California Court of Appeal Sep 6, 2016 No. D067811Unpublished
Filed 9/6/16 P. v. Brauns CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067811
Plaintiff and Respondent,
v. (Super. Ct. No. SCN337075)
FRANK BRAUNS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Richard S.
Whitney, Judge. Affirmed.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Allison Hawley and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Frank Brauns of inflicting corporal injury on a spouse (Pen.
Code, § 273.5, subd. (a); count 1)1 and false imprisonment by violence or menace
(§§ 236, 237, subd. (a); count 2). As to both counts, the jury found true allegations
Brauns personally used a claw hammer as a deadly weapon (§ 1192.7, subd. (c)(23)) and
personally inflicted great bodily injury (§§ 1192.7, subd. (c)(8), 12022.7, subd. (e)). As
to count 2, the jury also found true an allegation Brauns personally used a knife as a
deadly weapon (§ 1192.7, subd. (c)(23)). In a bifurcated proceeding the court found true
allegations Brauns had one prior strike conviction and one prior serious felony conviction
(§§ 667, subds. (a)(1) & (b)-(i), 668, 1170.12, 1192.7, subd. (c)) from an out-of-state
incident. The court sentenced Brauns to 14 years in prison for count 1 based on double
the middle term for six years plus three years for the personal infliction of great bodily
injury enhancement and five years for the serious felony enhancement. The court stayed
a three-year sentence for count 2 pursuant to section 654.
Brauns contends on appeal his conviction for count 1 should be reversed because
the court instructed the jury with CALCRIM No. 3472, which he contends misstates the
law on self-defense, and failed to sua sponte instruct the jury with CALCRIM No. 3471
on the right of self-defense for an initial aggressor. Brauns also contends there was no
substantial evidence to prove false imprisonment by violence or menace in violation of
his federal right to due process. We conclude there was no prejudicial instructional error
1 Further statutory references are to the Penal Code unless otherwise indicated. 2
and there was substantial evidence to support felony false imprisonment. We affirm the
judgment.
FACTUAL BACKGROUND
A
Brauns married Jordana Erler in October 2013. Brauns was violent with Erler on
two occasions in February 2014 while she was pregnant. On one occasion, he pulled her
out of bed by her leg, threatened her with a knife, punched her and choked her. She
called the police, but hung up before speaking with anyone. A few days later, Brauns
again became violent. He pulled her out of bed by her leg again and threatened her with
a knife by holding it to her stomach. She contacted the police and Brauns was taken to
jail. Erler obtained a restraining order against him. Erler had Brauns' son in August
2014. The child was taken into custody by child protective services when he was born.
B
On the night of September 21, 2014, Erler allowed Brauns to stay with her because
he was complaining about pains and lack of transportation. They discussed the need for
Brauns to get services to get their child back. Erler told Brauns he needed to leave first
thing in the morning.
The next morning, Erler woke Brauns and told him he had to leave. Brauns said
he could leave when he wanted. When she urged him to get up, he got up and started
screaming, "Where's my son?" She screamed back at him saying he knew where their
son was and told him he needed to go. They started pushing each other. While she was
lying down he got over her and she pushed him back with her feet. She said if he did not 3
leave peacefully, she would call the police. He grabbed the mobile phone out of her hand
and threw it against a wall where it broke.2
Erler ran toward the living room to grab the home phone when she heard the
garage door shut. When she thought he had left, Brauns came back in and hit her left
temple with a hammer as she was standing in the hallway. Because she was bleeding, she
went into the bathroom to wash away the blood and wrapped a towel around her head as
tightly as she could.
When Erler came out of the bathroom, her roommate was peeking out of her door
and Erler told her to "[c]all the cops." When Brauns saw the roommate, he told her to
stay out of their business.
Erler testified Brauns pushed or pulled her into the bedroom and blocked her exit.
He had a hammer in his hand. He pulled a chair in front of the door and sat down. He
pushed her down on the bed several times and she asked him why he was doing this. She
noticed he had a knife in his hand and he looked relentless. He said, "I'm going to end
your life if you move again. Stay put. You're done. This is over."
C
Erler's roommate called 911 and reported she awoke to hear Erler and her husband
fighting and screaming. Erler yelled for the roommate to call the police. The roommate
2 Although the mobile phone was not found during the police investigation, the officer had not looked for it. 4
told the 911 dispatcher she did not want to become involved because she had already
gotten in trouble because of this guy.3
When officers arrived, the roommate came out and met them in the driveway. She
appeared nervous and very concerned about what was going on in the house. She said
she awoke to hear Erler screaming to call the police and it sounded like Brauns was
hurting Erler. The roommate gave them permission to enter the house and confirmed the
bedroom in which she heard the altercation.4
D
The officers did not hear anything when they entered the house. When they
reached the bedroom, one of the officers knocked on the door. He heard a man's voice,
which sounded angry, saying, " 'Who is it?' or 'What do you want?' " When the first
officer announced it was the police and asked for the door to be opened, he heard a
woman start screaming loudly like she was being hurt. The officer tried the door, which
was locked, and then broke open the door.
Erler testified Brauns attacked her again with the hammer when the police
knocked on the door. Brauns also jabbed her with a knife, leaving a mark on her chin.
