What elevates false imprisonment from a misdemeanor to a felony? If the
false imprisonment is effected by violence, menace, fraud, or deceit,
then it becomes a felony and it is punishable by imprisonment in the state prison.
Read the Court of Appeal's analysis below for a more detailed explanation.
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE
STATE OF CALIFORNIA
Plaintiff and Respondent,
MOURIS M. GHIPRIEL,
Defendant and Appellant.
(Super. Ct. No. SWF1200303)
APPEAL from a judgment of the Superior Court of Riverside County, Angel
M. Bermudez, Judge. Affirmed.
Steven A. Brody, under appointment by the Court of Appeal, for Defendant
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr.
and Anthony DaSilva, Deputy Attorneys General, for Plaintiff and Respondent.
False imprisonment that involves no more in the way of force or menace
than is needed to restrain the victim is a misdemeanor. Felony, or aggravated,
false imprisonment requires proof of force greater than is needed to restrain
the victim. Here, the evidence showed defendant Mouris M. Ghipriel, who
weighs 240 pounds, kept one of his employees, who weighs approximately
100 pounds, in a very small office and sexually assaulted her. We reject
Ghipriel's contention this record does not support his three felony
false imprisonment convictions. We also reject Ghipriel's contention
the trial court erred in admitting testimony from the victim with respect
to his attempt to digitally penetrate her.
Accordingly, we affirm Ghipriel's convictions.
FACTUAL AND PROCEDURAL BACKGROUND
A. Doe's Employment at Ghipriel's Restaurant
In March 2011, Jane Doe was 19 years old and had just graduated from high
school. Doe was five feet tall and weighed 100 pounds. At that point in
time, Doe began working for Ghipriel at a steak house he owned and operated
in Hemet, California. Ghipriel was 54 years old, five feet eight inches
tall, and weighed 240 pounds.
Doe began working as a dishwasher at Ghipriel's restaurant. While washing
dishes, Ghipriel would occasionally rub Doe's shoulders or walk by
and grab her by her hip. In May 2011, Doe was promoted from dishwashing
to a position as a hostess, where she stood behind a small podium. On
one occasion while Doe was standing at the podium, Ghipriel walked up
behind her, put his hand under her V-neck shirt, reached across her chest
and grabbed her left breast. Doe ducked down so that she could get Ghipriel's
hand out of her shirt, told Ghipriel to stop and walked away.
Over the next several weeks, Ghipriel made a continuing series of sexually
suggestive advances, of varying levels of crudeness, on Doe. As Ghipriel
would walk by Doe at the podium when she was bending down to wipe menus
or a counter, he would graze her buttocks with his hand; he would do the
same as she was standing at different places in the restaurant. In response,
Doe would give Ghipriel a dirty look and tell him to stop. On another
occasion, after discussing his plan to convert part of the restaurant
to a hookah bar and have Doe manage it, Ghipriel went to the bar, had
some drinks, came back to the hostess podium and kissed the corner of
Doe's mouth, leaving saliva on it.
When Doe asked to be promoted to a server's position where she could
earn tips, Ghipriel told her she would have "to do stuff" with
him, which she interpreted as sex acts. By way of hand gestures on one
occasion and later by way of an express request, Ghipriel asked Doe to
perform oral sex on him.
B. False Imprisonment and Sexual Assaults
While Doe was working as a hostess, Ghipriel regularly called her back
to meet him in his very small office. At most only two or three people,
including Ghipriel, could fit in the office at any given time, and many
employees either stood or sat outside the office when talking to Ghipriel
while he was in the office.
When called to the office, Doe would try to simply stand in the doorway,
but, on a number of occasions, Ghipriel would grab Doe's wrist, pull
her into to the office and lock the door. Doe recalled five occasions
in which, with the door to his office closed, Ghipriel cornered her in
the office with his much larger body, touched her breasts underneath her
brassiere, touched her buttocks and attempted to kiss her.
On three occasions, while Ghipriel had Doe pinned against the wall of his
office, he exposed his penis and began masturbating; on two of those occasions
he ejaculated, once on Doe's shoe and once on the floor. On one occasion,
Ghipriel pulled up Doe's shirt and touched her stomach with his penis.
The last occasion on which Ghipriel called Doe into his office occurred
on October 31, 2011. After Ghipriel maneuvered Doe against the wall and
after trying to pull her pants down, he put his hand down her pants, under
her panties and touched the lips of her vagina. According to Doe, Ghipriel
was unable to get his hands into her vagina because she pushed him away.
