Opinion
A150468
07-16-2018
THE PEOPLE, Plaintiff and Respondent, v. PETER DAVID SCHOTTE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR175598)
I. INTRODUCTION
Peter Schotte (appellant) was convicted of various charges stemming from domestic violence including felony false imprisonment. On appeal, appellant's sole contention is that his conviction for felony false imprisonment is not supported by substantial evidence and must be reversed. We disagree and affirm the judgment.
II. PROCEDURAL BACKGROUND
Appellant was charged by information with seven criminal counts: dissuading a witness (Pen. Code, § 136.1, subd. (b)(2) , count one); inflicting corporate injury on a cohabitant (§ 273.5, subd. (a), counts two and six); false imprisonment by violence (§ 236, counts three and seven); misdemeanor contempt of court (§ 166, subd. (c)(1), count four); and misdemeanor vandalism (§ 594, subd. (b)(2), count five). The information contained allegations that several charged offenses were committed while appellant was on bail, appellant had two prior convictions for domestic violence, and he had served one prior prison term.
All references will be to the Penal Code unless otherwise noted.
On December 19, 2016, a jury found appellant guilty of corporal injury on a cohabitant (count two), attempted false imprisonment (a lesser charge of count three), contempt of court (count four), vandalism (count five), misdemeanor domestic battery (a lesser charge of count six), and felony false imprisonment (count seven). Thereafter, the sentence enhancement allegations were found true and appellant was sentenced to a total term of seven years eight months in state prison.
Appellant challenges the sufficiency of the evidence to support his conviction for felony false imprisonment by engaging in the following conduct, as alleged in count seven of the amended information: "On or about May 13, 2015 . . . the crime of FALSE IMPRISONMENT BY VIOLENCE . . . was committed by PETER DAVID SCHOTTE, who did unlawfully violate the personal liberty of Jane Doe, said violation being effected by violence, menace, fraud, and deceit."
III. TRIAL EVIDENCE
A. Jane Doe's Testimony
Jane Doe (Doe) met appellant on a dating site in August 2011. They exchanged messages for a while then met in person a couple of weeks later. The relationship quickly turned into a dating relationship.
1. Prior Acts of Domestic Violence
Appellant and Doe started living together in September of 2011. Between September and November 8, 2011, there were many incidents of domestic violence against Doe by appellant. One source of conflict was Doe's Facebook page, which appellant wanted her to cancel. When Doe could not recall the password, appellant became angry, pinned Doe down and dug his chin into her face. Appellant pulled Doe's hair out by the roots between 5 to 10 times, squeezed Doe's hands so tight her hands became bruised, pinched her, and kicked her in the shin.
During this time, appellant forced Doe to have sex with him even when she was on her period. Once after having had sex, Doe was unable to remove a tampon for five days and appellant refused to allow her to see a doctor. Doe testified that appellant made her "constantly suck his cock" and was afraid appellant would hurt her if she did not do what he demanded. Once, appellant grabbed her by the ear and ripped the bottom seam near her ear lobe and then refused to let Doe go to the doctor. Doe was also cut off from friends and family. At one point, appellant forced Doe to call every male listed in her contacts and tell them she would not be "calling [them] any more or fucking [them]."
Doe did not report any of these incidents to the police because appellant had her phone and she had no way of doing so. Appellant controlled Doe's movements by telling her not to leave the apartment because he had people watching her, taking her phone away and breaking it, and Doe believed but could not prove, tampering with her car so she could not go to work. When Doe told appellant her car would not start, he shrugged it off and refused to give her a ride to work. Doe suspected that appellant disabled her car in some way but was not sure.
On November 8, 2011, Doe finally felt the abuse was out of control. While appellant was at work, Doe realized the car was not working because the spark plugs had been detached. She reattached the spark plugs, packed her belongings, and went to the police. Doe reported many incidents of domestic violence, including multiple hits to her head. The police took her statement and took photos of her injuries. Appellant was arrested that day and Doe went to a shelter. After a couple of days at the shelter, Doe went back to appellant and the domestic violence continued. Appellant often accused Doe of cheating on him and called her bitch, cunt, and ass.
