In re Deandre Q.

Filed 10/05/07 In re Deandre Q. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Deandre Q. (Deandre) appeals from the juvenile courts jurisdictional and dispositional findings sustaining allegations that he committed second degree robbery and felony false imprisonment, ordering out-of-home placement, and setting the maximum time of confinement (MTC) at six years four months. Deandre makes three arguments on appeal, the first of which is that the felony false imprisonment charge was not supported by substantial evidence, with the facts establishing misdemeanor false imprisonment at most. We agree with this contention, and therefore reduce the charge to misdemeanor false imprisonment, which was supported by substantial evidence.

Deandre also contends that the juvenile court improperly excluded relevant evidence of prior conduct that would have negated the intent element on the robbery charge, and that the court improperly set the MTC at six years four months, instead of five years eight months, in violation of Penal Code section 654. We reject these two arguments as detailed below.

We thus hold that the jurisdictional finding shall be amended to reflect the reduction of the false imprisonment charge from a felony to a misdemeanor, and the matter is remanded to the juvenile court for a recalculation of the MTC in light of that amendment. In all other regards, the jurisdictional and dispositional findings are affirmed.

I. Background

On March 8, 2006, the San Francisco District Attorney filed a supplemental petition[1] alleging that Deandre, who was 16 years old at the time, came within the provisions of Welfare and Institutions Code section 602 in that he committed second degree robbery in violation of Penal Code section 212.5, subdivision (c) (count 1) and felony false imprisonment in violation of Penal Code[2]section 236 (count 2). The allegations stemmed from an incident on February 28, 2006, involving Deandre, an acquaintance named Reynaldo S. (Reynaldo), and the victim, Heather B. (Heather). At a contested jurisdictional hearing held on June 23, 2006, the following evidence was presented.

Heather testified that on February 28, 2006, she was attending school in San Francisco, at a school also attended by Deandre. After school let out that afternoon, Heather was on her way to a bus stop when Reynaldo, another schoolmate, came up from behind her and grabbed her in a bear hug. Deandre then came up and did the same thing, pinning her up against a car for approximately 10 seconds. After Heathers repeated requests to be let go went unheeded, she called to a friend named Ricardo for help. Only upon Ricardos intervention did Deandre and Reynaldo finally release her. Seconds later, Heather learned that Deandre had her wallet, which she had been carrying in her purse. When she ran after Deandre to retrieve her wallet, he threw it in the air, and Ricardo caught it. When Heather got her wallet back, she was missing $11. She immediately returned to school to report what had happened and subsequently described the incident to San Francisco Police Officer Lori Brophy.

In response to questioning by defense counsel, Heather acknowledged that Deandre hadin the words of defense counselgoofed around with her before, including incidents where he had taken things and goofed around with [her] and given them back . . . . She also acknowledged having been told by other people that Deandre behaved the way he did because he liked her. As to Reynaldo, Heather had previously told him not to touch her because he was creepy.

Officer Brophy, the police officer who took Heathers statement after the incident, testified at the hearing that on March 3, 2006, she interviewed Deandre, who described what happened as follows: While Heather was leaning against a car, Deandre approached her from the side, grabbed her arm and leg, and lifted her onto the car. He then saw her wallet on the hood of the car, grabbed it, and walked away toward the bus stop. He opened the wallet and saw four or five bills inside, $2 of which he kept for himself and the remainder of which he gave to Reynaldo. Deandre subsequently gave the $2 he had kept to Ricardo.

At the conclusion of the prosecutions case, counsel for Deandre made a motion to dismiss, arguing that there was insufficient evidence to show robbery by force or fear, characterizing the incident as a situation here where it appears the boys were goofing around and she told them to stop and they stopped. And in the course of that a wallet was taken either from the purse or the hood of a car. [The] People have not demonstrated that force or fear was used with the specific intent to rob. The prosecution disputed this portrayal of the evidence, contending it showed instead that Heather was grabbed and held against her will despite repeated requests to be released, and her wallet was taken. The court denied the motion.

