People v. Kennedy CA1/2

Filed 12/17/14 P. v. Kennedy CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A137227
v.
MARK KENNEDY, (San Francisco County
Super. Ct. No. 10023979)
Defendant and Appellant.
A jury found defendant Mark Kennedy guilty of assaulting, battering, and falsely
imprisoning Lester Chow with great bodily injury enhancements after he discovered
Chow and Emmalyn Munjar—defendant’s former or then current girlfriend, depending
on whether you ask him or her—in bed together. On appeal, defendant challenges his
convictions on the following three grounds: (1) the trial court erred in failing to instruct
the jury on the defense of others; (2) the prosecutor committed misconduct by
introducing perjured testimony by Munjar; and (3) there was insufficient evidence that
Chow suffered great bodily injury. Defendant’s arguments lack merit. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
It is undisputed that the charges against defendant stemmed from an incident in the
early morning hours of August 11, 2010, when he went to an apartment where Munjar
lived, discovered her in bed with Chow, and engaged in a physical altercation with Chow
that left Chow injured. What actually happened leading up to and during the assault,
however, was the subject of conflicting accounts by Munjar, who told differing versions
1
to the investigating police officers, at the preliminary hearing, and at two trials.1 The
inconsistencies in her stories are relevant here, so we detail her testimony at the
preliminary hearing and the first trial, and the pertinent evidence at the second trial.
Munjar’s Testimony at the Preliminary Hearing
Munjar and defendant began a relationship in 2006 and were living together until
April 2010. Munjar ended their relationship on May 8, 2010, and defendant was not very
happy about it. She told him numerous times she did not want to see him again, but he
continued to pursue a relationship. She did not tell him when she became involved with
Chow.
In August 2010, Munjar lived in an apartment at 501 Masonic Avenue. Defendant
had a key to her apartment, which she had given him in June, and he had been to her
apartment three times.
On August 10, Munjar visited defendant at his home. Later that evening, they
were exchanging texts, and he asked how she was doing. According to Munjar, “I said,
it’s not very good, because my niece just died. And I’m alone. And mostly he will
comfort me when I—and I probably texted him that I will see you, but not this moment.”
Around 1:50 a.m. the following morning, August 11, Munjar was asleep in bed
with Chow when she was awakened by arguing and fighting between defendant and
Chow. The light was off so she could not really see defendant. Defendant jumped on top
of her and Chow, and began punching Chow while yelling, “[W]hat are you doing to my
girlfriend?” Chow and Munjar both ended up on the floor, and defendant started shaking
Munjar by her nightgown, asking her why she was with Chow. She pushed him and tried
to get away, while telling him, “You are not supposed to be here.” At some point during
the incident, Munjar’s nightgown came off, although she was unaware of when or how.
1
As will be detailed below, the first trial of defendant resulted in acquittals on four
charges and a mistrial on four others. The convictions that are the subject of this appeal
resulted from the retrial on the four remaining charges.
2
Munjar heard what sounded like footsteps and then the police were outside,
shouting for the door to be opened. Munjar last saw defendant at the bedroom window
and suspected he probably jumped out.
Munjar suffered a cut on her lip, which she believed occurred when defendant
accidently hit her during his fight with Chow. She testified that she did not remember
defendant applying any pressure to her neck, although a photo taken after the incident
reflected an injury on the right side of her neck.
On cross-examination, Munjar testified that she remembered being questioned by
the police after the incident, but that she was given medication that affected her memory
and she did not understand all of the questions she was asked. Throughout the entire
interview, she did not really know what she was saying. Munjar remembered telling the
officer it was dark and she could not see defendant hitting Chow. She also told him that
during the fight, she heard defendant yell out, “cheaters.”
Munjar also testified on cross-examination that when she was texting with
defendant the night before the incident, she told him she was feeling sad and wanted to be
alone. Chow was already there, and she did not expect defendant to come over.
Charges Against Defendant
On February 9, 2011, the San Francisco District Attorney filed an information
charging defendant with the following eight offenses: (1) attempted murder of Chow
(Pen. Code, § 664/187, subd. (a)2); (2) assault on Chow with force likely to cause great
bodily injury (§ 245, subd. (a)(1)); (3) battery of Chow with serious bodily injury (§ 243,
subd. (d)); (4) false imprisonment of Chow (§ 236); (5) making criminal threats against
Chow (§ 422); (6) domestic violence against Munjar (§ 273.5, subd. (a)); (7) assault on
Munjar with force likely to cause great bodily injury (§ 245, subd. (a)(1)); and (8) false
imprisonment of Munjar (§ 236). The information also alleged a number of
enhancements, including, as pertinent here, great bodily injury enhancements on the first
four counts.
