Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA063022. Gary J. Ferrari, Judge.
Keith Kim, Joseph T. Vodnoy and Joseph F. Walsh for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Peter Choi (defendant) of one count of assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and found true allegations that defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury on the victim (§12022.7, subd. (a)). The trial court sentenced defendant to state prison for six years, consisting of the low term of two years on the assault conviction plus consecutive sentences of one year for the deadly weapon enhancement and two years for the great bodily injury enhancement.
Statutory references are to the Penal Code unless stated otherwise.
Defendant contends on appeal that the trial court erred in refusing his request to instruct the jury on defense of another, pursuant to CALJIC No. 5.32. We agree with defendant, but conclude that, viewed in the context of the entire record, the error was harmless. We therefore affirm.
BACKGROUND
A. The Prosecution Case
1. Jeannie Kim
Shortly after midnight on September 11, 2004, Jeannie Kim was at Muse Karaoke, a crowded karaoke bar in a strip mall in Torrance, California. She went outside to where people were smoking. While she was there, an argument broke out between two people she knew, Ted Shin and Young Le. Young Le then punched Ted Shin several times; Ted Shin hit back. Several people, including Timothy Chae, tried to break up the fight by pulling Young Le and Ted Shin apart. Ted Shin managed to knock or wrestle Young Le to the ground and ran into the parking lot of the strip mall. Young Le pursued him, and the fight moved into the parking lot. Timothy Chae and others continued to try to break up the fight. No one had any weapons.
Jeannie Kim turned around and saw defendant, whom she did not know, approaching the fight with a baseball bat in his hand. She ran to intercept defendant and told him not to hit anyone. Defendant responded, “I don’t care.” A moment later, she heard a loud “chink” sound. She turned around to see Timothy Chae face down and unconscious on the ground, bleeding from the head. Defendant was standing next to him with the bat still in his hand. Jeannie Kim and others placed Timothy Chae in her car and she drove him to the hospital. Jeannie Kim subsequently identified defendant from a photo lineup and in open court as the person she had seen walking toward Timothy Chae with a baseball bat.
2. Timothy Chae
Timothy Chae was waiting with friends to get into Muse Karaoke. Nearby, two people he knew, Ted Shin and Young Le, began arguing about something. Young Le punched Ted Shin and the two of them began to fight. Timothy Chae and a number of other people attempted to break up the fight, but the two combatants kept fighting. The fight moved into the parking lot. No one involved had a weapon.
While the fight was going on, Timothy Chae saw defendant, whom he did not know, moving in his direction from across the parking lot with a baseball bat or something similar in his hand. Timothy Chae turned back to the fight to tell Young Le to stop. He was struck from behind. He was taken by Jeannie Kim to the hospital, where approximately 10 staples were required to close the wound on the back of his head caused by the blow. Timothy Chae subsequently identified defendant from a photo lineup and in open court as the person he saw moving toward him with a baseball bat.
3. Kenneth Jun
Kenneth Jun also was waiting outside Muse Karaoke when he saw two people arguing, one of whom was Ted Shin, an acquaintance of his from high school. The other person, Young Le, he had seen but did not personally know. Kenneth Jun saw Young Le punch Ted Shin in the head. Ted Shin defended himself, and other people tried to break up the fight by holding back Young Le and Ted Shin. There were approximately 15 people at the scene. No one had any weapons.
Kenneth Jun then saw defendant, whom he did not know, strike Timothy Chae with what appeared to be a baseball bat. Kenneth Jun heard a loud cracking sound and saw Timothy Chae fall to the ground unconscious and bleeding “considerably.” Defendant then chased after Ted Shin. Kenneth Jun subsequently identified defendant from a photo lineup and in open court as the person who struck Timothy Chae.
4. Eric Forrest
Eric Forrest was waiting for a ride outside of Cyber Lab, an internet café in the same strip mall as Muse Karaoke. He saw a fight break out among a group of eight to 10 Asian men in front of Muse Karaoke. He saw no weapons among the participants.
A few minutes after the fight started, Eric Forrest saw someone grab a baseball bat from the trunk of a car about 15 feet away from him and head back to the crowd around the fight. The person handed the bat off to someone else, who used it to hit somebody on the back of the head. Eric Forrest heard a sound like a bat “hitting a hard hollow wood.” The person who was hit fell to the ground and was subsequently helped by a group of people to a car, which drove away. Eric Forrest subsequently identified defendant in a photo lineup and in open court as the person who struck the other person with a bat.
