Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL025034, Joy W. Markman, Judge.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
The juvenile court declared Mitchell G. (the Minor), born in July 1991, a ward of the court under Welfare and Institutions Code section 602 after sustaining the allegations of count one, charging the Minor with animal cruelty in violation of Penal Code section 597, subdivision (a). The juvenile court placed the Minor on probation at home in the custody of his mother pursuant to Welfare and Institutions Code section 725, subdivision (a).
We affirm. The Minor argues the evidence was insufficient to support the juvenile court’s findings sustaining the allegations of animal cruelty because the testimony of the prosecution’s sole eyewitness was inherently improbable and uncorroborated. We conclude the witness’s testimony was not inherently improbable and substantial evidence supported the juvenile court’s findings.
Facts
Evidence Supporting the Allegations
In the afternoon of Saturday, May 13, 2006, Avelina Morales was in her bedroom on the second floor of her home in Lake Forest when she heard obscenities being screamed from her neighbor’s home. She looked out of her window and saw two boys in the pool area of the neighbor’s yard behaving aggressively toward a duck. She recognized the older of the two boys and believed he lived at the house. She had not seen the younger boy before.
At first, Morales thought the boys were playing with the duck, which was in the pool. She noticed, however, the duck kept trying to swim away from them. The older boy poured some clear liquid from a jug into a measuring spoon. The younger boy asked, “is that the pool man’s?” and the older boy replied, “no, it’s mine.” The older boy threw the clear liquid at the duck and yelled, “die mother f—er.”
The younger boy scooped up the duck with a rake, then dunked the duck into the pool, and used the rake to hold the duck underwater, pinning it against the side of the pool. The younger boy did this several times. The duck made screeching noises and flapped its wings in an attempt to get out of the pool. Both boys walked along the edge of the pool, trying to get closer to the duck. Both boys yelled and swore. The older boy was louder and seemed angrier, while the younger boy was mainly talking to the older boy, not at the duck.
Concerned, Morales left to get her roommate and have him take a look. When Morales returned to the window with her roommate, she saw the two boys “doing something” to the duck with sticks. One of the boys held up the duck, and it appeared dead. Morales’s roommate then called animal control.
An animal control officer arrived and found a dead duckling and a living duckling. The living duckling’s feathers were parted and its skin was red, irritated, and almost blistered. The dead duckling was on a patio table, and steam appeared to be rising from its body. The living duckling was transported to a veterinarian for emergency treatment.
Orange County Sheriff’s Deputy Jason Park soon arrived in response to a report of animal cruelty. He spoke with the two boys, Marcus L. and the Minor. Marcus showed Deputy Park a duckling being kept in a cage. The duckling was so weak it could not hold its head up. The Minor initially denied hitting the duck with a rake and was not forthcoming with information. After repeated questioning, he provided more specific information. He told Deputy Park that he and Marcus had found the ducklings in a creek near the house and that he saw Marcus pour pool acid onto one duckling and into its mouth. The Minor told Deputy Park he used a rake to try to remove the duckling from the pool. Marcus retrieved a dead duckling from some bushes and showed it to Deputy Park.
A necropsy revealed the dead duckling died from injuries consistent with acid burns. The duckling’s bill was so deteriorated from acid that a portion fell off when the veterinarian handled the duckling.
Defense Evidence
The Minor’s mother testified the Minor was an honor student, had a kind heart, and was not violent. She was “surprised” when she received a call from the police; she could not believe they were talking about her son.
The Minor testified that on May 13, 2006 he and his friend Marcus found two ducklings in a creek. They carried the ducklings to Marcus’s house and placed them in the pool to let them swim. After the ducklings had been swimming for awhile, the Minor grabbed one duckling, removed it from the pool, and wrapped it with napkins because it was shaking with cold. Marcus poured pool acid into a cup and started throwing the acid at a duckling. The Minor did not tell Marcus to throw the acid at the duckling and did not think it was funny. The Minor used a rake to try to remove the other duckling from the pool, but the duckling kept diving under the water. After finally scooping the duckling out of the water with the rake, the Minor placed it under his arm to protect it from Marcus. The Minor yelled at Marcus to stop splashing acid on the duckling.
