Brief Bank # B-848 (Re: F 9.60 n7 [Felony False Imprisonment: Requirement Of Specific Intent (PC 236 and PC 237])
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Date of Brief: November 1988
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA, )
Plaintiff and Respondent, )
) Court of Appeal
v. ) No. 000000; Santa
) Clara County
) Court No. 000000
JOHN DOE, )
Defendant and Petitioner. ) )
PETITION FOR REVIEW
SIXTH DISTRICT APPELLATE PROGRAM
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
Attorneys for Petitioner,
FELONY FALSE IMPRISONMENT IS A SPECIFIC INTENT CRIME
Pursuant to Penal Code section 236, false imprisonment is defined as “the unlawful violation of the personal liberty of another.” In order for false imprisonment to be punishable as a felony, the People must prove that it was “effected by violence, menace, fraud, or deceit, …” (Penal Code section 237.)
In the Court of Appeal, petitioner conceded that misdemeanor false imprisonment, as defined by section 236, is a general intent crime. This is so because section 236 merely proscribes the commission of a particular act and does not require the “intent to do a further act or achieve a future consequence, . . . (People v. Hood (1969) 1 Cal.3d 444, 457.)
However, it is manifest that felony false imprisonment does require specific intent. In this regard, the elements of the crime are: (1) the commission of an act of violence, menace, fraud or deceit; (2) with the intent to restrain the personal liberty of another. Thusly stated, the crime is one of specific intent since it requires the intent to “achieve a future consequence” other than the mere commission of an act of violence, menace, fraud or deceit. (Hood, supra, 1 Cal.3d at p. 457.)
Notwithstanding the stated definition of the elements of felony false imprisonment, the Court of Appeal concluded that it is a general intent crime. In this regard, the court held:
“The statute (sic) neither expressly nor by necessary implication defines felony false imprisonment as an act of violence, menace, fraud or deceit performed with the intent to unlawfully violate the personal liberty of another. Rather, felony false imprisonment is punished more severely than misdemeanor false imprisonment because of the aggravated manner in which the false imprisonment is effected.” (Opinion, pp. 8-9, emphasis in original.) [Footnote 1]
With all due respect for the Court of Appeal, the quoted analysis takes an abstract view which ignores the actual manner in which the crime is committed. In order to demonstrate this reality, one need look no further than this court’s seminal case on false imprisonment.
In People v. Agnew, supra, 16 Cal.2d 655, the defendant announced a citizen’s arrest of the victim in the presence of police officers. Although the defendant did not expressly direct the officers to arrest the victim, they proceeded to take him to the police station. (Id., at p. 659.) As the instant Court of Appeal noted, “[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.” (opinion, p.10.) In answering this question, this court held:
“‘If 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.’ [Citations.]” (Agnew, supra, 16 Cal.2d at p. 660, emphasis added.)
As is amply demonstrated by this court’s choice of language, it is unquestionable that Mr. Agnew acted with specific intent. In this regard, the act committed by Mr. Agnew was that of announcing a citizen’s arrest. Obviously, that act could not constitute false imprisonment unless he intended a future consequence (i.e. that the officers would arrest the victim).
Indeed, a simple change of the Agnew facts demonstrates this point even more clearly. Assume that instead of summoning the police to the scene, Mr. Agnew had provided the police with the identical information by telephone. Under this scenario, Mr. Agnew would be committing a fraudulent or deceitful act (i.e. giving false information). Obviously, since the arrest of the victim would not be made until some future point in time, it necessarily follows that Mr. Agnew would be maintaining a specific intent to achieve a future consequence.
In addition to the specific facts of Agnew, it is important to stress that the use of fraud or deceit to commit false imprisonment necessarily involves specific intent. This is so for the simple reason that the nature of fraud or deceit is such that the criminal actor commits an act with the intent to trick the victim in order to achieve some goal. (See Penal Code sections 528-538.5; defining various forms of false personation and cheats.) Thus, the commission of fraud or deceit constitutes a classic situation where the defendant maintains a specific intent to “achieve a future consequence.” (People v. Hood, supra, 1 Cal.3d 444, 457.)
In their opinion in this case, the Court of Appeal noted the argument that “fraud and deceit may themselves require a specific intent, …” (Opinion, p. 8, fn. 3.) However, the court refused to address the point since “the evidence here would only support a finding of violence or menace …” (Ibid.) As will be quickly explained, this strained construction of the statute is contrary to this court’s precedent.
In People v. Henderson (1977) 19 Cal.3d 86, this court considered whether false imprisonment is a felony inherently dangerous to human life such that it may implicate the second degree felony murder rule. While conceding that fraud or deceit could not implicate the rule, the People argued that violence or menace should. Thus, the People urged that “the offense of felony false imprisonment should not be analyzed as a whole, but that the court should first determine which type of felony false imprisonment is involved in the particular case.” (Id., at p.95.) In a succinct analysis, this argument was rejected.
“The Attorney General’s argument supposes a legislative intent that the second sentence of section 237… proscribes not one, but four separate felonies depending upon the means by which false imprisonment is effected. Reading and considering the statute as a whole in order to determine the true legislative intent [citation], we find no basis for severing false imprisonment by violence or menace from the offense of felony false imprisonment. The Legislature has not drawn any relevant distinctions between violence, menace, fraud, or deceit. These types of conduct are specified only as a basis for distinguishing between false imprisonment punishable as a misdemeanor and false imprisonment punishable as a felony. Most significantly, the Legislature has not distinguished between false imprisonment effected by violence or menace on the one hand and false imprisonment effected by nonviolent methods of fraud or deceit on the other. The Legislature has not evinced a particular concern for violent as opposed to nonviolent acts of false imprisonment by separate statutory treatment, proscription, or punishment.” (Henderson, supra, 19 Cal.3d at p. 95, emphasis added.)
In short, as Henderson makes explicitly clear, there is only a single offense of felony false imprisonment. Thus, to the extent that fraud or deceit requires proof of specific intent, it is manifest that the use of violence or menace also requires a showing of specific intent.
As a final point, it is essential to note that at least two appellate courts have cited Agnew and implied that felony false imprisonment is a specific intent crime. (People v. Haney, supra, 75 Cal.App.3d 308, 313; People v. Sipult, supra, 234 Cal.App.2d 862, 867.) While the instant Court of Appeal concluded that Haney had misread Agnew (Opinion, p. 10), it failed to cite Sipult. In light of this conflict in the case law, it is manifest that this is a proper case for review by this court. [Footnote 2]
For the reasons stated above, review should be granted.
Dated: November 7, 1988
Attorney for Petitioner,
Footnote 1: Although this point is not stated in the opinion, the implication of the quoted analysis is that section 237 constitutes an enhancement rather than a substantive offense. (See People v. Hernandez (1988) 46 Cal.3d 194, 207-208.) If the court intended to make this implication, it was simply begging the question. This is so for the simple reason that enhancements, like substantive offenses, often require a showing specific intent. (Id., at p. 204.)
Footnote 2: In People v. Swanson, supra, 142 Cal.App.3d 104, the court held that false imprisonment is a general intent crime. (Id., at pp. 109-110.) However, in so holding, the court did not mention section 237. Thus, the conclusion in Swanson is suspect. Recognizing this deficiency, the instant Court of Appeal merely cited Swanson and then proceeded to engage in an independent analysis of whether sections 236 and 237 define a specific intent crime.