Opinion Bank # O-267 (Re: F 5.32 n3 [Use Of Force In Defense Of Another: Duty To Instruct].)
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Opinion Filed Nov. 8, 2000
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
THE PEOPLE, B135723
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA032002)
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael Hoff, Judge. Reversed.
Sandra Uribe, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Susan D. Martynec and Scott Quan, Deputy Attorneys General, for Plaintiff and Respondent.
Hagop Melidonian appeals from the judgment entered following a jury trial that resulted in his conviction of mayhem (Pen. Code, § 203) and assault with a deadly weapon or by means of force likely to produce great bodily injury (former Pen. Code, § 245, subd. (a)(1)). He was sentenced to an eight-year prison term.
Appellant contends that (1) the trial court erred in excluding evidence of appellant’s state of mind; (2) the trial court erred in refusing to instruct on defense of another; and (3) the trial court did not adequately instruct the jury regarding aider and abettor liability, because the court instructed the jury with CALJIC’. No. 3.30 and failed to instruct the jury with CALJIC Nos. 3.31 and 2.02.
Anthony Bates testified that about I 1:00 p.m. on December 1, 1998, a tall man insulted Bates, tried to trip him, and poked him with his finger as Bates was walking from the bathroom to the bar at Mallory’s, a restaurant on Cahuenga Boulevard. The tall man and Bates grabbed each other by the shirt. Appellant grabbed Bates’s arm and kicked him to the floor. As appellant and the tall man held Bates down, the tall man bit off part of Bates’s ear. The tall man hit Bates with a chair while appellant was near the tall man. Appellant and the tall man stomped Bates in the head with their shoes and kicked Bates in the legs, stomach, and head.
Bates was slightly intoxicated when he was attacked. Before appellant and the tall man attacked Bates, the tall man yelled at the owner of the restaurant and smashed the owner’s glasses. Appellant was trying to calm the tall man down during that altercation. Bates was therefore surprised when appellant joined the tall man in attacking Bates.
Marilyn Wright testified that she saw appellant and another man fighting with Bates in Mallory’s. The tall man had arrived at the restaurant after appellant was there. Before the tall man and appellant fought with Bates, the tall man threw a cologne bottle at Wright.
Antranik Keymetlian, an assistant manager at Chadney’s in Burbank, testified that lnside Mallory’s the tall man pulled the owner’s tie. Appellant got between the owner and the tall man and said to the tall man, “‘Don’t do it, it’s shame.”‘
In appellant’s defense, Robair Altounian, the owner of Mallory’s, testified that, by 11:00 p.m. on December 1, Bates was drunk. Mr. Mkrtchyan, the tall man, threw a bottle of cologne at Wright. Appellant stopped Mkrtchyan from attacking her. Holding Altounian’s tie, Mkrtchyan pushed Altounian against the wall, took off Altounian’s glasses, and broke the glasses. Appellant then jumped in the middle, pushed Altounian, and saved Altounian’s life. Appellant told Mkrtchyan, “You can’t do this, it’s not right, because Robair is very well-known in the community, you can’t do this to Robair, it’s not right.”‘ Altounian then left the restaurant.
On cross-examination, Altounian testified that he has been convicted of two felonies.
Appellant testified that Mkrtchyan threw a bottle at a woman at the bar and that Mkrtchyan spoke profanities to her. Appellant got up and said, “‘Why are you saying these things to her?”‘ Mkrtchyan grabbed the owner’s glasses from his face, smashed the owner’s glasses, grabbed the owner’s tie, and pulled him down. Appellant grabbed Mkrtchyan’s arm and said, “‘What are you doing?”‘ Appellant told Mkftchyan: “‘I mean[,] this is not nice, this is a business. I mean[,] whatever you guys have, I mean[,] why don’t you talk to him, you don’t have to, you know, do these kind of things to him. This is shame.”‘ Appellant pulled Mkrtchyan’ s arm and got him to let the owner go. Mkrtchyan and the owner had a conversation about money that the owner owed to Mkrtchyan. The owner told Mkrtchyan he was going to get the money from Chadney’s in Burbank and left.
Later that night, Bates walked up to Mkrtchyan, said that he was Tony Montana, and took a boxing stance. Bates punched Mkrtchyan. Mkrtchyan then hit Bates in the head with a metal chair. Mkrtchyan and Bates fought each other. Appellant tried to break up the fight by pushing Mkrtchyan away and pulling Bates away. Appellant never held Bates’s arm or kicked Bates. After Bates and Mkrtchyan fought, appellant went to Cheney’s in Burbank with Mkrtchyan so Mkrtchyan would not harm anyone else. Appellant was afraid for the safety of Altounian, the owner.
