P. v.
Filed 5/6/13 P.
v. Griffin CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
NICKY GRIFFIN,
Defendant and Appellant.
B237300
(Los Angeles County
Super. Ct. No.
MA053636)
APPEAL
from a judgment of the Superior Court of
County.
Akemi Arakaki, Judge. Affirmed.
David
Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
Appellant Nicky Griffin, married to
the victim, Carolyn Jordan, was charged with
(Pen. Code, § 273.5, subd. (a)),
second degree robbery (§§ 664, 211) and with false imprisonment
(§ 236). A jury found appellant
guilty of the lesser included offense of misdemeanor battery on the first count
and not guilty of attempted robbery. The
jury deadlocked on the false imprisonment charge and the court declared a
mistrial. Imposition of sentence was
suspended and appellant was placed on probation, the condition being the time
(194 days) served in county jail.
fines and assessments that are not at issue.
The appeal is from the judgment.
The sole
issue on appeal is whether the conviction is supported by substantial
evidence.
FACTS
Two
witnesses testified. They were Jordan
and Deputy Joshua Epstein of the Los Angeles County Sheriff’s
Department. Jordan’s
testimony tended to exonerate appellant, although not entirely. Epstein related a statement that Jordan
had made to him less than an hour after
the altercation; this statement clearly branded appellant as the assailant.
Jordan
Jordan
and appellant lived together in an apartment in Lancaster. On August 4, 2011,
Jordan and appellant went to a pawn shop to pawn some of Jordan’s
jewelry. While negotiations went on
between the store owner and Jordan, appellant got up and went outside. Appellant went to the car, got the house key
and the garage door key and left the scene.
Jordan concluded the deal, left the store and found appellant gone. She drove home; appellant had left the car
with her. When Jordan
arrived at the house, she found it locked and appellant not there.
There
now followed several hours during which Jordan
walked around and sat and waited for appellant to turn up to open the
house. Jordan
was walking with the assistance of a cane that was to play a role in this
story.
title="">[3] She called 911 twice with a
request to find appellant and have him taken to the house to open it; these
requests were, of course, refused.
Around 5:00 p.m., after having been gone for a while, Jordan
returned and saw that the garage door was open.
Jordan
walked into the garage and saw appellant sitting down by the telephone. She walked past him into the house, only to
come back into the garage. She related
what happened next: “I opened the door,
and I didn’t know. Like, I went off or
something. All I remember is he was sitting there when I passed by him with the
soda in his hand, and when I opened the door, I closed my eyes, and he was
standing up, and I just struck at him, and I don’t know if I hit him or not,
but I know I seen the soda fly out of his hand.†Right before she struck appellant, she saw
that he was laughing and talking on the phone and was not even looking at her.
Appellant
came at her, saying “What’s going on with you?â€
Jordan tried to strike appellant again; she testified she didn’t know
whether she hit him. Appellant tried to
get the cane. Jordan
grabbed appellant and tried to throw him to the ground. They both fell down, with appellant landing
on top of Jordan. Appellant started to hit Jordan on
the left side of her head with an open hand,
Calm down.†As Jordan
was calming down, appellant asked her whether she had the money. When she said
yes, he told her to hand it to him. She
refused. But she shortly relented and
told him that if he would let her up, she would give him the money. When he let her up, Jordan
jumped up and scratched at his face, but only tore his shirt. She started running; he chased her, stepping
on her flip flops, and causing her to fall.
She hurt her right elbow in the fall.
She got up, ran off and called 911.
Deputy Epstein’s testimony
Epstein,
who had reported to the scene, found Jordan in
the ambulance, crying, appearing frightened and distraught. He only spoke to her for about a minute. Jordan
told him that appellant had punched her in the face several times and thrown
her to the ground; that’s how she injured her right arm.
Epstein
spoke with Jordan about 30 to 35 minutes later in the hospital. Jordan
explained that they had fought about money in that appellant was upset that Jordan
did not get more money for the jewelry that she pawned. Jordan
related that she walked into the garage, where she saw appellant talking on the
phone; he appeared to be angry. She,
too, was angry and started shouting at appellant. Appellant got off the phone, stood up and
started rushing at Jordan. He grabbed Jordan’s
cane, threw it on the ground, and then “punched her in the face four, five
times with his right fist. After
punching her, he grabbed one of her legs, lifting it up, causing her to fall to
her back. As soon as she was on her
back, the defendant straddled the victim and punched her two, three more times
in the face.†He next put his forearm on
her neck and said, “Give me the fucking money that you got.†When she said okay, he let her up and she
attempted to run out of the garage. He
caught her, dragged her back by her neck and threw her on the ground. He said, “Give me the fucking money or I’m
going to kill you, bitch.†She again
agreed, got up and was now able to get away and call 911.
Epstein
found Jordan’s answers to his questions responsive and detailed; she appeared to
have no trouble remembering events. She
did not complain about pain to her face, neck and lower back. The left side of her face showed no sign of
injuries.
DISCUSSION
“In deciding the
sufficiency of the evidence, a reviewing court resolves neither credibility
issues nor evidentiary conflicts.
[Citation.] Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.] Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction.
[Citation.]†(
1181.) “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.†(People v. Maury (2003) 30 Cal.4th 342, 403.)
