Opinion
E045279.
1-29-2009
In re L.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.H., Defendant and Appellant.
Steven S. Lubliner, 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, James D. Dutton and Ivy B. Fitzpatrick, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
On November 28, 2007, a juvenile court found true that minor L.H. committed a felony, threatening and dissuading a witness. (Pen. Code, § 136.1, subd. (c).) The court also found true that, in committing the felony, minor personally used a firearm. (Pen. Code, §§ 12022.5, subd. (a), 1192.7, subd. (c)(8).) Thereafter, the juvenile court declared the maximum period of confinement to be 14 years.
On January 16, 2008, the juvenile court adjudged minor a ward of the court and placed her under supervision of the Riverside County Probation Department. The court also designated minor as a dual status youth under Welfare and Institutions Code section 241.1, and ordered her placed in a suitable foster or group home with probation conditions.
On appeal, minor contends that the evidence is insufficient to support the firearm enhancement. For the reasons set forth below, we shall affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY
For most of her life, minor lived with Z.B., who was her stepfather and de facto guardian. In February 2007, the juvenile court ordered minor placed in a safe house; minor, however, fled from placement. From February 2007 through May 2007, minor remained a runaway, but visited with Z.B. on a regular basis.
In May 2007, the victim was subpoenaed to testify in a case against minors mother that involved harm to the victims husband, M.C. The victim and minor knew each other prior to the case against minors mother; they apparently had a friendly relationship.
At approximately 3:00 p.m. on May 10, 2007, the day before the victim was scheduled to testify, minor confronted the victim on a street in Riverside County. Minor was riding in the passenger seat of her stepfathers van when she saw the victim walking alone on the opposite side of the street. Minor asked her stepfather, Z.B., to stop the vehicle next to the victim. Z.B. honked the horn, turned the vehicle around, and pulled up next to the victim.
Minor called out to the victim, asking her if she was "[M.C.s] wife." The victim responded that she was. Minor then told the victim that she knew the victim "was the [person] who ratted her family out." Minor then pulled a small, black, "palm-sized handgun" from her jacket, and told the victim that if she testified against minors family, minor would kill her. The victim was standing right beside the passenger door and could clearly see that the handgun was real. Minor placed the handgun back in her jacket and the van drove off.
The victim, who was shaking from fright, proceeded to a nearby Stater Bros. market. Still shaking, she asked the manger if she could use the store telephone. She called her mother to pick her up and then waited outside. About 15 minutes later, minor reappeared in front of the Stater Bros.
Minor approached the victim, telling her it was "fate" that she found her. Minor, who apparently did not have the handgun and made no further threats, told the victim that she "destroyed her life because her family was in jail." The victim argued with minor, told minor that her family destroyed the victims family, and called minor a "damn whore." When the victim told minor to go home, minor, who was crying, told the victim, "I have nobody. Im alone. Its all your fault." The victim knew minor was a runaway and felt sorry for her family situation.
After about five minutes of arguing, the victims mother arrived to pick her up. A security guard and another store employee had to separate the two girls; the victim left in her mothers vehicle and immediately reported the incident to the police.
Z.B. testified in minors defense. Z.B. admitted that he knew about the criminal case concerning minors mother. Z.B., however, claimed that he did not know what was going on between minor and the victim when they spoke on the curb. Z.B. stated that, although minor told the victim to leave her family alone, minor never threatened the victim or displayed a weapon. After minor and the victim spoke for about 15 to 20 seconds at the curb, Z.B. stated that he told minor that they needed to go. Z.B. testified that he and minor then went back to his house where minor changed her clothes. Thereafter, Z.B. dropped minor off near Stater Bros. with some money. Z.B. stated that minor planned to "visit some friends."
Minor testified in her own defense. She admitted to confronting the victim on the street. Minor, however, denied threatening the victim, displaying a weapon, and knowing that the victim was a witness in the case pending against minors mother. Minor testified that when she approached the victim in the van, the victim lied about not being "[M.C.s] wife," and then proclaimed to have never said anything about minors family members. Minor told the victim that she knew the victim was lying and to leave minors family alone. Minor claimed that the victim was at the passenger door for only a few seconds when Z.B. "drove off because he noticed the conversation wasnt going good."
Minor said that after changing her clothes at Z.B.s house, Z.B. dropped her off at a liquor store near Stater Bros. to buy food to eat. Minor denied intentionally following the victim to Stater Bros. She stated that when she arrived at the liquor store, she needed to use the restroom, but there was none available. Therefore, she walked over to Stater Bros., where she saw the victim.
