Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Douglas N. Gericke, Judge. Super.Ct.No. J206436. Affirmed.
Sachi Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Raymond M. DiGuiseppe, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King J.
The trial court found true an allegation that minor committed an assault by means likely to produce great bodily injury. (Pen. Code, § 245(a)(1).) On appeal, minor contends there was insufficient evidence to sustain the allegation. He likewise claims that, assuming there was sufficient evidence to sustain the allegation of assault solely on an aiding and abetting theory, there was insufficient evidence to support a true finding on the enhancement that he personally inflicted great bodily injury. We conclude the evidence was sufficient to sustain the allegation in its entirety and, therefore, affirm the judgment below.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
Police arrested minor after he was identified by passersby of having participated in a group which chased down and beat two Latino youths. The People filed a juvenile wardship petition alleging minor had committed robbery (count 1 -- § 211) and had assaulted both boys with force likely to cause great bodily injury (counts 2 & 3 -- § 245, subd. (a)(1)). Minor denied the allegations and the matter proceeded to a contested hearing. After the People rested, minor moved for dismissal of all counts. The court dismissed counts 1 and 3. Ultimately, the trial court sustained the allegation in count 2 and granted minor probation with terms and conditions including a 60-day sentence in juvenile hall, minus custody credits.
Additional facts will be discussed below as pertinent to the issues minor raises in this appeal.
II. DISCUSSION
Minor contends the evidence adduced at trial was insufficient to permit the trial court to sustain the allegation in count 2 of the petition. In particular, he claims the testimony of the two percipient witnesses, both of whom identified minor as the perpetrator, were inherently incredible such that no reasonable trier of fact could have believed them.
“‘The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.]’ [Citation.] In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.]’ [Citations.]” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)
“While it has been held that a verdict may be set aside where the entire evidence is so improbable and incredible as to amount to no evidence at all, the rule is that such improbability must amount to incredibility and must very clearly appear in order to justify a reversal.” (People v. Dorland (1934) 2 Cal.2d 235, 243.)
Minor accurately submits that the entire basis for sustaining the allegation against him hinged on witness identification. He notes that the inherent unreliability of all witness identifications, combined with the improbability of the identifications in this case, prohibit the conclusion that the trial court’s finding was a rational one. He attempts to discredit the testimony and identification of minor by witnesses Robert Zablockis and his employee, Marvin Cayabyab, by noting the discrepancies between their accounts. He further alludes to the testimony that witness Margaret Valle was unable to affirmatively state that minor was the individual who punched the victim. Minor observes that neither the victim nor the victim’s friend were able to identify minor as the perpetrator of the assault. Likewise, he stresses the testimony of his friends and associates who were with him on the day of the event, all of which suggested minor had nothing to do with the incident and was simply a “looky loo.”
Minor compares the facts of the instant case to those in People v. Headlee (1941) 18 Cal.2d 266, drawing the conclusion therefrom that the identification here was improbable and incredible; thus, requiring this court to reverse the trial court’s determination. In Headlee, the California Supreme Court determined that the victim of and witnesses to a rape did not sufficiently protest the defendant’s actions such that it was improbable or incredible to believe a rape had, in fact, occurred. (Id. at p. 273.) However, Headlee is factually distinguishable in that it depended on what was characterized as the inherent improbability and incredible nature of the witnesses’ claims of the nature of the occurrence, not the identification of the alleged perpetrator. (Ibid.)
Moreover, minor’s characterization of the evidence adduced at the contested hearing does not comport with our standard of review which, as noted above, requires us to view the evidence in a light most favorable to the judgment. Minor essentially parses through the record, underscoring any evidence that was favorable to him and pointing out inconsistencies only where the evidence was unfavorable. The record here is indisputably sufficient to demonstrate the reasonableness of the trial court’s determination when viewed in the proper light.
