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People v. Galloway

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Oct 16, 2017
No. C083691 (Cal. Ct. App. Oct. 16, 2017)

Opinion

C083691

10-16-2017

THE PEOPLE, Plaintiff and Respondent, v. RENARD GALLOWAY, JR., Defendant and Appellant.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F02195)

A jury found defendant Renard Galloway, Jr., guilty of misdemeanor assault (Pen. Code, § 240) and felony false imprisonment (§ 236). In a bifurcated proceeding, defendant admitted two prior convictions within the meaning of the three strikes law. (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2).)

Undesignated statutory references are to the Penal Code.

On appeal, defendant contends his false imprisonment conviction is not supported by substantial evidence. He alternatively contends if the evidence is sufficient to support his false imprisonment conviction, the trial court erred in failing to stay the simple assault conviction under section 654. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We only summarize the facts relevant to the resolution of the issues raised on appeal.

In early January 2015, D. Doe travelled from Georgia to visit her sister, S., in Modesto. While in Modesto, several of S.'s friends and a man named Black attempted to persuade D. to engage in prostitution. Black, a pimp who lived in Sacramento, told her she could make "fast and easy money" if she worked for him. Although D. wanted to help her sister financially, she refused to engage in prostitution or go to Sacramento with Black. However, in early January 2015, she went on a sightseeing trip to Sacramento with several of S.'s friends who were escorts. During the trip, Black, again, tried to convince D. to engage in prostitution, while S.'s friends attempted to "influence" her to provide escort services. According to D., neither Black nor S.'s friends were able to persuade her to provide sexual services for money.

D. referred to this person as Black or Low. We will refer to this person as Black.

At approximately 7:30 p.m. on January 23, 2015, D. was standing at a bus stop in South Sacramento when defendant pulled up in his car and told her in a very harsh and scary tone, "You better do what I say and you better get into this car." D. said defendant sounded mean and described his tone as a "do it or else type of [tone]." Because D. was "terrified" and "scared for [her] life," she got into defendant's car.

As defendant drove off, he repeatedly told D., "You better do what I say," using the same "do [it] or else type of [tone]." Although unsure, D. thought she saw a gun in or near the center console, which made her feel "scared for [her] life."

Around 15 to 20 minutes later, defendant parked in the back of a dark, isolated warehouse yard. Defendant told D. to get into the backseat using a harsh and serious tone. After she did so, defendant told her to take off her clothes. Defendant, who was heavyset and much bigger than D., got into the backseat and said, "You're going to do what I say, and you're going to give me oral." D. described defendant's tone as conveying the message that she must orally copulate him "or else." Crying and scared, D. orally copulated defendant for about 15 minutes. At some point, defendant touched and sucked on D.'s breasts. D. stopped orally copulating defendant when he told her in a mean "do [it] or else type of [tone]" that he was going to "hit it from the back," which D. understood to mean the sexual position commonly referred to as "doggie style."

When asked why she did not run away, D. said she was too afraid. She explained that she did not know where she was and there was nobody around to help her.

D. estimated defendant weighed about 300 pounds. When defendant testified, he said he is six feet two inches tall and weighed around 345 pounds in January 2015.

Prior to having sexual intercourse with D., defendant asked her for a condom. After D. provided him with one, defendant put it on and had sexual intercourse with her. When defendant stopped, he threw the condom on the ground and told D. to get out of his car. D. complied and defendant drove off without her.

D., who was only wearing socks and shoes, walked to a nearby street and tried to flag down passing motorists for help, but nobody stopped except for a teenage boy on a skateboard who gave her his jacket. D. continued walking until she saw two men in a garage. After she was given a phone, she called the police.

When interviewed by the police, D. admitted she came to Sacramento with prostitution in mind but was adamant she never engaged in it. She explained that Black had scared her into coming to Sacramento to make some quick money in prostitution. However, because she thought prostitution was too scary, she decided not to do it.

Based on DNA evidence, the police learned defendant's identity. Thereafter, D. identified him from a photographic lineup. She also identified him at trial.

