Defendant and appellant Santos Dominguez was convicted by jury in count 2 of felony false imprisonment of L.G. (L.), a child under the age of 14, and in count 3 of misdemeanor false imprisonment of J.S. (J.) (Pen. Code, §§ 236, 237). 1 Defendant was sentenced to state prison for the upper term of three years on the felony false imprisonment charge and a concurrent term of 365 days in county jail on the misdemeanor.
In his timely appeal from the judgment, defendant argues the evidence is insufficient to support a conviction for either felony or misdemeanor false imprisonment of L. in count 2. He also argues the evidence is insufficient to support the conviction of misdemeanor false imprisonment of J. in count 3. We affirm.
FACTS
Prosecution Evidence
Four-year-old L. was playing with her six-year-old cousin, J., in the ground floor apartment L. shared with her family on Sepulveda Boulevard on February 17, 2008. J. lived in the same building in a second floor apartment with her mother. The girls said they were going to play with a little friend, who lived on the second floor of the complex.
J. saw defendant by the friend’s apartment. Defendant asked J. her name and then twice asked, “Where’s your mom?” He hugged both J. and L. J. said her mom was in the house. Defendant said he wanted J. to come to a restaurant. She asked if he had money to take them to the restaurant. He said he had money. Defendant picked up L. and carried her toward the mailbox on the ground floor.
J. followed as defendant carried L. downstairs to the first floor, because she did not want to leave defendant alone with L. L.’s face was red as defendant carried her down the stairs. Defendant walked out of the apartment security gate, which is located near the mailbox. J. stayed inside the gate. Defendant returned inside the gate and again hugged both girls.
Defendant saw another man on the first floor and stopped. Defendant, who at this time was carrying L. on his shoulders, put her down.
J. and L. went to J.’s apartment and spoke with J.’s mother. Over the course of the next hour and a half, J. provided her mother with information
Later that day, J. saw defendant outside the apartment and identified him to her mother and uncle. She later saw defendant at a Mobil gas station and identified him for the police.
Officer Amanda Morrow contacted defendant at the Mobil gas station at Sepulveda and Nordhoff on February 17, 2008, where defendant was identified by J. Defendant told the officer he wanted to get the two little girls away from their abusive parents and get them some food.
Detective Donald Goosens met with J. on February 19, 2008. Detective Goosens estimated the distance between the stairwell where J. had been playing and the front gate was 60 to 70 feet.
Uncharged Prior Acts
E.C. (E.), bom in December 1990, lived with her family in 2002 on Roscoe Boulevard. Defendant lived on the premises in a converted garage. E. went to the garage on occasion to watch television. On one occasion she felt defendant’s hand on her breast over her clothing, although she could not tell if the touching was accidental or on purpose.
K.C., E.’s sister, bom in July 1995, also went to the converted garage where defendant lived. Defendant touched her breast under her clothing and kissed her on the lips two or three times when she was six or seven years old.
Defense
Defendant lived in apartment No. 29 in the building on Sepulveda where the charged offenses took place on February 17, 2008. He never saw the two little girls at the apartment before that date. He did not pick up L. and never touched her.
On February 17, defendant was leaving when he saw the girls headed toward the mailboxes. The security gate was propped open with a shopping cart. The girls said they were going outside the gate to play. Defendant told them to stay inside. He then left to get a haircut.
DISCUSSION
Sufficiency of Evidence of Felony False Imprisonment As to L.
Defendant first argues there is insufficient evidence to support the verdict of felony false imprisonment of L. in count 2. He further argues that if we determine that the evidence is insufficient to support the felony charge, we should also hold the evidence is insufficient to support a lesser charge of misdemeanor false imprisonment of L. We reject the first contention, and need not address the second.
A. Standard of Review
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
(People v. Rodriguez
(1999)
B. Elements of False Imprisonment
“False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236.) False imprisonment is a felony if “effected by violence,
The amount of force required to constitute a kidnapping or a false imprisonment of an infant or young child was addressed in
In re Michele D.
(2002)
The Supreme Court “granted review to resolve the issue of what quantum of force, if any, must be shown to sustain a conviction for kidnapping when the victim is an unresisting infant or child.”
(Michele D., supra,
In the ordinary kidnapping case, the amount of force required is “something more than the quantum of physical force necessary to effect movement of the victim from one location to another.”
(Michele D., supra,
In reaching its conclusion, the
Michele D.
court referred to its decision in
People v. Oliver
(1961)
Michele D.
noted that dicta in
Parnell
v.
Superior Court
(1981)
“That said, it remains true that no California case has yet defined the quantum of force necessary to establish the force element of kidnapping in the case of an infant or small child. We formulate that standard as follows: the amount of force required to kidnap an unresisting infant or child is simply the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent.” (Michele D., supra, 29 Cal.4th at p. 610, fn. omitted.)
We assume the discussion of force in the context of a kidnapping prosecution in Michele D. applies equally to the force requirement of false imprisonment. This assumption appears beyond reasonable dispute, as Rios, a false imprisonment case, was cited with approval in Michele D., supra, 29 Cal.4th at pages 608-609.
