Opinion
A117512
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. JABAR HICKMAN, Defendant and Appellant.
Not to be Published
Following a hearing defendant was found in violation of his probation, his probation was revoked, and the trial court imposed a sentence of four years in state prison. In this appeal he argues that the evidence fails to support the finding of a probation violation. We find that substantial evidence of a probation violation was presented, and affirm the judgment.
STATEMENT OF FACTS
On October 21, 2003, defendant entered a plea of guilty to one count of possession for sale of cocaine base (Health & Saf. Code, § 11351.5). On April 23, 2004, imposition of sentence was suspended and defendant was placed on probation for a period of three years, upon standard terms and conditions.
The evidence of defendants violation of probation is based on an incident that occurred on the evening of April 21, 2006. Lillianne Lannes, who was then defendants fiancée, testified that they were at a dinner party together at the home of defendants brother, where she drank heavily and became nauseous. After they left and walked between Ninth and Howard Streets in San Francisco defendant hit Lannes three times in the face with a closed fist. According to Lannes, defendant expressed two reasons for hitting her: she "puked in his brothers toilet," and was not wearing her glasses.
Lannes and defendant continued to engage in a strident verbal disagreement as they walked on Mission Street on the way to get something to eat. In front of a restaurant defendant pushed Lannes against a wall and struck her in the mouth with his fist. He then directed Lannes to go into the restaurant to wipe the blood off her face. Inside the restaurant a woman realized that Lannes was bleeding and asked if she wanted "to call the cops." Defendant became angry at the woman, "called her a bitch," and told her "to get the hell out of the way." They then left the restaurant and walked toward their apartment on Ninth and Market. On the way, they yelled at each other. Defendant also hit Lannes about 15 times in the chest with a closed fist. Lannes testified that she did not hit defendant.
Inside the apartment, Lannes unlocked the door to leave, but defendant pushed her aside. He threw her across the room and struck her numerous times in the head. Lannes once more tried to open the door, but defendant pulled her back inside and proclaimed, "you aint going nowhere." Defendant began beating her again. Lannes then managed to leave and walk to "the corner store" around the block, but defendant followed her, grabbed her by the arm, and forced her to return to the apartment.
Back in the apartment again, Lannes told defendant, "I want to leave" and "never, ever come back, never." Defendant opened her suitcase and threw her clothes in it. He asked for her engagement ring back, so she "threw it at him." She also gave defendant the apartment keys. Defendant returned Lanness cell phone to her, whereupon she gathered her belongings and left the apartment. In total, Lannes estimated that defendant struck her between 20 and 30 times that night.
Lannes ran down Market Street to the All-Star Café, where she called her mother. She was taken to a hospital emergency room for treatment of injuries to her eye, lip, left arm, neck and ribs. X-rays taken of her face, neck and ribs were negative. A doctor described the swelling, bruising and hemorrhaging of the left eye as "extensive," although Lannes did not suffer "serious" injuries. Lannes also testified that she had prior injuries to her right eye, lip and right arm from another beating by defendant that occurred about a week before. Lannes informed a police inspector that defendant physically abused her at least 10 times during the past year of their relationship.
Defendants friend Rudy Corpuz testified for the defense that he was present when Lannes and defendant drank and argued that evening. During the argument, Lannes "got up" from the couch and "attacked" defendant. Defendant "restrained" Lannes, but did not hit her.
Defendants brother Eugene Hickman testified that when Lannes and defendant arrived at his house that night Lannes "had some liquor with her." She was "distraught," and began arguing with defendant. During the argument, Lannes "jumped over" and grabbed defendant. After defendant pushed Lannes away, Hickman ordered them to leave his house.
