Opinion
F072261
07-05-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS MANUEL GONZALES, JR., Defendant and Appellant.
Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15902637)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge. Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Smith, J.
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INTRODUCTION
Appellant Jesus Manuel Gonzales, Jr., stands convicted of felony false imprisonment and misdemeanor battery. It also was found true that he had suffered a prior serious or violent felony conviction. He contends the evidence is insufficient to support a felony false imprisonment conviction. Gonzales also contends the trial court erred in refusing his pinpoint instruction on misdemeanor false imprisonment. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On July 16, 2015, Gonzales was charged with felony false imprisonment, in violation of Penal Code sections 236 and 237, subdivision (a), and misdemeanor battery in violation of section 243, subdivision (e)(1). It also was alleged that Gonzales had a prior serious or violent felony conviction. The matter was set for a jury trial.
References to code sections are to the Penal Code.
Gonzales and C.N. had been in a relationship and had one child together. On April 16, 2015, they were no longer in a relationship. C.N. brought their child to McDonald's where she met with Gonzales to discuss visitation arrangements.
At trial, Monique Villarreal testified she was leaving McDonald's with friends when C.N. "asked [them] to call security for her." C.N. seemed "panicky" and "scared" and "just needed help." C.N. and Gonzales were by a truck when C.N. called out. Villarreal went inside McDonald's and told them "there's a lady screaming, asking for security."
Villarreal made contact with two security guards, who walked outside. When Gonzales saw the security guards, he seemed to calm down. After the security guards came out, Gonzales "gave [C.N.] the baby." C.N. put the baby in the car seat in the back of her car; Gonzales followed C.N. to her car.
Villarreal turned to tell security that Gonzales was not leaving C.N. alone. When Villarreal turned back, she saw Gonzales holding the child in one arm; his other arm was across the back of C.N.'s neck with his hand on her shoulder. She saw Gonzales lean in and it looked as if he was "trying to kiss her." C.N. was "wiping her eyes like she was crying."
Villarreal turned away, but then heard "a really loud screaming." She turned back and C.N. "was holding her mouth." Villarreal ran back to security and told them, "I think he hurt her." After that, Villarreal saw C.N. put the little girl into the back seat of her car and sit down in the driver's seat "like she was going to leave," when Gonzales "sat on top of her." Gonzales was sitting on C.N. with his legs outside the car door. At this point, Villarreal called 911 because she did not feel "security was doing enough."
C.N. could not move because Gonzales was sitting on her. Villarreal saw Gonzales's arm swinging back "as if he was hitting her." Villarreal heard C.N. screaming and yelling; then a young man went over and pulled Gonzales off of C.N. Villarreal heard C.N. thank the young man. C.N. seemed scared as she drove off.
Security guard Daniel Negrete was working at McDonald's. When Negrete was in the parking lot, he was approached by C.N. who told him she was having difficulty getting her daughter back from Gonzales. Negrete told her it was a police matter. C.N. appeared "shaken" and "upset." Negrete saw C.N. arguing with Gonzales and saw Gonzales hit her in the chin and "her neck snap back." After he saw Gonzales strike C.N., Negrete told his partner to call the police.
Negrete saw C.N. sit down in her vehicle, then saw Gonzales bend over her. Negrete heard the horn beep "numerous times" and heard C.N. "yelling for help." She called out "help" three to five times. Negrete and his partner approached the car and told Gonzales to get away from the car. Gonzales responded by yelling profanity at Negrete, to the effect of "who the fuck are you, you can't do anything to me." After Negrete and his partner interceded, Gonzales walked back into McDonald's and Negrete and his partner followed. As he walked back toward McDonald's, Gonzales "bumped" Negrete.
It was apparent to Negrete that Gonzales was "mad" and "didn't want to listen to me." C.N. appeared to be "scared."
Fresno Police Officer Art Rodriguez and his partner Officer Brian Heck made contact with Gonzales inside McDonald's on Divisadero Street in Fresno. Gonzales was "very irate" and "yelling profanities" at the two officers. Rodriguez obtained C.N.'s cell phone number, called her, and asked her to return to McDonald's. When C.N. arrived, Rodriguez observed her to be "visibly upset" and it appeared as though she had been crying because her eyes were red. She appeared to be afraid, telling Rodriguez at one point that she did not want Gonzales to see her talking with a police officer.
C.N. told Rodriguez that she had agreed to meet Gonzales at McDonald's to discuss child custody issues. During their conversation, Gonzales became upset and began yelling profanities at her. C.N. walked toward her car and Gonzales came up behind her, put his left arm around her neck, and began applying pressure on her neck. She was able to break free from Gonzales's grip and place her child in the back seat of her car. C.N. then sat down in the driver's seat.
