Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. J214814. Margaret Powers, 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, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, Acting P. J.
Defendant and appellant Jacob S. (minor) contends the evidence was insufficient to support the adjudication that he violated Penal Code section 245, subdivision (a)(1), assault by means likely to produce great bodily injury. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On May 12, 2007, Mark Maynor was visiting Jennifer Marriott at the Rue Ranch. They decided to go to a nearby pond or lake. As Marriott walked toward the pond, Doug Gray drove up. He aimed his truck directly at Marriott, who had to jump out of the way.
Gray parked his truck next to his mobile trailer. Marriott saw Gray, standing in the doorway of his trailer, calling someone on the telephone.
A few minutes later, a carload of people arrived at the pond. Minor’s mother, Robin S., was driving. Minor, his father Romaldo S., and another person were also in the car. The new arrivals quickly got out of their car. Romaldo S. was the first to approach Maynor. Maynor testified that Romaldo “just started swinging on me,” and then several others joined in, beating Maynor severely. Among the others joining the fight were minor, Gray, and someone Maynor did not recognize. The beating continued for five minutes or so; Maynor “took a lot of blows.”
After taking about 20 blows to the head, Maynor tried to deter them by reaching for a shotgun from his truck. He recalled that, “as soon as I had my hands on it, then it was really a free-for-all for my head.” Maynor held onto the gun “for a good couple minutes,” while blows continued to rain on his head. One of the assailants managed to wrest the gun from Maynor’s grasp. Maynor did not see who took the gun, but he saw Romaldo S. walking away with it. The fighting ended when the shotgun was taken away. Minor and his companions entered their car and drove away. Gray returned to his trailer.
After the assailants left, Maynor called the sheriff. Deputy Hardin responded. He saw that Maynor’s eyes were swollen and he was wearing a ripped shirt covered in blood. Marriott testified that she saw injuries all over Maynor’s face. Maynor eventually received medical treatment for his injuries. He required stitches over his eye, suffered bruises around his eyes and cheeks, his forehead was covered in lumps, and his nose and orbital socket had been broken.
Maynor told Deputy Hardin what had happened. He named Romaldo S., Robin S. and minor among the assailants. He also pointed out Gray, who was near his trailer when Deputy Hardin arrived.
Deputy Hardin eventually took minor into custody and interviewed him. Minor told Deputy Hardin that he had been at home when his father received a telephone call. Romaldo S. told Robin S. and minor that they had “something to take care of.” They got into their vehicle and drove to the Rue Ranch. Romaldo S. had a physical altercation with Maynor; minor joined the fight to assist his father.
The defense presented the testimony of minor’s sister, 12-year-old Samantha S. Her father, Romaldo S., received a telephone call from Gray; Gray said he was “having problems down at the lake.” Robin S., Romaldo S., minor, and Samantha S. all drove in their car to Rue Ranch. Samantha S. testified that once they had arrived at the scene, she saw Maynor make a slapping motion at Romaldo S. Maynor and Romaldo S. began to fight. Suddenly, Samantha S. heard her father yell, “He’s got a gun.” Up until then, she claimed, Romaldo S. had been the only person fighting with Maynor. More people were involved in the struggle over the gun. Marriott jumped onto Romaldo S. and minor started hitting Maynor, trying to get the gun away from him.
Gray ended up with possession of the gun and then the fighting stopped.
Minor testified in his own behalf. He confirmed that his father had received a telephone call from Gray, and that his father said, “there was a problem out there, and we needed to go out there.” He nevertheless claimed, however, that he believed that the family went to the lake for recreation: “[I]t was a Saturday morning. We wanted to go out there and have a good time at the lake.” Minor testified that he saw his father and Maynor start fighting, when suddenly he heard his father yell, “he has a gun.” Minor denied being involved in the fighting in any way before the statement that Maynor had a gun. Minor did not see Gray hit Maynor. He did not know how many times Maynor was hit. Minor did not punch Maynor. He admitted he may have elbowed Maynor once, however, when wrestling for the gun.
The prosecutor filed a petition alleging that minor had violated Penal Code section 245, subdivision (a)(1), assault by means likely to produce great bodily injury, a felony. At the conclusion of the evidence, the juvenile court found that minor’s testimony was inconsistent with the physical evidence. The court found the allegation true beyond a reasonable doubt, and declared minor a ward of the juvenile court.
Minor appeals.
