In re B.F.

Filed 9/17/08 In re B.F. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Donna Crandall, Judge. Affirmed as modified.

Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, David Delgado-Rucci, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Minor B. F., a ward of the court, contends insufficient evidence showed he committed arson because the main witness against him was not credible. The court found otherwise, dooming this claim. But the court erred by omitting a knowledge requirement from probation conditions barring the minor from associating with disapproved persons. We modify the minute order accordingly, and affirm.

FACTS

The minor and two friends drove to an abandoned building, in the City of Orange, one night in July 2006. Once inside, the minor stated it would be cool to light the building on fire. One of the friends, L. O., replied, that would be stupid. The other friend tried but failed to set a curtain on fire. The minor stated he knew how to do it. He found some paper towels and gave them to the other friend, who placed them under a desk. L.O. did not want to be involved, and left. L.O. waited outside for several minutes; the minor and the other friend later came rush[ing] out of the building.

A short while later, someone smelled smoke coming from the building and called the fire department, which extinguished the fire. A fire department investigator concluded the minor and his friend set the fire, based upon his examination of the building and an interview with L.O.

The district attorney filed a petition to declare the minor a ward of the court. (Welf. & Inst. Code,  602.) It charged him with one count of arson of a structure. (Pen. Code,  451, subd. (c).)[1] L.O. testified at the bench trial under a grant of use immunity.

The court sustained the petition.[2] It committed the minor to 120 days in custody, ordered restitution, suspended his drivers license, and placed him on probation.

DISCUSSION

The minor contends insufficient evidence supports the findings because L.O. was unbelievable. He claims she gave inconsistent statements to investigators and had a motive to lie because she was dating the other person involved in the arson. He also notes L.O. testified under a grant of use immunity. The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) We view the evidence in the light most favorable to the verdict, and presume the existence of every fact the jury might reasonably deduce from it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Importantly, we may not substitute our evaluation of a witnesss credibility for that of the fact finder. (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) Conflicts and even testimony [that] 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. (People v. Maury (2003) 30 Cal.4th 342, 403 (Maury).) [T]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. (People v. Leigh (1985) 168 Cal.App.3d 217, 221.)

Here, all the purported grounds for discrediting L.O. were before the court. The prosecutor questioned the fire investigator and a police investigator about L.O.s statements to them. He asked L.O. about her relationship with the other participant. And he filed the immunity order with the court and reminded the court about it before L.O. testified. Defense counsel cross-examined L.O. about her statements to investigators and her relationship with the other participant. She cross-examined the fire and police investigators about L.O.s statements. And she criticized L.O.s credibility during closing argument.

Yet the court still found L.O. credible. It stated, The court had the opportunity to evaluate and observe her demeanor when she testified. She appeared to be very straightforward. She did not appear to be evasive. Her demeanor was fairly relaxed on the witness stand. She did not appear to be angry or frightened in any way. [] The court is prepared to believe the testimony that she gave. L.O.s testimony supports the courts findings because the court credited it. (Maury, supra, 30 Cal.4th at p. 403 [even suspicious testimony supports conviction if credited]; Jones, supra, 51 Cal.3d at p. 314 [factfinder determines witness credibility].)

The minor further contends L.O.s testimony should require corroboration because it is just as suspect as accomplice testimony, though the minor concedes L.O. is not an accomplice. (Cf. 1111 [accomplice testimony must be corroborated by other evidence connecting the defendant to the crime].) This novel proposition is itself suspect, and the minor cites no persuasive authority supporting it. We reject his suggestion to expand the corroboration requirement from accomplices to any witness deemed suspect.

On the other hand, the court erred in imposing probation conditions barring the minor from associating with certain disapproved persons without requiring the minor to know the persons have been disapproved. (In re Sheena K. (2007) 40 Cal.4th 875, 891-892.) The court stated in its oral pronouncement of judgment, You are not to associate with anyone disapproved of by the court, your parents, or your probation officer. Nor are you to associate with anyone who you know to be on probation or parole, anyone who you know to be a member of the OVC criminal street gang or any tagging crew, or anyone who you know to be using, selling, possessing or under the influence of alcohol or controlled substances.

In contrast, the minute order provides, Minor not to associate with persons of whom they know their parents and their probation officer disapprove or with anyone they know is on probation or parole. [] Minor not to associate with anyone they know are [in a] criminal street or tagging crew, or using/selling/possessing, or under the influence of alcohol or controlled substances. [] Have no contact with anyone from OVC gang or any tagging crew.

The parties agree the court wrongly omitted a knowledge requirement from the condition barring the minor from associating with persons disapproved by the court, his parents, or his probation officer. They also agree the minute order corrects this error, but wrongly omits a knowledge requirement from the condition the minor [h]ave no contact with anyone from OVC gang or any tagging crew. They ask that we modify the minute order to add a knowledge requirement to this condition and declare the modified minute order controls over the courts erroneous pronouncement. (Cf. In re Byron B. (2004) 119 Cal.App.4th 1013, 1018 [minute order reciting knowledge requirement clarifies contrary oral pronouncement and correctly recites the juvenile courts ruling].) We will oblige them.

DISPOSITION

The September 21, 2007 minute order is modified by amending the probation condition that the minor [h]ave no contact with anyone from OVC gang or any tagging crew to provide the minor have no contact with anyone he knows is a member of the OVC criminal street gang or any tagging crew. With this modification, the judgment is affirmed.

IKOLA, J.

WE CONCUR:

OLEARY, ACTING P. J.

MOORE, J.

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[1] All further statutory references are to the Penal Code.

[2] The minor admitted the allegations in another wardship petition, and the court dismissed a third wardship petition.