Opinion
Eraste Islas and Pablo Alexander Giron appeal the judgments entered following their conviction by jury of first degree burglary with a person present and five counts of false imprisonment by violence or menace, a felony. (Pen. Code, §§ 459, 667.5, subd. (c)(21), 236, 237, subd. (b).)
Islas and Giron contend the convictions of felony false imprisonment must be reduced to misdemeanors because the evidence does not establish violence or menace. As a result, the burglary convictions, which were based on entry with the intent to commit felony false imprisonment, must be reversed or reduced to trespass. They also contend the concurrent terms imposed on the false imprisonment counts should have been stayed.
We reject the attack on the sufficiency of the evidence to support the convictions of felony false imprisonment. The evidence indicated Islas, Giron and numerous other gang members were сongregating in front of an apartment building in downtown Los Angeles that was a gang “stronghold.” When police officers arrived, the gang members ran into the building. Islas and Giron climbed up a ventilation shaft and entered the bathroom of a studio apartment occupied by Teresa Salado, an 11-year resident of the building, and her four daughters, ages 13 to four years. 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 Salado to hide them from the police. Giron turned off the lights in the apartment. Salado and her daughters huddled together while Islas stood and Giron sat on a couch six feet from them. When Salado 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 Salado 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.
Although Islas and Giron used no weapons, did not touch Salado or her children and issued no express threat of harm, the evidence was sufficient to support the jury’s finding the false imprisonmеnt was effected by menace, i.e., an express or implied threat of harm. Thus, we affirm the convictions of felony false imprisonment and burglary.
However, it appears Islas and Giron are correct in asserting the terms imposed for false imprisonment must be stayed. Accordingly, the judgments are affirmed as modified to stay the terms imposed on counts 2 through 6.
1. The prosecution’s evidence.
a. Testimony of the arresting officers.
On March 25, 2010, at approximately 1:00 a.m., Los Angeles Police Officer Mario Botello received a radio call regarding gang members in front of an apartment building at 916 Georgia Street in downtown Los Angeles near Staples Cеnter. As Botello and his partner arrived at the location, eight to 10 gang members ran into the building. Botello drove to the rear of the building but the fleeing gang members did not exit. Botello called for additional units, then set up a perimeter and entered the building to extract the gang members. Four individuals ran from the building and were taken into custody. Botello and his partner entered the basement and found an individual hiding in a furnace area. They next illuminated the opening of a four-by-four-foot ventilation shaft that went from the basement to the roof. The mesh cover on the shaft opening was bent аside and the officers could see the legs of four individuals in the shaft. Two females exited and were taken into custody. The other two individuals climbed upward in the shaft.
Botello obtained keys to the apartments, entered apartment 101 and found it was unoccupied. Botello noticed the bathroom window, which opened into the ventilation shaft, was missing its vent louvers. Botello looked across the shaft and saw the bathroom window of apartment 102, which also opened into the ventilation shaft, did not have a screen. Botello went to apartment 102 and knocked on the dоor. After a few minutes, Giron opened the door slightly. Botello could see Giron was not wearing a shirt, his shorts were dirty and he had “4” and “2” tattooed on his stomach. Botello kicked the door open and pulled Giron from the apartment with the assistance of Officer Juan Ibarra.
Botello entered the one-room apartment, which was approximately 14 feet square, and saw Teresa Salado standing against the wall in the comer of the room next to a bed on which four children were huddled with blankets over them. Salado looked at Botello with a blank stare and motiоned with her head to her left. Botello looked behind the couch and saw a shirtless male Hispanic, Islas, under a pile of clothing. Islas had to be pulled from behind the couch and walked from the apartment. The bathroom window screen was lying in the bathtub.
Officer Ibarra interviewed Salado outside her apartment a few minutes after Islas and Giron were detained. Salado made no eye contact with Ibarra and was shaking with fear. Salado said that when she awoke, she turned on the
b. Testimony of Teresa Salado and her daughters.