Defendant testified on his own behalf. He claimed he saw D. waiving at cars in an area known for prostitution. He said D. voluntarily got into his car after she told him she was "working." Thereafter, they agreed to a full service date for $80, meaning oral and vaginal sex. However, when they arrived at the warehouse yard, defendant told her he only had $40. Although D. got a little agitated and annoyed, she eventually agreed to that amount. She told defendant she did not like that he was "playing with her money," and that her pimp "wouldn't like the money being shortchanged or shorthanded."

After they engaged in consensual oral and vaginal sex, D. said, "[W]here the fuck is my money?" According to defendant, D. was mad and aggressive. She said her pimp was on his way and would find him. At that point, defendant drove off without her. As he did so, D. was yelling and swearing at him.

Defendant denied he had a gun and claimed he did not force D. to do anything. He said she never cried, did not ask him to stop during the sexual contact, and did not ask to be let go. According to defendant, D. consented to the sexual acts they engaged in.

In January 2016, defendant was charged with committing multiple crimes against three victims. As relevant here, defendant was charged with committing the following crimes against D.: forcible rape, forcible oral copulation, and kidnapping to commit rape. As to the rape and oral copulation charges, it was also alleged that D. was kidnapped by defendant within the meaning of section 667.61, subdivisions (d)(2) and (e)(1), and that defendant committed rape and oral copulation charges against more than one victim. It was also alleged that defendant had two prior convictions for robbery that qualified as serious felonies within the meaning of the three strikes law.

After a jury trial, defendant was found not guilty of the greater and lesser included offenses as to forcible oral copulation. Defendant was found not guilty of forcible rape, but guilty of the lesser included offense of simple assault. Defendant was found not guilty of kidnapping to commit rape but guilty of the lesser included offense of false imprisonment. The jury did not find defendant guilty of any of the remaining counts. In a bifurcated proceeding, defendant admitted the prior conviction allegations. The trial court sentenced him to an aggregate prison term of six years on the false imprisonment conviction, consisting of the upper term of three years, doubled under the three strikes law, plus a consecutive 180 days on the simple assault conviction.

Defense counsel filed a timely notice of appeal. Thereafter, defendant filed a second timely notice of appeal.

DISCUSSION

I

Substantial Evidence Of False Imprisonment

Defendant contends his false imprisonment conviction is not supported by substantial evidence because there is no evidence he effected the false imprisonment by violence or menace. He argues the conviction must be vacated or reduced to misdemeanor false imprisonment. We disagree.

When determining whether the evidence was sufficient to sustain a criminal conviction, " ' "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (Ibid.) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) We must accept logical inferences the jury might have drawn from the evidence even if we would have concluded otherwise. (People v. Solomon (2010) 49 Cal.4th 792, 811-812.)

"False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) "[T]he 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. Bamba (1997) 58 Cal.App.4th 1113, 1123.)

False imprisonment is a felony if "effected by violence, menace, fraud, or deceit . . . ." (§ 237, subd. (a).) "Violence" means the exercise of physical force greater than the force reasonably necessary to effect the restraint. (People v. Babich (1993) 14 Cal.App.4th 801, 806.) "Menace" is an express or implied threat of harm by word or act. (People v. Wardell (2008) 162 Cal.App.4th 1484, 1490.) "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) 157 Cal.App.4th 1509, 1513.) A jury may properly consider the victim's fear when determining whether the defendant impliedly or expressly threatened harm. (People v. Islas (2012) 210 Cal.App.4th 116, 127.)

Viewing the evidence in the light most favorable to the judgment, we conclude substantial evidence supports defendant's false imprisonment conviction. There is sufficient evidence defendant used violence and menace to effect the false imprisonment. The evidence in the record shows defendant was much larger than D., he ordered her to get into his car in a very harsh and scary tone, and she complied because she was terrified and scared for her life. The evidence also shows that defendant repeatedly told D. she must comply with his demands in a "do [it] or else type of [tone]," and then drove her to the back of a dark, isolated warehouse yard against her will. While at the warehouse yard, there is evidence that defendant ordered D. to get into the back of his car using a harsh and serious tone, and then ordered her to perform oral sex on him using a "do [it] or else" type of tone. There is also evidence that D. was scared and crying while performing oral sex, defendant touched and sucked on her breasts, and defendant engaged in vaginal intercourse with D. after telling her he was going to "hit it from the back" in a mean "do [it] or else type of [tone]."

