P. v. Dawson

Filed 12/21/09 P. v. Dawson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

I. Introduction

Appellant Darin Timothy Dawson (Dawson)[1] appeals from his conviction of assault and false imprisonment, asserting no substantial evidence supports the jurys verdict. Our review of the record leads us to the contrary conclusion, and we affirm.

II. Procedural Background

Following a jury trial, Dawson was convicted of false imprisonment (Pen. Code,  236)[2] and assault ( 240), a lesser included offense of the charged offense of assault by means of force likely to produce great bodily injury. ( 245, subd. (a)(1).) The court denied his motion to dismiss the charges at the close of evidence. The court found true the prior prison term allegation, and sentenced Dawson to the midterm of two years on the false imprisonment count, a concurrent six-month term in county jail for the assault, and a consecutive one-year enhancement for the prior prison term. This timely appeal followed.

III. Factual Background

The charges in this case arose out of a weekend trip taken by M.H.,[3] a then 16-year-old girl who lived with her mother in Suisun.

M.H. testified that she was a heavy drinker and on October 11, 2008,[4] she became intoxicated with a friend in Fairfield. M.H. called another friend, Christina,[5] who picked her up and drove her to Christinas home in Vallejo. M.H. noticed Christina had a black eye that did not look that recent[, but] [l]ike it was going away.

When they went inside Christinas home, Dawson was there with Christinas preschool-age son. M.H. described Dawson as a friend she knew as Prince, though she did not know if they were still friends, or remember when or how she met him. M.H. claimed she had no reason to be afraid of Dawson at the time of the incident.

M.H. testified that, after she arrived at Christinas house, her cell phone got broke when she was messing around and play-fighting with Dawson. She explained [w]hen Im drunk, I just like do hecka stuff. She testified she could not remember who started the play-fight, what Dawson did during the play-fight, how long the play-fight lasted, or how her cell phone was broken. She was not choked, punched, slapped or kicked during the play-fight. She spent the night at Christinas home because she was hecka drunk and was not supposed to be drinking.

The next day, she and Christina drove to a hotel in Santa Rosa. M.H. testified she did not really know they were going to a hotel, why they were going, or how long they would be staying. She did not remember the name of the hotel or when they arrived. She stayed in the car while Christina got the key to a room. Once in the room, they watched television for a couple hours. She testified no one else was in the hotel room the entire time she and Christina were there. After three or four hours, M.H. left when her mother arrived. M.H. testified she felt free to leave both the hotel room and Christinas house in Vallejo. She did not remember what she told her mother about the weekend, or what her mother said to her.

M.H.s mother, Michelle G., testified she clearly remembered the events of that weekend. M.H. told her she was going to spend the weekend with her aunt in Napa. Michelle had no concerns about this plan until Monday morning, when M.H. had not returned. Michelle called or texted M.H., but received no response. After Michelle got to work, she texted M.H. a few more times, again with no response. Around noon, Michelles son Raymond called her with the information M.H. was with Dawson. Michelle went home to get Raymond, and she and Raymond, along with M.H.s best friend and boyfriend, went to find her because she was not supposed to be with this person, whom Michelle knew only as Prince.

Michelle first drove to a spot in Vallejo, where she met M.H.s father, but they could not find M.H. Michelle and the group then followed M.H.s father to a hotel in Santa Rosa. Michelle knocked on a hotel room door, and Christina opened it. Michelle shoved open the door . . . and got in [Christinas] face and told her I never wanted to see her around my daughter again. She was angry because M.H. had told her Christina was one of Princes prostitutes. Michelle yelled at M.H. and slapped her. M.H., who was crying and intoxicated, got in her fathers car, and the entire group left Santa Rosa.

They stopped in Vallejo, where M.H. got out of her fathers car and into Michelles car, and they headed to Suisun. Michelle called the Suisun police from the road, asking them to come to her home. Suisun police met them there, but advised Michelle to call Vallejo police, which she did.

Vallejo Police Officer Stanley Eng met Michelle and M.H. in front of the address in Vallejo where M.H.s family had searched for her, and spoke with them. Before he arrived, Michelle and M.H. sat in the car talking. Michelle asked M.H. why she had not called her, and M.H. responded she was scared her mother would attack Dawson. M.H. told Michelle when she arrived at Christinas house, Dawson was upset and grabbed her by her neck and slapped her and took her phone and broke it and told her that she wasnt going anywhere. When M.H. said she wanted to leave, Dawson responded  Bitch, you aint going nowhere. Youre going to make me some money.  Michelle observed a red mark about the size of a nickel and kind of like . . . a scratch on her daughters neck.

Officer Eng first spoke with Michelle and M.H. together. He observed a red mark on M.H.s neck the size of a thumb. M.H. told him she called Christina on October 11 because she wanted to spend the weekend with her. Christina came to pick her up, and they drove to Christinas apartment in Vallejo. Dawson was there when they arrived. He approached M.H., took her cell phone, and broke it in two. Dawson grabbed her by the neck, and strangled her for approximately ten seconds, until she was unable to breathe. Dawson then slapped her in the face twice. M.H. told Officer Eng she remained at the apartment because [s]he felt that she wasnt able to leave. [] . . . [] . . . Christina, was apparently beaten up by [Dawson], and she did not want to get beaten up. M.H. told Eng they stayed at the apartment in Vallejo until Monday morning, and she was not willingly there. On Monday, Dawson told her they were going to Santa Rosa, and she, Christina and Dawson all traveled to Santa Rosa in the same car. On the way there, M.H. left a message for her mother that she wouldnt be home until shes 18. Once they arrived at the hotel in Santa Rosa, Dawson told her to make money for him. They were at the hotel for a few hours, during which time three men visited Christina in the room.