C. Analysis
The element of force in the movement of four-year-old L. is satisfied under the
Michele D.
guidelines: Defendant moved an unresisting L. a substantial distance for an illegal purpose or with an illegal intent. Upon first seeing the girls, defendant hugged both L. and J. Defendant had no right to touch the girls, and an unsolicited hug of young children,
Based on defendant’s prior molestations of E. and K.C., the jury could infer defendant had a disposition for molesting young girls, indicating the movement of L. was for an illegal purpose or with an illegal intent under Michele D. Considering the age of L., the distance traveled, and the fact defendant picked her up and carried her from a place of apparent safety within the apartment complex to a location beyond its security gate, the necessary element of a forceful violation of her personal liberty was satisfied. (See People v. Castro, supra, 138 Cal.App.4th at pp. 140-142 [sufficient evidence of felony false imprisonment where defendant made sexually suggestive comments to a 16-year-old girl on the street and grabbed her arm and pulled her toward him].)
The use of force establishes a false imprisonment. In order to elevate the offense to a felony, there must be substantial evidence that the false imprisonment was “effected by violence, menace, fraud, or deceit . . . .” (§ 237, subd. (a).) The evidence is sufficient to establish that defendant relied upon menace, and fraud or deceit.
Menace is a threat of harm expressed or implied by words or act.
(People
v.
Wardell
(2008)
We also hold there is substantial evidence of fraud or deceit in defendant’s statement that he wanted to take J. to a restaurant. The jury could reasonably infer the restaurant statement was a ruse to entice both girls to leave the apartment structure without creating a fuss, but that defendant had no intention of actually taking them to a restaurant. Considering that defendant
Having concluded that substantial evidence supports the conviction of felony false imprisonment, we need not address defendant’s further argument challenging the sufficiency of the evidence of misdemeanor false imprisonment as to L.
Sufficiency of the Evidence of Misdemeanor False Imprisonment As to J.
Defendant also argues the evidence is insufficient to support the misdemeanor false imprisonment conviction involving J. Defendant contends J. voluntarily decided to follow along as defendant carried L. downstairs, without any use of force on his part. We disagree.
“Again, the essential element of false imprisonment is restraint of the person. Any exercise of express or implied force which compels another person to remain where he does not wish to remain, or to go where he does not wish to go, is false imprisonment.
(People v. Fernandez[, supra,]
There is substantial evidence that defendant’s conduct compelled J. to go to a place she did not wish to go. She and L. had walked upstairs to see a friend. Defendant’s conduct caused J. to leave the second floor and walk downstairs, a distance of up to 70 feet, as defendant appeared to be in the process of walking off with L. These facts qualify as confinement for purposes of false imprisonment. The remaining question is whether the facts also constitute substantial evidence of force as defined in the case law.
“An express or implied threat of harm does not require the use of a deadly weapon or an express verbal threat to do additional harm. Threats can be exhibited in a myriad number of ways, verbally and by conduct.”
(People v. Aispuro
(2007)
The incident began with defendant, a complete stranger, hugging the two girls on the second floor of the apartment. Defendant asked about the girls’ parents, from which the jury could infer he was concerned about his prospects of safely taking the girls from the apartment without being observed. After having been subjected to defendant’s unwarranted touching, defendant told J. he wanted to take her to a restaurant with him. Indicating her suspicion of this stranger, J. asked if defendant had money. Next, J. saw defendant pick up L. and carry the red-faced L. downstairs. J. followed because she did not want L. to be alone with defendant.
Confronted with a confusing situation in which she was subjected to an unwarranted hug from a person she did not know, was enticed to go to a restaurant, and saw her younger cousin being forcibly carried away, J. followed defendant out of fear for her cousin’s safety. A reasonable trier of fact could conclude J.’s will was overcome to the point she felt compelled to move downstairs when confronted with these facts.
The express force used on L., in conjunction with the attendant circumstances of defendant’s conduct, had the implied effect of forcing J. to leave the second floor of the apartment complex and follow defendant to the ground floor. The continuing threat to L. was sufficient to constitute implied force upon J. In circumstances such as these, the express use of force upon one person can constitute the implied use of force upon another.
While J. may have had choices other than following defendant downstairs, such as going for her mother or screaming, it does not mean that her decision to follow defendant as he walked off with her cousin was consensual in the legal sense. What an adult might have done under these circumstances is of no moment in determining whether J. was the victim of a false imprisonment. As a six year old protective of a younger relative, J. could reasonably conclude she had no choice but to follow along out of fear for L.’s safety. This is substantial evidence that her will was overcome and she was, in effect, forced to move to a place she did not intend to go.
The judgment is affirmed.
Armstrong, Acting P. J., and Mosk, J., concurred.
On January 19, 2010, the opinion was modified to read as printed above.
Notes
All further statutory citations are to the Penal Code unless otherwise stated.