People v. Nemwan , 238 Cal. App. 4th 103 ( 2015 )

Filed 6/26/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B255339
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA061050)
v.
MICHAEL A. NEWMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Kathleen Blanchard, Judge. Affirmed in part, reversed in part, and remanded for
resentencing.
Heather E. Shallenberger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, for Plaintiff and Respondent.
_______________________
Defendant Michael A. Newman appeals from convictions of robbery, burglary and
two counts of felony false imprisonment arising out of a single incident. He contends:
(1) there was insufficient evidence of the “violence” element of felony false
imprisonment and (2) the trial court erred in staying sentence on only one and not both
false imprisonment convictions pursuant to Penal Code section 654.1 The People
contend the trial court erred in applying section 654 to even one of the two false
imprisonment convictions. We affirm the conviction but remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND2
The limited nature of the appellate issues makes detailed recitation of the facts
unnecessary. It is sufficient to state that, viewed in accordance with the usual rules on
appeal (People v. Zamudio (2008) 43 Cal. 4th 327, 357–358), the evidence established the
following: The Dragon Garden is a fast food restaurant in Lancaster. At about 9:00 p.m.
on Sunday, October 6, 2013, defendant entered the Dragon Garden, walked up to the
counter, brandished what appeared to be a firearm (but which may have been a BB gun)
and demanded that the cashier give him money. Restaurant Manager Jian Xiong Ren (the
robbery victim named in count one) described defendant as Black, of similar build to
himself but taller, wearing light colored pants, a long-sleeved dark hoodie with the hood
pulled up, something like a skimask covering his head, sunglasses and gloves. After Ren
gave him money from the cash register, defendant reached over the counter and grabbed
1 All future undesignated statutory references are to the Penal Code.
2 Defendant and Justin Carroll were jointly charged with second degree robbery
(count 1), second degree burglary (count 2) and two counts of felony false imprisonment
(counts 3 and 4); as to both defendants, various prior conviction enhancements were also
alleged, including pursuant to the Three Strikes law (§§ 667, subds. (b)-(i), 1170
subds. (a)-(d)). Defendant and Carroll were tried jointly by separate juries. Defendant
was found guilty on all counts. After finding true the prior conviction enhancements, the
trial court sentenced defendant to a total of 17 years, 4 months in prison, the details of
which we discuss in connection with defendant’s section 654 claim. Defendant timely
appealed.
2
more money from the till; Ren calculated the total take as $1,223. A recording of Ren’s
911 call and a surveillance video were played for the jury.
Lourdes C. (the false imprisonment victim named in count four), recalled that she
and her son and daughter were at the counter when an armed man entered the restaurant
and demanded money. When Lourdes and her daughter moved towards an exit,
defendant turned towards them, pointed the gun in their direction and yelled that no one
should move. He then returned his attention to the money. The daughter went back to
the counter but Lourdes, fearful she would be shot, did not move throughout the incident.
Lourdes and her children left the restaurant five or six minutes after defendant departed.
The son (the false imprisonment victim named in count three) recalled he was at
the counter about to order when a masked man armed with a semiautomatic entered the
restaurant, stood next to him, and screamed, “Give me the money. Give me the money.”
Realizing there was a robbery in progress, the son backed away from the counter. He
discussed with his mother and sister the possibility of leaving. But for defendant pointing
the gun at his sister and yelling, “Nobody is going anywhere,” the son would have left the
restaurant. Instead, he was too afraid.3
DISCUSSION
A. Sufficient Evidence Supports the Conviction of Felony False Imprisonment
Defendant contends the convictions of felony false imprisonment by violence must
be reduced to misdemeanor false imprisonment because there was insufficient evidence
of violence, one of the factors that can raise false imprisonment from a misdemeanor to a
felony. He argues that, although the jury verdict forms identified the crime here as false
imprisonment by violence, the evidence showed at most false imprisonment by menace,
not violence. The flaw in defendant’s argument is predicated on the incorrect assumption
3 Although the son described the weapon as a semiautomatic, the only weapon
found following a search of defendant’s residence was a BB gun. No firearm
enhancements were alleged.
3
that false imprisonment by violence and false imprisonment by menace are different
crimes, rather than different methods of committing the same crime.
After considering the evidence of the false imprisonment, and the instructions and
verdict form provided to the jury, we conclude any defect in the verdict was
inconsequential, and that substantial evidence supports the defendant’s conviction of
felony false imprisonment.
1. Overview of Different Means of Committing Felony False Imprisonment
Section 236 defines misdemeanor false imprisonment as “the unlawful violation of
the personal liberty of another.” It is punishable as a felony if “effected by violence,
menace, fraud, or deceit[.]” (§ 237, subd. (a).) Force is an element of both misdemeanor
and felony false imprisonment, but to elevate the crime to a felony, the force used must
be “greater than that reasonably necessary to effect the restraint.” (People v. Hendrix
(1992) 8 Cal. App. 4th 1458, 1462.)
Section 237 lists “violence” and “menace” as two of the four methods of force that
may elevate misdemeanor false imprisonment to a felony. It does not create four
different felonies. (People v. Henderson (1977) 19 Cal. 3d 86, 96, disapproved on another
ground in People v. Flood (1998) 18 Cal. 4th 470, 484 and 490, fn. 121; see People v.
