Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J217179, Francis M. Devaney and Amalia L. Meza, Judges.
HALLER, J.
Israel H. appeals from an order finding that he committed two counts of lewd conduct involving seven-year-old Amanda. (Pen. Code, § 288, subd. (a).) He argues the evidence is insufficient to support the court's findings. We reject his argument and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Israel lived next door to Amanda, her older brother Michael and her parents. Israel, along with his younger brother Jordan and his parents, moved into the neighborhood in the fall of 2004. The children played at each other's houses.
In October 2007, the District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a), alleging that in June 2007 Israel committed three counts of lewd conduct upon Amanda (Pen. Code, § 288, subd. (a)). The court found counts 1 and 3 in the petition true and found count 2 not true. At the time of the incidents, Israel was 13, Amanda was 7, Jordan was 11, and Michael was 9.
On June 17, Father's Day weekend, Amanda's mother was cleaning Michael's bedroom and noticed money on the carpet behind his headboard and the stopper to his piggy bank was not in place. Because her husband and son were out of town, she asked Amanda about this. Amanda told her mother that Israel and his brother had taken one dollar out of the piggy bank. When Amanda told her this, her mother recalled an incident involving a closed door that had occurred about 10 days earlier. She asked Amanda if that was when the money was taken. Amanda said no, but explained that was the day "Israel pull[ed] his wiener out of his pants and rub[bed] it against my bottom."
Amanda's mother recalled that on that day she had been folding laundry and noticed the door to Michael's bedroom was closed, something that was "not our way." She opened the door abruptly, but encountered resistance as she did so. Once she was able to open the door she saw Michael's "moon" chair between the door and his bed and noticed Israel and Amanda facing her, looking toward the door. Amanda was in front of Israel. They were the only two people in the room. Both children ran when she told them "you do not close doors in my home, get out of here."
According to Amanda, she and Israel played a game called roller coaster, a name she said Israel made up. Sometimes Amanda sat on Israel's lap and sometimes she lay down on her brother's bed with her feet on the floor. Israel would stand directly behind her with his penis touching her bottom and would move "a little bit back and forth." Her panties were pulled down in the back and Israel's pants were pulled down a "little bit in the front."
They played the game once at Israel's house and the "rest of the time" at her house. The first time that Amanda played roller coaster, Israel said "do not tell anybody." On the day her mother described, Israel shut the door and moved her brother's moon chair behind the door to keep people out of the room. On the other occasion, Amanda and Israel were in his room playing a video game. When she finished the game, she and Israel played roller coaster again, "[t]he same thing we did last time, not laying down but sitting up." Neither Michael nor Jordan was in the room. Amanda did not remember any other time that she played roller coaster with Israel.
Israel denied touching Amanda inappropriately, contended that there was no such game as roller coaster, and noted that the moon chair in Michael's room was too small and light to block a door. He and his brother Jordan maintained that when they played with Amanda they were always together, never out of each other's presence. They also denied taking money from Michael's piggy bank.
Israel's mother testified that she did not allow Amanda to play at her home without Michael being present and she never saw Amanda playing in either Israel's or Jordan's bedrooms. An official from Israel's church described Israel as an honest young man, who tells the truth and interacts appropriately with young girls.
ANALYSIS
Israel's challenge to the sufficiency of the evidence is based on his contention that Amanda's credibility was so lacking that the trial court should have rejected her testimony and dismissed the petition. The argument fails.
In evaluating a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the order to determine whether there is substantial evidence from which a reasonable trier of fact could find the allegations true beyond a reasonable doubt. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) We presume in support of the order the existence of every fact the trier of fact could reasonably deduce from the evidence. (Id. at p. 1372.) If the circumstances reasonably justify the findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.) It is the exclusive province of the trier of fact to determine the credibility of a witness, and we defer to the trier of fact's credibility resolutions. (Ibid.) Resolution of evidentiary conflicts and inconsistencies is the exclusive province of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Absent a showing that a witness's testimony is physically impossible or inherently improbable, the testimony of a single witness is sufficient to support the trier of fact's decision. (Ibid.; In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)
In support of his claim that Amanda was not credible, Israel points to inconsistencies in Amanda's testimony concerning such issues as the video game she was playing in Israel's room, whether she was in Israel's or Jordan's room when a particular incident occurred, and the type of money taken from the piggy bank. He also notes that the molest accusation arose when Amanda's mother questioned her about money missing from her brother's piggy bank and references Amanda's inability to recall more than two incidents although three distinct incidents were alleged in the petition.
Whether considered separately or cumulatively, the testimony was neither physically impossible, nor so inherently improbable, that it undermines the validity of the trial court's conclusion that Amanda was telling the truth about the molest accusations. (In re Daniel G., supra, 120 Cal.App.4th at p. 830.) The trial court could reasonably conclude that Amanda, who was only seven years old at the time of the incidents, had provided details of sexual conduct that one would not expect a child of that age to be aware of had the incidents not occurred. Moreover, the court could assess that Amanda's description of how she and Israel were positioned relative to each other when the incidents occurred, added credibility to her account of the molests. The testimony of a single witness is sufficient to support a conviction and the trial court may accept a witness's testimony in whole or in part. (Ibid.)
In further support of his claim that the court should not have believed Amanda, Israel relies on a comment that Amanda's mother made to Israel's mother that "you can't believe a word she [Amanda] says." This arose after Amanda invited Israel's family to a 2007 Memorial Day barbeque and Israel's mother questioned the invitation, thinking it "funny" that it was delivered by Amanda, not her mother. Taken in context, the trial court was not required to find that this comment by Amanda's mother meant Amanda fabricated her description of the molestation.
Finally, Israel complains that the trial court mistakenly relied upon a fact not in evidence when it issued its true finding ruling and asserts that this fact was a critical one in the court's decision making. In explaining its decision, the trial court noted that Amanda's mother corroborated Amanda's testimony. The court stated that when the mother walked in on the two children she testified "there was a blue—or the moon chair up against the door and [she] saw the two of them alone in the room and that Amanda was in front of Israel and both of them were facing the door, and she saw Israel adjust his pants. Then both ran out of there."
Israel correctly notes that evidence about Israel adjusting his pants was not part of the mother's trial testimony. Rather the mother's statement about the pants was referenced in a police report that the court reviewed when it conducted a pretrial hearing related to a request for the disclosure of law enforcement records. Although the statement about the pants would have been a significant evidentiary item, when considered in light of the totality of the court's comments, we are satisfied that the statement was not pivotal to the trial court's decision. The court noted that Amanda "did describe in detail what happened, maybe not verbally, but with the dolls. She showed what happened and also described how that moon chair was put up against the door just the way [her mother] described... the moon chair. So that was compelling testimony." It is clear the trial court was persuaded that Israel committed the offenses regardless of the statement about the pants.
Sufficient evidence supports the trial court's findings.
DISPOSITION
Affirmed.
WE CONCUR: BENKE, Acting P. J., IRION, J.