2
All statutory references are to the Penal Code.
3
Munjar’s Testimony at the First Trial
Evidence in defendant’s first trial commenced on January 6, 2012. Munjar
testified as follows:
Munjar and defendant started dating in 2006, and she ended their relationship on
May 8, 2010. Her relationship with Chow began in July 2010, and she and her children
moved into the Masonic Avenue apartment that same month. At that point, Munjar had a
working relationship with defendant, but that was it. According to Munjar, she told
defendant in “May and June and every time he call[ed]” that she was seeing someone
else, although she did not identify Chow by name. She testified that prior to the incident,
defendant had never been to her apartment, she had not told him she was living there, and
she had “no idea” how he knew she lived there. She claimed she had not given him a key
to the apartment.
On August 10, Munjar went to a house in Oakland that she was renting and where
defendant had moved after the two split up. She brought rent money and had sex with
defendant, although they were not involved in a relationship. She returned to the
Masonic Avenue apartment that afternoon, around the same time that she learned her
niece had died in a motorcycle accident.
Munjar went to bed late that night, and was awakened by a loud noise. She was
unable to move her body because defendant was sitting on top of her and Chow as they
lay next to each other on the bed. Defendant had his hand around her neck, making it
hard to breathe or speak. She heard defendant saying, “You shut up motherfucker. I’ll
kill you.” It was “really, really dark” so she could only see defendant’s shadow. She
could hear him hitting Chow, punching him on the left side of his head and face “a lot” of
times, “[m]ore than ten.” Defendant also punched Munjar “[p]robably four times,”
hitting her on her left upper lip and the left side of her neck. During the assault, Munjar
was kicking her legs and trying to push defendant off of her.
Defendant finally stopped hitting Chow because he was no longer moving,
dropping him on the floor and turning his attention to Munjar. He grabbed her off the
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bed by the throat and started hitting her chest, repeatedly yelling, “I’ll kill you. I hate
you.”
Chow started crawling on the floor, and defendant jumped up and grabbed him by
his neck. Munjar stumbled to her feet, attempting to run away and yelling, “help, help,
help.” Defendant grabbed her by her neck, threatening to kill her if she did not shut up.
At some point, Munjar began yelling out the names of her children, and defendant
released her and resumed his attack on Chow, this time kicking him while he was on the
floor.
Munjar heard sirens and the sound of footsteps approaching. Chow was able to
get to the door and open it, letting the police in. Munjar saw defendant standing in the
bedroom, and then he was gone. According to Munjar, she was naked when the police
arrived, and a female police officer helped her put on a dress. She had been wearing a
nightgown when first attacked by defendant, and had no idea when or how it came off.
Following the assault, Munjar’s mouth was full of blood and her hands were
covered in blood. She also had abrasions on her neck, chest, and lower right leg. She
and Chow were transported to the hospital, where she received stitches in her left, upper
lip. She also needed a throat x-ray because she was unable to talk. Munjar testified that
at the time of trial, her voice was still not the same as before and she had difficulty
swallowing.
Between the August 2010 incident and the January 2011 preliminary hearing,
Munjar accepted “a lot”—“more than 20”—collect calls from defendant. He also sent
her letters. In the calls and letters, defendant asked that she and Chow not testify against
him.
On cross-examination, Munjar acknowledged that in April 2009, she rented a
house in Oakland to use for a marijuana dispensary business she owned. According to
Munjar, she told her landlord, Lucy Chiang, that she was renting the house for herself,
and that she might transfer “stuff”—medical marijuana—from the clinic to the house.
She denied telling Chiang that she would be moving into the house with her two
daughters because she wanted to get away from the marijuana business.
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Munjar also acknowledged that defendant worked and lived at the Oakland house.
According to Munjar, she only went to the Oakland house when she needed to pay the
rent. She admitted having had sex with defendant once at the house, claiming it was the
only way defendant would let her leave. She denied having an ongoing sexual
relationship with defendant up until his arrest, testifying she had no relationship with him
after May 8.
Munjar admitted that in December 2010 (four months after the incident), she met
with a police officer—Inspector Antonio Flores, whose testimony is detailed below—
because she wanted to correct some of the information she had given him when he
interviewed her right after the assault. According to Munjar, she had given him false
information during the prior interview because Chow was in the next room and she did
not want him to hear the truth, that she had had sex with defendant the day before the
incident.
Munjar also claimed she lied at the preliminary hearing when she testified that she
was awakened by noise and shouting. She acknowledged that while she testified at trial
that she heard defendant say, “[S]hut up, mother fucker. I will kill you,” she had testified
at the preliminary hearing that she heard him say, “[W]hat are you doing to my
girlfriend?” She also admitted she lied when she previously testified she had given
defendant a key.