Arvanites (1971) 17 Cal. App. 3d 1052, 1060 [“menace” and “violence” have different
meanings; “menace” is not a modifier of “violence”].)
“Violence” in the statute means the exercise of physical force “greater than that
reasonably necessary to effect the restraint.” (People v. Dominguez (2010)
180 Cal. App. 4th 1351, 1357; People v. Babich (1993) 14 Cal. App. 4th 801, 807.)
“Menace” is an express or implied threat of force. (People v. Wardell (2008)
162 Cal. App. 4th 1484, 1490-1491 [the act of holding a gun throughout imprisonment of
the victim clearly implied a threat to use the gun if the victim did not comply, which was
sufficient to support a finding of felony false imprisonment]; Dominguez, at p. 1359.)
4
2. Application to the Present Case
Defendant argues that the use in the verdict form of “violence” when there was no
evidence of force applied to the victims means that the conviction was for misdemeanor
false imprisonment. We disagree. People v. Jackson (2014) 58 Cal. 4th 724, offers
guidance. The defendant in that case challenged his conviction for felony murder;
although he acknowledged the sufficiency of evidence to prove the murder occurred
during an attempted robbery, he argued that because the verdict form referred to robbery,
not attempted robbery, and there was insufficient evidence he committed a robbery, he
could not be convicted of felony murder. (Id. at p. 750.) The Jackson court rejected this
argument, reasoning: “The verdict form’s failure to reference an attempted commission
of robbery did not serve to limit the charges against defendant. Nor did the jury’s return
of that form restrict its finding to one of a completed robbery. ‘A verdict should be read
in light of the charging instrument and the plea entered by the defendant . . . . [T]he form
of the verdict generally is immaterial, so long as the intention of the jury to convict
clearly may be seen. [Citations.]’ [Citations.] As indicated, both the prosecution and the
court told the jury to return the verdict form if it found true the robbery-murder special-
circumstance allegation, and the court repeatedly instructed that the allegation could be
found true if the prosecution proved the murder had been committed during the
commission or attempted commission of a robbery. In returning the verdict form, the
jury clearly manifested its intention to find true the allegation charged. That the form did
not describe all of the circumstances under which the allegation could be proved is, under
these circumstances, merely a technical defect that may be disregarded because ‘ “ ‘the
jury’s intent to convict of a specified offense within the charges is unmistakably clear,
and the accused’s substantial rights suffered no prejudice.’ ” ’ [Citation.]” (Id. at p. 750-
751.)
We find the defect of which defendant now complains is also technical in nature.
Here, defendant was charged with felony false imprisonment of the son (count 3)
and the mother (count 4) by “violence, menace, fraud and deceit” in violation of
5
section 236. The prosecution’s theory as to Counts 3 and 4 were based on defendant’s
single act of yelling “Nobody is going anywhere,” while pointing a gun in the family’s
direction during the robbery.4
Pursuant to CALJIC No. 9.60, the jury was instructed: “Defendant is accused in
Counts 3 and 4 of having committed the crime of false imprisonment by violence or
menace, a violation of section 236 of the Penal Code. [¶] Every person who by violence
or menace violates the liberty of another person by intentionally and unlawfully
restraining, confining, or detaining that person and compelling that person to stay or go
somewhere without his or her consent is guilty of the crime of false imprisonment by
violence or menace, in violation of Penal Code section 236. [¶] ‘Violence’ means the
exercise of physical force used to restrain over and above the force reasonably necessary
to effect the restraint. [¶] ‘Menace’ means a threat of harm express or implied by word
or act. [¶] False imprisonment does not require that there be confinement in a jail or
prison. [¶] In order to prove this crime, each of the following elements must be proved:
[¶] 1. A person intentionally and unlawfully restrained, confined, or detained another
person, compelling him or her to stay or go somewhere; [¶] 2. The other person did not
consent to the restraint, confinement, or detention; and [¶] 3. The restraint, confinement
or detention was accomplished by violence or menace.”
Pursuant to CALJIC No. 3.30, the jury was also instructed: “In the crimes charged
in Counts 3 and 4, namely, false imprisonment by violence, there must exist a union of
joint operation of act or conduct and general criminal intent. General criminal intent does
not require intent to violate the law. When a person intentionally does that which the law
declares to be a crime, he is acting with general criminal intent, even though he may not
know that his act or conduct is unlawful.”
The verdict forms for Counts 3 and 4 read: “We, the jury in the above-entitled
action, find the Defendant, . . . , GUILTY of the crime of FALSE IMPRISONMENT BY
4 The District Attorney did not file false imprisonment charges as to the daughter.
The parties do not discuss this apparent anomaly.
6
VIOLENCE, on or about October 6, 2013, in violation of Penal Code Section 236, a
Felony, who did unlawfully violate the personal liberty of [Ricardo Castro (count 3) and
Lourdes Castro (count 4)], said violation being effected by violence, menace, fraud, or
deceit, as charged in [Counts 3 and 4] of the information.”
