Reported / Citable
Background
Brad Zack Berch and his estranged wife J. went for a drive in his pickup truck on California 101 in Santa Barbara County. Berch became enraged, drove erratically at high speeds, and ignored her repeated requests to be let out. He missed several exits to her home, drove toward an isolated dark road, and finally stopped near an elementary school. When J. opened the door to get out, Berch said "I’ll let you out when I get you to the house," called her sexually-charged epithets, then accelerated and made a sharp left turn. The door swung open and J. flew out onto the pavement, suffering a compression fracture of the vertebra, abrasions, bruises, and a hematoma.
Berch had a documented history of domestic abuse against J., including pushing her, forcing her into rooms, preventing her from getting up, and slamming her head into the ground. A jury convicted him of false imprisonment by violence or menace under Penal Code section 236 and 237(a), and found true a great-bodily-injury enhancement involving domestic violence under section 12022.7(e). The trial court placed him on supervised probation including 210 days in county jail.
On appeal, Berch argued the trial court’s instruction on "menace" was wrong because it didn’t tell the jury that the threatened force had to exceed what was necessary to effectuate the restraint. He also challenged the sufficiency of the evidence, asserted ineffective assistance of counsel for not requesting a mistake-of-fact instruction, and challenged the great-bodily-injury instruction.
The Court’s Holding
In the published portion of its opinion, the Second District held that felony false imprisonment based on menace — a threat of harm — does not require proof that the threatened force exceeded what was necessary to restrain the victim. The court drew a distinction between false imprisonment by force and by menace: when restraint is achieved through actual physical force, the "greater than necessary" element guards against treating ordinary detentions (a parent grabbing a child’s arm, for example) as felony imprisonment. But when restraint is achieved through a threat of injury, the menace itself supplies the criminal character, and asking whether the threat was "greater than necessary" doesn’t make doctrinal sense.
Applied here, Berch’s words and conduct — refusing to let J. out, calling her abusive names, threatening her safety, and accelerating dangerously while she tried to exit — constituted menace. The court rejected Berch’s other claims in the unpublished portion of its opinion, finding the evidence sufficient, the great-bodily-injury instruction proper, and counsel not ineffective for failing to request a mistake-of-fact instruction. Conviction affirmed.
Key Takeaways
- Two paths to false imprisonment, two different elements: force requires force greater than necessary to restrain; menace requires only a threat of injury. Practitioners should make sure the jury instruction matches the theory the prosecution actually relied on.
- Verbal threats plus dangerous driving can qualify as menace even without an explicit threat to inflict specific harm — context and the totality of conduct matter.
- The great-bodily-injury enhancement under section 12022.7(e) for domestic violence applies when the victim’s injuries result from the defendant’s conduct, even if the defendant didn’t intend the specific injury (here, J.’s vertebra fracture from being thrown from the moving truck).
- Pattern jury instructions on menace should be reviewed with this distinction in mind. The standard CALCRIM instruction may need refining at the trial level to make the force-vs-menace distinction explicit.
Why It Matters
Berch closes a doctrinal loophole that defense lawyers had been using to challenge felony false imprisonment convictions in domestic-violence cases. By clarifying that menace-based imprisonment doesn’t carry the "force greater than necessary" element, the Second District makes it harder to overturn convictions where the prosecution proved threatening conduct but no actual physical restraint exceeding what would be necessary to hold someone in place.
For California prosecutors and domestic-violence advocates, this is a useful clarification — many DV false-imprisonment cases involve threats rather than physical force, and the previous ambiguity in the case law had been inviting collateral attacks. For defense counsel, the takeaway is that scrutinizing whether the prosecution actually pleaded and proved menace-based imprisonment (versus force-based) becomes more important.