For a number of months, Doe had been telling her friend and her roommate
about Ghipriel's sexual assaults. Doe testified that she repeatedly
went to Ghipriel's office and endured his sexual conduct because she
did not want to get fired. However, following the October 31, 2011 assault,
Doe left the restaurant before her shift was over and did not return to
work. On November 5, 2011, she went to the local police department and
reported what had occurred. After conducting an investigation, police
C. Trial Court Proceedings
Ghipriel was convicted of three counts of sexual battery (Pen. Code, § 243.4, subd. (a)), three counts of felony false imprisonment (§§
236, 237, subd. (a)), three counts of indecent exposure (§ 314, subd.
(1)), one count of assault with intent to penetrate (§ 220, subd.
(a)), and two counts of battery for purposes of sexual arousal (§
243, subd. (e)(1)). The trial court sentenced Ghipriel to a term of eight
years in state prison.
Ghipriel filed a timely notice of appeal.
In his first argument on appeal, Ghipriel contends none of his false imprisonment
convictions were aggravated, and, hence, each false imprisonment conviction
should be reduced to a misdemeanor. We reject these contentions.
A. Sufficiency of the Evidence
"When a jury's verdict is attacked on the ground that there is
no substantial evidence to sustain it, the power of an appellate court
ends with the determination as to whether, on the entire record, there is any
substantial evidence, contradicted or uncontradicted, which will support
it, and when two or more inferences can reasonably be deduced from the
facts, a reviewing court is without power to substitute its deductions
for those of the jury. It is of no consequence that the jury believing
other evidence, or drawing different inferences, might have reached a
contrary conclusion." (People v. Brown (1984) 150 Cal.App.3d 968, 970.)
B. False Imprisonment
Section 236 provides: "False imprisonment is the unlawful violation
of the personal liberty of another." Section 237, subdivision (a)
provides: "False imprisonment is punishable by a fine not exceeding
one thousand dollars ($1,000), or by imprisonment in the county jail for
not more than one year, or by both that fine and imprisonment. [Misdemeanor
false imprisonment.] If the false imprisonment be effected by violence,
menace, fraud, or deceit, it shall be punishable by imprisonment in the
state prison. [Felony false imprisonment.]"
"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 necessary to effect the restraint. In
such circumstances the force is defined as 'violence' with the
false imprisonment effected by such violence a felony." (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462.)
Like Ghipriel, the appellant in
People v. Castro (2006) 138 Cal.App.4th 137 (Castro) relied on the holding and reasoning of
People v. Matian (1995) 35 Cal.App.4th 480, 485-487 (Matian) in arguing that there was insufficient evidence he used the additional
force or menace required to establish felony false imprisonment. In
Matian, the defendant initially sexually abused his victim and, in particular,
squeezed her breast with enough force to cause her pain and possible bruising;
he then, by way of grabbing her and glaring at her, kept her from leaving
the vicinity of his office. The court in
Matian found these circumstances did not constitute felony false imprisonment
because they did not involve the use of a deadly weapon or any express
threat of harm. (Id. at pp. 486-487.)
In disagreeing with
Matian, the court in
Castro stated: "We have trouble understanding the conclusion the Court of
Appeal reached in
Matian. While the opinion does not discuss the underlying sexual crimes, it is
clear that the false imprisonment followed immediately after the forcible
sexual assaults during which appellant squeezed the victim's breast
so hard as to cause her pain and possibly even bruising. Thereafter, the
perpetrator yelled at the victim 'nothing happened,' attempting
to intimidate her into not reporting the incident. He then told her to
wash her face and she took a seat nearby, within view of the perpetrator
who was in his office. When the victim attempted to leave, the perpetrator
glared at her and got out of his chair as if he was going to approach
her. Given the immediately preceding sexual assaults, and the command
to her that 'nothing happened,' it is reasonable to conclude the
victim was intimidated by the perpetrator. In fact, she testified that
she was afraid and did not want him to touch her again. We have no problem
with concluding the evidence addressed in the published portion of the
opinion supported the conviction for felony false imprisonment by menace,
if not violence. Thus, we do not agree with the result in
Matian, or with appellant's argument that comparison with the facts in
Matian requires reversal of his conviction for felony false imprisonment." (Castro,supra, 138 Cal.App.4th at p. 143.)
Castro, the victim was walking to a bus stop on her way to school when the defendant
grabbed her by the arm, turned her around and pulled her toward his car.
In finding that this was sufficient to establish felony false imprisonment,
the court stated: "In the present case, appellant grabbed the victim
and turned her around. If that is all that had happened, we would agree
with appellant that his conduct amounted only to misdemeanor false imprisonment.
But appellant pulled her toward his car, an act more than what was required
to stop her and keep her where she was located. . . . [T]he evidence that
appellant used force to pull the victim toward his car was sufficient
to establish force above that required for misdemeanor false imprisonment." (Castro,supra, 138 Cal.App.4th at p. 143.)
