Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. JJ16352, Robert S. Ambrose, Referee.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
M.B. appeals the judgment (order declaring M.B. a ward of the juvenile court under Welfare and Institutions Code section 602) entered following the finding M.B. committed an assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)
M.B. contends an amendment of the delinquency petition violated his rights to notice and due process, and the evidence is insufficient to support the jurisdictional finding. We find no violation of M.B.’s rights to notice or due process and conclude the evidence is sufficient to support a felony conviction of assault by means of force likely to produce great bodily injury.
BACKGROUND
1. The charges.
As relevant here, M.B. was charged with two counts of assault with a deadly weapon, “to wit, metal pipe, baseball bat, wooden sticks and metal scooter,” in violation of Penal Code section 245, subdivision (a)(1). The alleged victims were Tomas Vargas in count one and Yesenia Bruno (Yesenia) in count two.
2. The People’s evidence at adjudication.
Tomas Vargas testified that, on the afternoon of July 13, 2008, he was moving furniture about a block from his home. Vargas, who had been drinking beer, got into an altercation with a group of eight or nine youths from the neighborhood who attacked Vargas “because [he] stared at [them].” Vargas grabbed a youth who struck him, threw the youth down and held him. At that point, the other youths began to punch and kick Vargas and he was struck with a scooter. Vargas recognized M.B. and B.B. because they live in the neighborhood and Vargas has had problems with them in the past. M.B. hit Vargas with his fist. The youths left the scene but returned about 15 minutes later with a bat, sticks and another scooter or skateboard. However, the police arrived before any further confrontation occurred.
Yesenia, Vargas’s cousin, heard neighbors yell, went outside and saw Vargas being beaten by eight to ten youths, including M.B. Yesenia ran to where Vargas was on the ground. One of the youths was about to hit Vargas with a skateboard. Yesenia bent down to tell him no and the individual with the skateboard let it fall on Yesenia who was struck on the back by the skateboard. Yesenia testified, “I was actually there in the group because I also got a blow to my lip.” Yesenia indicated she was hit in the mouth with a closed fist by M.B. and that his brother, B.B., had the skateboard.
On cross-examination, Yesenia asserted she told the same story to the police. Yesenia sees M.B. and B.B. every day and indicated the brothers and their friends have done “nasty things to... our cars.” She testified the same person who had the skateboard hit her in the mouth. However, on redirect examination, Yesenia specified it was B.B. who dropped the skateboard and M.B. who hit her in the lip. Yesenia recalled she identified the individual with the skateboard to the police on the day of the incident but could not now remember what she told the police. When defense counsel asked whether Yesenia identified someone who was not in court as the individual with the skateboard, Yesenia responded, “I just know them. They were the ones that were in this.”
3. Amendment of the petition; denial of motion to dismiss.
At the close of the People’s evidence, the prosecutor indicated that, as to M.B. and B.B, assault by means of force likely to produce great bodily injury was a more appropriate charge than assault with a deadly weapon. The prosecutor further indicated that, prior to the adjudication, the People advised defense counsel of the People’s intention to amend the petition to charge assault by means of force likely to produce great bodily injury, “so it’s not a surprise at this point.”
Defense counsel objected the amendment would render the charge a Welfare and Institutions Code section 707, subdivision (b) offense. Defense counsel asserted that, had such an offense been alleged at the outset, counsel would have advised M.B. differently or a plea agreement would have been reached. The juvenile court overruled the objection.
Defense counsel then sought dismissal under Welfare and Institutions Code section 701.1 asserting the testimony against M.B. had been “manufactured” to fit the circumstances and the prosecution witnesses admitted they did not like M.B. and his friends. The juvenile court agreed the evidence showed the prosecution witnesses knew the minors but denied the motion to dismiss.
4. Defense evidence.
Los Angeles Police Officer Luis Bonilla translated Yesenia’s statement at the scene of the incident. He reviewed the police report prepared in this case but did not write it. The police report accurately depicts Yesenia’s statement that Cornell G. hit her and had the skateboard. At the scene of the incident, Yesenia did not identify M.B. or B.B. as having hit her.
