P. v. Olobayo-Aisony

Filed 9/4/18 P. v. Olobayo-Aisony CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ADEKUNLE OLOBAYO-AISONY,
Defendant and Appellant.
B284951
(Los Angeles County
Super. Ct. No. VA142640)
APPEAL from a judgment of the Superior Court of
Los Angeles County. Robert J. Higa, Judge. Affirmed.
Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Stephanie C. Brenan and Timothy L. O’Hair,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________

-- 1 of 23 --

2
In an information filed by the Los Angeles County District
Attorney’s Office, defendant and appellant Adekunle Olobayo-
Aisony was charged with criminal threats (Pen. Code, § 422,
subd. (a); count 1),1 false imprisonment by violence (§ 236; count
2), misdemeanor battery (§ 243, subd. (e)(1); count 3), dissuading
a witness from reporting a crime (§ 136.1, subd. (b)(1); count 4),
assault with intent to commit a felony (§ 220, subd. (a)(1); count
5), and attempted forcible rape (§§ 664/261, subd. (a)(2); count 6).
The jury found defendant guilty of counts 2 and 4.2 After waiving
his right to trial on the prior felony conviction allegations,
defendant admitted a prior serious felony conviction for purposes
of section 667, subdivision (a)(1), and the “Three Strikes” Law.
Defendant was sentenced to nine years in state prison, calculated
as follows: the two-year middle term for count 4, doubled
pursuant to the Three Strikes law, plus five years for the prior
serious felony conviction (§ 667, subd. (a)(1)), and stayed the
sentence on count 2. Defendant received 748 days of presentence
custody credit.
Defendant appeals, arguing that: (1) The trial court erred
by refusing to admit a 76-page packet of text messages between
defendant and the victim; (2) The trial court erroneously imposed
the five-year enhancement because his conviction in count 4 was
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The People dismissed count 3 before the case was
submitted to the jury. The jury acquitted defendant of the
remaining counts.

-- 2 of 23 --

3
not a serious felony; and (3) Defendant’s conviction for felony
false imprisonment is not supported by substantial evidence.
We affirm.
FACTUAL BACKGROUND
Prosecution’s Case
A. Prior uncharged act involving Tiana W. (Tiana)
On Tiana’s 18th birthday in May 2002, she met with
defendant, who she had recently met either on the bus or coming
home from the bus. After he told her that he wanted to give her a
birthday gift, she agreed to meet him later that day. That
evening, she and defendant spent time together. They went
underneath a bridge in a middle school to hang out.
Defendant began making sexual advances, which Tiana
rebuked. Despite her reaction, defendant continued. He told her
that no one would hear her if she screamed because they were in
a secluded area. Defendant attempted to have sex with her. As
he tried to pull her clothes down, Tiana pulled them back up.
She “clench[ed]” her legs. After being unable to have sex with
her from a standing position, defendant forced Tiana to the
ground and had sex with her. At this point, Tiana had “shut
down.” When defendant finished, he told Tiana not to tell
anyone. He promised to give her money. Tiana, however, told
her aunt and cousin about the assault when she arrived home.
Her cousin called the police.3
B. Prior uncharged act involving Ashlee B. (Ashlee)
In 2002, Ashlee was a student at the University of
Southern California. She worked in the student affairs office.
3 Defendant was later charged with and convicted of raping
Tiana. This evidence was admitted pursuant to Evidence Code
section 1108.

