, concurrent sentences on counts 3 and 6, and stayed the sentences imposed on counts 5 and 7 under section 654. The court also imposed a $10 fine pursuant to section 1465.7.
Kuebler appeals, contending that (I) the trial court erred in denying his motion to suppress his confession (Evid. Code, § 402) because the confession and implied Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436) were involuntary; (II) the count 5 false imprisonment conviction must be set aside because it is a lesser-included crime of count 7, kidnapping (the Attorney General concedes this issue); (III) the 25 years-to-life sentence constitutes cruel and unusual punishment; and (IV) the $10 fine pursuant to section 1465.7 must be vacated as ex-post-facto because that section was not enacted until after he committed the crimes (the Attorney General concedes this issue). The Attorney General also requests that we order the trial court to correct that portion of the abstract of judgment which incorrectly states that Kuebler pleaded guilty to the crimes of which he was convicted.
We reject contentions I and III. We agree with contentions II and IV and the Attorney General's request. We reverse Kuebler's count 5 false imprisonment conviction and strike the $10 fine imposed under section 1465.7. We remand the case for the trial court to (1) dismiss count 5 with prejudice, vacate the fine, and correct the abstract of judgment to reflect that Kuebler was convicted by the court and did not plead guilty; (2) prepare an amended abstract of judgment so stating; and (3) forward the amended abstract to the Department of Corrections. In all other respects, we affirm the judgment.
FACTS
All the crimes occurred at the same time and place. The victims were two then 9‑year-old girls, Katherine H. and Elizabeth A. The Information alleged 8 counts: four counts (1-4) of lewd acts on a child under 14 years old, all with allegations under the one strike law that they involved multiple victims and kidnapping which increased the girls' risk of harm, counts 1 and 2 against Katherine and counts 3 and 4 against Elizabeth; two counts (5 and 6) of violent false imprisonment, count 5 against Katherine and count 6 against Elizabeth; and two counts (7 and 8) of kidnapping a child under 14 years old, count 7 against Katherine and count 8 against Elizabeth. The trial court convicted Kuebler of counts 1, 3, and 7; acquitted him of counts 2, 4, and 8; and convicted him of misdemeanor false imprisonment as lesser-included crimes of counts 5 and 6. On counts 1 and 3, the court found that the crime involved multiple victims; on count 1, the court also found that the crime involved kidnapping which increased the risk of harm.[1]
Katherine and Elizabeth were friends. On April 13, 2002, Katherine went to Elizabeth's house to play where Elizabeth's grandfather was supervising them. About midday, the girls went to a nearby liquor store to buy candy and a newspaper for the grandfather. Elizabeth rode her bicycle and Katherine rode a scooter. They saw Kuebler outside the store before they entered. After making their purchases, as the girls left the store, Kuebler approached and offered to carry the newspaper, which Katherine handed to him. Kuebler asked if they â€