Under Jackson, supra, the reference to “false imprisonment by violence,” and the
failure to mention false imprisonment by menace in the capitalized portion of the verdict
form was “merely a technical defect that may be disregarded because ‘ ” ’the jury’s intent
to convict of a specified offense within the charges is unmistakably clear, and the
accused’s substantial rights suffered no prejudice.’ ” ’ [Citation.]” (Jackson, supra,
58 Cal.4th at pp. 750-751.) We conclude the jury lawfully convicted defendant of two
counts of felony false imprisonment, and that based on eyewitness and other testimony
the judgment was supported by substantial evidence.5
B. Penal Code Section 654 Does Not Prohibit Defendant From Being Sentenced
for False Imprisonment
Defendant contends under section 654 the court erred in sentencing him to a
consecutive sentence on one of the false imprisonment counts (count 3). In the
Respondent’s Brief, the People argue that not only was it appropriate for the court to
sentence consecutively on count 3, the trial court erred in applying section 654 to the
other false imprisonment charge (count 4). We agree with the People in both respects.
5 The body of the verdict signed by the jury lists all four statutory categories of
felony false imprisonment: violence, menace, fraud or deceit. The “error” in the verdict
form was in its summary of the crime, “FALSE IMPRISONMENT BY VIOLENCE.”
CALJIC 9.60 given by the court is entitled “False Imprisonment by Violence or
Menace.” The relevant CALCRIM Instruction, No. 1240, is entitled “FELONY FALSE
IMPRISONMENT.” Using the CALCRIM instruction would have eliminated any
uncertainty, and in our view it more accurately describes the crime.
7
1. The Trial Court’s Sentence
Defendant was sentenced to a total of 17 years, 4 months in prison, comprised of
the following:
 Count 1 (second degree robbery of Ren): 10 years (five years doubled
pursuant to Three Strikes), plus a consecutive 5 years (§ 667, subd. (a)),
plus a consecutive 1 year (§ 667.5, subd. (b));
 Count 2 (second degree burglary): 6 years, 16 months stayed pursuant to
section 654;
 Count 3 (false imprisonment of son): 16 months (one-third the 24 month
mid-term doubled pursuant to Three Strikes), consecutive to count 1; and
 Count 4 (false imprisonment of mother): 16 months (one-third the 24
month mid-term doubled pursuant to Three Strikes), stayed pursuant to
section 654.
2. Defendant’s Contentions and Overview of Section 654.
Defendant contends that his sentence on count three (false imprisonment of the
son) should have been stayed under section 654, subdivision (a) in the same manner as
the trial court stayed the sentence on count four (false imprisonment of the mother). Our
analysis starts with the statute.
Section 654, subdivision (a) provides: “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. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under any other.”
Section 654 was enacted in 1872.6 Its purpose is to match punishment to the
defendant’s culpability. (People v. Perez (1979) 23 Cal. 3d 545, 551; People v. Vang
6 The statute was later amended as part of the transition to the Determinate Sentence
Act. As a result of those amendments, “the original second sentence of the statute which
contained cross-references to other Penal Code sections [was deleted]. (Stats. 1976,
8
(2010) 184 Cal. App. 4th 912, 915-916.) To achieve this balance, the statute generally
precludes multiple punishments for a single physical act that violates different provisions
of law (People v. Jones (2012) 54 Cal. 4th 350, 358) as well as multiple punishments for
an indivisible course of conduct that violates more than one criminal statute. (People v.
Correa (2012) 54 Cal. 4th 331, 336 (Correa); People v. Ortiz (2012) 208 Cal. App. 4th
1354, 1377 (Ortiz); Vang, at pp. 915-916.)
Section 654 does not bar multiple punishments in two settings. The first – the one
relevant here – is the exception for an “act of violence” against multiple victims. If the
defendant has engaged in an act of violence against two or more people, he may be
punished separately for each crime. (Neal v. State of California (1961) 55 Cal. 2d 11, 20-
21 (Neal), disapproved on other grounds by Correa, supra, 54 Cal.4th at p. 338.) The
second exception renders section 654 inapplicable to a course of conduct if the defendant
“ ‘entertained multiple criminal objectives which were independent of and not merely
incidental to each other . . . .’ ” (People v. Martin (2005) 133 Cal. App. 4th 776, 780-781.)
The application of this second exception “ ‘ “depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.” ’ [Citation.]” (People
v. Leonard (2014) 228 Cal. App. 4th 465, 499; Ortiz, supra, 208 Cal.App.4th at p. 1377.)
3. The Trial Court’s Pronouncement of Sentence
In explaining the basis for its sentencing choices, the trial court stated:
“With regard to the false imprisonment, I do think that is a separate violent act
here. It is clear from the video that the robbery is in progress, but then the suspect
deliberately turns to people who are trying to leave, points the weapon in that direction
and says, ‘Stay there.’ I do think it is pointed in a general direction where a number of
ch. 1139, § 264, p. 5137; Stats. 1977, ch. 165, § 11, p. 644.)” (People v. Latimer (1993)
5 Cal. 4th 1203, 1207, fn. 1.) These amendments are not relevant to the present appeal.
9
people will be. I do plan on 654’ing one of the counts, but sentence consecutive on the
other.”
