Opinion
A145475
01-13-2017
In re DAVID R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DAVID R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. J-37133, Lake County Super. Ct. No. JV-311326)
Appellant David R., who became 18 years old after the charged offense, appeals from a jurisdictional order of the Sonoma County Juvenile Court sustaining a petition alleging a single count of misdemeanor battery on another with whom he is in a dating relationship (Pen. Code, § 243, subd. (e)(1)), and from a dispositional order of the Lake County Juvenile Court declaring him a ward of the court and placing him on probation. Appellant's court-appointed counsel has filed a brief raising no legal issues and requesting this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
All statutory references are to the Penal Code unless otherwise indicated.
This appeal, which is authorized by Welfare and Institutions Code section 800, encompasses both the jurisdictional and dispositional orders. (In re Melvin S. (1976) 59 Cal.App.3d 898, 900.)
STATEMENT OF THE CASE
On March 23, 2015 (all dates are in that year), the Sonoma County District Attorney filed a wardship petition alleging that David had inflicted misdemeanor corporal injury resulting in a traumatic condition on a person with whom he was engaged in a dating relationship. (§ 273.5, subds. (a) & (b)(3).) At his arraignment, David denied the allegations and the court issued an order prohibiting him from having any contact with the alleged victim, who was referred to in the proceedings below as Jane Doe. At the conclusion of the hearing the court found David committed the lesser included offense of misdemeanor battery on another with whom he was in a dating relationship (§ 243, subd. (e)(1)), and therefore came within the provisions of Welfare and Institutions Code section 602. The case was then ordered transferred to Lake County for disposition because that was where David and his parents reside.
At the disposition hearing on June 15, the court declared David a ward of the court and placed him on probation in the custody of his parents.
Timely notice of this appeal was filed on June 16, 2015.
FACTS
Jane Doe was the principal witness at the jurisdictional hearing. She testified that on Friday, March 16, after she and David had been dating for several weeks, she invited him to her house after school to hang out. After they arrived at her house, in which no one else was present, the couple decided to bake a pizza in the kitchen. After putting it in the oven they sat together on the couch watching Netflix. Jane, who had her puppy on her lap, laid her head on David's shoulder and at some point he kissed her. She then got up to get the pizza, David followed so he could help her cut it, and then "things just went completely wrong." David put his hands around her neck for less than 30 seconds. This was not done playfully. Jane Doe "could barely breathe" and "was scared he was going to kill me." She then put her hands on David's chest and pushed him back. David then looked at her and said, " 'you know I love you and I would never do anything to hurt you.' " Jane Doe stated that she "just freaked out at that moment in time." About five minutes after David put his hands around her neck, Jane "put on a sweatshirt, grabbed my keys, grabbed my wallet, [and] said 'Let's go.' " She then drove David to a tractor supply store in Windsor near her house "so his dad could pick him up."
A day or two later David texted Jane because he was going to be in town on Sunday and wanted to see her. Stating "I'm done," Jane said she didn't want to see him again. She did not respond to numerous texts from David telling her to answer her phone and to "stop talking to all of my friends, all of my guy friends, even one's I've known for years," but Jane said she "wasn't going to have that," and ended their relationship.
Jane testified that she didn't tell anyone about the incident for several days, and then told her best friend and, later, her mother, who told her to call the police, which she did. Jane said that she noticed "a little bit of bruising" the next day around her collarbone and "on the left side of her chest," but "didn't pay attention." She did not at first report this to the police or anyone else. Jane stated that as a result of the altercation with David, she has "constant nightmares" and wakes up "in tears" with "a cold sweat." She doesn't go outside alone "[b]ecause I'm scared he's going to have someone there waiting for me or something's going to happen to me."
On cross-examination Jane testified that at the time of the incident she had known David for three or four years and had "hung out with him almost every day" for about a week prior to the Friday on which the incident occurred. Jane also acknowledged certain discrepancies regarding what she told the police about David's abuse of her puppy and what she said about this in her victim impact statement (which she signed on April 9, more than a month after the March 6 incident) and her trial testimony. Jane said she told the police that at the time David choked her he also picked up her puppy and threw it across the room, despite her telling him "don't you dare lay a hand on my dog. You can lay your hands on me all you want. I don't care. Don't touch my dog." Jane told David to stay away from the puppy because "she's going to be my emotional support dog, because I suffer from depression and anxiety."
When she was asked by defense counsel to describe certain discrepancies in her statements regarding the incident—regarding whether David threw the dog before he choked Jane, or afterward, or both before and after the choking, or whether the throwing of the puppy took place on the day she was choked or the previous day, Jane asked: "Can I be excused for a minute? I can't breathe." After the court agreed to a recess, Jane stated that the throwing of the puppy happened the day before the choking, but a few moments later she contradicted herself. Asked by defense counsel whether she remembered saying in the victim impact statement "that immediately after throwing your puppy across the room he again put his hands on you neck? Jane answered: "He tried to." Jane attempted to explain the confusion by explaining that at the time of the incident she was then "distraught" and "under a lot of pressure already" due to "family problems." She had not seen her father, who lived with her "little brother and sister" in Utah, and was then "trying to deal with him and the mean crap that he does, and at the same time trying to deal with my own stuff, my own personal problems."
