Opinion
A149243
03-07-2018
THE PEOPLE, Plaintiff and Respondent, v. JORGE TUYUBBRICENO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. SCN225130)
A jury convicted Jorge Tuyubbriceno of multiple crimes against Sophie G.: simple assault (Pen. Code, § 240, subd. (a), felony false imprisonment (§ 236), and two counts of misdemeanor sexual battery (§ 243.4, subd. (e)(1)). Tuyubbriceno appeals from the judgment, contending his felony false imprisonment conviction must be reversed, or reduced to a misdemeanor, because of instructional error or insufficiency of the evidence. We affirm.
Undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
In December 2015, Tuyubbriceno was charged by information with assault with intent to commit a sex offense (§ 220, subd. (a)(1); count one), felony false imprisonment (§ 236; count two), and two counts of misdemeanor sexual battery (§ 243.4, subd. (e)(1); counts three and four). At the conclusion of an initial trial in April 2016, the trial court concluded the jury was hopelessly deadlocked and declared a mistrial. The case was retried in July 2016.
Late at night on September 17, 2014, Sophie was walking west on California Street in San Francisco. She was listening to music with headphones and texting her friend Casey C. After she crossed Van Ness Avenue, Sophie noticed a man, later identified as Tuyubbriceno, walking behind her in the same direction. Just before she reached the intersection of Laguna and California Streets, she felt her buttocks being grabbed or pinched. When she confronted Tuyubbriceno to tell him this was inappropriate, he said he had not had sex in a while and really needed sex. He asked whether Sophie was married or had a boyfriend. Sophie told Tuyubbriceno she would call the police if he touched her again. She also telephoned Casey and briefly told him what had happened.
Identity was an issue at trial. However, we do not set forth that evidence in detail because the sufficiency of the evidence on that point is not challenged on appeal.
Sophie walked away from Tuyubbriceno and tried to read the street signs so she could tell Casey where she was. She heard footsteps and then felt Tuyubbriceno reach under her dress and grab her crotch with his hand on the outside of her underwear. She turned around, screamed, told Casey to call the police, hung up, and dialed 911. Tuyubbriceno began to walk away. As she spoke to the dispatcher, Sophie followed Tuyubbriceno, at a distance of approximately 17 feet, fearing the police might not otherwise find him.
While she remained on the phone, Tuyubbriceno lunged toward Sophie, grabbed her, pulled her head down, and kissed her, forcing his tongue into her mouth. In response, she bit Tuyubbriceno's tongue and face and repeatedly screamed. During the struggle, her eyeglasses were knocked off, but she was able to pick them up. Although she did not remember precisely where Tuyubbriceno grabbed her, she remembered trying to break away from him but being unable to because of his hold. At one point, she fell and got back up, suffering a small laceration on her elbow. The assault ended when nearby residents indicated they had called the police. Tuyubbriceno walked away.
Sophie is taller than Tuyubbriceno.
When the police arrived, Sophie was in tears. She gave a description of her attacker and said he had grabbed her buttocks, knocked her down, and forcefully kissed her. When Tuyubbriceno was arrested, police observed and photographed cuts on his tongue and lip.
The jury acquitted Tuyubbriceno of assault with intent to commit a felony sex offense, but convicted him of the lesser included offense of simple assault (§ 240, subd. (a); count one). The jury also convicted Tuyubbriceno on counts two, three, and four. Tuyubbriceno was sentenced to a term of three years, granted credit for time served of 1,356 days, and released on parole. A timely notice of appeal followed.
II. DISCUSSION
Tuyubbriceno contends the trial court erred in instructing the jury on misdemeanor false imprisonment. He also maintains the evidence is insufficient to support his conviction for the felony offense. Both arguments lack merit. A. Instructional Error
Tuyubbriceno contends his felony false imprisonment conviction should be reversed because the jury was improperly instructed on misdemeanor false imprisonment. In particular, he contends the trial court was required to modify the standard instructions because the instructions "fail to mention force as an element in both misdemeanor and felony false imprisonment." Tuyubbriceno argues the instructions violated his federal constitutional right to due process.
