Filed 4/22/15 P. v. Howard CA2/7 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SEVEN 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

ARTHUR ROGERS HOWARD, 

 Defendant and Appellant. 

 B254208 

 (Los Angeles County 

 Super. Ct. No. BA396467) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E. 

Veals, Judge. Affirmed. 

 Janet J. Gray, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, William H. Shin and 

Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent. 

________________________ 
2

INTRODUCTION 

 Defendant Arthur Rodgers Howard appeals from a judgment of conviction entered 

after a jury trial. Howard was charged in a second amended information with one count 

of attempted kidnapping of B.C., a 13-year-old girl, with a special allegation the victim 

was under the age of 14 years (Pen. Code,1 §§ 207, subd. (a), 664; count 1), and one 

count of failure to register as a sex offender upon release from incarceration (§ 290.015, 

subd. (a); count 3).2 The information also alleged Howard suffered two prior serious or 

violent felony convictions within the meaning of the “Three Strikes” law (§§ 667, 

subds. (b)-(i), 1170.12, subds. (a)-(d)), and had previously served six separate prior 

prison terms (§ 667.5, subd. (b)). The trial court granted Howard’s motion to sever the 

failure to register count from the attempted kidnapping count and to bifurcate trial on the 

prior conviction allegations. 

 The jury found Howard not guilty of attempted kidnapping, but convicted him of 

the lesser included offense of felony false imprisonment, in violation of section 237. 

Howard pleaded no contest to the failure to register charge, and admitted the prior 

convictions. 

 On appeal, Howard contends there was not substantial evidence that he used any 

more force than was necessary to restrain B.C.’s movement. We affirm. However, we 

correct clerical errors on the abstract of judgment, including that Howard was convicted 

of attempted kidnapping instead of felony false imprisonment and imposing a three-year 

term on count 3 without doubling the term under the three strikes law. (People v. 

Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order abstract of judgment 

corrected to accurately reflect trial court’s oral pronouncement].) 

 

1 All statutory references are to the Penal Code. 

2 Count 2 for attempted kidnapping of B.C.’s brother Johnny C. on the same date 

was dismissed prior to trial. 
3

FACTUAL AND PROCEDURAL BACKGROUND 

A. Testimony at Trial

 The evidence at trial established that on the evening of April 11, 2012, Howard 

approached 13-year-old B.C. near the corner of South Broadway and Florence Avenue in 

Los Angeles as she was walking with her mother Paula Alonso and her younger brother. 

Howard grabbed B.C.’s wrist and attempted to pull her toward the street. The primary 

issue at trial was whether Howard acted with the specific intent to kidnap B.C or, as to 

the lesser included offense of false imprisonment, whether Howard restrained B.C. by 

violence or menace. 

1. The Prosecution’s Witnesses 

 a. B.C.’s Testimony

 B.C. testified she and her mother were holding hands with her three-year-old 

brother and walking down Florence Avenue towards South Broadway.3 B.C. was closest 

to the street. B.C. heard a woman scream that somebody had touched her. B.C. testified 

that, shortly thereafter, Howard came up and “grabbed me by my right arm. . . . He tried 

to pull me away.” Howard grabbed her by the wrist. 

 Howard said either “Come with me” or “Come here,” and tried to pull B.C. 

towards the street. B.C. said, “No” and was “pulling against him.” B.C. was unable to 

break free of Howard’s grasp, and he moved her “two to three feet.” B.C. never released 

her brother’s hand because she was afraid her little brother would run away and “because 

[she] was afraid of being taken away.” Howard let go of her wrist and fled when some 

men at a nearby bus stop came toward them. B.C. later told police officers Howard was 

“drunk” because he smelled of alcohol. 

 

3 B.C. was 14 years old when she testified at trial. 
4

 B.C. identified Exhibit 2 as a photograph of herself taken on April 11, 2012 while 

she was still in the area of Florence Avenue and South Broadway. B.C. testified: 

 “Q. And I notice in People’s Number 2, you are pointing to your right arm. Why 

are you pointing to that area? 

