California Court of Appeals, Second District, Eighth Division
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA061050 Kathleen Blanchard, Judge.
[Copyrighted Material Omitted]
Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, Acting P. J.
Defendant Michael A. Newman appeals from convictions of robbery, burglary and two counts of felony false imprisonment arising out of a single incident. He contends: (1) there was insufficient evidence of the “violence” element of felony false imprisonment and (2) the trial court erred in staying sentence on only one and not both false imprisonment convictions pursuant to Penal Code section 654. The People contend the trial court erred in applying section 654 to even one of the two false imprisonment convictions. We affirm the conviction but remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The limited nature of the appellate issues makes detailed recitation of the facts unnecessary. It is sufficient to state that, viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358 [75 Cal.Rptr.3d 289, 181 P.3d 105]), the evidence established the following: The Dragon Garden is a fast food restaurant in Lancaster. About 9:00 p.m. on Sunday, October 6, 2013, defendant entered the Dragon Garden, walked up to the counter, brandished what appeared to be a firearm (but which may have been a BB gun) and demanded that the cashier give him money. Restaurant manager Jian Xiong Ren (the robbery victim named in count one) described defendant as Black, of similar build to himself but taller, wearing light colored pants, a long-sleeved dark hoodie with the hood pulled up, something like a skimask covering his head, sunglasses and gloves. After Ren gave him money from the cash register, defendant reached over the counter and grabbed more money from the till; Ren calculated the total take as $1, 223. A recording of Ren’s 911 call and a surveillance video were played for the jury.
Lourdes C. (the false imprisonment victim named in count 4), recalled that she and her son and daughter were at the counter when an armed man entered the restaurant and demanded money. When Lourdes and her daughter moved towards an exit, defendant turned towards them, pointed the gun in their direction and yelled that no one should move. He then returned his attention to the money. The daughter went back to the counter but Lourdes, fearful she would be shot, did not move throughout the incident. Lourdes and her children left the restaurant five or six minutes after defendant departed.
The son (the false imprisonment victim named in count 3) recalled he was at the counter about to order when a masked man armed with a semiautomatic entered the restaurant, stood next to him, and screamed, “Give me the money. Give me the money.” Realizing there was a robbery in progress, the son backed away from the counter. He discussed with his mother and sister the possibility of leaving. But for defendant pointing the gun at his sister and yelling, “Nobody is going anywhere, ” the son would have left the restaurant. Instead, he was too afraid.
A. Sufficient Evidence Supports the Conviction of Felony False Imprisonment
Defendant contends the convictions of felony false imprisonment by violence must be reduced to misdemeanor false imprisonment because there was insufficient evidence of violence, one of the factors that can raise false imprisonment from a misdemeanor to a felony. He argues that, although the jury verdict forms identified the crime here as false imprisonment by violence, the evidence showed at most false imprisonment by menace, not violence. The flaw in defendant’s argument is predicated on the incorrect assumption that false imprisonment by violence and false imprisonment by menace are different crimes, rather than different methods of committing the same crime.
After considering the evidence of the false imprisonment, and the instructions and verdict form provided to the jury, we conclude any defect in the verdict was inconsequential, and that substantial evidence supports defendant’s conviction of felony false imprisonment.
1. Overview of Different Means of Committing
Felony False Imprisonment
Section 236 defines misdemeanor false imprisonment as “the unlawful violation of the personal liberty of another.” It is punishable as a felony if “effected by violence, menace, fraud, or deceit." (§ 237, subd. (a).) Force is an element of both misdemeanor and felony false imprisonment, but to elevate the crime to a felony, the force used must be “greater than that reasonably necessary to effect the restraint.” (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462 [10 Cal.Rptr.2d 922].)
Section 237 lists “violence” and “menace” as two of the four methods of force that may elevate misdemeanor false imprisonment to a felony. It does not create four different felonies. (People v. Henderson (1977) 19 Cal.3d 86, 96 [137 Cal.Rptr. 1, 560 P.2d 1180], disapproved on another ground in People v. Flood (1998) 18 Cal.4th 470, 484, 490, fn. 12 [76 Cal.Rptr.2d 180, 957 P.2d 869]; see People v. Arvanites (1971) 17 Cal.App.3d 1052, 1060 [95 Cal.Rptr. 493] ["menace” and “violence” have different meanings; “menace” is not a modifier of “violence”].)
