In re Armand T.

Filed 9/18/07 In re Armand T. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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The juvenile court readjudged appellant, Armand T., a ward of the court (Welf. & Inst. Code, 602) after it sustained allegations charging Armand with possession of a knife on school grounds (Pen. Code, 626.10, subd. (a)) and fighting in public (Pen. Code, 415, subd. (1)). On October 11, 2006, the juvenile court placed Armand on probation for a maximum period of one year three months. On appeal, Armand contends the evidence was insufficient to sustain the juvenile courts finding that he possessed a knife on school grounds. We will affirm.

FACTS

At Armands jurisdictional hearing, Ramon R. testified that on June 6, 2006, he was talking to some friends at Tulare Union High School when Armand approached him and asked if he had written X3 on Armands his desk. When Ramon replied that he did not know what he was talking about, Armand punched him in the face. Ramon told him to ask someone else and Armand punched him a second time. As Ramon attempted to get up, Armand grabbed Ramon and continued to assault him until someone yelled and Armand let go. However, Armand continued walking toward Ramon as Ramon pushed him back.

Tulare Police Officer Greg Barnes testified that in June 2006 he was assigned to the Tulare Union High School campus. On June 6, 2006, Barnes was in his office when he was informed that two students were fighting. He looked out the window and saw Armand pursuing Ramon, swinging at him, and yelled for them to stop. Ramon immediately turned around and started walking toward Barnes while Armand began walking away. Armand continued walking until Barnes yelled for him to stop three or four additional times. Armand was uncooperative and was escorted by Barnes to the attendance office. After speaking with Ramon, Barnes arrested Armand. Barnes handcuffed Armand and, after searching his right pants pocket and finding a cell phone and other items, he conducted a preliminary search on the remainder of Armands person. As Barnes escorted Armand to his patrol car, he heard a thump. When Barnes turned around, he saw a knife on the ground by Armands feet. Barnes retrieved the knife and finished escorting Armand to the patrol car. Armand told Barnes that he was holding the knife for a friend, that he did not remember he had it on him, and something about the knife being in his small pants pocket. The knife Barnes retrieved had two locking blades, each approximately two and one-half inches long, and a handle three and one-half inches long. The knife was one-quarter inch thick.

During cross-examination, Barnes denied that any of the students in the area where the knife fell said, Look theres a knife. He also denied telling Armands mother that Armand was going to be released because Barnes was not sure whether Armand had the knife on him.

Armands sister testified that as Barnes escorted Armand to Barness patrol car, she heard a boy say there was a knife on the ground. She saw the knife about three or four feet behind Armand and Barnes. Barnes then turned around and picked up the knife.

Armands mother testified that she spoke to Barnes when she went to pick up Armand at the police station. Barnes told her that Armand was arrested for fighting. He also told her that if he had known that a knife found on the ground belonged to Armand, Armand would have been booked into juvenile hall.

Armand testified that on the day of the fight he thought Ramon was responsible for writing X3 on his desk because he saw Ramon getting up from the desk. Armand went outside and confronted Ramon and struck him first. After that they just tried to grab each others shirts. Armand did not stop fighting right away when Barnes told both of them to stop. According to Armand, Barnes searched his two front pants pockets and two back pants pockets before escorting him to the patrol car. Armand denied telling Barnes that he had a knife on him. As they walked to the patrol car, Armand heard a student say, Theres a knife on the ground. Armand and Barnes then went back and Barnes picked up the knife. Armand admitted that he started the fight with Ramon. Barnes asked him if he had ever seen the knife and Armand told him he had not.

DISCUSSION

Armand contends that a reasonable trier of fact could not have found the possession of a knife charge true beyond a reasonable doubt because Barnes contradicted himself and his testimony was contradicted by the testimonies of Armands mother and sister. We disagree.

The law is clear and well settled. On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] [Citation.] Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. [Citation.] (People v. Abilez (2007) 41 Cal.4th 472, 504.) Further, the testimony of one witness, if believed by the trier of fact, may be sufficient to prove any fact. (Evid. Code, 411.)
Here, Barnes testified that he heard a thump, turned around, and saw a knife on the ground. He also testified that Armand admitted to him that he had been carrying the knife. The juvenile court reasonably could conclude from this evidence that Armand possessed the knife on school property, in violation of Penal Code section 626.10, subdivision (a)). Nevertheless, Armand argues that the juvenile court should not have believed Barnes because his testimony was inconsistent with his own testimony and that of other witnesses, and improbable because it was unlikely that Barnes would not have felt the knife when he searched Armands front pants pocket, uncovering other items there. We will reject these contentions.

Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] 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.] [Citations.] (People v. Thornton (1974) 11 Cal.3d 738, 754, italics added.)

Barnes testified that prior to walking Armand to the patrol car, he searched the interior of only one of Armands pants pockets and then did only a preliminary patdown on the rest of Armands person. Thus, Barness failure to locate the knife in the pocket he searched did not undermine his testimony because the knife could have dropped out of another pocket, Armands waistband, or some other place on his person where it had been concealed. In any event, Barness testimony was neither inherently improbable nor patently false. Thus, we conclude that the evidence was sufficient to sustain the juvenile courts finding that Armand unlawfully possessed a knife on school grounds.

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Wiseman, J. and Kane, J.