Filed 4/22/15 P. v. Howard CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B254208

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA396467)
         v.

ARTHUR ROGERS HOWARD,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E.
Veals, Judge. Affirmed.
         Janet J. Gray, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, William H. Shin and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.


                                         ________________________
                                    INTRODUCTION


       Defendant Arthur Rodgers Howard appeals from a judgment of conviction entered
after a jury trial. Howard was charged in a second amended information with one count
of attempted kidnapping of B.C., a 13-year-old girl, with a special allegation the victim
was under the age of 14 years (Pen. Code,1 §§ 207, subd. (a), 664; count 1), and one
count of failure to register as a sex offender upon release from incarceration (§ 290.015,
subd. (a); count 3).2 The information also alleged Howard suffered two prior serious or
violent felony convictions within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)), and had previously served six separate prior
prison terms (§ 667.5, subd. (b)). The trial court granted Howard’s motion to sever the
failure to register count from the attempted kidnapping count and to bifurcate trial on the
prior conviction allegations.
       The jury found Howard not guilty of attempted kidnapping, but convicted him of
the lesser included offense of felony false imprisonment, in violation of section 237.
Howard pleaded no contest to the failure to register charge, and admitted the prior
convictions.
       On appeal, Howard contends there was not substantial evidence that he used any
more force than was necessary to restrain B.C.’s movement. We affirm. However, we
correct clerical errors on the abstract of judgment, including that Howard was convicted
of attempted kidnapping instead of felony false imprisonment and imposing a three-year
term on count 3 without doubling the term under the three strikes law. (People v.
Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order abstract of judgment
corrected to accurately reflect trial court’s oral pronouncement].)



1      All statutory references are to the Penal Code.
2     Count 2 for attempted kidnapping of B.C.’s brother Johnny C. on the same date
was dismissed prior to trial.


                                             2
                 FACTUAL AND PROCEDURAL BACKGROUND


A. Testimony at Trial
       The evidence at trial established that on the evening of April 11, 2012, Howard
approached 13-year-old B.C. near the corner of South Broadway and Florence Avenue in
Los Angeles as she was walking with her mother Paula Alonso and her younger brother.
Howard grabbed B.C.’s wrist and attempted to pull her toward the street. The primary
issue at trial was whether Howard acted with the specific intent to kidnap B.C or, as to
the lesser included offense of false imprisonment, whether Howard restrained B.C. by
violence or menace.


       1. The Prosecution’s Witnesses
              a. B.C.’s Testimony
       B.C. testified she and her mother were holding hands with her three-year-old
brother and walking down Florence Avenue towards South Broadway.3 B.C. was closest
to the street. B.C. heard a woman scream that somebody had touched her. B.C. testified
that, shortly thereafter, Howard came up and “grabbed me by my right arm. . . . He tried
to pull me away.” Howard grabbed her by the wrist.
       Howard said either “Come with me” or “Come here,” and tried to pull B.C.
towards the street. B.C. said, “No” and was “pulling against him.” B.C. was unable to
break free of Howard’s grasp, and he moved her “two to three feet.” B.C. never released
her brother’s hand because she was afraid her little brother would run away and “because
[she] was afraid of being taken away.” Howard let go of her wrist and fled when some
men at a nearby bus stop came toward them. B.C. later told police officers Howard was
“drunk” because he smelled of alcohol.




