Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. FJ 46629, Robert J. Totten, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, Acting P. J.
M.G. timely appealed from her adjudication pursuant to Penal Code section 245, subdivision (a)(1) for assault with a deadly weapon (a knife), a wobbler. At the disposition hearing, the juvenile court made appellant a ward under Welfare and Institutions Code section 602 and ordered her home on probation. The court declared the single count to be a felony and imposed a maximum term of confinement of four years. Subsequently, pursuant to appellant’s petition to modify, the court reduced the felony to a misdemeanor, stating it had been in error at the time of the disposition and had not properly considered reducing the charge as it had intended to do. Appellant contends the finding she had committed assault with a deadly weapon is not supported by substantial evidence. We affirm as modified.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
FACTUAL BACKGROUND
On December 10, 2009, at 11 p.m., appellant was at home with her mother Yolanda, her sister and two brothers in the bedroom they all shared. The room was dark. The siblings were all laughing and “playing around.”
At one point, appellant’s brother Jonathan called appellant a series of derogatory names and “farted” in her face. Appellant responded by going to the kitchen, retrieving a ten-inch kitchen knife, returning to the bedroom and standing approximately five feet away from Jonathan. Appellant held the knife up towards Jonathan’s face and brandished it at him for about five seconds. Concerned that appellant might do something, Jonathan put a pillow up to his face and kicked out at appellant with his legs to keep her away from him; Jonathan’s legs never touched appellant. Jonathan did not know what happened after that as the pillow was in front of his face for several minutes. The pillow did not have any punctures or damages from the knife. The knife never touched Jonathan.
Yolanda had been lying in bed with her eyes closed when she heard some commotion. Yolanda opened her eyes, and although it was dark and she required glasses to see properly (she had not put them on at that point), she observed appellant with a knife, holding it out in front of her with the blade pointed towards Jonathan and standing two or five feet away from him. Yolanda never saw appellant make any stabbing motion toward Jonathan.
After two unsuccessful requests that appellant give her the knife, Yolanda called 9-1-1 because she was afraid appellant was going to stab Jonathan. The police arrived two minutes later. Yolanda told the 9-1-1 operator that her daughter “‘got a knife and tried to stab my son.’” While talking to the operator, Yolanda asked Jonathan if he was bleeding.
Yolanda testified it had been a very confusing and chaotic scene. Yolanda and her other son struggled to get the knife away from appellant. When appellant let go of the knife, Yolanda was cut on the finger. Appellant left the house and went outside; the two brothers began physically fighting with each other.
Yolanda stated she had made the statements about appellant stabbing her son based on what Jonathan told her, not what she observed. Yolanda was very nervous about her children and violence in the home because the children had been taken away from her on more than one occasion.
Jonathan told the officers who arrived at the house that appellant had lunged at him with the knife and stabbed at the pillow five or six times, that he had to fall backwards in order to avoid being stabbed and that he was told by his brother that his mother had to pull appellant away from him. At trial, Jonathan testified his statements appellant had lunged at him and stabbed at him five or six times had been lies.
Jonathan stated that at the time he spoke with the police, he was angry about appellant using the knife and he wanted to get his sister into trouble and possibly have to spend time in prison. Generally, Jonathan was angry with appellant because every time he would get into trouble at school, appellant would tell their mother about it, and he would be punished. It occurred to Jonathan that if he got appellant into trouble with the police, it might get her out of the house and she would not be able to “tattle tail” on him anymore.
When Officer Dean Kolstad arrived at the house, he encountered Yolanda, who was repeating the same statements over and over again and seemed scared and nervous; Jonathan also seemed afraid and nervous. Kolstad observed the laceration on Yolanda’s finger, but did not observe any cuts on Jonathan. Kolstad did not book the pillow into evidence.
Appellant admitted she got the knife because she was mad about her brother teasing her, “passing gas” and calling her uncomplimentary names; she drew the knife to scare him, not to stab him. Appellant thought that by raising the knife above her head, she would scare Jonathan. Appellant denied lunging toward Jonathan or sticking the knife toward his face.
DISCUSSION
I. Assault
Appellant contends there was insufficient evidence she assaulted her brother because there was no substantial evidence that she did more than hold a knife while standing five feet from the victim. “An assault is an unlawful attempt, coupled with a present ability, to commit violent injury on the person of another.” (Pen. Code, § 240.)
“The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction. In either type of case, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Fns. omitted.) (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605.)
