California Legal Brief

The Rule of People v. Berch is 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, under circumstances where menace involves a threat to inflict injury upon another person.

Appeal from judgment after jury trial in Superior Court, Santa Barbara County.

Defendant Appellant was Brad Zack Berch — the defendant who drove victim erratically and prevented her from exiting his vehicle.

Plaintiff Respondent was The People — the prosecution seeking conviction for false imprisonment and great bodily injury enhancement.

The suit sounded in criminal charges for false imprisonment by violence or menace. The prosecution also sought a great bodily injury enhancement involving domestic violence.

The key substantive facts leading to the suit were Berch and his estranged wife J. went for a drive, during which Berch drove erratically at high speeds, bypassed multiple exits to her home despite her requests to be taken home or let out, and when J. attempted to exit at an elementary school near her home, Berch told her "No you're not" and "Try it, dumb cunt" with a malicious laugh, then accelerated and made a sharp turn causing J. to fly out of the vehicle and sustain serious injuries including a compression fracture.

The procedural result leading to the Appeal: The trial court entered judgment after jury convicted defendant of felony false imprisonment by violence or menace and found true a great bodily injury enhancement, ruling that the evidence supported both the conviction and enhancement.

The key question(s) on Appeal: 1) Whether substantial evidence supported felony false imprisonment by violence or menace; 2) Whether the jury instruction on menace was erroneous for not requiring threat of force greater than reasonably necessary to effectuate restraint; 3) Whether counsel was ineffective for failing to request mistake of fact instruction; 4) Whether the great bodily injury instruction was erroneous.

The Appellate Court held that felony false imprisonment based on menace does not require comparison of threatened force to force necessary for restraint because menace inherently involves threats to inflict injury, distinguishing it from violence which requires force "greater than reasonably necessary." The court also held substantial evidence supported both menace and violence theories, counsel was not ineffective for tactical decision not to request mistake of fact instruction, and great bodily injury enhancement does not require proximate cause instruction.

The case is inapplicable when false imprisonment is based solely on violence theory (which does require force greater than reasonably necessary), when there is no evidence of threats to inflict injury, or when the restraint involves only threats to use ordinary force without threatening harm or injury.

The case leaves open whether different standards might apply to other forms of menace not involving threats of bodily injury, the precise boundaries between menace and violence theories in complex factual scenarios, and whether the necessity defense might succeed under different factual circumstances involving vehicle restraint.