B. The Defense Case
Young Le Kim (referred to by the other witnesses as Young Le) testified for the defense. Young Le was at Cyber Lab when he saw a group of young men in front of Muse Karaoke, including Ted Shin. The people with Ted Shin were taking drugs. Young Le scolded them; Ted Shin demanded to know why Young Le was interfering and started a fist fight. Young Le testified, “While I was fighting with Ted [Shin] in front of the Karaoke place, somebody hit me from—from the back and I—I got hit and I got dizzy . . . .” Young Le testified that Timothy Chae had hit him in the left elbow with a metal baseball bat; as a result, he suffered a broken elbow. Sometime “after that,” Young Le testified, he was hit in the head and fell to the ground. He remembered seeing at least two people with Timothy Chae, and “somebody . . . holding sort of stick [sic].” Defendant, a friend of Young Le, helped him up. The police arrived and handcuffed Young Le and defendant, and possibly Ted Shin. Young Le was not arrested that night.
On cross-examination, Young Le testified, “After I got hit I looked up at the people, I do remember the people who attacked me were wearing white tops, white jackets or white t-shirts, that sort of thing.” When asked if there were four people, he said he recalled that there were more than that, all holding bats or sticks. The prosecutor asked, “So your idea is that [defendant] actually saved you from Timothy Chae; is that what you are saying?” Young Le replied, “Yes, that’s correct.” Young Le testified that he reported to police at the scene that he had been attacked with a baseball bat, and pointed out his attackers to police as his attackers fled the scene. The police, Young Le testified, merely told him to “shut up.” Defendant did not testify.
C. The Rebuttal Case
Los Angeles Police Officer Ruben Vega testified in rebuttal. He testified that he and his partner, Officer Baran, responded to an assault with a deadly weapon call at a strip mall on Sepulveda Boulevard in Torrance. They saw a “whole bunch of kids” in the parking lot, and got speculative stories from several of them regarding someone getting shot or stabbed. The officers interviewed Eric Forrest, however, who appeared to have seen everything and was credible. The officers did not interview either Young Le or defendant at the scene. As they had no suspects, the officers made no arrests at the scene.
The officers then went to Torrance Memorial Hospital, expecting to find the victim of the attack. At the hospital, Officer Vega interviewed Timothy Chae, Jeannie Kim and Kenneth Jun.
D. Procedural History
Defendant was tried twice. The evidence adduced at the first trial, before the Hon. Charles D. Sheldon, is not in the record. On its own motion, the trial court instructed the jury in the first trial on the use of force in defense of another, pursuant to CALJIC 5.32. During deliberations, the jury submitted a question to the trial court concerning the amount of force that would be justified in defending another. After deliberating for a total of seven hours over three days, the jury deadlocked 11-1 in favor of conviction.
Defendant’s second trial was before the Hon. Gary J. Ferrari. After the close of evidence, the trial court remarked to counsel that an instruction on defense of another did not seem appropriate. Defense counsel explained, based on the testimony of Young Le, “that if Mr. Choi hit Mr. Chae with a bat, it was in defense of Mr. [Young Le] Kim.” The trial court observed, “Well, Mr. [Young Le] Kim testified to certain things but isn’t it really in the mind of the individual that uses the force against another?” Defense counsel argued that defendant’s state of mind could be proved through “circumstantial evidence whether or not the defendant testifies and what I’m suggesting is that the circumstances were, according to Mr. Kim, is [sic]that Mr. Chae was hitting him with a bat and then somebody showed up and hit Mr. Chae.” The trial court disagreed, finding “insufficient evidence to give those instructions.”
After deliberating for approximately one hour, the jury convicted defendant of assault with a deadly weapon (§ 245, subd. (a)(1)) and found true the allegations that defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury on Timothy Chae (§ 12022.7, subd. (a)). The trial court rejected defendant’s request for probation based on the probation officer’s recommendation and defendant’s juvenile history, which included a sustained petition for assault with a deadly weapon. The trial court sentenced defendant to six years in state prison, consisting of the low term of two years on his section 245 conviction, a consecutive term of three years on the great bodily injury enhancement, and a consecutive term of one year on the personal use of a deadly weapon enhancement. Defendant received 225 days of presentence credit, consisting of 151 days of actual custody and 74 days of conduct credit. Defendant was ordered to pay a $200 restitution fine per year, for a total of $1,200; a parole restitution fine of $200 per year, for a total of $1,200, stayed; and a $20 court security fee. Although the trial court indicated its intention to order victim restitution after a hearing, it does not appear that any such hearing was held, and neither the court’s minute order nor the abstract of judgment indicates an order to pay victim restitution.