ANALYSIS
I. Standard of Review
Minor’s sole ground on appeal is the insufficiency of the evidence. In reviewing the sufficiency of the evidence, we are bound to view the evidence in the light most favorable to the judgment, and to presume in favor of the judgment the existence of all facts the trier may reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “ ‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. [Citation.]’ ” (Ibid.)
Minor urges that, although reasonable inferences may be drawn, the reviewing court “may not ‘go beyond inference and into the realm of speculation in order to find support for a judgment. A finding . . . which is merely the product of conjecture and surmise may not be affirmed.’ ” (People v. Memro (1985) 38 Cal.3d 658, 695.)
II. The Evidence Was Sufficient to Support the Judgment
Keying off the emphasized language from Memro to the effect that factual inferences cannot be based upon speculation, conjecture and surmise, minor relies heavily on People v. Dupre (1968) 262 Cal.App.2d 56, for the proposition that, “[Minor’s] story of the event was plausible and the court had no valid reason for rejecting it. On the other hand, [minor’s] defense was not discredited by the prosecution witnesses who contradicted each other on an important factual point.”
Counsel’s argument is without merit. It misapprehends the circumstances in Dupre and fails to take proper account of the evidence in this case.
In People v. Dupre, supra, 262 Cal.App.2d 56, the defendant was found in possession of recently stolen property. The question was whether she knew at the time that the property was stolen. She gave a rational explanation for how she came by the property honestly. There was no evidence to suggest that she knew it was stolen. Her conviction for receiving stolen property was properly reversed: “A jury is not altogether free to reject as ‘unsatisfactory’ whatever explanation the defendant gives. There must be some flaw in the explanation itself, or it must be discredited by other evidence. Otherwise the jury would, in effect, be authorized to convict upon proof of possession irrespective of what explanation had been made.” (Id. at p. 60.)
Dupre is plainly inapposite. In Dupre, there was no evidence to show that the defendant had known the property was stolen. In other words, the defendant’s explanation—that she came by the property honestly—stood uncontradicted by any other evidence in the record. That is plainly not the case here. Maynor and Marriott both clearly testified that defendant took an active part in the beating from the beginning and that he struck several of the many blows that injured Maynor. Minor’s testimony offered an explanation, but his evidence was either flawed (inconsistent with the physical evidence), or discredited by other evidence (contradicted by the testimony of Maynor and Marriott), or both.
It strains credulity for counsel to proffer the argument that, “there was no flaw in [minor’s] explanation that he entered the fray to [w]rest control of the shotgun from Maynor,” and that “[t]he court was required to accept [minor’s] explanation and defense [i.e., defense of others] because his story was not flawed and was not contradicted by substantial and credible evidence.” This flies in the face of the physical evidence and the trial testimony. The victim’s injuries were severe: He received many blows to the head, of sufficient force to break multiple bones. He required stitches over one eye. He was pummeled mercilessly for many minutes by several assailants. Both Maynor and Marriott saw and named minor as one of the persons striking the blows. This is not a case in which the defendant’s explanation stands uncontradicted. The prosecution witnesses flatly contradicted minor’s evidence that he did not participate in the fight except to wrestle for the gun, and that he may have accidentally elbowed Maynor only once.
Counsel argues that the prosecution witnesses should not have been believed, “because their testimony contradicted each other on a crucial factual point.” This argument is also meritless. Maynor testified that he grabbed the shotgun from his truck. Minor claims that Marriott’s testimony conflicts with Maynor’s, because she did not see Maynor take out the gun. There is no contradiction. The fact that Marriott did not see who took out the gun does not discredit or contradict Maynor’s testimony. She simply, and truthfully, did not see. She mentioned during her testimony that she had her livestock, a donkey and some goats, also to contend with during the uproar. Counsel betrays a profound misunderstanding of the proper standard of review when arguing: “Either [Marriott] was not being candid or was a poor observer and if she did not observe how the shotgun entered the fray, how accurate could she have been about [minor] joining in the first blows?” These are questions of credibility. The determination of credibility questions rests within the sound discretion of the trier of fact. The parties had a full opportunity to test the quality of Marriott’s observations. Her report matched both the evidence of another percipient witness and also the physical evidence.
The evidence was patently more than sufficient to support the judgment. The arguments to the contrary are based on such profound misrepresentations of the record, and of the proffered case authorities, as to leave little room for doubt that the misrepresentations are deliberate. Such arguments serve neither counsel nor the client.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KING, J.