C.N. told Rodriguez that Gonzales was calling her a "bitch" and using the "F word." Gonzales opened the driver's car door, sat on her lap, and would not let her leave. Gonzales lunged his head forward and bit her bottom lip, causing her lip to bleed. After Gonzales bit her, she started honking her horn and yelling for help. C.N. was "distraught," "afraid," and "wanted help." She never appeared angry. Rodriguez observed injuries to C.N.'s chest and neck. He saw a "quarter-inch cut which appeared to be red and fresh" on her bottom lip.
C.N. also told Rodriguez about a prior incident of domestic violence in January 2015. A report was filed on the January incident, but C.N. told him she failed to "testify in court out of fear for her safety." During her interview with Rodriguez, C.N. never told the officer that Gonzales was trying to kiss or hug her, or that she was yelling and acting crazy.
On January 27, 2015, Fresno Police Officer Ben Williams spoke with C.N. C.N. told Williams that Gonzales choked her by placing both of his hands around her throat and squeezing. Williams could see red marks on C.N.'s throat and a scrape on her chin; C.N. thought she had scraped her chin during the struggle. C.N. refused to pursue criminal charges and declined a protective order.
In October 2012, Gonzales grabbed a woman with whom he had been in a dating relationship and threw her in his truck. Gonzales drove while grabbing her by the hair and then hitting her in the back of her head. She managed to open the door of the truck and get out.
At trial, C.N. maintained that Gonzales was merely trying to calm her that day at McDonald's when he sat in her lap, and denied telling an officer Gonzales would not let her go. Gonzales was trying to kiss her and he "didn't go for biting [her] lip." C.N. had a scratch on her neck after the incident, but it could have come from her child. She denied telling an officer that Gonzales wrapped his arm around her neck and applied pressure. C.N. was never in fear of Gonzales.
Gonzales was convicted of both counts. He admitted having a prior serious felony conviction. Gonzales was sentenced to four years in prison on count 1, felony false imprisonment. He received credit for time served on count 2.
Gonzales filed a timely notice of appeal on September 4, 2015.
DISCUSSION
Gonzales contends the evidence is insufficient to uphold his felony false imprisonment conviction because the evidence does not establish menace or violence. He also contends the trial court erred in refusing to instruct the jury with his proffered pinpoint instruction on misdemeanor false imprisonment.
I. Substantial Evidence
Gonzales contends the evidence is insufficient to uphold his felony false imprisonment conviction because the evidence does not establish menace or violence. His contention is without merit.
"When an appellant challenges the sufficiency of the evidence, the reviewing court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Aispuro (2007) 157 Cal.App.4th 1509, 1511 (Aispuro); accord, People v. Bolin (1998) 18 Cal.4th 297, 331.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis what[so]ever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin, supra, at p. 331.) "For evidence to be 'substantial' it must be of ponderable legal significance, reasonable in nature, credible and of solid value." (Aispuro, supra, at p. 1511; accord, People v. Johnson (1980) 26 Cal.3d 557, 576.)
"Although we must ensure the evidence is reasonable, credible, and of solid value, . . . it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." (People v. Jones (1990) 51 Cal.3d 294, 314.) "Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (Ibid.)
Felony false imprisonment under section 237, subdivision (a) is accomplished if "the false imprisonment be effected by violence, menace, fraud, or deceit." False imprisonment is the unlawful violation of the liberty of another, compelling the victim to go where he or she does not wish to go or remain where he or she does not wish to remain. (§ 236; People v. Bamba (1997) 58 Cal.App.4th 1113, 1121.) The offense may be committed by acts, words, or both, and by operating on the victim's will by personal violence. The crime becomes a felony when it is "effected by violence, menace, fraud, or deceit." (§ 237, subd. (a); see People v. Reed (2000) 78 Cal.App.4th 274, 280.) Violence is effectuated by the exercise of physical force to restrain the victim over and above the force reasonably necessary to achieve restraint. Menace is defined as a threat of harm by word or act, express or implied. (People v. Reed, supra, at p. 280.) "[F]alse imprisonment, whether misdemeanor or felony, is a general intent crime . . . ." (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1397.)