In its explanation, the trial court may have conflated the two exceptions. This
might explain why it applied section 654 to one of the two false imprisonment charges
but sentenced defendant on the other. The trial court apparently concluded that the
robbery and false imprisonments reflected separate criminal objectives (“but then
defendant turns to people trying to leave”), thus permitting it to sentence defendant on the
false imprisonment charges on that basis. But its reference to “separate violent act”
suggests the two false imprisonment victims had been subjected to an act of violence.
That would have required the trial court to sentence separately for each of the two false
imprisonment charges and would have precluded application of section 654 to either of
those two counts. Nevertheless, the trial court applied section 654 to just one of the false
imprisonments.
As we discuss next, we find the exception for an act of violence against multiple
victims applies, thus permitting separate sentences for the robbery and the two false
imprisonments. Accordingly we do not discuss the separate criminal objectives theory
any further.7
4. Section 654’s Exception For an Act of Violence Against Multiple Victims.
Section 654 on its face makes no mention of an exception founded on defendant’s
commission of an act of violence on multiple victims during a crime episode. The word
“violence” is found nowhere in the statute. Apparently the first reference to this notion
came in People v. Brannon (1924) 70 Cal. App. 225 (Brannon).8 Brannon is more
appropriately seen as a double jeopardy case, not a separate punishment case. There the
defendant was charged with one count of assault with a deadly weapon as to one victim
7 The Attorney General makes only a passing reference to the separate objectives
exception; her principal argument is that the multiple victims exception applies.
8 Prior to Brannon only one appellate case had cited section 654 in any context,
People v. Coffey (1911) 161 Cal. 433, 442.
10
and the murder of a second victim. Only one shot was fired at the two victims. The court
held separate trials for the two crimes, and at the first trial the defendant was acquitted of
assault with a deadly weapon. In the second trial he was found guilty of murder. The
appellate court found the double jeopardy clause did not bar the second prosecution or
conviction. The court reconciled two lines of double jeopardy cases from various
jurisdictions across the country, and concluded there was no bar. Then the court
considered section 654:
“Appellant calls our attention to section 654 of the Penal Code wherein it is
declared that ‘an act or omission which is made punishable in different ways by different
provisions of this act, may be punished under either of such provisions, but in no case can
it be punished under more than one; an acquittal or conviction and sentence under either
one bars a prosecution for the same act or omission under any other.’ We do not think
this section has the broad sweep which appellant claims for it. We do not think it is
applicable where, as here, the one act has two results each of which is an act of violence
against the person of a separate individual.” (Brannon, supra, 70 Cal.App. at pp. 235 -
236; italics added.)
Brannon’s first impression rule that, section 654 notwithstanding, an act of
violence committed against multiple victims may be punished separately apparently
gained little immediate traction. It does not appear to have been discussed in any
appellate opinion for the next 36 years until Neal, supra, 55 Cal.2d at pages 20-21.
Borrowing language from Brannon, our Supreme Court in Neal held, “Section 654 is not
‘. . . applicable where . . . one act has two results each of which is an act of violence
against the person of a separate individual.’ [Citation.]” The Neal court explained: “The
purpose of the protection against multiple punishment is to insure that the defendant’s
punishment will be commensurate with his criminal liability. A defendant who commits
an act of violence with the intent to harm more than one person or by a means likely to
cause harm to several persons is more culpable than a defendant who harms only one
person.” (Id. at p. 20.)
11
In Neal, the defendant threw gasoline into the bedroom of a married couple. Both
were severely burned. Defendant was convicted of two counts of attempted murder and
one count of arson. The Supreme Court held that even though the arson and the
attempted murders formed an indivisible course of conduct, separate punishments were
still allowed for the two attempted murders. The one act of violence – the starting of the
fire – was the basis of both attempted murder convictions. Because there were multiple
victims of one act of violence, separate punishment was permitted. (Neal, supra,
55 Cal.2d at p. 21.)
Neal’s holding was the first extended discussion of the principle that section 654
does not bar separate punishment when an act of violence is committed against multiple
victims. Other than Brannon’s obscure use of section 654 in the context of double
jeopardy, none of the cases principally relied on by the Neal court dealt with or even
cited section 654.9
The California Supreme Court has reiterated the multiple victims rule in a number
of cases since Neal. (See, e.g., Correa, supra, 54 Cal.4th at p. 341; People v. Oates
(2004) 32 Cal. 4th 1048, 1063; People v. Latimer (1993) 5 Cal. 4th 1203, 1212; People v.
McFarland (1989) 47 Cal. 3d 798, 803; Wilkoff v. Superior Court (1985) 38 Cal. 3d 345,
350-351; People v. Ramos (1982) 30 Cal. 3d 553, 589, reversed on other grounds by
California v. Ramos (1983) 463 U.S. 992.)