Deandre then testified on his own behalf. Consistent with Heathers testimony, he confirmed that Reynaldo walked up from behind Heather and gave her a bear hug, putting both of his arms around her. According to Deandre, however, he then requested a hug from Heather: [W]hen I went over there Reynaldo walked away. I went over there because I seen [sic] the wallet on the hood of the car. And I asked Heather for a hug. And when she gave me a hug, I went and grabbed her wallet. He claimed to have done so just to mess with her, to [t]ease her. Deandre denied grabbing Heather by her arm and leg, as he had told Officer Brophy, but instead claimed that he grabbed her under her arms. According to Deandre, his intention with the wallet was to walk far away and tell her I had her wallet so she had to come towards me. Instead, after an acquaintance told Heather that Deandre had her wallet, he opened the wallet, finding four bills in it. He initially kept $2 for himself and gave Reynaldo the remaining money, but he then gave the wallet and the $2 to Ricardo. Deandre later paid Heather another $11 out of his lunch money.

On cross-examination, Deandre admitted that when Ricardo first demanded Heathers wallet back, he initially denied having it and returned it only after he saw Heather going to report the theft to school personnel. Deandre also admitted he did not tell Officer Brophy that he was teasing Heather when he took the wallet. Further, he acknowledged that he did not return the remainder of the money taken from Heathers wallet until April, several months after his arrest in this case and after he was expelled from school.

At the conclusion of the jurisdictional hearing, the court stated, The [c]ourt has also found beyond a reasonable doubt that the child has committed the following offenses: [section] 212.5(c), which is robbery in the second degree, as well as [section] 236 of the Penal Code [false imprisonment]. The [c]ourt has considered whether the offenses are misdemeanors or felonies and has determined that the offenses would be a felony if committed by an adult.

On July 31, 2006, the trial court entertained Deandres motion to set aside the findings, a motion made on the grounds that the findings were contrary to law, were a miscarriage of justice, and violated [Deandres] constitutional rights under the United States and California Constitutions. The court denied the motion, stating I want to explain that my decision was based primarily on Heathers testimony because I found there were inconsistencies in Deandres testimony. And I think that his testimony was not credible insofar as there were inconsistencies. And so the decision was primarily based on Heathers testimony and also based on his own admissions as to what he did and the conduct during the time of the robbery.

On August 2, 2006, the trial court held a dispositional hearing at which time the court redeclared the wardship and ordered Deandre committed to an out-of-home placement. While the court did not determine the MTC during the hearing, the minutes of the hearing provide, Maximum confinement time is 6 years and 4 months.

Deandre filed a timely notice of appeal.

II. Discussion

A. The Finding of Felony False Imprisonment Is Unsupported by Substantial Evidence and Must Be Reduced to Misdemeanor False Imprisonment

Section 236 defines the crime of misdemeanor false imprisonment as the unlawful violation of the personal liberty of another. The crime of false imprisonment becomes a felony if it is effected by violence, menace, fraud, or deceit . . . . ( 237, subd. (a).) For these purposes, violence has been defined as  the exercise of physical force used to restrain over and above the force reasonably necessary to effect [the] restraint.  (People v. Babich (1993) 14 Cal.App.4th 801, 806 (Babich), italics omitted, quoting CALJIC No. 9.60.) Menace in this context is  a threat of harm express or implied by word or act.  (Ibid.) As explained in People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462 (Hendrix), 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.

In light of these standards, Deandre challenges the courts finding that he committed felony false imprisonment, contending that, at most, the evidence supports a finding of the lesser offense of misdemeanor false imprisonment . . . . As he explains it, there was insufficient evidence of violence, i.e., physical force over and above the force reasonably necessary to effect the restraint. There were no weapons. The conduct was in a public place and it was broad day-light. [Citation.] There was no physical violence, no punches, kicks or struggle of any type. The extent of the physical contact was a bear-hug by Reynaldo and both boys holding Heather against the car for a short period of time.

