Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06NF0847, Richard W. Stanford, Jr., Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, JUDGE
Defendant Sam Lee Butler contends insufficient evidence supports his conviction for assault with a deadly weapon because the victim’s testimony was not believable. The jury apparently found otherwise. Accordingly, we affirm.
FACTS
The victim had dated defendant, but had recently broken up with him. She was putting away groceries in her apartment when defendant grabbed her from behind. He held her with one hand; he held a knife with the other. He put the knife to her chest. She grabbed the blade, which broke off in her hand. The victim then recognized defendant and began talking with him. Defendant demanded the knife blade back. She told him she would flush it down the toilet or drop it down the sink. Defendant held onto her neck as they walked to the bathroom. She dropped the blade down the bathroom sink.
Still holding her by the neck, defendant walked the victim to the bedroom. He orally copulated her, they had sexual intercourse, and then they showered. The victim asked defendant if she could use the telephone to call her father. He handed her a cell phone. She called her father and told him defendant was trying to kill her. She next called 911. Defendant dressed and fled.
The police apprehended defendant at a pay toilet in a nearby commercial building. He was standing in the bathroom with his finger in a light socket, apparently attempting suicide. Defendant told an officer, “‘I messed up. It went too far. Shoot me in the head.’”
The District Attorney filed an information charging defendant with multiple counts: count 1, first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)); count 2, assault with a deadly weapon (§ 245, subd. (a)(1)); count 3, assault with a deadly weapon (§ 245, subd. (a)(1)); count 4, forcible oral copulation (§ 288a, subd. (c)(2)); count 5, forcible rape (§ 261, subd. (a)(2)); and count 6, forcible oral copulation (§ 288a, subd. (c)(2)). The information alleged defendant has suffered two prior strikes (§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), two prison priors (§ 667.5, subd. (b)), and one prior serious felony conviction (§ 667, subd. (a)(1)).
All further statutory references are to the Penal Code.
At trial, a police officer recounted defendant’s statements from a post-arrest interview. Defendant conceded breaking into the victim’s apartment and picking up a knife. He claimed he told the victim, “I just want to talk to you” and “I’m not gonna hurt you. I just want you to sit down and listen to me.” He also claimed he put down the knife when the victim asked him, and that she initiated consensual sex.
The defense explored inconsistencies in the victim’s testimony and prior statements to the police. The victim did not tell the officer who responded to her 911 call — but testified at trial — that defendant had pulled the telephone jack out of the wall, tried to stab her in the chest with the knife, produced a second knife in the bedroom, and orally copulated her a second time after they had intercourse. She mentioned the broken telephone jack and the second knife to another officer the day after the attack. But she did not tell this other officer about defendant trying to stab her in the chest.
There were other inconsistencies in the victim’s account. She testified she screamed at the “top of [her] lungs” throughout the attack, but did not tell that to the responding officer, and told the second officer she could not scream because she was being choked. There were small cuts but no significant injury to the hand with which she supposedly grabbed the knife. There was no sign of blood in the house, nor any physical evidence of a second knife or broken telephone jack in the bedroom. To the contrary, the victim had told the 911 operator that she could use the “house phone.” She claimed defendant had scratched her neck while choking her, but a nurse testified injuries to the victim’s neck were made earlier. The victim also made inconsistent statements about the timeline of the attack and her discussions with defendant during the attack. She repeatedly failed to remember things, conceded she had a “memory problem,” and lamented, “my brain is so clouded.”
Also, the victim yawned on the stand, repeatedly complained about her bad back and being tired, and asked, “This is an all day thing, huh?” She was impeached with two prior felony convictions.
The jury found defendant guilty of assault with a deadly weapon as alleged in count 2. It also found him guilty of the lesser included offenses of misdemeanor battery as to the two forced oral copulation counts. It acquitted defendant on the burglary, rape, and second assault with a deadly weapon counts. The court found true the prior allegations. It struck one of the prior strikes for sentencing purposes, and sentenced defendant to a total term of 14 years in state prison.
DISCUSSION
Defendant contends insufficient evidence supports his conviction because the victim was unbelievable. He notes her testimony differed from her prior statements to the police and was internally inconsistent. He points to his acquittal on several counts as proof the jury disbelieved the victim.
“‘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 (Ochoa).)
Importantly, we may not “substitute our evaluation of a witness’s 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 (Leigh).)
Thus, we reject defendant’s contention. To be sure, the verdict shows the jury disbelieved much of the victim’s testimony. It did not believe the defendant committed burglary, forced oral copulation upon her, or raped her. It also apparently disbelieved her testimony about defendant producing a second knife in the bedroom, as it acquitted him of the second assault with a deadly weapon count. But the jury did find defendant guilty of the first assault with a deadly weapon count. Presumably, then, it credited the victim’s testimony about the initial knife attack. (Ochoa, supra, 6 Cal.4th at p. 1206 [we “view the evidence in the light most favorable” to the verdict].) The jury was free to believe this part of the victim’s testimony while disbelieving the rest. (Leigh, supra, 168 Cal.App.3d at p. 221 [testimony may “uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions”].) The victim’s testimony, on the whole, may have been “subject to justifiable suspicion,” but to the extent the jury credited it, it substantially supports the conviction. (Maury, supra, 30 Cal.4th at p. 403; accord Jones, supra, 51 Cal.3d at p. 314 [jury, not appellate court, determines witness credibility].)
Thus, defendant misses the mark by contending his own statements to the police are insufficient to show he assaulted the victim with the knife. The jury apparently credited the victim’s testimony on that issue. That evidence itself sufficiently supports the conviction.
But even if we were to discount the victim’s testimony, defendant’s own statements show he assaulted the victim. An assault is “an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another.” (§ 240.) “[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790 (Williams).) “For example, a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally, and probably result in a battery.” (Id. at p. 788, fn. 3.)
The jury could have reasonably found defendant, by wielding a knife while demanding the victim to sit down and talk with him, intentionally engaged in an act that would directly, naturally, and probably result in physical force against the victim. (Williams, supra, 26 Cal.4th at pp. 788, fn. 3, 790.) His actions and statements comprised an implied threat that he would use the knife to hurt her if she did not talk with him. “The fact that here the knife was exhibited in connection with a qualified threat would not preclude the appellant’s conviction [for assault with a deadly weapon] as charged.” (People v. McCoy (1944) 25 Cal.2d 177, 192.) “‘Where a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he actually struck, or shot, at the other party, and missed him. It would, indeed, be a great defect in the law, if individuals could be held guiltless under such circumstances.’” (Id. at p. 193, italics omitted.) An assault does not “turn[] on such esoteric distinctions as whether [a defendant] used the words ‘I don’t want to have to shoot’ rather than ‘do what I say or I’ll shoot.’ The law does not require such an absurd result.” (People v. Lipscomb (1993) 17 Cal.App.4th 564, 570-571.) Defendant’s concessions thus independently support his assault with a deadly weapon conviction.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., FYBEL, J.