P. v. Fonseca

Filed 1/24/07 P. v. Fonseca CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
GABRIEL GUADALUPE FONSECA,
Defendant and Appellant.
B188308
(Los Angeles County
Super. Ct. No. BA271919)
APPEAL from a judgment of the Superior Court for the County of Los
Angeles. Kathleen Kennedy-Powell, Judge. Affirmed.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr.
and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
_______________

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Defendant and appellant Gabriel Fonseca appeals from the judgment entered
following a jury trial that resulted in his conviction of six counts of second-degree
robbery and three counts of felony false imprisonment.1 He contends: (1) there was
insufficient evidence to support the convictions for false imprisonment; (2) the trial
court erred in failing to sua sponte instruct on the lesser included offense of
misdemeanor false imprisonment; and (3) imposition of the upper term violated
Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We affirm.
FACTUAL AND PROCEDURAL HISTORY
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000)
23 Cal.4th 978, 1053), the evidence adduced at trial established that defendant
perpetrated a series of beauty salon robberies beginning at 12:30 p.m. on
September 24, 2004, when he robbed a hairstylist working at Jackie’s Beauty Salon.
At 1:40 p.m. that same day, defendant robbed a hairstylist at Ambriz Beauty Salon.
And at 6:00 p.m. defendant and an accomplice robbed the co-owners of Mira Mar
Beauty Salon. At about 5:20 p.m. the next day, defendant robbed two stylists working
at Leslie’s Beauty Salon. Because defendant’s contentions on appeal involve only the
events transpiring at the Mira Mar Salon, we give a detailed recitation of only the
evidence relating to that incident.
When defendant and codefendant Carlos Sillas entered the Mira Mar Beauty
Salon at about 6:00 p.m. on September 24, 2004, it was near closing time. Salon
owner Diana Carrillo was working on client Maria Martinez while co-owner Martha
1 Defendant and two others also were charged with multiple counts of robbery.
He received an eight year sentence. Codefendant Carlos Sillas was charged with
several counts of robbery and false imprisonment, and firearm enhancements. A new
trial was declared as to Sillas.

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Castillo was sitting nearby watching television. Testifying at trial, Martinez, Castillo
and Carrillo had slightly varying recollections of the ensuing events.
Martinez recalled seeing one of the two men who entered the salon point a gun
at Carrillo. Frightened, Martinez tried to get out from under the hair drier where she
was sitting, but the gunman told her to not move and threatened to harm her if she did
not comply. When the gunman later ordered Martinez to go into the bathroom located
in the back of the salon, she was in shock and did not at first comply but after the
gunman repeated the command and one of the stylists urged her to go, she complied.
Martinez testified that the gun was never pointed at her. In court, Martinez was unable
to identify defendant or Sillas as either of the two men who entered the salon that day.
Carrillo recalled that at about 10:30 or 11:00 a.m. on the day of the robbery,
defendant came into the salon and purchased a soda. When defendant returned with
Sillas at about 6:00 p.m. that day, Carrillo and Castillo were sitting in adjacent styling
chairs. After stating that Sillas wanted a haircut and needed to see a style book,
defendant went into the bathroom located in the back of the salon. After a few
minutes, while defendant was still in the bathroom, Sillas walked up to Carrillo and
put a handgun against her throat.2 Carrillo could not remember Sillas saying anything,
but she recalled Castillo asking Sillas what he wanted and telling him to take the
money. While Sillas continued to hold the gun at her throat, defendant came out of the
bathroom and went to the cash register, which was located in the front of the salon,
and looked around. Carrillo next recalled defendant ordering the three women into the
bathroom. Carrillo was frightened. As she walked into the bathroom, Carillo noticed
defendant handling her purse and Castillo’s purse, which they had left by the cash
register. The women stayed in the bathroom between 5 and 10 minutes because they
were afraid to come out. Eventually, Castillo opened the door and they all went back
2 Carrillo testified that she could not distinguish a toy gun from a real gun, but
the gun Sillas was holding appeared to be real and neither People’s exhibit 2 nor 25
looked like that gun.

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into the salon. Carrillo saw that defendant and Sillas were gone and the purses were
on the floor; Carrillo’s wallet was there, but the money and cell phone that had been in
Carrillo’s purse were missing.3 The salon’s cordless telephone also was missing.
Carrillo called 911 from another cell phone that had been charging. A few days later,
Carrillo identified defendant and Sillas as her assailants from a photographic lineup
shown to her by the police. At trial, Carrillo was 100 percent confident in her
identification.
Like Carrillo, Castillo also recalled defendant purchasing a soda at the salon in
the late morning on September 24, 2005. On one or two prior occasions, Castillo had
seen defendant and Sillas on the street in front of the salon. That day, defendant
returned to the salon at about 6:40 p.m., this time accompanied by Sillas. Castillo
recalled that neither man asked for a haircut but defendant sat down in the waiting area
across from the cash register while Sillas went into the bathroom at the back of the
salon. Castillo, meanwhile, was sitting in a styling chair watching television. But
when she heard Carrillo say, “Maria, Maria, look at the gun. Look.” Castillo looked
over and saw Sillas holding a black gun against Carillo’s neck. Defendant,
meanwhile, was still sitting in the waiting area, apparently watching the door. Sillas
said something which Castillo could not understand. Castillo said, “Leave her alone.
Leave her alone. What are you doing to her? If you want money, go over there.
That’s where the cash register is.” Sillas responded, “Oh, then you’re the one who has
the money,” and turned the gun from Carrillo toward Castillo and touched her pants
with his hand. While Sillas kept the gun trained on Castillo, defendant walked to the
cash register. Castillo’s and Carrillo’s purses were nearby. Then, Sillas walked to the
register, too. While both men were standing at the unopened cash register, Sillas
ordered the women to go into the bathroom. Castillo could not recall if Sillas was
3 Carrillo identified People’s exhibit No. 27 as the cell phone that was taken from
her purse that day. People’s exhibit No. 27 was a cell phone that was recovered by
police in a search of a second codefendant.