DISCUSSION
A. The Trial Court Erred by Refusing the Requested Defense of Another Instruction
1. Standard of Review
We review de novo whether a trial court had a duty to give a requested jury instruction. (People v. Cole (2004) 33 Cal.4th 1158, 1206.) A defendant is entitled to a requested jury instruction on any defense supported by substantial evidence. (Ibid.; People v. Rhodes (2005) 129 Cal.App.4th 1339, 1346.) Substantial evidence is “evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof.” (People v. Cole, supra, 33 Cal.4th at p. 1206.) “[T]he test is not whether any evidence is presented, no matter how weak. Instead, the jury must be instructed when there is evidence that ‘deserve[s] consideration by the jury, i.e., “evidence from which a jury composed of reasonable [people] could have concluded” ’ that the specific facts supporting the instruction existed. [Citation.]” (People v. Petznick (2003) 114 Cal.App.4th 663, 677.)
“In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.’ [Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982.) Accordingly, “we take the proffered evidence as true, ‘regardless of whether it was of a character to inspire belief. [Citations.]’ [Citation.]” (People v. Petznick, supra, 114 Cal.App.4th at p. 677.) “The fact that evidence may be incredible, or is not of a character to inspire belief, does not authorize the refusal of an instruction based thereon, for that is a question within the exclusive province of the jury.” (People v. Burnham (1986) 176 Cal.App.3d 1134, 1143.)
2. Substantial Evidence Warranted a Jury Instruction on Defense of Another
Defendant requested that the trial court instruct the jury pursuant to CALJIC 5.32, which provides: “It is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon [another person] [——] to protect that individual from attack. [¶] In doing so, [he] [she] may use all force and means which that person believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.” The requested instruction accurately states the law applicable to the defense of another. (See §§ 692, 694; see also Civil Code, § 50.) Accordingly, the trial court erred if there was substantial evidence that (1) defendant believed that Young Le was in imminent danger of bodily injury; (2) defendant’s belief was reasonable; and (3) defendant actually and reasonably believed that the force he used was necessary to prevent the threatened injury to Young Le. (§ 694; see People v. McKee (1968) 265 Cal.App.2d 53, 61-62.)
These principles have been incorporated in CALCRIM 3470.
It appears that the trial court refused the instruction because there was no direct testimony regarding defendant’s state of mind. Such testimony is not required. “Substantial evidence of a defendant’s state of mind, including an ‘honest but unreasonable belief in the necessity to defend against imminent peril to life’ [citation], may be present without defendant testimony.” (People v. De Leon (1992) 10 Cal.App.4th 815, 824; accord, People v. Hill (2005) 131 Cal.App.4th 1089, 1102, disapproved on another ground in People v. French (2008) 43 Cal.4th 36, 48, fn. 5; see also People v. Castillo (1987) 193 Cal.App.3d 119, 126 [victim’s testimony provided substantial evidence of defendant’s good faith belief that rape victim consented to sexual contact]; People v. Anderson (1983) 144 Cal.App.3d 55, 62 [same].)
Based on the totality of the evidence presented at trial supporting defendant’s position, and taking that evidence as true, there was substantial evidence that defendant struck Timothy Chae from an actual and reasonable belief that doing so was necessary to protect Young Le. The testimony indicates that, immediately before defendant struck Timothy Chae, the scene was chaotic. Eight to 15 people were in the immediate vicinity of the fight; a number of those people—probably three or four, including Timothy Chae—were attempting physically to engage the combatants, Young Le and Ted Shin. The testimony of Jeannie Kim and Timothy Chae provides substantial evidence that Timothy Chae was engaged with Young Le, and that Young Le forcefully was resisting him.
Although defendant argued at trial that the prosecution failed to prove beyond a reasonable doubt that it was defendant who struck Timothy Chae, there is no dispute that the eyewitness identifications proffered by the prosecution are substantial evidence of that fact.
Young Le testified unequivocally that, during the fight, Timothy Chae struck him with a metal baseball bat, which broke his left elbow, and that he was hit in the head from behind by an unknown assailant. After he was knocked to the ground, Young Le looked up and saw that he was surrounded by four or more people, all holding bats or sticks, including Timothy Chae. Young Le testified that defendant arrived and “saved” him by helping him to his feet and leading him away from his assailants.