Marcus said he would stop throwing acid at the duckling and put the acid away. The Minor then set the duckling down and went inside the house to Marcus’s bedroom. The bedroom had a glass door facing the pool, and the Minor could see Marcus take out the acid again. The Minor ran outside and asked Marcus what he was doing. Marcus replied the duckling was “already dead,” and poured acid on it. The Minor went back inside the house, but ran outside again when he saw Marcus pouring acid down the mouth of the living duckling. The Minor called Marcus an “asshole” and told him to stop.
The Minor denied ever hitting the duckling with a rake or using the rake to hold the duckling underwater. The Minor denied ever intentionally harming an animal, except for a bug.
Discussion
Penal Code section 597, subdivision (a) makes unlawful the malicious and intentional maiming, mutilation, torture, or wounding of a living animal. An “animal” includes any “dumb creature.” (Pen. Code, § 599b.) A bird is an animal under Penal Code sections 597 and 599. (People v. Baniqued (2000) 85 Cal.App.4th 13, 20.)
The substantial evidence principles of review applicable in a criminal case are applicable in a juvenile proceeding. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) “In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.]’” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089; accord, People v. Thomas (1992) 2 Cal.4th 489, 514; People v. Barnes (1986) 42 Cal.3d 284, 303.)
The Minor contends substantial evidence did not support the juvenile court’s findings sustaining the allegations he committed animal cruelty because the testimony of Morales was “filled with self-contradiction, inconsistency and implausibility.”
The juvenile court, not the reviewing court, judges the credibility of the witnesses, resolves any conflicts in the testimony, weighs the evidence and draws factual inferences. “The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296.) For the reviewing court to reject the statements given by a witness whom the trial court has found credible, either they must be physically impossible or their falsity must be apparent without resorting to inferences or deductions. (People v. Mayberry (1975) 15 Cal.3d 143, 150.) When two or more inferences can reasonably be deduced from the facts as found, a reviewing court cannot substitute its own deductions for those of the trier of fact. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.)
The Minor argues Morales’s testimony was “improbable and incredible” for the following reasons: (1) Morales could not positively identify the Minor at trial; (2) Morales’s testimony regarding the number of times she saw the Minor dunk the duckling into the water was inconsistent; (3) Morales did not view the animal cruelty from a “close vantage point”; (4) Deputy Park testified Morales did not tell him one of the boys repeatedly dunked a duck underwater with a rake; and (5) Morales’s testimony was uncorroborated.
None of these reasons, singly or collectively, renders Morales’s testimony physically impossible or inherently improbable. Although, as the Minor asserts, Morales’s inability at trial to positively identify him in the courtroom calls her veracity into question, it does not make her testimony physically impossible or inherently improbable. The record does not reveal whether the Minor’s appearance at trial was different than it was on May 13, 2006. The trier of fact was in the better position to consider Morales’s inability to identify the Minor at trial in assessing her credibility.
There were some inconsistencies in Morales’s testimony. However, “‘[t]he mere fact that there are contradictions and inconsistencies in the testimony of a witness, or that the truth of his evidence is open to suspicion, does not render it inherently improbable within the meaning of the rule.’” (People v. Tereno (1962) 207 Cal.App.2d 246, 251.) It was for the trier of fact to determine whether the inconsistencies in Morales’s testimony “‘were such as to justify the repudiation of the testimony of the witness in its entirety.’” (People v. Fremont (1941) 47 Cal.App.2d 341, 349.)
As to vantage point, Morales testified she had a “pretty clear” view from her bedroom window as she watched the boys. Deputy Park testified that Morales did not tell him anyone had been dunking a duck with a rake, but told him she saw one boy “hitting” the duck with a rake. It is possible Morales told Deputy Park she saw a boy dunk a duck with a rake, and he chose to use the word “hit” in his report. It is possible too Morales told Deputy Park she saw a boy hit a duck with a rake when she meant to say dunk. The juvenile court could consider these possibilities in assessing the credibility of the witnesses.
Finally, although Morales’s testimony was uncorroborated, uncorroborated testimony is sufficient to support a conviction. (People v. Scott, supra, 21 Cal.3d at p. 296.)
The juvenile court assessed the credibility of Morales and acknowledged an inconsistency in her testimony. The court nonetheless found her to be credible and did not believe the Minor’s testimony that he tried to stop Marcus from harming the ducklings. Morales’s testimony was not so flawed as to be inherently improbable per se, and the juvenile court did not err in assessing witness credibility. Substantial evidence therefore supported the findings sustaining the allegations of animal cruelty.
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., O'LEARY, J.