Under the circumstances, there was sufficient evidence to allow a reasonable jury to conclude defendant used physical force to restrain D. beyond the force reasonably necessary to effect the restraint. Additional and unnecessary force required for felony false imprisonment may arise from sexual assaults suffered by a victim during the course of the defendant's contact with a victim. (People v. Ghipriel (2016) 1 Cal.App.5th 828, 834-835 [sexual assaults against a vulnerable victim trapped in a small office constituted physical force greater than that needed to restrain her liberty].) The evidence was also sufficient to allow a reasonable jury to infer that defendant's acts and words created a climate of fear and intimidation and conveyed an implied threat of harm if D. attempted to flee or disobey him.

In arguing there is insufficient evidence of menace, defendant relies on People v. Matian (1995) 35 Cal.App.4th 480. In Matian, defendant sexually assaulted his victim; during the assault he squeezed her breast hard enough to cause pain, and possibly bruising. Afterwards she collected her bag and prepared to go. The defendant grabbed her arm, yelled at her not to go and that " 'nothing happened.' " He told her to go wash her face. The victim then retreated to a chair. Each time she got up to leave, the defendant glared at her and began to rise. She was afraid and did not want him to touch her so she sat down. (Id. at p. 485.)

The appellate court found insufficient evidence of menace. (People v. Matian, supra, 35 Cal.App.4th at p. 486.) It noted that cases finding menace fell into two categories: those where the defendant used a deadly weapon and those where the defendant verbally threatened harm. (Id. at pp. 485-486.) The court found the earlier sexual assaults, coupled with the defendant glaring and rising when the victim tried to leave, did not establish menace. There was no evidence of a deadly weapon, a verbal threat, or any movement by the defendant suggesting harm. (Id. at p. 487.)

As defendant recognizes, Matian has been criticized by several courts, both for suggesting menace requires either a weapon or a direct threat and for finding insufficient evidence of menace on its facts. (People v. Wardell, supra, 162 Cal.App.4th at p. 1491; People v. Aispuro, supra, 157 Cal.App.4th at p. 1513; People v. Castro (2006) 138 Cal.App.4th 137, 143.) We agree with these criticisms; the context may make words or acts an implied threat. "When a rational fact finder could conclude that a defendant's acts or words expressly or impliedly threatened harm, the fact finder may find that there is menace sufficient to make false imprisonment a felony. An express threat or use of a deadly weapon is not necessary." (Wardell, at p. 1491.)

II

Application Of Section 654 To The Assault Conviction

The jury found defendant guilty of false imprisonment as a lesser included offense of kidnapping to commit rape, and simple assault as a lesser included offense of forcible rape. At sentencing, defense counsel suggested the assault conviction should be stayed pursuant to section 654. He argued the crimes involved the same victim, and the assault was "likely part and parcel of the [false imprisonment] itself and thus any time imposed on [the assault count] should be concurrent to the felony [false imprisonment count]." The trial court disagreed, finding that the convictions involved "separate acts of violence." The court reasoned, "[defendant] did not have to assault the victim in order to commit the false imprisonment and vice versa . . . ."

Defendant contends the trial court should have stayed sentence on the simple assault conviction under section 654 because the assault was the object of the false imprisonment. He argues the evidence does not suggest any intent or objective behind the false imprisonment other than to facilitate the assault. In other words, defendant asserts section 654 applies because he harbored a single intent and objective; namely, to sexually assault D. We discern no error.