In rebuttal, Dolores Taylor, a seni or investigator in the district attornev’s office, testified that Altounian told her that Keymetlian had called him on December 1 and said that appellant and Mkrtchyan were in the restaurant in Burbank and that they were asking for the money Altounian owed them. Altounian said that appellant stated he was trying t make it easy for him. Altounian stated that he told Mkrtchyan he would go home and get the money.
1. Instruction Regarding Defense of Another
Defense counsel requested that the jury be instructed with CALJIC No. 5.32 regarding the use of force in defense of another. CALJIC No. 5.32 reads: “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 _________________ 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 trial court refused to instruct the jury regarding defense of another, stating that “it’s absolutely unclear who the proposed recipient or the beneficiary of the actions of the defendant would have been” and that there was no evidence to support the instruction. In defense counsel’s opening statement, defense counsel had asserted that the evidence would show appellant defended people in the restaurant and that he was not an aggressor. In closing argument, defense counsel asserted that appellant simply tried to break up the fight between Bates and Mkrtchyan.
If there is substantial evidence to support on which the defendant is relying, the trial court has a duty to instruct on that defense. (People v. Gonzales (1999) 74 Cal.App.4th 382, 389 (Gonzales); see People v. Breverman (1998) 19 Cal.4th 142, 157; People v. Elize (1999) 71 Cal.App.4th 605, 610-615 (Elize).) In determining whether there is substantial evidence to support instruction on a defense, the trial court should not consider the credibility of witnesses. (See id. at p. 615.)
It is lawful to apply reasonable force necessary to prevent the imminent infliction of bodily injury on another. (See People v. Cain (I 995) 10 Call.4th 1, 73.) Appellant’s testimony that he pushed Mkrtchyan away from Bates and pulled Bates away from Mkrtchyan during a fight between Bates and Mkrtchyan inside Mallory’s constitutessubstantial evidence that appellant acted in defense of another. (See ibid.; People v. King (1978) 22 Cal.3d 12, 16-19, 26-27; People v. Wittig (1984) 158 Cal.App.3d 124, 127- 31,135.)
During deliberations, the jury requested that Bates’s entire testimony be read back. We need not determine if the applicable standard of prejudice is whether the error in failing to instruct regarding defense of another was harmless beyond a reasonable doubt or the less stringent standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836. In view of the jury’s request that Bates’s testimony be read back, the sharply conflicting testimony of Bates and appellant, and the evidence that appellant intervened to defend Wright and Altounian from attacks by Mkrtchyan, it is reasonably probable that appellant would have obtained a more favorable result if the jury had been instructed regarding defense of another. (See Gonzales, supra, 74 Cal.App.4th at p.391; Elize, supra, 71 Cal.App.4th at p.616.)
2. Exclusion of Evidence of Appellant’s State of Mind
For the guidance of the trial court on remand, we discuss appellant’s remaining contentions. On direct examination of Altounian, defense counsel asked how appellant interfered when Mkrtchyan threw a bottle of cologne at Wright. Altounian testified: “He says, ‘Not right what you are doing.”‘ The prosecutor objected and moved to strike without stating any grounds, and the trial court sustained the objection and struck Altounian’s response without stating any reasons. The trial court erred in striking that testimony, since it was not hearsay and was circumstantial evidence of appellant’s state of mind during the offenses against Bates later that evening. (See People v. Hill (1992) 3 Cal.4th 959, 987-988 (Hill; People v. Ortiz (1995) 38 Cal.App.4th 377, 389-390 (Ortiz).)
When defense counsel asked Altounian on direct examination what happened after Mkrtchyan removed Altounian’s glasses from his face and broke them, Altountan testified: “Then Hagop jumped into the middle and saved my life, actually, and pushed me — make me [sic] in the middle and tell [sic] him, ‘You can’t do this to the guy.”‘ The prosecutor objected to testimony regarding, anything appellant said, and the prosecutor moved to strike that testimony without stating any grounds. The trial court struck the testimony regarding appellant’s comment to Mkrtchyan, stating: “Ladies and gentlemen, disregard that. There’s some rules of evidence that we have to abide by.” ” The trial court erred in striking that testimony, since it also was not hearsay and was circumstantial evidence of appellant’s state of mind during the offenses against Bates later that evening. (See Hill, supra, 3 Cal.4th at pp. 987-988; Ortiz, supra, 38 Cal.App.4th at pp. 389-390.)
Defense counsel asked appellant on direct examination why appellant went to Chadney’s in Burbank with Mkrtchyan after the fight with Bates. Appellant testified: “[H]e was telling me that he’s gonna [sic] go there and do more damage.” The prosecutor objected and moved to strike on grounds that the testimony was hearsay and not responsive. The trial court sustained the objection. When defense counsel asked appellant if Mkrtchyan threatened to do any more harm, appellant replied, “Yes.” The prosecutor objected and moved to strike on grounds that the evidence was hearsay. The trial court sustained the objection and ordered the testimony stricken.