-- 3 of 23 --

4
One day, defendant saw Ashlee walking to work and approached
her. He said that he was on his way to the track office on
campus. He asked Ashlee to meet him later that day. After
meeting again on campus, defendant suggested that they do
something off campus. Defendant told her that he would give her
money or buy her things. Although she had some “reservations”
about meeting with him, Ashlee agreed to go shopping with
defendant off campus. At some point while shopping, defendant
asked if she would rather have money or clothes; she said that
she wanted money.
Ashlee then drove defendant to a corner where he claimed
that there was an ATM. She did not see the machine. Defendant
got out of the vehicle and returned very quickly. The two then
went to a Starbucks. At some point, Ashlee decided that she
needed to take defendant home. While driving, he told her to pull
the car over near a Laundromat. There were no cars in the
parking lot adjacent to the Laundromat. Ashlee parked under a
street light.
Ashlee asked defendant if his friend was going to pick him
up. Defendant then touched her leg and leaned towards her. She
told defendant to back up, and he did. Ashlee made a comment
about feeling uncomfortable because the street light above the car
was flickering. Defendant asked her to move the car to a
different spot, and she did. This spot was darker than the first.
When Ashlee turned the car off, defendant immediately
grabbed the keys. Although she was nervous, she said, “‘Oh stop.
You’re being silly . . . . Stop playing around.” She wanted to run
away, but she did not because she believed that defendant would
catch her since he was on the track team. Defendant asked
Ashlee if she knew what “‘wasting someone’” meant. She

-- 4 of 23 --

5
understood it to sound like violence, and she was afraid. He then
told her, “‘you’re not going anywhere tonight.’” Unable to think of
anything to do to get out of the situation, Ashlee prayed.
Defendant told her that nobody was in the area to hear her
scream or help her if she ran. Suddenly, police arrived with their
lights flashing. Ashlee grabbed the keys and asked the police for
help.4
C. Charged act involving Kenyatta T. (Kenyatta)
Kenyatta began dating defendant in July 2016,5 but the
two had a falling out when he missed her birthday in early
August. They agreed to go separate ways.
Despite the falling out, Kenyatta and defendant exchanged
text messages until August 21, the date of the incident. Although
she generally ignored defendant’s phone calls, on August 20,
Kenyatta answered a call and agreed to meet defendant at a
restaurant the following day. They had not seen each other since
July 29. Defendant said that he wanted to give her a birthday
present. Because defendant lived out of town, Kenyatta told him
that if he wanted to see her, he needed a hotel room because he
was not invited to her house.
Shortly after arriving at the restaurant, Kenyatta and
defendant began to argue. Kenyatta said, “I’m done,” and they
both left the restaurant. After leaving defendant told Kenyatta
that he wanted to give her the present. She told him to put it in
4 This evidence was admitted under Evidence Code section
1108. Defendant was not convicted for the incident with Ashlee.
However, he was convicted of assault with intent to commit rape
of an unknown victim in that same trial.
5 Unless otherwise noted, all dates refer to 2016.

-- 5 of 23 --

6
her car, but he said that it was at his hotel. She agreed to go to
the hotel to receive the gift.
Kenyatta met defendant at the hotel room. At some point,
he pulled a dress and a bracelet out of a bag for her. She thanked
him. He then pulled lubricant, a sex toy, and condoms from the
bag. Kenyatta told defendant that she had to leave. She grabbed
her purse and shoes as she was leaving but not the gifts.
Defendant ran in front of the door, which was the only way out of
the room. He latched the door.
Initially, defendant told Kenyatta to sit down, calm down,
and stop screaming. Then, Kenyatta tried to move him out of the
way. He grabbed her hand and throat and pushed her against
the wall. She screamed “at the top of [her] lungs.” Defendant
told her to shut up, grabbed her shoulder, and pushed her into a
chair by the door. He remained in front of the door.
Kenyatta asked defendant what he intended to do. He
replied, “I want my money’s worth.” After Kenyatta asked what
he meant by that, defendant explained that he paid for the room.
She offered him $100, but defendant declined the money. He told
Kenyatta that she was not leaving until they had sex. Kenyatta
told him that she was not going to have sex with him. She then
asked if defendant intended to rape her, and he replied, “If I have
to.”
They remained in the same positions—defendant by the
door and Kenyatta in the chair by the door—for about four hours.
Some of that time was spent in silence, while at other times,
defendant called Kenyatta names. Kenyatta tried to leave four
different times, but she could not. The fourth time, defendant
threatened to hurt her if she continued trying to push him.
Kenyatta threatened to call 9-1-1. Defendant told her to “go

