People v. Cabezas CA5

Filed 10/28/20 P. v. Cabezas CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078832
Plaintiff and Respondent,
(Super. Ct. No. SF019056A)
v.
EUSEBIO REZA CABEZAS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer
Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Detjen, J. and Smith, J.
Defendant Eusebio Reza Cabezas stands convicted of false imprisonment and
three sex offenses. On appeal, he contends the evidence was insufficient for the jury to
find that he effected the false imprisonment by violence or menace. We affirm.
PROCEDURAL SUMMARY
On January 19, 2018,1 the Kern County District Attorney charged defendant with
committing a lewd and lascivious act with a child more than 10 years younger than
defendant (Pen. Code, § 288, subds. (a)(1), (c)(1));2 count 1), annoying or molesting a
minor (§ 647.6, subd. (a)(1); count 2), false imprisonment by violence or menace
(§§ 236, 237, subd. (a); count 3), committing a lewd and lascivious act with a child under
the age of 14 years (§ 288, subd. (a); count 4), sexual battery (§ 243.4, subd. (e)(1);
count 5), and attempted sexual battery (§§ 664, 243.4, subd. (e)(1); count 6).
On August 22, the court dismissed counts 2 and 6 on the prosecutor’s motion.
On August 27, the jury found defendant guilty of counts 1, 3, 4, and 5.
On January 23, 2019, the trial court sentenced defendant to seven years
four months in prison as follows: on count 4, the middle term of six years; on both
counts 1 and 3, eight consecutive months; and on count 5, 180 concurrent days in jail.
On January 31, 2019, defendant filed a notice of appeal.
FACTUAL SUMMARY3
Prosecutor’s Case
Doe was born on December 29, 1999. She had been close friends with
defendant’s daughter, Maria, since both were young children. She spent time with Maria
1 All further dates refer to the year 2018 unless otherwise stated.
2 All further statutory references are to the Penal Code.
3 Defendant was convicted of offenses against multiple victims. Because defendant
only challenges his conviction on count 3, felony false imprisonment of Jane Doe
Number 1 (Doe), we limit the factual summary to facts related to defendant’s crimes
against Doe.
2.
at defendant’s house and spent the night at defendant’s house at least twice. When Doe
was about 13 years old, she was alone with defendant and he placed and left his hand on
her mid-thigh while they watched television and talked. Defendant touched her thigh at
least two more times when she was in his house.
Starting in her freshman year of high school, defendant started hugging Doe in a
way that made her uncomfortable. He would place his hands around her waist and, on at
least two occasions, touched her buttocks. Around the same time, defendant began
slapping Doe on the buttocks when she was at his house. In total, he slapped her buttocks
between five and 10 times.
In her freshman and sophomore years of high school, defendant drove Doe to the
dentist between three and five times. On one of the return trips, while Doe was wearing
capri pants, defendant placed his hand on her mid-thigh for about a minute and asked her
why she did not wear “ ‘short dresses and shorts or stuff like that.’ ”
One day in her sophomore or beginning of her junior year of high school, when
she was 15 or 16 years old, Doe was running late and did not have a ride to school. That
day she was wearing a long-sleeved yellow dress that went to her knees. As she walked
toward her school, she saw defendant driving down the same street. He rolled down his
window and asked if she needed a ride to school and she accepted. As defendant drove,
he asked her why she did not come over to his house as often as she used to and why she
did not wear “ ‘shorter stuff or shorter dresses’ ” when she came over to his house. At
some point during the drive, he placed his right hand on the exposed skin of her left mid-
thigh and moved his hand up and down, along her leg.
When defendant and Doe reached her school, defendant locked the car door. He
asked her again why she was not “ ‘wearing any more pretty things or shorter things.’ ”
Doe reached for the door and defendant “ ‘pulled [her] head down,’ ” striking her head
against the gear shift. She then saw that his belt was unbuckled, which scared her, and
she tried to exit the car again. Defendant grabbed her dress as she tried to exit and it
3.
ripped. Doe attempted to push defendant back and struck him in the mouth, causing him
to bleed. Defendant pulled Doe again, getting blood on her dress, and touched her vagina
with his hand. Doe struck defendant again, unlocked the door, exited the car, and ran to
the school office.