 “A. Because it was red. 

 “Q. And the redness that you are talking about, is that from when you were 

grabbed? 

 “A. Yes.” 

 B.C. saw Howard cross the street and enter a Jack in the Box restaurant. 

 b. Paula Alonso’s Testimony

 B.C.’s mother Alonso testified that while she was walking with B.C. and her son 

on Florence Avenue, she saw Howard near a bus stop ahead of them. He placed his 

palms on a woman’s chest and rubbed her breasts. The woman pushed Howard off of her 

and boarded a bus. Alonso testified Howard then quickly turned and grabbed B.C’s arm. 

He said, “Come on,” and pulled B.C. toward the street. Alonso testified she pulled on her 

son and tried to grab her daughter to get her away from Howard. She told Howard in 

Spanish to let go of B.C. Howard did not release B.C. and was able to pull her a distance 

of “four to five feet more or less.” 

 Alonso testified she was unable to break Howard’s grasp of her daughter’s arm 

until two men at the nearby bus stop approached to help. At that point, Howard ran 

across the street and entered a Jack in the Box restaurant. Alonso called 9-1-1. She 

observed that the restaurant “kicked him out,” and Howard returned to near where she 

was standing with B.C. and her son. Shortly thereafter, Alonso flagged down a passing 

patrol car and directed the police officer to the entrance of an alley where she last saw 

Howard. Alonso also told the officer that Howard was drunk because she could smell 

alcohol on his breath and he staggered when he walked. 
5

 c. Manuel Munoz’s testimony

 Manuel Munoz testified he owned a store near Florence Avenue and South 

Broadway. On the evening of April 11, 2012, he saw B.C. with her mother on Florence 

Avenue. He testified as to B.C. that “she was scared.” At some point Munoz saw 

Howard run towards an alley when the police arrived. Munoz directed the officers to the 

alley. 

 d. Officer Nielson’s Testimony

 Los Angeles Police Officer Bradley Nielson testified he was on patrol on the 

evening of April 11, 2012, when Alonso flagged him down. Nielson got out of his car to 

speak with Alonso. Alonso was “frantic” and speaking in Spanish, and Nielson could not 

understand her. Munoz translated for Alonso. Nielson then entered the alley and found 

Howard under a car in a parking lot adjacent to the alley. Nielson took Howard into 

custody, escorted him to the patrol car, and waited for assistance from additional officers. 

Alonso approached and began talking in Spanish to Munoz, who was standing with 

Nielson and Howard. Nielson testified that Howard volunteered, “I didn’t touch that 

bitch. I didn’t grab on the bitch.” Nielson had not mentioned touching or grabbing 

anybody before Howard made the statement. 

 At some point, Howard gave a false name to Nielson and was placed in the patrol 

car. Although Nielson and another officer never questioned Howard about what had 

occurred, Howard repeatedly asked them, “I’m suppose[d] to have grabbed the little kid’s 

arm?” and then denied it.4

 

4 A video recording of Howard’s conversation with the two officers inside the patrol 

car was played during trial for the jury, and a transcript of the recording was provided to 

the jurors. 
6

 2. The Defense Case 

 The defense called B.C. who testified she did not recall seeing Howard grab 

anyone’s breast on the evening of April 11, 2012. Howard did not testify. 

B. Verdict and Sentencing

 The jury acquitted Howard on the charge of attempted kidnapping and convicted 

him of the lesser included offense of felony false imprisonment by force or menace 

(§ 237).5 Howard then pleaded no contest to the charge of failure to register (§ 290.015, 

subd. (a)). Howard also admitted the allegations as to his prior convictions, including a 

prior conviction under the three strikes law. 