3      B.C. was 14 years old when she testified at trial.


                                             3
       B.C. identified Exhibit 2 as a photograph of herself taken on April 11, 2012 while
she was still in the area of Florence Avenue and South Broadway. B.C. testified:
       “Q. And I notice in People’s Number 2, you are pointing to your right arm. Why
are you pointing to that area?
       “A. Because it was red.
       “Q. And the redness that you are talking about, is that from when you were
grabbed?
       “A. Yes.”
       B.C. saw Howard cross the street and enter a Jack in the Box restaurant.


              b. Paula Alonso’s Testimony
       B.C.’s mother Alonso testified that while she was walking with B.C. and her son
on Florence Avenue, she saw Howard near a bus stop ahead of them. He placed his
palms on a woman’s chest and rubbed her breasts. The woman pushed Howard off of her
and boarded a bus. Alonso testified Howard then quickly turned and grabbed B.C’s arm.
He said, “Come on,” and pulled B.C. toward the street. Alonso testified she pulled on her
son and tried to grab her daughter to get her away from Howard. She told Howard in
Spanish to let go of B.C. Howard did not release B.C. and was able to pull her a distance
of “four to five feet more or less.”
       Alonso testified she was unable to break Howard’s grasp of her daughter’s arm
until two men at the nearby bus stop approached to help. At that point, Howard ran
across the street and entered a Jack in the Box restaurant. Alonso called 9-1-1. She
observed that the restaurant “kicked him out,” and Howard returned to near where she
was standing with B.C. and her son. Shortly thereafter, Alonso flagged down a passing
patrol car and directed the police officer to the entrance of an alley where she last saw
Howard. Alonso also told the officer that Howard was drunk because she could smell
alcohol on his breath and he staggered when he walked.




                                             4
               c. Manuel Munoz’s testimony
         Manuel Munoz testified he owned a store near Florence Avenue and South
Broadway. On the evening of April 11, 2012, he saw B.C. with her mother on Florence
Avenue. He testified as to B.C. that “she was scared.” At some point Munoz saw
Howard run towards an alley when the police arrived. Munoz directed the officers to the
alley.


               d. Officer Nielson’s Testimony
         Los Angeles Police Officer Bradley Nielson testified he was on patrol on the
evening of April 11, 2012, when Alonso flagged him down. Nielson got out of his car to
speak with Alonso. Alonso was “frantic” and speaking in Spanish, and Nielson could not
understand her. Munoz translated for Alonso. Nielson then entered the alley and found
Howard under a car in a parking lot adjacent to the alley. Nielson took Howard into
custody, escorted him to the patrol car, and waited for assistance from additional officers.
Alonso approached and began talking in Spanish to Munoz, who was standing with
Nielson and Howard. Nielson testified that Howard volunteered, “I didn’t touch that
bitch. I didn’t grab on the bitch.” Nielson had not mentioned touching or grabbing
anybody before Howard made the statement.
         At some point, Howard gave a false name to Nielson and was placed in the patrol
car. Although Nielson and another officer never questioned Howard about what had
occurred, Howard repeatedly asked them, “I’m suppose[d] to have grabbed the little kid’s
arm?” and then denied it.4




4      A video recording of Howard’s conversation with the two officers inside the patrol
car was played during trial for the jury, and a transcript of the recording was provided to
the jurors.


                                              5
       2. The Defense Case
       The defense called B.C. who testified she did not recall seeing Howard grab
anyone’s breast on the evening of April 11, 2012. Howard did not testify.


B. Verdict and Sentencing
       The jury acquitted Howard on the charge of attempted kidnapping and convicted
him of the lesser included offense of felony false imprisonment by force or menace
(§ 237).5 Howard then pleaded no contest to the charge of failure to register (§ 290.015,
subd. (a)). Howard also admitted the allegations as to his prior convictions, including a
prior conviction under the three strikes law.
       The trial court denied Howard’s motion to strike his prior serious felony
conviction. The court selected count 1 for felony false imprisonment by force or menace
as the base term and imposed the upper term of three years, doubled as a second strike
(§§ 667, subds. (a)(1), (b)-(i), 1170.12), for a term of six years. The court imposed one
year for each of the three prior prison terms (§ 667.5, subd. (b)) for an additional three
years. The court sentenced Howard to the upper term of three years on count 3 for failure
to register as a sex offender, to run concurrent to count 1.6 The court dismissed the three
remaining prior prison term enhancements (§ 1385). The court sentenced Howard to a
total aggregate term of nine years in state prison.