On December 1, 2011, Doe delivered a letter to the district attorney in which she stated that her prior report regarding the November 8 incident was untrue. At trial, Doe testified that she wrote this statement because appellant was angry and screamed at her. He blamed Doe for his arrest and told her she needed to fix it.
On December 18, 2011, appellant and Doe were in Doe's car and appellant accused Doe of cheating on him because she was looking at her phone. Appellant grabbed Doe around the neck in a headlock then squeezed, causing Doe pain. Appellant also twisted Doe's hand so badly her ring finger locked. Appellant pulled Doe's hair out by the roots leaving a bald spot and pinched her arm so hard it left a bruise. Doe ordered appellant out of the car and he left. Doe saw appellant a couple of days later and they reconciled again. Photos documenting Doe's December 11 injuries were introduced at trial.
On December 22, 2011, Doe and appellant were sleeping in a camper shell in a friend's backyard because they had nowhere to live. Without warning, appellant became angry and slammed Doe's face into the bed of the truck. Doe did not call the police. The following day, appellant rented a hotel room as a surprise for Doe but once they were in the room, he became angry because Doe would not get into the shower with him. Appellant threw her on the bed, hit her in the face, pulled her hair, and hit and pinched her on the arms hard enough to leave bruises. When Doe tried to reach the phone, appellant pulled the phone jack out of the wall. The police were contacted. Photographs documenting the injuries Doe sustained on December 22 and 23 were introduced at trial.
Between August and December 2011, appellant would be both nice and mean, and although Doe could not explain his behavior, she found it hard to leave him. When appellant was nice Doe enjoyed being around him, and she kept going back to appellant because he would sweet-talk her and tell her how much he loved her. Appellant would also send mixed messages by pinching or hitting Doe and then telling her did not mean to do it. After appellant abused Doe, he would promise her their lives would change but the change never happened. Doe did not confide in anyone because she was isolated.
In March 2012, appellant pleaded to and was convicted of two felony violations of inflicting corporal injury on a spouse or cohabitant as a result of the November 8, 2011 incident and a no-contact order was issued by the court. Doe and appellant did not have contact again until August 2013. During that time, Doe was relieved to be away from appellant but missed him and still loved him. Doe could not recall how she and appellant started talking again but she testified that they reconciled. Appellant was living in Santa Rosa and came to visit her occasionally. They restarted their relationship in September 2013. Doe testified that from September 2013 to April 12, 2015 when Doe next contacted the police, there was violence in their relationship.
2. The Charged Offenses
On April 12, 2015, appellant was angry with Doe because he felt she had taken too long to get home from church. Appellant yelled at Doe continuously and she decided to leave. Doe went to a friend's house but appellant called Doe "nonstop" and told her she better "get [her] ass back home." Fearing what appellant would do, Doe returned home but appellant was not there. Doe called him and told him she was packing his things. Appellant came home very angry, grabbed Doe by the ears, and shook her for 5 to 10 minutes while screaming at her. When Doe went to the bathroom, appellant beat on the door because he thought she was calling someone and then kicked in the door. Doe walked out of the bathroom and went to her car. Appellant followed Doe to her car and yelled, "You better not leave, you're gonna keep your ass here." Appellant then punched the side mirror on the car and it broke off. Doe drove off and a neighbor called the police. The police took a statement from Doe, and photographed bruises on Doe's shoulder, hand and arm, and the damage to her car.
For the next 12 days, appellant yelled at Doe to "fix the situation and get him out of trouble." Appellant told Doe to write a letter to the district attorney saying that "it wasn't his fault," that they were both at fault, and she wanted the charges dropped. On April 24, 2015, Doe acquiesced and wrote a letter stating that appellant was a good person and that the April 12 incident was not his fault. Appellant reviewed the letter and drove Doe to drop it off. A few weeks later, an investigator from the district attorney's office called Doe to follow up, and she reported that her bruises were the result of her running into doors, and the mirror on her car was broken when she hit a pole. Doe testified that none of these statements were true and that she wrote the letter to get appellant out of trouble. Doe stayed with appellant despite this treatment because she thought she could fix him and then life could be fine but it just kept getting harder.
