Opinion
H043106
11-29-2018
THE PEOPLE, Plaintiff and Respondent, v. MARVALYON FELLA GIBSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. EE907222)
A jury convicted defendant Marvalyon Fella Gibson of felony false imprisonment, misdemeanor vandalism, and burglary. The trial court found true allegations that defendant had suffered eight prior strikes, four prison priors, and three prior serious felony convictions. Pursuant to the Three Strikes law, the trial court sentenced defendant to a prison term of 41 years to life. On appeal, defendant claims instructional error and challenges the sufficiency of the evidence supporting his false imprisonment conviction.
This matter has been transferred here from the Supreme Court People v. Gibson (S250914) with directions to vacate our previous decision and to reconsider the case in light of new legislation taking effect on January 1, 2019, which gives trial courts the discretion to strike prior serious felony convictions for purposes of the five-year enhancement for such prior convictions under Penal Code section 667, subdivision (a)(1). (Sen. Bill No. 1393 (2017-2018 Reg. Sess.), Stats. 2018, ch. 1013 § 1 [amending § 667, subd. (a)(1)], § 2 [amending § 1385, subd. (b)].)
All further statutory refences are to the Penal Code unless otherwise indicated.
In our earlier nonpublished opinion, filed on July 23, 2018, we affirmed. We hereby vacate our previous decision. Having reconsidered the cause in light of Senate Bill 1393, we reverse and remand the matter for resentencing.
I. BACKGROUND
A. Facts Adduced at Trial
1. Defendant's Relationship with the Victim
Sharon dated defendant from July 2006 until March 2007. In March 2007, defendant grabbed Sharon by her shirt, causing her to fall into the closet and leaving her with a bruise on her arm. In July 17, 2007, Sharon was walking out of her second-floor apartment in Sunnyvale to go to work when defendant came running up the stairs. He grabbed her, shoved her back into the apartment, put his hand over her mouth, and shoved her down onto the couch. Defendant grabbed a knife from the kitchen, stood above Sharon with the knife raised, and said "there will be blood all over." Sharon got down on her knees to pray, at which point defendant stopped threatening her and became remorseful. Following that incident, the two ran into each other occasionally at Alcoholics Anonymous (AA) meetings, and were cordial.
2. The July 2009 Incident
On the night of July 16, 2009, Sharon was at home. At about 10:20 p.m., she received the first of more than a dozen phone calls on her cell phone, some from defendant's number and some from a blocked number. Sharon did not answer the calls, which phone records showed all came from defendant's cell phone. Defendant did not leave any messages. Sharon then heard what sounded like small rocks hitting her bedroom window. She grew scared and, for that reason, did not look outside. Instead, she locked herself in the bathroom and called 911. That call took place at 11:34 p.m. While Sharon was on the phone with the 911 dispatcher, she heard loud pounding on her front door and her doorbell ringing. She then heard a loud bang, which she thought was the sound of the front door being broken down. Someone broke open the bathroom door shortly thereafter, and Sharon immediately sprayed pepper spray at them. As she ran out of the bathroom, she heard the intruder say, "I just wanted to talk to you." She recognized the voice as defendant's. She ran out of the apartment and down the stairs. Sharon's neighbor, Nia Landskron, was looking out her front door and waved Sharon inside.
Landskron had looked outside because she heard the upstairs doorbell ringing repeatedly and pounding on the upstairs door for about a minute, followed by "a really loud commotion," like furniture being thrown and breaking. Landskron also heard a woman screaming and calling for help.
Police were dispatched to Sharon's apartment at about 11:30 p.m. on July 16, 2009. Defendant was gone by the time they arrived. There was damage to the door frame surrounding Sharon's front door. The bathroom door frame also had sustained damage.
On July 21, 2009, officers went to speak with defendant at his workplace. After a brief conversation, defendant fled. Defendant surrendered to police the following day.
