APPEAL from judgments of the Superior Court of Los Angeles County, Craig J. Mitchell, Judge. (Los Angeles County Super. Ct. No. BA369502)
The opinion of the court was delivered by: Klein, P. J.
CERTIFIED FOR PUBLICATION
Modified and, as so modified, affirmed.
Erasto Islas and Pablo Alexander Giron appeal the judgments entered following their conviction by jury of first-degree burglary with a person present and five counts of false imprisonment by violence or menace, a felony. (Pen. Code, §§ 459, 667.5, subd. (c)(21), 236, 237, subd. (b).)*fn1 The jury found each offense had been committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The trial court sentenced Islas and Giron to state prison for burglary and imposed concurrent terms on the false imprisonment counts.
Islas and Giron contend the convictions of felony false imprisonment must be reduced to misdemeanors because the evidence does not establish violence or menace. As a result, the burglary convictions, which were based on entry with the intent to commit felony false imprisonment, must be reversed or reduced to trespass. They also contend the concurrent terms imposed on the false imprisonment counts should have been stayed.
We reject the attack on the sufficiency of the evidence to support the convictions of felony false imprisonment. The evidence indicated Islas, Giron and numerous other gang members were congregating in front of an apartment building in downtown Los Angeles that was a gang "stronghold." When police officers arrived, the gang members ran into the building. Islas and Giron climbed up a ventilation shaft and entered the bathroom of a studio apartment occupied by Teresa Salado, an 11-year resident of the building, and her four daughters, ages 13 to 4 years. Islas and Giron were shirtless with their gang tattoos exposed; their heads were shaved and they wore baggy pants. One put his finger to his mouth and told Salado to hide them from the police. Giron turned off the lights in the apartment. Salado and her daughters huddled together while Islas stood and Giron sat on a couch six feet from them. When Salado said she was scared, Islas and Giron told her they were not going to harm her. After 15 minutes, police officers knocked on the door. Islas told Salado to pretend she was Giron's aunt. Giron answered the door and was pulled from the apartment by the officers. Islas was found hiding under a pile of clothes.
Although Islas and Giron used no weapons, did not touch Salado or her children and issued no express threat of harm, the evidence was sufficient to support the jury's finding the false imprisonment was effected by menace, i.e., an express or implied threat of harm. Thus, we affirm the convictions of felony false imprisonment and burglary.
However, it appears Islas and Giron are correct in asserting the terms imposed for false imprisonment must be stayed. Accordingly, the judgments are affirmed as modified to stay the terms imposed on counts 2 through 6.
FACTS AND PROCEDURAL BACKGROUND
1. The prosecution's evidence.
a. Testimony of the arresting officers.
On March 25, 2010, at approximately 1:00 a.m., Los Angeles Police Officer Mario Botello received a radio call regarding gang members in front of an apartment building at 916 Georgia Street in downtown Los Angeles near Staples Center. As Botello and his partner arrived at the location, 8 to 10 gang members ran into the building. Botello drove to the rear of the building but the fleeing gang members did not exit. Botello called for additional units, then set up a perimeter and entered the building to extract the gang members. Four individuals ran from the building and were taken into custody. Botello and his partner entered the basement and found an individual hiding in a furnace area. They next illuminated the opening of a four-by-four-foot ventilation shaft that went from the basement to the roof. The mesh cover on the shaft opening was bent aside and the officers could see the legs of four individuals in the shaft. Two females exited and were taken into custody. The other two individuals climbed upward in the shaft.
Botello obtained keys to the apartments, entered apartment 101 and found it was unoccupied. Botello noticed the bathroom window, which opened into the ventilation shaft, was missing its vent louvers. Botello looked across the shaft and saw the bathroom window of apartment 102, which also opened into the ventilation shaft, did not have a screen. Botello went to apartment 102 and knocked on the door. After a few minutes, Giron opened the door slightly. Botello could see Giron was not wearing a shirt, his shorts were dirty and he had "4" and "2" tattooed on his stomach. Botello kicked the door open and pulled Giron from the apartment with the assistance of Officer Juan Ibarra.
Botello entered the one-room apartment, which was approximately 14 feet square, and saw Teresa Salado standing against the wall in the corner of the room next to a bed on which four children were huddled with blankets over them. Salado looked at Botello with a blank stare and motioned with her head to her left. Botello looked behind the couch and saw a shirtless male Hispanic, Islas, under a pile of clothing. Islas had to be pulled from behind the couch and walked from the apartment. The bathroom window screen was lying in the bathtub.
Officer Ibarra interviewed Salado outside her apartment a few minutes after Islas and Giron were detained. Salado made no eye contact with Ibarra and was shaking with fear. Salado said that when she awoke, she turned on the light in the apartment and heard noises in the bathroom. A male Hispanic with no shirt and gang tattoos on his upper body, Giron, looked at her, put his finger to his lips and said, "don't move or say anything." She then observed a second male Hispanic with no shirt and gang tattoos on his upper body behind the first male. Giron turned the apartment lights off.
b. Testimony of Teresa Salado and her daughters.
Teresa Salado testified she had lived in apartment 102 for 11 years. The apartment has one room, a closet and a bathroom. When Salado went to bed, she left the bathroom light on. She was awakened by noises outside the building that sounded like someone running. About an hour later, Salado heard banging on the back wall of her apartment. She got out of bed and saw two "gang members," Islas and Giron, standing in her bathtub. They were wearing baggy pants and their heads were shaved. Salado immediately was afraid they might do something to her or her daughters. Salado testified Islas told her, in Spanish, to hide them from the police. Salado felt that if she ran from the apartment, Islas and Giron would attack her or her daughters. Salado's oldest daughter stood next to her and the other children huddled in a bed. Islas remained standing and Giron sat on the couch facing Salado. Each was about six feet from Salado and her daughters. Islas and Giron talked to each other in English, which Salado does not understand. Islas and Giron were in the apartment for about 15 minutes. Salado stayed by the bed with her children until the police arrived. Islas and Giron said they did not want to hurt Salado but only wanted her to hide them. Salado did not believe Islas and Giron were not going to harm her.
When the police knocked on the door, Islas told Salado to pretend she was his aunt and Giron told Salado not to open the door. Salado feared that if she opened the door, she would be harmed. After two or three minutes, Giron opened the door and police officers entered the apartment.
Islas and Giron were dirty and appeared to be scared. Neither man threatened Salado or touched her. At trial, one year after the incident, Salado testified Islas and Giron wore shirts when they entered her apartment. Salado also testified she remained in fear that Islas and Giron might harm her or her daughters if they were released.*fn2
Salado's 13-year-old daughter, Carla, testified she was awakened by people screaming outside. Her mother told her to lay on the floor to avoid bullets that might enter the window of the apartment. While on the floor, Carla heard noises in the bathroom. When her mother went to check, "two gangsters" entered the bathroom through the window. Carla feared her mother might refuse to hide the gangsters and they would shoot her or do something to her. Carla moved into her sisters' bed and held onto her mother because she was scared and nervous.
Salado's nine-year-old daughter, Bertha, testified she did not want to look at the men and was afraid they would do something bad to them ...