We agree with the court's opinion in
Castro. The additional force required for felony false imprisonment, as opposed
to misdemeanor false imprisonment, may come in the form, as in
Castro, of simply pulling a victim toward a location when the victim's liberty
has already been violated. (Castro,
supra, 138 Cal.App.4th at p. 143.) However, as the court in
Castro also indicated, such additional and unnecessary force may also arise from
sexual assaults suffered by the victim during the course of the defendant's
contact with the victim. (Ibid.) In this regard, like the court in
Castro, as well as the courts that decided
People v. Islas,supra, 210 Cal.App.4th at pages 125-126,
People v. Wardell,supra, 162 Cal.App.4th at page 1491 and
People v. Aispuro,
supra, 157 Cal.App.4th at page 1513, we disagree with the reasoning and result in
Here, a host of circumstances demonstrate that Ghipriel's sexual assaults
and conduct support each of his three felony false imprisonment convictions.
Plainly, touching Doe's breasts, masturbating in front of her, rubbing
his penis on her stomach, and putting his hands down her pants and touching
the lips of vagina, were not needed to restrain or otherwise violate Doe's
liberty. Importantly, Doe was vulnerable in a number of respects: she
was less than half his age, she weighed less than half of Ghipriel's
240 pounds, she was trapped in his small office, and he was her employer
at a job she was afraid of losing. In addition to the fact that on at
least three separate occasions the sex acts Ghipriel committed involved
actual physical contact and Doe in no way consented to them, all the acts
were profoundly degrading and demeaning. Given the character of the acts
and Doe's vulnerability on so many levels, Ghipriel's sexual conduct
no doubt played a material role in maintaining control over her. Thus,
in light of all these circumstances, a jury could reasonably conclude
that in each instance charged as felony false imprisonment, Ghipriel used
force beyond that needed to restrain Doe and hence effected the violation
of her liberty by violence within the meaning of section 236, subdivision (a).
In his second argument on appeal, Ghipriel argues the trial court erred
in permitting Doe to testify with respect to his intention when he put
his hands down her pants and touched the lips of her vagina. We find no error.
A. Doe's Testimony
As we have discussed, at trial Doe testified without objection that on
October 31, 2011, Ghipriel called her into his office, trapped her against
a wall, and put his hands down her pants and touched the lips of her vagina.
Doe testified that when Ghipriel kept sticking his hands down her pants
and trying to unbutton her pants, at least twice she told him to stop.
The prosecutor then asked Doe: "So was he able, from what you feel,
to get his hands inside your vagina?" Doe replied in the negative,
and Ghipriel's counsel objected on the grounds the question assumed
facts not in evidence. The trial court overruled the objection, and Doe
testified Ghipriel was unable to put his hand inside her vagina because
she was able to push him away with her arms, though she was scared.
On appeal, Ghipriel argues the prosecutor's question was improper because
it assumed there was evidence he intended to put his hand or fingers in
Doe's vagina and that further error occurred when Doe was permitted
to testify that she was able to prevent him from doing so.
We find no error. We agree that in describing what occurred both the prosecutor
and Doe assumed that Ghipriel intended to digitally penetrate her vagina.
However, their assumption was supported by substantial circumstantial
evidence in the record. At the time Ghipriel put his hands down Doe's
pants, he had trapped his 20-year-old employee in his office, where he
had previously subjected her to multiple sexual assaults and advances,
including ejaculating on her shoe. In putting his hands down her pants
and trying to unbutton them, Ghipriel plainly escalated his conduct and
desire for gratification. A fairly reasonable inference to be drawn from
the totality of circumstances was that, at that point, Ghipriel intended
to digitally penetrate Doe and that he was only prevented from doing because
she was able to push him away.
The judgment of conviction is affirmed.
BENKE, Acting P. J.
 All further statutory references are to the Penal Code.
 In addition to
Matian opinion has been the subject of criticism and disagreement by the courts in
People v. Islas (2013) 210 Cal.App.4th 116, 125-126,
People v. Wardell (2008) 162 Cal.App.4th 1484, 1491 and
People v. Aispuro (2007) 157 Cal.App.4th 1509, 1513. "An express or implied threat of
harm does not require the use of a deadly weapon or an express verbal
threat to do additional harm. Threats can be exhibited in a myriad number
of ways, verbally and by conduct." (People v. Aispuro,supra, at p. 1513.)
 Because admission of Doe's testimony with respect to Ghipriel's
attempt to penetrate her was proper, counsel's failure to make a more
detailed and renewed objection to the testimony did not prejudice Ghipriel
and will not give rise to a claim of ineffective assistance of counsel. (See
Strickland v. Washington (1984) 466 U.S. 668, 695.)
The Court of Appeal's original opinion can be found here.