5. Findings of the juvenile court.
The juvenile court found the evidence indicated Vargas had been drinking and, even under his version of the incident, he had one of the youths pinned. The juvenile court was not convinced beyond a reasonable doubt that Vargas was assaulted by either M.B. or B.B. and dismissed count 1. However, the juvenile court “had a sense of balance... that [Yesenia] was telling the truth, that she was trying to stop this event that had to be unfolding like a blur in front of her.... [¶] And I know there’s animosity between [Yesenia’s] family and [M.B.’s] family....” However, the evidence showed that M.B. and B.B. “did in fact commit the crime of assault by means likely to produce great bodily injury.”
The juvenile court indicated it would not be opposed to reducing M.B.’s offense to battery in the future. “We’ll see how these young people do [on probation].”
CONTENTIONS
M.B. contends the amendment of the petition violated his due process right to notice of the charges against him and the evidence was insufficient to support the finding he committed felony assault with force likely to produce great bodily injury.
DISCUSSION
1. The amendment of the petition was proper.
The petition alleged two counts of assault with a deadly weapon, “to wit, metal pipe, baseball bat, wooden sticks and metal scooter” in violation of Penal Code section 245, subdivision (a)(1). At the close of the People’s evidence, the juvenile court granted the prosecutor’s request to amend the petition to allege assault with force likely to produce great bodily injury, also in violation of Penal Code section 245, subdivision (a)(1).
M.B. contends this was error. He argues he was on notice he would be charged with assault with a pipe, a bat, sticks or a scooter, not with hitting the victim in the mouth with his fist. M.B. invokes the rule that a charging document may not be amended to allege a new offense except when the lesser offense is necessarily included within the charged offense or when the specific language of the accusatory pleading adequately warns that the People will seek to prove the elements of a lesser offense. (See People v. Lohbauer (1981) 29 Cal.3d 364, 368-369; In re Robert G. (1982) 31 Cal.3d 437, 440-441, 445 [extending Lohbauer to juvenile delinquency proceedings].).
M.B.’s attempt to apply Lohbauer in this setting is inconsistent with well settled case law that holds Penal Code “[s]ection 245... defines only one offense, to wit, ‘assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury....’ ” (In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5.) Thus, the amended delinquency petition continued to allege a violation of Penal Code section 245, subdivision (a)(1), not a new offense, as in Lohbauer.
M.B. asserts this rule should not apply because, in juvenile proceedings, an important component of notice lies in the requirement the petition state the facts that support the conclusion the minor is dependent within the meaning of Welfare and Institutions Code section 602. (In re Arthur N. (1976) 16 Cal.3d 226, 233, superseded on another ground by statute as stated in In re Eddie M. (2003) 31 Cal.4th 480, 485.) However, nothing in In re Arthur N. requires juveniles be given notice that is superior to the notice required for adults. Mosely therefore applies.
Finally, defense counsel argued M.B. was prejudiced by the amendment because assault with a deadly weapon is not a Welfare and Institutions Code section 707, subdivision (b) offense, but assault by means of force likely to produce great bodily injury is an offense enumerated in Welfare and Institutions Code section 707, subdivision (b). (Welf. & Inst. Code, § 707, subd. (b)(14).) However, notwithstanding the statutory language, it has been the rule for some time that both assault with a deadly weapon, as well as assault with force likely to produce great bodily injury, constitute Welfare and Institutions Code section 707, subdivision (b) offenses. (In re Pedro C. (1989) 215 Cal.App.3d 174, 182 [a determination assault with a deadly weapon is not a section 707, subdivision (b) offense would elevate form over substance].) Thus, the distinction urged by defense counsel in opposition to the amendment is non-existent.
The case cited by M.B. on appeal for the proposition that assault with a deadly weapon is not a Welfare and Institutions Code section 707, subdivision (b) offense, In re J.L. (2008) 168 Cal.App.4th 43, 61-63, had no occasion to address the issue. In In re J.L., the minor admitted an assault under both the “deadly weapon” clause and the “force likely to produce great bodily injury” clause of Penal Code section 245, subdivision (a)(1). In re J.L. concluded this offense constituted an “[a]ssault by... means of force likely to produce great bodily injury,” as described in Welfare and Institutions Code section 707, subdivision (b)(14).” (In re J. L., supra, at pp. 61-63.) The same result would have obtained under In re Pedro C., supra, 215 Cal.App.3d at p. 182.
In sum, the amendment did not violate M.B.’s right to notice of the charges against him or due process of law.