9 The Neal court also cited People v. Majors (1884) 65 Cal. 138, 146. Majors
preceded Brannon by 40 years, but section 654 had been on the books since 1872. The
statute is not cited. Majors’s holding was that a single act that kills two individuals
constitutes separate crimes for which a separate prosecution may lay. (Id. at pp. 146-
147.) Like Brannon, Majors may more appropriately be considered a multiple
prosecution case than a multiple punishment case. People v. Gaither (1959)
173 Cal. App. 2d 662 also dealt with whether a single act – the mailing of poison that
injured a number of persons – constituted one or multiple offenses. The final case,
People v. Holman (1945) 72 Cal. App. 2d 75, dealt with whether multiple life sentences
for murder were to be consecutive or concurrent. None of these cases cite section 654,
nor did they expressly deal with multiple punishment.
12
The question unanswered in Neal and most of its progeny is what does “act of
violence” mean. Section 654, as we have observed, does not use the term at all, so
obviously it does not define it. Neal did not expressly address the point because there
was little doubt that the crimes there – arson and attempted murder – were acts of
violence. Many of the cases that have followed rightfully assume with little discussion
that the act in question is one of violence and do not attempt to define the term. (E.g.,
People v. Miller (1977) 18 Cal. 3d 873, 886 [robbery and burglary with great bodily
injury], overruled on other grounds, as recognized in People v. Oates, supra, 32 Cal.4th
at p. 1067, fn. 8; In re Ford (1967) 66 Cal. 2d 183, 184 [robbery and kidnapping for
robbery]; People v. Calles (2012) 209 Cal. App. 4th 1200, 1216 [gross vehicular
manslaughter].)
At the risk of engaging in extreme wordsmithing, we observe that as the multiple
victims exception has developed, some courts have strayed from Neal’s articulation of
the rule. Neal’s expression was: “A defendant who commits an act of violence with the
intent to harm more than one person or by a means likely to cause harm to several
persons is more culpable than a defendant who harms only one person.” (Neal, supra,
55 Cal.2d at p. 20; italics added.) Some courts, including our Supreme Court, have used
“crime of violence” as a substitute for “act of violence.” (E.g. People v. Bauer (1969)
1 Cal. 3d 368, 378 [“A number of cases have upheld multiple punishment for a single
criminal transaction where crimes of violence were committed against different
persons.”]; People v. Kurtenbach (2012) 204 Cal. App. 4th 1264, 1290 [“Importantly,
however, the multiple victim exception to section 654 only applies to crimes of violence
against persons, not crimes against property.”] We see little difference between “act of
violence” and “crime of violence,” in the context of what conduct triggers the multiple
victims exception. (People v. Miller, supra, 18 Cal.3d at p. 885 [act and crime used
interchangeably].)
We also observe that the term “act of violence” is not defined in terms of the
violent felony statutes of the Three Strikes Law. Not only did section 654 precede Three
Strikes by a century, courts have recognized that there is no clear-cut correlation between
13
the two statutes. For example, although burglary of a residence in the presence of
another is a violent felony (§§ 667.5, subd. (c)(21), 1170.12 subd. (b)(1)) under the Three
Strikes Law, burglary “standing alone is not a violent crime for purposes of the multiple
victim exception.” (People v. Centers (1999) 73 Cal. App. 4th 84, 99; see also People v
Miller (1977) 18 Cal. 3d 873, 886 [burglary with infliction of great bodily injury is an act
of violence].) We conclude that Neal’s “act of violence,” formulated years before the
Three Strikes Law, is untethered to “violent felony” under three strikes.10
The first case that attempted to define act or crime of violence appears to have
been People v. Hall (2000) 83 Cal. App. 4th 1084 (Hall), overruled on another ground in
Correa, supra, 54 Cal.4th at pages 343-344. In Hall, several peace officers responded to
a man-with-a-gun call; when they confronted defendant, he brandished a loaded shotgun
in the direction of the officers. Defendant pled no contest to three counts of exhibiting a
firearm in the presence of a peace officer (§ 417, subd. (c)), each count referring to a
different officer at the scene. The trial court imposed consecutive state prison sentences
on each count. The Court of Appeal reversed, staying the sentence on two of the three
brandishing charges. It concluded the act of brandishing was not an act of violence on
multiple victims because “by its very definition [exhibiting a firearm is] not committed
upon a peace officer, but only in the presence of a peace officer. The multiple-victim
exception to section 654 requires multiple victims, not multiple observers.” (Id. at
p. 1087.)
In reaching its conclusion the Hall court considered a number of cases that had
applied the multiple victims exception after Neal, and concluded:
“A review of the relevant case law since Neal reveals that in each case where a
criminal act qualified for the multiple-victim exception, the criminal act – that is, the
crime of which defendant was convicted, including any allegations in enhancement – was
defined by statute to proscribe an act of violence against the person, that is, as Neal,
10 Neal, a 1960 case, preceded the Three Strikes Law and related statutes by some 30
years. Section 667.5 was enacted in 1977, 17 years after Neal.