There is nothing inherently improbable or incredible about Cayabyab’s and Zablockis’s identifications of minor as the perpetrator. Both testified they were private security guards driving together northbound on Waterman Avenue on June 9, 2006, on their way to an auto supply store. The car was moving slowly in moderately heavy traffic as they approached Second Street. They both witnessed a group of between 10 to 15 Black teenagers chasing two Latino youths south on the eastern side of Waterman. Zablockis, who was driving, slowed the vehicle in an attempt to pull the car over in order to assist the two Latino boys when both he and Cayabyab saw minor step forward from the crowd and punch the victim in the face. At the time of these observations, the witnesses were no more than 20 to 25 feet from the scene. Zablockis, unable to pull over immediately, passed Second Street and made a U-turn, all the while keeping an eye on minor in his rearview mirror. They were then able to flag down a sheriff’s deputy and identify minor as the perpetrator of the assault. Both men testified they were 100 percent sure that minor was the individual who punched the victim.
Likewise, Margaret Valle testified she was driving northbound on Waterman, at most a couple of car lengths behind Mr. Zablockis’s car, when she witnessed a number of Black youths chasing two Latino boys. When they caught up with them, they began hitting one of them, knocking him to the ground. Although she could not definitively testify that minor hit the victim, she was sure he was involved in the attack.
Minor emphasizes the inconsistencies between the three witnesses’ accounts as to which lane the security guards were driving in, how fast their car was moving, and the amount of traffic congestion which may have impeded their view. Minor further points to discrepancies relative to whether they both actually intended to help the victim, which auto store they were on their way to, and which hand minor hit the victim with. None of these slight discrepancies establish that the primary subject of their testimonies was improbable. Indeed, the vagaries of human memory and perception would make it exceedingly unlikely that three witnesses to the same event could testify identically as to each and every detail. As the court stated, it had “evaluated the credibility of the respective witnesses and their observations. . . . [¶] . . . I’ve listened carefully to the various witnesses and find that the Count [2] is true beyond a reasonable doubt.” Obviously, by virtue of its determination, it found the testimony of all three witnesses credible; there is nothing in the record to justify overruling that determination.
Likewise, the inability of the victim to identify minor is readily explainable due to the injuries he sustained. The victim was knocked unconscious by at least one punch to the face, and when awakened he was disoriented and confused. The victim was bleeding from the face and was taken away in an ambulance to the hospital. The victim had no memory of the event at all and could only remember walking home from school with his friend and the next moment awakening in the hospital. Contrary to minor’s implication, there is nothing suspicious here about the victim’s inability to identify minor as his attacker. It is imminently reasonable that one who suffered such trauma would be unable to recall the event.
Similarly, victim’s friend, Rodrigo L.’s, testimony that minor was not the individual who hit the victim did not automatically require the trial court to discount the identifications of Zablockis and Cayabyab. Rodrigo testified that seven or eight Black youths, including minor, approached he and the victim demanding their folders, a backpack, and a gold chain. Scared, Rodrigo complied with their commands; however, the victim refused to do so. The group then began beating up the victim. Rodrigo testified to his apprehension at the time. He also indicated that at least three individuals were attacking the victim. Thus, the pell-mell nature of the circumstances surrounding the event and Rodrigo’s central involvement in it could rationally be construed as prohibiting him from discerning exactly who was administering the beating.
Finally, of the three witnesses minor put forth, only one testified that he was sure minor did not hit the victim, and he was minor’s long-time friend. Two of minor’s witnesses testified that minor ran out towards a mob of youths chasing two Latino boys, but neither could say whether or not minor was the individual who assaulted the victim.
Thus, the trial court had before it the testimony of at least four witnesses who stated minor was part of a group chasing the victim. Two of the witnesses stated without doubt that minor had punched the victim. Only one witness testified that minor had not assaulted the victim, and this was minor’s close friend. Considering the record as a whole in the light most favorable to the judgment, we cannot but find that there was sufficient evidence from which the trial court could have reasonably determined that minor had personally assaulted the victim.
III. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., Miller J.