Filed 6/10/16 P. v. Gonzalez CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E061347

v.                                                                      (Super.Ct.No. RIF1300092)

ENRIQUE FLORES GONZALEZ,                                                OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

         Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.

                                                             1
       Defendant and appellant Enrique Flores Gonzalez appeals his conviction on three

counts of making criminal threats and one count of false imprisonment by force or

violence. He contends that the evidence was insufficient as to three counts, and that the

jury instructions on the false imprisonment charge were deficient. We will affirm the

judgment.

                                 PROCEDURAL HISTORY

       Defendant was charged with three counts of making criminal threats in violation

of Penal Code1 section 422 (counts 1, 2, 3; victims Garcia, Singh, and Gonzalez,

respectively) and one count of felony false imprisonment in violation of section 236

(count 4; victim Zavaleta). A jury found defendant guilty on all counts as charged. The

trial court sentenced defendant to an aggregate term of four years in state prison.

       Defendant filed a timely notice of appeal.

                                           FACTS

       Defendant, working in concert with two other men, illegally brought Maria

Zavaleta and several other people into California from Mexico. They placed Zavaleta

and one other woman in a motel room in Temecula. Zavaleta needed to contact her

mother to arrange for payment of the fee. Defendant and the others refused to buy her a

phone card so she could call her mother. The other woman was able to arrange for

payment and left the motel. Zavaleta testified that she was not afraid until one of the

other men put her hands behind her back and said they were going to take her somewhere


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

                                              2
else. She was alone with them by then and was afraid they would take her somewhere

and rape her. The man was unable to remove her from the motel room at that point

because there were other people outside in the hallway.

       Nestor Garcia, who was a member of the motel’s cleaning staff, saw Zavaleta peek

out the window of one of the motel rooms. Zavaleta indicated that she needed help, but

Garcia did not respond. A few minutes later, Zavaleta opened the door and said she

needed help. She was shaking and appeared to be afraid. When Garcia asked if she was

okay, Zavaleta told him to shut up and “closed the door scared.” Garcia saw defendant

leave room 118 and enter room 117, where Zavaleta was. Defendant then left and went

back into room 118. Shortly after that, Zavaleta opened the door again and told Garcia

that she had been kidnapped. Zavaleta asked Garcia to help her escape. She told him she

had crossed from Mexico into the United States and that “they” had threatened her and

that “they” were very bad.

       Garcia and Zavaleta ran to the motel office. Yosio Gonzalez, the motel secretary,

was there. They explained that Zavaleta needed help, and Gonzalez told her to hide in a

small room behind the office. Garcia felt “there was [going to] be a big problem”

because a person who “crosses other people could be a dangerous one.”2 Garcia asked

Gonzalez to call the police, but Gonzalez did not do it because she did not think there

would be a big problem.



       2 In context, it is clear that Garcia was referring to a person who brings people
across the border illegally.

                                             3
       After Zavaleta was hidden in the room behind the office, Garcia went back outside

and continued cleaning the pool. He saw defendant and another man approaching from

the area of room 118. Defendant looked “angry, excited, but . . . scared at the same

time.” Garcia did not think defendant was angry at him. Defendant asked if Garcia had

seen Zavaleta. Defendant sounded angry, and told Garcia he would give him money if he

told him where Zavaleta was. Defendant said that he had “crossed” Zavaleta and that she

owed him money. When Garcia said he did not know where Zavaleta was, defendant

told him to “watch [his] back.” Garcia interpreted that statement as a threat, and he felt

afraid.3 Garcia was afraid of the possibility of being physically harmed when he later

saw defendant come out of the motel office looking even angrier than before. Garcia saw

defendant and one of the other men go into room 118 and come out with their belongings.

They left the motel property.

       Gonzalez testified that when Garcia brought Zavaleta into the motel office,

Zavaleta was “really, really bad,” crying, yelling, asking her for help. She appeared to be

“really afraid.” Zavaleta said she was “scared for her life,” that she was being held

against her will, and that “they were hurting her in that room.” Gonzalez hid Zavaleta in

the back laundry room adjacent to the office, called a phone number Zavaleta had given

her, and told “them” what was going on. After Gonzalez put Zavaleta in the laundry

room, defendant came into the office. His demeanor was calm. He looked around the


       3Garcia testified through an interpreter. He explained that the Spanish expression
defendant used could mean “take care of yourself” if used between friends or family
members, but when used by a stranger, it has a threatening connotation.

