Opinion Bank # O-110
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE, C008103
Plaintiff and Respondent, (Super. Ct. No. 89-8190)
DONALD ALBERT PETERS,
Defendant and Appellant.
A jury convicted defendant of misdemeanor battery (Pen. Code, § 242), an offense included within the charge of felony spousal abuse (Pen. Code, § 273.5 — count I); burglary of a residence (Pen. Code, §§ 459, 460 — count II); felony false imprisonment (Pen. Code, § 236 — count III); and willful disobedience of a court order (Pen. Code, § 273.6 — count IV).
Sentenced to state prison, defendant appeals contending, inter alia, reversal is required due to the trial court’s failure to instruct sua sponte on misdemeanor false imprisonment, an offense included in the charge of felony false imprisonment. Finding this contention has merit, we shall reverse the convictions for felony false imprisonment and for burglary, the latter reversal being required because the burglary was based upon an entry with intent to commit felony false imprisonment.
In August 1989, defendant and his wife Laura separated and she obtained a court order keeping defendant from contacting her other than for mutual exchange of property. Defendant was aware of the order.
During the early evening hours of September 27, 1989, Laura was speaking with her mother over the telephone when she saw defendant’s truck through the window. Initially frightened, Laura asked her mother to call 911, but changed her mind and requested her mother to come over. Laura hung up the telephone, saw defendant approaching, and heard four hard bangs on the front door. As she began running for the back door, the front door gave way and defendant fell into the living room.
Laura testified on direct examination that when she reached the back door, defendant grabbed her, tearing her shirt, and said, “Oh no, you don’t.” He struck her, slamming her head into the door and cutting her lip. He then dragged her into the living room where he forced her to sit opposite him in a chair. Two or three times defendant raised his hand and Laura pulled away. Defendant gave her a handkerchief for her bleeding lip, saying, “I wouldn’t have had to hit you if would listen to me.”
On cross-examination, Laura admitted several times she couldn’t recall defendant actually striking her, but she assumed such because her lip was bleeding and her head hurt.
Shortly after defendant forced Laura into the chair, her mother arrived. There was some conversation and then Laura informed defendant she was going to call the police. A slight struggle ensued over the telephone, after which defendant left and Laura telephoned the police. The police found defendant hiding in a field.
Defendant testified, claiming he went to the residence to collect his tools and Bibles, believing in doing so he was in compliance with the court order. The door was stuck, he pushed hard and it opened, breaking the striker plate. Defendant denied falling into the living room or breaking the door down. As he entered, defendant saw Laura run to the back door and try to open it, but she struck the door and appeared dazed. Defendant assisted her to a chair where he noted she had blood on her lip. When he attempted to hold her head and chin in order to examine the cut, she pulled away, so he gave her a handkerchief.
After Laura’s mother arrived, there was some conversation and Laura said she was going to call the police. Defendant took the telephone from her and said there would be no need to do so and offered to leave. After some grabbing over the telephone, defendant left but since his truck wouldn’t start and he feared being arrested, he tried to hide in the field where he was found.
The prosecution’s theory for the burglary charge was that defendant entered Laura’s residence with the intent to commit either spousal abuse (Pen. Code, § 273.5) or the felony of false imprisonment (Pen. Code, §§ 236, 237). To this end the court instructed the jury: “The defendant is accused in Count II of the Information of having committed the crime of burglary, a violation of 459 of the Penal Code. [¶] Every person who enters any structure of the type shown by the evidence in this case with the specific intent to commit corporal injury on a spouse or false imprisonment is guilty of the crime of burglary in violation of Penal Code section 459.”
The court defined spousal abuse: “Every person who willfully inflicts upon his spouse bodily injury resulting in a traumatic condition is guilty of a violation of Section 273.5 of the Penal Code. [¶] A traumatic condition is a condition of the body such as a wound or external or internal injury, whether of a minor or a serious nature, caused by physical force. [¶] In order to prove such crime each of the following elements must be proved: [¶] A person intentionally inflicted bodily injury upon his spouse and such bodily injury resulted in a traumatic condition.”
The instruction defined false imprisonment: “The defendant is accused in Count III of the Information of having committed a crime of false imprisonment by violence or menace which is a violation of Section 236 of the Penal Code. [¶] Every person who by violence or menace violates the liberty of another person by intentionally and unlawfully restraining, confining or detaining such person, and compelling such person to stay or go somewhere without her consent, is guilty of the crime of false imprisonment by violence or menace in violation of Section 236. [¶] Violence means the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint. Menace means a threat of harm express or implied by word or act.
“In order to prove such crime each of the following elements must be proved: Number one, a person intentionally and unlawfully violated the liberty of another person by restraining, confining or detaining that person, compelling her to stay or go somewhere without her consent; and number two, such act was done by violence or menace.”
Since the jury did not convict defendant of spousal abuse, which requires corporal injury, but instead convicted him of the included offense of simple battery, for which only an unconsented or rude touching is required, it is highly unlikely that spousal abuse would be the basis for the burglary conviction. [FOOTNOTE 1] Indeed, the failure to so convict virtually compels the conclusion the false imprisonment offense was the basis for the burglary charge.