3. Evidence of Uncharged Domestic Violence Against Other Women
Stephanie testified that she and defendant met in 1998 and dated for a few months. After their break up, she obtained a restraining order against defendant. In March 1999, while that restraining order was in place, defendant broke into Stephanie's home by kicking in her front door. Stephanie ran upstairs and defendant followed. She tried shutting the bedroom door, but he pushed it open, damaging the doorframe. Defendant pushed Stephanie down on her bed. During the ensuing struggle, defendant put his hands around Stephanie's neck and punched her in the face, giving her a black eye.
The parties stipulated that, in connection with the incident described above, defendant was convicted of intentionally and knowingly violating a protective order with an act of violence or a credible threat of violence (§ 273.6, subd. (d)).
Mary Beth dated defendant between mid-August and October of 2007. In October 2007, while they were still dating, he came to her home unannounced. When she let him inside, he shoved her down and hit her multiple times, popping her eardrum and giving her a black eye. Defendant physically prevented Mary Beth from leaving the house. Eventually, she was able to calm him down. While the two broke up after that incident, they worked together and continued to interact. In November 2007, while at work, defendant threatened Mary Beth with a four-inch paring knife from the office kitchen. In December 2007, defendant and Mary Beth got in a fight at his home, during which he physically prevented her from leaving and threatened to hit her with an iron.
The parties stipulated that defendant was convicted of misdemeanor exhibiting a deadly weapon (§ 417, subd. (a)(1)); battery against a person with whom the defendant has had a dating relationship (§§ 242, 243, subd. (e)); and false imprisonment (§§ 236, 237) following the December 2007 incident with Mary Beth.
4. The Defense Case
Defendant acknowledged that, on July 16, 2009, he called Sharon numerous times, pounded on her front door, and forced his way into her locked apartment and locked bathroom, as she testified. He explained that he took those actions because he was worried that she was suicidal and felt compelled to help her.
According to defendant, when he and Sharon dated, she confided in him that she had experienced thoughts of suicide. Between July 4 and July 16, 2009, he heard from mutual friends that Sharon was depressed. On the evening of July 16, two men who were living at the same sober living environment as defendant told him that Sharon had spoken at an AA meeting that night and that she seemed depressed because she was losing her job and her apartment.
Those men, Dean and Terrance, testified at trial and confirmed defendant's account of that conversation. Sharon testified that she was laid off in July 2009.
After hearing that, defendant became worried, particularly because he knew others who had died because of alcoholism. Defendant wanted to check on Sharon, but was concerned she would not answer a call from him because of their past dating relationship. Therefore, he called her, but blocked his number. When she did not answer, he had a friend drive him to Sharon's apartment. Defendant saw that the light was on in Sharon's apartment. He tried to get her attention by yelling her name from outside and throwing gravel at her window. When she did not respond, he rang the doorbell multiple times and knocked. She did not answer. Defendant testified that, by this point, he was "panicked." He forced the front door open and went inside, looking for Sharon. When he reached the locked bathroom door, he forced his way in, thinking she could be hurt. Sharon sprayed him with pepper spray and he realized he had made a mistake. He said, "I'm only here to talk." After Sharon ran out, defendant left.
Defendant acknowledged lying to police when they first spoke with him, saying he had not gone to Sharon's home. He also admitted running from police. Defendant testified that Stephanie and Mary Beth testified accurately.
Several members of AA who knew defendant through that organization, including defendant's AA sponsor, testified that defendant was proactive about helping others stay sober, meaning he would reach out if he thought someone was in trouble even if that person had not asked for help.
B. Procedural History
In an information filed on November 17, 2010, the Santa Clara County District Attorney charged defendant for the July 16, 2009 incident with felony false imprisonment (§§ 236, 237); felony vandalism (§ 594, subds. (a) & (b)(1)); and first degree burglary (§§ 459; 460, subd. (a)). The information alleged that defendant had eight prior strikes (§§ 1170.12; 667, subds. (b)-(i)); four prison priors (§ 667.5, subd. (b)); and three prior serious felony convictions (§ 667, subd. (a)).