The evidence supports Gonzales's felony false imprisonment conviction because there is substantial evidence of menace. In People v. Islas (2012) 210 Cal.App.4th 116, 127 the appellate court held "a jury properly may consider a victim's fear in determining whether the defendant expressly or impliedly threatened harm." The defendants in Islas were two gang members, who entered an apartment and told the victim to hide them from the police. There was no verbal threat and in fact, the defendants stated they did not intend to harm the victim. (Id. at p. 126.) The appellate court concluded that the concept of menace had to be evaluated in context: the defendants had visible gang tattoos; telling the victim she would not be harmed implied she would be harmed if she did not comply; and the victim testified she was afraid. (Id. at pp. 126-127.) The appellate court concluded the defendants "created a climate of fear and intimidation" and there was an "implied threat of harm," which was sufficient for menace. (Id. at p. 128.)
Here, multiple witnesses testified C.N. was frightened, distraught, and wanted help. In January 2015, Gonzales had choked C.N., leaving red marks on her throat. In the incident at McDonald's, Gonzales wrapped his arm around her neck and applied pressure; he was obviously irate and angry; yelling profanities at C.N.; physically sat on her when she was seated in her car, preventing her from being able to move away from him; witnesses reported Gonzales struck C.N.; C.N. had injuries to her chest and neck after the incident. Based on these circumstances, including Gonzales's conduct and C.N.'s fear during the ordeal, a reasonable trier of fact could have found, beyond a reasonable doubt, that Gonzales created a climate of fear and intimidation and falsely imprisoned C.N. by menace. (People v. Islas, supra, 210 Cal.App.4th at p. 128.)
We decline to follow People v. Matian (1995) 35 Cal.App.4th 480, 486-487, cited by Gonzales, because its holding that there must be an express threat of violence or a weapon for false imprisonment by menace is simply not supported by the overwhelming body of case law. (See, e.g., People v. Ghipriel (2016) 1 Cal.App.5th 828, 834; People v. Wardell (2008) 162 Cal.App.4th 1484, 1491; People v. Aispuro, supra, 157 Cal.App.4th at p. 1513; People v. Castro (2006) 138 Cal.App.4th 137, 143.)
Additionally, there is substantial evidence Gonzales falsely imprisoned C.N. by violence. The People argued Gonzales's act of sitting on C.N.'s lap constituted restraint that exceeded that reasonably necessary. The single act of physically sitting on C.N.'s lap, thus bringing the full weight of his body to bear on C.N., appears to be excessive restraint that exceeds that required "to stop her and keep her where she was located." (People v. Castro, supra, 138 Cal.App.4th at p. 143.) In Castro, the defendant grabbed the victim by the arm, turned her around, and pulled her toward his car. The Castro court held that this was "an act more than what was required to stop her and keep her where she was located." (Ibid.) Gonzales could have kept C.N. in her location by simply holding her arms or hands, or taking her car keys; physically covering her body with his by sitting in her lap and bringing the full weight of his body to bear on her exceeded the restraint needed to hold her in place. (Ibid.)
After sitting on C.N.'s lap when she was in the driver's seat of her car, one witness reported seeing C.N.'s head snap back after Gonzales hit her; and Gonzales was seen swinging his arm as if hitting C.N. Afterwards, C.N. had injuries to her chest and neck. The additional acts of striking C.N. provides further evidence of violence sufficient to support a felony false imprisonment conviction. (§ 237, subd. (a).)
We do not include the act of biting C.N.'s lip because that act is the basis of the battery conviction.
II. Pinpoint Instruction
Gonzales contends the trial court erred when it failed to instruct the jury with his pinpoint instruction informing them that misdemeanor false imprisonment involves the use of force. The trial court did not err in refusing the instruction.
Gonzales asked that the jury be instructed with the following pinpoint instruction:
"Force is an element of both felony and misdemeanor false imprisonment, but misdemeanor false imprisonment becomes a felony only where the force used is greater than that reasonably necessary to effect the restraint; in such circumstances the 'force' is defined as 'violence' with false imprisonment effected by such violence a felony."The proffered instruction listed People v. Castro, supra, 138 Cal.App.4th 137 as authority, as well as People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462.
The People objected to the pinpoint instruction on the basis it was confusing and duplicative of the CALCRIM instructions. The trial court denied the proffered instruction on the basis it would confuse the jury, was overbroad, and essentially restated what was covered in CALCRIM Nos. 1240 and 1242.
Section 236 defines false imprisonment as the "unlawful violation of the personal liberty of another," a misdemeanor. However, false imprisonment is a felony if "effected by violence, menace, fraud, or deceit." (§ 237, subd. (a).) Here, Gonzales was convicted of felony false imprisonment. The jury was instructed with CALCRIM Nos. 1240 and 1242, the jury instructions approved by the Judicial Council of California for instructing on felony and misdemeanor false imprisonment. Gonzales requested these two instructions be given to the jury. As to felony false imprisonment, the jury was instructed, in pertinent part, that to find Gonzales guilty of this offense, the People had to prove:
1. The defendant intentionally and unlawfully restrained, or confined, or detained someone by violence or menace; and
2. The defendant made the other person stay or go somewhere against that person's will.The jury was instructed that to find Gonzales guilty of misdemeanor false imprisonment, the People had to prove Gonzales intentionally and unlawfully restrained, or detained, or confined a person and he did so against that person's will.