14
supra, 55 Cal.2d at page 20, put it, an act of violence committed ‘with the intent to harm’
or ‘by means likely to cause harm’ to a person. (E.g., People v. Miller (1977) 18 Cal. 3d
873, 885 [135 Cal. Rptr. 654, 558 P.2d 552]; In re Ford (1967) 66 Cal. 2d 183
[57 Cal. Rptr. 129, 424 P.2d 681]; In re Wright (1967) 65 Cal. 2d 650 [56 Cal. Rptr. 110,
422 P.2d 998]; People v. Cruz (1995) 38 Cal. App. 4th 427 [45 Cal. Rptr. 2d 148]; People v.
Masters (1987) 195 Cal. App. 3d 1124 [241 Cal. Rptr. 511]; People v. Prater (1977)
71 Cal. App. 3d 695 [139 Cal. Rptr. 566].) Indeed, the California Supreme Court has
stated that ‘[a] defendant may properly be convicted of multiple counts for multiple
victims for a single criminal act only where the act prohibited by the statute is centrally
an “act of violence against the person.” ’ (Wilkoff v. Superior Court (1985) 38 Cal. 3d
345, 351 [211 Cal. Rptr. 742, 696 P.2d 134], quoting Neal, supra, 55 Cal.2d at p. 20,
italics added.)” (Hall, supra, 83 Cal.App.4th at p. 1089.)
We agree with Hall that whether an act of violence has occurred for purposes of
section 654 must be considered in light of the statute defining the crime of which the
defendant has been convicted, but it must also be determined by what happened in the
commission of the crime.11 Neal and Brannon tell us that the essential question in
determining whether the defendant’s criminal conduct constitutes an act of violence for
the multiple victims exception turns on what happened at the scene. It is the act of
violence, not just the statutory language, that drives the exception to section 654. Stated
slightly differently, “A defendant may properly be convicted of multiple counts for
multiple victims of a single criminal act only where the act prohibited by the statute is
centrally an ‘act of violence against the person.’ ” (Wilkoff v. Superior Court, supra,
38 Cal.3d at p. 352.) As our colleagues in Division Two of this court have held, “The test
is whether, in fact, a particular type of crime is a crime of violence against a person.”
(People v. Martin, supra, 133 Cal.App.4th at p. 782.) We next turn to an analysis of
11 Hall’s definition has been cited in a number of decisions (see, e.g. People v.
Kurtenbach (2012) 204 Cal. App. 4th 1264, 1290 [vandalism not an act of violence];
People v. Davey (2005) 133 Cal. App. 4th 384, 389-390 [indecent exposure not an act of
violence]; People v. Solis (2001) 90 Cal. App. 4th 1002, 1023 [making criminal threats an
act of violence]).
15
whether crimes that do not involve the direct application of force, such as false
imprisonment by menace, involve “centrally an ‘act of violence’ against the person.”
(Wilkoff, at p. 352.)
5. “Act of Violence” In the Context of Crimes That Are Not Always Inherently
Violent.
As we have observed, certain crimes unquestionably involve acts of violence:
murder (People v. Andrews (1989) 49 Cal. 3d 200, 225), attempted premeditated murder
(People v. Bragg (2008) 161 Cal. App. 4th 1385), kidnapping (In re Ford, supra,
66 Cal.2d at p. 184), robbery (People v. Miller, supra, 18 Cal.3d at p. 886), and assault
(People v. Prater (1977) 71 Cal. App. 3d 695). For other crimes, an act violence may be
less apparent. Several appellate opinions have wrestled with this question, and have
reached different conclusions.
For example in Hall, the court found no multiple victims exception because it
concluded as a matter of law that the several peace officers were not victims of the
brandishing crime but only “observers.” “[T]he crime of exhibiting a firearm under
section 417, subdivision (c), does not act upon an officer, but is only committed in the
presence of an officer.” (Hall, supra, 83 Cal.App.4th at p. 1096, italics in original.)
People v. Kurtenbach, supra, 204 Cal. App. 4th 1264, 1290-1291 held that in a
prosecution for arson and vandalism, the vandalism, although committed in a way that
might be described as violent, was a property crime. Hence there were no multiple
victims of an act of violence. People v. Garcia (2003) 107 Cal. App. 4th 1159, 1162-
1163, held that felony evading an officer (Veh. Code, § 2800.1) did not involve an act of
violence even though the crime involves significant risk of harm to officers and
bystanders. Hence the multiple victims exception did not apply when defendant evaded
officers in several vehicles. In People v. Davey, supra, the defendant pled guilty to one
count of annoying a child (Pen. Code, § 647.6) and four counts of indecent exposure (Pen
Code, § 314.1). The indecent exposure counts related to two different dates on which he
exposed himself to two children simultaneously. The appellate court concluded that
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indecent exposure did not implicate an act of violence and hence the multiple victims
exception did not apply. It held section 654 barred punishment for one of the counts on
each date.
In contrast, several appellate courts have found that the multiple victims exception
applied in situations where the violence was not so obvious. In People v. Solis, supra,
90 Cal. App. 4th 1002, defendant was convicted of arson and two counts of making
criminal threats (§ 422). The threats were directed at two roommates and left on a voice
mail. On appeal defendant contended that he could be sentenced only on one of the
threat convictions. The “dispositive question” for the court was “whether the crime of
making a terrorist threat is an act of violence.” (Id. at p. 1023.) Defendant argued that he
did not have to actually intend to carry out the threat to be guilty of a criminal threat so
there was no violence. “The argument misses the mark. The statute still requires the
defendant to willfully make a threat which he intends the listener to understand as a threat
and which causes sustained fear in the listener. This constitutes a crime of psychic
violence which, if directed at separate listeners (victims) who each sustain fear, can be
punished separately.” (Id. at p. 1024, italics added.)
