P. v. Casillas

Filed 10/11/06 P. v. Casillas CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury convicted defendant George Luis Casillas of one count of false imprisonment by violence (Pen. Code, § 236, count 1)[1] (a felony), one count of simple assault (§ 240, count 2), and two counts of misdemeanor sexual battery (§ 243.4, subd. (e)(1), counts 3 & 4). The trial court sentenced defendant to the aggravated term of three years in prison for the felony and 540 days in jail for the three misdemeanors.

Defendant argues on appeal that the evidence was insufficient to support his conviction for felony false imprisonment by violence, that the prosecutor committed misconduct by misstating the law pertaining to the elements of the crime of false imprisonment by violence, and that his attorney provided ineffective assistance of counsel in failing to object to the prosecutor’s misstatement. Defendant also argues that he cannot be convicted of both assault and sexual battery because assault is necessarily included in the offense of battery. The Attorney General concedes the final argument.

We conclude that the evidence is insufficient to support the felony false imprisonment conviction and accept the Attorney General’s concession with respect to the assault conviction. We shall reverse and remand for resentencing.

I. Factual Summary

On the evening of January 24, 2004, Brenda M. was walking to the market when a man approached her and grabbed her buttocks. Brenda told the man she was going to call the police and the man ran away. A little over an hour later, Megan P. was walking along the sidewalk in the neighborhood where Brenda M. had been assaulted. Megan, who was about 21 years old, was on her way to a coffee house to study. She was dressed in a coat and jeans with a scarf and was either carrying a book in her coat pocket or was wearing a backpack with books in it. As she approached the high school her attention was caught by a man she saw crouched in the bushes. He seemed out of place; Megan was suspicious. She walked past him and several feet further on she was assaulted. Megan testified: “he come [sic] up from behind me and proceeds to grab me and catches me off guard, but then I managed to scream.” The assailant’s left hand reached under her arm and grabbed her left breast and his right hand reached from behind, through her legs, and grabbed her crotch area. The hand on her breast was “grasping like pressure filled.” The hand between her legs was directly over the area of her vagina and was “also kind of a pressure pulling with his hand.”

Megan “used . . . all of the strength that [she] had to scream.” She explained: “I was definitely held in place, um, in a very compromised position. . . . I’m not able to move forward. I was trying--like when I screamed, a hand was removed from my breast and put on my mouth, tried to cover my mouth to stop me from screaming, presumably, and it had covered my mouth, kind of like. So there was separation between the fingers. . . . I still managed to make a noise.”

Megan tried to get away but she was “being kept back.” “Am I being held? Yes, I’m not able to go where I want to go, away. I was not able to do that.” But, “all of a sudden or based on my struggling, I don’t know, but there’s a release . . .” Megan turned to see what was happening and watched the man run away across the street. Megan described her assailant as a Latino male, around 30 years old, about five feet five or six inches with a thin, smaller build.

Defendant was arrested after both victims selected him from a photographic line-up.

II. Discussion

A. Sufficiency of the Evidence of Felony False Imprisonment

The jury found defendant guilty of felony false imprisonment by violence as charged in count 1. Defendant argues that the evidence is insufficient to support that conviction. The standard we apply to review of this issue is highly deferential. Our power begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support the verdict of the jury. (People v. Brown (1984) 150 Cal.App.3d 968, 970.) “If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)

“False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236.) The crime is elevated from a misdemeanor to a felony if it is “effected by violence, menace, fraud, or deceit.” (§ 237.) As defendant points out, the “ ‘violence’ “ necessary to make the misdemeanor a felony requires evidence that the force used to restrain the victim was “greater than that reasonably necessary to effect the restraint.” (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462; People v. Babich (1993) 14 Cal.App.4th 801, 806 (Babich); CALJIC No. 9.60.) Simply using force does not make the crime a felony. “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.” (People v. Hendrix, supra, 8 Cal.App.4th at p. 1462.) On the other hand, misdemeanor false imprisonment requires no force beyond that necessary to restrain the victim. All that is necessary is that “ ‘the individual be restrained of his liberty without any sufficient complaint or authority therefor, and it may be accomplished by words or acts . . .’ “ (People v. Haney (1977) 75 Cal.App.3d 308, 313.) The distinction is best illustrated by cases discussing the evidence to support the element of violence.

In People v. Bamba (1997) 58 Cal.App.4th 1113, the defendant drove his van down the highway knowing that his ex-girlfriend was outside clinging to the roof of the van. The court reasoned that proof of violence was defendant’s excessive speed and swerving; the victim would have been restrained if defendant had merely driven the legal speed limit. (Id. at p. 1124.)

In People v. Castro (2006) 138 Cal.App.4th 137, a 16-year-old girl was walking to a bus stop. The defendant drove by and made a lewd proposition to the girl. (Id. at p. 140.) When the girl continued walking, the defendant grabbed the girl’s forearm, gave her a tug, and pulled her toward him a couple of steps. (Id. at pp. 141-142.) She then pulled away and started running. (Id. at p. 142.) The appellate court observed that the defendant “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.” (Id. at p. 143.)