Section 654, subdivision (a) provides, in relevant part, that "[a]n 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." "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 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." (Neal v. State of California (1960) 55 Cal.2d 11, 19; see also People v. Correa (2012) 54 Cal.4th 331, 336.) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551.) The purpose of section 654 is "to insure that a defendant's punishment will be commensurate with his culpability." (Ibid.) Accordingly, "where a course of conduct is divisible in time it may give rise to multiple punishment even if the acts are directive to one objective. [Citation.] If the separation in time afforded defendants an opportunity to reflect and to renew their intent before committing the next crime, a new and separate crime is committed." (People v. Louie (2012) 203 Cal.App.4th 388, 399.)

A trial court "is vested with broad latitude" in making the factual determination whether section 654 applies. (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.) "A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.)

We conclude the trial court did not err in determining defendant did not come within section 654's limitation on multiple punishments. Substantial evidence supports the trial court's finding that defendant had separate intents and objectives in committing the false imprisonment and assault offenses. There was evidence demonstrating that defendant's intent and objective in the false imprisonment offense was to prevent D. from fleeing and disobeying him by instilling fear in her through his words and acts. There was also evidence demonstrating that the assault was not incident to this objective. The record shows that defendant ordered D. to get into his car and told her she must follow his directives. He then drove her around for about 15 to 20 minutes. When he finally parked in the warehouse yard, defendant demanded D. orally copulate him. According to D., the oral copulation lasted for approximately 15 minutes. While he was being orally copulated, and after he touched and sucked on D.'s breasts, defendant told her that he was going to have sexual intercourse with her. As the trial court noted, the assault was not necessary to accomplish the false imprisonment, so the false imprisonment was not merely incidental to the assault. Section 654 "cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.) Here, defendant's act of having sexual intercourse with D. was an act far beyond what was necessary to accomplish the false imprisonment offense. Further, defendant had ample time to reflect on his conduct between the time he ordered D. to get into his car and the time he had sexual intercourse with her. Although defendant insists the purpose of the false imprisonment was to facilitate the subsequent act of sexual intercourse, the trial court could have reasonably concluded otherwise. In fact, the record is entirely susceptible to the interpretation defendant formed the intent and objective to have sexual intercourse with D. after he falsely imprisoned her. Accordingly, the trial court was justified in denying defendant's request to stay sentence on the assault conviction.

Contrary to defendant's contention, People v. Latimer (1993) 5 Cal.4th 1203 does not compel a different result. In Latimer, our Supreme Court concluded that a defendant who kidnapped his victim, drove her to an undeveloped area of nearby desert, assaulted and raped her twice, and left her behind, acted with a single objective under section 654 and could not be separately punished for the crimes of kidnapping and rape. (Id. at pp. 1205-1206.) "Although the kidnapping and the rapes were separate acts," the Latimer court concluded "the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes." (Id. at p. 1216.) "[B]ecause the sole objective of the kidnapping was to facilitate the rape," section 654 limited punishment to the rape. (Latimer, at pp. 1205, 1216.)

Here, however, the record supports a finding that the false imprisonment was not done solely to facilitate the assault. In Latimer, the defendant physically and sexually assaulted the victim soon after kidnapping her and without doing anything else with her. (People v. Latimer, supra, 5 Cal.4th at pp. 1205-1206.) By contrast, approximately 30 minutes passed from the time defendant ordered D. into his car and told her she must comply with his demands to the time he engaged in sexual intercourse with her. During this period of time, D. orally copulated defendant. He also touched and sucked on her breasts. Under these circumstances, there was sufficient evidence for the trial court to reasonably conclude there were distinct, separate intents and objectives for defendant's actions.

DISPOSITION

The judgment is affirmed.

/s/_________

Robie, Acting P. J. We concur: /s/_________
Hoch,. J. /s/_________
Renner, J.


Summaries of

People v. Galloway

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Oct 16, 2017
No. C083691 (Cal. Ct. App. Oct. 16, 2017)
Case details for

People v. Galloway

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RENARD GALLOWAY, JR., Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Date published: Oct 16, 2017

Citations

No. C083691 (Cal. Ct. App. Oct. 16, 2017)