Filed 12/18/17 P. v. Cary CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTIAN EDWARD CARY,

Defendant and Appellant.


G053494

(Super. Ct. No. 13WF2329)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.


A jury convicted defendant Christian Edward Cary of felony false imprisonment but acquitted him of kidnapping. The court suspended imposition of sentence and placed him on informal probation. Defendant contends there is insufficient evidence to support his false imprisonment conviction, and the court abused its discretion by denying his motion for new trial on the ground the verdict was contrary to the evidence. We reject these arguments and affirm the judgment.
FACTS
On the evening of July 30, 2013, David Haelhke called 911 and reported he had been carjacked in downtown Huntington Beach. He stated, “When I was walking into the parking lot, these two guys held a knife to me and they said that I needed to drive them somewhere or else they were going to hurt me.”
Huntington Beach Police Officer Jake Knox was the first to respond. Haelhke appeared nervous and scared. Haelhke told Knox he had been surrounded by two male subjects as he walked through a parking structure. One of the subjects produced a folding knife with the blade extended, held it to his own right thigh, and told Haelhke they needed a ride. Haelhke then walked with the subjects to his car some distance away, and he gave them a ride to a residential area a few miles away where he dropped them off.
Huntington Beach Police Officer Arvar Elkins responded a short time later, and assumed primary responsibility for the investigation. First, Elkins spoke to Knox and learned defendant and his friend Dylan had been detained, and that Haelhke had identified them in an infield show-up as the perpetrators. Haelhke recognized defendant from high school but did not know Dylan.
Elkins next interviewed Haelhke. Haelhke seemed scared. He told Elkins defendant and Dylan had stepped in front of him and asked for a ride. Haelhke told them he couldn’t give them a ride, but they persisted. At some point they offered to pay him $15 for a ride, but he refused again. They began inching closer and he took several steps back, but he was cornered as they continued to ask for a ride and he continued to tell them he could not.
Haelhke told Elkins that Dylan then reached into his right pocket with his right hand, and pulled a knife out far enough for Haelhke to see the blade. Upon seeing the knife, Haelhke was afraid of being stabbed so he quit refusing and agreed to give them a ride. With Dylan walking in front of Haelhke and defendant walking slightly behind him, they walked about a quarter of a mile to where Haelhke had parked his car.
After Haelhke unlocked his car, he got into the driver’s seat, Dylan got into the front passenger seat, and defendant got into rear passenger seat. Haelhke followed Dylan’s directions and drove to a residential area where they told him to stop. Defendant and Dylan both quickly jumped out of the car and ran northbound through a condominium complex.
Elkins told Haelhke his accusations were serious, and repeatedly asked him if he was sure he had been forced to give defendant and Dylan a ride. Haelhke responded yes, he was sure he had been forced to give them a ride.
Police officers had located defendant and Dylan nearby in Dylan’s parents’ garage. Defendant was seated on a cooler in the garage, and Dylan was sitting close to him. The officers found an open knife on top of a shelving unit within arm’s reach of defendant and Dylan. Defendant and Dylan denied being in downtown Huntington Beach earlier that evening. Defendant said he had been with Dylan at Dylan’s parents’ house since the afternoon playing video games.
After arresting defendant and Dylan, Huntington Beach Detective John Topartzer placed them in a patrol car with a hidden recording device. The recording was played for the jury and a transcript was provided to them.
In the recording, Dylan threatened to beat defendant up for talking to the police. Defendant wanted to get their “stories . . . straight” but Dylan said “there is no story. I’m not going with your fucking story.” Dylan told defendant not to say anything more to the police and to ask for an attorney.
Later in the recording, Dylan said, “Fucking [Haelhke]. He fucking, like oh yeah, we’ll give you 15 bucks if you fucking take us home. . . . So he takes us home and we fucking have him come in the complex and then we’re like, all right yeah, I got you, I’ll pay you. Whoop. And then we just run. And then he fucking, I guess he must have fucking called the cops and told them we fucked him up.” Dylan speculated, “Only thing I can think of. What did he even do? Does he even look fucked up or did he fuck himself up to try and frame us? I can’t even imagine.”
After police arrested defendant and Dylan, Dylan’s father contacted Haelhke and offered him $1,000 to drop the charges against Dylan. As a result, Haelhke went to the Huntington Beach Police Department and attempted to get the charges against Dylan dismissed.
At the time of trial in 2016, Haelhke, who suffers from Asperger’s syndrome and autism, was 21 years old. Haelhke testified under a grant of immunity and recanted his statements to the 911 operator and the officers about seeing a knife or Dylan pulling a knife on him. Haelhke said he lied to the 911 operator because he was angry when defendant and Dylan ran away without paying him the $15. He had felt humiliated and wanted something bad to happen to them because they had tricked him out of money. People had disrespected him his whole life and he had had enough.
Haelhke’s trial testimony was otherwise generally consistent with his statements to the officers on the night of the incident. Defendant and Dylan had asked him for a ride to one of their homes but Haelhke said no. They persisted and “were being kind of mean about it” and Haelhke felt intimidated into giving them a ride. Haelhke finally agreed when they offered $15 for a ride.
As they were walking to Haelhke’s car, Haelhke told them one of Dylan’s friends had tricked him out of $120 a few days earlier, thinking Dylan could help him recover the money. Instead, Dylan told Haelhke he would hurt him if he tried to recover that money.
Upon arriving at Haelhke’s car, Dylan got into the front passenger seat and told him where to go, while defendant sat in the backseat behind Dylan. Haelhke drove about two miles to a residential area. When he stopped pursuant to Dylan’s direction, Dylan and defendant jumped out of the car and ran off without paying him the $15.
Haelhke also testified he was afraid of defendant and did not want to testify because he was afraid defendant might retaliate. He has never called 911 and made a false report and is not the type of person who would do that.
Defendant testified, among other things, he did not see Dylan with a knife on the day of the incident. He admitted, however, to having seen Dylan carry a knife on previous occasions.
Dr. Alexander Gantman, a clinical psychologist who specializes in autism and Asperger’s syndrome, testified as a defense expert. According to Gantman, persons on the autism spectrum often “experience a significant amount of peer rejection, bullying, [and] teasing, starting around middle school . . . .” As a result, their reactions can be extreme. Although “lying is unusual” for a person with autism, that does not mean they cannot lie. Generally, however, such a person would feel bad and try to retract the lie once he or she calmed down.