 The trial court denied Howard’s motion to strike his prior serious felony 

conviction. The court selected count 1 for felony false imprisonment by force or menace 

as the base term and imposed the upper term of three years, doubled as a second strike 

(§§ 667, subds. (a)(1), (b)-(i), 1170.12), for a term of six years. The court imposed one 

year for each of the three prior prison terms (§ 667.5, subd. (b)) for an additional three 

years. The court sentenced Howard to the upper term of three years on count 3 for failure 

to register as a sex offender, to run concurrent to count 1.6 The court dismissed the three 

remaining prior prison term enhancements (§ 1385). The court sentenced Howard to a 

total aggregate term of nine years in state prison. 

 

5 The trial court instructed the jury on attempted kidnapping and the lesser included 

offenses of false imprisonment by force or menace and misdemeanor false imprisonment. 

6 The court should have doubled the sentence on count 3 under the three strikes law 

for a total of six years to run concurrent. The abstract of judgment is modified to reflect 

this six-year term on count 3. Because the court ordered count 3 to run concurrent, this 

change does not modify the aggregate prison sentence. 
7

DISCUSSION 

A. Standard of Review

“Our task in deciding a challenge to the sufficiency of the evidence is a wellestablished one. ‘[W]e review the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial evidence—that is, evidence 

that is reasonable, credible, and of solid value—from which a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which 

the People rely primarily on circumstantial evidence, the standard of review is the same. 

[Citations.]’ [Citations.]” (People v. Solomon (2010) 49 Cal.4th 792, 811.) 

 We presume in support of the judgment the existence of any fact the jury 

reasonably could have deduced from the evidence. (People v. Zamudio (2008) 43 Cal.4th 

327, 357.) In applying this standard, “‘[w]e resolve neither credibility issues nor 

evidentiary conflicts . . . . [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is 

unwarranted unless it appears “that upon no hypothesis whatever is there sufficient 

substantial evidence to support”’ the jury’s verdict. [Citation.]” (Ibid.) 

B. There was Substantial Evidence To Support a Conviction for Felony False 

Imprisonment

 Howard argues that his conviction for felony false imprisonment must be reversed 

because there was insufficient evidence that he restrained B.C. by violence or menace. 

We disagree. 

 1. Felony false imprisonment requires proof of restraint by force or menace. 

“False imprisonment is the unlawful violation of the personal liberty of another.” 

(§ 236.) The crime of false imprisonment is elevated to a felony when it is “effected by 
8

violence, menace, fraud, or deceit . . . .”7 (§ 237, subd. (a); People v. Islas (2012) 210 

Cal.App.4th 116, 122.) As this district has held: “‘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.’ [Citation.]” (People v. Castro (2006) 

138 Cal.App.4th 137, 140 (Castro); accord, People v. Dominguez (2010) 180 

Cal.App.4th 1351, 1357.) False imprisonment by menace entails “‘a threat of harm 

express or implied by words or act.’” (People v. Islas, supra, at p. 123.) 

 2. There was substantial evidence that Howard restrained B.C. by the 

 use of violence. 

 Howard does not contest that when he grabbed B.C’s wrist and pulled her against 

her will, he violated her “personal liberty” sufficient to support a verdict of misdemeanor 

false imprisonment. (See § 236; People v. Reed (2000) 78 Cal.App.4th 274, 280 

[“‘“personal liberty”’” violated for false imprisonment where “‘the victim is “compelled 

to remain where [she] does not wish to remain, or to go where [she] does not wish to 

go”’”].) Instead, Howard contends the evidence is insufficient to show he used any more 

force than was “‘reasonably necessary to effect the restraint.’” (Castro, supra, 138 

Cal.App.4th at p. 140.) 

 The holding in Castro is directly on point. There, the defendant made a lewd 

comment to a 16-year-old girl, to which she responded, “You’re a dirty man.” The 

defendant then grabbed the girl’s arm, turning her around and causing her to take a few 

steps toward defendant’s car. (Castro, supra, 138 Cal.App.4th at p. 139.) In finding the 

 

7 Felony false imprisonment is punishable by imprisonment in state prison for 16 

months, two years or three years. (§§ 18, 237, subd. (a).) Misdemeanor false 

imprisonment is punishable by imprisonment in the county jail not to exceed one year 

and/or a fine of $1,000. (§ 237, subd. (a).) 
9

defendant’s conduct was sufficient to support felony false imprisonment by violence, the 

court reasoned, “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.” (Id. at p. 143.) 

