People v. Berch

Filed 5/4/26
               CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                           DIVISION SIX


 THE PEOPLE,                             2d Crim. No. B339641
                                      (Super. Ct. No. 22CR05483)
      Plaintiff and Respondent,         (Santa Barbara County)

 v.

 BRAD ZACK BERCH,

      Defendant and Appellant.


       In the published portion of this opinion, we hold that felony
false imprisonment based on menace does not require a threat to
inflict force that is greater than necessary to effectuate restraint
on a person’s liberty. Because felony false imprisonment based
on menace involves the threat to inflict injury upon another
person, it is not necessary to consider whether the force used
would be greater than that necessary to effectuate the restraint.
       Brad Zack Berch appeals from the judgment after a jury
convicted him of false imprisonment by violence or menace (Pen.
Code, 1 §§ 236, 237, subd. (a)), and found true an enhancement for


     * Pursuant to California Rules of Court, rules 8.1105 and
8.1110, this opinion is certified for partial publication. The
personal infliction of great bodily injury involving domestic
violence (§ 12022.7, subd. (e)). The trial court placed Berch on
supervised probation with terms including 210 days in county
jail.
       Berch contends substantial evidence did not support felony
false imprisonment by violence or menace, the jury instruction
regarding menace was erroneous, counsel rendered ineffective
assistance by failing to request a mistake of fact instruction, and
the great bodily injury jury instruction was erroneous. We
affirm.
            FACTUAL AND PROCEDURAL HISTORY
      Berch and J. 2 were married but separated. Berch had
injured J. in prior incidents of domestic violence that included
him forcing her into various rooms, pushing her, preventing her
from getting up, and slamming her head into the ground.
      In June 2022, J. agreed to go for a drive with Berch in his
pickup truck. They left her home in Los Alamos and took U.S.
101 to Alisos Canyon Road toward Rancho Sisquoc Winery.
Berch parked on the side of the road and the couple began
arguing. He then started driving down Alisos Canyon to U.S. 101
back toward Los Alamos.
      J. told Berch, “Just bring me home.” Because Berch was in
“a rage,” J. recorded their argument on her phone. J. was scared


portions of this opinion to be deleted from publication are Parts
B.2 and B.3 of the Discussion.

      1 Undesignated statutory references are to the Penal Code.


      2 We refer to the victim by her initial to protect her privacy.
(Cal. Rules of Court, rule 8.90(b)(4).)




                                  2
because Berch was driving “erratically” at “[h]igh speeds, not
straight in a line, not in his lane.”
       Berch drove past the first exit to Los Alamos. J. told him,
“You’ve missed my exit. You just drove by my exit. Please take
me home.” She also asked to be let out so she could walk home.
But Berch continued driving on U.S. 101 and did not let her out.
He also missed the second exit to Los Alamos. J. asked again to
be let out of the truck and said she would walk home.
       J. asked Berch where he was going. He replied, “I’m not
actually going anywhere.” She told him he was “all over the
road,” and “I don’t feel safe in the car with you right now.” Berch
eventually exited the freeway and turned the truck around. He
said he was “trying to get on the . . . freeway.” He said he was
going to take J. home.
       Berch then drove toward Los Alamos. He drove past the
first street that was the most direct route to J.’s house. J. told
him, “You just passed my turn,” and “I live down this way.”
Berch then drove past the second street that led to her house.
She said, “You just passed my turn again. Where are you going?”
J. was terrified because Berch was driving toward a very dark,
isolated road. Berch then made a U-turn and stopped in front of
an elementary school about four houses from her home.
       J. unclipped her seatbelt and opened the car door. The door
was unlatched but not fully open. She said, “I’m gonna walk from
here.” Berch replied, “No you’re not.” J. said, “Please let me out.”
He said, “I’ll let you out when I get you to the house.” She
repeated, “Let me out of the car.” He said, “Fuck you. . . . Leave
the door open . . . let the neighbors hear.” She said, “Brad, you’re
not safe. I’m getting out. I’m getting out of the car.” He replied,
“Yeah. Try it, dumb cunt. Try it, you dumb bitch!” Berch made