Jane's testimony on cross-examination regarding the timing and sequence of the events that took place on March 6 is confusing. This is particularly true with respect to when Jane and David went to the Wal-Mart. Asked by defense counsel whether she and David went to the Wal-Mart before they went to her house, Jane said "No. That was after school. . . . We went somewhere after I got out of school. We went to my house first. I saw my puppy. I gave her love, like I always do when I get home." Defense counsel, who expressed confusion, said "did you go to Wal-Mart before or after the incident in your house?" and Jane answered "Before." Pursuing the matter, counsel inquired whether there was "any chance" she was at Wal-Mart after she and David were at her house and the alleged choking took place. Jane said: "No. I went right home." (As will be seen two defense witnesses testified that they saw Jane and David at the Wal-Mart between 5:30 and 6:00 p.m. and they appeared affectionate toward one another.)
On redirect, Jane testified that during the weekend after the March 6 incident she and David exchanged a series of text messages, and she authenticated a printed copy of the messages, which were received in evidence as People's Exhibit 1.
Jane Doe's mother testified that she was at work the Friday the incident took place and spoke with Jane around 5:00 p.m. to advise her she was on her way home. When she arrived home she found Jane "moody" and unusually "withdrawn." The next day, a Saturday, Jane acted in a "clingy" manner and seemed very "emotional." Noticing "light bruises" on Jane's neck, her mother asked where they came from. Jane "hemmed and hawed" and said they resulted from she and a friend "messing around" in a shop class at school. A few days later the mother and Jane discussed what happened on March 6. Among other things, the mother learned about phone calls and text messages between Jane and David in the days following March 6. The mother obtained the phone records from AT&T and had the text messages printed out. She scanned these materials into her computer and e-mailed them to a deputy sheriff. The mother identified the materials as those contained in People's Exhibit 1.
Jane Doe's mother also testified that since the incident with David on March 6, Jane has been unable to sleep, does not want "to be anywhere by herself," "doesn't want to go to school," and has been placed on independent study for the rest of the year, and "looks over her shoulder all the time."
Sonoma County Sheriff's Deputy Fred Schmidt, the investigative officer to whom Jane's mother provided copies of the phone records and text messages between Jane and David, testified that in the text messages David was "frantically trying to get her to not break up with him." Jane also complained about him "putting his hands on her" or on her puppy. David did not deny or try to argue that he did not commit those acts, and he also "made statements of wanting to hurt himself if she broke up with him."
The phone records and printout of the text messages Jane Doe's mother provided Deputy Schmidt and offered as People's Exhibit 1, were not made a part of the appellate record.
Overruling defense counsel's objection on the grounds of relevance, lack of foundation, and hearsay, the court received the printout of the text messages in evidence, and later indicated that he relied on this evidence in determining jurisdiction under section 602.
Deputy Schmidt also testified that in interviewing David after he informed him of his Miranda rights, David denied participating in the incident complained of by the victim. He also gave the Deputy the false alibi that he was at work at the time. Deputy Schmidt was later told by David's employer that David did not report for work that day, as he first claimed.
Alexis Daniel Pinero, whose girlfriend lives in the same neighborhood in which David's family resides, and knows David and his father, testified for the defense that on Friday, March 6, he was in the Wal-Mart in Windsor between the hours of 5:30 and 6:00 p.m. having the oil in his car changed. He provided a receipt for that transaction which showed that he left at 6:30 p.m. During the time he was there, Pinero saw David and his "girlfriend"—i.e., Jane Doe—walking together with "his arm around her," and her arm "around his waist," "like a couple." When asked whether he observed the interaction between them and to describe it if possible, Pinero stated that there did not appear to be any "tension" between them, the girlfriend "was not crying" and she did not "seem upset."
David's father testified that he worked at Wal-Mart and also saw his son at the store at around 5:30 p.m. on March 6, and again later that evening at the tractor supply store in Windsor where he picked David up to drive him home. On both occasions David was accompanied by Jane, who David's father knew. The first time was at about 5:30 p.m. in the Wal-Mart. At the Wal-Mart, Jane "was standing behind [David] hugging up on him, trying to kiss up on him." The second time he saw David that evening was around 7:20 or 7:30 p.m. when he arrived at the tractor supply store to pick up David, who had been "dropped off" there by the girlfriend, who was still there when the father arrived. The father testified that before he and David left, David wanted to show him a crucifix Jane made for David in her welding class at school. Jane told the father she was giving this to his son as a present. At that point the father testified, Jane said to David "Goodnight. I love you. And can you call me when you get home? Be safe driving home." After the testimony of David's father, the parties rested.