Defendant testified in his defense that after he and Lannes left Hickmans house they began pushing and grabbing each other. Defendant admitted that on the way from the restaurant to their hotel they hit each other during an argument: she struck him in the mouth, and he hit her in the chest with a closed fist. Defendant testified that he hit Lannes because "she was getting very belligerent," and he "felt disrespected." In the hotel room, they "started fighting some more." Defendant pushed Lannes to the ground and hit her "a couple times" after she began "throwing stuff," including a knife, at him. According to defendant, Lannes also "came from behind and grabbed" him, which caused him to hit her in the chest. He thought the injuries to Lanness eye occurred when she tried to hit him and he "poked" her in the eye as he pushed her face away. Defendant denied that he hit Lannes 20 to 25 times with his fist as she claimed; rather, he hit her "about five times." She hit him twice. He also denied that he choked Lannes or prevented her from leaving the apartment. Defendant testified that he had been assaulted by Lannes a total of three times during their relationship.
DISCUSSION
Defendant claims that the trial courts finding of a probation violation is "not supported by substantial evidence." He asserts that "in view of the level of alcoholic intoxication" of Lannes, her capacity to perceive and recollect events was severely compromised. He therefore argues that "the evidence presented to the court at the revocation hearing was unreliable," and cannot support a finding of a probation violation.
"Penal Code section 1203.2, subdivision (a) authorizes a trial court to revoke probation `if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation . . . ." (People v. Jackson (2005) 134 Cal.App.4th 929, 935; see also In re Eddie M. (2003) 31 Cal.4th 480, 487, 503-504; In re Alex U. (2007) 158 Cal.App.4th 259, 265.) "`As the language of section 1203.2 would suggest, the determination whether to . . . revoke probation is largely discretionary. [Citation.] `[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence. [Citation.] However, the evidence must support a conclusion the probationers conduct constituted a willful violation of the terms and conditions of probation." (People v. Galvan (2007) 155 Cal.App.4th 978, 981-982; see also People v. OConnell (2003) 107 Cal.App.4th 1062, 1066.) "The role of the trial court at a probation revocation hearing is not to determine whether the probationer is guilty or innocent of a crime but whether he can be safely allowed to remain in society." (People v. McGavock (1999) 69 Cal.App.4th 332, 337; see also People v. Monette (1994) 25 Cal.App.4th 1572, 1575.)
Where, as here, "the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial courts decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.)
The testimony of Lannes that defendant committed an assault upon her, if accepted, certainly constitutes a violation of the standard condition of his probation that he obey all laws. (See People v. Molina (1992) 5 Cal.App.4th 221, 233.) Defendants argument is thus distilled to a challenge to the credibility of the victims version of the events.
While defendant did present some evidence that may have conflicted with at least parts of Lanness testimony, in our restricted role as reviewing court we can resolve "`neither credibility issues nor evidentiary conflicts. . . . [Citation.]" (People v. Mejia (2007) 155 Cal.App.4th 86, 93.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." (People v. Maury (2003) 30 Cal.4th 342, 403; see also People v. Lewis (2001) 26 Cal.4th 334, 361; People v. Franz (2001) 88 Cal.App.4th 1426, 1447.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181; see also People v. Panah (2005) 35 Cal.4th 395, 489; People v. Jackson (1992) 10 Cal.App.4th 13, 21.) "`"To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed." . . . "`Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. . . . To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. . . ."" (People v. Franz, supra, at p. 1447, quoting from People v. Mayberry (1975) 15 Cal.3d 143, 150.)
By her own admission Lannes consumed a great deal of alcohol before she left the home of defendants brother, and her recitation of some of the details of the events was indistinct, but we do not find her testimony so vague or implausible that it must be rejected. She described the assaults with specificity and clarity, and her testimony was not effectively rebutted by any evidence presented by the defense. Further, her account of the assault was independently corroborated by the evidence of her physical injuries, presented in the form of medical reports, photographs and the testimony of a treating physician. And even defendant admitted to striking Lannes multiple times during the course of the evening. We cannot discount the victims testimony, and it provides substantial evidence to support the finding of a probation violation. (People v. Jackson, supra, 134 Cal.App.4th 929, 935.)
Accordingly, the judgment is affirmed.
We concur:
Marchiano, P. J.
Margulies, J.