                                             4
office “like, looking to see if there were other rooms in that room.” Defendant then

approached Gonzalez and said, “I know you have her. Tell me where she’s at. I will

be—I’ll be watching what you’re doing. I know what you drive.” Defendant also said

words to the effect of “watch [your] back,” and told Gonzalez that she was “messing with

[his] money.” When Gonzalez told defendant she did not know what he was talking

about, he left the office. Gonzalez felt threatened by the exchange, especially when she

saw via the security camera that defendant and his companions appeared to be searching

the parking lot. Gonzalez felt that they would “do something” to her if she did not give

Zavaleta back to him.

       The other two men came into the office after defendant left. They cussed at

Gonzalez, demanding to know where Zavaleta was. They said they knew Gonzalez had

her. Gonzalez was separated from the men by glass that “protect[s] [her] from people,”

but she felt that the threat “could happen at any time.” Gonzalez felt this because of “the

way they were being, their faces, their actions, how they were.”

       After the men left the office, Gonzalez saw all three of them running toward the

gas station across the street from the motel. Gonzalez called the police, who responded.

She never saw any of the men again.

       Avineet Singh, the manager of the motel, had left the office before Garcia brought

Zavaleta there. When he returned, both Garcia and Gonzalez were in the office. They

told him that Zavaleta had come to them for help and that “she was human traffick[ed] by

so and so person.” They said that defendant and some others had brought her from

Mexico. They were afraid to call the police, but they did not tell him why they were

                                             5
afraid. Singh went outside and saw defendant and another man looking around the

parking lot. After they left, Singh took his car to the gas station across the street. When

he attempted to enter the gas station store, he was “cornered” by defendant and two other

men. Defendant asked where the girl was. He accused Singh of wanting to make money

off her. He told Singh to return her or he would shoot him. Singh took the threat

seriously. When the men moved aside to let another customer enter the store, Singh

followed the customer and then exited the store by another door. Singh ran back to his

car and returned to the motel. The police arrived shortly after he returned. At some

point, Singh saw one of the “other guys,” not defendant, knocking on the door of his

apartment at the motel.

       Both Garcia and Gonzalez were afraid that defendant and the others would return

and hurt them. Garcia quit his job at the motel four to six weeks later. Gonzalez stayed

away from work for a week after the incident.

       Dario Hernandez, a deputy sheriff, testified as an expert on human smuggling. He

explained the activities of “coyotes,” or individuals who assist others in crossing the

United States border illegally. He explained that the person being transported will often

pay half the fee up front and make arrangements for the rest of the fee to be paid after

entry into the United States. The person will often be placed in a hotel and is not free to

leave until the final payment has been made. He testified that people coming into the

United States with the help of a coyote are generally aware that if they attempt to leave

without paying the balance due, they could get hurt or killed.



                                             6
                                   LEGAL ANALYSIS

                                             1.

                     SUBSTANTIAL EVIDENCE SUPPORTS THE

                           VERDICTS ON COUNTS 1 AND 3

       Summary of the Issue

       Defendant contends that there is insufficient evidence to support his convictions

on counts 1 and 3 for making criminal threats against Garcia and Gonzalez, respectively.

Initially, he contends that the “alleged threat to ‘watch your back’ made to both Gonzalez

and Garcia was missing any physical manifestation to demonstrate [that] the ‘threat’ was

to commit a crime involving great bodily injury or death, or that it was unequivocal,

unconditional, immediate, or specific enough to convey the immediate prospect of

physical harm” and that the threat therefore did not meet the requirements of a “true

criminal threat.” Later, he restates his contention as follows: That “watch your back,” “I

know what you drive,” “you’re messing with my money,” and “I’ll be watching what

you’re doing” do not qualify as criminal threats because they “failed to convey an

imminent threat of death or great bodily injury, they were ambiguous on their face, and

were not specific as to physical harm.”4 He does not cite any authority that a “true


       4  Section 422, subdivision (a), provides for punishment of any person “who
willfully threatens to commit a crime which will result in death or great bodily injury to
another person, with the specific intent that the statement, made verbally, in writing, or
by means of an electronic communication device, is to be taken as a threat, even if there
is no intent of actually carrying it out, which, on its face and under the circumstances in
which it is made, is so unequivocal, unconditional, immediate, and specific as to convey
to the person threatened, a gravity of purpose and an immediate prospect of execution of
                                                                 [footnote continued on next page]

                                             7
criminal threat” requires a “physical manifestation,” and we are not aware of any such

authority. On the contrary, section 422 explicitly defines a criminal threat as a verbal

threat. (§ 422, subd. (a).) Accordingly, we will address defendant’s contention that the

threats failed to convey an imminent threat of physical harm because they were

ambiguous and nonspecific.

