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People v. Childers

Court of Appeals of California, Fourth District, Division Three.
Nov 3, 2003
G030611 (Cal. Ct. App. Nov. 3, 2003)

Opinion

G030611

11-3-2003

THE PEOPLE, Plaintiff and Respondent, v. GARY DEVIN CHILDERS, Defendant and Appellant.

Michael J. Egan, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa A. Mandel, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant challenges the sufficiency of the evidence to support his conviction for assault with a deadly weapon on the ground the victims testimony was not credible. We will not reweigh the evidence, and affirm.

I

FACTS

In July or August 2001, victim Mark Krakower met defendant Gary Childers at Pauls Bar. During their acquaintance, defendant mentioned he was dissatisfied with his living arrangements, and was looking for a place to stay. Krakower lived in a two-bedroom home in the city of Orange, where he took care of an 18-year-old man who has fetal alcohol syndrome, Lloyd Traux. Krakower told defendant there was room in the Orange residence for him to stay temporarily. Defendant moved in on September 4, 2001.

On the following Friday evening, Krakower and defendant went out together. Around 11:30 p.m., Krakower walked home alone and went to bed around midnight. Around 2:20 a.m., Krakower heard some loud banging on the door after an Orange police officer dropped defendant off at the house. Defendant knocked loudly on the door and was intoxicated. Krakower and Traux settled defendant down on a couch, and Krakower walked back to the separate apartment next to the house.

Eight months earlier, in February 2001, Krakower had a total hip replacement on his right side as a result of osteoarthritis. To manage his pain, he took a prescription pain medication, Vicodin. He was still taking Vicodin at the time of the trial.

As Krakower walked slowly back through the yard, defendant came running out saying something about his wallet. A nightlight went on. Krakower said it appeared as though both he and defendant spotted the wallet on the ground at the same time. Krakower said, "Gary, theres your wallet." Krakower proceeded toward his bedroom. As he stood facing his bed, he was struck with a board with a nail in it. The nail went through his cheek and broke his tooth. He turned around, and defendant struck him again. That time, the nail went through his tongue. The board was a foot and a half or two feet long with "a good sized nail going through it." The two then went outside, and defendant picked up a larger board and hit Krakower several more times in the face. Defendant kept punching Krakower, while yelling, "I thought we were friends." Krakower described that at one point, ". . . he picked me up like a rag doll, basically, and just threw me against the fence." After that, defendant struck Krakower in the face and once on his leg with a bigger board. At some point Krakower said defendant threw him into a tangerine tree, and onto a bicycle.

When Traux tried to intercede, defendant grabbed him and threw him toward the fence. Traux went inside and called 911. When Traux announced the police had arrived, "Gary just got up, off of me, like, just stopped, and ran into the house." Traux told the dispatcher there was a fight going on, and, "They wouldnt stop."

Krakower was taken to the hospital where he received 63 or 68 facial stitches. The orbital around his right eye, his tongue, tooth and jaw were injured, and he had scratches over much of his body. His face remains scarred on the right side of his cheek, the lower left side of his jaw and his chin.

A jury found defendant guilty of violation of Penal Code sections 245, subdivision (a)(1), assault with a deadly weapon as charged in count one of the information, and 243 subdivision (d), battery with serious bodily injury as charged in count two. It was found to be true that defendant personally inflicted great bodily injury on the victim under Penal Code section 12022.7 during the commission of count one. On appeal, defendant asserts there was insufficient evidence to support his conviction on count one.

II

DISCUSSION

From defendants view, there was insufficient evidence to support his conviction. He argues the evidence failed to show he hit Krakower with a deadly weapon, since Krakower, the only witness who testified he was hit with a two-by-four, is incredible. Defendant also points out the testimony of other witnesses differed from Krakowers, and puts great stock into the fact Krakower did not tell the officers at the scene that two boards were used.

In evaluating the sufficiency of evidence, our role is quite limited. "[T]he reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — 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.] The appellate court presumes in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] ""If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]"" [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or patently false. (Evid. Code, § 411; People v. Cudjo (1993) 6 Cal.4th 585, 608; People v. Turner (1990) 50 Cal.3d 668, 695-698.) Krakowers testimony was neither impossible nor patently false.

We do not accept defendants invitation to reweigh the evidence. Sufficient evidence supports defendants conviction.

III

DISPOSITION

The judgment is affirmed.

WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.


Summaries of

People v. Childers

Court of Appeals of California, Fourth District, Division Three.
Nov 3, 2003
G030611 (Cal. Ct. App. Nov. 3, 2003)
Case details for

People v. Childers

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GARY DEVIN CHILDERS, Defendant…

Court:Court of Appeals of California, Fourth District, Division Three.

Date published: Nov 3, 2003

Citations

G030611 (Cal. Ct. App. Nov. 3, 2003)