Violence means using physical force that is greater than the force reasonably necessary to restrain someone. Menace means a verbal or physical threat of harm. The threat of harm may be express or implied.
An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act.
" 'It is settled that in criminal cases, even when not requested, the court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the evidence adduced before the court which are necessary for the jury's proper consideration of the case. [Citations.] At a minimum, it is the court's duty to ensure the jury is adequately instructed on the law governing all elements of the case submitted to it to the extent necessary for a proper determination in conformity with the applicable law. [Citation.]' " (People v. Haney (1977) 75 Cal.App.3d 308, 312 (Haney).) " 'We presume jurors "generally understand and follow instructions." ' [Citation.]" (People v. Jackson (2014) 58 Cal.4th 724, 767.)
As to a charge of false imprisonment, the "[i]nstructions essential to the jury's proper evaluation of the facts before them would encompass the following: [t]he crime of false imprisonment, whether misdemeanor or felony, requires for its commission some intended confinement or restraint of the person. . . . Any exercise of force or express or implied threat of force by which in fact the person is restrained from his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is such imprisonment. The imprisonment may be committed by acts or words merely operating on the will of the individual and/or by personal violence. The acts must be done, the words must be said, with the intent of causing the confinement. [Citations.]" (Haney, supra, 75 Cal.App.3d at p. 313.) "If the imprisonment is effected without the use of violence, menace, fraud or deceit, it is a misdemeanor. The presence of one or more of these elements elevates the false imprisonment to a felony." (Ibid.)
Here, the trial court instructed with CALCRIM Nos. 1240 and 1242 essentially verbatim. (See Cal. Rules of Court, rule 2.1050(e) [use of Judicial Council jury instructions "strongly encouraged" and "recommended"].) "The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California. The goal of these instructions is to improve the quality of jury decision making by providing standardized instructions that accurately state the law in a way that is understandable to the average juror." (Rule 2.1050(a).) A trial court risks injecting inappropriate terms or concepts into the instructions, or confusing the jurors, when it seeks to modify or amplify the pattern instructions. (See People v. Noguera (1992) 4 Cal.4th 599, 642-643.)
References to rules are to the California Rules of Court.
Gonzales's pinpoint instruction purported to be based on the holding of People v. Hendrix, supra, 8 Cal.App.4th 1458 and he contends Hendrix supports his claim that it was error to refuse the pinpoint instruction. He is incorrect. The appellate court in Hendrix held that because some element of force is used in both misdemeanor and felony false imprisonment, the trial court erred in failing to instruct the jury on misdemeanor false imprisonment, in addition to felony false imprisonment. (Id. at p. 1462.) Hendrix did not hold that the pattern instruction for misdemeanor false imprisonment failed to adequately convey all elements of the offense. (Ibid.)
People v. Castro, supra, 138 Cal.App.4th 137, also cited by Gonzales, does not support Gonzales's claim that a pinpoint instruction was necessary to adequately instruct the jury. The trial court in Castro failed to instruct the jury on misdemeanor false imprisonment and instructed only on felony false imprisonment. (Id. at pp. 138-139.) The appellate court concluded the failure to instruct on misdemeanor false imprisonment was error. (Id. at pp. 139, 144.) Castro did not hold that the pattern instructions fail to adequately instruct on felony and misdemeanor false imprisonment.
Rule 2.1050(b) states in part, "The Judicial Council endorses these instructions for use and makes every effort to ensure that they accurately state existing law." Gonzales has not cited, nor have we found, a single case holding that the pattern instructions in CALCRIM Nos. 1240 and 1242 fail to adequately instruct on felony and misdemeanor false imprisonment. We conclude CALCRIM Nos. 1240 and 1242, the pattern instructions, adequately convey all elements of the offenses of misdemeanor and felony false imprisonment.
A trial court is not required to give a pinpoint instruction if the instruction is duplicative or unsupported by substantial evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558.) Because CALCRIM Nos. 1240 and 1242 adequately instructed on the elements of the offenses of felony and misdemeanor false imprisonment, the trial court did not err in refusing to instruct the jury with a potentially confusing or duplicative special instruction.
DISPOSITION
The judgment is affirmed.