        Standard of Review

        Although defendant couches his argument in terms of the substantial evidence

rule, his argument is not that the evidence fails to support the finding that he made the

statements attributed to him. Rather, his contention is that the statements he quotes do

not amount to criminal threats as a matter of law, based on the undisputed evidence. The

legal sufficiency of undisputed evidence to support a conviction is a question of law,

which we decide de novo. (People v. Villalobos (2006) 145 Cal.App.4th 310, 316, fn. 3;

see In re Ryan D. (2002) 100 Cal.App.4th 854, 862 [once historical facts are established,

whether statement constitutes criminal threat is question of law].)

        The Threats Were Sufficiently Unequivocal, Unconditional, Immediate, and

Specific to Constitute Criminal Threats

        Although section 422, subdivision (a), requires that the threat must be “so

unequivocal, unconditional, immediate, and specific as to convey to the person

threatened, a gravity of purpose and an immediate prospect of execution of the threat,”


[footnote continued from previous page]
[footnote continued from previous page]
the threat, and thereby causes that person reasonably to be in sustained fear for his or her
own safety or for his or her immediate family’s safety . . . .”

                                              8
courts have construed that language, which includes the qualifier “so,” to mean that the

test is “whether, in light of the surrounding circumstances, the communication was

sufficiently unequivocal, unconditional, immediate, and specific as to convey to the

victim a gravity of purpose and immediate prospect of execution.” (In re Ryan D., supra,

100 Cal.App.4th at p. 861, citing People v. Bolin (1998) 18 Cal.4th 297, 340; accord,

People v. Melhado (1998) 60 Cal.App.4th 1529, 1537-1538.) Further, the

communication and the surrounding circumstances are to be considered together to

determine whether that test is met: “‘[I]t is the circumstances under which the threat is

made that give meaning to the actual words used. Even an ambiguous statement may be

a basis for a violation of section 422.’ [Citation.]” (In re Ryan D., at p. 860.)

       Here, even though defendant’s words did not unambiguously state that he would

harm either Garcia or Gonzalez, the circumstances under which the statements were

made render them sufficiently unequivocal and specific to convey defendant’s gravity of

purpose. As to Garcia, Zavaleta told him that she had been kidnapped and that the people

who had kidnapped her had threatened her. Zavaleta asked Garcia to help her escape.

Zavaleta was very upset and frightened. When defendant and one of his companions

approached Garcia, defendant looked angry. He asked if Garcia had seen Zavaleta and

offered him money if he told him where Zavaleta was. He told Garcia that he had

“crossed” Zavaleta. Garcia knew that people who “crossed” others could be dangerous.

When Garcia said he did not know where Zavaleta was, defendant told him to “watch

[his] back.” Garcia testified that phrase, when used by someone other than a friend or

relative, has a threatening connotation, and that he felt threatened when defendant said

                                              9
it.5 Garcia was additionally frightened when he saw defendant come out of the motel

office looking even angrier than before.

       Gonzalez too testified to circumstances which were sufficient to cause her to view

defendant’s words as a threat. When Garcia brought Zavaleta into the motel office,

Zavaleta was “really, really bad,” crying, yelling, asking for help. She appeared to be

“really afraid.” Zavaleta said she was “scared for her life,” that she was being held

against her will, and that “they were hurting her in that room.” When defendant came

into the office, he told Gonzalez, “I know you have her. Tell me where she’s at. I will

be—I’ll be watching what you’re doing. I know what you drive.” He also said words to

the effect of “watch [your] back.” He also said that Gonzalez was “messing with [his]

money.” Gonzalez felt threatened by the exchange, especially when she saw via the

security camera that defendant and his companions appeared to be searching the parking

lot. Gonzalez felt that they would “do something” to her if she did not give Zavaleta

back to him, and she was also frightened when the two other men came into the office

after defendant left. They cussed at Gonzalez and demanded to know where Zavaleta

was. They said they knew Gonzalez had Zavaleta. Gonzalez felt threatened because of

“the way they were being, their faces, their actions, how they were.” Gonzalez’s



       5  It is not true that Garcia first said that “watch your back” is a threat and then
later corrected himself to say that it actually means “take care of yourself,” as defendant
asserts. Rather, he testified that the phrase has both meanings, and that when it is said by
a stranger, it has a threatening connotation. He explained, “I took it as a threat. Because
he’s not my friend. He’s not my relative. He’s an unknown person. And if an unknown
person says that to me, I take it as a true threat.”

