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In re Antwon M.

California Court of Appeals, First District, First Division
Mar 27, 2008
No. A117119 (Cal. Ct. App. Mar. 27, 2008)

Opinion


In re ANTWON M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANTWON M., Defendant and Appellant. A117119 California Court of Appeal, First District, First Division March 27, 2008

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. J06-02096

Swager, J.

This appeal comes before us following findings by the juvenile court that defendant committed two counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), and three counts of forcible lewd acts upon a child under age 14 (Pen. Code, § 288, subd. (b)(1)), as alleged in a petition filed pursuant to Welfare and Institutions Code section 602. Defendant complains that the evidence fails to support the findings on two of the counts. We conclude that the findings are supported by substantial evidence, and affirm the judgment.

STATEMENT OF FACTS

For the sake of confidentiality we will refer to the victims and other witnesses in the case by their first names only.

The offenses were committed upon two victims, Jocelynn and Brenda, during two separate incidents that occurred a year apart. Defendant challenges only the sufficiency of the evidence to support the findings on the offenses committed upon Brenda.

Therefore, we will more concisely recite the evidence pertinent to the sexual assault crimes against Jocelynn.

The Offenses Committed upon Brenda (Counts Five and Six)

On October 9, 2005, Brenda, then age 12, was at Corbus Field in Vallejo High School watching her brother’s football game and “hanging out with friends.” She had been “friends” with defendant Antwon for two or three years, and never had “any problem” with him in the past. Defendant approached Brenda and asked her to “go for a walk” behind the stadium bleachers. He said that he “wanted to talk,” so Brenda followed him to the back of a “shed-like thing” about 30 feet away. Once they were behind the shed defendant told her “he wanted to get sucked.” Brenda testified that she repeatedly said “no.”

When Brenda attempted to walk away, defendant pulled her by the hand back to the shed and pushed her to the ground. Brenda’s back was “pinned” against the shed and her “knees were down” on the ground. Defendant said that he “wanted a blow job.” He then “pulled down his pants and shorts and pulled out his penis.” With one hand on Brenda’s shoulder and the other behind her head, defendant pushed her face “towards his crotch” and forced her to “give him a blow job.” Brenda “kept telling him no” or “stop,” and “tried to get up” or push defendant away, but he had her “pinned down.” Brenda was “scared,” and “didn’t know what to do.” She did not scream for fear that defendant would hit her.

After about five minutes, Brenda’s friend J. came around the corner and called Brenda’s name. Defendant allowed Brenda to get up. Brenda testified that she was “not sure” if J. had “seen anything.”

Brenda walked directly to the bathroom, crying. J. accompanied her and asked “what was wrong.” Brenda told J. that defendant “attempted to, but [she] didn’t tell her that anything happened.” J. “rubbed” Brenda’s back, perhaps to get some “dirt off of it.”

Brenda was “scared to tell anybody” about the assault. When some of her friends asked about it at football games, Brenda only told them that defendant “tried to make her do it,” but not that she had “given a blow job” to him. Brenda was afraid to tell her father what happened because of “what he might have thought” of her. She also “didn’t want all of this to happen, the court and everything.” Not until a year later, after Brenda’s friend Jocelynn told her that she had been sexually assaulted by defendant, did Brenda disclose to Jocelynn the next day “what had happened between [her] and Antwon.” Brenda’s father subsequently confronted her “about this,” and she finally told him about the incident.

J. testified for the defense that she had known Brenda for four years, and was “close friends” with defendant. She recalled that on October 9, 2005, she, Brenda, Antwon, and two other friends, Leon and Ja., were “behind the bleachers” at Vallejo High School. Leon and Ja. were “trying to convince [Brenda] to give them a blow job.” They “called over Antwon” to “see if he wanted one too.” At first, they were “joking around,” but then Brenda seemed to be “seriously considering it.” She told them, “Hold on, I’m thinking.” Brenda finally said “only one of you, and she chose Antwon.” According to J., Brenda “willingly walked” behind a portable shed with defendant.

About five minutes later, J. yelled that the “junior midget team is coming.” Brenda came out from behind the shed, crying and upset, with one of her hands up to her face. She also had dust on her clothing. J. helped to get napkins for Brenda, which she used to wash her mouth. J. did not “see what happened behind the shed.”

Defendant testified that he was walking under the bleachers to the snack bar at Corbus Field when he noticed Leon and Ja. talking to Brenda “about getting blow jobs.” They asked if he “wanted one.” Brenda “agreed to it,” but said “she only was going to do one,” defendant. After they walked behind the shed defendant asked Brenda if she was “sure she wanted to do it.” He testified that Brenda “said yes, so then she took down my pants and she gave me head.” Leon then yelled, “The junior midget team is coming,” so they left and went back into the stands. Defendant denied that he used any force, violence or threats on Brenda. He thought she was “consenting to do this.”