Munjar denied that on the evening before the incident she responded to any texts
from defendant or that she texted him her niece had died, and that her daughter ever
spoke to defendant when he called from jail. Records produced by defense counsel
contradicted her testimony, however. Finally, Munjar acknowledged telling Inspector
Flores she could not remember if she had sex with Chow the evening of the incident
because she was too intoxicated, but she claimed that by the time of trial, she
remembered they did not have sex that night.
Jury Verdict in the First Trial and the Amended Information
The jury found defendant not guilty of attempted murder of Chow, making a
criminal threat, domestic violence against Munjar, and assault on Munjar with force
6
likely to produce great bodily injury. It was unable to reach a verdict on the remaining
counts, however, and the court declared a mistrial on those four charges.
On May 16, 2012, an amended information charged defendant with the four
remaining counts, namely, assault on Chow with force likely to cause great bodily injury,
battery on Chow with serious bodily injury, false imprisonment of Chow, and false
imprisonment of Munjar. It again alleged a great bodily injury enhancement on the first
three counts, among other special allegations.
Evidence at the Second Trial
Defendant’s second trial commenced on May 16, 2012. Prior to the start of trial,
defense counsel moved to dismiss the complaint based on Munjar’s alleged perjury
during the first trial. Although the court denied the motion, the prosecutor acknowledged
his duty to point out inconsistencies in Munjar’s testimony.
The pertinent evidence at the second trial was as follows, beginning with Munjar’s
testimony:
Munjar dated defendant from the beginning of 2006 until April 18, 2010, during
which time they lived together. After she broke up with him on April 18, she continued
to see him, mostly because they worked together in her retail marijuana dispensary
business. She broke up with him for the final time in May. Around that time, she
arranged for him to move into a house in Oakland that she rented for use in her marijuana
business.
Although it was unclear when Munjar’s romantic relationship with Chow began,
in the first week of July 2010, Munjar and her two children moved into Chow’s
apartment at 501 Masonic Avenue, although Munjar claimed Chow did not live there
fulltime. According to Munjar, she had not told defendant where she lived, he had never
been to her apartment, and she had not given him a key. She admitted having testified at
the preliminary hearing that she had given defendant a key to the apartment, but she
claimed she had testified falsely because she was frightened.
On August 10, Munjar went over to the Oakland house to drop off the rent, and
she and defendant had sex. Although she initially denied having had any contact with
7
defendant after April 18, 2010, she admitted having sex with him on that one occasion.
When further questioned, she said she was unsure how many times she had sex with him
between April and August 2010.
Munjar left defendant’s house around 5:00 p.m., arriving at her apartment about a
half an hour later. He texted her after she left, but she testified at trial she did not
remember if she texted him back. When the prosecutor showed her a string of texts,
Munjar recalled she had texted defendant that her niece had died in a motorcycle
accident.
Around 7:00 p.m. that evening, Munjar and Chow drank some alcoholic
beverages, smoked marijuana, and took sleeping pills. They went to sleep around 9:00
p.m., Munjar wearing a nightgown and Chow wearing bedclothes.
At some point between 1:30 a.m. and 1:58 a.m. the following morning, Munjar
awoke in a darkened bedroom to discover defendant “very heavy right on top of [her]
stomach,” while also pinning Chow down on the bed next to her. He had his left hand
around Munjar’s neck, choking her and making it very hard to breathe, while he punched
Chow with his right fist. Defendant was telling Chow, “I will kill you, motherfucker.
Shut up, motherfucker. I will kill you.” Munjar tried to talk, but defendant responded by
choking her harder.
Munjar testified that at no time during the assault did she see Chow and defendant
involved in a fistfight. When asked by the prosecutor if she recalled testifying during the
preliminary hearing that when she woke up, she saw defendant and Chow engaged in a
fight, Munjar acknowledged having so testified, but claimed it was not true. She also
testified that she “did not really hear” defendant say, “[W]hat are you doing to my
girlfriend?”, as she had testified at the preliminary hearing. When asked why she
testified falsely, Munjar responded that she had been frightened defendant would be
punished.
According to Munjar, she passed out at some point, and when she came to,
defendant was still choking her. She began calling out her daughters’ names and begging
8
defendant, “Don’t kill us. Don’t kill us.” At the sound of her children’s names,
defendant stopped choking her.
Defendant finally stood up and dragged Munjar off the bed by the front of her
nightgown. With his hand around her neck, he threw her against the wall and lifted her
off the ground. He was yelling at her, “Why you fucking him? Why did you fuck him?”