Teresa Salado testified she had lived in apartment 102 for 11 years. The apartment has one room, a closet and a bathroom. When Salado went to bed, she left the bathroom light on. She was awakened by noises outside the building that sounded like someone running. About an hour later, Salado heard banging on the back wall of her apartment. She got оut of bed and saw two “gang members,” Islas and Giron, standing in her bathtub. They were wearing baggy pants and their heads were shaved. Salado immediately was afraid they might do something to her or her daughters. Salado testified Islas told her, in Spanish, to hide them from the police. Salado felt that if she ran from the apartment, Islas and Giron would attack her or her daughters. Salado’s oldest daughter stood next to her and the other children huddled in a bed. Islas remained standing and Giron sat on the couch facing Salado. Each was about six feet from Salado and her daughters. Islas and Giron talked to each other in English, which Salado does not understand. Islas and Giron were in the apartment for about 15 minutes. Salado stayed by the bed with her children until the police arrived. Islas and Giron said they did not want to hurt Salado but only wanted her to hide them. Salado did not believe Islas and Giron were not going to harm her.
When the police knocked on the door, Islas told Salado to pretend she was his aunt and Giron told Salado not to open the door. Salado feared that if she opened the door, she would be harmed. After two or three minutes, Giron opened the door and poliсe officers entered the apartment.
Islas and Giron were dirty and appeared to be scared. Neither man threatened Salado or touched her. At trial, one year after the incident, Salado testified Islas and Giron wore shirts when they entered her apartment. Salado also testified she remained in fear that Islas and Giron might harm her or her daughters if they were released.
Salado’s 13-year-old daughter, Carla, testified she was awakened by people screaming outside. Her mother told her to lie on the floor to avoid bullets that might enter the window of the аpartment. While on the floor, Carla heard
Salado’s nine-year-old daughter, Bertha, testified she did not want to look at the men and was afraid they would do something bad to them because they “looked like criminals.”
c. Testimony of the gang expert.
Los Angeles Police Officer Francisco Martinez testified Islas and Giron are known members of the “42nd Little Criminals gang.” Islas and Giron each have four or five gang tattoos and both have “42” tattooed on their stomach. The gang was established more than 10 years ago in the area of 42d Street and Broadway but migrated to the area near Staples Center. The gang has approximately 80 members. The primary activities of the gang are terrorizing the community, sale of heroin, robbery and murder. The gang intimidates by tagging buildings and causing citizens to fear retaliation if a crime is reported. The gang’s territory has been decreased by renovatiоn of the downtown area which has resulted in the demolition of many buildings. The apartment building at 916 Georgia Street is a “stronghold” of the gang. Gang members believe they can commit crimes with impunity at the location. Graffiti on the building included a “roll call” with the monikers of Islas and Giron.
In response to a hypothetical question based on the facts of this case, Martinez opined the charged offenses had been committed in association with and for the benefit of the gang. Martinez based this opinion, in part, on the exposure of the gang tattoos which told the victims, “I’m a gang member,” therеby instilling fear and advising the victims to cooperate or they would be harmed.
DISCUSSION
1. Substantial evidence supports the convictions of felony false imprisonment and burglary.
a. The law of false imprisonment.
“False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236.) “False imprisonment is a misdemeanor unless it is ‘effected by violence, menace, fraud, or deceit,’ in which case it is a felony.”
b. Islas’s and Giron’s contentions.
Islas and Giron contend their conduct in asking Salado to hide them from the police constituted only misdemeanor false imprisonment, that is, an exercise of express or implied force which compelled Salado and her daughters to stay where they did not wish to stay. They assert the evidence did not demonstrate menace, i.e., an express or implied threat to do harm. They note there was no use of a weapon. (Cf. People v. Fosselman (1983)
Also, they did not touch the victims. (Cf. People v. Dominguez, supra,
They issued no verbal threats to harm the victims. (Cf. People v. Raley (1992)
Islas and Giron conclude there was insufficient evidence of menace to support the jury’s finding Islas and Giron committed felony false imprisonment. Thus, the false imprisonment convictions must be reduced to misdemeanors and the burglary convictions, which were based on entry with the intent to commit felony false imprisonment, must be set aside.
c. Standard of review.
“ ‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Bolden (2002)
d. The evidence supports the convictions of felony false imprisonment.
We find evidentiary support for the convictions of felony false imprisonment in the repeated criticism of People v. Matian (1995)
The result in Matian has been criticized for suggesting menace requires either a weapon or a direct threat to sustain a conviction of felony false imprisonment. People v. Castro, supra,
People v. Aispuro, supra,
People v. Wardell, supra,
Based on the criticism of Matian in Castro, Aispuro and Wardell, it is clear the absence of an express threat, weapons or physical contact with the victim is not determinative. As noted in Aispuro, “An express or implied threat of harm does not require the use of a deadly weapon or an express
Here, Salado and her 13-year-old daughter heard noises indicating police activity outside the apartment building about an hour before Islas and Giron entered the apartment. Salado told her daughter to he on the floor to avoid being struck by flying bullets, thereby indicating the dangerousness of the neighborhood and the situation. When Salado heard noises at the back wall of her apartment, she turned the apartment light on and saw Islas and Giron in her bathroom. Upon seeing the intruders, Salado and her daughters were terrified. Salado testified Islas and Giron looked like “gang members,” Salado’s 13-year-old daughter repeatedly referred to Islas and Giron as “gangsters,” and Salado’s nine-year-old daughter called them “criminals.”
Islas put a finger to his mouth and “told” Salado to hide them from the police. Giron then turned off the lights in the apartment. Islas remained standing while Giron sat on the couch, both about six feet from Salado and her children in the 14-by-14-foot apartment. This conduct, which occurred in an apartment building that was one of the gang’s few remaining strongholds, coupled with the display of gang tattoos, constituted menace. As the prosecutor argued to the jury, the exposed tattoos implied, “you better do as we tell you to do or else.”
The prosecutor’s argument in this regard was supported by the testimony of the gang expert who indicated the gang intimidated law-abiding citizens by tagging buildings and causing residents to fear retaliation if a crime were reported. The expert indicated members of the gang believed they could commit crime with impunity at the apartment building. The expert testified the exposure of gang tattoos told the victims, “I’m a gang member,” instilled fear, and advised the victims to cooperate or be harmed.
Islas argues there is no evidence indicating Salado and her daughters recognized his tattoos as gang tattoos or interpreted the tattoos as an implicit threat of harm. However, Salado had been a resident of the apartment building for 11 years. It reasonably can be inferred she was aware of the gang activity in the building and the neighborhood, which included sale of heroin, robbery and murder. Further, Islas and Giron each had “4” and “2” tattooed prominently on their exposed upper bodies, immediately identifying them as members of the gang that controlled the building.
The statement Islas and Giron would not harm Salado must be evaluated in context. As the prosecutor argued at trial, there was no reason for Islas and Giron to say they were not going to harm Salado or her daughters “unless the
Additional evidence of Salado’s fear can be found in her recantation of her initial statement to Officer Ibarra that Islas and Giron were shirtless with exposed gang tattoos on the night of the incident. Also, Salado testified she continued to fear Islas and Giron might be released and harm her or her daughters. This fear derived, at least in part, from the display of tattoos indicating Islas and Giron were members of the gang that considered the apartment building its stronghold. To suggest Salado, an 11-year resident of the building, and her children did not recognize the gang tattoos as threatening disregards the evidence.