Kern County Sheriff’s Deputy Jessie Alvarez arranged a pretext phone call
between defendant and Doe. During that call, Doe asked defendant why he touched her
when he gave her a ride to school. Defendant responded that he was “ ‘just playing with
[her,]’ ” was “ ‘[j]ust joking[,]’ ” that she was a girl to him, and that he respected her. He
acknowledged “ ‘spank[ing]’ ” Doe, “ ‘tickl[ing]’ ” her knees or legs, and “ ‘pull[ing]
[her] pants’ ” but insisted that he was playing or joking. When Doe asked defendant
about him pulling her head down when he gave her a ride to school, he told her not to
think about it and to forget it.
Defendant’s Case
Defendant called nine family members and friends to testify. They all testified
that they had never seen him touch anyone inappropriately. Defendant’s wife testified
that Doe was untrustworthy because she stole from her three times and stole cosmetics
from defendant’s daughters, and said she was going to make defendant pay because she
got in trouble for drinking alcohol at a party at defendant’s house. Defendant’s son also
testified that Doe was caught drinking and was untrustworthy because she was caught
stealing.
Defendant testified in his own defense. Doe came by defendant’s house nearly
every weekend, and he drove her to school many times and to the dentist at least once.
He testified that he never touched Doe inappropriately or made inappropriate comments
to her during car rides or at his home. On one occasion, defendant tickled Doe on the
knee on the way to school to tease her about the fact that her jeans were ripped.
Defendant denied ever having kicked or spanked Doe. His statement during the pretext
call that he kicked or spanked Doe was false.
4.
Defendant testified that Doe was mad at him because he told her parents that she
was drinking alcohol at a party at his house.
DISCUSSION
Defendant concedes that the evidence was sufficient to support a conviction for
misdemeanor false imprisonment. However, he argues that the evidence was insufficient
to establish that he used “violence, i.e., the exercise of physical force used to restrain” or
“menace, i.e., a threat of harm, express or implied by word or act,” at least one of which
was required to elevate the conviction from misdemeanor to felony false imprisonment.
Defendant’s contention is without merit. The verdict on count 3 was supported by
sufficient evidence.
“In reviewing a challenge to the sufficiency of the evidence under the due process
clause of the Fourteenth Amendment to the United States Constitution and/or the due
process clause of article I, section 15 of the California Constitution, we review the entire
record in the light most favorable to the judgment 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 have found the defendant guilty beyond a
reasonable doubt.” (People v. Cole (2004) 33 Cal.4th 1158, 1212; accord, People v.
Albillar (2010) 51 Cal.4th 47, 59–60.) “We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the evidence. [Citation.]
If the circumstances reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding.” (People v. Albillar, supra, at p. 60.) It is well-settled
that “ ‘[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.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
False imprisonment is the unlawful violation of the liberty of another, compelling
the victim to go where he or she does not wish to go or remain where he or she does not
5.
wish to remain. (§ 236; People v. Bamba (1997) 58 Cal.App.4th 1113, 1121.) False
imprisonment “ ‘effected by violence, menace, fraud, or deceit’ ” is punishable as a
felony. (§ 237, subd. (a); see People v. Reed (2000) 78 Cal.App.4th 274, 280 (Reed).)
“ ‘ “Violence”… means the “ ‘the exercise of physical force used to restrain over and
above the force reasonably necessary to effect such restraint.’ ” ’ [Citations.] ‘Menace’
is defined as ‘ “ ‘a threat of harm express or implied by word or act.’ ” ’ ” (Reed, supra,
at p. 280, italics added.)
