Filed 7/21/16
                           CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                      D069936

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. SWF1200303)

MOURIS M. GHIPRIEL,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of Riverside County, Angel M.

Bermudez, Judge. Affirmed.



        Steven A. Brody, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony

DaSilva, Deputy Attorneys General, for Plaintiff and Respondent.

        False imprisonment that involves no more in the way of force or menace than is

needed to restrain the victim is a misdemeanor. Felony, or aggravated, false
imprisonment requires proof of force greater than is needed to restrain the victim. Here,

the evidence showed defendant Mouris M. Ghipriel, who weighs 240 pounds, kept one of

his employees, who weighs approximately 100 pounds, in a very small office and

sexually assaulted her. We reject Ghipriel's contention this record does not support his

three felony false imprisonment convictions. We also reject Ghipriel's contention the

trial court erred in admitting testimony from the victim with respect to his attempt to

digitally penetrate her.

       Accordingly, we affirm Ghipriel's convictions.

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. Doe's Employment at Ghipriel's Restaurant

       In March 2011, Jane Doe was 19 years old and had just graduated from high

school. Doe was five feet tall and weighed 100 pounds. At that point in time, Doe began

working for Ghipriel at a steak house he owned and operated in Hemet, California.

Ghipriel was 54 years old, five feet eight inches tall, and weighed 240 pounds.

       Doe began working as a dishwasher at Ghipriel's restaurant. While washing

dishes, Ghipriel would occasionally rub Doe's shoulders or walk by and grab her by her

hip. In May 2011, Doe was promoted from dishwashing to a position as a hostess, where

she stood behind a small podium. On one occasion while Doe was standing at the

podium, Ghipriel walked up behind her, put his hand under her V-neck shirt, reached

across her chest and grabbed her left breast. Doe ducked down so that she could get

Ghipriel's hand out of her shirt, told Ghipriel to stop and walked away.

       Over the next several weeks, Ghipriel made a continuing series of sexually

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suggestive advances, of varying levels of crudeness, on Doe. As Ghipriel would walk by

Doe at the podium when she was bending down to wipe menus or a counter, he would

graze her buttocks with his hand; he would do the same as she was standing at different

places in the restaurant. In response, Doe would give Ghipriel a dirty look and tell him to

stop. On another occasion, after discussing his plan to convert part of the restaurant to a

hookah bar and have Doe manage it, Ghipriel went to the bar, had some drinks, came

back to the hostess podium and kissed the corner of Doe's mouth, leaving saliva on it.

       When Doe asked to be promoted to a server's position where she could earn tips,

Ghipriel told her she would have "to do stuff" with him, which she interpreted as sex acts.

By way of hand gestures on one occasion and later by way of an express request, Ghipriel

asked Doe to perform oral sex on him.

       B. False Imprisonment and Sexual Assaults

       While Doe was working as a hostess, Ghipriel regularly called her back to meet

him in his very small office. At most only two or three people, including Ghipriel, could

fit in the office at any given time, and many employees either stood or sat outside the

office when talking to Ghipriel while he was in the office.

       When called to the office, Doe would try to simply stand in the doorway, but, on a

number of occasions, Ghipriel would grab Doe's wrist, pull her into to the office and lock

the door. Doe recalled five occasions in which, with the door to his office closed,

Ghipriel cornered her in the office with his much larger body, touched her breasts

underneath her brassiere, touched her buttocks and attempted to kiss her.

       On three occasions, while Ghipriel had Doe pinned against the wall of his office,

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he exposed his penis and began masturbating; on two of those occasions he ejaculated,

once on Doe's shoe and once on the floor. On one occasion, Ghipriel pulled up Doe's

shirt and touched her stomach with his penis.

       The last occasion on which Ghipriel called Doe into his office occurred on

October 31, 2011. After Ghipriel maneuvered Doe against the wall and after trying to

pull her pants down, he put his hand down her pants, under her panties and touched the

lips of her vagina. According to Doe, Ghipriel was unable to get his hands into her

vagina because she pushed him away.

       For a number of months, Doe had been telling her friend and her roommate about

Ghipriel's sexual assaults. Doe testified that she repeatedly went to Ghipriel's office and

endured his sexual conduct because she did not want to get fired. However, following

the October 31, 2011 assault, Doe left the restaurant before her shift was over and did not

return to work. On November 5, 2011, she went to the local police department and

reported what had occurred. After conducting an investigation, police arrested Ghipriel.