We
begin with the circumstance that, in this case as in many spousal abuse cases,
the determination to what extent the victim’s courtroom testimony is to be
believed is particularly sensitive and difficult. The “reading†of the victim’s manner, tone
and inflections of voice, and physical demeanor is much more a matter of the
eye and ear than of the actual words spoken.
It is therefore literally not possible to replicate in a reviewing court
the actual body of evidence that is before the finder of fact. The principle that credibility determinations
are for the finder of fact is therefore of particular importance in cases such
as the one at bar.
This
is not a case where the victim’s in-court testimony and prior statement are
wildly inconsistent. Both statements
relate the sequence of events the same way.
That is, Jordan arrives in the garage, sees appellant on the telephone,
the altercation erupts, they fall on the floor, appellant strikes Jordan, there
is a demand for the money, Jordan tries to flee, is caught but finally
escapes. Importantly, both versions
agree that there was, in fact, a physical altercation involving blows. Thus, this is not a case where a stark
decision has to be made between two completely inconsistent stories. While it is clear that the statements differ
in that the in-court testimony makes Jordan the aggressor, beyond that point
the difference is more one of nuance than substance.
Given
this aspect of the case, it is a perfectly reasonable conclusion that in court
Jordan tried to tamp down the actual altercation to shield appellant but that
the actual story about the altercation was much more like the one she related
to Epstein.
Be
that as it may, which version to believe is paradigmatically a question for the
jury.
Before
turning to appellant’s contentions, we note that even under Jordan’s in-court
testimony, there is evidence of battery.
She testified that after they both fell to the floor, appellant landed
on top of her and began slapping the left side of her head with an open
hand. As respondent correctly points
out, a slight offensive, unprivileged touching is a battery. (People
v. Ausbie (2004) 123 Cal.App.4th 855, 860, fn. 2.) Slaps to the head qualify as battery. On the other hand, if Jordan’s in-court
testimony is followed, it would need to be sorted out to what extent, if any,
these slaps were self-defense.
Appellant
recognizes that credibility is for the finder of fact. Appellant contends, however, that Epstein’s
“credibility is of limited value†because his testimony “does nothing to
counter Jordan’s sworn testimony that she was lying to Deputy Epstein during
her extrajudicial unsworn account of the incident.â€
It
is not Epstein’s but Jordan’s credibility that is at issue; there is no reason
to doubt that he accurately recounted what Jordan told him in the
hospital. While she testified that she
lied about “most of it†in her statement to Epstein, she also testified that
she loved her husband and that she wanted to be with him. She was not required to say she loved her
husband but, given her testimony in court, she could hardly do anything else
than to repudiate her statement to Epstein.
All of this makes sense from a human perspective. None of it detracts from the basic fact that
it was the jury’s province to decide whether to believe Jordan’s in-court
testimony. As noted, the only important
divergence between her testimony and her statement was that the former
characterized her as the initial aggressor.
Given her relationship with her husband, it was not unreasonable for the
jury to simply discount this part of her testimony.
Appellant
contends that Jordan’s sworn testimony is to be preferred to her “unsworn
extrajudicial account†that she repudiated.
This is a somewhat simplistic view.
An unsworn statement made right after the confrontation, when Jordan was
free of appellant’s influence and apparently was not thinking about her
marriage, seems more reliable than courtroom testimony that could send her
husband to prison. Testimony is not
merchandise with fixed characteristics, making sworn testimony inevitably
superior to an unsworn statement. The
witnesses’ motivations may render the statement superior to testimony.
Appellant
contends that this case is like In re
Miguel L. (1982) 32 Cal.3d 100, 110, where the court held that the unsworn,
repudiated statement of an accomplice was not sufficient evidence to sustain a
burglary conviction. But we are not
dealing with an accomplice in this case.
The question is whether to believe a wife who wants to keep her husband
out of prison; the jury chose not to believe her. We cannot say that this decision was
surprising or one that the jury was not qualified to make.
Appellant
claims that “Jordan testified with great certainty that she deliberately lied
to Deputy Epstein†and that we should therefore reject her statement to
Epstein. We cannot see where the record
supports the words “great certainty†and “deliberately.†But no matter how appellant seeks to dress up
the argument, the fact is that the question appellant seeks to retry in this
court was resolved by the jury.
In
his reply brief, appellant states that the prosecution failed to present
evidence that Jordan’s “prior inconsistent statements†were true. The prosecution was not required to present
evidence that Jordan’s statement to Epstein was true. There is no support in the law for this
claim, and appellant cites none. It is
also simply untrue that once Jordan disavowed her statement to Epstein, “the
prosecution was left with nothing.†The
jury was free to reject Jordan’s disavowal, as it obviously did.
The
nuanced verdicts that were returned shows a jury aware of its responsibilities.
While the evidence is in conflict, we do not sit to resolve the conflict or
reweigh credibility determinations of the jury.
(People v. Maury,
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J. CHAVEZ, J.
name="_ftn1" title="">[1]
All statutory references
are to the Penal Code.
name="_ftn2" title="">[2]
Sentence having been
suspended, the appeal is from the order granting probation. (People
v. Berkowitz (1977) 68 Cal.App.3d Supp. 9, 12.)