Munjar was flailing her arms and legs but was unable to speak. At some point between
defendant pulling her off the bed and throwing her up against the wall, Munjar’s
nightgown came off.
Chow, who had been on the floor not moving, started crawling, so defendant
dropped Munjar, turned around, and started kicking Chow in his stomach and face.
Munjar screamed, “Don’t kill him. Don’t kill us. Don’t kill us,” while banging the floor.
Defendant turned his attention to Munjar again, pulling her by her hair and hitting
her head into a coffee table three or four times. Munjar finally heard a siren and then
footsteps nearing the apartment. Chow crawled to the apartment door and opened it,
letting the police in. Munjar had remained in the bedroom and saw defendant jump out
the window. The next thing she knew, she was at the hospital, where she stayed for the
day.
According to Munjar, she suffered a cut on her lip and bruises on both sides of her
neck and chest, and had difficulty eating for a while.
At trial, the prosecutor played a sampling of recordings of telephone calls—56
calls totaling 548 minutes—Munjar received from defendant while he was incarcerated
after the incident. In the calls, defendant made incriminating statements about the attack,
and also asked Munjar not to testify against him and to change the story of what
happened to portray it as mutual combat. She also let him speak to her children, because
they had lived together for three and a half years and he cared about her daughters.
At the end of Munjar’s direct examination, the proceeding was paused. Outside
the presence of the jury, the court asked Munjar if she was testifying truthfully in light of
the inconsistencies with her prior testimony. After Munjar took the Fifth, the prosecutor
9
granted her immunity from prosecution for perjury committed at the preliminary hearing
and the first trial, later extending it to false statements she made to the police.
Munjar was then subjected to a scathing cross-examination by defendant’s
counsel, during which she admitted telling numerous lies to the police and at the
preliminary hearing and first trial. She claimed she was just doing what defendant
wanted her to do, stating, “Whatever Mark wanted me to say, that’s what I did.”
Defense counsel solicited the following inconsistencies in Munjar’s testimony:
At the preliminary hearing, Munjar testified that the first thing she noticed was
noise and shouting, followed by fighting, but at the second trial she testified she awoke to
find defendant on top of her, choking her.
Munjar previously testified that defendant said, “[W]hat are you doing to my
girlfriend?” and that he and Chow were both fighting, whereas this time, she testified that
defendant yelled, “I’ll kill you. I hate you,” and that it was not mutual combat between
defendant and Chow.
Munjar testified at the preliminary hearing that defendant had been to her house
two or three times, but this time she testified he had never been to the apartment.
Munjar acknowledged her prior testimony that her lip was cut when defendant was
fighting with Chow and he accidentally hit her. She claimed it was a lie because
defendant had asked her to say it was mutual combat.
At the preliminary hearing and the first trial, Munjar testified that on the night
before the incident, defendant texted her but she never texted him back. That testimony
was then contradicted by records introduced during her direct examination. When asked
if it was now her testimony that she did in fact text him back, Munjar responded, “I took
a sleeping pill that night. I was drunk, too. So I really don’t know if I text him or not.”
At the first trial, Munjar testified her daughter never talked to defendant while he
was in jail, but a recording had established otherwise. In this trial, Munjar changed her
testimony and acknowledged the conversation.
Munjar acknowledged telling a police officer who responded to the scene that
defendant was yelling, “[W]hat are you doing to my girlfriend?” when he entered the
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bedroom. She admitted lying to the officer, however, claiming he had actually said,
“Motherfucker, shut up, motherfucker or I’ll kill you.”
Munjar did not recall telling Inspector Antonio Flores shortly after the incident
that defendant did not assault her, that she did not see how Chow was injured because the
room was dark, that she had not blacked out, and that she had not had sex with defendant
the day before. She admitted telling Inspector Flores that defendant called her and Chow
cheaters and that she had had no contact with defendant since April 18, 2010. She did
not remember telling him that she did not hear defendant say he was going to kill her or
Chow.
Munjar admitted telling Inspector Flores in December 2010 that she had lied about
having given defendant a key to her apartment because she did not want him to get in
trouble for burglary. She had also lied to him about seeing defendant and having sex
with him on August 10.
Munjar acknowledged that her testimony on direct examination was the first time
she had told anyone that defendant lifted her up and held her against the wall with her
feet off the ground.
Munjar testified that on August 9, she sent defendant a text telling him to fuck off.
Defense counsel contradicted her with a record showing that on the night of August 9,
she texted him, “Fuck you tomorrow.” Munjar acknowledged that the next day, she went
to defendant’s house and had sex with him.
