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Name: People v. Wardell
Case #: H031285
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/20/2008

A defendant’s acts or words that either expressly or impliedly threaten harm will suffice to establish the element of violence necessary for felony false imprisonment. After robbing a bank, appellant fled from the police and entered a house where the occupant was present. Although carrying his gun in his hand, appellant kept it pointed at the ground and never pointed it at the victim during the approximate two-hour ordeal, during which appellant directed the victim to go from one room to another and to calm down and relax. The appellate court rejected appellant’s claim that there was insufficient evidence to support the jury’s guilty verdict of felony false imprisonment, finding that in holding a gun in his hand throughout the imprisonment, appellant clearly implied a threat. (Distinguishing and disagreeing with People v. Matian (1995) 35 Cal.App.4th 480.)
Penal Code section 12022.5, subdivision (a) (personal use of a firearm) requires proof of something more than a bare potential for use but does not require proof that the gun is pointed at the victim or that defendant issued explicit threats of harm with the gun. The court rejected appellant’s claim that the evidence did not support a use enhancement, noting that throughout the imprisonment, appellant gripped the gun and always kept the gun between himself and the victim as he directed the victim about. (Distinguishing People v. Hays (1983) 147 Cal.App.3d 534 and Alvarado v. Superior Court (2007) 146 Cal.App.4th 993.)
Penal Code section 12022.5, subdivision (a), is a general intent enhancement that is adequately defined by jury instruction CALCRIM 252. (In re Tameka C. (2000) 22 Cal.4th 190.)