                                             10
interpretation that she had been threatened with bodily harm was reasonable, based on

Zavaleta’s obvious fear and the threatening demeanor of defendant and his companions.

       Defendant’s statements were also sufficient, under the circumstances, in

conveying his intention to carry out his threats immediately if Garcia or Gonzalez failed

to tell him where Zavaleta was hiding. That the statements were effectively conditioned

on Garcia and Gonzalez’s failure to cooperate with him does not render them

unconditional or lacking in immediacy within the meaning of section 422. Most threats

are conditional, in that they are designed to coerce the victim to do something or refrain

from doing something, and it is well established that a conditional threat can support a

conviction under section 422. (See People v. Melhado, supra, 60 Cal.App.4th at p. 1538

[“A threat is made to convince the victim to do something ‘or else.’”].)

       For example, in People v. Brooks (1994) 26 Cal.App.4th 142, this court held that a

threat to kill a crime witness if she testified constituted a criminal threat. After discussing

the federal antecedents of section 422, we held that conditional threats are true threats “if

their context reasonably conveys to the victim that they are intended, and the First

Amendment is not implicated by such threats since they do not concern political or social

discourse or the so-called marketplace of ideas.” (Brooks, at pp. 148-149.) We held that

if the fact that a threat is conditioned on something occurring renders it not a true threat,

there would have been no need to include in the statute the word “so.” (Id. at p. 149.)

Under the approach advocated by the defendant in that case, we held, “every threat that is

conditional would go unpunished, no matter how much fear is reasonably felt by the

victim. This would lead the way to such an absurdity as excluding from the statute’s

                                              11
prohibition the threat, ‘If the sun rises tomorrow, I will kill you.’ Such a result clearly

undermines the purpose of the statute.” (Id. at p. 149.)

       People v. Stanfield (1995) 32 Cal.App.4th 1152 agreed with People v. Brooks,

supra, 26 Cal.App.4th 142. The court held that section 422 “focuses on the effect of the

threat on the victim, to wit, communication of a gravity of purpose and immediate

prospect of execution of the threat.” (Stanfield, at p. 1158.) This is consistent with the

holding in U.S. v. Kelner (2d Cir. 1976) 534 F.2d 1020, which is the source of the

language used in section 422, and with subsequent federal cases construing the same

language. Those cases concur that the phrase “so unconditional” focuses on whether the

language used by the defendant is a serious expression of intent to inflict injury and could

reasonably induce fear in the victim. (Stanfield, at pp. 1159-1162; Brooks, at pp. 145-

149.) The circumstances surrounding defendant’s statements to both Garcia and

Gonzalez meet those criteria.

       The same analysis applies to the element of immediacy. As used in section 422,

the phrase “so . . . immediate” means “that degree of seriousness and imminence which is

understood by the victim to be attached to the future prospect of the threat being carried

out, should the conditions not be met.” (People v. Melhado, supra, 60 Cal.App.4th at

p. 1538.) For the reasons we have previously discussed, defendant’s statements to Garcia

and Gonzalez were sufficient to cause the victims to believe that defendant would kill or

seriously injure them if they did not tell him where Zavaleta was.




                                              12
                                              2.

                      THE RULE OF LENITY DOES NOT APPLY

                                   TO COUNTS 1 AND 3

       Section 422 makes criminal a threat which “causes [the victim] reasonably to be in

sustained fear for his or her own safety or for his or her immediate family’s safety.”

(§ 422, subd. (a).) Defendant contends that this means that the threat—the words

spoken—must be the “but-for” cause, or the sole cause, of the fear the victim felt. He

contends that his convictions on counts 1 and 3 must be reversed because the evidence

shows that his threats were not the but-for cause of the victims’ fear, in that their fear was

based in part on factors other than his words, such as the conduct of his companions.

Relying on Burrage v. United States (2014) ___ U.S. ___ [134 S.Ct. 881] (Burrage),

defendant contends that “both traditional rules of statutory construction and the federal

constitution require section 422 be read to require a threat be the ‘but-for’ cause of the

victim’s fear, not just a substantial contributing factor.” He contends that interpreting

section 422 to permit a conviction based on a finding that the defendant’s words were

merely a substantial factor in causing the victim’s fear “would render the statute

unconstitutionally vague” because it would violate the rule of lenity.