Munjar acknowledged she had been renting a house in Oakland that she used for a
marijuana grow. According to Munjar, she told the landlord she worked in the medical
marijuana industry and was looking for a place to have her patient members grow, and
“she basically agreed.” Defendant then moved into the house and started to tend the
grow, delivering items, cleaning up, and so forth. When asked if Chiang agreed the
house could be used for a marijuana grow, Munjar responded, “She knows what I do.”
Munjar did not recall testifying at the preliminary hearing that defendant had not
put pressure on her neck.
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Munjar acknowledged she had texted defendant that her niece had died and that
she believed he would want to come over and comfort her.
When asked why Munjar was purportedly telling the truth at that trial when she
had not before, Munjar responded, “My mind is more clearer now. No one is telling me
this is what you need to do, this is what you have to do. I am more stronger now to speak
the truth.”
Chow was the second witness to testify. According to him, he initially met
Munjar at a marijuana club in 2008 and got to know her in December 2009. Her
marijuana club was experiencing financial difficulties, and he loaned her $5,000. In
December 2009, he went with her to a house in Oakland that she was interested in
renting. In June 2010, their relationship turned sexual.
Chow owned an apartment building at 501 Masonic Avenue and had lived in one
of the units for four to five years. Munjar moved in with him in mid-July 2010, about a
month prior to the incident. On the evening of August 10, they were home, both
depressed over deaths in their families. He consumed two alcoholic drinks, took a
sleeping pill and medication for Parkinson’s disease, and smoked marijuana. They had
sex, and he went to sleep around 12:30 a.m. the following morning. He was later
awakened by a noise, and he looked up to see defendant in the doorway of his bedroom.
Before he could get up, defendant was pinning him down by his chest. Chow asked,
“What are you doing here?”, and defendant responded, “Shut up, motherfucker. I’ll kill
you.” Defendant began punching him in the face and choking him. He recalled being
punched “six, seven, eight” times and choked “three or four times.” Chow testified that
he lost consciousness, although he told the paramedic and hospital personnel that he had
not lost consciousness and testified at the preliminary hearing that he was “almost semi
unconscious.”
Defendant also had Munjar pinned on the bed next to him, with his left hand on
her neck. She was screaming, “Stop it, stop it.” The next thing he knew, he was on the
floor. Defendant was still on the bed with his hand on Munjar’s neck, but he then turned
his attention to Chow, who was crawling on the ground. Defendant kicked Chow
12
approximately 20 times in his chest, stomach, and legs, “all over my body.” According
to Chow, while he was on the bed, he was wearing a t-shirt and boxer shorts, but when he
came to on the floor, he was not wearing any clothes.
At some point, Chow heard sirens and someone knocking on the door, so he
crawled over and opened it, letting the police in. Chow testified that defendant was no
longer in the apartment when the police came in, but he did not see where he had gone.
He acknowledged having testified in the first trial that he saw defendant leave through the
window, but he did not know why he gave that testimony.
Paramedics arrived shortly after, and Chow was taken to the hospital, where he
stayed until late morning. According to Chow, he suffered throat problems that made it
hard to talk and breathe, stitches on both lips and his left eyebrow, and his left eye was
swollen shut. He experienced problems with his left eye, including blurriness, that
persisted at the time of trial. He also had bruising on his right bicep and chest, and
abrasions on his nose and right knee and above and below his right eye.
Peter Ballotta, who lived directly below Chow’s apartment, testified that around
1:30 a.m. on August 11, he was awakened by someone ringing his doorbell. Shortly
after, he heard what sounded like someone hop the back fence, walk through the
backyard, and enter the building through the back door. Ten minutes later, he heard an
argument in the apartment above him. At first, he heard a man and woman yelling at
each other, but then it sounded like a fight had started and a woman was “crying,
screaming.” At some point, he heard a male voice saying, “Are you fucking him?” The
fighting escalated and “it sounded like furniture was moving or something had fallen over
or there was people banging on things,” so he called the property manager and then 911.
Multiple officers responded. Once in the building, they could hear a man and a
woman yelling and sounding upset. As they got closer to Chow’s apartment, they could
hear something moving inside and then “a loud commotion inside, fighting, screaming”
and “a loud smacking sound” like someone being struck. They knocked a few times, and
when no one responded, they tried to force entry, and eventually Chow opened the door.
He was naked and covered in blood, with his face “split open” and lots of swelling,
13
including his left eye that was swollen shut. Munjar was standing behind him, also
covered in blood. Multiple officers testified that Munjar was clothed when the door was
opened.
Munjar and Chow were out of breath and had a difficult time explaining what had
happened. According to one of the officers, Munjar said that defendant had attacked
them. Chow told the officers that they were in bed when they were awakened by
defendant walking into the bedroom. He approached them, climbed on the bed, and
alternated between punching him and Munjar.
