In re Richard B.

Filed 1/22/10 In re Richard B. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Laura H. Parksy, Judge. Affirmed.

The juvenile court sustained a Welfare and Institutions Code section 602 petition alleging Richard B. committed misdemeanor battery against his mother. (Pen. Code,  242.) Richard contends there was insufficient evidence to support the court's findings because his mother was the sole prosecution witness and his mother's testimony was not reliable or credible. We reject this contention and affirm.

FACTUAL SUMMARY

Seventeen-year-old Richard and his mother (Mother) engaged in a heated argument. The argument began in their apartment living room after Richard discovered Mother had taken away his cell phone to punish him for prior incidents. In retaliation, Richard reached into Mother's purse to take her cell phone and debit card. Mother smacked Richard's hand, which enraged Richard. Richard approached Mother and told her "never to touch" him again. Richard was so close to Mother that she could feel him spitting on her. Richard threatened Mother and told her that if she touched him again, "things would happen." He told Mother that her boyfriend was not there, so there was nobody to protect her.

Mother began walking towards her bedroom to call the police. In the hallway, Richard used his body to physically block Mother from entering her bedroom. Mother shoved Richard aside with her arm. Richard then followed Mother into her bedroom and "threw a pillow at [her] which hit [her] in the left shoulder." Richard threatened to "throw something else . . . , and [warned] it would not be a pillow." Mother then called 911.

A deputy sheriff arrived on the scene and found Mother crying and distraught. When asked what happened, Mother said Richard had thrown a shirt at her. Richard's younger siblings witnessed the incident, and told the deputy that Richard threw a pillow at Mother.

At trial, about one month after the incident, Mother testified that Richard threw a pillow at her. In his testimony, Richard denied throwing a pillow. Richard testified that he threw a shirt, aiming it "at the wall, about five feet above" his mother, and that the shirt did not make contact with her.

DISCUSSION

Richard contends there was insufficient evidence to find he committed a battery. Specifically, Richard claims that Mother's testimony was unreliable and not credible because she initially told the officer that he threw a shirt at her (rather than a pillow), and because she had a motive to lie because she acknowledged she wanted Richard out of the house. Richard maintains that without Mother's testimony, the court did not have substantial evidence to establish Richard's culpability beyond a reasonable doubt.

The critical inquiry in determining whether there is sufficient evidence to support a court's findings is whether after reviewing the entire record in the light most favorable to the prosecution, any rational trier of fact could have been so persuaded. (People v. Hovarter (2008) 44 Cal.4th 983, 996-997.) It is the exclusive province of the trier of fact to determine the credibility of a witness and to resolve evidentiary inconsistencies, and we must defer to the factfinder's credibility resolutions. (People v. Young (2005) 34 Cal.4th 1149, 1181.)

Battery is "any willful and unlawful use of force or violence upon the person of another." (Pen. Code,  242.) To support a finding that battery was committed, the prosecution must establish beyond a reasonable doubt that there was at least some touching to constitute a use of force. (See People v. Longoria (1995) 34 Cal.App.4th 12, 16.) The testimony of a single witness is sufficient to support a trier of fact's finding that the defendant committed the prohibited touching, unless the witness's testimony was inherently improbable. (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

At trial, Mother testified that Richard threw a pillow at her and it hit her shoulder. This testimony supports the battery finding. (See People v. Longoria, supra, 34 Cal.App.4th at p. 16.)

Richard contends Mother's testimony was unreliable and inherently improbable because she initially told the officer that the item thrown at her was a shirt. However, at trial, Mother clarified that Richard threw a pillow at her, and that the pillow hit her left shoulder. When asked if she remembered telling an officer at the scene that her son threw a shirt, Mother confirmed under oath that it was a pillow. Mother's two other children told the deputy that Richard threw a pillow at Mother, which is consistent with Mother's testimony at trial. Mother's initial misidentification of the object was understandable given that she was questioned immediately after she was involved in a highly emotional argument, during which Richard (who is bigger than Mother) was "enraged" and was threatening substantial violence. The deputy testified at trial that Mother was highly distraught and upset when he questioned her.

Richard alternatively argues that Mother acknowledged she wanted Richard to be placed outside the house and thus Mother had a motive to lie. However, the court was entitled to reach its own conclusions as to Mother's credibility. A motivation to lie is only one inference from the fact that Mother did not want Richard to continue living in the home. An equally likely basis for Mother's testimony is that Mother was concerned about Richard's temper and violence and did not feel safe living with him.

We also reject Richard's argument that the court should not have relied on Mother's testimony because during her testimony she initially denied pushing Richard when she entered her bedroom. The prosecution recalled Mother to the stand so that Mother could clarify that she did "shove" Richard because he was blocking her entrance into her bedroom and that she had forgotten about doing so until after hearing Richard testify. Mother's initial testimony about this portion of the incident does not show that her remaining testimony was not truthful.

The court heard all the evidence and argument, and found Mother to be credible and that Richard was not telling the truth when he denied throwing a pillow. There was ample evidence to support these findings. Mere inconsistencies and possible bias are not grounds to dismiss the court's determination of a witness's credibility. (People v. Hovarter, supra, 44 Cal.4th at p. 996.) We may not reweigh the evidence or reexamine the credibility of a witness. (See People v. Young, supra, 34 Cal.4th at p. 1181.)

DISPOSITION

Affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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