       The rule of lenity is based on the due process requirement of adequate notice as to

what constitutes a prohibited act. It prohibits any interpretation of an ambiguous criminal

statute in a way that operates to the disadvantage of the defendant. (Robers v. United

States (2014) ___ U.S. ___, ___ [134 S.Ct. 1854, 1859]; People ex rel. Green v. Grewal

(2015) 61 Cal.4th 544, 565-566.)

                                             13
       In Burrage, the defendant was convicted of drug trafficking under a provision which

provides for an enhanced penalty if the sale of heroin results in death. The evidence,

however, showed that the victim’s ingestion of heroin was not a but-for cause of his death

but merely a contributing factor, because the victim had ingested multiple drugs which in

combination resulted in his death. There was no evidence that but for his ingestion of the

heroin, he would not have died. (Burrage, supra, ___ U.S. ___ [134 S.Ct. at pp. 885-887].)

The Supreme Court held that because the statute did not otherwise define “‘results from,’”

the term must be applied using its ordinary meaning, i.e., when it arises as an “‘effect,

issue, or outcome from some action, process, or design.’” (Id. at p. ___ [134 S.Ct. at

p. 887].) Accordingly, the statute could not be interpreted to apply merely because the

heroin contributed to the person’s death, even substantially, without running afoul of the

rule of lenity.6 (Burrage, supra, ___ U.S. ___ [134 S.Ct. at pp. 887-891].)


       6  The California Supreme Court applies the substantial factor test of causation
under certain circumstances. In People v. Jennings (2010) 50 Cal.4th 616, the California
Supreme Court stated, “‘But for’ or ‘sine qua non’ causation provides that ‘[t]he
defendant’s conduct is a cause of the event if the event would not have occurred but for
that conduct; conversely, the defendant’s conduct is not a cause of the event, if the event
would have occurred without it.’ [Citation.] By comparison, the ‘substantial factor’ rule
for concurrent causes ‘was developed primarily for cases in which application of the but-
for rule would allow each defendant to escape responsibility because the conduct of one
or more others would have been sufficient to produce the same result.’ [Citation.] As we
have stated in the civil context, the tests for ‘but for’ and ‘substantial factor’ causation
usually produce the same result, but the ‘substantial factor’ standard states a clearer rule
that subsumes and reaches beyond the ‘but for’ test to more accurately address situations
in which there are independent concurrent causes of an event.” (Id. at pp. 643-644, italics
added.) Burrage states that this is a minority view. (Burrage, supra, ___ U.S. ___ [134
S.Ct. at pp. 890-891].) Defendant argues that section 422 is unconstitutional because it
allows conviction if the defendant’s words are merely a substantial factor in causing the
victim’s fear, but as we discuss below, that is not the case.

                                             14
       The Burrage analysis does not apply to section 422 with respect to causation,

however, because section 422 expressly defines the threat as both the defendant’s words

and the surrounding circumstances: A criminal threat is a “statement . . . which, on its

face and under the circumstances in which it is made” is so unequivocal, et cetera, as to

convey a gravity of purpose and an immediate prospect of execution. (§ 422, subd. (a).)

Because the circumstances surrounding a defendant’s statements to the victim, including

any intimidating conduct by his companions, are expressly made part and parcel of the

threat, defendant is mistaken that the words alone must be the but-for cause of the victims’

fear. Moreover, the rule of lenity applies only if, “after using the usual tools of statutory

construction, we are left with a ‘grievous ambiguity or uncertainty in the statute.’

[Citation.]” (Robers v. United States, supra, ___ U.S. ___ [134 S.Ct. at p. 1859]; see

People ex rel. Green v. Grewal, supra, 61 Cal.4th at pp. 565-566 [lenity applies only

where “two reasonable interpretations of a penal statute stand in relative equipoise”].)

Because section 422 explicitly defines a threat in terms of both the words used by the

defendant and the circumstances under which they were uttered, it is not ambiguous in this

respect. Accordingly, the rule of lenity does not apply.

                                              3.

                SUBSTANTIAL EVIDENCE SUPPORTS THE FELONY

                          FALSE IMPRISONMENT VERDICT

       Defendant contends that his conviction for felony false imprisonment must be

reversed because there is insufficient evidence to support the jury’s finding that he used

violence or menace to restrain Zavaleta from leaving the motel room.