                                 3
“a malicious . . . bone-chilling laugh.”
       Berch then accelerated the truck and made a sharp left
turn. J.’s door opened and she “flew out” out of the truck and
onto the pavement. Metal tools also “flew” out of the truck and
landed on the ground. Berch got out and yelled at J. to get back
in the truck. J. was injured and unable to get up.
       J. testified the speed and the force of the turn caused the
door to open and her to fly out of the truck. She had similarly
said before trial that she “flew” out or was thrown out of the
truck. But J. also made inconsistent statements that she stepped
out of the truck. She told police she got out of the truck on her
own because she thought the truck was moving slowly enough for
her to exit safely but Berch then sped up.
       J. was taken to the hospital and treated for pain. She had
a compression fracture of the vertebra, abrasions, bruises, and a
hematoma. She stayed in the hospital for five days and was in
pain for weeks.
                             DISCUSSION
     A. Felony false imprisonment based on violence or menace
       Berch contends there was insufficient evidence of violence
or menace for felony false imprisonment. We disagree.
       We review a sufficiency of the evidence challenge for
substantial evidence. Thus, we “ ‘ “review the whole record in the
light most favorable to the judgment below to determine whether
it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.]’ [Citations.] ‘Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence.’ ” (People v. Clark (2011) 52 Cal.4th 856,




                                4
942–943.) “ ‘ “ ‘[T]he judgment may not be reversed simply
because the circumstances might also reasonably be reconciled
with a contrary finding.’ ” ’ ” (Id. at p. 945.) Nor do we “reweigh
the evidence, resolve conflicts in the evidence, or reevaluate the
credibility of witnesses.” (People v. Pre (2004) 117 Cal.App.4th
413, 421.)
       “False imprisonment is the unlawful violation of the
personal liberty of another.” (§ 236.) “ ‘ “Any exercise of force, or
express or implied threat of force, by which in fact the other
person is deprived of [their] liberty or is compelled to remain
where [they do] not wish to remain, or to go where [they do] not
wish to go, is false imprisonment.” ’ ” (People v. Zilbauer (1955)
44 Cal.2d 43, 51.) False imprisonment is a misdemeanor but is
elevated to a felony if “effected by violence, menace, fraud, or
deceit.” (§ 237, subd. (a), see § 17, subd. (a).) The jury
instructions here described menace and violence as the theories
of felony false imprisonment.
                               1. Menace
       “Menace means a verbal or physical threat of harm. The
threat of harm may be express or implied.” (People v. Aispuro
(2007) 157 Cal.App.4th 1509, 1511 (Aispuro).) “When a rational
fact finder could conclude that a defendant’s acts or words
expressly or impliedly threatened harm, the fact finder may find
that there is menace sufficient to make false imprisonment a
felony.” (People v. Wardell (2008) 162 Cal.App.4th 1484, 1491.)
       We conclude substantial evidence supports felony false
imprisonment by menace. Berch was speeding and driving “all
over the road,” which frightened J. In assessing menace, the jury
could reasonably consider J.’s fear of Berch’s erratic driving.
(People v. Islas (2012) 210 Cal.App.4th 116, 127.) After Berch




                                  5
stopped at the school, J. announced that she was getting out and
stated, “Brad, you’re not safe.” Berch cursed at her and said,
“Yeah. Try it,” followed by a malicious laugh. The jury could
reasonably interpret this as an implied threat that J. would be
harmed if she attempted to leave. Thus, Berch’s conduct here is
like the defendant’s in Aispuro, where a conviction for false
imprisonment based on menace was upheld based on the
defendant ordering the young victims to sit in the street and
telling them, “ ‘If you don’t, then I will do something.’ ” (Aispuro,
supra, 157 Cal.App.4th at p. 1513.)
       The conclusion that Berch threatened harm to J. is
supported by evidence of his prior acts of domestic violence in
which he attacked and injured her. The jury was properly
instructed it could consider this evidence as a factor to determine
if he committed felony false imprisonment. (CALCRIM No. 852A;
Evid. Code, § 1109, subd. (a)(1).) The jury could also properly
consider J.’s fear to establish that she interpreted his words and
conduct as threats of harm. (People v. Islas, supra, 210
Cal.App.4th at p. 127.) And, as we explain below in section B.1,
we reject Berch’s contention that felony false imprisonment based
on menace requires a threat to use force greater than reasonably
necessary to effect the restraint.
                               2. Violence
       Substantial evidence also supports felony false
imprisonment through violence. While the prosecutor’s argument
discussed only menace, the jury was not limited to that theory
and could also consider felony false imprisonment by violence, as
stated in the instruction the jury received (CALCRIM No. 1240,
modified). (People v. Perez (1992) 2 Cal.4th 1117, 1126.)
       “Violence . . . means the exercise of physical force used to