The case went to a jury trial in August 2013. On September 4, 2013, the jury found defendant guilty of felony false imprisonment and first degree burglary, not guilty of felony vandalism, but guilty of the lesser included offense of misdemeanor vandalism.
On November 5, 2013, following a court trial, the trial court found true all the prior conviction allegations. The court denied defendant's motion for a new trial on June 18, 2015. On October 29, 2015, the trial court denied defendant's motion to dismiss his prior strike convictions under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced defendant to a term of 41 years to life in prison. The trial court imposed a term of 25 years to life on count 3 pursuant to the Three Strikes law; the upper term of three years on count 1, doubled under the Three Strikes law and stayed pursuant to section 654; a concurrent term of 30 days in county jail on count 2; a consecutive term of 15 years for the three prior serious felony convictions (§ 667, subd. (a)); and a consecutive term of one year for one of the prison priors (§ 667.5, subd. (b)). The court struck the enhancements for the other three prison priors (§ 667.5, subd. (b)).
Defendant timely appealed.
II. DISCUSSION
A. Instructional Error Claims
1. Instructions Regarding Uncharged Crimes and Domestic Violence
Defendant contends the trial court failed to properly instruct jurors that uncharged acts could not be used as circumstantial evidence of an element of a charged offense unless those acts were proved beyond a reasonable doubt. That argument has been squarely rejected by our Supreme Court.
a. Legal Principles
"Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion." (People v. Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro), citing Evid. Code, § 1101, subd. (a).) "This ban against admitting character evidence to prove conduct, however, does not prohibit admission of specific acts of misconduct to establish a material fact like intent . . . or [absence of mistake or accident] (§ 1101, subd. (b)), and does not affect the admissibility of evidence regarding the credibility of a witness (id., subd. (c)). [Citation.]" (Villatoro, supra, at p. 1159.) CALCRIM No. 375 guides jurors' consideration of evidence of other offenses introduced under Evidence Code section 1101, subdivision (b) to establish a material fact.
"The Legislature has also created specific exceptions to the rule against admitting character evidence in cases involving . . . domestic violence . . . ." (Villatoro, supra, 54 Cal.4th at p. 1159; § 1109, subd. (a)(1)). Evidence Code section 1109, subdivision (a)(1) provides, in relevant part: "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." CALCRIM No. 852A instructs jurors as to the proper use of evidence of uncharged domestic violence.
b. Factual Background
Sharon, Stephanie, and Mary Beth testified to uncharged incidents of domestic violence committed by defendant. And the parties stipulated that defendant was convicted of certain crimes in connection with some of those incidents.
The trial court instructed jurors regarding the use of evidence of uncharged offenses with CALCRIM No. 375. As given here, that instruction provided that "evidence that the defendant committed other offenses that were not charged in this case" could be considered "only if the People . . . proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses." The instruction defined the preponderance-of-the-evidence standard and instructed jurors that, "[i]f you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] [t]he defendant acted with the intent to commit false imprisonment as required to prove attempted false imprisonment, a lesser included offense of [c]ount 1; acted maliciously as require[d] for felony or misdemeanor vandalism under [c]ount 2; or acted with the intent to commit a felony as required for burglary as charged in [c]ount 3; or [¶] [t]he defendant's alleged actions were not the result of a mistake or accident. . . . [¶] Do not consider this evidence for any other purpose except for the limited purpose of his propensity to commit domestic violence offenses as described in the next instruction or for credibility as described in the earlier instruction. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged crimes. The People must still prove each charge beyond a reasonable doubt."
The trial court instructed jurors as to the use of evidence of uncharged domestic violence with CALCRIM No. 852A. As given in this case, that instruction defined "domestic violence" and stated that jurors could consider "evidence that the defendant committed domestic violence that was not charged in this case" "only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence." After defining the preponderance-of-the-evidence standard, the instruction further provided: "If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit the crimes charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged crimes. The People must still prove each charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose except for the limited purpose of intent and absence of mistake as described in the previous instruction and for credibility as described in the earlier instruction."
