United States v. Jose Martinez-Flores , 492 F. App'x 751 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50406
Plaintiff - Appellee, D.C. No. 3:11-cr-00918-JAH-1
v.
MEMORANDUM *
JOSE ANTONIO MARTINEZ-FLORES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted August 9, 2012
Pasadena, California
Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.
Jose Antonio Martinez-Flores appeals the sentence imposed by the district
court following his guilty plea to being a deported alien found in the United States
in violation of 8 U.S.C. § 1326(a). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Martinez-Flores argues that the district court erred in determining that his
2007 conviction for felony false imprisonment, Cal. Penal Code §§ 236/237,
constituted a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A). For the
purposes of § 2L1.2, the term “crime of violence” means “any . . . offense under
federal, state, or local law that has as an element the use, attempted use, or
threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2,
cmt. n.1(B)(iii). The requisite degree of physical force is “force capable of causing
physical pain or injury to another person.” Johnson v. United States, 130 S. Ct.
1265, 1271 (2010).
As the government correctly concedes, California felony false imprisonment
is not a crime of violence under the categorical approach, because it may be
committed by means of “fraud” or “deceit.” Cal. Penal Code § 237. However,
Martinez-Flores’s prior conviction qualifies as a crime of violence under the
modified categorical approach. Martinez-Flores admitted in his guilty plea that he
“unlawfully used violence to violate the personal liberty of another.” Under
California law, false imprisonment by violence necessarily requires “the use of
force beyond that required for simple restraint.” People v. Babich, 18 Cal. Rptr. 2d
60, 65 (Ct. App. 1993). Where, as here, a defendant argues that a state offense is
overbroad, “he must at least point to his own case or other cases in which the state
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courts in fact did apply the statute in the special (nongeneric) manner for which he
argues.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Martinez-Flores
has not pointed to, nor can we find, a single California case imposing a conviction
for false imprisonment by violence in the absence of “force capable of causing
physical pain or injury to another person.” Johnson, 130 S. Ct. at 1271 (emphasis
added). Nor has Martinez-Flores offered any cases in support of his theory that
false imprisonment by violence may be effected by means of violence against
property. We therefore conclude that false imprisonment by violence, Cal. Penal
Code § 237, is a crime of violence for the purposes of U.S.S.G. § 2L1.2(b)(1)(A).
AFFIRMED.
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FILED
United States v. Martinez-Flores, No. 11-50406 AUG 17 2012
MOLLY C. DWYER, CLERK
REINHARDT, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS
The majority holds that felony false imprisonment by violence under
California Penal Code §§ 236, 237 is categorically a “crime of violence” under
§ 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines (“U.S.S.G.”). To
be a crime of violence under the Guidelines, that offense must have “as an element
the use, attempted use, or threatened use of physical force against the person of
another.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). We have interpreted “physical force”
to mean “violent force – that is, force capable of causing physical pain or injury to
another person.” United States v. Villavicencio-Burruel, 608 F.3d 556, 561-62 (9th
Cir. 2010) (internal quotation marks and citation omitted) (emphasis added).
False imprisonment by violence, as interpreted by the California courts, does
not categorically have as an element the use, attempted use, or threatened use of
violent force. “Violence” for purposes of false imprisonment is defined as “the
exercise of physical force used to restrain over and above the force reasonably
necessary to effect such restraint.” People v. Babich, 18 Cal. Rptr. 2d 60, 63 (Cal.
Ct. App. 1993). In People v. White, No. E031297, 2003 WL 21235557 (Cal. Ct.
App. May 28, 2003), the California Court of Appeal held that this “violence”
element could be satisfied by the act of locking a door. In that case, the defendant
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sexually assaulted a young girl while she was in his car; at some point during the
attack, he locked the doors using an electronic key button and the victim was
unable to manually open the doors. Id. at *1-*2. The defendant argued on appeal
that the evidence was insufficient to support his conviction for felony false
imprisonment by violence, but the California Court of Appeal disagreed, holding:
“Locking the SUV doors impeded the victim from making a quick escape and thus
constituted additional force beyond that reasonably necessary to restrain the
victim.” Id. at *2-*3. Notably, the court did not cite to the physical force used in
connection with the sexual assault to uphold the charge of false imprisonment. Nor
did it cite the totality of circumstances. Finally, it did not hold that the act of
locking the car doors constituted a threat of harm to the victim; it did not hold that
the defendant was guilty of felony false imprisonment by menace, rather than
violence. Instead, it plainly and unmistakably held that the simple unadorned act of
locking the car doors, and that act alone, constituted “violence” for the purpose of
false imprisonment, and that the defendant was thus guilty of felony false
imprisonment by violence. In short, the California court held that the act of locking
the doors constituted the “physical force . . . over and above the force reasonably
necessary to effect such restraint.” Babich, 18 Cal. Rptr. 2d at 63.
That act, however, is not violent force “capable of causing physical pain or
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injury to another person.” Villavicencio-Burruel, 608 F.3d at 561-62 (internal
quotation marks and citation omitted). That is, the force used to lock the car doors
is not in itself capable of causing pain or injury to a person. (That it might lead to
further harms to the victim caused by other physical force used against her is a
different matter.) Felony false imprisonment by violence, therefore, as interpreted
by the California Court of Appeal in White, does not have “as an element the use,
attempted use, or threatened use of physical force against the person of another.”
U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).
It will not do to say that because the case is one in which the underlying
crime involved the use of physical force against the victim for purposes of the
crime of rape, the California court could have found that the underlying force
constituted violence for purposes of false imprisonment. Maybe it could have, but
it didn’t. That was not what the California court held and whether or not it could
have done so is wholly irrelevant. The court clearly posed the question of whether
locking the doors to keep someone in the car, without more, constituted violence
for purposes of the crime of false imprisonment. It held that it did. Nothing more.
Nothing less.1
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In a section entitled “Sufficiency of Evidence of Felony False
Imprisonment,” the court held:
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All that Martinez-Flores need do to succeed on his challenge is “point to at
least one case in which the state courts applied the statute in the manner that he
posits.” United States v. Ruiz-Apolonio, 657 F.3d 907, 914 (9th Cir. 2011)
(emphasis added); see also Nunez v. Holder, 594 F.3d 1124, 1130 n.2 (9th Cir.
2010) (discussing that one case is sufficient). White represents that one case: in
White, the felony false imprisonment by violence statute was applied in a way that
does not meet the definition of “crime of violence” under the Guidelines. Whatever
the majority wishes that case had done, it held simply that locking the doors
The narrow question here is whether there was sufficient evidence that
defendant used violence over and above that force necessary to
effectuate false imprisonment upon the victim. The prosecution argued
defendant’s act of locking the SUV doors constituted additional force
beyond that reasonably necessary to restrain the victim. The defendant
argues this did not constitute additional force for purposes of convicting
him of felony false imprisonment because the victim could manually
unlock the SUV door.
We conclude there was sufficient evidence of restraint over and above
the force reasonably necessary to restrain the victim. Locking the SUV
doors impeded the victim from making a quick escape and thus
constituted additional force beyond that reasonably necessary to restrain
the victim. The victim testified at trial that shortly after she got in the
SUV, defendant locked the SUV doors with an electronic lock button on
the driver’s side and, when she tried to unlock the door, she could not
open it because the locks were “deep down inside”; “[t]here was no way
I could open it.”
White, 2003 WL 21235557, at *3.
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constitutes violence. That does not meet the requirements of U.S.S.G. § 2L1.2(b). I
therefore dissent.
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