                                 6
restrain over and above the force reasonably necessary to effect
such restraint.” (People v. Babich (1993) 14 Cal.App.4th 801, 806
(Babich), italics omitted.) “ ‘ “[V]iolence” . . . include[s] any
application of force even though it entails no pain or bodily harm
and leaves no mark.’ ” (People v. Cruz-Partida (2022) 79
Cal.App.5th 197, 207, fn. 9 [assault].) And here, Berch’s act of
driving erratically, beyond that necessary to restrain J. by
operating a moving vehicle, constitutes violence.
       In People v. Bamba (1997) 58 Cal.App.4th 1113, 1124
(Bamba), the court concluded that false imprisonment by violence
was established by driving erratically. The victim there climbed
on top of the defendant’s van to avoid being run over, and the
defendant restrained her by driving with her on top. The court
stated, “It is likely appellant could have caused [the victim] to
remain on the vehicle if he had obeyed the speed limit and driven
safely. However, there was evidence that appellant drove as fast
as 80 miles per hour on the freeway and purposefully swerved his
vehicle, thus increasing the danger to [the victim]. Thus, the
‘force’ appellant used to keep [the victim] on top of the van was
greater than that reasonably necessary to effect her restraint,
and increased the danger to her.” (Ibid.) As in Bamba, Berch’s
erratic driving, including speeding and not staying in his lane,
increased the danger to J. beyond that required to effectuate her
restraint through a moving vehicle.
        Berch also contends there was insufficient evidence of
intent to restrain because he did not intend his unsafe driving to
be a means of restraining J. (§ 20; People v. Sipult (1965) 234
Cal.App.2d 862, 867 [act causing confinement requires intent to
cause it].) We are not persuaded. The jury was instructed that
felony false imprisonment required that Berch “intentionally”




                                7
restrain the victim by violence or menace. (CALCRIM No. 1240,
modified.) The jury was not required to accept Berch’s contention
that his erratic driving was only “incidental to the restraint”
because he was angry or distracted. Considering Berch’s erratic
driving together with his deviations from the route to J.’s home
and history of domestic violence, the jury could reasonably
conclude he intended his dangerous driving and his challenge to
“[t]ry” to exit the vehicle as means to restrain her through
menace or violence.
                          B. Jury instructions
       “A trial court must instruct the jury, even without a
request, on all general principles of law that are ‘ “closely and
openly connected to the facts and that are necessary for the jury’s
understanding of the case.” ’ ” (People v. Burney (2009) 47
Cal.4th 203, 246.) “Even if the court has no sua sponte duty to
instruct on a particular legal point, when it does choose to
instruct, it must do so correctly.” (People v. Castillo (1997) 16
Cal.4th 1009, 1015.) We review claims of instructional error de
novo. (People v. Covarrubias (2016) 1 Cal.5th 838, 919.)
                               1. Menace
       Berch contends the jury instruction defining “menace” was
erroneous because it did not include a requirement that the force
threatened must be greater than that reasonably necessary to
effect the restraint. We again disagree.
       The jury was instructed that the People must prove that:
       “1. The defendant intentionally and unlawfully restrained,
confined, or detained someone or caused that person to be
restrained, confined, or detained by violence or menace;
       “AND
       “2. The defendant made the other person stay or go




                                 8
somewhere against that person’s will.
       “Violence means using physical force that is greater than
the force reasonably necessary to restrain someone.
       “Menace means a verbal or physical threat of harm. The
threat of harm may be express or implied.” (CALCRIM No. 1240,
modified.)
       This instruction correctly states the law. (Aispuro, supra,
157 Cal.App.4th at pp. 1511–1512; Bamba, supra, 58 Cal.App.4th
at p. 1123.)
       Berch forfeited his instructional error claim because he did
not object in the trial court or request an additional instruction.
“ ‘A party may not complain on appeal that an instruction correct
in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying
or amplifying language.’ ” (People v. Hart (1999) 20 Cal.4th 546,
622.) But in the absence of an objection, we may review a jury
instruction “if the substantial rights of the defendant were
affected thereby.” (§ 1259.)
       Here, we conclude Berch’s substantial rights were not
affected because whether a threat constitutes menace does not
depend on the amount of force otherwise necessary to effectuate
the restraint. The Legislature has determined that certain types
of false imprisonment—those “effected by violence, menace,
fraud, or deceit”—are more severe and warrant felony
punishment. (§ 237, subd. (a).) To constitute false imprisonment
by menace, the factfinder need not determine whether the
menace threatened more force than would have been reasonably
necessary to effectuate the restraint. If a false imprisonment is
accomplished by menace, it is unnecessary to compare it with
some other means the defendant could have used to effectuate