Jurors also were instructed with CALCRIM No. 220 regarding the presumption of innocence and the requirement that the People prove the defendant guilty beyond a reasonable doubt. And the court instructed jurors with CALCRIM No. 223, defining direct and circumstantial evidence, and with CALCRIM No. 224, which sets forth the circumstances under which circumstantial evidence may be relied upon to conclude that a fact necessary to find the defendant guilty has been proved. Specifically, as given here, CALCRIM No. 224 stated: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved . . . each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
Defendant did not object to any of the foregoing instructions.
c. Forfeiture
The Attorney General contends defendant forfeited his claim of instructional error by failing to object below. We reach the merits of defendant's claim despite the lack of objection because defendant contends the error affected his "substantial rights," such that the instruction is reviewable "even though no objection was made . . . in the lower court . . . ." (§ 1259.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
d. Standard of Review
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) The pertinent inquiry is whether the instructions as a whole fully and fairly set forth the applicable law. (Ibid.)
e. The Instructions Correctly Stated the Law
Defendant says that "[t]he instructions failed adequately to inform the jury that in order to use evidence of uncharged acts as circumstantial evidence of any element of any charged offense, it was necessary to find those acts to have been proved beyond a reasonable doubt." This is precisely the argument the Supreme Court considered and rejected in People v. Virgil (2011) 51 Cal.4th 1210 (Virgil). There, the jury was instructed with CALJIC Nos. 2.50, 2.50.1, and 2.50.2, which are analogous to CALCRIM No. 375, and with CALJIC No. 2.01, which is analogous to CALCRIM No. 224. (Virgil, supra, at pp. 1259, 1262.) The defendant argued that the jury "instructions were flawed because they 'failed to convey the jury's need to find [the defendant's] guilt for the uncharged crimes beyond a reasonable doubt before those crimes could be used as an inference in establishing his identity as the perpetrator of the charged offenses . . . .' " (Id. at p. 1259.) The defendant in Virgil further asserted there was a " 'conflict between the circumstantial evidence instruction [CALJIC No. 2.01],' which requires proof beyond a reasonable doubt of each essential fact in the chain of circumstances necessary to establish guilt, and CALJIC No. 2.50, which permits consideration of uncharged crimes if they are proven by only a preponderance of the evidence." (Ibid.) The Supreme Court disagreed, reasoning that "these different standards of proof are reconciled by the different purposes for which the evidence is used. When evidence of uncharged misconduct is admitted for the purpose of establishing identity or intent, we have explained that the crimes are mere 'evidentiary facts.' [Citation.] The jury cannot consider them at all unless they find them proven by a preponderance of the evidence. 'If the jury finds by a preponderance of the evidence that defendant committed the other crimes, the evidence is clearly relevant and may therefore be considered. [Citations.]' [Citation.] If the jury finds the facts sufficiently proven for consideration, it must still decide whether the facts are sufficient, taken with all the other evidence, to prove the defendant's guilt beyond a reasonable doubt. [Citations.]" (Id. at pp. 1259-1260.) The Virgil court found no instructional error.
Numerous other Supreme Court cases likewise have rejected claims of instructional error where the trial court instructed jurors that they could consider evidence of uncharged crimes that are proved by a preponderance of the evidence and instructed as to the "presumption of innocence, reasonable doubt, [the] prosecution's burden of proof . . . [, and the fact that] each fact essential to complete a set of circumstances necessary to establish guilt must be proved beyond a reasonable doubt . . . ." (People v. Rogers (2013) 57 Cal.4th 296, 338-339 (Rogers); People v. Foster (2010) 50 Cal.4th 1301, 1346 (Foster) [finding the instructions properly stated that law where the trial court instructed with CALJIC Nos. 2.50, 2.50.1, and 2.50.2, which are analogous to CALCRIM No. 375; CALJIC No. 2.90, which is analogous to CALCRIM No. 220; and CALJIC No. 2.01, which is analogous to CALCRIM No. 224]; People v. Sanchez (2016) 63 Cal.4th 411, 460-461 [finding no instructional error where the trial court instructed "the jury it could consider . . . evidence [the defendant committed an uncharged crime] only if it found by a preponderance of the evidence that [the defendant] committed the crime" and "gave the jury the full panoply of standard instructions regarding the prosecution's burden of proof and the reasonable doubt standard"].)
Here, jurors were instructed with CALCRIM Nos. 375 and 852A that they could consider evidence of uncharged offenses and domestic violence if proved by a preponderance of the evidence. And they were given CALCRIM No. 220 regarding the presumption of innocence, reasonable doubt, and the prosecution's burden of proof, as well as CALCRIM No. 224, which explains the People's burden to prove each fact essential to establishing guilt (including those facts established by circumstantial evidence) beyond a reasonable doubt. Virgil, Sanchez, Rogers, and Foster teach that, together, these instructions correctly stated the law.
Defendant attempts to distinguish those cases, which addressed CALJIC instructions, based on a single sentence in CALCRIM No. 220 that does not appear in the CALJIC analogue, CALJIC No. 2.90. Specifically, CALCRIM No. 220 states: "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise." In defendant's view, jurors would have understood that portion of CALCRIM No. 220 to mean that only the preponderance of the evidence standard articulated in CALCRIM Nos. 375 and 852A applied to evidence of uncharged offenses and uncharged domestic violence, notwithstanding CALCRIM No. 224's requirement that each fact essential to a finding of guilt be proved beyond a reasonable doubt.
We are not persuaded. While CALCRIM Nos. 375 and 852A informed jurors they could consider evidence of uncharged offenses and domestic violence if proved by a preponderance of the evidence, those instructions also cautioned that any conclusion that defendant committed any uncharged act is "only one factor to consider along with all the other evidence" and "is not sufficient by itself to prove that the defendant is guilty of the charged crimes." CALCRIM Nos. 375 and 852A also reiterated the People's burden to "prove each charge beyond a reasonable doubt." Moreover, CALCRIM No. 224 informed jurors of the People's burden to prove beyond a reasonable doubt "each fact essential to" the conclusion "that a fact necessary to find the defendant guilty has been proved." As discussed above, our Supreme Court has held that, in conjunction, these instructions properly state the law. The portion of CALCRIM No. 220 on which defendant relies merely emphasizes the importance of the beyond-a-reasonable-doubt standard and, accordingly, does not alter the analysis.
2. The Trial Court did not Err by Instructing That Felony False Imprisonment is a General Intent Crime
Defendant maintains the trial court erred by instructing the jury that felony false imprisonment is a general intent crime. He contends that specific intent to confine is an element of the offense.
a. Factual Background
The trial court instructed jurors regarding the elements of felony false imprisonment with CALCRIM No. 1240 as follows: "The defendant is charged in Count 1 with false imprisonment by violence or menace in violation of Penal Code section 237(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intentionally restrained, or confined, or detained someone or caused that person to be restrained, or confined, or restrained by violence or menace; and [¶] 2. The defendant made the other person stay or go somewhere against that person's will. [¶] Violence means using physical force that is greater than the force reasonably necessary to restrain someone. [¶] Menace means a verbal or physical threat of harm, including use of a deadly weapon. The threat of harm may be express or implied. [¶] An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act. [¶] False imprisonment does not require that the person restrained be confined in jail or prison."
The court also instructed jurors with CALCRIM No. 250: "The crimes charged in this case require proof of the union, or joint operation, of act and wrongful intent. [¶] The following crimes require a general criminal intent: felony false imprisonment, as charged in Count 1, and misdemeanor false imprisonment, a lesser included offense of felony false imprisonment. For you to find a person guilty of these crimes, a person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intended to break the law. The act required is simply explained in the instruction for each crime."
