THE PEOPLE v. CALVIN EARL CALLIER

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. CALVIN EARL CALLIER, Defendant and Appellant.

B215557

Decided: February 18, 2010

Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Calvin Earl Callier, also known as Rocky Hopkins and Julian Ellis, appeals from the judgment entered upon his convictions in a court trial of false imprisonment (Pen.Code, § 236, count 2) 1 and assault with a semiautomatic firearm (§ 245, subd. (b), count 5).2  In connection with count 5, the trial court found to be true the allegations that defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a) and used a firearm within the meaning of section 12022.5, subdivision (a).   Defendant was sentenced to an aggregate state prison term of 13 years.   Defendant contends that there is insufficient evidence to support (1) the finding of a semiautomatic weapon in count 5, and (2) his conviction of false imprisonment in count 2.

We affirm.

FACTUAL BACKGROUND

The prosecution's evidence

Paul Contreras (count 5)

On February 29, 2008, at approximately 7:00 p.m., Paul Contreras (Contreras) was riding his bicycle near 6037 Fallbrook Avenue, in Los Angeles County, when confronted by defendant and another person.   Defendant pointed a gun at Contreras and directed him to the backyard of the house, and there, told him to turn around and lift his shirt.   After Contreras did so, someone took his backpack.

Contreras got a good look at the gun defendant was holding, which he described as a “small .380.”   Defendant held the gun to Contreras's head, and the gun made a clicking noise twice.   According to Contreras, the clicking noise occurred because defendant pulled the trigger when no round was chambered.  “So I mean I know what a gun sounds like when there is no bullet in it.”   Thereafter defendant shot Contreras in the shin with the same gun.   The bullet exited Contreras's left shin and hit his right foot, bruising it.

Contreras grabbed the gun and hyper-extended defendant's arm.   They wrestled on the ground until Contreras got up and began running, followed by defendant.   As he ran, Contreras was hit in the back of the head by a bullet that bounced and struck his left ear.   Contreras was hit a third time in his right thigh.   Defendant “emptied the whole slip [sic ].”   Contreras ran to a beauty salon and called 911.   He was transported by ambulance to the hospital.

Laura Johnson (count 2)

On May 10, 2008, at approximately 4:30 p.m., Laura Johnson (Johnson) was with her daughter and grandson in the backyard of the rooming house where she rented a room.   Defendant was the resident manager of the house, which was owned by his uncle.   Defendant seemed angry and agitated and began yelling at Johnson, calling her family racist names and stating that he “would mess them up.”   Johnson became frightened because the incident was escalating.

Johnson told her daughter and her grandson to go inside.   She walked behind them.   Defendant followed and threatened “to put a .45 to [her] head.”   This terrified her.   Johnson and her family went into her room, where Johnson tried to slam the door shut behind her.   Defendant blocked the doorway with his body, so she could not do so.   He pushed the door open and stood in the doorway.   When Johnson screamed for defendant to get out of the way and tried to push past him, he used his chest to stop her from exiting.   At that point “[she] realized [she] wouldn't be getting out of the room.”

Johnson called defendant's uncle, who had previously told her to call if anything happened at the property.   But the uncle was in Tennessee, and Johnson realized he would be unable to do anything.   Johnson tried several times to exit the room but could not get past defendant.   She telephoned the police.   Defendant threatened to shoot Johnson and let her daughter and grandson watch her bleed to death.   Because defendant's threat was directed at her, Johnson did not want to put her daughter and grandson in danger.   She therefore tried to get away from them.   Having no other way out of the room, she climbed out of the window and stood behind some bushes outside of her neighbor's house.

Johnson saw defendant walk to the front of the property, speaking on the telephone.   She heard him say something about killing her and having a party at her funeral.   When the police arrived a half hour later, Johnson told them that defendant appeared to be under the influence of alcohol.

Defendant's evidence

Defendant testified on his own behalf.   He claimed he was not involved in the shooting and had never seen Contreras except in court.   He was unfamiliar with the area where the shooting occurred and had never seen the backyards of houses on Fallbrook.

With respect to the Johnson incident, defendant claimed that she started the argument when she directed a racial epithet at him.   He denied threatening her or blocking the doorway to her room.   Defendant testified that he never had a gun but admitted that he was on probation for possession of a deadly weapon, a dagger.

DISCUSSION

I. Sufficiency of evidence handgun was semiautomatic

Defendant contends that there is insufficient evidence to support the finding that he possessed a semiautomatic handgun, the basis of his assault conviction.   He argues that a semiautomatic pistol is one which “ ‘uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of the trigger.’ ”   There were no spent casings found at the scene, no gun expert testimony, and Contreras's testimony describing the gun failed to establish that it was a semiautomatic.   This contention lacks merit.

“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citations.]”  (People v. Bolin (1998) 18 Cal.4th 297, 331.)   We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence.  (People v. Autry (1995) 37 Cal.App.4th 351, 358.)   Reversal on this ground is unwarranted unless ‘ “upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ”  (People v. Bolin, supra, at p. 331.)

In order to establish an assault with a semiautomatic firearm, the prosecution must prove “the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), ․ with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury” (People v. Miceli (2002) 104 Cal.App.4th 256, 269;  People v. Williams (2001) 26 Cal.4th 779, 782;  People v. Rocha (1971) 3 Cal.3d 893, 899;  People v. Colantuono (1994) 7 Cal.4th 206, 214) and that the assault occurred by use of a semiautomatic firearm (§ 245, subd. (b)).