DISCUSSION
1. Sufficiency of the Evidence
Defendant contends there is insufficient evidence to support his false imprisonment conviction. Defendant argues insufficient evidence shows he “unlawfully violated Haelhke’s personal liberty via violence or menace. Specifically, there was insubstantial evidence that a knife was ever involved.” We disagree.
“When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Our review must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]” (People v. Zaragoza (2016) 1 Cal.5th 21, 44.) “[T]he relevant inquiry on appeal is whether, in light of all the evidence, ‘any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ [Citation.]” (Ibid.)
“False imprisonment is the unlawful violation of the personal liberty of another.” (Pen. Code, § 236.) “‘“[P]ersonal liberty ”’ is violated when ‘the victim is “compelled to . . . go where he does not wish to go.”’ [Citations.] It is the restraint of a person’s freedom of movement that is at the heart of the offense of false 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 . . . .’”’ [Citations.]” (People v. Reed (2000) 78 Cal.App.4th 274, 280 (Reed).)
“The offense becomes felonious when it is ‘effected by violence, menace, fraud, or deceit . . . .’ [Citations.] ‘“Violence” . . . means the “‘the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint.’”’ [Citations.] ‘Menace’ is defined as ‘“‘a threat of harm express or implied by word or act.’”’ [Citation.]” (Reed, supra, 78 Cal.App.4th at p. 280.)
Here, the prosecutor relied on the theory that defendant and Dylan used menace to force Haelhke to give them a ride. Substantial evidence supports this theory. Haelhke told the 911 operator Dylan had a knife. Haelke told both Knox and Elkins that Dylan had displayed a knife and demanded Haelhke give them a ride, which he did out of fear of being stabbed if he refused. Other officers found an open knife within arm’s reach of defendant and Dylan in the garage where they were located after the incident. Moreover, although defendant testified he did not see Dylan with a knife on the night of the incident, he admitted he had seen Dylan carry a knife in the past. From these facts, a reasonable jury could have found beyond a reasonable doubt that defendant and Dylan used menace to force Haelhke to give them a ride.
Defendant maintains there is no substantial evidence a knife was involved, because Haelhke testified at trial under a grant of immunity and recanted his statements to the 911 operator and to the officers about a knife. Defendant also argues the testimony of Gantman, “explained that those with Asperger[’s] actually do not feel comfortable with lying so, once they calm down, will try to retract any falsehoods. This explained why Haelhke downplayed the knife in subsequent accounts.”
These arguments, however, were all considered and rejected by the jury at trial. And defendant is essentially asking us to assess the credibility of the witnesses, reweigh the evidence, and substitute our judgment for the jury’s. That we cannot do. (People v. Jones (1990) 51 Cal.3d 294, 314-315.) It is the jury’s job to determine the credibility of the witnesses and the weight, if any, to be given to their testimony. (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.)
Defendant contends People v. Cuevas (1995) 12 Cal.4th 252 (Cuevas) dictates a contrary conclusion. We are not persuaded. In relevant part, Cuevas held substantial evidence supported the defendant’s assault with a firearm conviction, based on the out-of-court identification of the defendant by two witnesses, even though both of those witnesses recanted their identification at trial. (Id. at pp. 275-277.)