The People, on the other hand, contend that the felony finding is supported by the uncontested evidence: [Deandre] grabbed the victims arms from behind, either pinned her against, or lifted her onto, the hood of the parked car, and . . . held her in that position for 10 seconds despite her pleas to be released. [Deandre] admitted that conduct to Officer Brophy at the time of his arrest and again during his testimony. That evidence established an exercise of physical force [for felony false imprisonment] over and above the force reasonably necessary to effect such restraint for misdemeanor false imprisonment. [Deandres] conduct became felonious when it was effected (Pen. Code, 237) by the violence of pinning the victims arms and holding her against the car against her will until he could take her money and she was rescued by a friend.

In order to resolve this dispute, we must ask ourselves, was there evidence that Deandre used physical force on Heather over and above that which was reasonably necessary to restrain her? And in reviewing the evidence in the light most favorable to the judgment (People v. Rodriguez (1999) 20 Cal.4th 1, 11), we must answer that question in the negative. Here, the force used by Deandre to restrain Heather was either an uninvited bear hug and pinning her against a car (Heathers version), lifting her up by her arm and leg and placing her on the hood of a car (Officer Brophys report), or a welcomed hug (Deandres testimony). What, then, was the additional force employed by Deandre beyond that used to restrain? We find no evidence of such force in the record, and the People have failed to identify any, repeatedly pointing only to the force that was reasonably necessary to Deandres restraint of Heather. It is important to bear in mind that physical force is an element of both felony and misdemeanor false imprisonment. (Hendrix, supra, 8 Cal.App.4th at p. 1462.) Only where force beyond that reasonably necessary to effect the restraint is used does the crime qualify as a felony. (Ibid.) Try as we might, we simply cannot find any suggestion that Deandre exercised physical force  over and above the force reasonably necessary to  restrain Heather. (Babich, supra, 14 Cal.App.4th at p. 806, quoting CALJIC No. 9.60.) We therefore conclude that the felony false imprisonment finding was unsupported by substantial evidence.

This result is supported by People v. Castro (2006) 138 Cal.App.4th 137 (Castro), a case relied upon by both Deandre and the People.[3] There, the victim was walking down the street when the defendant drove by and attempted to talk to her. She tried to ignore him and kept walking, when he suddenly grabbed her arm, gave her  a little tug,  and pulled her in the direction of his car. (Id. at pp. 140-142, italics omitted.) She took  a couple of steps  towards his car and then pulled away and started running. (Id. at p. 142.) The jury found the defendant guilty of felony false imprisonment, assault and battery. (Id. at p. 139.) On appeal, the court determined, inter alia, that the conviction for felony false imprisonment [was] supported by sufficient evidence. (Id. at p. 143.) As the court explained, [A]ppellant 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. . . . In any event, we conclude the evidence that appellant used force to pull the victim toward his car was sufficient to establish force above that required for misdemeanor false imprisonment. (Ibid.)

We agree with Deandre that [u]nlike Castro[,supra, 138 Cal.App.4th 137], there is no evidence in the current case that Deandre attempted to take Heather anywhere. There is no evidence of pulling or tugging. There is no evidence of force above and beyond that necessary to effectuate restraint. There is therefore no evidence of violence and insufficient evidence of felony false imprisonment. Thus, as in Castro, there was no felony false imprisonment.

The People do not attempt to distinguish Castro, supra, 138 Cal.App.4th 137, arguing instead that it supports the felony false imprisonment finding here. They explain: The victim here testified that she was walking toward the bus stop when [Deandre] and his cohort approached her from behind, pinned her arms to her sides, pressed her against or lifted her onto the hood of a parked car, and refused to release her when asked. [Deandre] only released the victim after he robbed her and her boyfriend came to her aid. [Citation.] The evidence of physical violence here is even stronger than the evidence in Castro. Again, however, the People fail to identify what specific violenceDeandre used beyond that necessary to restrain Heather. In Castro, it was the force employed in pulling the victim towards the defendants car. (Castro, supra, 138 Cal.App.4th at p. 143.) But here, there was simply no such force.