Defendant did not object to either instruction. Accordingly, the Attorney General says the claim of error has been forfeited. Without deciding the issue of forfeiture, we will address defendant's argument that the instruction was erroneous in view of his contention that his substantial rights were affected by the instruction. (§ 1259.)
b. Legal Principles
"False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) "In this context, ' "[p]ersonal liberty" ' is violated when 'the victim is "compelled to remain where he does not wish to remain, or to go where he does not wish to go." ' " (People v. Reed (2000) 78 Cal.App.4th 274, 280 (Reed).) The offense may be committed by acts or by words, or both. (Ibid.) It is felonious when it is "effected by violence, menace, fraud, or deceit . . . ." (§ 237.) "Violence means using physical force that is greater than the force reasonably necessary to restrain someone." (CALCRIM No. 1240.) "Menace means a verbal or physical threat of harm . . . , [which] may be express or implied." (Ibid.)
The question of whether a trial court correctly gave a particular jury instruction is a "predominantly legal" question that is reviewed under the independent or de novo standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
c. The Instructions Correctly Stated the Law
This and other courts of appeal have held that false imprisonment is a general intent crime. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1397 (Olivencia); People v. Swanson (1983) 142 Cal.App.3d 104, 109 (Swanson); People v. Fernandez (1994) 26 Cal.App.4th 710, 716 (Fernandez).) As this court explained in Olivencia, a general intent crime is one that is defined only by describing " 'a particular act, without reference to intent to do a further act or achieve a future consequence . . . .' " (Olivencia, supra, at 1397.) Because " 'section 236 defines false imprisonment as the "unlawful violation of the personal liberty of another" . . . without any reference to an intent to do a further act or achieve a further consequence. . . , it is a general intent crime.' " (Id. at p. 1398. "No specific state of mind is required." (Id. at p. 1399.)
Defendant's reliance on People v. Agnew (1940) 16 Cal.2d 655 (Agnew) for the proposition that intent to confine is an element of the crime is misplaced. For the reasons this court described in Olivencia, Agnew does not "provide persuasive support for the argument that false imprisonment is a specific intent crime." (Olivencia, supra, 204 Cal.App.3d at p. 1399.) Specifically, "[t]he question in Agnew was whether the defendant could be found guilty of false imprisonment where he caused others (police officers) to restrain the victim. [Citation.] In this context, the Supreme Court quoted American Jurisprudence for the proposition that ' "[i]f an act is done with the intention of causing the confinement of the person actually confined or of another and such act is a substantial factor in bringing about a confinement, it is immaterial whether the act directly or indirectly causes the confinement." ' " (Ibid., quoting Agnew, supra, 16 at p. 660.) "Given Agnew's factual context, this statement means at most that an intent to confine is required where the defendant indirectly causes the confinement. It has no application, where, as in this case, the defendant[ has] directly caused the confinement of the victim." (Olivencia, supra, at p. 1399; see Fernandez, supra, 26 Cal.App.4th at p. 717 [Agnew is not "persuasive authority" that false imprisonment is a specific intent crime].)