-- 6 of 23 --

7
ahead,” but when she got up to use the phone, he grabbed it and
threw it on the ground.
At some point, Kenyatta was able to text message her
friend, Kristen Price (Price). One of the messages said, “‘Help
me,’” and included a partial address of the hotel. Price found
these text messages to be “a bit alarming.” She drove to the
location of the partial address, calling police on the way, and met
police at the hotel. From the lobby, Price continued texting
Kenyatta. At around 7:00 p.m., police arrived at the hotel room
door. Shortly thereafter, Kenyatta and defendant came out.
Defense case
Defendant testified on his own behalf. He met Kenyatta at
a casino on July 16. At the time, he was on parole for his
conviction for raping Tiana. Kenyatta became upset with
defendant after he missed her birthday. Still, he saw Kenyatta
several times between July 29 and August 21.
On August 20, Kenyatta asked defendant to get a hotel
room for her birthday. On August 21, they met at Lucille’s
Restaurant for lunch. During lunch, Kenyatta again asked
defendant to get a hotel room, so defendant searched for one on
his phone. After booking the hotel, they drove to it separately.
Defendant arrived 15 minutes before Kenyatta and checked in.
When Kenyatta arrived, defendant gave her a room key and told
her that he would be right back. He went to his car to get the
gift, which was in a bag. When Kenyatta saw the bag, but before
she saw what was inside it, she became excited and the two had
sex.
Sometime after finishing, the two began getting intimate
again. Defendant took a sex toy and lubricant out of the bag. He
also showed her a dress and bracelet that he bought for her.

-- 7 of 23 --

8
Kenyatta, appearing happy, told defendant that he must be
“ready for fun” and began using the items. Suddenly, Kenyatta
received a phone call from another man. After the call, she told
defendant that she had to leave. As she was leaving, she asked
about money that he had promised her.6 At this point, Kenyatta
did not have the gift bag with her. Defendant told her that he
would give her money some other time. Kenyatta responded,
“You think I just did all this for you for nothing?” Defendant
believed that she was referring to sex. He asked her if she was a
prostitute, which angered her.
Kenyatta turned back into the room and grabbed the gift
bag, which also contained some of defendant’s belongings. When
defendant asked her why she was taking some of his things,
Kenyatta responded, “I will show you what prostitutes do.”
Defendant jumped between her and the door. Kenyatta tried to
physically move him and scratch him, but he maintained his
position in front of the door. At one point, defendant pushed her
away, but he did not choke her. He told Kenyatta that she could
leave if she left his stuff.
Kenyatta sat in a chair looking at defendant. The two were
silent. After some time, they began to argue. Eventually, police
arrived. Kenyatta dropped the bag.
Los Angeles County Sheriff’s Deputy Pasquale
Mastantuono responded to the incident. He interviewed
Kenyatta at the hotel. At that time, she did not say that
defendant told her that he would rape her if she refused to have
sex with him. Deputy Mastantuono did not see any injuries on
6 Defendant had told Kenyatta about money that he had
recently won from the casino, and he offered to give her some of
the winnings to pay for a tune-up for her car.

-- 8 of 23 --

9
Kenyatta and she did not complain of pain. However, she did
appear to be in shock. Kenyatta said that defendant had asked
her for sex, and when she tried to leave, he blocked her path and
put his hand on her throat.
Leneva Cobb, defendant’s ex-girlfriend and cohabitant at
the time of the incident, retrieved a bag from the police station
after defendant’s arrest. She gave the bag to a private
investigator, who inventoried it. The bag contained defendant’s
wallet, identification, men’s and women’s clothing, an A-N-G-L-E
bag, receipts, spilled lubricant, a book titled “Dating for
Dummies,” two bottles of cologne, a silver sex toy, an empty
bottle of lubricant, a golden-colored bracelet, a work badge, an
empty condom wrapper, and a receipt from Lucille’s Restaurant.
Rebuttal
Deputy Mastantuono also interviewed defendant in the
hotel hallway. Defendant told Deputy Mastantuono that when
he and Kenyatta first went into the room, they kissed and took
off their clothes. At that point, defendant went to give her a
birthday gift, but she demanded money. Defendant refused to
give her money, which upset her. Kenyatta got dressed and was
going to leave, but defendant blocked the doorway because he did
not want their relationship to end. Defendant did not mention
that they had had consensual sex earlier in the day; he also did
not say anything about Kenyatta taking his belongings or
assaulting him.