Contreras testified that he knew the sound made by an empty gun when there was an attempt to fire it, suggesting some familiarity with guns.   He also testified that he got a good look at the defendant's handgun and that it was a “small .380.”   Since a .380 is commonly known to be a semiautomatic firearm, there was proof of that fact.3  Nowhere in the record was there any evidence to contradict this testimony.   In closing argument, the prosecutor referred to the gun as a semiautomatic without objection.   Thus, taken as a whole, there was sufficient support for the finding that the firearm used was semiautomatic.

II. Sufficiency of evidence of false imprisonment

Defendant contends that there was insufficient evidence to support his conviction of felony false imprisonment.   He argues that Johnson was not deprived of her liberty because she was not detained against her will, as he did not use force, violence, menace or fraud, and she was able to leave through the window.   He further argues that she was not detained for an appreciable period of time.   This contention is without merit.

“False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236.)  “If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison.” (§ 237, subd. (a).)  “Violence” is physical force to restrain over and above the force reasonably necessary to restrain.  (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123;  People v. Babich (1993) 14 Cal.App.4th 801, 806, quoting CALJIC No. 9.60.)  “Menace” is a threat of harm express or implied by word or act.  (People v. Babich, supra, at p. 806;  see also People v. Matian (1995) 35 Cal.App.4th 480, 484.)

To establish the crime of false imprisonment, the prosecution must prove (1) non-consensual, (2) intentional and unlawful restraining or confining of a person, (3) for an appreciable amount of time, no matter how short, and (4) accomplished by violence or menace.  (Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1000-1001;  see also People v. Webber (1991) 228 Cal.App.3d 1146, 1169;  People v. Checketts (1999) 71 Cal.App.4th 1190, 1194.)

Defendant argues that Johnson was not constrained against her will.   We disagree.   Defendant, who appeared intoxicated, yelled at Johnson in the backyard.   He called her family racist names and said he “would mess them up.”   Johnson became frightened for herself and her daughter and grandson and told them to go into her room in the house.   She followed them, and defendant followed her, threatening her with a “.45 to [her] head.”   Once inside the room, defendant told Johnson that he was going to shoot her and let her daughter and grandson watch her bleed to death.   These verbal threats along with the implicit threat conveyed by defendant's blocking the door to the room were sufficient to constitute menace, required for felony false imprisonment.   Further, when Johnson tried to leave her room through the door, appellant physically bumped her with his chest, implicitly telling her that he would use physical force to keep her there.   Defendant's threats to shoot Johnson and physically impeding her from leaving her room were ample evidence of the restraint on Johnson's liberty.

Defendant also argues that there was insufficient evidence that Johnson was detained for an appreciable period of time.   We again disagree.   The false imprisonment statute does not contain a duration requirement, and the duration of a seizure is not the decisive factor in determining whether a false imprisonment has occurred.   The restraint necessary for false imprisonment must last “for any ‘ “ ‘appreciable ․ time, however short.’ ” '  [Citation.]”  (Wilson v. Houston Funeral Home (1996) 42 Cal.App.4th 1124, 1135.)   Contrary to defendant's argument, the case of Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715 does not stand for the proposition that a false imprisonment requires no less than 15 minutes.   It merely pointed to a Court of Appeal decision in which 15 minutes of restraint was found to be sufficient to support a false imprisonment conviction.

We have found no case that has attempted to quantify the minimum amount of time necessary for false imprisonment.   In fact, numerous cases, while not discussing specifically the issue of the requisite duration of the restraint, have sustained false imprisonment convictions where the facts suggested restraints of far less than 15 minutes.  People v. Straight (1991) 230 Cal.App.3d 1372 is illustrative.   There, the defendant came up behind a woman walking in a shopping center, pressed himself against her back, covered her mouth with one hand and placed the other on her breast and vagina area.   The victim struggled, and the defendant told her twice to be quiet.   The defendant then forced the victim two or three steps toward an alley.   The victim was able to free her mouth and yelled.   The defendant let go and ran.   These facts, which suggest an extremely short period of restraint, were found to support a false imprisonment conviction.   Other cases present similarly short periods of constraint.  (See also People v. Fosselman (1983) 33 Cal.3d 572.)

We conclude that the amount of time that Johnson was confined to her room, as reflected by the evidence of what transpired when she was inside, was “appreciable.”  (Wilson v. Houston Funeral Home, supra, 42 Cal.App.4th at p. 1135.)   She tried to leave several times and telephoned the property owner and the police before climbing through the window.

Finally, we do not find that Johnson's escape through the window in any way undermines the constraint on her liberty.   People do not generally leave rooms in that fashion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Defendant was acquitted of making criminal threats (§ 422, count 1), attempted robbery (§§ 664, 211, count 3), and attempted willful, deliberate and premeditated murder (§§ 664, 187, subd. (a), count 4)..  FN2. Defendant was acquitted of making criminal threats (§ 422, count 1), attempted robbery (§§ 664, 211, count 3), and attempted willful, deliberate and premeditated murder (§§ 664, 187, subd. (a), count 4).

FN3. Defendant virtually concedes as much as he states in his brief and acknowledged in oral argument that .380 cartridge size is intended for semiautomatic handguns..  FN3. Defendant virtually concedes as much as he states in his brief and acknowledged in oral argument that .380 cartridge size is intended for semiautomatic handguns.

_, Acting P.J. DOI TODD _, J. ASHMANN-GERST

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