 Here, Howard did more than merely restrain B.C. by grabbing her arm. It is clear 

from B.C.’s testimony and the photographic evidence that Howard grabbed B.C.’s wrist 

with enough force to cause her wrist to become red and to move her body two to five feet 

toward the street,8 even though B.C. was pulling away from him and holding her 

brother’s hand.

 Howard’s reliance on our decision in People v. Matian (1995) 35 Cal.App.4th 480 

(Matian) is misplaced. Most notably, Matian involved the question of whether the 

defendant committed felony false imprisonment by menace, not violence.9 In Matian, 

the defendant sexually assaulted the victim, then when she started to leave, he grabbed 

her arm and yelled at her, “‘nothing happened.’” The victim then sat down in a chair in 

the room while the defendant glared at her from an adjacent office and got up out of his 

chair to approach her every time she started to leave. (Id. at p. 485.) The victim testified 

she stayed in the room because she did not want him to touch her again. (Ibid.) The 

People conceded there was no evidence the defendant used violence to restrain the 

victim’s liberty. (Ibid.) 

 

8 B.C. testified that Howard moved her two to three feet toward the street; Alonso 

testified that Howard moved B.C. four to five feet. Howard seeks to distinguish Castro

on the basis that the defendant in that case attempted to pull the victim toward the car and 

directed a lewd conduct toward her. However, this district in Castro based its holding on 

the fact the defendant moved the victim several feet toward his car, not the lewd conduct. 

(Castro, supra, 138 Cal.App.4th at p. 143.) Here Howard similarly moved B.C. up to 

five feet toward the street. 

9 For the same reason, Howard’s reliance on two other cases involving the standard 

for menace are not persuasive. (See People v. Wardell (2008) 162 Cal.App.4th 1484, 

1490-1491; People v. Aispuro (2007) 157 Cal.App.4th 1509, 1513.) 
10

 We found that the defendant’s actions to glare at the victim while getting out of 

his chair and approaching her each time she tried to leave was “inadequate to establish an 

express or implied threat of harm.” (Matian, supra, 35 Cal.App.4th at pp. 486-487.)10 In 

this case, we need not address the required showing for menace because, as we discuss 

above, there was sufficient evidence of violence to support Howard’s conviction for 

felony false imprisonment. 

 

10 As Howard acknowledges, since we decided Matian in 1995, this district has 

criticized its holding. (See Castro, supra, 138 Cal.App.4th at p. 143 [“[t]hus, we do not 

agree with the result in Matian”]; People v. Islas, supra, 210 Cal.App.4th at p. 125 

[“[b]ased on the criticism of Matian . . . it is clear the absence of an express threat, 

weapons or physical contact with the victim is not determinative”].) Other districts have 

similarly criticized the holding in Matian. (See People v. Wardell, supra, 162 

Cal.App.4th at p. 1491 [“Matian’s holding has been roundly criticized, even within the 

Second District”]; People v. Aispuro, supra, 157 Cal.App.4th at p. 1513 [“[w]e disagree 

with the Matian court’s conclusion that such facts were inadequate to establish an express 

or implied threat of harm”].) We need not revisit Matian here, however, because we find 

sufficient evidence of violence to uphold the felony false imprisonment conviction. 
11

DISPOSITION 

 The judgment is affirmed. The abstract of judgment is corrected to reflect that a 

jury convicted Howard of felony false imprisonment, a lesser included offense of 

attempted kidnapping, and to reflect a six-year term on count 3 to run concurrent to the 

sentence on count 1. The superior court is directed to prepare a corrected abstract of 

judgment and to forward it to the Department of Corrections and Rehabilitation. 

 FEUER, J.*

We concur: 

 PERLUSS, P. J. 

 ZELON, J. 

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.