After reviewing the evidence, the Cuevas court found: “[A] reasonable jury could have concluded that [the witnesses] were telling the truth when they made their out-of-court statements to police officers and that they recanted those statements in court for gang-related reasons. Those out-of-court statements are ‘substantial evidence—that is, evidence which is reasonable, credible, and of solid value—’ [citation] from which a reasonable jury could conclude beyond a reasonable doubt that defendant assaulted [victim] with a firearm.” (Cuevas, supra, 12 Cal.4th at pp. 276-277.)
The same is true here. The substantial evidence test is satisfied since a reasonable jury could find from the evidence presented that the prosecution had shown menace beyond a reasonable doubt because defendant and Dylan used a knife when they forced Haelhke to give them a ride. As set forth in greater detail above, it is undisputed Haelhke told the 911 operator, Knox and Elkins that Dylan had used a knife and, minutes later, the officers found defendant and Dylan within arm’s reach of an open knife.
Although Haelhke recanted his out-of-court statements about the knife at trial, he admitted he had made them. Plus, here, as in Cuevas, the prosecution offered evidence of a motive to falsely recant the out-of-court statements. Haelhke told Knox, and testified at trial, he was afraid of retaliation from defendant and Dylan. He did not want to appear in court because he was afraid defendant and his friends “might lash out” against him for testifying. And Dylan’s father had contacted Haelhke and offered him $1,000 to drop the charges against Dylan.
Defendant claims Haelhke had a motive to lie about the knife because his “autism made him prone to extreme feelings of hurt and ridicule, causing him to overreact.” He further claims Haelhke’s out-of-court statements did not reflect a high degree of corroboration and detail because his story changed as the night progressed. But again, these claims were rejected by the jury, which undoubtedly considered them in determining Haelhke’s out-of-court statements were credible.
As Cuevas explained, “[J]uries are capable of determining the credibility of out-of-court statements that are inconsistent with a witness’s trial testimony by observing the witness’s in-court demeanor: ‘If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of the words uttered under oath in court.’ [Citation.]” (Cuevas, supra, 12 Cal.4th at p. 273.)
In sum, viewing the record in the light most favorable to the judgment as we must, it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find defendant guilty of false imprisonment with menace beyond a reasonable doubt. Having reached this conclusion, we need not address the Attorney General’s additional menace argument that defendant and Dylan verbally threatened to harm Haelhke, if he tried to get his $120 back from Dylan’s friend.
2. New Trial Motion
Defendant’s trial counsel filed a motion for new trial (first motion) on various grounds, including that the verdict is contrary to the evidence. (Pen. Code, § 1181, subd. 6 (section 1181(6)).) The court conducted a hearing, entertained extensive argument, and ultimately denied the first motion.
Almost a year later, defendant’s posttrial counsel filed a second motion for new trial (second motion) on various grounds, including ineffective assistance of his trial counsel for failing to request a jury instruction on mistake of fact. The second motion also purported to incorporate by reference all of the arguments and authorities in the first motion. The prosecution opposed the second motion in part on the basis that the court had no authority to entertain a second new trial motion, on any ground other than ineffective assistance of counsel. The court agreed with the prosecution, conducted a hearing, entertained argument, and ultimately denied the second motion, addressing only the ineffective assistance of counsel claim.
We review the trial court’s denial of defendant’s new trial motions under the abuse of discretion standard. (People v. Knoller (2007) 41 Cal.4th 139, 156.) “Such an abuse of discretion arises if the trial court based its decision on impermissible factors [citation] or on an incorrect legal standard [citations].” (Ibid.) The court also abuses its discretion where it misconceives its duty or fails to independently consider the weight of the evidence. (People v. Robarge (1953) 41 Cal.2d 628, 634 [trial court erroneously deferred to jury’s determination of credibility].)
“The court extends no evidentiary deference in ruling on a section 1181(6) motion for new trial. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a ‘13th juror.’ [Citations.] If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury’s verdict is ‘contrary to [the] . . . evidence.’ [Citations.] In doing so, the judge acts as a 13th juror who is a ‘holdout’ for acquittal.” (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.)
Defendant contends the court abused its discretion by denying the first motion because, “the court misperceived of its duty under the motion for new trial, [and] accepted the jury’s findings in preference to its own appraisal of the evidence.” The record does not support this contention.