“Violence” in the statute means the exercise of physical force “greater than that reasonably necessary to effect the restraint.” (People v. Dominguez (2010) 180 Cal.App.4th 1351, 1357 [103 Cal.Rptr.3d 864]; see People v. Babich (1993) 14 Cal.App.4th 801, 807 [18 Cal.Rptr.2d 60].) "Menace” is an express or implied threat of force. (People v. Wardell (2008) 162 Cal.App.4th 1484, 1490-1491 [77 Cal.Rptr.3d 77] [the act of holding a gun throughout imprisonment of the victim clearly implied a threat to use the gun if the victim did not comply, which was sufficient to support a finding of felony false imprisonment]; Dominguez, at p. 1359.)
2. Application to the Present Case
Defendant argues that the use in the verdict form of “violence” when there was no evidence of force applied to the victims means that the conviction was for misdemeanor false imprisonment. We disagree. People v. Jackson (2014) 58 Cal.4th 724 [168 Cal.Rptr.3d 635, 319 P.3d 925], offers guidance. The defendant in that case challenged his conviction for felony murder; although he acknowledged the sufficiency of evidence to prove the murder occurred during an attempted robbery, he argued that because the verdict form referred to robbery, not attempted robbery, and there was insufficient evidence he committed a robbery, he could not be convicted of felony murder. (Id. at p. 750.) The Jackson court rejected this argument, reasoning: “The verdict form’s failure to reference an attempted commission of robbery did not serve to limit the charges against defendant. Nor did the
jury’s return of that form restrict its finding to one of a completed robbery. ‘A verdict should be read in light of the charging instrument and the plea entered by the defendant. [Citations.] . . . [T]he form of the verdict generally is immaterial, so long as the intention of the jury to convict clearly may be seen. [Citations.]’ [Citations.] As indicated, both the prosecution and the court told the jury to return the verdict form if it found true the robbery-murder special-circumstance allegation, and the court repeatedly instructed that the allegation could be found true if the prosecution proved the murder had been committed during the commission or attempted commission of a robbery. In returning the verdict form, the jury clearly manifested its intention to find true the allegation charged. That the form did not describe all of the circumstances under which the allegation could be proved is, under these circumstances, merely a technical defect that may be disregarded because ' " 'the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.' " ' [Citation.]" (Id. at pp. 750-751, italics omitted.)
We find the defect of which defendant now complains is also technical in nature.
Here, defendant was charged with felony false imprisonment of the son (count 3) and the mother (count 4) by “violence, menace, fraud and deceit” in violation of section 236. The prosecution’s theory as to Counts 3 and 4 was based on defendant’s single act of yelling “Nobody is going anywhere, ” while pointing a gun in the family’s direction during the robbery.
Pursuant to CALJIC No. 9.60, the jury was instructed: “Defendant is accused in Counts 3 and 4 of having committed the crime of false imprisonment by violence or menace, a violation of section 236 of the Penal Code. [¶] Every person who by violence or menace violates the liberty of another person by intentionally and unlawfully restraining, confining, or detaining that person and compelling that person to stay or go somewhere without his or her consent is guilty of the crime of false imprisonment by violence or menace, in violation of Penal Code section 236. [¶] ‘Violence’ means the exercise of physical force used to restrain over and above the force reasonably necessary to effect the restraint. [¶] ‘Menace’ means a threat of harm express or implied by word or act. [¶] False imprisonment does not require that there be confinement in a jail or prison. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person intentionally and unlawfully restrained, confined, or detained another person, compelling him or her to stay or go somewhere; [¶] 2. The other person did not consent
to the restraint, confinement, or detention; and [¶] 3. The restraint, confinement or detention was accomplished by violence or menace.”
Pursuant to CALJIC No. 3.30, the jury was also instructed: “In the crimes charged in Counts 3 and 4, namely, false imprisonment by violence, there must exist a union of joint operation of act or conduct and general criminal intent. General criminal intent does not require intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting ...