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People v. Borowski

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Nov 26, 2019
G056253 (Cal. Ct. App. Nov. 26, 2019)

Opinion

G056253

11-26-2019

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEONARD BOROWSKI, Defendant and Appellant.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF1028) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.

Appellant was convicted of burglary, false imprisonment and other crimes for breaking into his estranged wife's home and confronting her with a firearm. On appeal, he contends the jury instructions on burglary were fatally flawed, and his conviction for false imprisonment must be reversed under the lesser included offense doctrine. Finding these contentions unmeritorious, we affirm the judgment.

FACTS

After 26 years of marriage, appellant and his wife Kristin separated at the end of 2014. As part of their separation agreement, appellant moved to the family's vacation home in Lake Havasu, Arizona. But he was not excited about the prospect of divorce. He frequently tried to contact Kristin in the hope of reconciling with her. She did not return his calls or texts.

On January 20, 2015, just three weeks after their separation, appellant bought a handgun in Arizona and drove to Kristin's Orange County residence. He broke a window to gain access to the home, and once inside he filled the kitchen sink with water, disabled the cordless phone and cut the land line. Then he waited for Kristin to come home from work.

When Kristin entered the house, she was talking to her friend Anne on her phone. She did not notice appellant until he grabbed her from behind in the kitchen, causing her phone to fall into the water-filled sink. Seeing appellant had a gun, she struggled to get free of his grasp. Although appellant did let go of her eventually, he did not relent. Instead, he pointed his gun at her and said, "I'm sorry, but tonight you and I are both going to die." He then pulled the trigger, but the weapon did not fire.

Appellant manipulated the gun's slide and removed and reattached the magazine several times. As he was fiddling with the weapon, Kristin snatched the magazine and ran toward the rear sliding glass door of the house. She opened the door and had a foot in the backyard when appellant grabbed her and pulled her back into the kitchen. He then seized the magazine from her and reattached it to his gun.

At that point, Kristin ran down the hallway toward the front of the house. Appellant again gave chase, tackling her by the front door. As they were struggling over the gun, Anne and her husband Victor arrived at the house. While Victor waited in the driveway, Anne opened the door between the garage and the house and called out to Kristin to see if she was okay. Kristin yelled that appellant had a gun and to call 911. Appellant caught up to Kristin in the garage and restrained her by putting his arm around her neck. While waving the gun around, he warned Anne not to call 911.

Victor asked appellant what he was doing, and he replied, "Fuck you, you mother fucker. Because of you my marriage is destroyed." Appellant also threatened to kill Victor. While still holding on to Kristin, he aimed his gun at Victor and pulled the trigger several times, but, as before, nothing happened. Appellant then let go of Kristin and began examining the gun.

Victor and Kristin were coworkers; appellant felt Kristin spent too much time at her job with Victor and not enough time with him. --------

Kristin took that opportunity to flee into the street, but she still couldn't get away; appellant ran after her, tackled her, and dragged her back into the house. Once inside, they continued to fight and struggle over the gun. Eventually, they both ended up on the floor, exhausted, and the situation grew calmer.

Still holding the gun, appellant started crying and told Kristin he did not mean to cause her any harm. Then he called several friends and family members, who urged him to surrender. Following their advice, he handed the gun to Kristin and walked outside to a cadre of police officers who took him into custody. As it turned out, the gun was not loaded, and no bullets were found at the scene.

Appellant was charged with two counts each of attempted murder and making a criminal threat, as well as one count each of kidnapping, burglary, dissuading a witness and felony false imprisonment. At trial, he testified the only reason he broke into Kristin's home is because he wanted to talk to her. He thought that by bringing the gun along, he could scare Kristin and make her listen to him. While admitting he brandished the weapon throughout the ordeal, he claimed he never threatened to shoot anyone and knew the gun was not loaded.

The jury acquitted appellant of the attempted murder charges and one of the criminal threat charges. However, it convicted him of the remaining charges and found he personally used a gun during the commission of his crimes. The trial court sentenced him to nine years in prison for his actions.

DISCUSSION

Instructional Issue

Appellant contends the trial court's instructions on burglary were flawed because they permitted the jury to convict him of that offense for entering Kristin's home with the intent to commit a misdemeanor, as opposed to a felony. While the instructions were flawed in that respect, it is not reasonably likely the jury predicated its burglary conviction on appellant's intent to commit a misdemeanor inside Kristin's home. Therefore, the instructional error does not warrant a reversal.

Appellant was charged in count 3 with committing burglary in violation of Penal Code section 459. To convict appellant of that offense, the jury had to find he entered Kristin's house with the intent to commit larceny "or any felony." (Ibid.) Larceny was neither alleged nor suggested in this case, so the burglary charge turned on whether appellant harbored felonious intent at the moment he broke into Kristin's house.

With respect to that issue, the trial court instructed the jury the People had to prove appellant entered Kristin's house with the intent to commit the crimes of attempted murder, kidnapping, making a criminal threat, or false imprisonment, as those crimes were defined by the court. There is no dispute regarding the first three offenses, which were all alleged to be straight felonies. The problem stems from the fourth offense, false imprisonment. While appellant was charged with felony false imprisonment, the trial court also instructed the jury on misdemeanor false imprisonment as a lesser included offense of that charge. However, the court did not differentiate between those two crimes in instructing the jury on burglary. Rather, it simply referred to "false imprisonment" generally in including it among the possible predicate offenses. Thus, it is conceivable the jury improperly based appellant's burglary conviction on a misdemeanor.