5      The trial court instructed the jury on attempted kidnapping and the lesser included
offenses of false imprisonment by force or menace and misdemeanor false imprisonment.
6       The court should have doubled the sentence on count 3 under the three strikes law
for a total of six years to run concurrent. The abstract of judgment is modified to reflect
this six-year term on count 3. Because the court ordered count 3 to run concurrent, this
change does not modify the aggregate prison sentence.


                                                6
                                       DISCUSSION


A. Standard of Review
       “Our task in deciding a challenge to the sufficiency of the evidence is a well-
established one. ‘[W]e review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
that is reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which
the People rely primarily on circumstantial evidence, the standard of review is the same.
[Citations.]’ [Citations.]” (People v. Solomon (2010) 49 Cal.4th 792, 811.)
       We presume in support of the judgment the existence of any fact the jury
reasonably could have deduced from the evidence. (People v. Zamudio (2008) 43 Cal.4th
327, 357.) In applying this standard, “‘[w]e resolve neither credibility issues nor
evidentiary conflicts . . . . [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support”’ the jury’s verdict. [Citation.]” (Ibid.)


B. There was Substantial Evidence To Support a Conviction for Felony False
Imprisonment
       Howard argues that his conviction for felony false imprisonment must be reversed
because there was insufficient evidence that he restrained B.C. by violence or menace.
We disagree.


       1. Felony false imprisonment requires proof of restraint by force or menace.
       “False imprisonment is the unlawful violation of the personal liberty of another.”
(§ 236.) The crime of false imprisonment is elevated to a felony when it is “effected by




                                               7
violence, menace, fraud, or deceit . . . .”7 (§ 237, subd. (a); People v. Islas (2012) 210
Cal.App.4th 116, 122.) As this district has held: “‘Force is an element of both felony
and misdemeanor false imprisonment. Misdemeanor false imprisonment becomes a
felony only where the force used is greater than that reasonably necessary to effect the
restraint. In such circumstances the force is defined as “violence” with the false
imprisonment effected by such violence a felony.’ [Citation.]” (People v. Castro (2006)
138 Cal.App.4th 137, 140 (Castro); accord, People v. Dominguez (2010) 180
Cal.App.4th 1351, 1357.) False imprisonment by menace entails “‘a threat of harm
express or implied by words or act.’” (People v. Islas, supra, at p. 123.)


       2. There was substantial evidence that Howard restrained B.C. by the
          use of violence.
       Howard does not contest that when he grabbed B.C’s wrist and pulled her against
her will, he violated her “personal liberty” sufficient to support a verdict of misdemeanor
false imprisonment. (See § 236; People v. Reed (2000) 78 Cal.App.4th 274, 280
[“‘“personal liberty”’” violated for false imprisonment where “‘the victim is “compelled
to remain where [she] does not wish to remain, or to go where [she] does not wish to
go”’”].) Instead, Howard contends the evidence is insufficient to show he used any more
force than was “‘reasonably necessary to effect the restraint.’” (Castro, supra, 138
Cal.App.4th at p. 140.)
       The holding in Castro is directly on point. There, the defendant made a lewd
comment to a 16-year-old girl, to which she responded, “You’re a dirty man.” The
defendant then grabbed the girl’s arm, turning her around and causing her to take a few
steps toward defendant’s car. (Castro, supra, 138 Cal.App.4th at p. 139.) In finding the



7      Felony false imprisonment is punishable by imprisonment in state prison for 16
months, two years or three years. (§§ 18, 237, subd. (a).) Misdemeanor false
imprisonment is punishable by imprisonment in the county jail not to exceed one year
and/or a fine of $1,000. (§ 237, subd. (a).)