Furthermore, the testimony of Kenneth Jun indicates that defendant did not use unreasonably excessive force. Kenneth Jun, a prosecution witness, testified that defendant did not “swing” the bat at Timothy Chae, as if to hit him as hard as possible, but hit Timothy Chae with “a quick strike,” like “a jab.” A reasonable jury could conclude that defendant thus used only enough force to subdue Timothy Chae and render him unable to use his metal bat against either Young Le or defendant.
Taken as true, the foregoing constitutes substantial evidence that, when defendant struck Timothy Chae, Young Le was in imminent danger of bodily injury from a group of four or more young men, all armed with baseball bats and sticks. A jury could reasonably infer that defendant, witnessing this situation, actually and reasonably believed that his friend was in peril, and acted with reasonable force to prevent bodily injury to Young Le.
The cases cited by the People are distinguishable. People v. Hardin (2000) 85 Cal.App.4th 625 concerned an entirely different issue—whether, as a matter of law, a defendant who trespassed into a woman’s home and later killed her was precluded from claiming imperfect self defense because his forcible entry into the woman’s home created the circumstances leading to her death. (Id. at p. 632.) In People v. Strozier (1993)20 Cal.App.4th 55, the court held that there was no substantial evidence that defendant entered a fight to defend another when the evidence established that defendant entered the fight only after he had been hit, and the jury resolved the issue of self defense against the defendant. There is no such evidence and no such jury finding in this case. Finally, in People v. Thomas (1990) 219 Cal.App.3d 134, the court held that the evidence relied upon to support a defense-of-another instruction was so “minimal and insubstantial” that no instruction was necessary. (Id. at p. 144.) The evidence in that case consisted of testimony by a witness that she had seen—while intoxicated—“‘a shadow, something coming towards our car,’” then “‘a face’”; she then heard “‘two noises, two firecrackers.’” The court held this testimony was not “substantial evidence from which a reasonable person could form a belief ‘that bodily injury is about to be inflicted upon a [third person] . . . .’ [Citation.]” (Ibid., brackets in original.) In contrast, this case involves direct testimony that Young Le was struck by Timothy Chae with a metal baseball bat and that four or more other young men were threatening him with baseball bats and sticks as he lay prone on the ground. As noted above, “[t]he fact that evidence may be incredible, or is not of a character to inspire belief, does not authorize the refusal of an instruction based thereon, for that is a question within the exclusive province of the jury.” (People v. Burnham, supra, 176 Cal.App.3d at p. 1143; accord, People v. Lemus (1988) 203 Cal.App.3d 470, 478.) The trial court thus erred when it refused to instruct the jury on defense of another.
B. The Error Was Not Prejudicial
The California Supreme Court has not determined the standard of prejudice applicable to the erroneous failure to give a requested instruction on an affirmative defense. (See People v. Salas, supra, 37 Cal.4th at p. 984.) We need not decide whether the failure to instruct a jury on a defense would constitute a violation of a defendant’s right to a jury trial and thus be federal constitutional error subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24 (see People v. Lewis (2006) 139 Cal.App.4th 874, 884; People v. Avila (1995) 35 Cal.App.4th 642, 662 (Avila)), or whether harmless error should be determined under the state standard (People v. Watson (1956) 46 Cal.2d 818, 837). We conclude that the error was harmless under either standard. (Chapman, supra, 386 U.S. at p. 24 [harmless beyond a reasonable doubt]; People v. Watson, supra, 46 Cal.2d 818, 837 [more favorable outcome for defendant reasonably probable absent error] (Watson).)
Defendant’s suggestion that the error might be reversible per se is foreclosed by the California Supreme Court’s decision in People v. Breverman (1998) 19 Cal.4th 142, 176 (Breverman), holding that that a reversal-per-se rule, except in cases involving a “fundamental structural defect in the mechanism of the criminal proceeding,” violates article VI, section 13 of the California Constitution. Defendant cites no authority that error in failing to instruct on a defense constitutes structural error. Instructional error is generally deemed trial error subject to harmless error analysis. (See People v. Flood (1998) 18 Cal.4th 470, 499; see generally Levenson, Levenson on California Criminal Procedure (2007-2008 ed.) § 29:62, pp. 1377-1378.)