-- 9 of 23 --

10
DISCUSSION
I. The trial court did not infringe on defendant’s right to present a
defense by refusing to admit an entire 76-page packet of text
messages
Defendant argues that the trial court prejudicially violated
his constitutional right to present a complete defense by
excluding a 76-page packet of text messages that he exchanged
with Kenyatta.
A. Relevant proceedings
Kenyatta had testified at the preliminary hearing that she
and defendant went on four dates before they “stopped talking on
July 29.” While cross-examining her at trial, defense counsel
sought to impeach Kenyatta’s testimony by establishing that the
relationship actually did not end on July 29. Kenyatta then
admitted that she and defendant texted often after July 29, with
the exception of one week at around the time of her birthday
when she left the country. She clarified that those text messages
after July 29 were on a friendly—but not romantic—basis.
Defense counsel asked Kenyatta if she had requested to see
defendant on August 1, but she could not recall. After defense
counsel showed her a screenshot of text messages between her
and defendant from August 1, Kenyatta still could not say
whether or not she had asked to see defendant on that day.
Noting that Kenyatta had previously testified that she and
defendant ended their romantic relationship on July 29, defense
counsel asked to mark as evidence a 76-page packet containing
screenshots of text messages between Kenyatta and defendant.
The prosecutor objected on relevance grounds.
Outside the jury’s presence, the trial court and counsel
addressed the admissibility of the text messages. The prosecutor

-- 10 of 23 --

11
objected on the grounds that the evidence was cumulative and
irrelevant in that it appeared to account for the entire text
message history of defendant and Kenyatta’s relationship.
Further, the prosecutor argued that any “explicit details” of her
sexual conduct with defendant contained within the text
messages were irrelevant and protected under Evidence Code
section 1103.
Defense counsel argued that Kenyatta had made it clear
that the relationship was only friendly and not romantic after
July 29, but the text messages impeached her characterization.
As examples of text messages that were inconsistent with her
characterization, defense counsel pointed to post-July 29 text
messages from Kenyatta to defendant in which she: asked to see
him; asked him to go on vacation with her; asked if she would see
him on her birthday and then was upset when he did not send
her flowers; asked him to go on a harbor cruise; told him that she
missed him; on the day before the incident, suggested that they
reserve a hotel room together; and, on the day of the incident,
suggested that they go to a hotel in Long Beach instead of going
to his residence. Moreover, because one of the charges was
attempted rape by duress, defense counsel argued that the text
messages showed how Kenyatta and defendant communicated
with each other and that this was relevant to the issue of duress.
The trial court allowed defense counsel to use any text
messages to impeach inconsistent testimony, “if there are any.”
However, apparently noting that not all of the text messages
were inconsistent with Kenyatta’s testimony, the trial court told
defense counsel that “all those texts aren’t coming in.”
Defense counsel then noted that the prosecutor had
objected to evidence of prior sexual contact. The trial court noted

-- 11 of 23 --

12
that Kenyatta had not been asked at the trial, and therefore did
not testify, about her sexual relationship with defendant before
July 26. The trial court ruled that defense counsel would
therefore be allowed to ask about whether she had had sexual
contact with defendant before that day, but not delve into the
details or text messages describing the prior sexual conduct
because “it’s just way more prejudicial than it is probative.”
Defense counsel resumed cross-examination of Kenyatta.
She asked Kenyatta if it was true that, on August 20, Kenyatta
had asked defendant to get a hotel room. Kenyatta remembered
that she had told defendant that he could not come to her house,
so if he wanted to see her, he needed a hotel room. Defense
counsel then asked about a text message that Kenyatta had sent
to defendant, wherein she told him that he “could very easily get
a hotel for us, like I did for you.” Kenyatta did not recall saying
this. When asked about more messages from the August 20
conversation, Kenyatta still could not recall what she and
defendant had discussed. Defense counsel attempted to refresh
her recollection with the text messages.
On August 20, defendant sent Kenyatta a text message,
asking: “Can you come here or I can come pick you up.”
Kenyatta responded, “Can we get a hotel . . . somewhere in the
middle where we both live.” Defendant replied, “I want you here.
Just do it for me one time, please, I will make it up to you.”
Shortly thereafter, Kenyatta asked defendant, “Can we get a
hotel?” Defendant replied, “No. I want you to come over. Do it
for me.” Kenyatta answered, “I would like a hotel. Do that for
me.” She then said, “Maybe another time.”
The next morning, defendant texted his address to
Kenyatta. Shortly thereafter, she sent him a list of hotels in