In Babich, the defendant restrained the victim by wrapping his arms around her and pinning her arms to her sides while the victim struggled and said she wanted to leave. The victim testified that the defendant had also threatened to kill her, held a knife to her throat, and yanked her head back. (Babich, supra, 14 Cal.App.4th at pp. 804-805.) Defendant’s mother and aunt had observed defendant holding the struggling victim with her arms pinned at her sides but they did not see a knife and no knife was found. (Id. at p. 805.) The appellate court held that the trial court had erred in failing to give the instruction for misdemeanor false imprisonment. The jury had acquitted defendant of assault with a deadly weapon, indicating that the jury had not believed the victim’s elaboration upon the incident. Thus, “[a] reasonable conclusion from the evidence in this case would have been that the prosecution had proven unlawful restraint through physical force, but not the use of violence--i.e., excessive force--or menace to accomplish the restraint.” (Id. at p. 808.)

In the present case, the evidence shows that defendant unlawfully restrained Megan through the use of physical force. But we find no evidence that defendant used more force than was necessary to keep her where she was located. The Attorney General argues that defendant could have chosen to hold Megan by her arm or place his arm around her waist instead of holding her breast and her crotch. “If [defendant] had chosen any of those methods of restraint, it would have been less emotionally damaging than the more violent way he chose to restrain his victim.” This part of the Attorney General’s argument actually addresses defendant’s contention that the prosecutor misstated the law during closing argument when he told the jury that the element of violence was proved “if you can think of a way that is less restrictive than the hand between the crotch and the hand on the breast and the hand over the mouth.”[2]

The Attorney General’s argument suggests that conviction for false imprisonment by violence may be supported by evidence that the defendant failed to use the least offensive method to accomplish the restraint. But that is not the rule. The conviction must be supported by evidence that the method of restraint that defendant employed involved more force than reasonably necessary to restrain the victim. Moreover, “violence” does not refer to the emotional impact of the conduct upon the victim. False imprisonment by “violence” refers to the physical force used to accomplish the restraint. (People v. Reed (2000) 78 Cal.App.4th 274, 280.) The question is simply whether the force defendant applied was more than was necessary to prevent the victim’s independent movement.

The Attorney General contends that holding Megan by the crotch and breast “as well as the action of attempting to stifle her screams by grabbing her mouth, were uses of force beyond what was reasonably necessary.” We fail to see which of those maneuvers could be classified as excessive force. Megan was a young woman walking alone at night; her suspicions were aroused when she saw defendant crouching in the bushes. After the first shock of the assault Megan immediately began to scream and struggle to get away. It is true that defendant placed his hands on intimate areas of Megan’s body. But the gravamen of the crime of false imprisonment is the restraint of a person’s freedom of movement. (People v. Reed, supra, 78 Cal.App.4th at p. 280.) Defendant committed false imprisonment by preventing Megan from moving forward where she wanted to go. By placing a hand on Megan’s breast in a “grasping pressure filled” way and by placing a hand between her legs “with kind of a pressure” defendant prevented her forward movement. Placing his hand on her mouth was ineffective in stifling her screams and, more importantly, there is no evidence that the hand on the mouth actually served to restrain her movement. And at no point did defendant pull Megan away from where she stood on the sidewalk; as Megan struggled to move forward the force of defendant’s grasp kept her in one place. That is, defendant used enough force to restrain Megan against her will. But, even viewed in the light most favorable to the judgment, this evidence is insufficient to support a finding that defendant used more force than reasonably necessary to accomplish the restraint.

B. Multiple Convictions

Defendant was charged in count 2 with felony assault with intent to commit a sexual offense against Megan P. (§ 220) but the jury acquitted him of this crime and convicted him instead of the lesser included offense of assault. (§ 240.) He was convicted in count 3 of sexual battery against Megan. (§ 243.4, subd. (e)(1).) Defendant now contends that he may not be convicted of both simple assault and sexual battery because the assault is necessarily included in the battery. The Attorney General concedes that dual convictions are improper.

The law prohibits multiple convictions based on necessarily included offenses. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) “ ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ “ (Ibid.) The crime of sexual battery is committed when a person “touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse . . . .” (§ 243.4, subd. (e)(1).) Assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) The phrase “violent injury” includes any wrongful act committed by means of physical force against the person of another. The kind of physical force is immaterial. (People v. Bradbury (1907) 151 Cal. 675, 676-677.) Thus, the injury contemplated by the crime of assault is coextensive with the concept of injury resulting from battery. (People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12.) Defendant cannot have committed sexual battery without also having committed simple assault. We, therefore, accept the Attorney General’s concession.

III. Disposition

The judgment is reversed. The matter is remanded to the trial court to modify the judgment to reflect a conviction for misdemeanor false imprisonment in lieu of the conviction for felony false imprisonment in count 1 (Pen. Code, §§ 236, 237), to strike the conviction for simple assault in count 3 (Pen. Code, § 240), and for resentencing.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Hereafter all unspecified statutory references are to the Penal Code.

[2] The prosecutor had argued: “The definition of violence is right here. This is what it means. If you can think of another reasonable way that Megan [P.] could have been restrained and you think that what happened was over and above that, and I submit to you that we can think of hundreds of ways she could be restrained, hand on a wrist, two hands on the shoulder, standing in front of her and telling her not to move, if you can think of a way that is less restrictive than the hand between the crotch and the hand on the breast and the hand over the mouth as she’s screaming, then you’ve got violence.”