Opinion
H036223
11-22-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MAURICE PONDER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC940124)
On March 8, 2009, Bianca told San Jose Police Officer Lauren Vidal that she had been involved in an incident with her boyfriend. Bianca said that her boyfriend had pinned her down on a garage floor and as she tried to get up he would "slam her down."
We refer to the victim in this case by her first name to protect her anonymity.
As a result of this report, and following a preliminary hearing, on April 15, 2010, the Santa Clara County District Attorney charged appellant Anthony Ponder with one count of inflicting corporal injury on the mother of his child (Pen. Code, § 273.5, subd. (a), count one) and one count of felony false imprisonment. (Pen. Code, § 236, 237.)
Subsequently, on October 20, 2010, appellant waived his right to a jury trial and agreed to a court trial before then Commissioner Deborah A. Ryan in return for the prosecution's promise to reduce both counts to misdemeanors and dismiss one of the counts before trial.
We note that Commissioner Ryan is now Judge Ryan.
Before testimony began in the court trial, the court noted that the two counts had been reduced to misdemeanors. The prosecutor moved to dismiss count one, which the court did in the interests of justice. After two days of testimony, the court found appellant guilty of misdemeanor false imprisonment. The court suspended imposition of sentence and placed appellant on three years formal probation on the condition that he complete 20 hours of volunteer work. In addition, the court ordered that appellant serve 18 days in county jail, which the court deemed satisfied. The court imposed various fees and fines and imposed other conditions of probation that are not relevant here.
Appellant filed a timely notice of appeal.
On appeal, appellant claims that his conviction violated due process and should be reversed because there was insufficient evidence that his restraint of Bianca was unlawful. For reasons that follow we affirm the judgment.
Evidence Adduced at Trial
At the time of trial Bianca had been romantically involved with appellant for about four to five years. In March 2009, Bianca and her daughter, who was not appellant's child, lived with Bianca's father. Appellant lived with his mother. Subsequently, after the incident at issue here, Bianca and appellant moved in together; they were living together at the time of trial.
Bianca testified that on the night before March 8, 2009, she was "hanging out" with her girlfriend Justine. They had each bought three or four 20-ounce cans of Mickey's beer; Bianca drank her cans. At around 4.00 or 5:00 a.m. Bianca felt the effects of the beer and so Justine drove her home. However, Bianca then drove to appellant's house because when she called his phone she was unable to speak to him; his phone was turned off. When she got to the house she saw a strange car; she thought that someone was at the house sleeping with appellant. Bianca, who had a key to the house, let herself in; she saw a purse on the table and some boots. Bianca remembered picking up the purse, but could not remember where she put it. The door to appellant's room was locked. Bianca banged on the door and told appellant to come out. Bianca said that she was screaming and she kept hitting the door; she kicked the door and put a hole in it. She was very upset.
Eventually, appellant opened the door. Bianca could see another girl in the room. At trial, Bianca could not remember what happened next. She thought that she was "yelling and screaming" and "kind of hitting [appellant] on the chest." Somehow she ended up in the garage. She remembered that she was on the ground "yelling and screaming" with appellant "over [her]"; she was mad and wanted to leave. She started hitting her head on the floor so appellant would get off her. Appellant told her to stop hitting her head. She did remember telling appellant that she wanted to go home, but he said he wanted her to stay and talk. He apologized.
Bianca could not remember telling anyone at the hospital that she was pushed to the floor.
Bianca could not remember telling Officer Vidal that appellant pushed her down and that was how she hit her head on the floor. When asked if she was being honest when she talked to the officer, Bianca said "not if I told her that he pushed me and hit my head because I did hit my head on the ground. Maybe I was embarrassed to say it. But I did - - I am the one who hit my head on the ground because I was upset." When Bianca was asked if she told Officer Vidal that appellant slammed her head down as she was trying to stand up, Bianca could not remember what she had told her.
Bianca testified that when she was on the ground she tried to bite and scratch appellant. However, she could not remember testifying at the preliminary hearing that she tried to bite and scratch appellant because he would not let her go. She testified that was the case, but explained that she was "mad and going crazy."
Bianca testified that after the girl left, appellant let her go and she was able to leave the garage. Bianca said she went to the living room and then to her car. Appellant came outside. She started backing out of the driveway, but pulled forward toward appellant and tried to hit him because she was so mad, however, she hit a wooden planter. At trial, Bianca denied that appellant had ever been physically violent toward her.
Bianca testified that she drove home and called the police. She could not remember exactly what she told the police, but she knew that she was still extremely upset and she did not tell them the whole story. A few hours later she went to Kaiser Permanente. Bianca could not remember telling a nurse that she felt afraid of her partner. Again, Bianca could not remember what she told the nurse or the doctor, but did not think that she told the doctor that she was assaulted by her boyfriend. However, she did remember Officer Vidal asking her if she wanted a protective order, but she only said "okay" because she was mad.
