P. v. Beam

Filed 1/6/10 P. v. Beam CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

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Defendant was convicted by jury of forcible oral copulation (Pen. Code,  288a, subd. (c)(2))[1] and felony false imprisonment ( 236, 237, subd. (a)). The court found true allegations that defendant had a prior serious felony conviction ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and had served two prison terms. ( 667.5, subd. (b).) Sentenced to 24 years in prison (the upper terms of eight and three years doubled, plus two years for prior prison terms), defendant appeals. He contends there is insufficient evidence of menace to support felony false imprisonment.[2] We find sufficient evidence and affirm.

FACTS

The victim was referred to as Jane Doe at trial. Doe worked at a gas station in Cool. She heard the police were at her mothers house and twice left work to see what was going on. Does mother said the police were looking for defendant. At the house there were two police officers present and then a SWAT team arrived.

Back at the gas station, a coworker told Doe that defendant was looking for her. Defendant phoned Doe, telling her he needed to get out of town because the police were looking for him. Doe did not agree at first to help defendant; he phoned her again.

Doe spoke with her supervisor, F. Pearce, about defendants phone calls. Pearce suggested Doe call the police. Pearce called the police; Doe and Pearce met the police at a market near the gas station. Doe told the officers of the residence where defendant could be located.[3] They told her they could not arrest someone at anothers residence without a warrant.

Doe and Pearce came up with a plan to get defendant arrested; Doe would pick him up and leave him at a motel. Pearce would follow Doe to ensure her safety. Pearce gave Doe $60 for the motel room. The police told Doe this plan was a terrible idea and not to do it. It would not be safe.

Despite this warning, Doe put the plan in action and picked up defendant and drove through Georgetown. She drove past the car wash and saw Pearces car waiting. Pearce pulled out and attempted to follow them but defendant saw the car and told Doe to speed up. Between Coloma and Placerville, Pearce lost sight of Does car. Pearce, with her husband, went to a diner and waited there several hours.

Defendant directed Doe to drive from Placerville to Cameron Park. From there they drove on to Auburn. After trying to check into motels that were too expensive, they went to the Elmwood Motel. Once there, Does phone rang several times as Pearce was trying to reach her. Doe answered once, but did not speak long. Defendant got angry about the calls and his posture changed. Doe was scared and felt trapped; defendant was tense. Doe told defendant she needed to leave; she had to get home to her child. Defendant responded she was not going anywhere. Defendant told Doe that he thought the police were looking for him because of Toby Kaiser. He said Sheri had probably turned him in because he killed Kaiser, cut off his hands, and used them in burglaries.[4] When Doe learned this, her attitude about leaving changed; she was scared.

Defendant wanted to get a local newspaper to see why the police were looking for him, so they went to Does gas station to get one. Defendant took the car keys with him when he went into the gas station. While he was gone, Doe called a friend, A. Meza. It was a poor connection and Meza hung up. Doe and defendant returned to the motel.

Doe again told defendant she needed to go home to her child. Defendant was still angry. He grabbed Doe and in certain terms told her of his sexual intentions. Doe declined. Defendant asked what if he went away forever and she would not do this. Doe thought he was referring to his killing Kaiser. Defendant proceeded to sexually assault Doe, despite her contrary pleas.

Defendant heard the door move and jumped up, saying it was time to leave. As Doe got dressed, she heard defendant masturbating in the bathroom.

They left the motel and went to a gas station. While defendant was at a pay phone, Doe called Meza again and told him to call the police. Defendant got back in the car and announced they were going to Auburn to get some alcohol. When they stopped at a store, defendant left the keys in the car. Doe drove off and called 911.

DISCUSSION

Defendant contends there is insufficient evidence of menace to support a conviction of felony false imprisonment. He contends there is no evidence of an express or implied threat of harm and no evidence that defendants statements about the Kaiser homicide were intended to restrain Doe.

An appellate court called upon to review the sufficiency of the evidence supporting a judgment of conviction of a criminal offense must, after a review of the whole record, determine whether the evidence is such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Bean (1988) 46 Cal.3d 919, 932.) [I]it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] (Id. at p. 933.)

False imprisonment is the unlawful violation of the personal liberty of another. ( 236.) It is punishable as a felony if effected by violence, menace, fraud or deceit. ( 237, subd. (a).) Menace is defined as the threat of harm express or implied by word or deed. (People v. Reed (2000) 78 Cal.App.4th 274, 280.)

In arguing there is insufficient evidence of menace, defendant relies on People v. Matian (1995) 35 Cal.App.4th 480. In Matian, defendant sexually assaulted his victim; during the assault he squeezed her breast hard enough to cause pain, and possibly bruising. Afterwards she collected her bookbag and prepared to go. Defendant grabbed her arm, yelled at her not to go and that nothing happened. He told her to go wash her face. The victim then retreated to a chair. Each time she got up to leave, defendant glared at her and began to rise. She was afraid and did not want him to touch her so she sat down. (Id. at p. 485.)

The appellate court found insufficient evidence of menace. (People v. Matian, supra, 35 Cal.App.4th at p. 486.) It noted that cases finding menace fell into two categories: those where defendant used a deadly weapon and those where defendant verbally threatened harm. (Id. at pp. 485-486.) The court found the earlier sexual assaults, coupled with defendant glaring and rising when the victim tried to leave, did not establish menace. There was no evidence of a deadly weapon, a verbal threat or any movement by defendant suggesting harm. (Id. at p. 487.)

Matian has been criticized by several courts, both for suggesting menace requires either a weapon or a direct threat and for finding insufficient evidence of menace on its facts. (People v. Wardell (2008) 162 Cal.App.4th 1484, 1491; People v. Aispuro (2007) 157 Cal.App.4th 1509, 1513; People v. Castro (2006) 138 Cal.App.4th 137, 143.) We agree with these criticisms; the context may make words or gestures an implied threat. When a rational fact finder could conclude that a defendants acts or words expressly or impliedly threatened harm, the fact finder may find that there is menace sufficient to make false imprisonment a felony. An express threat or use of a deadly weapon is not necessary. (People v. Wardell, supra, at p. 1491.)

In this case the jury could find an implied threat of harm. When Doe foolishly picked up defendant, she knew he was wanted by the police. The presence of a SWAT team indicated he was dangerous. Whatever illusion of safety she had evaporated when he made her speed up to lose Pearce who was following them. Once at the motel, however, the situation got worse. Does constantly ringing phone upset defendant; he got tense and his posture changed. When Doe said she needed to go home, defendant told her she was not going anywhere. Then he told her about Toby Kaiser, claiming he had killed and mutilated him.

Defendant contends he was simply trying to make sense of the numerous phone calls and why the police were looking for him. That is one explanation; another is that defendant, perhaps now suspicious of Doe, was reinforcing his command that she not leave by letting her know that he was capable of extreme violence. Defendants words and his changed demeanor had the effect of restraining Doe. She was frightened; she testified she feared defendant, did not want to mess with him, and changed her attitude about leaving. Her fear that he would hurt her if she tried to leave is supported by the above-described circumstances. This evidence is sufficient to establish menace for felony false imprisonment.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

NICHOLSON , Acting P. J.

RAYE , J.

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[1] Hereafter, undesignated statutory references are to the Penal Code.

[2] We omit the facts relating to the forcible oral copulation conviction.

[3] The police claimed Doe would not tell them where defendant was. Defendant was wanted for burglary or possession of stolen property.

[4] The police did not investigate this allegation further because it was outside their jurisdiction. There is no mention of this crime in the probation report.