On May 13, 2015, Doe's phone was not working so she decided to go to the phone store to get it repaired. Appellant had told Doe he would take her but did not do it, so she decided to go by herself. Doe went into the bedroom, grabbed her purse, put it on her shoulder, and started to leave. Appellant yelled at her that she was not going, and he abruptly grabbed Doe's purse by the strap. When he pulled the chain and leather strap, it slid down Doe's arm but remained attached to her body. Doe could not get away from appellant for approximately five minutes because he continued to hold on to the purse. When Doe freed herself from appellant's grip, she left the house.
Doe went to the phone store in downtown Napa and purchased a new phone. When she was leaving the parking lot, appellant pulled up in his car and blocked her in. He came up to Doe's window, yelling and screaming. Doe asked appellant to move but he continued yelling at her until a clerk from the phone store came out and asked Doe if she wanted her to call the police. Appellant got back in his car and left. Doe went back to her apartment, packed appellant's belongings, and barricaded herself in the apartment.
On May 15, 2015, Doe spoke to district attorney investigator Hinshaw and gave a statement to the Napa Police Department. The police officer also took photos of the bruises Doe suffered when appellant grabbed her purse and a bald spot on Doe's head where appellant had pulled her hair out during a prior altercation on May 9. Doe had not called the police on May 9 but she kept the hair so she would have evidence if something else happened.
On August 6, 2015, Doe wrote a letter asking the district attorney to drop their case against appellant. Doe recanted her May 15 statement and blamed her bruises and hair loss on a medical condition. She closed the letter by saying she would not testify and asked the district attorney's office to drop the charges so she and appellant could be happy together. Appellant again reviewed the letter, drove Doe to the district attorney's office, and stood outside the door while she dropped it off. He did not believe Doe delivered the letter so he went into the office and verified that she had done so. At trial, Doe testified that she had been diagnosed with Lupus and had used this condition as an excuse for her injuries; Doe explained that a flare up in her condition could cause her to get a rash and suffer hair loss, but her hair did not come out in clumps or cause bald spots.
Doe testified that the last time appellant was violent with her was September 20, 2015. Late in the evening, appellant asked Doe if he could come over to talk and she said yes. In the early morning hours, Doe and appellant got into an argument because appellant asked her to come lay next him in bed and she refused. Appellant left the house then attempted to come back in to talk to Doe. He was angry, and he screamed and rang the doorbell continuously. After Doe let appellant back into the house, he squeezed Doe in a bearhug so hard she screamed in pain. Doe ordered appellant from the house. When he left, appellant spat in Doe's face. Doe did not call the police but she and appellant were never romantic after that incident.
When asked why she stayed in the relationship for so long, Doe said it was a codependency cycle where she felt like she needed to fix appellant and had faith that she could. She finally realized she could not. Doe testified that her physical injuries were healed but that the relationship "broke" her. She went back to seeing a counselor and a psychiatrist and, at the time of trial, was taking medication.
B. Expert Testimony
Linda Barnard, Ph.D., a licensed marriage and family therapist with a private practice in Sacramento, testified as a prosecution expert. She specializes in people who have experienced trauma like rape, victims of crime, and victims of domestic violence. In addition to seeing victims of domestic violence in her private practice, Dr. Barnard is a consultant and trainer for most of the domestic violence programs in central and northern California. Among other certifications, Dr. Barnard is an expert in traumatic stress and board certified in domestic violence through the American Academy of Experts in Traumatic Stress.