Giron suggests the subjective fear experienced by the victims is not relevant in determining the sufficiency of the evidence because menace must be established by the words and acts of the defendant. In support of this assertion he cites People v. Haney, supra,
Indeed, the victim’s fear frequently is mentioned in cases that address whether an express or implied threat of harm has been proven in a felony false imprisonment case. (See, e.g., People v. Reed, supra,
Finally, Islas asserts the record shows the jury struggled with the issue of menace. On the second day of deliberations, the jury asked if menace could “be defined as the intention to continue to falsely imprison a witness/victim after she has displayed fear?” The trial court responded: “The simple answer to thаt question is no. Menace is defined as follows: ‘It is an express or
However, Islas does not claim any error in these proceedings or that the trial court misadvised the jury. The fact the jury struggled with the evidence and did not reach a verdict quickly does not mean the evidence was insufficient to support the convictions.
In sum, the evidence permitted the jury to find Islas and Giron controlled the situation, made themselves comfortable in Salado’s home, created a climate of fear and intimidation and coerced the victims into cooperating with their demands through an implied threat of harm. Given the gang evidence, the jury properly could conclude Islas and Giron would take whatever action was necessary to avoid capture. Thus, the evidence supports the reasonable conclusion Islas and Giron falsely imprisoned the victims by menace, i.e., an express or implied threat of harm.
e. Sufficiency of the evidence of burglary.
Because the evidence supports the convictions of felony false imprisonment, the assertion the burglary lacked an underlying felony must be rejected.
Islas also contends, in a perfunctory manner, the evidence does not support the finding he intended to commit felony false imprisonment when he entered the bathroom or when he entered the living room. Assertions unsupported by authority or reasoned argument need not be considered. (See People v. Stanley, supra,
Even if this rule is overlooked, it is clear the jury reasonably could conclude Islas and Giron entered Salado’s illuminated bathroom, rather than the bathroom of apartment 101, which was unoccupied, because they intended to coerce the occupants of apartment 102 into hiding them from the police. Alternatively, the jury could conclude Islas and Giron harbored the intent to commit felony false imprisonment when they walked from the bathroom into the living room after seeing Salado and her children. (See People v. Sparks (2002)
Thus, the evidence supports the burglary convictions.
Islas and Giron contend the concurrent terms imposed on the five counts of false imprisonment should have been stayed. It appears this contention is well taken.
Section 654 provides, in part: “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.”
Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993)
On the facts presented, there is no sufficient evidentiаry basis for an implicit finding Islas and Giron possessed independent criminal objectives when they burglarized Salado’s apartment and falsely imprisoned Salado and her children.
The jury was instructed that, in order to convict Islas and Giron of burglary with a person present, the People must prove: “1. The defendant entered a room within the building; 2. When he entered a room, he intended to commit false imprisonment by violence or menace; and 3. A person or persons was present in the apartment.”
The People assert substantial evidence supports an implied finding Islas and Giron initially intended to flee from the police and, once inside the apartment, they intended to prevent Salado and her daughters from alerting the police to their location. Thus, Islas and Giron harbored multiple criminal objectives. However, entry with the intent to flee the police did not amount to burglary. Thus, the People’s attempt to parse the situation into multiple criminal objectives is unavailing.
Additionally, the “multiple victim” exception to the operation of section 654 does not apply in this case. This exception arises only where the defendant commits crimes of violence against multiple victims. (People v. Le, supra,
In sum, the concurrent terms imposed for false imprisonment, which was the intended felony underlying the burglary conviction, must be stayed.
The judgments are modified to stay the terms imposed for false imprisonment in counts 2 through 6. As so modified, the judgments are affirmed.
Croskey, J., and Kitching, J., concurred.
Appellants’ petitions for review by the Supreme Court were denied February 13, 2013, S206802. Kennard, J., was of the opinion that the petition should be granted.
Notes
Subsequent unspecified statutory references are to the Penal Code.
The trial court excluded evidence that Islas’s mother had been convicted of attempting to dissuade a witness, Salado. The trial court found the evidence unduly prejudicial absent some indication Islas’s mother had acted at Islas’s behest.
Giron’s failure to raise this issue in the opening brief does not foreclose him from asserting it as he did in the reply brief. The erroneous failure to stay execution of sentence under section 654 constitutes an unauthorized sentence which is subject to correction at any time. (See People v. Dotson (1997)