Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. NA070546, Charles D. Sheldon, Judge.
Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant and Appellant.
VOGEL, Acting P.J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent.
Osvaldo Orozco was charged with one count of burglary and one count of felony false imprisonment by violence. (Pen. Code, §§ 459, 236.) He was acquitted of the burglary count but convicted of the lesser included offense of trespassing (§ 602.5) and felony false imprisonment. Probation was granted. Osvaldo appeals, (I) challenging the sufficiency of the evidence in support of the false imprisonment count and (II) contending the trial court should have sua sponte instructed the jury on the lesser included offense of misdemeanor false imprisonment and (III) according to a special instruction proposed by Osvaldo. We reject his claims of error and affirm the judgment.
All section references are to the Penal Code.
FACTS
A.
Osvaldo lived with his parents and five siblings (Leopoldo, Marco, Omar, Gladys and Eliana). A cousin, Carlos Gonzalez, lived with the family.
On May 18, 2006, at about 8:00 p.m., Eliana left the family home with her boyfriend, Omar Gonzalez. They checked into the Bestall Inn on the Pacific Coast Highway, and Eliana then sent a text message to Gladys, telling her she did not intend to return home. Gladys at first thought the message was a joke, but when her repeated calls to Eliana went unanswered, Gladys “panicked,” called Osvaldo, and told him what had happened.
At about 10:30 p.m., Gonzalez called his friend, Carlos Cazares (the victim), and asked if he and Eliana could stay with Cazares for a few days. Cazares agreed, and Gonzalez said he and Eliana would arrive at 8:30 the next morning.
At some point that night, one of Eliana’s brothers called Cazares in search of his sister and Gonzalez. Cazares, in turn, called Gonzalez and Eliana, and left a voice message telling them that Eliana’s brothers were looking for her (and mentioning the fact that Eliana and Gonzalez were planning to stay with Cazares).
B.
At about 1:00 a.m. on May 19, Osvaldo, two of his brothers (Leopoldo and Omar), and their cousin (Carlos) -- having apparently retrieved the voice mail message Cazares had left for Eliana and Gonzalez -- went to Cazares’s one-room apartment in search of Eliana. When Cazares opened the door, Osvaldo and Leopoldo pushed their way in, and Leopoldo pulled out a tazer gun, asking, “Where is my sister?” Cazares, afraid he would be tazed, invited all four men to look around, explaining that Eliana was not there. After the foursome had satisfied themselves that Eliana was not in the apartment, Cazares suggested they leave.
The foursome stayed. Leopoldo and Osvaldo walked toward Cazares, and Cazares backed up until he backed into his refrigerator. Leopoldo, still holding the tazer, told Cazares “they [were] going to stay there until 8:30 in the morning, until Omar and Eliana arrive[d].” Either Osvaldo or Leopoldo told Cazares he could not leave his apartment, and for the next 30 minutes Leopoldo and Osvaldo stood in front of Cazares, who remained standing with his back to the refrigerator. The brothers repeatedly asked for the name of the motel where Eliana and Gonzalez were staying.
At one point, Leopoldo asked, “Where is she?” and, using the tazer, stunned Cazares in his stomach. Leopoldo, “aggressive and loud,” yelled at Cazares, telling him he was going to shoot him in the kneecaps with a handgun, and that he would get the Mexican Mafia to “shoot holes into all [Cazares’s] stuff in [his] apartment.” Osvaldo threatened to punch Cazares in the face if Cazares did not “keep looking” at Osvaldo’s eyes. Omar and Carlos stood by and watched, occasionally asking where to find Eliana.
Ultimately, Osvaldo and Leopoldo moved away from Cazares, and Cazares went to his bed. The foursome insisted repeatedly that Cazares call Eliana and Gonzalez, and Cazares complied, leaving multiple messages for them to come to his apartment immediately. As instructed, Cazares did not say the four men were at his apartment. Leopoldo got angry and yelled every time Cazares said there was no answer.
After about 15 minutes, Cazares suggested that the foursome look in hotels on the Pacific Coast Highway, beginning in the Wilmington area and moving toward Manhattan Beach. After some discussion, at about 2:00 a.m. Osvaldo and Leopoldo left to search the hotels, leaving Omar and Carlos to stay with Cazares. For the next hour, Cazares, Omar, and Carlos watched television in Cazares’s apartment. At about 3:00 a.m., Leopoldo and Osvaldo called Omar and told him they had found Gonzalez. Omar and Carlos then left Cazares’s apartment.
At trial, the evidence established that Osvaldo and Leopoldo spotted Gonzalez’s car at the Bestall Inn on Pacific Coast Highway, that Leopoldo broke three windows on the car, and that Eliana and Gonzalez fled when Gonzalez saw Osvaldo and Leopoldo knocking on the doors of the motel’s rooms in search of their sister.