Dr. Barnard defined domestic violence as physical, sexual, verbal, or psychological abuse that occurs within the context of an intimate relationship. She testified that people generally believe domestic violence only occurs in poor and minority communities and that abuse is limited to physical abuse. Dr. Barnard testified that, to the contrary, domestic violence can be verbal and sexual and occurs in every social and economic sector of a community. Men and women are both perpetrators and victims. Dr. Barnard's opinion was that psychological abuse can often cause more harm than physical abuse. She stated that studies have shown that 50 percent of women will be physically abused by an intimate partner in their lifetime and of that group, only 25 percent will report the abuse to law enforcement.
Dr. Barnard opined that domestic violence is usually caused by a need for power and control on the part of the abuser and the abuser believes that he or she is entitled to exercise power and control over the victim. In two-thirds of domestic violence relationships, a pattern called "cycle of violence" occurs. Dr. Barnard described the cycle as a honeymoon in the beginning where the couple gets along, followed by increased tension leading to an episode of abuse, which culminates in the abuser apologizing and promising that the violence will not happen again. The abuser and victim are then back to the honeymoon, and the cycle repeats with the abused party in denial and hoping that something different will happen.
Dr. Barnard explained that the cycle of violence generates excessive fear for the victim because he or she does not know what will happen, how serious the abuse will be, or how long the abuse will last. The cycle of violence can vary. If the victim threatens to leave, the abuser may prolong the honeymoon to get the victim to stay. When the abuse is long term, there may be more inconsistency in the honeymoon phases. Breaking up and getting back together is common. Most victims tend to go back to the abuser. Once they return and go through the cycle of violence again, the likelihood they will continue to go back is increased. The severity of domestic abuse can vary from verbal abuse and pushing and shoving to severe beatings with serious injuries. There is not always a pattern but over long relationships, the abuse tends to escalate. The abuser tries to create a sense of fear and uncertainty about what will happen next.
Abusers achieve control in a variety of ways. As examples, abusers call their victims derogatory names and humiliate them both publicly and privately. Abusers also try to make the victim feel crazy or convince others the victim is crazy. Abusers often try to isolate the victim from friends and family. Without a support system, no one knows what is happening to the victim and there is no one to encourage the victim to protect herself. Victims of abuse become hypervigilant because they are looking for signs of danger. They are acutely aware of the abuser's change in mood, expression, and actions because they know what has happened in the past and try to predict the abuser's mood or behavior.
Control is also attained through economic abuse. Abusers control the household money, denying the victim access to money or transportation. Controlling the victim's mode of transportation has the added effect of isolating the victim. Abusers prevent victims from leaving the relationship by telling them that access to their children will be cut off or loved ones will be hurt if they leave. Victims stay to avoid these consequences because they think they are worse than what will happen if they stay in the relationship. Abusers coerce victims to violate the law, like committing perjury and recanting a report of abuse, so that the victim becomes compromised and is much less likely to report future abuse.
Control and isolation cause a strong bond to form between abuser and victim, referred to by Dr. Barnard as "traumatic bonding." Traumatic bonding occurs when people who suffer the same trauma become more connected. In the case of domestic abuse, when the person who causes the abuse is also the person who makes the victim feel better and the two are isolated from others, the bond between abuser and victim becomes extremely strong. Both the abuser and the victim minimize the abusive behavior to different effect. The abuser minimizes the abuse to make the victim believe that the abuse is not that bad or that the abuse is her fault to change her perception of what is happening. The victim frequently minimizes the abuse to whoever she is talking to because she is embarrassed or she thinks acknowledging the abuse will cause a breakup of her family or other consequences with which she cannot cope.
Dr. Barnard also made some general observations about abusive relationships. She said abusers tend to get involved in relationships quickly and intensely. They also tend to be very jealous. Abusers do not have a particular psychological profile and are not necessarily mentally ill, but it is common for abusers to have a "Dr. Jekyll and Mr. Hyde persona." Often the abuser blames the victim for the abuse or claims the interaction between abuser and victim was mutual combat. The cycle of violence and behaviors associated therewith end only when the abuser or victim leaves the relationship or when someone dies.
