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Name: People v. Newman
Case #: B255339
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 06/26/2015

Trial court incorrectly applied Penal Code section 654 to stay one of defendant’s false imprisonment by menace convictions because the crime was an act of violence against multiple victims. Defendant robbed a fast food restaurant. During the crime he pointed his gun at several customers and told them not to leave, but did not rob them. He was convicted of robbery and two counts of false imprisonment. He received a consecutive term for one of the two false imprisonment counts; the other was stayed (Pen. Code, § 654). On appeal defendant argued that the terms for both of the false imprisonment counts should have been stayed. The prosecution countered than section 654 was inapplicable because the offenses were crimes of violence. Held: Sentence reversed. Section 654 generally prohibits multiple punishment for a single physical act that violates different provisions of law. However, there is an exception for an act of violence against multiple victims. (See Neal v. State of California (1961) 55 Cal.2d 11.) Neither Neal nor most of its progeny define “act of violence.” In determining whether an act of violence has occurred for purposes of section 654, courts consider the statute defining the crime and what happened during the commission of the offense. “Psychic violence” is violence for the multiple victims exception. Here, the Court of Appeal concluded that false imprisonment by menace in this case was an act of violence for purposes of section 654. The menace required for false imprisonment is a threat of harm either express or implied. False imprisonment by menace, especially when carried out at gunpoint, is the equivalent of robbery by fear, which is an act of violence. The trial court’s erroneous application of section 654 to one of the false imprisonment convictions requires reversal and remand for resentencing.

There was sufficient evidence of felony false imprisonment. Defendant argued there was insufficient evidence of violence to sustain felony false imprisonment and that, therefore, the use of the term “false imprisonment by violence” in the verdict form resulted in a conviction for misdemeanor false imprisonment. False imprisonment (Pen. Code, § 236) is a felony if “effected by violence, menace, fraud, or deceit.” However, the failure of the verdict form to mention false imprisonment by menace in the summary of the crime at the top of the verdict form (it was mentioned in the body) was a technical defect that may be disregarded because the jury’s intent to convict of the charged offenses was clear and well supported by the evidence.