P. v. Griffin CA2/2

Filed 5/6/13 P. v. Griffin CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B237300
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA053636)
v.
NICKY GRIFFIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles 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
inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)),1 a felony, with
attempted 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.2 The court imposed various 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’s in-court testimony
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.
1 All statutory references are to the Penal Code.
2 Sentence having been suspended, the appeal is from the order granting probation.
(People v. Berkowitz (1977) 68 Cal.App.3d Supp. 9, 12.)
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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.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?” 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,4 saying “Calm down, baby. What’s wrong? 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.
3 She has arthritis in her knee for which she had had surgery.
4 She characterized these slaps as “not hard.”
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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.]” (People v.
Young (2005) 34 Cal.4th 1149, 1181.) “Conflicts and even testimony which is subject to
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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
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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.”
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.
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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, supra, 30 Cal.4th at p. 403.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J. CHAVEZ, J.
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