Dr. Barnard did not interview Doe or appellant, but the prosecutor asked her about several hypotheticals that closely resembled the facts in evidence. In response, Dr. Barnard opined that two people meeting in August and moving in together in September with violence against the woman starting almost immediately was consistent with abusive relationships. Hitting, hair pulling, neck twisting, and pinching are consistent with the behaviors of a batterer. Also, monitoring phone use and movements are behaviors batterers exhibit as part of the control dynamic. Forcing a woman to have sex while on her period and forcing her to perform oral sex are also consistent with the cycle of violence and an abuser exerting control over a victim.
Dr. Barnard also testified that a woman recanting her report of domestic violence and asking law enforcement not to prosecute is consistent with someone who has experienced abuse. It would not be unusual for the same woman to report new incidents of abuse after having recently recanted reports of abuse. A woman who has been abused might not be able to resist pressure from the abuser to write a letter recanting her report because she is fearful and intimated or because the couple is in a honeymoon phase and she does not want the abuser to get into trouble. Finally, Dr. Barnard reported that based on Federal Bureau of Investigation studies, only about 2 percent of reports of domestic violence are false.
C. Appellant's Testimony
Appellant is a native of Napa and works in construction. He admitted to a conviction for a felony theft crime in 2007 and a conviction on two counts of felony domestic battery with injury in 2012. But appellant disputed "the severity" of what people said he did, and testified that he pleaded to the domestic battery charges to protect his family. Appellant denied that he forced Doe to have sex with him in 2011, and claimed Doe was the aggressor who caused the November 8, 2011 incident because she thought he was talking to other women. He said Doe would get extremely jealous, "have these flares and she would ball up her fists and start punching on him and flailing her arms." He testified that all he could do was duck and cover.
Following his convictions for the November 2011 abuse, appellant and Doe had little contact until late 2013, early 2014. In the interim, appellant got married and moved to Santa Rosa. Appellant testified that between January 2014 and August 2015, he and Doe had periodic contact, but they were only friends. He testified he was very careful in the way he approached Doe because "you know, how . . . she can get." Sometimes he stayed at Doe's house because he was going through a separation and Doe would offer to cook him dinner. Initially, appellant denied having sex with Doe during this time, but then admitted that he had sex with Doe once.
When asked about the April 12, 2015 incident, appellant testified that Doe was upset because she thought he was trying to talk to his ex-wife, Sherry. He denied pulling Doe by the ears, knocking down the door, or holding Doe in the apartment against her will. Appellant said the fight got physical because Doe balled up her fists and started hitting him in the head area. He also denied forcing Doe to have sex, testifying that "I would never do that." Appellant's explanation for the broken car mirror was that Doe was angry and hit the gas on her car to drive away. When she drove away, the car mirror hit his arm. Appellant explained differences between his version of events when he spoke to the police and his version at trial as an effort to minimize the story to avoid getting Doe or anybody else in trouble.
Appellant explained Doe's bruises on April 12, 2015 as the result of a visit with her grandkids who were always jumping on her, kicking her, and playing with her. He testified that he witnessed a grandson jump on Doe's lap and, pop up, and hit Doe right in the jaw. He went on to say that he witnessed Doe trip over his bike in the middle of the night and falling. According to appellant, Doe "always would be tripping and falling like that, always."
Appellant denied pulling out Doe's hair during a fight in May 2015, testifying he "would never do that." Appellant also identified a photograph shown to him by his counsel during his trial testimony as a picture he took of Doe's hairbrush "with a big clump of hair in it." Appellant testified that he took the photo because he was afraid that Doe would make accusations against him as she had done in the past, and he was "just in fear she was going to do that again."