                                             15
       False imprisonment is the unlawful violation of the personal liberty of another.

(§ 236.) It is a felony if it is effected by violence, menace, fraud or deceit. (§ 237,

subd. (a).) Here, the jury was instructed solely on violence or menace. Violence is

defined as the use of physical force greater than is reasonably necessary to restrain the

victim, while menace is defined as a threat of harm, either express or implied. (People v.

Newman (2015) 238 Cal.App.4th 103.) The Attorney General concedes that there is no

evidence that defendant or his accomplices applied any physical force to restrain

Zavaleta. She contends, however, that defendant’s words and conduct toward Zavaleta

constituted menace within the meaning of section 237.

       When a defendant challenges the sufficiency of the evidence to support a

conviction, we review the whole record in the light most favorable to the judgment below

to determine whether it discloses substantial evidence—that is, evidence which is

reasonable, credible, and of solid value—such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. (People v. Thompson (2010) 49 Cal.4th 79,

113.) The standard is the same under the state and federal due process clauses. (Ibid.)

We presume in support of the judgment the existence of every fact the trier could

reasonably deduce from the evidence. (Ibid.) This standard applies whether direct or

circumstantial evidence is involved. (Ibid.)

       Part of defendant’s premise appears to be that there is insufficient evidence to

sustain his conviction because there was no evidence that he personally threatened

Zavaleta, either expressly or implicitly, with harm if she left the motel room. Rather,

Zavaleta testified that “they” threatened to kill her if she did not pay and that “they” told

                                               16
her they would not let her leave until they got their money. She did not testify that

defendant personally made either statement. On the contrary, she testified that defendant

never threatened to hurt her. It was not necessary for the prosecution to prove that

defendant personally restrained Zavaleta by threatening her, however. “All persons

concerned in the commission of a crime, . . . whether they directly commit the act

constituting the offense, or aid and abet in its commission, . . . are principals in any crime

so committed.” (§ 31.) Zavaleta testified that defendant drove the van and that he and

two other men participated in bringing her into the United States from Mexico. She said

that they worked for the “bosses,” who were in Mexico. Defendant was in charge, and

“the other guy” obeyed defendant’s orders. This evidence, along with the evidence of

defendant’s words and actions in trying to recover Zavaleta, and the other witnesses’

observation that defendant was the one in charge, is substantial evidence supporting the

conclusion that regardless of which of the men threatened Zavaleta, if any of them

actually did, defendant was a participant in the crime and thus criminally liable.

       Defendant’s primary contention is that his conviction must be reversed because

there is no evidence that Zavaleta was threatened in any way, by anyone. He contends,

essentially, that any threat of harm was a figment of Zavaleta’s imagination. Moreover,

Zavaleta expressly denied having been restrained. Defendant’s approach is too simplistic

because even though Zavaleta ultimately denied that she was held against her will, we

cannot say as a matter of law that no rational juror could conclude, based on the totality

of her testimony and on other evidence, that Zavaleta was indeed restrained by express or

implied threats of harm.

                                              17
       The first part of Zavaleta’s testimony reflected that she was restrained against her

will by express or implied threats. She identified defendant as a “person that did a lot of

bad things” to her. She said that “they” told her she could not leave the room until they

got their money and that “they” threatened to kill her if she did not pay but, nevertheless,

they would not let her contact her family to arrange for payment. Zavaleta said she could

not leave the room or even look out the window, and that she was afraid “because there

were three of them” and they were “very drugged.” Defendant’s accomplice at one point

told her not to look out the window “or I’m going to f[---] you up.” She understood that

she could be hurt if defendant or his companions did not get their money, and that she

could not have left the motel room if she had wanted to because until they got the money,

they would not allow her to leave. Further, she said, “And you know that [i.e., that you

would not be allowed to leave without paying] when you cross the border because you

know what you’re getting into if you don’t have the money. . . [¶] . . . they would kill

me.” Zavaleta said that she left the room only because it appeared that they were

preparing to take her somewhere else and that she was afraid she would be raped if they

did take her.