The Offenses Committed upon Jocelynn (Counts One, Two, and Four)

Jocelynn was 13 years old when she met defendant briefly while she was at cheer leading practice at Solano Middle School. Defendant called Jocelynn the next day, and during the conversation he “started talking about sex.” She requested that they “talk about something other than that.” Defendant then asked Jocelynn if she “would want to go out with him,” to which she replied, “I don’t know.”

The following afternoon, Sunday, October 1, 2006, Jocelynn encountered defendant and his friend R. at Corbus Field. After a brief conversation defendant said, “come with me, I’ve got to tell you something important.” Defendant directed Jocelynn to the back of the “portables,” and suggested, “Let’s go back there.” When they got behind a green wall defendant “pulled down his pants,” “took out his penis,” and asked her to “suck it.” When Jocelynn began to walk away, he grabbed her hair, pushed her head down and put her “mouth on it.” Jocelynn “spit it out” and again tried to leave, but defendant grabbed her wrist and pushed her against the wall. Defendant twisted Jocelynn’s arms tightly behind her back and pinned her to the wall. He then pulled down Jocelynn’s pants and tried to “stick it in” her “butt.” Jocelynn screamed and moved around, which prompted defendant to call her a “bitch” and yell at her, “Shut up.” Jocelynn made another attempt to run away, but defendant hit her in the face and grabbed her hair. He once more pushed her mouth onto his penis while she hit his arms and yelled at him to stop. Defendant hit Jocelynn in the face two more times, then “pulled up his pants” and “ran off.”

Jocelynn pulled up her pants and ran back to the side of the portables, where she met R. She asked him if he “heard anything.” R. warned her that if she “told anybody, his family and his friends are going to hurt [her].” Jocelynn observed defendant “going towards Corbus Field,” so she walked the other way.

Jocelynn was scared, so she did not report the assault until the next day, when she spoke to her school counselor. The police were called, and interviewed Jocelynn.

Jocelynn testified on cross-examination that a reference in the police report to her statement that defendant “tried to stick his penis into her vagina” was “not true,” as she “said butt” in the interview rather than vagina.

R. testified that he was friends with both defendant and Jocelynn. He recalled the incident on October 1, 2006, that began as he and defendant were walking to Vallejo Middle School. Defendant declared to R. that Jocelynn “was going to suck him.” Defendant and Jocelynn then walked “right next to each other” behind a building, while R. stayed on the other side of the portable talking on his cell phone. R. did not hear any screaming or noise from the other side of the building. Later, they came out at the same time, “but separated.” Defendant announced, “I got sucked,” and walked alone toward Corbus Field. Jocelynn was walking by herself, so R. asked, “Are you cool?” She responded, “Yeah, I’m fine.” R. testified that Jocelynn did not appear to be scared or angry.

Defendant testified that Jocelynn offered to give him “a blow job” during their phone conversation, and he accepted. The next day, he and R. were playing catch under the bleachers of the football field when Jocelynn appeared. As they walked to the portables at Vallejo Middle School defendant told R. he “was going to get a blow job.” According to defendant, Jocelynn consensually gave him a “blow job” behind the portables for about three minutes. Suddenly, she “just stopped” and said “she couldn’t do it right now.” Defendant “said all right,” whereupon Jocelynn asked if defendant “had a condom” and “wanted to have sex with her.” Defendant answered no to both queries. Defendant denied that he struck Jocelynn in any way, grabbed her by the wrists, twisted her arms, threatened her with violence, or otherwise forced her to engage in oral sex. He also denied that he attempted to sodomize her.

DISCUSSION

Defendant argues that the evidence fails to prove he committed the offenses of forcible oral copulation and forcible lewd acts upon Brenda as charged in counts five and six of the petition. He specifically claims that the evidence was “insufficient” to “satisfy the element of force which is present in both offenses.” He points out that the “only evidence” of force was Brenda’s account of the event, and her “testimony was inheren[t]ly improbable.” He therefore submits that “the court’s true finding on counts five and six must be reversed.”

In this appeal challenging the sufficiency of the evidence to support a juvenile court judgment, “we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371; see also In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.) We undertake a very “limited” assessment of sufficiency of the evidence to support the judgment. (People v. Lewis (2001) 25 Cal.4th 610, 643; see also In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) “[W]e ask not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether, viewing the evidence in the light most favorable to respondent, and presuming in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, there is substantial evidence of appellant’s guilt, i.e., evidence that is credible and of solid value, from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, our sole function as a reviewing court in determining the sufficiency of the evidence is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (In re Michael M. (2001) 86 Cal.App.4th 718, 726, fns. omitted; see also In re Babak S. (1993) 18 Cal.App.4th 1077, 1088–1089.)

“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955; see also People v. Wader (1993) 5 Cal.4th 610, 640.)