-- 12 of 23 --

13
Long Beach. Defense counsel then asked Kenyatta again if she
had suggested that she and defendant meet in a hotel, and
Kenyatta responded, “Yes.”
Defense counsel then sought to impeach Kenyatta’s
testimony that their post-July 29 communication was “simply
friendship calls.” Defense counsel went into text messages of a
sexual nature, and the prosecutor objected. At sidebar, the trial
court reiterated that defense counsel could inquire about text
messages that impeached Kenyatta’s prior testimony that she
and defendant were “just friends” after July 29, but defense
counsel had to “pick and choose” her best; in fact, the trial court
suggested that rather than going through the entire packet, she
pick approximately 10 text messages to highlight.
Resuming cross-examination, defense counsel introduced
several text messages between Kenyatta and defendant to both
refresh Kenyatta’s recollection of the conversations she had had
with defendant and to impeach her characterization of their post-
July 29 relationship. On July 29, Kenyatta told defendant, via
text message, that he had “awakened a beast” in her because she
wanted to have sex with him. On August 1, Kenyatta told
defendant that she wanted to see him before work. She explained
in court that meeting people after work is “what friends do,” and
that it was not indicative of a romantic relationship. Also on
August 1, she asked defendant to take a vacation with her. On
August 3, Kenyatta wanted to know if defendant would spend her
birthday with her. On August 4, after defendant missed her
birthday, Kenyatta told him that she had “never been treated like
that” on her birthday. On August 6, Kenyatta asked defendant if
he wanted to go on a harbor cruise with her. On August 7, she

-- 13 of 23 --

14
asked if she was going to get a birthday present from him. Later
that day, she asked defendant if she could come get her gift.
On redirect examination, Kenyatta explained that when
she said that she had stopped talking to defendant, she meant
that they had stopped dating, not that they had cut off all
communication.
B. Legal principles
Only relevant evidence is admissible. (Evid. Code, § 350.)
Even if relevant, evidence may be excluded if, in the trial court’s
discretion, its probative value is substantially outweighed by the
probability that the evidence will create undue prejudice or
unduly consume time. (Evid. Code, § 352.)
A witness’s credibility may be impeached by evidence of a
statement that the witness made that is inconsistent with any
part of her testimony. (Evid. Code, § 780, subd. (h).) “Evidence of
a statement made by a witness is not made inadmissible by the
hearsay rule if the statement is inconsistent with [her] testimony
at the hearing and is offered in compliance with [Evidence Code]
section 770.” (Evid. Code, § 1235.) Evidence Code section 770
provides that extrinsic evidence of an inconsistent statement is
only admissible if the witness was given an opportunity to
explain or deny the statement and the witness was not excused
from giving further testimony.
A trial court “has broad discretion in determining whether
to admit impeachment evidence, including whether it is subject to
exclusion under [Evidence Code] section 352.” (People v. Turner
(2017) 13 Cal.App.5th 397, 408.) The admission or exclusion of
such evidence is therefore reviewed for abuse of discretion.
(People v. Edwards (2013) 57 Cal.4th 658, 722.)

