The deputy district attorney was able to prove up two counts without the victim, but not four other counts. The defense motion to dismiss under PC 1118.1 was denied. After the defense rested, the DA found the victim and she testified to all counts.
On appeal, the California Court of Appeal rejects the DA's claim that there was substantial evidence on the four counts because the defendant denied these counts but was found by the court to be lying. This comes up occasionally.
The rule, restated by the Court of Appeal is that disbelief of a witness is not affirmative evidence to the contrary. So disbelieving the defendant's denials does not establish the truth of the charges. And of course, the 1118.1 is reviewed on appeal as of the time it was made. So the later curing the lack of evidence by the victim's testimony on rebuttal doesn't alter the fact that at the time the 1118.1 was made, there was insufficient evidence.
Thus, the Court of Appeal reverses the four counts for insufficiency of the evidence.
People v. Velazquez; 2011 DJ DAR 17123; DJ, 11/30/11; C/A 2nd, Div. 4