                                 9
the restraint.
       Babich, supra, 14 Cal.App.4th 801, upon which Berch
relies, is not to the contrary. For purposes of felony false
imprisonment, Babich held that “[v]iolence . . . means the
exercise of physical force used to restrain over and above the
force reasonably necessary to effect such restraint.” (Id. at
p. 806, italics omitted.) Babich reasoned that “a contrary
statutory interpretation, rendering ‘violence’ synonymous with
‘force,’ would allow the felony offense to largely swallow up the
misdemeanor.” (Ibid.) In other words, effectuating a person’s
restraint through force should not be a felony when the exercise
of such force would only constitute a misdemeanor. As Babich
observed, “violence always includes force, but force may or may
not include violence.” (Id. at p. 807, fn. 2.)
       But the same logic does not apply to menace. False
imprisonment may be effected by “ ‘ “[a]ny exercise of force, or
express or implied threat of force.” ’ ” (People v. Zilbauer, supra,
44 Cal.2d at p. 51, italics added.) A misdemeanor false
imprisonment can be effected through force or a threat of force
that does not involve a threat of injury, e.g., by holding an
individual’s arms, threatening to lock them into a room, etc.
       In contrast, “menace” is a threat that “ ‘shows an intention
to inflict an injury upon another.’ ” (People v. Elam (2001) 91
Cal.App.4th 298, 307, italics added [“menace” definition in rape
statute not significantly different from common dictionary
definition].) The jury here was properly instructed that
“[m]enace” is “a verbal or physical threat of harm.” (CALCRIM
No. 1240, modified, second italics added; Aispuro, supra, 157
Cal.App.4th at p. 1512.) No error in the jury instruction has been
shown.




                                10
                          2. Mistake of fact
       Berch contends counsel rendered ineffective assistance by
failing to request a jury instruction regarding mistake of fact.
We are not persuaded.
       Mistake of fact may negate the intent required to commit a
crime. (CALCRIM No. 3406.) Because false imprisonment is a
general intent crime (People v. Fernandez (1994) 26 Cal.App.4th
710, 716), the mistaken belief must be reasonable. (People v.
Lawson (2013) 215 Cal.App.4th 108, 115.) “[T]he defendant’s
mistaken belief must relate to a set of circumstances which, if
existent or true, would make the act charged an innocent act.”
(Ibid.)
       “The trial court does not have a sua sponte duty to give a
mistake of fact instruction. [Citations.] The court is, however,
required to give such an instruction on request, where a
defendant presents substantial evidence on mistake of fact and
the instruction is legally correct.” (People v. Speck (2022) 74
Cal.App.5th 784, 791.)
       Berch contends he could have been mistaken about three
facts: whether J. was asking to be let out of the car or just wanted
to be taken home, whether he was on a freeway or a highway,
and whether the door was closed when he accelerated away from
the school. As discussed below, none of these matters required a
mistake of fact instruction.
       First, the audio recording on J.’s phone undisputably
establishes that while driving from the area of the winery, J.
asked to be let out of the car and also asked to be taken home.
But even if, as Berch contends, he believed J. only wanted to be
taken home, he instead kept her in the car while he bypassed
exits and streets toward her house.




                                11
       When Berch stopped at the school, J. told Berch multiple
times to let her out of the car. There is no evidence he did not
hear or misunderstood her. Instead, Berch responded with
obscenities and told J. to “[l]eave the door open.” When she
repeated she was getting out, Berch again acknowledged her
statement by daring her to “[t]ry it.” No evidence supports his
claim that he was mistaken about J.’s statements, or that such a
mistake would be reasonable.
       The second purported mistake, whether Berch believed he
was on the freeway or merely a highway, is based on the
testimony of a California Highway Patrol officer. The officer
testified that pedestrians are prohibited on freeways and it is
unlawful to stop a vehicle on a freeway except in an emergency.
Such restrictions do not apply to highways that are not freeways.
       Part of U.S. 101 on which Berch drove in the Los Alamos
area is not a freeway, but no signs designate that fact. It is
unclear whether the portion of U.S. 101 when Berch said he was
“trying to get on the . . . freeway” was a freeway or highway.
There was no evidence that Berch mistakenly believed he was on
a freeway as opposed to a highway, nor evidence that offramps
were not available on the freeway where he could lawfully let J.
out of the car. Moreover, the designation of a freeway versus a
highway was not significant to the defense—counsel argued to
the jury that whether it was a freeway or a highway, it would
have been unsafe to let J. out of the car at night with no
pedestrian path, no lights, no cell phone reception, and cars
speeding by. Defense counsel’s argument was supported by the
necessity instruction given by the court at counsel’s request
(CALCRIM No. 3403).
       The third purported mistake, that Berch believed the door