Two other officers who responded to the scene were pulling up outside the
apartment building when they saw defendant run out, cross the street, and get into a van.
They detained him, observing that he had cuts on his hands, his pants were torn, and he
was disheveled. Defendant was still there when Chow was wheeled out of the apartment
building and into an ambulance, and defendant said, “Do you know what it’s like finding
out your girlfriend of four years is cheating on you after you had sex with her?”
Defendant was arrested and transported to the police station.
According to forensic nurse practitioner Diana Emerson, who testified as an expert
for the prosecution, when Chow first arrived at the hospital, he was treated for respiratory
distress and given Albuterol and oxygen. Emerson acknowledged that Chow’s
respiratory problems could have been due to asthma. He also suffered multiple injuries
to his face, neck, and body. His neck was discolored—almost black—all the way down
to his chest wall, and was so swollen his larynx and trachea were not visible. She
described Chow’s neck injuries as “a significant strangulation injury.”
Chow also suffered a left orbital blowout fracture, meaning the lower and side
parts of the eye socket were shattered. There were bone fragments in the muscle, and
muscle trapped within the bone fragments. His left eye was swollen shut. He received
stitches in his left eyebrow, as well as his upper lip. His nose was broken, and he had
multiple abrasions and swelling elsewhere on his face, elbow, knees, and hands. He also
had red marks on his back that were from ruptured capillaries, consistent with pressure
having been applied to Chow’s chest.
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The emergency room doctors recommended Chow be admitted because there was
a risk he could suffer airway compromise resulting in death as a result of his
strangulation injuries, and left eye blindness due to the orbital fracture, but he left the
hospital against their advice after about seven hours.
Meanwhile, defendant had been transported to the police station. As an officer
was conducting a booking search, defendant spontaneously said he was sorry he had lost
it and he had been in a fistfight because his girlfriend was cheating on him. He also said,
“My girlfriend was fucking that guy, and she’s only fucking him because he has money.”
Later that same morning, when officers were in the process of taking photographs
of defendant and samples of the blood on his body, defendant stated, “Why are you going
to do that? I already told them I was guilty.” He went on to say that his girlfriend was
cheating on him and that the boyfriend charged him and he beat him up, repeating it
several times and “just rambl[ing] on about it.”
Inspector Flores, who was in charge of the investigation, also testified. According
to the inspector, he interviewed Munjar and Chow at the hospital on the morning of the
assault. According to the inspector, Chow had “multiple bruises on his neck and on his
face and on his hands” and appeared to be in “[a] lot of pain.” He also had a mask on and
was having a hard time breathing, but they were able to communicate. Chow told him
that he and Munjar, who were in a relationship, were in bed when all of a sudden
defendant was choking, punching, and kicking him, and he saw defendant hit Munjar
twice on the chin, and grab her by the throat and throw her on the floor.
That same day, Inspector Flores went to the police station where defendant was
being held. He read defendant his Miranda3 rights, and defendant declined to talk to him.
As he was taking photographs of defendant, defendant, who was “emotional,” “crying,”
“upset,” spontaneously made the following statement:
“What happened was, she met that dude and that dude was putting all his money in
her shop. And they were like . . . they were just . . . he was just putting all this money in
3
Miranda v. Arizona (1966) 394 U.S. 436.
15
her shop because her shop was going under. And then she . . . it was like she never
wanted me to work. She wanted me to work inside the place. And she didn’t want me to
go nowhere. So I was working hard. And then by the time she does that, she tells me
you know ‘you need to leave’ and all that kind of stuff after . . . because this dude’s
telling her to tell him to leave. And then behind his back she’s still coming to see me,
and we’re seeing each other and stuff, but I didn’t know they were messing around. And
then she gave me the keys to the house and then I come over there, I buzz in first, and
when I buzz in first, then I went upstairs . . . somebody buzzing me in. So I go upstairs
and then the door was unlocked . . . so I coming right in. I knocked first and the door
comes unlocked. And then I come right in, and when I turn the lights on, then they in bed
fucking. Or just got finished fucking and then he gets up hella quick and then he starts
talking shit. And then I say, ‘What the fuck!’ And he’s like talking shit, ‘Fuck you . . .