In his closing argument to the court, the district attorney emphasized that the People's burden was to establish two elements beyond a reasonable doubt and this had been established. First, the testimony of the victim was undisputed insofar as it showed that David "willfully and unlawfully inflicted a physical injury on someone with whom he was in a dating relationship," and that testimony was corroborated by her mother, "who indicated that she saw some bruising on her daughter." Conceding that the victim did not immediately report the bruising to the police, initially gave a different explanation for it, and Jane's testimony was otherwise confusing, her testimony was clear that injuries were inflicted by David. The prosecutor also argued that the second factor it had to prove, that the injury was "traumatic" was also established by the victim's testimony that it has had "a lasting emotional condition to this day." Stating that this case "hinges on the credibility of Jane Doe," the district attorney argued that Jane's lack of clarity as to some of the facts was understandable given that "this was a 16-year-old girl who was traumatized by the fact that her boyfriend assaulted her."
Defense counsel agreed that Jane's credibility was the central question, and argued she was not credible for several reasons: the incredibility of her statement that David "threw her puppy 15 feet across a room" her failure to timely contact the police, her jealousy over the fact that David had other girlfriends, and "her feeling that he was not being faithful and wanted to break this off in some way or another." Counsel also emphasized the discrepancy between her present claim of trauma and the loving behavior toward David at the Wal-Mart store described by Pinero and David's father, and the fact that when Jane brought David to the tractor supply store in Windsor she did not leave immediately but waited until around 7:30 p.m. to insure that David's father came to pick him up. According to counsel, Jane's "story" made no sense. She said that at the time of the incident she and David "were calm, they were sitting on the couch. He's got his head in her lap. They were watching TV or something or other. And all of a sudden he sits up and starts choking her. No words, no argument, no nothing . . . the lies to mom, the changes in the timing, the changes in her story, her demeanor in general point to something other than an actual assault here, and it seems like teenage drama to me and a jealous streak perhaps because David maybe wasn't being faithful."
The transcript of the jurisdictional hearing contains no testimony indicating that David had other girlfriends, was not faithful to Jane, or desired to break off the relationship. Deputy Schmidt stated that the text messages indicated David did not want to break off the relationship, but we do not know much else about the substance of those messages because they are not in the record.
The court's determination differed from both of those urged by the district attorney and by the public defender.
After taking the matter under submission the court returned to the courtroom at 3:10 p.m., and stated as follows: "In reviewing all of the evidence before the court, there were three parts of the evidence which were particularly persuasive. One, the core allegation of Jane Doe as to the conduct and touching that occurred; the text messages; and finally the minor's attempt at an alibi from his boss. [¶] However, the court was not persuaded beyond a reasonable doubt as to the charged offense of [section] 273.5. The court was convinced beyond a reasonable doubt that on or around March 6, 2015, in Sonoma County that David R. did willfully and unlawfully touch Jane Doe in a harmful or offensive manner, and Jane Doe was a person with whom the minor had a dating relationship. So the lesser included offense of [section] 243[, subdivision] (e)(1) as a misdemeanor is found to be true beyond a reasonable doubt and is sustained. The charged offense is not sustained."
As earlier noted, after the case was transferred to the Lake County Juvenile Court for disposition, because David and his family reside in that county, the court imposed standard conditions of probation including that David participate in individual, group, or family counseling as directed by the probation officer, specifically including participation in a "batterers treatment program."
At the dispositional hearing, the court indicated an intention to order David or his parents to pay restitution to Jane Doe in the amount of $258.60. When David's mother stated that "we would like a hearing" on that matter, the court agreed to not then order restitution but set the matter for a separate hearing. The court set July 15, 2015, at 3:00 p.m. as the date for the restitution hearing, but the record before us does not indicate whether such a hearing was held or restitution in the amount tentatively indicated, or any other amount, was ever ordered. --------
DISCUSSION
It is settled that this court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "In reviewing sufficiency of the evidence, we view the evidence in the light most favorable to the respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Lewis (1990) 50 Cal.3d 262, 277.)
With respect to the credibility of Jane, we must also keep in mind that a trial judge sitting without a jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. A judgment supported by the testimony of one or more witnesses who have not been discredited or impeached, and whose testimony is not inherently improbable, will be affirmed; and that rule applies even though the witness testified falsely in part. (6 Witkin & Epstein, Cal. Crim. Law (4th ed.) Criminal Appeal, § 172(1) at pp. 455-456, and cases there cited.)
In light of the foregoing principles, we are compelled to conclude that the trial court could credit the testimony of Jane Doe and the other factors it expressly relied upon, and that the judgment below is supported by substantial evidence.
The trial court did not err in receiving the phone records and text messages contained in People's Exhibit 1 in evidence, nor was any other evidence improperly received or any admissible evidence excluded by the court.
David R. was at all times represented by competent counsel who zealously guarded his rights and interests.
The sentence imposed is authorized by law.
Our independent review having found no arguable issues that require further briefing, the jurisdictional and dispositional determinations are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.