       C. Trial Court Proceedings

       Ghipriel was convicted of three counts of sexual battery (Pen. Code,1 § 243.4,

subd. (a)), three counts of felony false imprisonment (§§ 236, 237, subd. (a)), three

counts of indecent exposure (§ 314, subd. (1)), one count of assault with intent to

penetrate (§ 220, subd. (a)), and two counts of battery for purposes of sexual arousal

(§ 243, subd. (e)(1)). The trial court sentenced Ghipriel to a term of eight years in state



1      All further statutory references are to the Penal Code.
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prison.

          Ghipriel filed a timely notice of appeal.

                                         DISCUSSION

                                                 I

          In his first argument on appeal, Ghipriel contends none of his false imprisonment

convictions were aggravated, and, hence, each false imprisonment conviction should be

reduced to a misdemeanor. We reject these contentions.

          A. Sufficiency of the Evidence

          "When a jury's verdict is attacked on the ground that there is no substantial

evidence to sustain it, the power of an appellate court begins and ends with the

determination as to whether, on the entire record, there is any substantial evidence,

contradicted or uncontradicted, which will support it, and when two or more inferences

can reasonably be deduced from the facts, a reviewing court is without power to

substitute its deductions for those of the jury. It is of no consequence that the jury

believing other evidence, or drawing different inferences, might have reached a contrary

conclusion." (People v. Brown (1984) 150 Cal.App.3d 968, 970.)

          B. False Imprisonment

          Section 236 provides: "False imprisonment is the unlawful violation of the

personal liberty of another." Section 237, subdivision (a) provides: "False imprisonment

is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment

in the county jail for not more than one year, or by both that fine and imprisonment.

[Misdemeanor false imprisonment.] If the false imprisonment be effected by violence,

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menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison.

[Felony false imprisonment.]"

       "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."

(People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462.)

       Like Ghipriel, the appellant in People v. Castro (2006) 138 Cal.App.4th 137

(Castro) relied on the holding and reasoning of People v. Matian (1995) 35 Cal.App.4th

480, 485-487 (Matian) in arguing that there was insufficient evidence he used the

additional force or menace required to establish felony false imprisonment. In Matian,

the defendant initially sexually abused his victim and, in particular, squeezed her breast

with enough force to cause her pain and possible bruising; he then, by way of grabbing

her and glaring at her, kept her from leaving the vicinity of his office. The court in

Matian found these circumstances did not constitute felony false imprisonment because

they did not involve the use of a deadly weapon or any express threat of harm. (Id. at

pp. 486-487.)

       In disagreeing with Matian, the court in Castro stated: "We have trouble

understanding the conclusion the Court of Appeal reached in Matian. While the opinion

does not discuss the underlying sexual crimes, it is clear that the false imprisonment

followed immediately after the forcible sexual assaults during which appellant squeezed

the victim's breast so hard as to cause her pain and possibly even bruising. Thereafter,

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the perpetrator yelled at the victim 'nothing happened,' attempting to intimidate her into

not reporting the incident. He then told her to wash her face and she took a seat nearby,

within view of the perpetrator who was in his office. When the victim attempted to leave,

the perpetrator glared at her and got out of his chair as if he was going to approach her.

Given the immediately preceding sexual assaults, and the command to her that 'nothing

happened,' it is reasonable to conclude the victim was intimidated by the perpetrator. In

fact, she testified that she was afraid and did not want him to touch her again. We have

no problem with concluding the evidence addressed in the published portion of the

opinion supported the conviction for felony false imprisonment by menace, if not

violence. Thus, we do not agree with the result in Matian, or with appellant's argument

that comparison with the facts in Matian requires reversal of his conviction for felony

false imprisonment." (Castro, supra, 138 Cal.App.4th at p. 143.)

       In Castro, the victim was walking to a bus stop on her way to school when the

defendant grabbed her by the arm, turned her around and pulled her toward his car. In

finding that this was sufficient to establish felony false imprisonment, the court stated:

"In the present case, 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. . . . [T]he

evidence that appellant used force to pull the victim toward his car was sufficient to

establish force above that required for misdemeanor false imprisonment." (Castro,



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supra, 138 Cal.App.4th at p. 143.)2

       C. Analysis

       We agree with the court's opinion in Castro. The additional force required for

felony false imprisonment, as opposed to misdemeanor false imprisonment, may come in

the form, as in Castro, of simply pulling a victim toward a location when the victim's

liberty has already been violated. (Castro, supra, 138 Cal.App.4th at p. 143.) However,

as the court in Castro also indicated, such additional and unnecessary force may also

arise from sexual assaults suffered by the victim during the course of the defendant's

contact with the victim. (Ibid.) In this regard, like the court in Castro, as well as the

courts that decided People v. Islas, supra, 210 Cal.App.4th at pages 125-126, People v.

