(Super. Ct. No. 10F01566)
The opinion of the court was delivered by: Blease , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Charged with infliction of corporal injury on a cohabitant (count one), false imprisonment (count two), and dissuading a victim (count three), defendant was convicted of false imprisonment after the prosecution dismissed count three and the trial court declared a mistrial on count one.
Defendant argues there was insufficient evidence that the victim was restrained, or, alternatively, insufficient evidence that the restraint lasted a sufficient length of time. He further argues his conviction should be reversed because the jury was not instructed that the restraint had to last an appreciable length of time. We find no merit to these contentions and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, Tina Davis, lived with defendant after he was released on parole in 2009, and planned to marry him. On March 6, 2010, they argued, and Davis left to go to her cousin's house. She came back the following morning and apologized, but told him that she wanted to break up. She was in her bedroom. He demanded the keys to her car, but she refused. She started to walk out of the room, then realized she had left her cell phone. She went back in the room to get the phone.
Defendant tried to grab the phone from her. They started wrestling over the phone. They ended up on the bed. She had the phone behind her back. He put his hand over her mouth and nose so that she could not breathe. Davis could not tell how long he was suffocating her, but it was long enough for her to start seeing scenes flash before her. She kept looking at his eyes, which were bloodshot, and he was mad. Davis remembered thinking that her son was going to come home and find her dead.
All of a sudden, Davis's arm popped and defendant jumped up off of her, realizing he had gone too far. Davis started screaming and told him to call an ambulance. Defendant wanted to know what she would tell them, because he did not want to go to jail. She agreed to say she got in a fight with her girlfriend.
Davis suffered a broken humerus, which is the bone in the upper arm. She returned home with defendant, but she was afraid of him, so she left to live with her cousin on March 11. She called the police that day to report the incident.
The trial court sentenced defendant to a total term of 15 years 8 months. All but two years and eight months of the sentence were attributable to enhancements for prior convictions and for infliction of great bodily injury.
False imprisonment is defined by statute as "the unlawful violation of the personal liberty of another." (Pen. Code, § 236.)*fn1 It is a felony if it is "effected by violence, menace, fraud, or deceit." (§ 237, subd. (a).) The jury was instructed in this case: "To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant intentionally restrained or confined someone by ...