3 The parties stipulated the roommate was arrested a month earlier for misdemeanor battery, misdemeanor resisting arrest, and misdemeanor under the influence of a controlled substance with Brauns as the alleged victim. No criminal charges were filed.
4 The second officer had a body camera on his chest, which he activated shortly after they arrived at the scene. Footage from the incident was shown to the jury.
5
The first officer saw a female with a male behind her and it looked like a struggle
was going on. Since he heard the female scream, the officer grabbed the male and carried
him down to the bed. The room was dark other than the flashlight the officer was
carrying. The officers took Brauns into custody.
E
Erler's hair was soaked in blood. She reached to pick up the hammer from the
floor. When an officer told her to put it down, she complied. A globe light cover from
the ceiling fan was broken on the floor. Erler stated it was broken by the hammer during
the incident.
Erler told the officers Brauns tried to kill her. Brauns responded, "Shouldn't of
come at me with that fucking hammer." Erler said, "I were[?]" Brauns said, "Yes, you
were." Erler said, "No, I wasn't." Erler then said, "Why the fuck you try to kill me,
Frank?" Brauns said, "Just defending myself against you, psycho."
As they were waiting for paramedics, Erler told one of the officers Brauns hit her
with the hammer earlier and she tried to call the police. She said the incident started
when she told him to get up and go to work. He came out of the garage with a hammer
and hit her before the police arrived. She screamed for her roommate to call the police.
She said she went back inside to try to calm him down and he said she was dead if the
police came. When the police arrived and knocked on the door, she said he took the
hammer and hit her as hard as he could with the pointed end of the hammer.
6
F
The lacerations on the back portion and top of Erler's head appeared to match the
claw end of the hammer. Erler received numerous staples to close the lacerations on her
head. She had bruises on her body, back, shoulders and arms, mostly on the left side.
She also had a superficial laceration in her jaw area, consistent with a sharp object.
A blood-like substance was on the neck of the hammer. A knife was found on the
nightstand with the blade under a spoon and the handle sticking out. The knife appeared
to have blood on the blade. There was blood on a pillow on the bed.
There was blood on the ceiling by the ceiling fan and above the nightstand. There
was blood in the hallway. There was also blood on the carpet in the bathroom. There
was blood on a towel in the bathroom and quite a bit of blood in the bathtub. It appeared
some of it had washed away. There was also blood on the toilet seat.
Brauns was not injured in the incident. He had a scratch on one hand and some
scratches on his back. He had blood on his body and his clothes. Brauns did not appear
scared or shaken, but he seemed "a little bit irrational" to the officer and very calm.
DISCUSSION
I
"In criminal cases, even in the absence of a request, a trial court must instruct on
general principles of law relevant to the issues raised by the evidence and necessary for
the jury's understanding of the case. [Citation.] 'A trial court's duty to instruct, sua
sponte, on particular defenses arises " 'only if it appears that the defendant is relying on
such a defense, or if there is substantial evidence supportive of such a defense and the 7
defense is not inconsistent with the defendant's theory of the case.' " ' " (People v.
sets forth the elements of the offense, defines "violence" as "using physical force that is
greater than the force reasonably necessary to restrain someone" and defines "menace" as
"a verbal or physical threat of harm[, including use of a deadly weapon]. The threat of
harm may be express or implied."
In this case, there was substantial evidence from Erler's testimony that Brauns
falsely imprisoned her by violence and/or menace. She stated he pushed or pulled her
into the bedroom after she went to the bathroom. This testimony alone was sufficient to
support the conviction for false imprisonment by violence. "The additional force
required for felony false imprisonment, as opposed to misdemeanor false imprisonment,
may come in the form … of simply pulling a victim toward a location when the victim's
liberty has already been violated." (People v. Ghipriel (2016) 1 Cal.App.5th 828, 834.)
15
Additionally, there was no evidence suggesting Erler's testimony regarding the
course of events once she was back in the bedroom was physically impossible or
obviously false. The first responding officer testified the door was locked when he tried
it and he heard a female scream as if she was being hurt once he announced that police
were present. This supports Erler's version of the events. The fact the weapons were not
in Brauns' hands at the moment the police broke through the door does not mean her
version of the events was physically impossible or obviously false. The fact the chair
was not shown in the photographs at trial does not mean the chair did not exist. As Erler
stated, the chair could have been behind the door. Neither officer was questioned about
whether they looked for a chair in their investigation. Therefore, we conclude there is no
basis to set aside the jury' s verdict.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
IRION, J.
16
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for corporal injury on a spouse and false imprisonment, finding no prejudicial error in the jury instructions regarding self-defense and sufficient evidence to support the false imprisonment conviction.
Issues
Whether the trial court erred in instructing the jury with CALCRIM No. 3472 regarding the forfeiture of self-defense through provocation.
Whether the trial court erred by failing to sua sponte instruct the jury with CALCRIM No. 3471 regarding the right of self-defense for an initial aggressor.
Whether there was substantial evidence to support the conviction for false imprisonment by violence or menace.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“If CALCRIM No. 3472 was erroneously given because it was irrelevant under the facts, the error is merely technical and not grounds for reversal.”
“We conclude both that the instruction did not improperly affect the verdict, nor is it reasonably probable defendant would have obtained a more favorable result had CALCRM No. 3472 not been given.”