Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD220613, Theodore M. Weathers, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Benjamin Chakrawan Pickens appeals from his convictions for assault with the intent to commit rape and/or digital penetration and assault by means likely to produce great bodily injury. The charges against Pickens stemmed from an incident that took place at a house party near the San Diego State University campus.
On appeal, Pickens challenges the sufficiency of the evidence, arguing that the prosecution witnesses were drinking so heavily, and that their testimony about what occurred is so inconsistent, that no reasonable jury could have found him guilty of the offenses. We conclude that there is substantial evidence to support Pickens's convictions, and affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution's case
On May 9, 2009, Daniel I. (Daniel), Jason L. (Jason) and Zachary S. (Zachary) were attending San Diego State University and living in a house near the university with five other roommates. That night, Daniel threw a birthday party for his girlfriend Nicole R. (Nicole) at the house. Guests started arriving at around 9:30 p.m. At one point, there may have been as many as 50 people at the house. People at the party were drinking alcohol.
Douglas Thompson, who lived across the street from the house, was a friend of those who were throwing the party. Thompson invited Pickens to attend the party with him. Pickens arrived at Thompson's house with two friends at approximately 10:00 p.m. Pickens and his two friends went over to the party first, and Thompson joined them a short time later.
Thompson stayed at the party for about an hour and then went back to his house with another friend. Because two of Thompson's friends were sleeping on his living room couch, Thompson and his friend went to the backyard to hang out.
By approximately 1:30 a.m., the party started to die down. There were between 10 and 15 people still in the house. At about 2:00 a.m., Nicole joined Daniel on the porch while he smoked a cigarette. Nicole left the porch to go to Daniel's room to retrieve some Chapstick from her purse.
While Nicole was in Daniel's room, someone approached her from behind and put his arm around her neck. When Nicole tried to turn her head to see who was doing this, the person tightened his grip to the point that she was unable to turn her head or breathe. Nicole tried to scream and pull loose from the arm around her. She remembered "trying to fall to the ground" right before she became unconscious.
Nicole next remembered waking up on top of Daniel's bed. She tried to sit up, but realized that she was being held down. She managed to let out a scream before the man who was holding her pushed down on her throat and hit her in the face. At this point, she again fell into a state of unconsciousness.
Daniel finished his cigarette and went inside to use the restroom. The light bulb in the hallway was broken, but he was still able to see. He stopped at his bedroom, opened the door, and looked inside. Daniel saw Pickens from the side, bending over a girl on Daniel's bed. Pickens's clothes were on, but his pants were unbuttoned and the flaps of his jeans were open. Daniel could see only the back of the girl's head. The way that the girl was moving suggested to him that she was struggling, and her breathing sounded stifled. At that point, Pickens turned his head and looked at Daniel with surprise. Daniel asked, "What's going on?" Pickens responded, "It's all right. Everything is cool, " and motioned for Daniel to leave the room. Daniel assumed that the two were having sex, so he left, closing the door behind him, and continued to the restroom.
When Nicole woke up, she was on Daniel's bed with her dress pulled up over her stomach and her underwear below her knees. She started to cry hysterically.
Jason had left his bedroom downstairs and gone up to the living room to turn off the music that was playing, because it was keeping him awake. As Jason walked along the hallway, he noticed Pickens leaving Daniel's bedroom and walking quickly down the hallway. Jason stopped at another roommate's bedroom, and then went to Daniel's room, where he found Nicole crying.
Daniel was in the bathroom when he heard a woman scream. He thought that the scream had come from his bedroom. He went to the room, where he found Nicole crying hysterically. Her dress was pulled up around her waist and her underwear was pulled down around her hips.
Jason had arrived in the room by this time, as well.
Meanwhile, Thompson and his friend Raj had been hanging out in the backyard of his house across the street from Daniel's house. At approximately 2:30 a.m., Thompson brought a fold-out bed into the living room for Raj. Thompson then went to his bedroom. Thompson was in bed, but not yet asleep, when he heard a woman scream from across the street. A few seconds later, Thompson heard someone run from across the street, open the front door to his house, and enter his living room.
Thompson walked out into the living room and saw Pickens lying on the ground between the fold-out bed and the fireplace. Thompson asked Pickens, "Hey, you know, what's going on? I heard somebody screaming." Pickens replied, "I don't know, man. I've been passed out." Thompson replied, "Bullshit."
Daniel put "two and two together" and walked across the street to find Pickens. Daniel entered Thompson's house and saw Pickens on the living room floor. Daniel said something about Pickens having raped Nicole, and started punching Pickens repeatedly in the face. Pickens got into a fetal position, put his hands over his face, and said, "No, no. I would never—I would never." Thompson eventually got everyone out of his house. Pickens left Thompson's house on foot.
After Daniel had left his house to go to Thompson's house, Zachary walked down the hallway and heard someone crying uncontrollably in Daniel's room. He went into the room and found Nicole sitting on the bed. She looked like she had been hit.
When Daniel returned, he walked Nicole to a hospital that was down the street. Nicole had a black eye from being hit, her throat was sore for days, and she had redness and broken blood vessels in the whites of her eyes as a result of having been choked. In addition, Nicole suffered scratches above her eyebrow, on her lower left calf, and on her left buttock. She also had bruising on the back of her neck and on her left buttock. Nicole did not think that the assailant had penetrated her.
