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People v. Banks1/24/2003
er into the bedroom. She tried to leave the room, but appellant blocked her path and prevented her from leaving.
Mastick saw some bruises on Jackson's leg and some lacerations on her wrists. They appeared to be a few days old. Defense counsel asked whether these appeared to be "self-inflicted, attempted suicide lacerations." Mastick replied that they did not necessarily appear to be, and he later testified that Jackson did not say she had tried to commit suicide and there was nothing to indicate that she had done so.
Additional evidence admitted pursuant to Evidence Code section 1109 established that in February 1995, Los Angeles Police Officer Michael Cardenas and his partner went to a location in response to a call and saw appellant chasing Veronica Nelson, who was shaking, crying, and calling, "Help me, help me." Appellant told her, "I'm going to kill you, bitch. I'm going to kill you for calling the police." Nelson told the officers that she was playing dominoes with appellant, whom she had been dating for three months, when he became angry and violent. She told appellant she was going to go to the store, but appellant said, "I'm going to kill you before I let you go anywhere."
Appellant did not present any evidence.
Appellant was found guilty of felony false imprisonment. He was also charged with making criminal threats against Jackson, based on his statement that he would "snap head off" as soon as she put the child down, and with assault with a deadly weapon upon Jackson, based on his swinging the bottle at her outside the residence. The jury was unable to reach a verdict on these counts and they were subsequently dismissed.
DISCUSSION
I. The evidence was sufficient to support the conviction.
Appellant contends that the evidence failed to establish that the false imprisonment was accomplished by violence or menace. He argues that it thus was insufficient to support the conviction for felony false imprisonment, violating his right to due process. This contention is without merit.
False imprisonment is a wobbler, punishable as either a felony or a misdemeanor, but if it is effected by violence, menace, fraud or deceit, it is a felony. (Pen. Code, § 237.) To demonstrate that false imprisonment was accomplished by violence, the quantum of force used must be greater than that reasonably necessary to effect the restraint itself. (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462.) To demonstrate that false imprisonment was accomplished by menace, there must be evidence of a threat of harm which may be either express or implied by word or act. (People v. Reed (2000) 78 Cal.App.4th 274, 280.) A verbal threat of harm or use of a deadly weapon to effect the false imprisonment may constitute menace sufficient to support a felony conviction. (People v. Matian (1995) 35 Cal.App.4th 480, 485-486.) The prosecutor argued that appellant was guilty of false imprisonment effected by menace.
The evidence established that Mastick observed Jackson standing in the corner while appellant blocked her path to the door. Appellant was holding a wine bottle in his clenched fist, appeared to be very aggressive, and was yelling profanities. Jackson told the officers that appellant would not let her leave. Mastick testified that the officers thereafter struggled with appellant to try to get the wine bottle from him after appellant came at Mastick with the bottle in his hand; the officer indicated that he believed the wine bottle could be used as a weapon. Jackson related that, just before the officers arrived, appellant had threatened to "snap neck" and swung the bottle at her head, just missing her. Even if the jury
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