The Attorney General contends appellant forfeited his right to raise this issue on appeal because he did not request a clarifying instruction in the trial court. However, as part of its responsibility to instruct the jury on the general principles of law applicable to the case, the trial court had a sua sponte duty to correctly explain the intent requirement for burglary and ensure appellant was not convicted of that offense for intending to commit a misdemeanor at the time he entered Kristin's house. (People v. Hughes (2002) 27 Cal.4th 287, 348-350; People v. Failla (1966) 64 Cal.2d 560, 564.) Therefore, we conclude the issue has not been forfeited.

Nevertheless, jury instructions should be interpreted "'to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.) Unless there is a reasonable likelihood the jury misunderstood the subject instructions in a manner that violated the defendant's rights, reversal is not required. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1246, abrogated on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Rogers (2006) 39 Cal.4th 826, 873.) In making this determination, we must consider the record as a whole, including the specific instruction being challenged, the evidence adduced at trial, and the arguments of counsel. (People v. Cain (1995) 10 Cal.4th 1, 36-37; People v. McPeters (1992) 2 Cal.4th 1148, 1191, questioned on another point in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)

As noted, the trial court instructed the jury on two false imprisonment offenses in this case. It defined misdemeanor false imprisonment as restraining, detaining or confining a person against her will, and it defined felony false imprisonment as doing the same by "violence or menace," including through the use of a deadly weapon. (See CALCRIM Nos. 1242 & 1240.) Although the burglary instructions did not differentiate between these two variations of false imprisonment, during closing arguments the prosecutor emphasized the word felony in discussing the predicate offenses for burglary, and defense counsel specifically honed in on the crime of felony false imprisonment. He told the jurors that in deciding whether appellant was guilty of burglary, they would have to determine whether appellant intended to "commit the felony of false imprisonment" when he entered Kristin's home. (Italics added.) These arguments diminished the likelihood the jury predicated its burglary finding on misdemeanor false imprisonment.

Furthermore, given the option on the false imprisonment charge, the jury convicted appellant of the charged offense of felony false imprisonment, as opposed to the lesser included offense of misdemeanor false imprisonment. Standing alone, this does not prove the jury found appellant intended to commit felony false imprisonment at the time he entered Kristin's home. However, the evidence amply supported such a finding. Indeed, appellant admitted the reason he had a gun when he entered the home is because he wanted to scare Kristin with the weapon and get her to talk to him. The fact he was holding gun when he initially confronted Kristin in her home is strong evidence he intended all along to utilize the weapon as a means of controlling and confining her.

Given the nature of the evidence, the jury's verdict, and the parties' closing arguments, it is not reasonably likely the jury convicted appellant of burglary based on the intent to commit misdemeanor false imprisonment at the time he entered Kristin's home. Therefore, the trial court's failure to eliminate that offense as a basis for the burglary charge is not cause for reversal. We do not believe the court's instructions violated appellant's right to a fair trial or due process of law.

Lesser Included Offense Issue

Appellant also argues his conviction for false imprisonment must be reversed because that offense is a lesser included offense of kidnapping, of which he was also convicted. Again, we disagree.

As appellant correctly notes, a defendant generally cannot be convicted of both a greater and lesser included offense (People v. Eid (2014) 59 Cal.4th 650, 656), and false imprisonment is a lesser included offense of kidnapping (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820). However, "[t]he proscription against multiple conviction for both a greater and lesser included offense applies only where both offenses are based upon a single act." (People v. Cortez (1981) 115 Cal.App.3d 395, 410.) Thus, appellant can only prevail on his claim if his convictions for false imprisonment and kidnapping were premised on the same act.

In asserting they were, appellant draws our attention to the prosecutor's closing argument. He points out that in speaking to the kidnapping charge, the prosecutor argued he kidnapped Kristin when he tackled her in the street and dragged her back into the house toward the end of their ordeal. And in speaking to the false imprisonment charge, the prosecutor stated that offense was based on "everything else that happened inside the house." Appellant takes this to mean the false imprisonment charge was based on everything that happened inside the house after he dragged Kristin back in from the street. And because the kidnapping offense was still ongoing at that time, the false imprisonment was subsumed within the kidnapping.

The flaw in this argument is that the prosecutor did not limit the false imprisonment charge to the acts that occurred inside the house after the kidnapping took place. To the contrary, the prosecutor argued the false imprisonment also encompassed appellant's actions in pulling Kristin back into the kitchen the first time she tried to escape from him by running out into the backyard. In addition, the prosecutor referenced the fact appellant repeatedly restrained Kristin as they were fighting "all over in different areas of the house." She said, "This is the conduct [the false imprisonment] count covers, "everything inside the home."

Viewing the prosecutor's remarks in their totality, it is clear she did not restrict the jury's consideration of the false imprisonment charge to the events that occurred inside the house after appellant kidnapped Kristin by dragging her inside the house from the street. It is also readily apparent there was an abundance of evidence, apart from the facts underlying the kidnapping offense, to support appellant's conviction for false imprisonment. That being the case, the lesser included offense doctrine does not preclude appellant's conviction for that offense, and there is no reason to reverse it.

DISPOSITION

The judgment is affirmed.

BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.


Summaries of

People v. Borowski

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Nov 26, 2019
G056253 (Cal. Ct. App. Nov. 26, 2019)
Case details for

People v. Borowski

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEONARD BOROWSKI…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Nov 26, 2019

Citations

G056253 (Cal. Ct. App. Nov. 26, 2019)