(Super. Ct. No. P11CRF0092)
The opinion of the court was delivered by: Duarte , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case arose out of an altercation in a psychiatric ward where defendant Beverly Jannette Johnson was a patient. She attacked facility employees Marla Moura and Debbie Herron in the men's bathroom.
A jury convicted defendant of the following crimes against Moura: sexual battery by restraint, assault by means likely to produce great bodily injury, two counts of false imprisonment by
force or menace, and battery with serious bodily injury. (Pen. Code,*fn1 §§ 243.4, subd. (a), 245, subd. (a)(1), 236, 243, subd. (d).) The jury also convicted defendant of battery and assault against Herron. (§§ 240, 242.) The trial court sentenced defendant to three years of probation, with a requirement to register pursuant to section 290.
Defendant timely appeals. She contends that: (1) one count of false imprisonment should be overturned because the confinement constituted a single course of conduct; (2) alternatively, one of the counts of felony false imprisonment should be reduced to a misdemeanor, because the evidence is insufficient to show violence or menace; and (3) the trial court erred in giving the jury a misleading and erroneous definition of "sexual abuse" for the purposes of section 243.4.
As we will explain, we agree with the first contention and disagree with the remainder. Accordingly, we shall strike one of the felony false imprisonment convictions and affirm the judgment as modified.
FACTUAL AND PROCEDURAL HISTORY
On February 20, 2011, defendant was a ward in an in-patient psychiatric facility in El Dorado County, where she had been admitted the previous day. Marla Moura, Debbie Herron and Janice Miller were on duty in the unit from 4:00 p.m. to midnight. Early in the shift, a patient told Moura that defendant was in the men's bathroom, sitting in the sink; Moura and Herron went into the bathroom to check on her. Herron asked for defendant's pants (to wash them) and asked if defendant wanted clean clothing. Defendant said yes and Herron left. Defendant gave Moura her pants, and Moura put them on the counter next to defendant and then stepped toward the door. Defendant immediately launched herself off of the counter and rushed at Moura, pushing her against the wall. Moura pushed defendant away and pushed the panic button on the waistband of her pants. It did not work.
Defendant was between the door and Moura. Defendant renewed her attack, hitting Moura in the head area before Moura could push her away again. Moura tried the panic button several more times. Defendant stepped forward, took the panic button from Moura's waistband, and tossed it under the sink. Moura tried to step around defendant, instructing her to remain in place. Defendant looked over her shoulder at the door, stepped to the side to block the exit, then advanced toward Moura. Defendant grabbed Moura's hair and reached one hand several inches down the front of Moura's pants; Moura stopped her. Defendant then pulled down Moura's sweatshirt and shirt, reached inside Moura's clothing, and grasped her left breast, twisting it painfully. Maintaining her hold on Moura's breast, defendant grabbed Moura's hair with her other hand. Moura tried to release herself by pulling on defendant's hands and repeatedly asking her to let go, but defendant did not.
Moura grabbed defendant's hair and pushed defendant backward into a bathroom stall. Defendant fell backward onto the toilet so that she was lying across it diagonally; she released Moura's breast, but her other hand was still tangled in Moura's hair. Before Moura could pull free, defendant wrapped both of her legs very tightly around one of Moura's thighs and pulled Moura's head forward into defendant's chest. Moura called to Herron, who returned to the bathroom and freed Moura's head. Defendant then grabbed Herron's hair with one hand and pulled her forward. Moura ...