Wardell, supra, 162 Cal.App.4th at page 1491 and People v. Aispuro, supra, 157

Cal.App.4th at page 1513, we disagree with the reasoning and result in Matian.

       Here, a host of circumstances demonstrate that Ghipriel's sexual assaults and

conduct support each of his three felony false imprisonment convictions. Plainly,

touching Doe's breasts, masturbating in front of her, rubbing his penis on her stomach,

and putting his hands down her pants and touching the lips of vagina, were not needed to

restrain or otherwise violate Doe's liberty. Importantly, Doe was vulnerable in a number


2      In addition to Castro, the Matian opinion has been the subject of criticism and
disagreement by the courts in People v. Islas (2013) 210 Cal.App.4th 116, 125-126,
People v. Wardell (2008) 162 Cal.App.4th 1484, 1491 and People v. Aispuro (2007) 157
Cal.App.4th 1509, 1513. "An express or implied threat of harm does not require the use
of a deadly weapon or an express verbal threat to do additional harm. Threats can be
exhibited in a myriad number of ways, verbally and by conduct." (People v. Aispuro,
supra, at p. 1513.)

                                              8
of respects: she was less than half his age, she weighed less than half of Ghipriel's 240

pounds, she was trapped in his small office, and he was her employer at a job she was

afraid of losing. In addition to the fact that on at least three separate occasions the sex

acts Ghipriel committed involved actual physical contact and Doe in no way consented to

them, all the acts were profoundly degrading and demeaning. Given the character of the

acts and Doe's vulnerability on so many levels, Ghipriel's sexual conduct no doubt played

a material role in maintaining control over her. Thus, in light of all these circumstances,

a jury could reasonably conclude that in each instance charged as felony false

imprisonment, Ghipriel used force beyond that needed to restrain Doe and hence effected

the violation of her liberty by violence within the meaning of section 236, subdivision (a).

                                              II

       In his second argument on appeal, Ghipriel argues the trial court erred in

permitting Doe to testify with respect to his intention when he put his hands down her

pants and touched the lips of her vagina. We find no error.

       A. Doe's Testimony

       As we have discussed, at trial Doe testified without objection that on October 31,

2011, Ghipriel called her into his office, trapped her against a wall, and put his hands

down her pants and touched the lips of her vagina. Doe testified that when Ghipriel kept

sticking his hands down her pants and trying to unbutton her pants, at least twice she told

him to stop. The prosecutor then asked Doe: "So was he able, from what you feel, to get

his hands inside your vagina?" Doe replied in the negative, and Ghipriel's counsel

objected on the grounds the question assumed facts not in evidence. The trial court

                                              9
overruled the objection, and Doe testified Ghipriel was unable to put his hand inside her

vagina because she was able to push him away with her arms, though she was scared.

       B. Analysis

       On appeal, Ghipriel argues the prosecutor's question was improper because it

assumed there was evidence he intended to put his hand or fingers in Doe's vagina and

that further error occurred when Doe was permitted to testify that she was able to prevent

him from doing so.

       We find no error. We agree that in describing what occurred both the prosecutor

and Doe assumed that Ghipriel intended to digitally penetrate her vagina. However, their

assumption was supported by substantial circumstantial evidence in the record. At the

time Ghipriel put his hands down Doe's pants, he had trapped his 20-year-old employee

in his office, where he had previously subjected her to multiple sexual assaults and

advances, including ejaculating on her shoe. In putting his hands down her pants and

trying to unbutton them, Ghipriel plainly escalated his conduct and desire for

gratification. A fairly reasonable inference to be drawn from the totality of circumstances

was that, at that point, Ghipriel intended to digitally penetrate Doe and that he was only

prevented from doing because she was able to push him away.3




3       Because admission of Doe's testimony with respect to Ghipriel's attempt to
penetrate her was proper, counsel's failure to make a more detailed and renewed objection
to the testimony did not prejudice Ghipriel and will not give rise to a claim of ineffective
assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 695.)
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                                  DISCUSSION

     The judgment of conviction is affirmed.


                                               BENKE, Acting P. J.

WE CONCUR:



McDONALD, J.



O'ROURKE, J.




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