During the hearing on the first motion, the court and defense counsel discussed at length the court’s duty in ruling on a motion for new trial under section 1181(6). Defense counsel emphasized the court’s duty to act independently as a 13th juror. For example, defense counsel stated: “[T]he judge has to give his independent analysis of what the court thinks of what the court’s heard. . . . [¶] . . . [¶] . . . [T]he court’s duty [is] to re-examine the evidence independently and de novo and say I, as the judge in this case, don’t think the evidence supports the verdict for whatever reasons. . . . [¶] . . . [¶] The court has to independently reweigh the evidence and actually reweigh it. . . . You have to reweigh it in your own right, own initiative.”
The court agreed and responded, “Right.”
Admittedly, at one point the court asked, “But under the credibility analysis, not a sufficiency of the evidence analysis, would you not . . . agree that more deference I guess has to be paid to the presumption that the 12 were right versus the opinion of just one?” Defense counsel answered, “No,” and the following discussion ensued:
“[Defense counsel]: [People v. Dickens (2005) 130 Cal.App.4th 1245 holds] that it [is] very much on this court’s shoulders to decide how this court views the evidence, not how the jury would. Because if this court were bound by how the jury viewed it, [section 1181(6)] wouldn’t be in the statute, it wouldn’t be in the case law, and you would just have to say the jury decided and that’s it.
“THE COURT: I understand. I think what you just quoted and you mentioned in your paperwork, really it shows the dynamics the interwoven aspect of sufficiency of the evidence and weight of the evidence.
“Because when the day is done, it kind of really – however you get there, it gets to the sufficiency of the evidence.
“[Defense counsel]: Except the word ‘sufficiency’ has different meanings in this context. In one context it’s sufficiency like the Court of Appeal would look at it, in one context it would be independently reweighing, which the Court of Appeal would never be able to do.
“THE COURT: And that’s the distinction. The Court of Appeals would never get the opportunity to make an independent call as to credibility whereas the [trial] court at this point, at this junction, in this mechanism does?
“[DEFENSE COUNSEL]: Yes. Both as to credibility and weight. There’s a reweighing. And you can do – and that’s because your honor was here and you saw the witnesses. The court of appeals didn’t.
“THE COURT: Exactly. Okay.”
Defendant acknowledges, this discussion appears to show the court understood its duty in ruling on a motion for new trial under section 1181(6).
Moreover, in explaining why it denied the first motion, the court stated, among other things: “I thought long and hard about this. And I looked at, you know, all the evidence that was proffered in this case . . . .” Finally, the court stated it had read and considered the points and authorities filed with the court, which correctly stated the court’s duty in ruling on a motion for new trial under section 1181(6).
During the second hearing, almost a year later, after denying the second motion and before sentencing defendant, the court commented: “I think I’ve indicated to counsel in chambers, its thought about the case in the sense of the level of punishment, not necessarily, whether he’s guilty or not guilty. The jury has spoken. I’m not going to say they were right or wrong; I’m just going to uphold it. Okay? [¶] But I have respect for both counsel and their respective positions. And certainly, if I had had the ability under [Penal Code section] 17[ subdivision ](b) or chose to have revisited [section] 1181(6), I probably would have knocked it down to a misdemeanor.” (Italics & underscoring added.)
Defendant claims the italicized comments show the court “essentially abstained from its duty to ensure that the function of the jury was intelligently and justly exercised” while the underscored phrase demonstrates the court “did not actually agree with the jury’s verdict.” We are not persuaded.
Again, the court made these statements after denying the second motion for new trial, addressing only the ineffective assistance claim. These comments did not explain the basis for the court’s ruling on the first motion nearly a year earlier and, as the Attorney General notes, “the court was not deciding whether the evidence supported the verdict.” Thus, we conclude the court’s comments are mere surplusage.
In sum, the record establishes the court expressly acknowledged its duty, and it independently determined the credibility of the witnesses and probative value of the evidence as required. Conversely, the record does not establish the court improperly deferred to the jury’s findings. “Although defendant isolates statements in which the trial court refers to the jury’s verdicts, it is clear from the record as a whole that it did not regard itself as bound by any of the jury’s findings.” (People v. Davis (1995) 10 Cal.4th 463, 524.) Further, while it would have been preferable for the court to specifically state it had denied the first motion based on its independent weighing of the evidence, “its failure to do so and its use of less than artful language cannot be equated with having applied the wrong standard.” (People v. Price (1992) 4 Cal.App.4th 1272, 1276.)
DISPOSITION
The judgment is affirmed.



THOMPSON, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.