lalalala!’ And then I just said, ‘fuck it,’ and just hit him. And I hit him like four or five
times. And I was wrong. I was wrong. I don’t have to . . . I’m not going to sit here and
wait and get a lawyer and all that other . . . I was wrong for what I did. I should have
been a bigger man and walked away. But it was so hard, and my emotions were getting
to me. I smoked some herb, and I was drinking before I got there. And then after that, I
was just feeling . . . thinking we would be all cool when I come in the house. And I see
this, it’s not wrong . . . it’s not right. And we have a groove together, and it’s like, she’s
spending more time with me over here doing all this. And then she says she just needs
space. Then she’s giving me mixed messages. And then she’s telling me to come over,
and then she’s coming over here, and then we’re all good. Then all of a sudden from
there, this happens. I mean what would you do if you saw your wife screwing some
dude. Or, just got done screwing some dude, and they laying in bed together and he gets
up starting to talk crap to you, and you all start fighting. Yeah, he’s going to probably
say, ‘Oh, umm, I didn’t do anything,’ or whatever. They gonna lie their way out. I’m not
gonna lie my way out. I’m gonna tell the truth. I’m gonna tell the truth about everything,
because I ain’t got no reason to lie.
16
“. . . But I did wrong. I don’t care if they said he didn’t do anything . . . everything
cool. I did wrong. And if I have to go to jail for it and face my punishment then I have
to do it, because why? I did wrong on my part. I let . . . as they say in the bible . . . I let
the devil win. I did. Because you know, I could have been the bigger man and walk
away, but it was so hard. I have an anger issue. And I feel like I did wrong. I did
wrong. . . . After I did what I did. After I let, lose my cool. I lost my cool. And I’m
sorry and I’m wrong. And if you guys want to prosecute me, then you guys gotta do
what you all gotta do. That’s the law. And I don’t disrespect the law, but that’s the law
and what I did is wrong according to the law.”
Two days after the incident, Inspector Flores reinterviewed Chow and Munjar at
the Masonic Avenue apartment. During that interview, Munjar told him the following:
She lived at 501 Masonic Avenue with her children, and Chow would sometimes spend
the night. Her relationship with defendant was over by that time. The night of the
incident, she and Chow were in bed and were awakened by defendant climbing on top of
them. Defendant’s left hand was on her neck but he was not squeezing it, and he was
holding Chow by the neck with his right hand. She did not see defendant hit Chow
because it was dark, nor did she hear any hits to Chow’s body. She did not hear
defendant say he was going to kill her or Chow. She never lost consciousness when
defendant had his hand on her neck, and she denied that defendant assaulted her. She
said the cut on her lip was due to defendant choking her, claiming he had not punched
her. According to the inspector, Munjar never told him defendant hit her head against a
coffee table or picked her up by the neck, held her against the wall, and dropped her.
Munjar told Inspector Flores she had ended her relationship with defendant, had
had no contact with him since April 18, and had never given him her address. She did
not see defendant or have sex with him on August 10. She went to Oakland to pay her
rent, returned to San Francisco, met with Chow to have lunch around 5:00 p.m. and
stayed with him for the rest of the day. Munjar also told the inspector that around 8:00
p.m. she received a message from defendant asking, “Where are you? Are you seeing
17
somebody?” She did not contact defendant and tell him to come over that night. She
denied she had sex with Chow that night.
Inspector Flores also met with Munjar on December 14, 2010, at her request. She
told him she had previously lied to him because Chow was in the apartment and she did
not want him to know the truth. She admitted that the day before the incident, she had
had sex with defendant at the rental house in Oakland. That night, she and Chow were
depressed about family members and they smoked marijuana and started drinking a lot.
She took a sleeping pill. She could not remember if she had sex with Chow because she
was intoxicated. She told the inspector she texted defendant on August 10, “Don’t bother
me, I will probably see you tomorrow,” and she knew that he would reach out to her and
come see her. According to Munjar’s text records, however, on the night of August 9,
she texted defendant, “Fuck you tomorrow.” And the following evening, she sent him
two texts about the death of her niece. Munjar also told Inspector Flores she had not
given defendant a key to the apartment, contradicting her prior statements that she had in
fact given him one.
The defense called two witnesses to impeach Munjar’s testimony. The first, Lucy
Chiang, was the owner of the house Munjar rented in Oakland. She testified that Munjar
told her she owned a marijuana club in San Francisco and was looking for a quiet place
for her and her two daughters to live away from the club and her ex-husband. She did not
tell Chiang she wanted to grow marijuana at the house. After the lease ended, Chiang
found the house “totally destroyed. Everything is ruined. All the floor is bad. Water
damage. All the wall . . . It’s all the little holes on the wall.” The electrical system had
also been altered.
The second witness, Wayne Richards, described a fender bender he and his
daughter were involved in when Munjar, who was alone in her car, ran a red light and hit
their car. Munjar filed a lawsuit against the Richards family, producing Chow as a
supposedly independent witness who claimed he saw Richards’s daughter cause the
accident. The case was ultimately dismissed.