Make no mistake that, despite concluding the felony false imprisonment charge was unsupported by substantial evidence, we in no way condone Deandres conduct. Indeed, we take great exception with Deandres attempt to minimize the entire incident as school kids engaging in horseplay. To the contrary, regardless of which version of the incident ones accepts as true, the fact remains that the attention was unwelcome, and Deandre and Reynaldo did not yield to Heathers requests to be released until another individual intervened. By labeling his unacceptable behavior as just goofing around, Deandre fails to recognize the severity of his conduct and the impact it had on Heather. We hope he now understands otherwise.

B. The Trial Court Did Not Abuse Its Discretion in Excluding Evidence of Deandres Prior Conduct to Negate Intent

In his second argument, Deandre contends that the trial court improperly excluded testimony that would have negated the intent to permanently deprive element necessary to sustain the robbery allegation.[4] Specifically, during examination of Deandre, his counsel asked, I want to talk to you specifically about a time that you took [Heathers] CD. Can you tell the judge what happened? The prosecution objected on relevance grounds, which objection the court sustained. According to Deandre, he was going to testify regarding a past incident wherein he had taken a CD from Heather without intending to steal. He submits, Evidence that in the past Deandre had taken items from Heather but intended to return them would tend to show that in this instance he intended the same and therefore would tend to negate the intent element of robbery.

Deandre concedes that, pursuant to Evidence Code section 1101, subdivision (a), [o]rdinarily specific instances of conduct cannot be used to prove a defendant acted in conformity therewith on the occasion of the offense. He contends, however, that evidence of a past incident in which Deandre took and then returned a CD of Heathers was admissible because it was probative of Deandres intent with respect to the wallet and there was a substantial degree of similarity between the past conduct of taking the CD and the current conduct of taking the wallet. The exclusion of the evidence was prejudicial error, he argues, since [t]he record reveals serious questions regarding Deandres intent at the time that the force was employed because there was no evidence that either Deandre or Reynaldo grabbed for Heathers wallet and that it instead fell out of Heathers purse during physical contact [that] was juvenile horseplay. Had Deandre been allowed to testify about the CD incident, he contends, it is reasonably probable that the judge would have found reasonable doubt on the intent issue, and would have acquitted on the robbery. We disagree.

As a procedural matter, the People contend that Deandre waived this argument on appeal by failing to make an offer of proof below. Deandre, on the other hand, submits that he did not waive the argument because, pursuant to Evidence Code section 354, subdivision (a), an offer of proof is unnecessary where the relevance was made known through the questions asked or other means. Consistent with the Evidence Code requirements, defense counsels questions made the claimed relevance of the question known to the court such that the issue was adequately preserved.

As to the substance of Deandres challenge, we need not determine whether the juvenile court abused its discretion in excluding the testimony (see People v. Cole (2004) 33 Cal.4th 1158, 1195) because assuming arguendo that it did, the error was harmless for two reasons. (See Chapman v. California (1967) 386 U.S. 18, 23.) First, contrary to Deandres claim that [t]he record reveals serious questions regarding Deandres intent at the time that the force was employed, we consider the evidence of his intent to be quite extensive. The testimony establishedindeed, Deandre never deniedthat he took Heathers wallet, removed all of the cash, kept some for himself and gave the remainder to Reynaldo. Deandre admitted that he did not repay Heather for the missing money until months later, long after he had been arrested and expelled from school. Further, when he admitted his involvement in the incident to Officer Brophy, he never conveyed to her that he was just goofing around. This is ample evidence of Deandres intent to permanently deprive Heather of her property at the time he took her wallet, evidence that would not likely have been overcome by testimony that on a prior occasion, Deandre took a CD from Heather and returned it later. Combined with the trial courts clearly expressed skepticism regarding Deandres credibility, it is not reasonably probable that a result more favorable to Deandre would have been reached in the absence of any purported error. (People v. Boyette (2002) 29 Cal.4th 381, 428.)