On redirect examination, defense counsel asked appellant why he went to Chadney’s in Burbank after leaving Mallory’s. Appellant testified, “Because this man was very, very vicious. He wanted to continue go there [sic] and hurt — ” The prosecutor moved to strike the testimony as nonresponsive, and the trial court ruled, “Sustained.” On further redirect examination, defense counsel asked appellant how he knew where Altounian “was supposed to go” after Altounian left Mallory’s. The prosecutor objected on the grounds of lack of foundation. The trial court sustained the objection on different grounds, stating: “It’s hearsay and things like that. It’s really not important.”
The trial court erred in striking on hearsay grounds appellant’s testimony that Mkrtchyan told appellant that he was going to Chadney’s in Burbank to “do more damage” and that Mkrtchyan threatened to do more harm. The testimony was not introduced to prove the truth of the matter asserted. The purpose of the testimony was to prove that appellant left Mallory’s and went to Chadney’s in Burbank after the crimes against Bates occurred because appellant believed Mkrtchyan would assault someone else at the Burbank restaurant and appellant wanted to prevent that from occurring. If that theory were believed, it would rebut an inference that appellant left Mallory’s with Mkrtchyan before the police arrived because appellant had a consciousness of guilt. The evidence was admissible as circumstantial evidence of appellant’s
state of mind (See Hill, supra, 3 Cal.4th at pp. 987-988; Ortiz, supra, 38 Cal.App.4th at pp. 389-390.) Similarly, the question how appellant knew where Altounian “was supposed to go” was not asked to elicit hearsay but rather to elicit evidence of appellant’s belief that Altounian was going to Chadney’s in Burbank. Thus, that testimony also would have been admissible as circumstantial evidence of appellant’s state of mind. (See Hill, supra, 3 Cal.4th at pp. 987-988; Ortiz, supra, 38 Cal.App.4th at pp. 389-390.) Insofar as the trial court may have “[s]ustained” on hearsay grounds the prosecutor’s motion to strike appellant’s testimony that Mkrtchyan wanted to go to Chadney’s in Burbank to hurt someone, that ruling was error for the same reason.
3. Instruction Regarding Aiding and Abetting
The jury was instructed with CALJIC No. 3.01 regarding the definition of aiding and abetting. That instruction explained that aiding and abetting requires knowledge of the perpetrator’s unlawful purpose and an “intent or purpose of committing or encouraging or facilitating the commission of the crime.” The jury was instructed regarding the elements of mayhem, simple assault, and assault with a deadly weapon or by means of force likely to produce great bodily injury. The jury was also instructed with CALJIC No. 3.30 as follows: “In the crimes charged in Counts I and 2, there must exist a union or joint operation of act or conduct and general criminal intent. General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful.” The jury was also instructed with CALJIC No. 1.0 I to consider the instructions as a whole and with CALJIC No.2.01 regarding the sufficiency of circumstantial evidence in general.
This case was tried on the theory that appellant aided and abetted mayhem by Mkrtchyan and that appellant was a direct perpetrator as well as an aider and abettor of assault with a deadly weapon and by means of force likely to produce great bodily injury.
The trial court properly instructed the jury regarding aiding and abetting. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123 (Mendoza).) Since mayhem and assault with a deadly weapon or by means of force likely to produce great bodily injury) are general intent crimes (People v. Colantuono (1994) 7 Cal.4th 206, 214-219 [aggravated assault]; see People v. Sekona (1994) 27 Cal.App.4th 443, 453 [mayhem]), the trial court properly instructed the jury with CALJIC No.3.30 as to both offenses. (See People v. Daniels (1975) 14 Cal.3d 857, 862-863.) The testimony of Wright and Keymetlian was circumstantial evidence that appellant did not assault Bates or aid and abet the mayhem and aggravated assault committed against Bates. Since the jury was instructed with CALJIC No. 3.01 and appellant’s mental state was not the only element of the case resting on circumstantial evidence, the trial court did not err in failing to instruct the jury sua sponte with CALJIC No. 3.31 regarding concurrence of act and specific intent and CALJIC No. 2.02 regarding the sufficiency of circumstantial evidence to prove specific intent or a mental state. (See People v. Marshall (1996) 13 Cal.4th 799, 849 [use of CALJIC No. 2.01 rather than CALJIC No.2.02 is proper unless only element of offense that rests substantially or entirely on circumstantial evidence is specific intent or mental state]; cf Mendoza, supra 18 Cal.4th at p.1131 [intent requirement of aiding and abetting is a specific intent, and knowledge element of aiding and abetting is closely akin to specific intent].)
The judgment is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Boren , P.J.