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pointing the gun at them when he did so, but, she testified “the case was that we were
being threatened. And so he said, ‘get in the bathroom.’ So you have to obey. You
have to obey it.” Castillo felt that harm would come to her if she did not obey. Like
Carrillo, as she walked to the bathroom Castillo noticed defendant handling the
women’s purses. Whereas Carrillo recalled that, when they came out of the bathroom
about five minutes later the purses were on the floor but their contents had been taken,
Castillo recalled that the purses themselves were gone. Running outside the salon,
Castillo did not see defendant or Sillas, but announced to everyone there that they had
been robbed. Two drunks standing outside the salon said, “Oh, they left. They left.”
A few days later, Castillo identified defendant from a photographic lineup shown to
her by the police.
DISCUSSION
A. Substantial Evidence Supports the Conviction for False Imprisonment By
Violence
Defendant contends his conviction for felony false imprisonment of Carillo,
Castillo and Martinez during the robbery at the Mira Mar Salon is not supported by
substantial evidence. As we understand his argument it is twofold: (a) the evidence
did not establish a use of such force as would elevate the crime from a misdemeanor to
a felony; and (b) even assuming there was force used, there was no evidence that
defendant personally used any force to induce the women to go into the bathroom.
Both arguments are without merit.
In accordance with the usual rules for addressing a challenge to the sufficiency
of the evidence, we “examine the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court
presumes in support of the judgment the existence of every fact the trier could

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reasonably deduce from the evidence. [Citations.] The same standard applies when
the conviction rests primarily on circumstantial evidence. [Citation.] Although it is
the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible
of two reasonable interpretations, one of which suggests guilt and the other innocence,
it is the jury, not the appellate court that must be convinced of the defendant’s guilt
beyond a reasonable doubt. [Citation.] ‘ “If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the circumstances might
also reasonably be reconciled with a contrary finding does not warrant a reversal of the
judgment. [Citation.]” ’ [Citation.]” (Kraft, supra, 23 Cal.4th at pp. 1053-1054.)
1. There Was Substantial Evidence of Menace
Penal Code section 236 defines misdemeanor false imprisonment as “the
unlawful violation of the personal liberty of another.” “The misdemeanor offense
requires no force beyond that necessary to restrain the victim. All that is necessary is
that ‘ “the individual be restrained of his liberty without any sufficient complaint or
authority therefor, and it may be accomplished by words or acts . . . which such
individual fears to disregard.” [Citations.]’ [Citation.] ‘ “Any exercise of force, or
express or implied threat of force, by which in fact the other person is deprived of his
liberty or is compelled to remain where he does not wish to remain, or to go where he
does not wish to go, is false imprisonment.” ’ [Citation.]” (People v. Babich (1993)
14 Cal.App.4th 801, 806 (Babich).)
To elevate misdemeanor false imprisonment to a felony, there must be evidence
that the crime was “effected by violence, menace, fraud, or deceit.” (Pen. Code, § 237,
subd. (a).) In this context, “menace” means a threat of harm express or implied by
word or act. (People v. Reed (2000) 78 Cal.App.4th 274, 280; People v. Bamba

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(1997) 58 Cal.App.4th 113, 1123-1124; People v. Matian (1995) 35 Cal.App.4th 480,
484 (Matian); see also CALJIC No. 9.60 (7th ed. 2003).)4
Thus, “ ‘[f]orce 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.’ ” (People
v. Castro (2006) 138 Cal.App.4th 137, 140.) In Matian, the court noted that the
reported decisions upholding convictions for felony false imprisonment involving
menace generally fell into the following two categories: (1) use of a deadly weapon5
and (2) verbal threats of harm.6
Here, although Martinez, Carrillo and Castillo remembered some details of the
robbery differently, they all agreed that there were two robbers, that one of them held a
gun to Carrillo’s neck and may have pointed it at the others as well, that one or both
robbers ordered the women to go into the bathroom, and they complied. From this
evidence, a trier of fact could reasonably infer that the robbers used the gun to compel
the women to go into the bathroom and stay there. Thus, the evidence was sufficient
4 The elements of violence, fraud or deceit were not implicated here.
5 See e.g. People v. Fosselman (1983) 33 Cal.3d 572 [defendant held a knife to
victim’s back]; People v. Zilbauer (1955) 44 Cal.2d 43 [defendant held victims at
gunpoint]; People v. Saffle (1992) 4 Cal.App.4th 434, [defendant held a knife to
victim’s throat and instructed her not to scream and to take off her clothes]; People v.
Webber (1991) 228 Cal.App.3d 1146 [defendant pointed a gun at victim’s head].
6 See e.g. People v. Raley (1992) 2 Cal.4th 870, 907 [defendant threatened the
victims, all children, that he would hit them with a leather belt that had a big metal
buckle kept nearby]; People v. Arvanites (1971) 17 Cal.App.3d 1052 [the defendants
barricaded themselves inside victim’s office, physically restrained the victim from
leaving and told him he would have nothing to smile about]; People v. Magana (1991)
230 Cal.App.3d 1117 [defendant forcibly held the rape victim’s hand as they walked
through a park and threatened to kill her when she asked to be let go]; People v. Moore
(1961) 196 Cal.App.2d 91, 99 [defendant threatened to arrest victim and take her
children away].