The evidence supports defendant’s conviction because there was substantial
evidence of violence.4
The parties both discuss People v. Castro (2006) 138 Cal.App.4th 137—the
People contend that Castro is instructive, and defendant attempts to distinguish Castro.
We agree with the People. In Castro, the defendant tried to convince the victim to enter
his car and propositioned her. (Id. at p. 141.) As the victim walked away, the defendant
grabbed and held her by the forearm. (Ibid.) The defendant turned the victim around by
the wrist and “ ‘gave [her] a little tug, like a pull toward him’ ” and his car. The
defendant’s pull caused the victim to take a “ ‘couple of steps’ ” toward his car before she
pulled away and ran. (Id. at pp. 141–142.) The Castro court explained that grabbing the
victim and turning her around amounted only to misdemeanor false imprisonment. (Id. at
p. 143.) However, when the defendant “pulled her toward his car, an act more than what
was required to stop her and keep her where she was located[,]” he committed felony
false imprisonment by using “force above that required for misdemeanor false
imprisonment.” (Ibid.)
4 We do not address whether sufficient evidence of menace existed to sustain the
conviction because we find the evidence of violence to be sufficient to sustain the
conviction, because the verdict form indicated that the jury found defendant guilty of
“[f]alse imprisonment with violence,” and because the People do not argue that defendant
used menace to effect the false imprisonment.
6.
In this case, when defendant gave Doe a ride to school, he did not just grab and
hold her in the passenger seat. According to Doe’s testimony, when she tried to open the
locked passenger door, defendant grabbed her by her hair, “pulled [her] head down, and
he … pushed [her] head down, and that’s where [she] hit [her]self with the” gear shift.
At that point, she saw that his belt was unbuckled and again attempted to exit the car. As
she did so, defendant pulled and ripped her dress. Doe then struck defendant in the
mouth and again attempted to exit the car. Defendant pulled Doe for a third time and
grabbed her vagina.
When defendant initially grabbed Doe as she attempted to exit the locked
passenger door and pulled her head down and toward the driver side of the car (causing
her head to strike the gear shift), he used force above that required to keep her where she
was located. Defendant also used more force than necessary to restrain Doe when he
grabbed her vagina as she again tried to escape through the locked passenger door.
(People v. Ghipriel (2016) 1 Cal.App.5th 828, 834 [touching the victim’s breasts and
vagina supported false imprisonment convictions because those acts “were not needed to
restrain or otherwise violate [the victim’s] liberty”].)
Defendant’s arguments to the contrary are unconvincing. Defendant argues that
no “ ‘ “ ‘physical force [was] used to restrain over and above the force reasonably
necessary to effect such restraint’ ” ’ ” because he used force “while [Doe] was trying to
escape from the car.” However, the fact that Doe was attempting to escape when
defendant used force is not dispositive of whether the force used was more than necessary
to effect the restraint. Based on Doe’s testimony, defendant pulled her head further into
the vehicle and touched her vagina. That evidence was sufficient to support a finding that
defendant used more than the force necessary to keep Doe in the passenger seat of the
car.
Defendant further notes that during the restraint he did not use a weapon, did not
move Doe from the car in which he first confined her, and did not punch or kick her
7.
while someone else moved her. Although the use of a weapon, (Reed, supra, 78
Cal.App.4th at p. 281 [use of a weapon to effectuate felony false imprisonment was
sufficient to establish violence or menace]; People v. Williams (2017) 7 Cal.App.5th 644,
672 [same]) striking a victim, (see People v. Fernandez (1994) 26 Cal.App.4th 710, 713,
718 [restraining the victim while others applied more than 20 kicks was sufficient force
to constitute felony false imprisonment]) or moving a victim toward an intended place of
imprisonment (People v. Castro, supra, 138 Cal.App.4th at pp. 141–142), would all
support a finding of violence or menace, the absence of those facts does not impact our
conclusion that the force used was more than necessary to keep Doe where she was
located.
DISPOSITION
The judgment is affirmed.
8.