At the time of the incident, when Yolanda called the 9-1-1 operator, Yolanda said her daughter was trying to stab her son and asked her son if he was bleeding. Yolanda, who twice asked appellant to hand over the knife, got cut when she and her other son forcibly took the knife away from appellant. Yolanda admitted that at the time she called 9-1-1, she was afraid appellant was going to stab Jonathan. Jonathan told Officer Kolstad that appellant had lunged at him with the knife and stabbed at the pillow five or six times, that he had to fall backwards to avoid being stabbed and that his brother told him his mother had to pull appellant away from him. At trial, Yolanda stated she had not seen appellant stab her son, but rather her statement to the 9-1-1 operator was based on what Jonathan told her. Jonathan claimed he lied in order to get appellant in trouble. The court expressly found Yolanda and Jonathan had no credibility.
In essence, appellant argues that because Yolanda and Jonathan offered “explanations” about their statements to the investigating officer and the 9-1-1 operator, there was no evidence appellant either lunged at her brother or attempted to stab him. Appellant places emphasis on the fact the prosecutor presented no evidence to contradict Yolanda’s statements that she did not see appellant lunge towards or stab at Jonathan or to contradict the fact that the only reason she made the damaging statements to the 9-1-1 operator was because of what she had been told by Jonathan. Appellant also notes there were no cuts on Jonathan and the police did not book the pillow into evidence and the antagonistic history between appellant and Jonathan was unaffected by the court’s credibility concerns.
Appellant cites two cases in which the Court of Appeal rejected insufficiency of the evidence claims based on a trier of fact’s finding of credibility – People v. Ozene (1972) 27 Cal.App.3d 905, 909-910 and People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259. In those cases, the defendants argued it was unjust for the trier of fact to believe a particular witness or witnesses. (Ozene at p. 910; Watts at p. 1258.) Appellant reasons that because those insufficiency claims were predicated on competing and diametrically opposed accounts of the respective events, if the trier of fact believed one account, it had to disbelieve the other account. Appellant then suggests that because there were no conflicting accounts of the events in this case and because the witnesses did not retract or contradict what they said on the night of the incident, but rather explained the motivation behind those statements, the court had to accept those explanations. Not so, whether to believe the explanations was a credibility determination for the court as trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [“‘[I]t 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.’”]; see also People v. Ozene, supra, 27 Cal.App.3d at p. 910 [“[A]ny 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.”]; In re Frederick G. (1979) 96 Cal.App.3d 353, 367 [“It is not our function to reweigh the evidence, reappraise the credibility of witnesses or redetermine factual conflicts, those functions being within the province of the trier of fact.”].)
The court opined Yolanda was lying and stated the 9-1-1 tape supported the fact appellant stabbed at her brother. The court did not believe appellant intended to hurt her brother, but wanted to warn him off, stating “it went farther than it should have.”
At trial, Jonathan admitted he and appellant had argued before and had a social worker and therapist who worked with him. Thus, the court could reasonably infer that Jonathan and Yolanda told the truth the first time and then changed their testimony at trial to protect appellant. (See People v. Flores (1956) 147 Cal.App.2d 243, 246 [“The trial court ‘is not required to accept as true the testimony of a witness though not contradicted.’”].)
II. Term of Confinement
At the disposition, the court imposed a maximum term of confinement of four years. Appellant contends that term should be stricken as she was ordered home on probation.
In In re Ali A. (2006) 139 Cal.App.4th 569, 573-574, the court noted: “Here, the minor was not removed from the physical custody of his parents; instead, the juvenile court committed the minor to the custody of his parents, subject to supervision on probation. Thus, section 726(c), like section 731(b), does not apply, and the juvenile court was not required by the latter statute to include a maximum term of confinement in its dispositional order. [¶] In the event the minor violates the terms of his probation, a further noticed hearing will have to be held before he is subjected to a modified disposition removing him from his parents’ custody. If that happens, then at that time the juvenile court will have to comply with section 726(c) and, if applicable, section 731(b) in setting and/or declaring the maximum term of physical confinement. In the meantime, the maximum term of confinement contained in the current dispositional order is of no legal effect. Because the minor is not prejudiced by the presence of this term, there is no basis for reversal or remand in this case.” (Citations omitted; italics deleted.)
Subsequently, another Court of Appeal noted the statute empowering the court to remove a minor from his or her parent or guardian did not empower the court to proscribe a specific term of imprisonment when the minor was not removed and struck the term as the practice of doing so had not ceased despite criticism in prior opinions. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541-542.) We agree with that reasoning.
DISPOSITION
The maximum confinement term set by the court is stricken. In all other respects, the order is affirmed.
We concur: ZELON, J., JACKSON, J.