Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F7169
DAVIS , Acting P.J.
A jury convicted defendant Joel Alvarez Viveros of felony false imprisonment, burglary, and other offenses. In sentencing him to prison, the trial court imposed the upper term for burglary and concurrent terms for the remaining offenses. It also purported to impose a fine of $400 pursuant to Penal Code section 1203.097, subdivision (a)(5), one of several conditions of probation that the statute prescribes for crimes of domestic violence.
On appeal, the defendant asserts that there is insufficient evidence to sustain a conviction of felony false imprisonment; that the trial court violated his right to a jury determination of the factors underlying his sentence; and that it erred in imposing an unauthorized fine applicable only to those granted probation. The People properly concede that we must strike the fine even in the absence of an objection in the trial court (see People v. Smith (2001) 24 Cal.4th 849, 852), which consequently does not warrant any further discussion in the opinion. We shall affirm as modified.
We forego a separate recital of the evidence at trial. We will include the facts pertinent to the defendant’s argument in the Discussion.
Discussion
I
A
False imprisonment consists of a restraint on the freedom of another “to stand still or be mobile” (People v. Von Villas (1992) 10 Cal.App.4th 201, 256), through actions or words (or both) that either restrain directly or operate to overbear the other’s will. (People v. Reed (2000) 78 Cal.App.4th 274, 280.) If the defendant uses force greater than that which is reasonably necessary to effect the restraint, it is deemed to be “violence,” which elevates the offense to a felony. (Ibid.) The offense is also a felony where the defendant makes either express or implied threats of harm, which constitute “menace.” (Ibid.)
B
In a sadly familiar scenario involving domestic violence, the defendant began making threatening phone calls to his wife, after they had been separated for some time, in which he said he would kill her. At 2:00 a.m. on the day after she changed her phone number, the defendant burst through the front door of his wife’s home. He grabbed her by the hair and dragged her down the hall “like . . . a rag doll” to her bedroom. He released her. He went down the hall and kicked in the door to his mother-in-law’s bedroom and threatened to kill her and everyone else if she phoned the police. He again grabbed his wife by the hair and dragged her first into the living room and then to the bathroom door. He pushed her, head-first, into the closed door, which burst open. The defendant began questioning his young daughter, who was sitting on the toilet, whether she loved him and wanted him to be part of her life. In the meantime, he stood in the doorway. His wife attempted to push him out, but he pushed her back down. The phone rang, and the defendant went to answer it. When no one responded to his greeting, the defendant smashed the cordless phone on the kitchen counter and again grabbed his wife by the hair, then dragged her toward the front door. At that point, the police had arrived outside. The defendant fled.
The call apparently was from a 911 dispatcher, responding to an interrupted call from the mother-in-law.
At the conclusion of the trial, the defendant moved for a directed verdict that he was guilty at most of misdemeanor false imprisonment because there was insufficient evidence of violence. The prosecution asserted there was sufficient evidence of menace, relying on the defendant’s conduct before the night of the crime, the manner of entering the home, and his conduct in the home such that his confinement of the victim in the bathroom was felony false imprisonment regardless of the amount of force employed. The court denied the motion without elaboration.
The court instructed the jury on both theories of felony false imprisonment, the lesser offense of misdemeanor false imprisonment, and on the need for the jurors to agree unanimously on the act underlying the offense. The prosecutor in his closing argument elected the confinement in the bathroom as the act that underlay the offense, and throughout his remarks emphasized the terror that the defendant intended to instill in his wife and family. Defense counsel focused only on an absence of violence to support a felony conviction.
C
We agree that the defendant’s restraint of the victim’s freedom of movement in the bathroom was not accomplished by either his antecedent threats of harm or his infliction of physical harm on the victim. The victim, rather, was undeterred; only the defendant’s use of force thwarted her attempts to leave the bathroom. Therefore, menace is not a basis for finding the false imprisonment to be felonious.
In derogation of the principles of substantial evidence, defendant emphasizes the lack of any explicit testimony from the victim that she was attempting to leave the bathroom rather than merely attempting to eject the defendant. However, her mother testified that it appeared as if the victim was trying unsuccessfully to get out of the bathroom, and the jury could rationally infer that she intended not only to push the defendant out of the bathroom but also draw the defendant’s attentions away from their daughter by leaving the bathroom as well.
We disagree, however, that the defendant used only the least amount of force necessary to accomplish the restraint on the victim’s freedom of movement. He overcame her resistance in propelling her into a bathroom that she otherwise did not express any interest in entering while their daughter was using it, and he overcame her efforts to push him out of the doorway. This is force beyond merely leading her into the bathroom and standing in the doorway. It suffices to establish violence.
II
Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] held that the use of a sentencing factor (other than recidivism) to increase a prison term beyond the statutory maximum for the facts necessarily reflected in the jury’s verdict violates a defendant’s constitutional right to a jury trial. (Id. at pp. 301, 303-304.) People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I), vacated and remanded sub. nom. Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36], initially concluded that this principle did not apply to the selection of the upper term under our sentencing laws. Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 874-875] found the findings to suffer the same constitutional infirmity. On remand, People v. Black (2007) 41 Cal.4th 799 (Black II) concluded that as long as “one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions,” it does not violate the defendant’s right to jury trial for the court to consider any additional factors in sentencing him. (Black II, supra, 41 Cal.4th at p. 816.)
We first reject the People’s effort to assert that the defendant forfeited this issue because he failed to object on this basis to his sentence. At the time of sentencing in the present case, Black I was the controlling law in California. Regardless of how unpersuasive its efforts to distinguish our state’s sentencing procedures, the trial court was bound to follow Black I until there was a contrary ruling from the state or federal Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We do not require fruitless objections to preserve a point.
People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 (Sandoval).
However, we reject the defendant’s argument on the merits. In imposing the upper term, the trial court noted that it had reviewed the factors in mitigation and aggravation listed in the probation report, adopted them, and found the latter outweighed the former. Among the aggravating factors in the probation report were prior convictions that are numerous or of increasing seriousness, the defendant’s probationary status at the time of the present crimes, and prior unsatisfactory performance on probation. Under Black II, these are legally sufficient to expose the defendant to the upper term (41 Cal.4th at pp. 816, 819-820), at which point the trial court could properly consider any other factors without violating his right to a jury trial. We therefore reject this contention.
As a result, we do not need to consider the People’s claim that any sentencing error was harmless beyond a reasonable doubt (People v. Sandoval (2007) 41 Cal.4th 825, 839), a questionable proposition where subjective sentencing factors are involved such as here (the determination that the offense involved “great” violence or bodily harm, or a “high degree” of cruelty). (Id. at p. 840.)
III
We note an error on the abstract of judgment. Defendant’s name is listed in the abstract as Joel “Alvares” Viveros. Correspondence received from the defendant reflects that his middle name is spelled “Alvarez.” We will order the abstract corrected accordingly.
Disposition
The $400 domestic violence fine is stricken. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment to correct the spelling of the defendant’s name and to strike the $400 fine. The trial court will then forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
We concur: BUTZ , J. CANTIL-SAKAUYE , J.