-- 14 of 23 --

15
“As a general matter, the ‘[a]pplication of the ordinary
rules of evidence . . . does not impermissibly infringe on a
defendant’s [constitutional] right to present a defense.’
[Citations.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103.)
“Although completely excluding evidence of an accused’s defense
theoretically could rise to this level, excluding defense evidence
on a minor or subsidiary point does not impair an accused’s due
process right to present a defense.” (Ibid.)
C. The trial court did not err by refusing to admit the
entire 76-page packet of text messages between defendant and
Kenyatta
Defendant’s defense was that Kenyatta was an untruthful
witness, specifically regarding her testimony that she and
defendant had “stopped talking” after July 29. In defendant’s
view, the 76-page packet of text messages would show that the
relationship extended beyond July 29. But not all of the text
messages in the packet had value as impeachment evidence. For
example, the packet included hundreds of text messages between
July 16 and July 29. None of these messages impeaches
Kenyatta’s testimony that her romantic relationship with
defendant ended after July 29. Thus, the trial court stayed
within its broad discretion in excluding the packet as a whole
while at the same time allowing defense counsel to introduce any
text messages within that packet that had impeachment value.
(People v. Turner, supra, 13 Cal.App.5th at p. 408.)
Defendant argues that the trial court excluded “most” of
the packet, which was “disproportionate to the interests served
by [the rules of evidence].” He suggests that the trial “court could
have placed certain reasonable limits on those messages,” such as
ordering them to be prepared in a more concise format. But,

-- 15 of 23 --

16
initially, the trial court allowed defense counsel to introduce any
text messages that impeached Kenyatta’s testimony. Once
defense counsel began discussing the more inflammatory texts of
a sexual nature, the trial court invited defense counsel to pick out
10 of the best messages within the packet to impeach Kenyatta’s
testimony. This was a reasonable limitation, as defense counsel
would be able to show (and in fact did show) that Kenyatta had
reached out to defendant throughout August, sent sexually
suggestive messages after July 29, asked him to go on a vacation
with her, and asked him to get a hotel room on August 21. The
probative value of piling on more text messages to prove the same
point was trivial, whereas sifting through the 76-page packet
would have unduly consumed time and been highly inflammatory
given the sexual nature of some of the messages. (People v.
Burgener (1986) 41 Cal.3d 505, 525, disapproved on another
ground in People v. Reyes (1998) 19 Cal.4th 743, 753.)
Defendant also argues that the text messages within the
packet that had no impeachment value were nevertheless
relevant to his defense because they would have helped show the
context of his relationship with Kenyatta. In his opinion, the
events on August 21 “epitomized the confrontational nature of
their relationship.” He even suggests that Kenyatta falsely
testified that defendant “lured her to the motel room and kept
her there, against her will, while threatening to harm and/or rape
her.” Thus, the exclusion of the packet as a whole prevented him
from presenting a complete defense.
As pointed out by the People, Kenyatta testified that she
went to the hotel willingly—she never suggested that defendant
“lured” her there. And to the extent that any of the text
messages were inconsistent with her testimony, the trial court

-- 16 of 23 --

17
specifically allowed defense counsel to present them as
impeachment evidence.
Regardless, any probative value that the nonimpeachment
messages would have had in helping the jury better understand
the events of August 21 was neutralized by the text messages
that were already deemed admissible. At the risk of sounding
redundant, the text messages that were inconsistent with
Kenyatta’s testimony were admitted and revealed the nature of
the relationship in the weeks leading up to August 21. On the
other hand, the proffered evidence was a 76-page packet of text
messages that would have consumed a significant amount of time
and been inflammatory. Thus, the trial court acted well within
its discretion in excluding the texts that lacked impeachment
value. (Evid. Code, § 352; People v. Thuss (2003) 107 Cal.App.4th
221, 234; People v. Branch (2001) 91 Cal.App.4th 274, 286–287.)
Because the trial court did not violate the Evidence Code, it
follows that defendant’s constitutional rights were not violated.
(People v. Fudge, supra, 7 Cal.4th at p. 1103; People v. Mincey
(1992) 2 Cal.4th 408, 440.) For that reason, Fowler v.
Sacramento County Sheriff’s Dept. (9th Cir. 2005) 421 F.3d 1027
and Holley v. Yarborough (9th Cir. 2009) 568 F.3d 1091, cited by
defendant, do not compel a different result.
In any event, even if the trial court had erred in refusing to
admit the entire 76-page packet of text messages (which it did
not), we would conclude that that error would have been
harmless under any standard. (Chapman v. California (1967)
386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
Defense counsel sufficiently impeached Kenyatta’s statement
that she and defendant had “stopped talking” on July 29 with the
text messages that were admitted into evidence. Additional text