The People insist Tuyubbriceno forfeited his argument when he failed to request a modification after the People proposed the two form instructions (CALCRIM Nos. 1240, 1242). Generally, " '[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.' " (People v. Livingston (2012) 53 Cal.4th 1145, 1165; accord, People v. Guiuan (1998) 18 Cal.4th 558, 570.) But no forfeiture will be found where the court's instruction was an incorrect statement of the law (People v. Hudson (2006) 38 Cal.4th 1002, 1012), or the instructional error affected the defendant's substantial rights. (People v. Mason (2013) 218 Cal.App.4th 818, 823; § 1259 ["appellate court may . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"].) Tuyubbriceno contends he was not required to request clarification because the instructions given are not correct in law. We assume Tuyubbriceno's argument challenges the correctness of the instruction and therefore is not forfeited. Nonetheless, it is meritless.
We review the trial court's jury instructions independently. (People v. Guiuan, supra, 18 Cal.4th at p. 569.) " 'In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights.' [Citation.] We determine the correctness of the jury instructions from the entire charge of the court, not from considering only parts of an instruction or one particular instruction. [Citation.] The absence of an essential element from one instruction may be cured by another instruction or the instructions taken as a whole. [Citation.] Further, in examining the entire charge we assume that jurors are ' " ' "intelligent persons and capable of understanding and correlating all jury instructions which are given." ' " ' " (People v. Smith (2008) 168 Cal.App.4th 7, 13.)
"False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) " 'Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty or is compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment. The wrong may be committed by acts or by words, or both, and by merely operating upon the will of the individual or by personal violence, or both.' " (People v. Agnew (1940) 16 Cal.2d 655, 659-660.) "False imprisonment is a misdemeanor unless it is 'effected by violence, menace, fraud, or deceit,' in which case it is a felony." (People v. Wardell (2008) 162 Cal.App.4th 1484, 1490.) "False imprisonment that involves no more in the way of force or menace than is needed to restrain the victim is a misdemeanor. Felony or aggravated false imprisonment requires proof of force greater than is needed to restrain the victim." (People v. Ghipriel (2016) 1 Cal.App.5th 828, 830.) "[S]uch additional and unnecessary force may also arise from sexual assaults suffered by the victim during the course of the defendant's contact with the victim." (Id. at p. 834.)
With respect to the felony offense, the jury was instructed, pursuant to CALCRIM No. 1240: "The defendant is charged in Count 2 with false imprisonment by violence or menace in violation of . . . Section 237(a). To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intentionally restrained, 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. [¶] '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." (Italics added & omitted.)
With respect to the misdemeanor offense, the jury was instructed, pursuant to CALCRIM No. 1242: "The defendant is charged in Count 2 as a lesser included offense with false imprisonment in violation of . . . section 237(a). To prove the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intentionally restrained, confined, or detained a person; AND [¶] 2. The defendant's act made that person stay or go somewhere against that person's will. [¶] An act was 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." (Italics added & omitted.)
Tuyubbriceno acknowledges CALCRIM No. 1240 makes clear that "violence means using physical force that is greater than the force reasonably necessary to restrain someone." CALCRIM No. 1242 also states that, to be convicted of misdemeanor false imprisonment, the defendant must intentionally restrain, confine, or detain a person without the person's consent. Nevertheless, it is Tuyubbriceno's position that the trial court neglected its sua sponte obligation to instruct the jury that "force" is an element of both misdemeanor and felony false imprisonment. He relies on language in People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462.
In People v. Hendrix, supra, 8 Cal.App.4th 1458, the trial court committed instructional error by refusing to instruct on the lesser included misdemeanor offense. (Id. at p. 1462.) The trial court had erroneously believed force was only an element of felony false imprisonment and that because the undisputed evidence showed some force had been used, any crime committed could be only the felony. (Id. at pp. 1462-1463.) The reviewing court explained: "Force is an element of both felony and misdemeanor false imprisonment. 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 the false imprisonment effected by such violence a felony." (Id. at p. 1462.) Because "there was ample evidence for the jury to believe that although [the defendant] used force, he did not use anything other than the amount of force necessary to prevent [the victim] from leaving," the conviction was reversed and the matter was remanded. (Id. at p. 1463.)