People v. Pantoja (2004) 122 Cal. App. 4th 1, held that defendant could be
separately punished for murder and child endangerment when he killed his girlfriend in
the presence of their daughter. The defendant argued that child endangerment was not an
act of violence because, not only did he not touch his daughter, his actions were not even
directed toward her. The court held that even if the defendant did not intend to injure his
daughter, there was “no doubt that defendant’s acts harmed” her. (Id. at p. 16.) Although
the Pantoja court did not cite Solis, its holding implicitly embraces the notion that
“psychic violence” (People v. Solis, supra, 90 Cal.App.4th at p. 1024) is violence for the
multiple victims exception.
Finally, in People v. Martin, supra, 133 Cal. App. 4th 776, defendant was convicted
of spousal battery (§ 273.5), resisting arrest (§ 69), and battery on a police officer (§ 243,
subd. (c)(2)). Five officers were involved in the arrest; one of the officers was the victim
of a battery. The court held that the resisting arrest was an act of violence against the
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police officers and could be punished separately even though the actual touching – the
battery – only involved one officer.
6. False Imprisonment By Menace As an Act of Violence
We have found two cases that have considered whether false imprisonment by
menace is an act of violence for purposes of section 654. They appear to reach opposite
conclusions. In People v. Foster (1988) 201 Cal. App. 3d 20, defendant and a confederate
were convicted of robberies of three commercial establishments on separate occasions.
After the men had completed their last robbery, they locked the robbery victim, another
store employee and that employee’s spouse into a store cooler. In addition to the
robbery, the defendant was convicted of three counts of false imprisonment for the cooler
incident. He was sentenced on all counts including consecutive counts on the three false
imprisonment charges. The Court of Appeal concluded that “each false imprisonment
count was punishable as a crime of violence against a separate individual.” (Id. at p. 28.)
People v. Islas (2012) 210 Cal. App. 4th 116 (Islas) appears to stand in contrast.
There, the defendants were convicted of burglary and five counts of false imprisonment
by violence or menace. The trial court sentenced defendants to concurrent terms on each
of the false imprisonment counts. Defendants initially argued that at most the false
imprisonment charges were misdemeanors. The Court of Appeal rejected that argument,
concluding that sufficient evidence supported felony false imprisonment by menace. (Id.
at pp. 124-128.) Instead it concluded that the concurrent terms for the five false
imprisonments should have been stayed under section 654.
A brief summary of the facts in Islas helps explain the court’s rationale. The two
defendants, Islas and Giron, were gang members hanging out in front of a local
stronghold. When police arrived the defendants ran into the building, climbed up a
ventilation shaft and entered the bathroom occupied by a young woman and her four
daughters aged 4 to 13. The court’s description continued: “Islas and Giron were
shirtless with their gang tattoos exposed; their heads were shaved and they wore baggy
pants. One put his finger to his mouth and told [mother] to hide them from the police.
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Giron turned off the lights in the apartment. [Mother] and her daughters huddled together
while Islas stood and Giron sat on a couch six feet from them. When [mother] said she
was scared, Islas and Giron told her they were not going to harm her. After 15 minutes,
police officers knocked on the door. Islas told [mother] to pretend she was Giron’s aunt.
Giron answered the door and was pulled from the apartment by the officers. Islas was
found hiding under a pile of clothes.” (Islas, supra, 210 Cal.App.4th at p. 119.)
In rejecting separate punishments, the appellate court first concluded that the
burglary was committed “entirely on entry with the intent to commit felony false
imprisonment.” (Islas, supra, 210 Cal.App.4th at p. 130.) As such, there was a single
criminal objective and defendants could not be sentenced for false imprisonment in
addition to the burglary. Turning to the act of violence against multiple victims
exception, the court first concluded burglary without great bodily injury was not an act of
violence, citing People v. Centers, supra, 73 Cal.App.4th at page 99. Its only discussion
of act of violence and the multiple false imprisonment victims was: “Also, the
convictions of felony false imprisonment were based on menace, not violence. Because
none of the offenses was a crime of violence, the multiple victim exception does not
apply.” (Islas, at p. 130.)
If the Islas court was stating a rule that false imprisonment by menace cannot be
an act of violence for purposes of the section 654 exception, we disagree with the court’s
analysis and do not adopt it here. At a minimum, it appears to stand in conflict with
People v. Foster, supra, 201 Cal. App. 3d 20, 28. If, however, the Islas court was holding
that in the case before it, with the somewhat coincidental encounter between the
defendants and the building residents and the lack of significant threats, there was
insufficient evidence of violence by menace, then Islas is reconcilable with Foster.
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7. The False Imprisonment Here Was an Act of Violence As a Matter of Law;
in Any Event the Trial Court’s Finding Was Supported By Substantial
Evidence.
Defendant contends that if he was convicted of felony false imprisonment by
menace, not by violence, then he could not have committed an act of violence under
section 654 when he pointed his weapon at his false imprisonment victims. We disagree.