Nor do the other criminal cases on which defendant relies convince us that the court erred when it instructed jurors that false imprisonment is a general intent crime. "The precise nature of the requisite criminal intent—whether general or specific—was not an issue before the court" (Olivencia, supra, 204 Cal.App.3d at p. 1399) in People v. Haney (1977) 75 Cal.App.3d 308, which also misread Agnew "when it flatly stated that the acts must be done with the intent of causing the confinement." (Olivencia, supra, at p. 1399; see Fernandez, supra, 26 Cal.App.4th at pp. 717-718.) The same critique applies to People v. Sipult (1965) 234 Cal.App.2d 862, 867. And People v. Islas (2012) 210 Cal.App.4th 116, 128, does not address whether false imprisonment is a general or specific intent crime except to note that the trial court "indicated false imprisonment is a general intent crime" and that the defendant did not challenge that instruction. Finally, in People v. Vines (2011) 51 Cal.4th 830, 865-866, our Supreme Court concluded that certain evidence was properly admitted in part because it "was relevant to the false imprisonment charge because it showed defendant's knowledge that his actions had violated the victims' liberty," noting that "the prosecution was required to prove . . . the intent elements of the charged crimes." (Italics added.) But knowledge is not synonymous with specific intent. (People v. Calban (1976) 65 Cal.App.3d 578, 584 ["A requirement of knowledge is not a requirement that the act be done with any specific intent."]; People v. Garcia(1967) 250 Cal.App.2d 15, 21 ["Knowledge, of course, is not identical with intent"].) Indeed, "[a] general intent crime may also involve a specific mental state, such as knowledge." (People v. Cleaves (1991) 229 Cal.App.3d 367, 380 ["second degree murder premised on implied malice involves a general intent to do the act and the mental state of knowledge and conscious disregard for the risk to human life"].)
Overruled on another ground in People v. Hardy (2018) 5 Cal. 5th 56, 62 and superseded by statute on another point as recognized in People v. Robertson (2012) 208 Cal.App.4th 965, 981.
Defendant's reliance on civil cases describing the tort of false imprisonment as requiring a showing of intent to confine is equally misplaced. " 'The elements of a tortious claim of false imprisonment are: (1) the nonconsensual, intentional confinement of a person[;] (2) without lawful privilege[;] and (3) for an appreciable period of time, however brief.' " (Lyons v. Fire Ins. Exchange (2008) 161 Cal.App.4th 880, 888.) But the "intentional confinement" element refers to "an intentional act resulting in confinement," not an intent to confine. (Ibid.) As such, the tort of false imprisonment "can arise through negligence" where "the conduct resulting in confinement is intended, but the ultimate result is not because the actor is misinformed as to the objective facts." (Ibid.) In sum, false imprisonment is a general intent crime and the trial court did not err in so instructing the jury.
d. Due Process Does Not Require the Implication of a Specific Intent Element
Defendant maintains the due process clauses of the state and federal constitutions require that specific intent to restrain or confine be included as an element of the crime of false imprisonment. For that argument, he relies on case law addressing the general principle that "every true crime (as distinguished from 'regulatory' or 'public welfare' offenses) ordinarily requires a general criminal intent or 'mens rea.' " (1 Witkin & Epstein, Cal. Crim. Law (4th Ed. 2012) Elements, § 1; People v. Simon (1995) 9 Cal.4th 493, 519 [" '[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.' "]; Morissette v. United States (1952) 342 U.S. 246, 251-252 ["Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil"].) That general principle is set forth in section 20, which provides that "[i]n every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence."
The implication of defendant's argument is that specific intent is the only mental state that is sufficiently culpable to justify the imposition of criminal sanctions. But, of course, that is not the case. General criminal intent to commit some proscribed act is the mens rea for numerous crimes, including false imprisonment. That conclusion does not run afoul of defendant's due process rights.
B. Sufficiency of the Evidence
Defendant contends his false imprisonment conviction is unsupported by sufficient evidence. We disagree.
1. Standard of Review
"When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which 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. Cortes (1999) 71 Cal.App.4th 62, 71.) "In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (Ibid.)
2. Substantial Evidence Supports Defendant's False Imprisonment Conviction
Defendant contends there was insufficient evidence that he " ' "compelled [Sharon] to remain where [she did] not wish to remain, or to go where [she did] not wish to go." ' " (Reed, supra, 78 Cal.App.4th at p. 280.) He also argues there was insufficient evidence that he committed "an act, the natural, probable, and foreseeable consequence of which [was] the nonconsensual confinement of another person." (Olivencia, supra, 204 Cal.App.3d at pp. 1399-1400.) Neither contention has merit.