Officer Lauren Vidal testified that she answered a call to investigate a domestic violence situation. Officer Vidal met with and interviewed Bianca at her home. Bianca was crying hysterically and was "semi-uncooperative." Officer Vidal saw a red mark on the back of Bianca's head and bruising on her arm. Bianca told her that appellant had pinned her down on the garage floor and every time she tried to get up he would slam her down. Bianca said that appellant slammed her head several times on the ground and that her vision "blacked out." Officer Vidal said that she smelled alcohol on Bianca, but she did not perform a blood or urine test on her.
Gene Allen, a registered nurse at San Jose Kaiser Emergency Department, testified that whenever a potential victim of domestic violence comes to the emergency room there is a form with questions that he is to ask. On March 8, 2009, he filled out such a form for a victim named Bianca. Nurse Allen had no independent recollection of the patient or the specifics of the case. He wrote on the intake form that Bianca was the victim and that she stated she "was assaulted by [her] boyfriend several hours ago." Nurse Allen did note that Bianca complained of left arm pain and a headache. She had a bruise on her left upper arm and a bruise on the back of her head. He could not recall Bianca saying anything about being held down and unable to move, but thought he would have remembered a detail such as that.
Dr. Johnson, a physician at Kaiser San Jose in the minor injury clinic, saw Bianca on March 8, 2009. In his patient notes under "history" he wrote " 'The patient . . . 21 year old female, who was assaulted by her boyfriend at 5:30 this morning. He struck her with his hands on her left arm and she fell, striking the back of her head. No loss of consciousness. She complains of pain down the entire left arm and a severe occipital headache' . . . 'with nausea and dizziness. No other injury, no neck or back pain.' " Dr. Johnson had no independent recollection of what he was told, but thought that if Bianca had told him that she was held down on the ground or had had her head slammed against the ground, that would have appeared in his report. Dr. Johnson smelled alcohol on Bianca's breath, but did not make a toxicology or alcohol assessment.
Appellant did not testify or call any witnesses, but counsel argued that there was insufficient evidence to prove false imprisonment. Counsel asserted that appellant lawfully restrained Bianca, "for the protection of others" or "defense of others" or "self-defense" and "for her own welfare."
After reviewing her notes, the exhibits and jury instructions on the charge of false imprisonment, Commissioner Ryan found appellant guilty as charged.
Discussion
Appellant contends that his conviction must be reversed because there was insufficient evidence that his restraint of Bianca was unlawful rather than an act of self-defense or defense of another. Appellant argues that the evidence was sufficient to give rise to his claim of self-defense and defense of another and the evidence presented by the prosecution was insufficient to disprove his claims.
Respondent concedes that it is the prosecution's burden to prove beyond a reasonable doubt that appellant did not act in self-defense or in defense of another during the false imprisonment. However, respondent argues that in this case the evidence shows that appellant did not act in self-defense or defense of others or to protect Bianca from herself when he restrained her.
On a charge of false imprisonment, it is the prosecution's burden to prove beyond a reasonable doubt that the defendant did not act in self-defense or defense of another. (People v. Adrian (1982) 135 Cal.App.3d 335, 340; CALCRIM No. 3470.)
Initially, we observe that our role on appeal is a limited one. " 'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' [Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Appellant asserts that the evidence showed that appellant had every reason to believe that he and the "other woman" were in imminent danger from Bianca and that force was necessary to defend against Bianca's overtly violent rage as evidenced by the hole in his bedroom door and Bianca's testimony that she was dangerously violent, kicking, screaming, punching, and attempting to bite him. Further, appellant argues that the fact that as soon as she was free, Bianca used her car as a potential weapon against him undermines her testimony that she wanted to leave.
We may well have agreed with appellant except for the fact that it is quite apparent to this court that Commissioner Ryan simply did not believe Bianca's trial testimony regarding her attacks on appellant.
There simply was no testimony other than from Bianca regarding when the door and the wooden planter were damaged.
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In view of Bianca's obvious personal interest in the outcome of this case, the court, as the trier of fact in this case, was entitled to make the credibility determination it made and to give that evidence the weight it deemed appropriate. (People v. Humphrey (1996) 13 Cal.4th 1073, 1088-1089.) The court could reasonably infer that Bianca told the truth to Officer Vidal then changed her trial testimony in order to protect appellant by trying to show that she was out of control and attacked appellant thereby giving him a viable defense to the charge of false imprisonment. (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].) We reiterate that it is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Since the court sat as the trier of fact, this court must grant great deference to its implied findings regarding the credibility of some of Bianca's trial testimony. (People v. Barnes (1986) 42 Cal.3d 284, 306.) If the trier of fact thinks a witness lied about some things, but told the truth about others, the trier of fact may simply accept the part that they think is true and ignore the rest. (CALCRIM No. 226.)
Given the testimony of Officer Vidal and portions of Bianca's trial testimony, we conclude that there was sufficient evidence that appellant's restraint of Bianca was unlawful.
Disposition
The judgment is affirmed.
ELIA, J. WE CONCUR: RUSHING, P. J. PREMO, J.