       If this had been the extent of Zavaleta’s testimony, it would unquestionably

constitute substantial evidence that she remained in the room out of fear that the men

would harm her as they had threatened and as she knew based on her prior knowledge of

how coyotes operate. However, Zavaleta went on to say that no one threatened to kill her

or hurt her if she left the motel room, that she did not really want to leave because she

had the money to pay them, and that she wanted to pay them because she is a “person

                                             18
with honor,” i.e., someone who pays her debts. Zavaleta said that she would not hesitate

to leave the room if it were a matter of saving her life, but that leaving the room would

risk her life because they would think she did not want to pay. Then again, she said she

did not think about whether they would hurt her if she left the room. Finally, Zavaleta

said she was afraid of their behavior, but they were not keeping her in the room against

her will. These contradictions arguably call into question whether Zavaleta’s initial

assertion that she was threatened and held against her will is truly substantial evidence.

       Nevertheless, the jury could properly conclude from Zavaleta’s testimony and

other evidence that she was indeed held against her will by threats of harm if she left. A

witness’s testimony consists of more than words. It also consists of demeanor, body

language and other intangibles from which jurors can draw inferences that are not

apparent from the transcript. (Meiner v. Ford Motor Co. (1971) 17 Cal.App.3d 127, 140-

141; Evid. Code, § 780 [the court or jury may consider in determining the credibility of a

witness any matter that has any tendency in reason to prove or disprove the truthfulness

of his testimony at the hearing, including but not limited to a witness’s “demeanor while

testifying and the manner in which he testifies”].) A witness’s demeanor is itself “‘“part

of the evidence”’” and is “‘of considerable legal consequence.’” (Elkins v. Superior

Court (2007) 41 Cal.4th 1337, 1358.) However, because a reviewing court does not see

the witness testify, we cannot assess the effect of the witness’s demeanor on the verdict

and must defer to the jury to determine the witness’s credibility. (Meiner v. Ford

Motor Co., at pp. 140-141; People v. Young (2005) 34 Cal.4th 1149, 1181 [appellate

court does not resolve questions of witness credibility].) For these reasons, we cannot

                                             19
look merely at Zavaleta’s transcribed words to determine whether her testimony

rationally supports the conclusion that she was held against her will by menace.

Zavaleta’s demeanor on the witness stand may have caused jurors to conclude that she

was equivocating because she was afraid of repercussions from the “bosses” in Mexico if

she testified forthrightly that defendant and his companions threatened to kill her if she

did not pay.

       This inference is also supported by other evidence: Dario Hernandez, a deputy

sheriff and expert on human smuggling testified that it is fairly common knowledge

among people who use coyotes to transport them into the United States that they are

likely to be killed if they do not pay. And, victim Garcia also testified that he was aware

that coyotes could be dangerous. Further, Zavaleta said her parents, who were still in

Mexico, were being asked about the money by the person who “recommended” her, and

that she feared for her family’s safety. From all of this evidence, jurors could reasonably

infer that the part of Zavaleta’s testimony in which she said she knew she could not leave

without paying and that she would be at risk of injury or death if she did leave before

they got their money was truthful, and that her later denial that she was being held against

her will was false.

       In addition, in determining whether there has been an express or implied threat of

harm, the trier of fact “‘properly may consider a victim’s fear.’” (People v. Newman,

supra, 238 Cal.App.4th at p. 121.) Garcia testified that when Zavaleta opened the door

part way and asked for his help, she was very scared and was shaking. She told him that

she had been kidnapped. She later said “they” had threatened her and that “they” were

                                             20
“very bad.” Gonzalez testified that when Garcia brought Zavaleta into the office,

Zavaleta told her she was “scared for her life,” and that she was crying and yelling.

Zavaleta said that “they” were going to “do something” to her, and that they would not let

her out. Zavaleta told Gonzalez that “she was in there against her own will.” She was

“really, really bad.” She was crying and yelling and hugging Gonzalez and asking

Gonzalez to “please help her.” Gonzalez testified that Zavaleta was “really afraid.” Even

though Zavaleta’s testimony may have been equivocal as to whether she was restrained

against her will or merely waiting patiently for someone to pay defendant, the degree of

fear she displayed to Gonzalez and to Garcia is substantial evidence from which the jury

could rationally infer that she was kept in the motel room by fear instigated by defendant

and his companions, even in the absence of any evidence as to the particular threats or

intimidation that caused Zavaleta to fear for her life.

       Taken all together, despite Zavaleta’s denial that she was held against her will, the

evidence rationally supports the conclusion that she was restrained by means of express

or implied threats of harm. Accordingly, defendant’s contention fails.

                                               4.