False imprisonment may be either a misdemeanor or a felony, depending upon whether or not the unlawful restraint is accomplished by menace or violence. If accomplished by menace or violence, it is a felony; it is a misdemeanor if perpetrated without either of these elements. [FOOTNOTE 2] Defendant did not request, and the court did not give, instructions on misdemeanor false imprisonment.
Defendant urges the court had a duty to instruct sua sponte on misdemeanor regardless of its inconsistency with his defense or his failure to so request. The People counter, claiming no error because there was insufficient evidence to support a conviction for misdemeanor false imprisonment and because such instructions would have been inconsistent with the defense. Defendant has the stronger argument.
“The trial court functions both as a neutral arbiter between two contesting parties and as the jury’s guide to the law. This role requires that the court fully instruct the jury on the law applicable to each particular case. ‘”It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d 524, 531 .) That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present (see, e.g., People v. Hood (1969) 1 Cal.3d 444 ), but not when there is no evidence that the offense was less than that charged. (People v. Noah (1971) 5 Cal.3d 469, 479 ; People v. Osuna (1969) 70 Cal.2d 759, 767 .)’ (People v. Sedeno (1974) 10 Cal.3d 703, 715-716 .)
The fulfillment of this obligation ensures that the jury will consider the full range of possible verdicts — not limited by the strategy, ignorance, or mistakes of the parties. The jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories. ‘Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. (People v. St. Martin, supra, 1 Cal.3d 524, 533.)’ (Sedeno, supra, 10 Cal.3d at p. 716.) Furthermore, where counsel is not aware of alternative verdicts or incorrectly believes them to be irrelevant to the case, the trial court’s action will avoid an unwarranted all-or-nothing choice for the jury and will ensure that the verdict is no harsher or more lenient than the evidence merits.” (People v. Wickersham (1982) 32 Cal.3d 307, 323-324.)
The People argue the only way the jury could have convicted defendant of misdemeanor false imprisonment would be based upon an “unexplained” rejection of Laura’s testimony. However, even though Laura’s direct testimony unequivocally established the offense of spousal abuse, the jury did not convict defendant of this charge. Clearly the jury rejected part of her testimony. That rejection is adequately explained by Laura’s candid admissions during cross-examination that she never saw defendant strike her, but instead concluded he must have done so because she was injured.
No doubt the jury believed Laura’s account of defendant’s stopping her from leaving the residence and forcing her into a chair. Had the jury been instructed that if they found only minimal force was used to unlawfully restrain Laura, they should find defendant guilty of misdemeanor false imprisonment. Not being so instructed, the jury was given an “all-or-nothing” choice, when there was, in fact, evidence from which they could have found the lesser charge.
As is clearly pointed out in Wickersham, supra, the fact an instruction is inconsistent with an accused’s defense does not necessarily relieve the trial court of its duty to give the instruction. The instruction is consistent with the prosecution’s theory that a false imprisonment took place, and there is evidence from which a jury could find the offense was only a misdemeanor. Consequently, it was for the jury to determine the appropriate crime and inconsistency with the defense is not a sufficient reason for not giving the subject instruction.
The People also claim that any error in failing to instruct on misdemeanor false imprisonment was harmless because the issue was resolved by other instructions. Specifically, the People argue, “[The jury] necessarily found defendant committed a burglary by false imprisonment and in doing so found that appellant entered Laura’s home with the intent of committing a false imprisonment by violence or menace. It is inconceivable the jury could find the burglary was accomplished by such means but could simultaneously conclude the false imprisonment was not accompanied by violence or menace. Any error was therefore harmless.”
This argument does no more than state the jury’s finding, to wit, felony false imprisonment. The error is, as observed above, they were never given the opportunity to find any charge less than an outright acquittal.
The judgment is reversed as to the burglary and false imprisonment convictions, counts II and III, respectively. The matter is remanded to the superior court for further proceedings consistent with this opinion.
BLEASE Acting P. J.
With respect to simple battery (Pen. Code, § 242), the court instructed the jury: “Every person who willfully and unlawfully uses any force or violence upon the person of another is guilty of misdemeanor battery in violation of Penal Code section 242. [¶] As used in the foregoing instruction the words force and violence are synonymous and man any unlawful application of physical force against the person of another. Even though it causes no pain or bodily harm or leaves no mark. And even though only the feelings of such person are injured by the act. The slightest unlawful touching if done in an insolent, rude or an angry matter is sufficient. [¶] It is not necessary that the touching be done in actual anger or with actual malice. It is sufficient if it was unwarranted and justifiable. [¶] The touching essential to a battery may be a touching of the person, of the person’s clothing, or of something attached to or closely connected with the person.”
Penal Code section 236 provides: “False imprisonment is the unlawful violation of the personal liberty of another.”
Penal Code Section 237 provides: “False imprisonment is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not more than one year, or by both. If such false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison.”