The multiple victims exception to section 654 is a statement of judicial policy that
a defendant whose violent acts are aimed at or increase the risk of harm to several
persons is more culpable than a defendant who harms only one. (See Neal, supra,
55 Cal.2d at p. 20.) As discussed previously, its application turns on the facts of the
offense, not only the terms of the criminal statute that was violated. In Wilkoff, supra,
38 Cal.3d at page 351, the court focused its inquiry on “whether the ‘central element’ of
the offense – the act prohibited by the statute – had been committed more than once.”
Citing Ramos, supra, 30 Cal.3d at page 589, the Wilkoff court said: “ ‘Robbery is not
merely the felonious taking of personal property. Such a taking without more, is only
theft. . . . [¶] We view the central element of the crime of robbery as the force or fear
applied to the individual victim in order to deprive him of his property. Accordingly, if
force or fear is applied to two victims in joint possession of property, two convictions of
robbery are proper.’ ” (Wilkoff, at p. 351, italics added.)
Robbery at gunpoint is an act of violence under section 654. (People v. Miller,
supra, 18 Cal.3d at p. 873.) If accomplished by nothing other than the mere display of a
handgun, those must be robberies by fear under Wilkoff and Ramos. The parallels
between armed robbery and armed false imprisonment are definitionally compelling.
“Robbery is the felonious taking of personal property in the possession of another, from
his person or immediate presence, and against his will, accomplished by means of force
or fear.” (§ 211.) Felony false imprisonment is principally committed by “violence or
menace.” (§ 237, subd. (a).)
“Menace [for false imprisonment] is a threat of harm express or implied by words
or act.” (Islas, supra, 210 Cal.App.4th at p. 123.) In determining whether there has been
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an express or implied threat of harm, the trier of fact “properly may consider a victim’s
fear.” (Id. at p. 127.) In our view, therefore, false imprisonment by “menace,” especially
when carried out at gunpoint, is the equivalent of robbery by fear.
There is no doubt that defendant accomplished the armed robbery of the restaurant
manager by an act of violence. That became no less violent when defendant pivoted from
the manager and toward the family of bystanders, and pointed his gun at them.
In concluding that false imprisonment by menace can be, and was here, an act of
violence, we therefore reject defendant’s contention that false imprisonment committed
by means other than violence cannot be a violent act for purposes of the multiple victim
exception to section 654. Whatever superficial appeal that contention may have in the
abstract, to create such a rule would be nonsensical, and we see nothing in the
development of either section 654 or false imprisonment that compels such a result.
(People v. Johnson (2015) 234 Cal. App. 4th 1432, 1451 [“we must interpret legislative
enactments so as to avoid absurd results”].)
If the bystanders here had been robbed, defendant unquestionably could have been
punished separately for each of the robberies. (People v. Miller, supra, 18 Cal.3d at
p. 886.) The only difference between that situation and the present one is that no
property was taken from the bystanders. But the absence of a taking of property did not
make defendant’s conduct toward the bystanders less violent, it meant only that
defendant did not engage in theft from the bystanders.12
In pronouncing sentence on the false imprisonment charges, the trial court here
stated: With regard to the false imprisonment, I do think that is a separate violent act
here. “We apply a substantial evidence standard of review when determining whether
section 654 applies.” (People v. Kurtenbach, supra, 204 Cal.App.4th at p. 1289.)
Although the standard of review is applied most frequently in the context of whether the
12 We decline to extend the holding in Hall that when a suspect brandishes a shotgun
in the direction of police officers, the officers are not victims but only observers. (Hall,
supra, 83 Cal.App.4th at p. 1087.) False imprisonment is “the unlawful violation of the
personal liberty of another.” The “another” means there are victims of false
imprisonment, not observers; one cannot falsely imprison a ghost.
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defendant harbored single or multiple criminal objectives, we see no reason why the same
deferential standard should not be applied here. Considering the use of a weapon
directed toward the bystanders and the armed robbery conviction, we conclude
substantial evidence supports the finding that there was an act of violence against
multiple victims. In light of this holding, we need not address whether false
imprisonment by menace always involves an act of violence such that if multiple victims
are present section 654 does not apply as a matter of law.
8. Remand is Necessary to Allow the Trial Court to Exercise Its Discretion in
Sentencing Defendant on all Counts
Our conclusion that section 654 does not bar punishment of defendant for the acts
committed against the two false imprisonment victims means that the trial court
incorrectly applied section 654 to the one false imprisonment charge that it stayed. In so
doing it imposed an unlawful sentence. An unlawful sentence, including one that is
inconsistent with section 654, may be corrected at any time. (People v. Hester (2000)
22 Cal. 4th 290, 295.)
On remand the court should be given the opportunity to re-sentence on all three
counts. The trial court shall impose sentence on each of the three counts. Other than
holding that section 654 does not prohibit multiple punishment, we express no opinion on
whether sentences should be imposed consecutively or concurrently; nor do we otherwise
suggest how the court should act in exercising its sentencing discretion.
DISPOSITION
The judgment is reversed for the purposes of allowing the trial court to re-sentence
defendant on one count of robbery and two counts of false imprisonment without
///
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applying section 654. In all other respects, the judgment is affirmed.
RUBIN, ACTING P. J.
WE CONCUR:
FLIER, J.
GRIMES, J.
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