Appellant recalled that the incident on May 13, 2015 was also about his talking to his ex-wife, Sherry. He said Doe got mad about his talking to Sherry and started hitting him. Appellant denied that he grabbed or yanked Doe's purse while she was holding it that day. He also denied blocking her movements while she was in the apartment, testifying that he "could never do that," and "[i]f she wanted to leave she would leave." When asked about the purse, appellant testified that ". . . she would storm out of the house, and she picked up her purse and flail it over her shoulder on her arm and she's going out the sliding glass door. I was sitting next to the sliding glass door on the couch. And it catches—it's the old, old kind of sliding glass doors, the handles are that long and they've got this [sic] sharp edges. Well, as she's flailing her purse over her arm and she's barreling out the door it catches on the handle of that and pulls the sliding glass door off track as she's barreling outside because she was storming outside because she was mad." Appellant said he followed Doe to the phone store because he thought she had taken his phone. He denied blocking Doe in the parking lot and denied banging on her car door. He said he asked nicely for the phone but Doe "flipped [him] off." Eventually Doe gave him the phone and he left.
IV. DISCUSSION
Appellant asserts a single claim of error. He contends his felony conviction for false imprisonment must be reversed because there is insufficient evidence that he restrained Doe from going to the cell phone store on May 13, 2015.
A. Legal Principles and Standard of Review
Section 236 defines false imprisonment as "the unlawful violation of the personal liberty of another." False imprisonment is punishable as a felony if is it effected by violence, menace, fraud, or deceit. (§ 237, subd. (a).) "Violence is ' " ' "the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint." ' " ' [Citation.] ' "Menace" ' is defined as ' " 'a threat of harm express or implied by word or act.' " ' [Citation.]" (People v. Williams (2017) 7 Cal.App.5th 644, 672.) False imprisonment does not require confinement in an enclosed space. "[A]ny exercise of force, express or implied, by which the other person is deprived of liberty or freedom of movement, or ' ". . . is compelled to remain where he does not wish to remain, or go where he does not wish to go, is an imprisonment . . . ." ' [Citation.]" (People v. Fernandez (1994) 26 Cal.App.4th 710, 718.)
As the trial court instructed the jury in this case, the elements of false imprisonment by violence or menace, in violation of section 237, subdivision (a) are: "one, the defendant intentionally restrained, confined or detained someone from or caused that person to be restrained, confined or detained by violence or menace; and, two, the defendant made the other person stay or go somewhere against that person's will."
" 'When a jury's verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion.' [Citation.]" (People v. Ghipriel (2016) 1 Cal.App.5th 828, 832, italics omitted.) " 'Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]' [Citation.]" (People v. Dominguez (2010) 180 Cal.App.4th 1351, 1356.)
B. Substantial Evidence Supports the Verdict for Felony False Imprisonment
We find sufficient evidence in the trial record to support appellant's conviction for false imprisonment under both the violence and menace prongs of section 237, subdivision (a).
Doe's testimony constitutes substantial evidence of false imprisonment by violence. She testified that when she announced she was going to the cell phone store appellant yelled "No, you're not" while using "quite a bit" of force to abruptly grab her purse, which was on her shoulder. Doe described her next action as getting away from appellant, which took what "seemed like forever" to her. Doe said there was a period after appellant grabbed her purse of approximately five minutes when she was not able to leave. Doe was on her way to the cell phone store and appellant's action was the only thing preventing her from going. Doe did not describe where she was in the room, but appellant testified that she was headed out the sliding glass door when the incident took place.
While appellant described the incident very differently, his testimony is further evidence that he blocked Doe's egress and forced Doe to remain where she did not wish to remain. (People v. Fernandez, supra, 26 Cal.App.4th at p. 717.) Furthermore, appellant pulled the strap to her purse long enough and hard enough to cause bruises on her arm and shoulder. These bruises were evidence that appellant's action went above and beyond the force necessary to effect restraint and support the conclusion that appellant's actions were violent within the definition of violence in section 237, subdivision (a). (People v. Williams, supra, 7 Cal.App.5th 644, 672.)
We also find sufficient evidence that Doe was falsely imprisoned by menace. " 'Menace is a threat of harm express or implied by words or act. [Citations.]' [Citation.] 'An express threat or use of a deadly weapon is not necessary.' [Citation.]" (People v. Islas (2012) 210 Cal.App.4th 116, 123 (Islas).) Moreover, " '[a]n express or implied threat of harm does not require the use of a deadly weapon or express verbal threat to do additional harm. Threats can be exhibited in a myriad number of ways, verbally and by conduct.' [Citation.]" (Id. at pp. 125-126.)