                               12
was closed, would not negate an element of the crime if true.
(People v. Speck, supra, 74 Cal.App.5th at p. 791.) J. testified the
door was “unlatched, but not fully opened.” She did not recall
that there was “air between the door and the truck,” but it was
“obviously open.” If Berch believed the door was locked, his
acceleration and sharp turn demonstrated his intent to restrain
J. in the car over her objections.
       To establish ineffective assistance of counsel, “the
defendant must show that counsel’s performance was deficient,”
and “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” (Strickland v. Washington (1984) 466 U.S. 668,
687, 694.) “Competent counsel is not required to make all
conceivable motions” but “should realistically examine the case,
the evidence, and the issues, and pursue those avenues of defense
that, to their best and reasonable professional judgment, seem
appropriate under the circumstances.” (People v. Freeman (1994)
8 Cal.4th 450, 509.)
       Here, ineffective assistance of counsel has not been shown
because there were reasonable tactical reasons why counsel
would not request a mistake of fact instruction. (People v. Mai
(2013) 57 Cal.4th 986, 1009; see Strickland, at p. 689.) Because
the instruction requires that the defendant reasonably believed
the mistaken facts, counsel could have been concerned that the
jury might believe this shifted the burden to Berch to prove his
innocence by showing his beliefs were reasonable. This concern
is demonstrated by counsel’s expression of a similar concern that
the necessity instruction (CALCRIM No. 3403) “would shift the
burden onto the defense” before counsel ultimately agreed to the
instruction. Berch has not shown ineffective assistance of




                                13
counsel.
                         3. Great bodily injury
       The jury found true the allegation that Berch “personally
inflict[ed] great bodily injury under circumstances involving
domestic violence in the commission of a felony.” (§ 12022.7,
subd. (e).) Berch contends the trial court erred by not instructing
the jury sua sponte regarding causation for the great bodily
injury enhancement. We conclude otherwise.
       The court instructed the jury that the People had the
burden to prove beyond a reasonable doubt “that the defendant
personally inflicted great bodily injury” on J. (CALCRIM No.
3163.) Berch did not request CALCRIM No. 240, which defines
proximate cause of an injury as “the direct, natural, and probable
consequence of the act [or omission]. . . . A natural and probable
consequence is one that a reasonable person would know is likely
to happen if nothing unusual intervenes.” (Italics omitted.) The
court is required to instruct sua sponte regarding proximate
causation when that is at issue. (People v. Bell (2020) 48
Cal.App.5th 1, 17.)
       Here, proximate cause was not an issue. “[T]he Legislature
did not employ the proximate cause concept when it articulated
the requirements for enhancement under section 12022.7, but
instead used the language ‘personally inflicts great bodily
injury.’ . . . We decline to impute the proximate cause concept into
the statute when the Legislature left it out.” (People v. Rodriguez
(1999) 69 Cal.App.4th 341, 350; see People v. Bland (2002) 28
Cal.4th 313, 337.)
        “The meaning of the statutory requirement that a
defendant personally inflict the victim’s injury does not differ
from its nonlegal meaning. [Citation.] ‘[T]he phrase “personally




                                14
inflicts” means that someone “in person” . . ., that is, directly and
not through an intermediary, “cause[s] something (damaging or
painful) to be endured.” ’ ” (People v. Ollo (2021) 11 Cal.5th 682,
688.) Here, Berch “personally inflicted great bodily injury on [J.]
during the commission of” false imprisonment when he
accelerated and turned sharply, ejecting J. from a moving vehicle.
(CALCRIM No. 3163.) No further jury instruction was required.
                           DISPOSITION
       The judgment is affirmed.
       CERTIFIED FOR PARTIAL PUBLICATION.




                                      BALTODANO, J.


We concur:



             YEGAN, Acting P. J.



             CODY, J.




                                 15
                   Stephen K. Dunkle, Judge

            Superior Court County of Santa Barbara

                ______________________________

      Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jonathan James Kline and Melanie Dorian,
Deputy Attorneys General, for Plaintiff and Respondent.