Neither People v. Randle (2005) 35 Cal.4th 987 (Randle)—cited by defendant—nor People v. Prince (2007) 40 Cal.4th 1179 (Prince)—cited by the People—addresses the standard of prejudice applicable here. Those cases apply the Watson, supra, 46 Cal.2d 818, standard to the failure to instruct on a lesser included offense, not failure to instruct on a defense to the crime charged. (Randle, supra, 35 Cal.4th at p. 1003; Prince, supra, 40 Cal.4th at p. 1267.) Randle—unlike this case—concerns the doctrine of imperfect defense of another in a murder case. (Randle, supra, 35 Cal.4th at pp. 995-997, 1003.) Like imperfect self defense, imperfect defense of another is “not a true defense; rather, it is a shorthand description of one form of voluntary manslaughter. And voluntary manslaughter . . . is not a defense but a crime; more precisely, it is a lesser offense included in the crime of murder.” (People v. Barton (1995) 12 Cal.4th 186, 200-201; see also People v. Szadziewicz (2008) 161 Cal.App.4th 823, 833-834.)
“We turn now to what factors we may consider in determining whether the error was in fact harmless. The United States Supreme Court has repeatedly noted that in conducting Chapman harmless error analysis, we must evaluate the ‘entire record . . . .’ (Rose v. Clark [(1986)] 478 U.S. [570,] 583 [92 L.Ed.2d [460,] 474]; Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [89 L.Ed.2d 674, 684-685, 106 S.Ct. 1431]; United States v. Hasting (1983) 461 U.S. 499, 509, fn. 7, 510 [76 L.Ed.2d 96, 106, 107, 103 S.Ct. 1974].) The initial step in Chapman analysis for a reviewing court is as follows, ‘First, it must ask what evidence the jury actually considered in reaching its verdict.’ (Yates v. Evatt[1991] 500 U.S. [391,] 404 [114 L.Ed.2d [432,] 449] [disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn.4].) Then, a reviewing court ‘must then weigh the probative force of that evidence as against the probative force of the [erroneous instruction] standing alone.’ (Ibid.) In analyzing the prejudicial effect of a constitutional instructional error, we may consider the fact that the evidence and proof of guilt concerning the omitted element is overwhelming, uncontradicted, or dispositive. (Rose v. Clark, supra, 478 U.S. at p. 583 [92 L.Ed.2d at p. 474]; Burger v. Kemp [1987] 483 U.S. [776,] 782-783, fn. 5 [97 L.Ed.2d [638,] 650].) Further, in conducting federal constitutional review, the United States Supreme Court has held, ‘An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.’ (Henderson v. Kibbe (1977) 431 U.S. 145, 155 [52 L.Ed.2d 203, 213, 97 S.Ct. 1730].) Finally, in Pope v. Illinois [(1987)] 481 U.S. [497,] 503, footnote 6 [95 L.Ed.2d [439,] 447], the United States Supreme Court indicated its prior holding in Rose required on appeal a review of the record be made to determine whether ‘the facts found by the jury were such that it is clear beyond a reasonable doubt that if the jury had never heard the impermissible instruction its verdict would have been the same.’” (People v. Avila, supra, 35 Cal.App.4th at p. 662; see People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [Chapman error reversible “‘unless it can shown “beyond a reasonable doubt” that the error did not contribute to the jury’s verdict’”]; see also Breverman, supra, 19 Cal.4th at pp. 177-178 [factors considered under Watson, supra, 46 Cal.2d 818, 837, test].) In determining that there was error in not giving the instruction, we were required to assume that the evidence supporting defendant’s position was true. The harmless error analysis, however, entails a review of the entire record to determine if the failure to give an instruction was prejudicial.
In this case, there is no dispute on appeal that the jury properly found beyond a reasonable doubt that defendant struck Timothy Chae in the back of the head with a baseball bat causing him great bodily injury. The issue concerns whether defendant’s actions were justified by the imminent threat of bodily harm to Young Le. The primary evidence supporting defendant’s contention was the testimony of Young Le that the victim, Timothy Chae, struck Young Le with a metal baseball bat, breaking Young Le’s elbow, and that four or more other young men threatened Young Le with baseball bats and sticks while he lay on the ground. Young Le’s testimony to that effect, however, was implausible, inconsistent, directly contradicted by every other percipient witness who testified, and uncorroborated by any objective evidence. Furthermore, there was no direct evidence presented at trial that defendant in fact saw the alleged threat to Young Le, or that he acted with the purpose to protect Young Le from that threat. Although we have concluded that Young Le’s testimony—if assumed to be true—could support inferences of these facts, those inferences are tenuous, and become untenable when evaluated in the context of the entire record.