Minor claimed that the victim initiated the argument and was "cussing [minor] out." Minor denied telling the victim that their meeting was "fate" and denied being upset with the victim. Minor claimed that the victim was the only person yelling and screaming. Minor testified that the victim called minor a "whore" and a "homewrecker," accused minors family of ruining the victims life, and threatened to turn minor into the police for being a runaway.
II
ANALYSIS
Minors sole contention on appeal is that the evidence is insufficient to support the firearm enhancement because the victims testimony "was completely unworthy of belief."
In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record "in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331; see also People v. Hill (1998) 17 Cal.4th 800, 848-849.)
If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Hale (1999) 75 Cal.App.4th 94, 105.)
Minor argues that the evidence here is insufficient to support the firearm enhancement because the victim was a liar: "[S]omeone who actually claims to have been scared to death by a brandished handgun simply is not going to be screaming dirty names at their assailant twenty minutes later when the person presumably is still armed, dangerous and sensitive to provocation." However, we may only reject statements given by witnesses who have been believed by the trier of fact when there is a physical impossibility that they are true. The testimony "must be inherently improbable and such inherent improbability must plainly appear." (People v. Ozene (1972) 27 Cal.App.3d 905, 910, disapproved on other grounds in People v. Gainer (1977) 19 Cal.3d 835, 847-851.)
In this case, the juvenile court gave explicit reasons for accepting the victims testimony and disbelieving the testimony of minor and Z.B. The court recognized that the case "boil[ed] down to credibility." After hearing the testimony of Z.B., the victim, and minor, and observing their mannerisms, the court found the victims testimony to be "very consistent and very forthright." The court noted that the victim was "very clear as to what was done, how it was done, what things looked like." The court stated that it had a "hard time concluding [that the victim] would just make up all this stuff with the detail that she gave."
Moreover, the juvenile court found the version of events given by minor and Z.B. to be "all too convenient" and "bizarre." The court did not "believe . . . for a second" minors claim that, after changing clothes "for whatever bizarre reason," she "just magically" ran into the victim again. The juvenile court also found Z.B. "a little less than forthright with this Court." The court concluded that minor had motive to threaten the victim:
"I think [minor] is extremely upset about what has happened to her family, and I certainly feel for her, you know. Shes gotten—she probably feels like shes gotten a raw deal here and nobody is being fair to her or her family. But its clear to me her family is the most important thing to her and she is apparently willing to remain free from custody and placement and all sorts of programs to be with her family. And she even testified to that. And I mean that goes right into what she is willing to do to protect her family."
As stated above, it is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Barnes, supra, 42 Cal.3d at p. 303; People v. Hale, supra, 75 Cal.App.4th at p. 105.) Here, the juvenile courts determinations are amply supported by the evidence, as summarized above.
Nonetheless, minor argues that it would be inherently improbable for this court "to believe that minutes after the first confrontation had [the victim] shaking with fear at the sight of a gun—a point [the victim] emphasized several times—[the victim] was calm and confident enough to get into a screaming match with [minor] and call her vile names even though [minor] had apparently tracked her down again because it was `fate." We disagree.
Contrary to minors argument, we find nothing inherently improbable in the victims testimony here. The victim testified about the incident where minor brandished a weapon when threatening the victim. There was nothing inherently improbable in that testimony. Thereafter, the victim testified about the confrontation at Stater Bros. Again, there was nothing inherently improbable in that testimony. Notwithstanding minors assertion—that a person who had been threatened with a handgun and scared would be too scared to confront minor as the victim did—we make a common observation that different people react in different ways. And, as a reviewing court, we are not in a position to determine the psychology of human reaction. Instead, we rely on the trier of facts assessment of witness credibility and believability. Here, the juvenile court, as the trier of fact, observed the victim when she gave her full account of the events and believed her. We are bound to give "due deference to the trier of fact" and not retry the case ourselves. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
Therefore, because the events described by the victim are not physically impossible or improbable, we find that substantial evidence supports the courts finding that minor used a firearm within the meaning of Penal Code sections 12022.5, subdivision (a), and 1192.7, subdivision (c)(8).
III
DISPOSITION
The judgment is affirmed.
We concur:
HOLLENHORST, Acting P. J.
McKINSTER, J. --------------- Notes: The clerks transcript indicates that minor admitted the firearm enhancement; she did not. The court found the charge and enhancement true after a contested trial.