Officer Eng next took M.H. away from her mother and questioned her to make sure that she was telling me the truth [or] . . . leav[ing] out anything. M.H.s statement did not change in any way.

After Officer Eng arrested Dawson about a week later on October 20, he telephoned M.H. He asked her again if she had been able to breathe during the choking incident. She responded as she had earlier, that she could not breathe for about 10 seconds. M.H. also told Eng she had received a telephone call from Dawson from a blocked number, in which he asked her why she had called the police. He also said he knew where M.H.s bedroom was. M.H.s mother testified M.H. was so scared after the incident she often slept with her because Dawson knew exactly where she slept, and so she didnt want to sleep in her room.

Eng arrested Dawson at Christinas Vallejo apartment. Dawson was outside the apartment when Eng arrived, but went inside when Eng called his name. After about 20 minutes of knocking at the door, Eng kicked open the door and arrested Dawson.

III. Discussion

Dawson maintains no substantial evidence supports the jurys verdict. He argues M.H.s out-of-court statements to her mother and Officer Eng, which conflicted with her trial testimony, were so unreliable they could not constitute substantial evidence. Dawson does not claim these statements were improperly admitted for impeachment purposes, but rather asserts we should apply the factors to be considered in determining whether out-of-court statements are sufficiently reliable for admission despite the hearsay doctrine in determining whether substantial evidence supports his conviction.

Dawson misconceives our role as a reviewing court. Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellants burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence . . . we must begin with the presumption that the evidence . . . was sufficient, and the defendant bears the heavy burden of convincing us otherwise. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

The standard of review in determining whether substantial evidence supports a conviction is well settled. On appeal, we review the whole record in the light most favorable to the judgment below 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.]  [I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder.   (People v. Snow (2003) 30 Cal.4th 43, 66, quoting People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)  In reviewing the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  [Citation.] We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on  isolated bits of evidence.  [Citation.] [Citation.] (People v. Medina (2009) 46 Cal.4th 913, 919.)

Dawson argues M.H.s pretrial statements to her mother and Officer Eng cannot constitute substantial evidence because they were uncorroborated, coerced, and made with a motive to fabricate. In short, Dawson asserts M.H.s statements to her mother and Officer Eng were not credible. However, this is precisely the kind of credibility call left to the province of the jury. Under the applicable standard of review, the question is not whether there is any evidence suggesting M.H.s statements were untrue or inaccurate, but whether any substantial evidence supports the jurys verdict.

Accordingly, Dawsons claim that M.H.s out-of-court statements were uncorroborated goes nowhere. Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, (Evid. Code,  411) and the testimony of a single witness can constitute substantial evidence. (People v. Maxwell (1979) 94 Cal.App.3d 562, 577.)

Dawsons claim of coercion and fabricat[ion] are intertwined. He asserts M.H. made the out-of-court statements to her mother and police because of lengthy parental coercion. He asserts this overpowering coercion . . . gave [M.H.] a strong motive to fabricate. The record certainly contains evidence M.H.s parents were upset after finding her in the Santa Rosa hotel room with Christina. Her mother, at least, had reason to believe Christina was a prostitute and Dawson was her pimp. While there was evidence Michelle yelled at and slapped M.H. upon finding her in the hotel room, there was no evidence Michelles actions caused much change in M.H.s behavior. M.H. testified she did not pay attention to her mother when she yelled at her, and neither cared nor was afraid that her mother was going to yell at her after her trial testimony. Moreover, there was evidence M.H. sought her mother out for comfort and protection after Dawson told M.H. he knew where she slept. And the jury certainly found M.H.s testimony at trial not credible. She mostly claimed she could not remember much about the weekend. She testified she did not remember what she told her mother about Dawson and said her mother called the police because she always makes things big out of something little. She either denied making statements to Officer Eng or testified she had no memory of them. She responded to many questions with a shrug. She claimed the case was only about a play-fight and a broken phone, and said she was never held against her will or choked.

There was, however, substantial evidence from which the jury could reasonably conclude M.H.s out-of-court statements to her mother and Officer Eng were credible. Shortly after the events in question, M.H. relayed the same set of facts to both her mother and the police officer. Officer Eng purposefully questioned M.H. away from her mother, explaining I wanted to just make sure that she was telling me the truth; that she [wasnt] leav[ing] out anything. Sometimes they dont want to talk with their mother around. M.H. did not change her description of the events. She also provided a second statement to Officer Eng on the telephone about one week later, consistent with her first. She repeated her description of Dawson choking her and preventing her from breathing for 10 seconds. She also informed Eng that Dawson had since made a threatening telephone call to her, telling her he knew where her bedroom was. That statement was supported by Michelles testimony that M.H. became so frightened she would not sleep in her own bedroom and began sleeping with her. And, it was evidence M.H. was so fearful of Dawson she was reluctant to testify against him.

The jury, which was able to observe the demeanor of the witnesses, could reasonably conclude M.H. was truthful in her initial out-of-court statements to her mother and Officer Eng, and untruthful in most regards at trial. Dawson has thus failed to meet his heavy burden of demonstrating there was no substantial evidence in the record supporting his conviction on both counts.

IV. Disposition

The judgment is affirmed.

_________________________

Banke, J.

We concur:

_________________________

Marchiano, P. J.

_________________________

Dondero, J.

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[1] While the record consistently reflects appellants name as Darin Timothy Dawson, he signed the notice of appeal as Darin Timothy Dawson, Jr.

[2] All further statutory references are to the Penal Code unless otherwise indicated.

[3] Because of her minority at the time of the incident and at trial, we refer to the victim by her initials only.

[4] Unless otherwise noted, all further dates referenced are in 2008.

[5] M.H. testified she could not remember Christinas last name.