In Islas, supra, 210 Cal.App.4th 116, two gang members wearing tattoos familiar in the community, ran from police into an apartment in a building in their gang's territory. (Id. at p. 119.) They asked the family living there to hide them from the police. (Ibid.) They also asked one family member to tell the police they were related. (Ibid.) They did not touch, threaten, or use weapons. Following their apprehension by police, the intruders were convicted of, among other things, felony false imprisonment. The defendants argued there was insufficient evidence to convict them of false imprisonment because they did not use threats or coercion and, therefore, their behavior did not constitute menace. (Id. at pp. 118-119.) The appellate court disagreed, analyzing the facts in the broader context of the occupants' prior knowledge and experience with the gang of which the defendants were members, which established that the building where the crime took place was a known gang stronghold. (Id. at p. 126.) The court also found that the jury could have properly considered the victims' fear in determining whether the defendants had expressly or impliedly threatened harm. (Id. at p. 128.) Gang expert testimony established that the community feared the gang members, and it was generally understood that people encountering gang members had to cooperate or they risked being harmed. (Id. at p. 122.) Thus, when the defendants appeared in their home, the occupants reasonably believed there was an immediate and future threat of harm if they did not comply with their demands. (Id. at p. 126.) It was in this broader context that the court concluded that the defendant's presence and status were enough to satisfy the menace element of felony false imprisonment. (Id. at p. 127.)
In the case before us, Doe knew from experience that when appellant became angry, what followed was physical, sexual, and/or emotional abuse. It had happened in the past when Doe did not follow appellant's direction to delete her Facebook page, did not come back from church soon enough, or did not comply with his demands fast enough. This behavior was consistent with Dr. Barnard's descriptions of domestic abuse. The sum of Dr. Barnard's expert testimony was that an abuser takes control of the victim's life using various tools to create a climate of fear. The abuser and victim experience the cycle of violence, the abuser isolates the victim from friends and family, controls access to financial and emotional support, and essentially alters the victim's sense of reality. These elements of an abusive relationship were present in Doe's and appellant's relationship. Appellant could be nice then abusive. Doe never knew when appellant would strike next but was conditioned to believe that the abuse could occur at any moment.
The fact that appellant did not verbally threaten Doe with additional harm while he was preventing her from going to the cell phone store is not determinative of whether appellant's actions implied a threat of harm. The history of their abusive relationship in combination with appellant's actions were sufficient to demonstrate an implied threat of harm. Doe had every reason to believe that appellant's next action would be a violent assault. Much like the victims in Islas, the dynamics of appellant's and Doe's relationship gave context to their interactions on May 13, 2015 and provided evidence from which the jury could have concluded that Doe was reasonably in fear for her safety.
The jury was instructed that it could consider evidence of past incidents of abuse which were not charged in the case as follows: "The People presented evidence that the defendant committed domestic violence that was not charged in this case. Domestic violence means abuse committed against an adult who is a spouse, former spouse, cohabitant, former cohabitant. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence."
Appellant contends that there is not sufficient evidence to support the verdict because Doe's testimony was too conclusory creating an "evidentiary gap." According to appellant, the issue is not whether he used violence or menace but more fundamentally whether he restrained Doe at all. Appellant suggests substantial evidence would have to include an explanation of how grabbing a purse, which he surmises could have been easily discarded, could have restrained Doe for up to five minutes. Appellant's contention is misguided and lacks merit. In determining the sufficiency of the evidence, the scope of this court's review is limited to the record before it and does not include speculation about what Doe could have done or the assessing credibility of her testimony. Moreover, Doe's testimony was not conclusory and did not lack detail. Doe described what lead up to the incident, the force with which she was restrained, the length of time she was restrained, and the injuries resulting from the restraint. In short, there was no "evidentiary gap" which needed to be filled. The verdict is supported by the evidence.
V. DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.