As to Deandres contention that [t]here was no evidence presented that either boy grabbed for the purse or the wallet, we disagree. Heather testified that the wallet was in her purse, and the only evidence to the contrary was Deandres self-serving testimony that after Reynaldo hugged Heather, Deandre looked over and saw her wallet on the hood of the car.

Exclusion of testimony regarding the CD, again assuming arguendo it was relevant, was also harmless error because the gist of the testimony came into evidence through other means. For example, when asked by defense counsel whether Deandre has goofed around with you before?, Heather acknowledged that both Deandre and Reynaldo had done so. She also acknowledged past incidents where Deandre has taken things and goofed around with [her] and given them back . . . and having been told by other people that Deandre behaved the way he did because he liked her. Likewise, Deandre testified that he grabbed Heathers wallet just to mess with her, to [t]ease her. Thus, the court heard plenty of evidence that could support Deandres theory that he was just goofing around and lacked intent to permanently deprive Heather of her money. And the court rejected it. Again, it is not reasonably probable that additional testimony pertaining to a specific incident of goofing around would have changed that result.

C. The Trial Courts Calculation Of the MTC Was Supported by Substantial Evidence

In his final argument, Deandre contends that the sentencing judge erred in setting the MTC at six years four months (five-year upper term on the robbery charge, eight months on the felony false imprisonment charge (one-third the midterm), and eight months (one-third the midterm) on the prior sustained petition for accessory after the fact), because section 654 prohibited the court from imposing a sentence on the false imprisonment charge in addition to the robbery charge. Instead, he posits that the MTC should have been fixed at five years eight months.

Section 654 provides in pertinent part, An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Section 654 prohibits multiple punishment for a single act or omission, where the defendant violates multiple criminal statutes as a means of accomplishing one objective, and the defendant harbored a single intent. (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044.) Likewise, multiple punishment is prohibited when an indivisible course of conduct resulted in the violation of multiple criminal statutes accomplished with a single intent and objective. (People v. Hester (2000) 22 Cal.4th 290; People v. Alvarado (2001) 87 Cal.App.4th 178; People v. Akins (1997) 56 Cal.App.4th 331 (Akins).) If all offenses were incidental to one objective, defendant may be punished for any one of the acts but not for more than one. (People v. Castro (1994) 27 Cal.App.4th 578, 582-84.)

As Deandre correctly notes, questions regarding issues arising under section 654 are for the trial court to decide, and the trial courts determination will be upheld on appeal if it is supported by substantial evidence. (See Akins, supra, 56 Cal.App.4th at p. 339.) And we conclude that the trial courts determination here was supported by substantial evidence.

According to Deandre, [t]he force employed during the false imprisonment was necessarily the same force that was employed during the robbery. The robbery could not have occurred without the false imprisonment. The two offenses occurred simultaneously or nearly simultaneously. For the robbery findings to stand, the court necessarily found that at the time of the false imprisonment Deandre intended to deprive Heather of her property. Because the false imprisonment violation and the robbery violation occurred during an indivisible course of conduct and were necessarily accomplished with a single intent and objective double punishment is statutorily barred. This argument is flawed for one significant reasonthe false imprisonment and robbery were not necessarily accomplished with a single intent and objective. The evidence supports the conclusion that the false imprisonment was accomplished for the purpose of harassing Heather, while the robbery was accomplished for the purpose of taking her money. This distinction is sufficient to justify separate punishments for the two charges.