When asked to describe what happened, Young Le testified that he was unaware of either Timothy Chae or his other alleged assailants until he “got hit from behind.” Young Le reiterated several times that initially he was hit “from the back” or “got hit from behind.” Only in response to direct questions from defense counsel did Young Le testify unequivocally that he saw Timothy Chae strike him with a metal baseball bat. Young Le did not explain how, if he was “hit from behind” when unaware of his assailants, he “saw” Timothy Chae strike him with a bat. Further, although Young Le testified that his other alleged assailants held bats or sticks, he was unable to describe the type or color of their weapons. Young Le also was unable to recall significant details of his fight with Ted Shin, such as who threw first punch or whether Ted Shin tackled him to the ground.
Contrary to Young Le’s testimony that his assailants were armed with bats and sticks, Jeannie Kim, Timothy Chae, Kenneth Jun and Eric Forrest all testified that they did not see any other participant in the skirmish with a weapon of any kind. In particular, Eric Forrest testified that when defendant struck Timothy Chae, Timothy Chae was “just kind of moving his hands around, just seems like he was trying to calm the situation down . . . .” Eric Forrest did not see Timothy Chae wielding a metal baseball bat, nor did he see a cadre of armed thugs assaulting Young Le. Young Le testified that he did not know where his assailants obtained their weapons when, moments before, they were unarmed and waiting to enter a karaoke bar, and defendant proferred no other evidence on the issue. Moreover, there was no evidence that any of the eight-to-15 bystanders at the scene—some of whom eagerly reported to Officer Vega their speculation that someone had been shot or stabbed—reported to police an assault against Young Le.
Young Le further testified that, “as soon as the police came, they grabbed us [Young Le and defendant] and handcuffed us.” Young Le testified that he reported to police at the scene that he had been attacked with a baseball bat, and pointed out his attackers to police as his attackers fled the scene. The police, Young Le testified, merely told him to “shut up.” Defendant proffered no evidence to corroborate that any of this occurred, nor did Young Le explain why, of all the people at the scene, police “grabbed” and “handcuffed” him and defendant. Young Le’s testimony was directly contradicted by Officer Vega, who testified police did not interview or detain either defendant or Young Le at the scene.
The only objective indication that Young Le might have been assaulted was the injury to his left elbow. Young Le claimed his elbow was “broken.” There was no medical or other corroborating evidence, however, to document the fact, extent or cause of the injury. Young Le admitted on cross-examination that, when he sought medical treatment for his injury, he told the physician that he injured his elbow when he fell on cement while wrestling. Young Le’s statement to the physician was contrary to his story that Timothy Chae struck him with a bat, but was consistent with the testimony of Kenneth Jun that Ted Shin did “some sort of wrestling move” on Young Le, and the testimony of both Jeannie Kim and Kenneth Jun that Young Le fell to the pavement during his fight with Ted Shin. Moreover, Young Le admitted he would do what he could to help defendant.
Young Le testified on redirect that he told an acupuncturist, whom he consulted prior to going to the hospital, that his elbow was injured when he was hit with a baseball bat. No evidence was admitted to corroborate that statement.
Finally, it is significant that defense counsel did not tell the jury during his opening statement that the evidence would show that defendant acted to defend Young Le. Defense counsel made his opening statement at the beginning of the case, before the prosecution called its first witness and before the trial court ruled that it would not instruct the jury on defense of another. During his opening statement, defense counsel articulated the defense theory that the perceptions and credibility of the prosecution’s witnesses were unreliable. Defense counsel never stated or implied that the evidence would show that defendant acted to protect Young Le. This was not a case that defendant tried on the theory of defense of another.
Defendant argues that the error was prejudicial because, in defendant’s first trial, the defense-of-another instruction was given, the jury asked a question about the instruction during deliberations, and the jury ultimately was unable to reach a verdict. Defendant is correct that other courts have considered similar circumstances in concluding that instructional error was prejudicial. (See, e.g., People v. Ross (2007) 155 Cal.App.4th 1033, 1055.) As the People point out, however, the testimony from defendant’s first trial is not part of the record on appeal. It appears from the trial court’s minute orders that the evidence adduced at the first trial was very different than the evidence adduced at the second trial. At the first trial, defendant called two additional witnesses—Jason Yoo and Ted Shin—who did not testify at the second trial. In addition, the prosecution presented testimony at the first trial from three witnesses—Officer Thomas Baran, defense investigator Greg Babcock, and Detective Sheryl Reynolds—who did not testify at the second trial. We have no information regarding the content of these witnesses’ testimony. We therefore cannot presume, for purposes of determining prejudice, that the evidence relevant to this issue at the first trial was substantially similar to that adduced at the second trial. Based on our review of the entire record before us, we conclude that the trial court’s error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.