2. The defense
San Diego Police officers collected the clothes that Pickens had worn to the party. A police criminalist took samples of both Pickens's and Nicole's DNA. Nicole's DNA was not found on the clothes that Pickens wore to the party, nor was her DNA found on Pickens, himself. Police also did not find Pickens's DNA on Nicole. Based on these findings, the criminalist could not conclusively say whether Nicole and Pickens had been in physical contact with each other.
B. Procedural background
Pickens was charged with assault with the intent to commit rape and/or digital penetration (Pen. Code, § 220, subd. (a); count 1) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 2) on May 13, 2009. It was further alleged as to both counts that Pickens personally inflicted great bodily injury. (§§ 12022.8 (count 1), 12022.7, subd. (a) (count 2).)
Further statutory references are to the Penal Code unless otherwise indicated.
A jury found Pickens guilty on both charges and found true both enhancement allegations.
The trial court sentenced Pickens to seven years in prison on December 14, 2009. Pickens filed a timely notice of appeal.
III.
DISCUSSION
Pickens contends that there is insufficient evidence to support his convictions, in large part due to the fact that the witnesses had been drinking, and as a result, there were a number of inconsistencies in the witnesses' testimonies. Pickens points out that "[s]o many of the witnesses in this case were drinking heavily during events that the judge sua sponte adapted the basic identification instruction (CALCRIM 315) to include, 'Was the witness under the influence of alcohol when he or she made the observation?' " Pickens goes on to argue about the effects of alcohol consumption of perception and memory, and ultimately concludes that "[a] reasonable trier of fact could readily have doubted that appellant committed the offenses, when the trial testimony was admittedly so very chaotic and muddled."
A. Standards
When a defendant challenges the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he 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.) "Unless it is clearly shown that 'on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict[s, ]' we will not reverse. [Citation.]" (People v. Stewart (2000) 77 Cal.App.4th 785, 790.)
"In conducting... a review [for substantial evidence], we ' "presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.]' [Citation.]" (People v. Lee (2011) 51 Cal.4th 620, 632 (Lee).) "Substantial evidence includes circumstantial evidence and any reasonable inferences flowing therefrom." (People v. Cole (1994) 23 Cal.App.4th 1672, 1678.).
" 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it 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 upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" (Lee, supra, 51 Cal.4th at p. 632.) "[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Further, a jury is entitled to reject some portions of a witness's testimony while accepting others. (People v. Nunez (1983) 144 Cal.App.3d 697.) Weaknesses and inconsistencies in eyewitness testimony are matters solely for the jury to evaluate. (People v. Fagalilo (1981) 123 Cal.App.3d 524, 530-531.) In addition, "the effect of a witness' intoxication on his testimony, like any other factual matter, is a question for the consideration of the jury rather than the appellate court. [Citation.]" (People v. Calpito (1970) 9 Cal.App.3d 212, 221, overruled on another ground in People v. Bolton (1979) 23 Cal.3d 208, 213-214.)
B. Analysis
Witness testimony placed Pickens at the party, and in the room where Nicole was attacked, at the time the attack took place. Daniel very clearly identified Pickens as the man he saw in Daniel's room with a woman that night, just before Nicole screamed out. Although Daniel had been drinking, he was not unsure of his identification of the man in the scenario, despite the fact that he did not recognize the woman as being Nicole. The jury was free to believe Daniel's identification. Similarly, Jason, who had been at the party for only about an hour that night and had a total of three or four drinks, got out of bed and went to the living area of the house to turn down some music when he saw Pickens come out of Daniel's bedroom and walk past him. After Jason saw Pickens leaving Daniel's bedroom, Jason found Nicole crying in that room. In addition, Thompson, the friend who told Pickens about the party that night, heard a scream and heard someone running across to street to his house. He found Pickens in his living room immediately thereafter. Thompson did not believe Pickens's claim that he had been asleep in Thompson's living room, and even went so far as to openly question Pickens's story when Pickens made the assertion. This evidence is sufficient to support a finding that Pickens assaulted Nicole.
The jurors in this case clearly accepted the accuracy of the witnesses' ultimate identification of Pickens as the perpetrator. The sole question on appeal, therefore, is whether these identifications were inherently improbable or factually impossible under the circumstances shown. (People v. Allen (1985) 165 Cal.App.3d 616, 623.) There is no inherent improbability in the identification testimony of any of the witnesses, and nothing about the evidence shows that it would have been physically impossible for Pickens to have perpetrated the attack on Nicole. The jury, as the sole judges of the witnesses' credibility, could reasonably have rejected Pickens's claim that he was not the person who assaulted Nicole.
In an apparent attempt to establish the physical impossibility of the witnesses' testimony, Pickens suggests that that testimony required that he be in two places at the same time, required that the victim be both screaming and not screaming, and required that she be on the floor and, at the same time, on the bed. However, these assertions are based on minor inconsistencies in the witnesses' statements. The jury was free to decide whom to believe, and was also free to believe some portions of any particular witness's story, but not other portions. The fact that one witness may not have heard Nicole scream while others did, or that the witnesses did not know the exact time that different events occurred, does not mean that the witnesses' testimonies were entirely unreliable. The discrepancies in the testimonies are not enough to demonstrate either inherent improbability or physical impossibility. Thus the evidence against Pickens, although not overwhelming, was legally sufficient to support the convictions.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: BENKE, Acting P.J., HALLER, J.