Further, Deandre erroneously contends this situation is analogous to that in People v. Gomez (1992) 2 Cal.App.4th 819, in which the defendant was charged with four counts, including kidnapping for purposes of robbery and robbery in the second degree. (Id. at pp. 823-824.) The jury returned a guilty verdict on all counts, and the defendant received a substantial sentence, including life with the possibility of parole on the kidnapping for robbery conviction and three years for the robbery conviction. (Id. at p. 824.) As one of his numerous arguments on appeal, the defendant argue[d] that his sentence on the robbery conviction must be stayed pursuant to section 654 since the offense of robbery was necessarily included in the offense of kidnapping for the purpose of robbery. (Id. at p. 826.) The Court of Appeal noted that the People conceded the argument, and found the concession well taken. (Id. at p. 827.) We are not, however, presented with the same situation here, since false imprisonment is not a lesser included offense of robbery. (People v. Reed (2000)78 Cal.App.4th 274, 282 (Reed).) On the other hand, there are numerous cases recognizing that the imposition of multiple sentences on robbery and false imprisonment convictions, such as here, does not violate section 654. (See, e.g., People v. Foster (1988) 201 Cal.App.3d 20, 27-28 [trial court did not violate section 654 by imposing consecutive sentences on robbery and false imprisonment convictions]; Reed, supra, 78 Cal.App.4th at p. 277 [court imposed concurrent sentences on a robbery conviction and three false imprisonment convictions].)

Alternatively, Deandre contends that because no competent findings have been made relating to section 654, the matter should be remanded for the trial court to make a determination whether section 654 applies. (Footnote omitted.) We disagree that remand is necessary on this issue. Although not reported, the court and counsel apparently engaged in a discussion regarding the proper MTC. Although initially indicating that it would defer the decision, the court then entered minutes setting the MTC at six years four months.[5] The mere fact that the finding did not take place on the record does not mean that the juvenile court made no findings on the matter.

Additionally, There is perhaps no rule of review more firmly established than the principle that a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason. If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion. (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568.) Or, as Witkin puts it, If the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  340, p. 382.) And as detailed above, we conclude that the juvenile courts calculation of the MTC was supported by substantial evidence. Remand for that purpose is therefore unnecessary.

III. Disposition

The jurisdictional findings shall be amended to reflect a finding of misdemeanor false imprisonment. The matter is remanded to the juvenile court to recalculate the MTC in accordance with that amendment. In all other aspects, the jurisdictional and dispositional findings are affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P. J.

_________________________

Lambden, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

[1] This supplemental petition was preceded by a petition filed on May 21, 2003, that resulted in the court sustaining a charge of accessory after the fact and declaring Deandre a ward of the court with a MTC of three years.

[2]All further statutory references are to the Penal Code unless otherwise indicated.

[3] Deandre also relies on People v. Matian (1995) 35 Cal.App.4th 480, which holding arguably supports his position as well. However, like the Castro court, [w]e have trouble understanding the conclusion the Court of Appeal reached in Matian. (Castro, supra, 138 Cal.App.4th at p. 143.) Accordingly, we decline to discuss it here.

[4] The elements of robbery are: (1) a taking (2) of personal property (3) in the possession of another (4) from her person or immediate presence (5) against her will (6) accomplished by means of force or fear (7) with an intent to permanently deprive. (People v. Prieto (1993) 15 Cal.App.4th 210, 213.)

[5] The issue of the correct maximum confinement time was discussed at the August 2, 2006, dispositional hearing. There, the court noted that we have a difference of opinion between counsel about what the maximum confinement time is. The People are taking a position, as I understand it, that it is six years, four months, and I believe [counsel for Deandre] says five years, eight months, because of the merging per [section] 654 of two of the charges. The court declined to make a decision on the issue at the hearing, citing the absence of the file and an opportunity to look at it. The court then expressly afforded counsel for Deandre the opportunity to file a motion addressing the issue, but for reasons not apparent from the record, no such motion appears to have ever been filed.