                                              8
defendant’s conduct was sufficient to support felony false imprisonment by violence, the
court reasoned, “appellant grabbed the victim and turned her around. If that is all that
had happened, we would agree with appellant that his conduct amounted only to
misdemeanor false imprisonment. But appellant pulled her toward his car, an act more
than what was required to stop her and keep her where she was located.” (Id. at p. 143.)
       Here, Howard did more than merely restrain B.C. by grabbing her arm. It is clear
from B.C.’s testimony and the photographic evidence that Howard grabbed B.C.’s wrist
with enough force to cause her wrist to become red and to move her body two to five feet
toward the street,8 even though B.C. was pulling away from him and holding her
brother’s hand.
       Howard’s reliance on our decision in People v. Matian (1995) 35 Cal.App.4th 480
(Matian) is misplaced. Most notably, Matian involved the question of whether the
defendant committed felony false imprisonment by menace, not violence.9 In Matian,
the defendant sexually assaulted the victim, then when she started to leave, he grabbed
her arm and yelled at her, “‘nothing happened.’” The victim then sat down in a chair in
the room while the defendant glared at her from an adjacent office and got up out of his
chair to approach her every time she started to leave. (Id. at p. 485.) The victim testified
she stayed in the room because she did not want him to touch her again. (Ibid.) The
People conceded there was no evidence the defendant used violence to restrain the
victim’s liberty. (Ibid.)


8       B.C. testified that Howard moved her two to three feet toward the street; Alonso
testified that Howard moved B.C. four to five feet. Howard seeks to distinguish Castro
on the basis that the defendant in that case attempted to pull the victim toward the car and
directed a lewd conduct toward her. However, this district in Castro based its holding on
the fact the defendant moved the victim several feet toward his car, not the lewd conduct.
(Castro, supra, 138 Cal.App.4th at p. 143.) Here Howard similarly moved B.C. up to
five feet toward the street.
9     For the same reason, Howard’s reliance on two other cases involving the standard
for menace are not persuasive. (See People v. Wardell (2008) 162 Cal.App.4th 1484,
1490-1491; People v. Aispuro (2007) 157 Cal.App.4th 1509, 1513.)


                                             9
      We found that the defendant’s actions to glare at the victim while getting out of
his chair and approaching her each time she tried to leave was “inadequate to establish an
express or implied threat of harm.” (Matian, supra, 35 Cal.App.4th at pp. 486-487.)10 In
this case, we need not address the required showing for menace because, as we discuss
above, there was sufficient evidence of violence to support Howard’s conviction for
felony false imprisonment.




10      As Howard acknowledges, since we decided Matian in 1995, this district has
criticized its holding. (See Castro, supra, 138 Cal.App.4th at p. 143 [“[t]hus, we do not
agree with the result in Matian”]; People v. Islas, supra, 210 Cal.App.4th at p. 125
[“[b]ased on the criticism of Matian . . . it is clear the absence of an express threat,
weapons or physical contact with the victim is not determinative”].) Other districts have
similarly criticized the holding in Matian. (See People v. Wardell, supra, 162
Cal.App.4th at p. 1491 [“Matian’s holding has been roundly criticized, even within the
Second District”]; People v. Aispuro, supra, 157 Cal.App.4th at p. 1513 [“[w]e disagree
with the Matian court’s conclusion that such facts were inadequate to establish an express
or implied threat of harm”].) We need not revisit Matian here, however, because we find
sufficient evidence of violence to uphold the felony false imprisonment conviction.


                                           10
                                     DISPOSITION


       The judgment is affirmed. The abstract of judgment is corrected to reflect that a
jury convicted Howard of felony false imprisonment, a lesser included offense of
attempted kidnapping, and to reflect a six-year term on count 3 to run concurrent to the
sentence on count 1. The superior court is directed to prepare a corrected abstract of
judgment and to forward it to the Department of Corrections and Rehabilitation.



                                                 FEUER, J.*


We concur:



              PERLUSS, P. J.



              ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            11