As to the victim's wishes, defendant is correct that there was no direct evidence that Sharon "at any time remained where she did not wish to remain or went where she did not wish to go." Sharon did not testify that she would have preferred not to hide in her bathroom or not to flee her home late at night and hide in her neighbor's apartment until police arrived. But jurors reasonably could have inferred from the evidence that those were her wishes. Indeed, the only reasonable inference to be drawn from the evidence was that Sharon felt compelled by defendant's threatening behavior to hide and, later, to flee. Accordingly, there was substantial evidence that defendant's conduct compelled Sharon to remain where she did not wish to remain, and to go where she did not wish to go.
Defendant's second argument is that none of his actions were likely to result in Sharon's nonconsensual confinement or otherwise violate her personal liberty. He notes that "at no time did [he] grab [Sharon], . . . tell her to stay, . . . tell her to go, . . . [or] block her way from leaving." As discussed above, felony false imprisonment may be effectuated by menace, meaning " 'a threat of harm express or implied by words or act.' " (Islas, supra, 210 Cal.App.4th at p. 123, italics added.) Here, there was substantial evidence that defendant falsely imprisoned Sharon by menace. The jury reasonably could have concluded that, particularly in the context of defendant's prior violence towards Sharon, his acts—repeatedly calling Sharon, throwing rocks at her window, pounding on her door, ringing her doorbell, and breaking down both the locked front door and the locked bathroom door—impliedly threatened harm and that Sharon hid and, later, fled to avoid that threatened harm.
C. The Prior Serious Felony Conviction Enhancements
As noted above, the trial court found true allegations that defendant had suffered three prior serious felony convictions and, accordingly, imposed a consecutive 15-year term under section 667, subdivision (a)(1), as it was statutorily required to do at the time of defendant's sentencing. (§ 667, subd. (a)(1) ["any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively"]; § 1385, subd. (b) ["This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667"].) "On September 30, 2018, the Governor signed Senate Bill 1393 which, effective January 1, 2019, amends sections 667(a) and 1385(b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)" (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).)
Defendant contends remand is required to permit the trial court to exercise its discretion to strike one or more of his prior serious felony convictions for sentencing purposes. The Attorney General takes no position on the issue, having filed no supplemental brief after transfer from the Supreme Court.
Under In re Estrada (1965) 63 Cal.2d 740 (Estrada), "[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) "The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses." (People v. Nasalga (1996) 12 Cal.4th 784, 792.) Because nothing in Senate Bill 1393 suggests any legislative intent that the amendments apply prospectively only, "it is appropriate to infer, as a matter of statutory construction, that the Legislature intended Senate Bill 1393 to apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final when Senate Bill 1393 becomes effective on January 1, 2019." (Garcia, supra, 28 Cal.App.5th at p. 973.)
Defendant's case will not be final on January 1, 2019. " '[A] judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]' " (People v. Vieira (2005) 35 Cal.4th 264, 306.) "A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review." (U.S.C.S. Supreme Ct. rule 13.1.) Because January 1, 2019 is less than 90 days away, defendant's appeal will not be final when Senate Bill 1393 becomes effective on that date.
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, [our Supreme Court has] held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) The record before us does not clearly indicate that the trial court would have declined to strike one or more of defendant's prior serious felony convictions for sentencing purposes if it had the discretion to do so. (Cf. People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [declining to remand for resentencing because "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence . . . by imposing two additional discretionary one-year enhancements" and describing the defendant as " 'the kind of individual the law was intended to keep off the street as long as possible' "].) Accordingly, we agree with defendant that remand is appropriate in this case to allow the trial court to exercise its discretion as to whether to strike one or more of his prior serious felony convictions for sentencing purposes.
III. DISPOSITION
The judgment is reversed and the matter is remanded to the superior court with directions to resentence defendant after January 1, 2019, pursuant to sections 667 subdivision (a) and 1385 subdivision (b), as amended by Senate Bill 1393.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.