-- 17 of 23 --

18
messages would not have added anything. Moreover, defense
counsel’s argument that both the impeachment and
nonimpeachment text messages were relevant beyond
impeachment was limited to the attempted rape by duress
charge. But defendant was acquitted of that charge. Thus, the
trial court’s order did not affect the jury verdict.
II. The trial court properly imposed the five-year enhancement
(§ 667, subd. (a)(1)) because the conviction in count 4 was a
serious felony
Defendant argues that the trial court erred in imposing the
five-year enhancement because his conviction for violation of
section 136.1, subdivision (b)(1), should not be considered a
serious felony.
“For criminal sentencing purposes in this state, the term
‘serious felony’ is a term of art. Severe consequences can follow if
a criminal offender, presently convicted of a felony, is found to
have suffered a prior conviction for a serious felony.” (People v.
Warner (2006) 39 Cal.4th 548, 552.) “If the present conviction is
also for a serious felony, ‘the offender is subject to a five-year
enhancement term to be served consecutively to the regular
sentence.’ [Citation.]” (People v. Navarette (2016) 4 Cal.App.5th
829, 842, fn. omitted.) A serious felony is any of those offenses
listed in section 1192.7, subdivision (c). (§ 667, subd. (a)(4).)
Pursuant to People v. Neely (2004) 124 Cal.App.4th 1258,
1266 (Neely),7 “all felony violations of . . . section 136.1 are
serious felonies.” Defendant here was convicted under section
136.1, subdivision (b)(1), which is a wobbler. (People v. Torres
(2011) 198 Cal.App.4th 1131, 1147.) Thus, we must now
7 Defendant’s arguments notwithstanding, we conclude that
Neely was rightly decided.

-- 18 of 23 --

19
determine whether defendant was convicted of a felony or a
misdemeanor. “A wobbler offense charged as a felony is regarded
as a felony for all purposes until imposition of sentence or
judgment. [Citations.] If state prison is imposed, the offense
remains a felony; if a misdemeanor sentence is imposed, the
offense is thereafter deemed a misdemeanor.” (People v. McElroy
(2005) 126 Cal.App.4th 874, 880.)
Here, defendant was charged with “dissuading a witness
from reporting a crime, in violation of . . . section 136.1(b)(1), a
Felony.” (Capitalization omitted; italics added.) Defendant
received the two-year middle term in state prison. As such, the
offense was a felony. Because any felony conviction under section
136.1 is a serious felony (Neely, supra, 124 Cal.App.4th at
p. 1268), the trial court did not err in finding that defendant’s
current conviction is a serious felony.
In urging us to find that his conviction was not a serious
felony, defendant offers several public policy arguments. We
reject each in turn.
First, defendant argues that section 136.1, subdivision (b),
is not a serious felony because it is a lesser included offense of
section 136.1, subdivision (c). We agree (as do the People) that
subdivision (b)(1) is a lesser included offense of subdivision (c),
but that finding does not preclude subdivision (b) from being a
serious felony. After all, Neely recognizes that any felony
conviction under section 136.1 is a serious felony. (Neely, supra,
124 Cal.App.4th at p. 1268.) And the drafters did not intend to
preclude lesser included offenses from being serious felonies.
Section 1192.7, subdivision (c), which lists serious felonies,
contains numerous felonies that are lesser included offenses of
other crimes. (See, e.g., § 1192.7, subds. (c)(1) [identifying