C.
Osvaldo was charged with burglary (count 1) and felony false imprisonment by violence (count 2). Although they are not parties to this appeal, Leopoldo and Carlos were charged with the same counts, and Leopoldo was also charged with making criminal threats (§ 422), misdemeanor battery (§§ 242, 243, subd. (b)), and vandalism (§ 594, subd. (a)).
At trial, the People presented evidence of the facts summarized above. Osvaldo testified in his own defense, stating that the foursome had simply talked to Cazares about their search for Eliana and Gonzalez, after which Cazares told his visitors that the couple might be in a motel on Pacific Coast Highway. According to Osvaldo, he did not know Leopoldo had a tazer until after they left Cazares’s apartment, and Osvaldo never saw Leopoldo holding the tazer while they were in the apartment. In short, Osvaldo’s defense was that they were invited guests, and there was no false imprisonment.
As noted at the outset, the jury convicted Osvaldo of trespassing and felony false imprisonment.
DISCUSSION
I.
Osvaldo contends there is no evidence that he used violence against Cazares and, therefore, no evidence to support his false imprisonment conviction. We disagree.
A.
False imprisonment is “the unlawful violation of the personal liberty of another” (§ 236), and the essential element of the offense is restraint. “Any exercise of express or implied force which compels another person to remain where he does not wish to remain . . . is false imprisonment.” (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123.) In the absence of violence, false imprisonment is punishable as a misdemeanor, but if it is “effected by violence, menace, fraud, or deceit,” it is punishable as a felony. (§ 237, subd. (a).) Thus, force is an element of both felony and misdemeanor false imprisonment, but the offense becomes a felony when “the force used is greater than that reasonably necessary to effect the restraint.” (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462.)
B.
Viewed in the light most favorable to the verdict (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89; People v. Johnson (1980) 26 Cal.3d 557, 578), substantial evidence supports Osvaldo’s conviction of felony false imprisonment.
Osvaldo and three cohorts went to Cazares’s apartment at 1:00 a.m., pushed their way in, threatened Cazares, backed him against a refrigerator, and kept him there at tazer-point for half an hour. Leopoldo threatened to go after Cazares with a handgun and tazed him in the stomach. The men told Cazares he could not leave. Given the four-to-one ratio of the encounter, this evidence establishes that Cazares was restrained with greater force than was reasonably necessary to effect the restraint. (People v. Reed (2000) 78 Cal.App.4th 274, 280-281.)
II.
Osvaldo contends the trial court should have sua sponte instructed the jury on the lesser included offense of misdemeanor false imprisonment. We disagree.
A trial court’s sua sponte duty to instruct on a lesser included offense arises only when the evidence that the defendant is guilty only of the lesser offense is “substantial enough to merit consideration” by the jury -- and “substantial evidence” in this context means evidence from which a jury composed of reasonable people could conclude that the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Here, if the jurors believed the People’s witnesses, Osvaldo was guilty as charged -- that is, of the greater offense of felony false imprisonment by violence. If instead the jurors believed Osvaldo, they would have acquitted him -- because he claimed there was no false imprisonment at all. There was no evidence between those two extremes and, therefore, no sua sponte duty to instruct on misdemeanor false imprisonment.
III.
Osvaldo contends the trial court should have given his Special Instruction No. 3: “A reasonable good faith belief that the victim consented to the defendant’s conduct is a defense to the crime of false imprisonment.” We disagree.
In the case relied on by Osvaldo, People v. Anderson (1983) 144 Cal.App.3d 55, the People conceded that a defendant’s reasonable and good faith belief that the victim consented to the defendant’s conduct was a recognized defense to the crime of false imprisonment, and the court (without any meaningful discussion) found “no reason to reject this concession.” (Id. at p. 64, citing People v. Mayberry (1975) 15 Cal.3d 143, 155 [holding that, with regard to specific intent crimes such as kidnapping and rape, the defendant’s reasonable belief in the defendant’s consent shows that he did not possess the required “wrongful intent”].) There is no such concession in this case.
Assuming that felony false imprisonment is a specific intent crime, and assuming further that a defendant’s reasonable and bona fide belief that the victim had voluntarily consented to the defendant’s conduct, the instruction was nevertheless properly refused in this case -- because there is no evidence at all that Cazares consented to his two-hour false imprisonment, or to suffering a hit with a tazer gun. As noted above, Osvaldo’s defense was that there was no false imprisonment of any kind, just a social visit. (People v. Rhoades (1987) 193 Cal.App.3d 1362, 1369 [the reasonable belief defense derived from Mayberry is founded upon evidence showing that the defendant acted under a mistake of fact sufficient to harmonize his assertion of consent with the victim’s story that consent was lacking].)
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.