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to establish that the robbers used menace to restrain the women and, as such, to elevate
the offense from a misdemeanor to a felony.
2. Defendant Was Liable As An Aider And Abettor
It is irrelevant that Sillas and not defendant was identified as the person holding
the gun. This is because the prosecution’s theory of defendant’s liability was as an
aider and abettor and the jury was instructed accordingly.
“ ‘A person aids and abets the commission of a crime when he or she, (i) with
knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or
purpose of committing, facilitating or encouraging commission of the crime, (iii) by
act or advice, aids, promotes, encourages or instigates the commission of the crime.’
[Citations.] [¶] ‘Whether defendant aided and abetted the crime is a question of fact,
and on appeal all conflicts in the evidence and reasonable inferences must be resolved
in favor of the judgment.’ [Citation.] [¶] . . . [¶] . . . [I]n general, neither presence at
the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to
establish aiding and abetting its commission. [Citations.] However, ‘[a]mong the
factors which may be considered in making the determination of aiding and abetting
are: presence at the scene of the crime, companionship, and conduct before and after
the offense.’ [Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Here, from the evidence that defendant entered the salon with Sillas, while
Sillas held the victims at gunpoint defendant went to the cash register and handled
their purses, as well as the evidence that either defendant or Sillas or both ordered the
women into the bathroom while Sillas was still armed, a trier of fact could reasonably
conclude that defendant had knowledge of Sillas’ unlawful purpose and intentionally
aided, promoted, and encouraged that purpose. Under these circumstances, there was
substantial evidence of defendant’s liability for felony false imprisonment as an aider
and abettor.

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B. The Evidence Did Not Support Sua Sponte Instructions on Misdemeanor False
Imprisonment
Defendant contends his conviction for felony false imprisonment must be
reversed because the trial court had a sua sponte duty to instruct on the lesser
necessarily included offense of misdemeanor false imprisonment. He argues that this
is so because the evidence that defendant used more force than that necessary to effect
the restraint “was nonexistent.” We disagree.
Misdemeanor false imprisonment is a lesser, necessarily included offense
within felony false imprisonment. “A trial court is required to instruct sua sponte on a
lesser included offense ‘ “ ‘when the evidence raises a question as to whether all of the
elements of the charged offense are present and there is evidence that would justify a
conviction of such a lesser offense . . . ’ [Citations.]” [Citation.]’ [Citation], that is,
when the evidence would justify a jury in acquitting on the greater offense, but
convicting on the lesser.” (Babich, supra, 14 Cal.App.4th at p. 807.) In the context of
false imprisonment, the issue becomes whether the evidence would have justified a
jury finding that the defendant unlawfully restrained the victim, but did so without
violence or menace. (Ibid.)
For example, in Babich, the victim testified that the defendant held a knife to
her throat but other witnesses and the defendant all testified that the defendant did not
use a knife, but merely held the victim with his arms. Under these circumstances, the
court in Babich found the trial court had a sua sponte duty to instruct on the lesser
included offense of misdemeanor false imprisonment because there was evidence from
which the jury could conclude that the prosecution had proven unlawful restraint
through physical force, but not the use of excessive force or menace to accomplish the
restraint.
Here, there was no such evidence. On the contrary, the evidence was
undisputed that one of the robbers was armed during the entire incident, including
when either he or his companion ordered the women into the bathroom. The only
reasonable inference from this evidence is that the robbers used menace – the presence

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of a firearm – to compel the victims to go where they did not want to go. Under an
aiding and abetting theory of liability, and absent any evidence that defendant was
unaware that Sillas was armed, that defendant was not the one holding the gun does
not make him guilty of any lesser offense.
C. Blakely Error
Defendant contends the upper term and consecutive sentencing imposed in this
case violated his Sixth and Fourteenth Amendment rights under Blakely because the
jury did not find the facts used to justify the upper term. But in People v. Black (2005)
35 Cal.4th 1238, our Supreme Court held that Blakely did not apply to California’s
sentencing scheme. Accordingly, this contention must fail.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
RUBIN, J.
We concur:
COOPER, P. J.
BOLAND, J.

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