-- 19 of 23 --

20
murder and voluntary manslaughter as serious felonies, and
voluntary manslaughter is a lesser included offense of murder;
People v. Breverman (1998) 19 Cal.4th 142, 189, fn. 4]; (c)(3),
(c)(10), & (c)(39) [identifying attempted rape and assault with
intent to commit rape as serious felonies, and assault with intent
to commit rape is an aggravated form of attempted rape; People v.
Ghent (1987) 43 Cal.3d 739, 757].)
Second, there is no statutory requirement for serious
felonies to include the elements of knowledge, malice, force, or
threats of force. The statute even identifies certain drug offenses
(§ 1192.7, subd. (c)(24)) as serious felonies despite those crimes
not necessarily involving knowledge, malice, force, or threats of
force. Regardless, as set forth above, Neely holds that all felony
convictions under section 136.1 are serious felonies.8 (Neely,
supra, 124 Cal.App.4th at p. 1268.)
Third, the fact that defendant’s conviction would have been
a misdemeanor under former law, but is now considered a
wobbler, indicates that the Legislature wanted to make the
sentence harsher for a violation of section 136.1. (See Legis.
Counsel’s Dig., Sen. Bill No. 940 (1997-1998 Reg. Sess.)
[confirming that the Legislature understood that it would be
8 Defendant’s reliance upon People v. Anaya (2013) 221
Cal.App.4th 252 and People v. Lopez (2012) 208 Cal.App.4th 1049
is misplaced. In both of those cases, the appellate courts
evaluated and reversed heightened sentences imposed against
defendants for violations of sections 136.1, subdivision (b), and
186.22, subdivision (b)(4). (People v. Lopez, supra, at p. 1065;
People v. Anaya, supra, at pp. 270–271.) Here, defendant was
appropriately sentenced for his conviction of violation of section
136.1, subdivision (b)(1).

-- 20 of 23 --

21
increasing the penalties for an existing crime].)9 It would be
contrary to the Legislature’s intent to consider the statute under
the older paradigm.
III. Substantial evidence supports defendant’s conviction for
felony false imprisonment by violence or menace
Defendant acknowledges that the evidence was sufficient to
support a misdemeanor false imprisonment conviction, but
contends that it was insufficient to establish the felony version of
the crime, which requires a showing that he used violence or
menace to restrain Kenyatta.
Evidence is sufficient to support a criminal verdict when
the appellate record reasonably supports a finding of guilt beyond
a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307,
318; People v. Johnson (1980) 26 Cal.3d 557, 562.) On review, we
look at the evidence in the light most favorable to the judgment,
and “presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.” (People
v. Lewis (1990) 50 Cal.3d 262, 277.) The testimony of a single
witness is sufficient to support a conviction. (People v. Young
(2005) 34 Cal.4th 1149, 1181.)
“‘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
9 We reject defendant’s contention that the Legislature only
intended to impose a harsher punishment on those who
pressured victims and witnesses from testifying in gang-related
cases. While the Legislature amended sections 136.1 and 186.22
at the same time, it did not state that the possible increased
punishment for a violation of section 136.1 can only be applied in
the context of section 186.22.

-- 21 of 23 --

22
necessary to effect the restraint. In such circumstances the force
is defined as “violence” with the false imprisonment effected by
such violence a felony.’ [Citation.]” (People v. Castro (2006) 138
Cal.App.4th 137, 140.)
Here, defendant restrained Kenyatta’s liberty when he ran
in front of and blocked the door while she tried to leave. He then
latched the door, which was the only exit to the hotel room. Had
he used no more force than this, his conduct might only have
amounted to misdemeanor false imprisonment. (People v. Castro,
supra. 138 Cal.App.4th at p. 143.) But, Kenyatta testified that he
thwarted her attempts to move him from his blocking position by
grabbing her throat and pushing her against a wall. He then
grabbed her shoulder and pushed her into a chair. This level of
force supports the jury finding and verdict.
Relying on his own testimony, defendant asserts that a
reasonable juror “should have found” that he did not use
excessive force, violence, or menace to keep Kenyatta in the hotel
room. We do not reweigh the evidence and decide what a
reasonable juror could or should have done. (People v. Lindberg
(2008) 45 Cal.4th 1, 27.)

-- 22 of 23 --

23
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________________, J.
ASHMANN-GERST
We concur:
______________________________, P. J.
LUI
______________________________, J.
HOFFSTADT

-- 23 of 23 --