Here, we do not face a similar problem. The jury received both CALCRIM Nos. 1240 and 1242, which correctly stated the law. We cannot agree the jury had "no basis on which to understand that there is force involved in both misdemeanor and felony false imprisonment." Even though the jury was not instructed in the precise words Tuyubbriceno now suggests, there is no reasonable likelihood that the jury did not understood both misdemeanor and felony false imprisonment required force. Tuyubbriceno has not established a due process violation. B. Substantial Evidence
Tuyubbriceno also argues his conviction for felony false imprisonment is unsupported by substantial evidence he used force beyond that necessary to restrain Sophie. He concedes there is sufficient evidence he committed misdemeanor false imprisonment
When faced with a substantial evidence challenge, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) "A reviewing court must accept logical inferences the [fact finder] might have drawn from the circumstantial evidence. [Citation.] ' "A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' " ' " (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416-1417.)
Nor is substantial evidence synonymous with any evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. 3.) However, "the direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent 'without resorting to inferences or deductions.' [Citations.] Except in these rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the [fact finder]'s resolution . . . ." (People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Tuyubbriceno misplaces his reliance on People v. Matian (1995) 35 Cal.App.4th 480 (Matian), in which the defendant's conviction for felony false imprisonment was reduced to a misdemeanor. (Id. at pp. 487-488.) In that case, the defendant sexually assaulted the victim by squeezing her breast so hard that he caused pain. Immediately thereafter, the defendant grabbed her arm, yelled at her not to leave, glared at her, and approached her each time she attempted to leave. (Id. at pp. 484-485.) The People conceded the insufficiency of evidence to show the defendant had used violence. (Id. at p. 485.) The Matian court held the evidence was insufficient to support the defendant's conviction for felony false imprisonment. (Id. at pp. 486-487.) It noted reported decisions upholding convictions of felony false imprisonment by menace generally involved the use of a deadly weapon or verbal threats of harm (id. at pp. 485-486) and held the defendant's acts did not constitute menace because he did not verbally threaten the victim with physical harm or use a weapon. (Id. at pp. 486-487.)
Matian is not on point because the question here is not whether the evidence is sufficient to support a conviction for felony false imprisonment by menace. Furthermore, the only evidence of physical contact in that case, apart from the earlier sexual assault, was the defendant's grabbing of the victim's arm. (Matian, supra, 35 Cal.App.4th at p. 485.) This case involves significantly more physical contact.
Matian has also been repeatedly criticized. (See, e.g., People v. Islas (2012) 210 Cal.App.4th 116, 125; People v. Castro (2006) 138 Cal.App.4th 137, 143.)
The facts of this case are much closer to those presented in People v. Castro, supra, 138 Cal.App.4th 137. In that case, the victim was walking to a bus stop when the defendant grabbed and held her, turned her around, and then pulled her toward his car. (Id. at pp. 139, 141-142.) In concluding this was sufficient evidence to establish felony false imprisonment, the court stated: "In the present case, appellant grabbed the victim and turned her around. If that is all that had happened, we would agree with appellant that his conduct amounted only to misdemeanor false imprisonment. But appellant pulled her toward his car, an act more than what was required to stop her and keep her where she was located. . . . [T]he evidence that appellant used force to pull the victim toward his car was sufficient to establish force above that required for misdemeanor false imprisonment." (Id. at p. 143.)
Here too, substantial evidence supports Tuyubbriceno's conviction for felony false imprisonment. Sophie testified that Tuyubbriceno grabbed and held her, then pulled her head down, and forced his tongue into her mouth. Her glasses were knocked off. At some point in the struggle, she fell and suffered a laceration. Tuyubbriceno emphasizes Sophie's inability to recall precisely how he held her. However, the jury apparently believed Sophie when she testified she was held by Tuyubbriceno and was not troubled by her inability to recall precisely how he held her. It is not our role to reconsider the jury's credibility determination. The evidence is sufficient to support an implicit finding Tuyubbriceno used force greater than that necessary to accomplish restraint.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.