2. Sufficiency of the evidence.
M.B. contends the juvenile court should have granted his motion to dismiss count 2 under Welfare and Institutions Code section 701.1 and the evidence is insufficient to support the true finding. He raises three distinct claims in this regard. We recite the applicable standards of review, then address M.B.’s claims in turn.
a. Standard of review.
Welfare and Institutions Code section 701.1 allows a juvenile to move for dismissal of a petition following the prosecution’s presentation of evidence. (Welf. & Inst. Code, § 701.1.) Welfare and Institutions Code, section 701.1 is “substantially similar to Penal Code section 1118.” (In re Man J. (1983) 149 Cal.App.3d 475, 482.) Penal Code section 1118 requires the trial court to weigh the evidence, evaluate the credibility of witnesses, and determine the case against the defendant has been “ ‘proved beyond a reasonable doubt before [the defendant] is required to put on a defense.’ [Citation.]” (In re Andre G. (1989) 210 Cal.App.3d 62, 66.)
On review of the denial of a motion pursuant to Welfare and Institutions Code section 701.1, as well as on appeal from an order sustaining a delinquency petition, we apply the substantial evidence test articulated in People v. Johnson (1980) 26 Cal.3d 557. We “ ‘view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (Id. at p. 576.) We determine whether the evidence of each essential element is substantial. (Id. at p. 577.) “[S]ubstantial evidence” is 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.” (Id. at p. 578.)
b. Yesenia’s apparently contradictory statements on cross-examination do not render her identification of M.B. mere speculation.
On direct examination, Yesenia testified M.B. struck her in the mouth with a closed fist. M.B. notes that, on cross-examination, Yesenia testified the same person who had the skateboard hit her in the mouth and she consistently identified B.B. at the adjudication as the individual with the skateboard. M.B. asserts this state of the evidence showed only that either M.B. or his brother hit Yesenia. M.B. claims a true finding on this evidence amounts to nothing more than speculation.
Initially, we note Yesenia reiterated her identification of M.B. as the individual who struck her in the mouth on redirect examination. However, even had the prosecutor neglected to rehabilitate Yesenia’s testimony, Yesenia’s eye-witness identification of M.B. on direct examination as the assailant would have been sufficient to support the juvenile court’s finding. “ ‘It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses.’ ” (People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.) Variance between Yesenia’s testimony on direct and cross-examination was a matter for the juvenile court to weigh.
Additionally, in sustaining count two, the juvenile court specifically found Yesenia credible. “ ‘To warrant the rejection by a reviewing court of statements given by a witness who has been believed by a [trier of fact], there must exist either a physical impossibility that they are true, or [they] must be inherently improbable and such inherent improbability must plainly appear.’ ” (People v. Jones (1970) 10 Cal.App.3d 237, 247.) Because M.B. cannot demonstrate that Yesenia’s testimony is inherently improbable or physically impossible, the contention must fail. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Mayberry (1975) 15 Cal.3d 143, 150.)
c. Any discrepancy between Yesenia’s statement to the police and her testimony was for the juvenile court to resolve.
M.B. notes there initially were six minors charged in this case, including Cornell G., the individual Officer Bonilla testified Yesenia identified at the scene as the minor who hit her in the mouth and hit her with the scooter. Cornell G. reached an agreement with the prosecutor and was not in court during the adjudication at which Yesenia testified M.B. hit her in the mouth and his brother, B.B., hit her with the scooter. M.B. contends this court should find Yesenia’s identification of M.B. inherently insubstantial and that it is contradicted by other solid and believable evidence. (People v. Marshall (1997) 15 Cal.4th 1, 35 [mere speculation cannot support a conviction]; People v. Reyes (1974) 12 Cal.3d 486, 499.)
M.B. notes that, when defense counsel argued to the juvenile court that Yesenia identified Cornell G. at the scene as the individual who hit her, the juvenile court sustained the prosecutor’s objection that defense counsel had misstated the evidence. M.B. complains the juvenile court either did not remember or did not appreciate Officer Bonilla’s testimony and thus could not have considered it in determining Yesenia’s credibility. M.B. notes the juvenile court lacked a reporter’s transcript of the proceedings which would have established that defense counsel did not misstate the evidence.
