Tuesday, May 5, 2026
Page 3
Court of Appeal:
False Imprisonment by Menace Does Not Require Extra Force
Opinion Acknowledges Jurisprudence Establishing That Physicality Required for Felony Version of Crime Must Be More Than That Necessary to Control Victim, Says Rule Is Inapplicable Where Offense Accomplished by Threat
By a MetNews Staff Writer
Div. Six of this district’s Court of Appeal held yesterday that a defendant was properly convicted of felony false imprisonment based on testimony that he drove erratically with his then-wife in the car and, when she demanded that he let her out of the vehicle, told her “try it” with a “malicious” laugh, rejecting the assertion that prosecutors must show that he threatened force that is greater than that necessary to effectuate restraint on a person’s liberty.
The crime is defined, in Penal Code §236, as “the unlawful violation of the personal liberty of another.” Sec. 237 specifies that the offense is a misdemeanor unless the restraint was accomplished by “violence, menace, fraud, or deceit.”
Yesterday’s opinion, written by Justice Hernaldo J. Baltodano and joined in by Acting Presiding Justice Kenneth Yegan as well as Justice Tari L. Cody, acknowledges case law establishing that the “violence” required to elevate the offense to felony status must be more than that necessary to prevent the victim from leaving but declares that the rule does not apply if a defendant is accused of committing the crime by way of “menace.”
Erratic Driving
Appealing his conviction was Brad Berch, who picked up his then-estranged wife, Jenny Bell-Berch, from her Santa Ynez Valley-area home in June 2022 after she agreed to go for a ride with him. According to Bell-Berch, he got angry at some point during the trip and began to drive “erratically” at a high rate of speed.
After she allegedly demanded that he take her home, he eventually stopped in front of an elementary school four houses away from her residence, and she unclipped her seatbelt as she started to open the door, such that it was unlatched but not fully ajar. When she said, “I’m getting out,” he responded by taunting her to do so before he accelerated, causing her to fly out of the truck when the door swung wide open.
She suffered a compression fracture of the vertebra, abrasions, bruises, and a hematoma, requiring a five-day hospital stay. In 2024, a jury found him guilty of felony false imprisonment, and Santa Barbara Superior Court Judge Stephen K. Dunkle sentenced him to supervised probation on the condition that he serve 210 days in county jail.
Jury Instruction
Baltodano remarked:
“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…disagree.”
Noting that the instruction informed the jury that “menace” means “a verbal or physical threat of harm” that may be “express or implied,” he opined that “[t]his instruction correctly states the law.”
He pointed out that “Berch forfeited his instructional error claim because he did not object in the trial court” and said that “we may review a jury instruction” in such circumstances if a defendant’s substantial rights are at stake. Applying those principles, he said:
“[W]e 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.”
Reasonably Necessary
The jurist continued:
“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 the restraint.”
Citing the 1993 decision by Div. Three of the First District Court of Appeal in People v. Babich as standing for the proposition that, for purposes of felony false imprisonment, “[v]iolence…means the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint,” he acknowledged:
“Babich reasoned that ‘a contrary statutory interpretation, rendering “violence” synonymous with “force,” would allow the felony offense to largely swallow up the misdemeanor.’…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.’ ”
Different Logic
Reasoning that “the same logic does not apply to menace,” Baltodano declared:
“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 [involving injury]….The jury here was properly instructed that ‘[m]enace’ is ‘a verbal or physical threat of harm.’ ”
He added:
“We conclude substantial evidence supports felony false imprisonment by menace. Berch was speeding and driving ‘all over the road,’ which frightened [the victim]. In assessing menace, the jury could reasonably consider [the victim’s] fear of Berch’s erratic driving….After Berch stopped at the school, [Bell-Berch] announced that she was getting out….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.”
Saying that “the jury was properly instructed it could consider” evidence of prior acts of domestic violence “as a factor to determine if he committed felony false imprisonment,” he commented:
“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.”
The case is People v. Berch, 2026 S.O.S. 1277.
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