P. v. Moore

Filed 12/2/09 P. v. Moore CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant Bruce Larry Moore was convicted of child abuse and inflicting corporal injury on a child. (Pen. Code,  273a, subd. (a); 273d, subd. (a).) He was placed on probation with various conditions and was ordered to pay certain fines and fees. On appeal, he contends there was insufficient credible evidence to support his convictions. As we will explain, although reading his appellate briefs would lead this court to believe the claim may have some merit, a review of the record quickly reveals that it borders on being frivolous.

FACTS

As we must, we summarize the evidence in the light most favorable to the judgment. (People v. Davis (1995) 10 Cal.4th 463, 509.)

Defendant and the mother of their son split up after the child was born in April 2001.

In October 2007, defendant had sole custody of the boy, and the mother has court-ordered visitation. The boy referred to defendant as Dad or Daddy; he also referred to his mothers boyfriend, Nate Jones, as Dad or Daddy Nate.

On October 25, 2007, when the mother picked up her son from school, she noticed two marks that looked like scabs on his neck.^[1] She thought they were choke marks because they looked like the marks that she suffered on her neck when defendant had choked her. She asked her son what had happened. He replied, A boy at school did it. When she said that she was going to speak to the teacher and principal, her son responded, No mommy, no mommy, daddy.

The mother called defendant and asked whether he knew anything about the marks. He claimed that the mothers other son (who was four-years-old and lived with the mother) had caused the marks. She said that was inconsistent with what their son was telling her. Defendant responded he was at work and could not deal with it then.

Although the mother was supposed to bring her son back to defendant that evening, she did not do so. Instead, she called the non-emergency number for the police department. She was told to contact Child Protective Services but did not make that call. When she did not return her son to defendant, he called the police.

The police contacted the mother to ask why she had not returned her son, as required by the court order. She told about the marks on her sons neck that looked like choke marks. Officer Allen Lambertson spoke with the son, who said his father had hit him for not turning off the television. This was consistent with what the mother had told the officer her son had said. The son said his father had grabbed him by the neck with his left hand and choked him, resulting in the scab marks. The officer spoke to defendant, who denied causing the marks or choking his son. Defendant reported that his son had told him the mothers other son had made the marks.

The son was six years old when he testified at the trial. After demonstrating he knew the difference between the truth and a lie, he explained that he got the marks on his neck when defendant hit him. It had happened at defendants house when defendant told him to turn off the television and he failed to do so. Defendant choked him; it hurt and he had a hard time breathing. He was scared. The son admitted he originally told his mother that a boy at school had made the marks; but he testified that was a lie. He also verified that he called both defendant and Nate Jones Dad, but it was defendant who had made the marks.

Photographs of the marks as they appeared on October 25, 2007, were presented at trial.

DISCUSSION

According to defendant, there was no evidence that (1) his son was with him prior to sustaining his injuries, (2) when the boy said his dad had inflicted the injuries, he could have been referring to his mothers boyfriend, and (3) the witnesses were not credible because one was his young son and the other was his sons mother who, defendant claims, is a prostitute.

As to the first point, defendant neglects to point out the evidence that showed the boy was in defendants custody when the injury occurred. (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574 [a defendant cannot prevail on a sufficiency of the evidence argument by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself (italics omitted); instead, the defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jurys verdict (italics omitted)].)

The mother testified she first noticed the marks on her sons neck on October 25, 2007, when she picked him up from school and saw scabs. She further testified defendant had dropped her son off at school that morning because the boy had stayed at defendants house the night before. Indeed, in testifying, defendant acknowledged that he had his son on October 22, 23, 24, and the morning of October 25, 2007. Mother also testified she had seen two white marks (which had not been bleeding) on her sons neck on October 15, 2007. And defendant testified he had his son on October 14, 2007. Additionally, defendants son testified he was at defendants house when he incurred the injury.

Accordingly, regardless of whether the marks observed on the sons neck on October 15 and October 25 were a result of the same or a different incident, there was sufficient evidence for the trial court to find that defendant was with his son at the time the boy sustained the injuries.

Defendant next argues that when the boy said his dad had inflicted the injuries, his son could have been referring to his mothers boyfriend, not defendant. Again, defendant ignores the standard of review.

The testimony of a single witness is sufficient to support a judgment, even if it is inconsistent or contradicted by other evidence. (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.) Here, the evidence was not inconsistent. The son repeatedly said defendant, not his mothers boyfriend, was the dad who inflicted the injuries. To the extent the sons testimony was contradicted by other evidence, the judge believed the son. As we have stated, the sons testimony alone was sufficient to support the trial courts findings.

Finally, defendant contends the witnesses were not credible because one was his young son and the other was his sons mother who, defendant claims, is a prostitute. For a third time, defendants appellate counsel ignores the standard of review.

In deciding whether substantial evidence supports the trial courts findings, we do not evaluate the credibility of witnesses; that is within the provenance of the trier of fact. (People v. Breverman (1998) 19 Cal.4th 142, 162.) The testimony of the son and his mother was not inherently incredible or unreliable. (People v. Young (2005) 34 Cal.4th 1149, 1181 [unless [it] is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction].)

Contrary to defendants claim, his sons testimony was not inherently improbable simply because the boy said his dad choked him with his left hand, but defendant is right-handed whereas the mothers boyfriend is left-handed. Individuals commonly use their non-dominant hand for a variety of purposes. In another attack on the credibility of the Peoples witnesses, defendant notes that he contacted the authorities when his sons mother did not return their son to him at the required time. Based upon this fact, defendant states it is unbelievable that if [he] had abused his son that he would call the police himself to have [his son] returned, at the risk of alerting the police to the abuse, rather than to just work it out with [the boys mother]. However, the trial court could reasonably have concluded that defendant mistakenly believed the injury would not have been noticed and the boy would not have reported it.

For all the reasons stated above, the evidence was sufficient to support the convictions.

DISPOSITION

The judgment is affirmed.

SCOTLAND , P. J.

We concur:

BLEASE , J.

HULL, J.

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^[1] Ten days earlier, she had noticed two white marks, which had not been bleeding, on her sons neck but had not thought anything of it.