                  ANY INSTRUCTIONAL ERROR WAS HARMLESS

       Defendant contends that the standard jury instruction on false imprisonment,

which was given in his trial, is deficient because it fails to instruct the jury that it must

determine whether the victim was unlawfully restrained for an appreciable length of time.

He contends that this constitutes the omission of a necessary statutory element and that



                                               21
the error is reversible per se or, in the alternative, under the harmless error analysis of

Chapman v. California (1967) 386 U.S. 18.

       We disagree with defendant’s essential premise that confinement for an

appreciable length of time is an element of criminal false imprisonment. In Fermino v.

Fedco, Inc. (1994) 7 Cal.4th 701, the California Supreme Court stated: “The crime of

false imprisonment is defined by Penal Code section 236 as the ‘unlawful violation of the

personal liberty of another.’ The tort is identically defined. [Citation.] As we recently

formulated it, the tort consists of the ‘“nonconsensual, intentional confinement of a

person, without lawful privilege, for an appreciable length of time, however short.”’

[Citation.] That length of time can be as brief as 15 minutes.” (Id. at p. 715.) Defendant

relies on that statement to contend that “an appreciable length of time” is an element of

the criminal offense. We note, however, that in Fermino v. Fedco, Inc., the court’s

reference to the criminal offense was by way of introduction to a discussion of the tort of

false imprisonment and that the opinion does not address any contention that duration is

or is not an element of the criminal offense. A case “‘is not authority for everything said

in the court’s opinion but only “for the points actually involved and actually decided.”’

[Citation.]” (People v. Knoller (2007) 41 Cal.4th 139, 154-155.) Accordingly, the

statement defendant relies upon is dictum. Moreover, it is inconsistent with the court’s

prior holding that “‘[t]he offense of false imprisonment consists of two elements, the

violation of another’s personal liberty, and the unlawfulness of such violation.’

[Citation.]” (People v. Agnew (1940) 16 Cal.2d 655, 664; accord, People v. Zilbauer



                                              22
(1955) 44 Cal.2d 43, 51.) We have found no cases containing an authoritative holding

that an appreciable time element is part of section 422.

       In any event, even if we assume that an appreciable length of time is an element of

section 422, the omission of that element from the jury instruction does not require

reversal. Failure to instruct on a single element of an offense may be found harmless

under the federal Constitution if it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained. (Neder v. United States (1999)

527 U.S. 1, 15, citing Chapman v. California, supra, 386 U.S. at p. 24.) Only in rare

cases can such an error be deemed structural, requiring reversal without regard to

prejudice. (People v. Mil (2012) 53 Cal.4th 400, 416-417.)

       “Neder instructs us to ‘conduct a thorough examination of the record. If, at the

end of that examination, the court cannot conclude beyond a reasonable doubt that the

jury verdict would have been the same absent the error—for example, where the

defendant contested the omitted element and raised evidence sufficient to support a

contrary finding—it should not find the error harmless.’ (Neder, supra, 527 U.S. at

p. 19.)” (People v. Mil, supra, 53 Cal.4th at p. 417.) “On the other hand, instructional

error is harmless ‘where a reviewing court concludes beyond a reasonable doubt that the

omitted element was uncontested and supported by overwhelming evidence.’ [Citations.]

Our task, then, is to determine ‘whether the record contains evidence that could rationally

lead to a contrary finding with respect to the omitted element.’ [Citation.]” (Ibid.)




                                            23
       Here, defendant did not contest the sufficiency of the length of time Zavaleta was

detained against her will. Rather, his contention was that there was no violence or

menace and that Zavaleta was not involuntarily detained in any event. He did not adduce

any evidence pertaining to the length of time she was detained. But there was

overwhelming evidence that she was detained illegally for an appreciable length of time.

“Appreciable” means merely “large enough to be noticed or measured.” (<http://www.

merriam-webster.com/dictionary/appreciable> [as of June 10, 2016].) Here, the evidence

showed that Zavaleta spent the night at the motel and did not leave the room until the

following morning, when she asked Garcia to help her. By any measure, this is an

appreciable length of time, and defendant does not argue otherwise. Consequently, we

can say beyond a reasonable doubt that had the jury been asked to decide whether

Zavaleta was held against her will for an appreciable length of time, it would have found

that she was. Accordingly, the omission of the time element from the instruction did not

contribute to the verdict.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              McKINSTER
                                                                                            J.
We concur:

RAMIREZ
                        P. J.

CODRINGTON
                             J.

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