“However, ‘[e]vidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction.’ [Citation.]” (People v. Tripp, supra, 151 Cal.App.4th 951, 955–956; see also People v. Wader, supra, 5 Cal.4th 610, 640.) “ ‘Substantial evidence must be more than evidence which merely raises a strong suspicion of guilt as mere suspicion will not support an inference of fact.’ [Citation.]” (People v. Thongvilay (1998) 62 Cal.App.4th 71, 79.) To withstand an insufficiency of the evidence challenge, the trial court must find and the record must contain evidence substantial enough to support the finding of each essential element of the crime. (United States v. Gaudin (1995) 515 U.S. 506, 522–523; People v. Johnson (1992) 5 Cal.App.4th 552, 558.) That means not only every element of the offense, but also all of the “facts necessary to establish each of those elements . . . .” (Sullivan v. Louisiana (1993) 508 U.S. 275, 277–278; see also People v. Crawford (1997) 58 Cal.App.4th 815, 821.)

We proceed with our review from an indisputable principle: Brenda’s testimony alone is adequate to support the findings on counts five and six. She testified that after defendant announced that “he wanted to get sucked,” she repeatedly said “no” and attempted to leave. Defendant pulled her back to the shed, pushed her to the ground, and pinned her down. According to Brenda, she “tried to get up,” but defendant pulled her face “towards his crotch” and compelled her to orally copulate him. She repeatedly implored him to “stop,” but he continued to push his penis into her mouth. Brenda also testified that she was afraid defendant would hit her if she screamed. Her testimony establishes the requisite element of force or fear. (See People v. Neel (1993) 19 Cal.App.4th 1784, 1790; People v. Babcock (1993) 14 Cal.App.4th 383, 388.)

“ ‘[I]n order to establish “force” within the meaning of [Penal Code] section 288, subdivision (b), the People must show “defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” [Citation.]’ [Citation.]” (People v. Cardenas (1994) 21 Cal.App.4th 927, 939.)

Defendant’s contention may be thus distilled down to a claim that Brenda’s testimony lacks credibility and must be disregarded. If so, he maintains that the remaining evidence of force or fear is not substantial. In his challenge to the victim’s testimony, defendant directs our attention to the lack of any corroborating evidence from other witnesses, her delay in reporting the crimes, the “different versions” of the incident reported by Brenda, and the testimony of victim’s friend J., who asserted that Brenda “willingly” committed the acts.

While we agree with defendant that without Brenda’s testimony the findings on counts five and six cannot stand, in our restricted role as reviewing court we do not resolve evidentiary conflicts or credibility issues. (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, supra, 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.)

We acknowledge that inconsistencies and weaknesses in Brenda’s testimony appear in the record, but they are not so glaring or pervasive that we must reverse the juvenile court’s decision for lack of evidentiary support. The victim plausibly explained the reasons for her delay in reporting the incident until a similar assault by defendant upon her close friend Jocelynn a year later: concern with her father’s reaction, and fear of appearing in court. Brenda’s accounts of the encounter were also not critically inconsistent with her testimony at trial that the acts were committed forcibly. Although J. testified that when Brenda emerged from behind the shed she stated “it was consensual at first,” the witness also acknowledged that Brenda’s appearance and behavior–upset, crying, undertaking efforts to wipe herself clean and wash her mouth–seemed to suggest otherwise. Brenda may have declined to discuss the matter with others thereafter, but she never professed that the encounter was consensual. At most, when questioned by friends about it, Brenda divulged that defendant “tried to make her” give him “a blow job,” but she did not do it. Her statements to others did not conflict with her description of the event at trial. As to J., who asserted her belief that Brenda voluntarily engaged in an act of oral copulation with defendant, her testimony cannot be credited on appeal simply because it contradicts the evidence in support of the judgment, regardless of how persuasive defendant suggests it is. (People v. Lewis, supra, 26 Cal.4th 334, 361; Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) Finally, Brenda’s testimony is at least slightly corroborated by the strikingly similar assault on Jocelynn, which suggested a common scheme or plan on defendant’s part to commit forcible sex offenses. (See People v. Balcom (1994) 7 Cal.4th 414, 425; People v. Ewoldt (1994) 7 Cal.4th 380, 396; People v. Erving (1998) 63 Cal.App.4th 652, 659–660.)

We cannot disregard the victim’s testimony in the present case. “ ‘ “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, 88 Cal.App.4th 1426, 1447, quoting from People v. Mayberry (1975) 15 Cal.3d 143, 150.) At most, the record reveals discrepancies in the testimony of the witnesses that do not, in our view, subject Brenda’s account of the critical events to repudiation or impossibility of belief. (People v. Cantrell (1992) 7 Cal.App.4th 523, 538.) Upon consideration of Brenda’s testimony we conclude that the evidence in support of the judgment, while not overwhelming, is at least substantial.

DISPOSITION

Accordingly, the judgment is affirmed.

We concur: Marchiano, P. J., Margulies, J.


Summaries of

In re Antwon M.

California Court of Appeals, First District, First Division
Mar 27, 2008
No. A117119 (Cal. Ct. App. Mar. 27, 2008)
Case details for

In re Antwon M.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTWON M., Defendant and…

Court:California Court of Appeals, First District, First Division

Date published: Mar 27, 2008

Citations

No. A117119 (Cal. Ct. App. Mar. 27, 2008)