As discussed above, the true finding is supported by Yesenia’s eyewitness identification of M.B. Consequently, this is not a case of “ ‘inconsistent inferences sought to be derived from weak and inconclusive sources.’ ” [Citations.]” (People v. Reyes, supra, 12 Cal.3d at p. 499.) In any event, it is well established that apparent uncertainty or discrepancy in the testimony of a witness simply presents evidentiary issues for the trier of fact to resolve. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 849 [alleged inconsistencies in witness’s identification of defendant were mere discrepancies in the evidence the jury considered and resolved against defendant]; People v. Fagalilo (1981) 123 Cal.App.3d 524, 530-531 [witness identification of defendant sufficient even though she previously identified codefendant as robber on two occasions].)
Further, it appears the juvenile court’s ruling took issue with defense counsel’s suggestion Yesenia did not identify M.B. at the adjudication. Immediately after the juvenile court sustained the objection, defense counsel noted Yesenia identified Cornell G. at the scene and argued Yesenia identified M.B. and B.B. because she wanted them off the street. Thus, the trial court’s ruling on the objection did not prevent M.B.’s counsel from arguing the implications of Officer Bonilla’s testimony. In sum, the order sustaining the prosecutor’s objection does not suggest the juvenile court failed to consider all the evidence presented, including Officer Bonilla’s testimony.
d. The evidence is sufficient to support a felony conviction of assault with force likely to produce great bodily injury.
M.B. contends the force applied in this case was not likely to produce great bodily injury. He notes Yesenia was hit once in the mouth with a closed fist and there was no evidence of any injury. M.B. concedes the victim of a violation of Penal Code section 245, subdivision (a)(1) need not suffer harm. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) However, he argues that, where a blow is landed or an injury inflicted, it is appropriate to consider the force of the blow and the nature and extent of the injury in determining whether the force used was likely to produce great bodily injury. (People v. Wells (1971) 14 Cal.App.3d 348, 358-359.) M.B. notes Witkin and Epstien teach that an assault producing no physical injury “is unlikely to support anything more than a simple misdemeanor conviction....” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) § 37, p. 661.) M.B. concludes the juvenile court should have granted the motion to dismiss and this court should reverse the order sustaining the petition.
The People assert Yesenia’s testimony supports the conclusion the blow to her mouth was delivered without warning and with great force. Further, punching a woman in the face, a particularly vulnerable part of the body, increased the likelihood of great bodily injury. However, the cases cited by the People for this proposition involve torture and mayhem in which great bodily injury actually was inflicted. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426; People v. Quintero (2006) 135 Cal.App.4th 1152, 1162-1163.)
Cases involving a blow to the face that address the sufficiency of the evidence to support a felony conviction of assault with force likely to produce great bodily injury generally involve some injury. (E.g., In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162 [argument that one blow to the face could not have been likely to cause great bodily injury rejected where victim felt her jaw pop out and two months later, her teeth still did not meet].)
“While... the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.” (People v. Muir (1966) 244 Cal.App.2d 598, 604 [rejecting the notion that a blow rendering the victim unconscious is insufficient to support a conviction of aggravated assault].) The “question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the [trier of fact] based on all the evidence, including but not limited to the injury inflicted. [Citations.]” (Ibid.; People v. Chavez (1968) 268 Cal.App.2d 381, 384.) “Whether a fist would be likely to produce such injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied.” (People v. Score (1941) 48 Cal.App.2d 495, 498.)
Here, the record shows Yesenia entered an ongoing fray to assist her uncle who was out-numbered by a group of neighborhood youths with whom Yesenia and her uncle had ongoing disputes. The juvenile court found Yesenia’s testimony credible and found she came upon the conflict unaware as to how it may have started and that she acted in reasonable defense of her uncle. The juvenile court stated “she was trying to stop this event that had to be unfolding like a blur in front of her.... ” Yesenia testified she was right in the middle of the commotion such that she was struck in the mouth and another youth dropped a skateboard on her back. The juvenile court properly could conclude, based on the totality of the circumstances presented, that a blow to the mouth with a closed fist in this charged setting amounted to force likely to produce great bodily injury.
We therefore conclude the motion to dismiss properly was denied and the evidence is sufficient to support the jurisdictional finding. (People v. Johnson, supra, 26 Cal.3d at pp. 576-577; In re Man J., supra, 149 Cal.App.3d at p. 482.)
DISPOSITION
The judgment (order declaring M.B. a ward of the juvenile court under Welfare and Institutions Code section 602) is affirmed.
We concur: KITCHING, J., ALDRICH, J.