18
Jury Verdict in the Second Trial
On May 25, 2012, a jury found defendant guilty of assault with force likely to
cause great bodily injury upon Chow (count 1), battery resulting in serious bodily injury
of Chow (count 2), and felony false imprisonment of Chow (count 3), and found true the
great bodily injury enhancements. It acquitted him of misdemeanor and felony false
imprisonment of Munjar.
Defendant was sentenced to 16 years in state prison.
This timely appeal followed.
DISCUSSION
I. The Trial Court Did Not Err In Rejecting Defendant’s Request For a
Defense of Others Instruction
In defendant’s first argument, he contends the trial court deprived him of his right
to due process by failing to instruct the jury on the defense of others. As he would have
it, the evidence showed that when he entered the apartment, he reasonably believed Chow
was unlawfully touching Munjar and would continue to do so if he did not intervene.
Despite this evidence, which he claims was “virtually identical” to that elicited at the first
trial and which merited a defense of others instruction at that trial, the trial court denied
his request for a defense of others instruction at the second trial. The argument lacks
merit.
A. Background
As given at defendant’s first trial, CALCRIM No. 3470 provides:
“Defense of others is a defense to attempted murder, and offenses involving
assault, battery, battery involving serious bodily injury, and lesser offenses as to Lester
Chow. The defendant is not guilty of those crimes if he used force against the other
person in lawful defense of another. The defendant acted in lawful defense of another if:
“1. The defendant reasonably believed that he or someone else was in imminent
danger of being touched unlawfully;
“2. The defendant reasonably believed that the immediate use of force was
necessary to defend against that danger;
19
“AND
“3. The defendant used no more force than was reasonably necessary to defend
against that danger.
“Belief in future harm is not sufficient, no matter how great or how likely the harm
is believed to be. The defendant must have believed there was imminent danger of
violence to someone else. Defendant’s belief must have been reasonable and he must
have acted because of that belief. The defendant is only entitled to use that amount of
force that a reasonable person would believe is necessary in the same situation. If the
defendant used more force than was reasonable, the defendant did not act in lawful
defense of another.
“When deciding whether the defendant’s beliefs were reasonable, consider all the
circumstances as they were known to and appeared to the defendant and consider what a
reasonable person in a similar situation with similar knowledge would have believed. If
the defendant’s beliefs were reasonable, the danger does not need to have actually
existed.
“A defendant is not required to retreat. He or she is entitled to stand his or her
ground and defend himself or herself and, if reasonably necessary, to pursue an assailant
until the danger of death/bodily injury has passed. This is so even if safety could have
been achieved by retreating.
“The People have the burden of proving beyond a reasonable doubt that the
defendant did not act in lawful self-defense or defense of another. If the People have not
met this burden, you must find the defendant not guilty of these offenses.”4
In the second trial, counsel for defendant requested a similar defense of others
instruction, explaining, “I think in the previous trial of this matter, the instruction was
given, and in this trial it should be given, as well, and the reason being that when
Mr. Kennedy is to have entered this apartment, the lights were off. [¶] He saw two
4
The court also instructed as a component of the simple assault, battery causing
serious bodily injury, and simple battery charges involving Chow that the jury must find
defendant not guilty if it found he acted in defense of someone else.
20
figures appear to be involved in having sex. One was his girlfriend, as far as he knew.”
This exchange ensued:
“THE COURT: What’s our evidence of that? [¶] I know that’s the defense
theory, but what’s the evidence they were having sex?
“MS. KAPLAN [DEFENSE COUNSEL]: The statement introduced by Mr.
Delgado.
“MR. DELGADO [PROSECUTOR]: He did state in the statement they either
had sex or just finished having sex.
“MS. KAPLAN: That as far as he knew, from everything she told him, she was
living alone, that she essentially had invited him over by talking about deaths in her
family, knowing he would want to comfort her based on his four-year relationship with
her, that he had sex with her the day before.
“There has been nothing that happened between the two of them that indicated that
they did not have a continuing relationship and that when he began what is described by
the district attorney as assaultive behavior, it was, in fact, in defense of Ms. Munjar, who
he believed to be his girlfriend, being sexually assaulted by another. [¶] . . .
“MR. DELGADO: We just don’t have any evidence saying he thought that she
was in any danger. [¶] His statement was that Mr. Chow had ambushed him. There is no
evidence he was trying to defend her.
“THE COURT: I don’t think we have that evidence, and I think we have the
evidence that Mr. Ballotta said, ‘Are you fucking him,’ which sort of goes against him
defending another. [¶] In any event, I don’t think there is evidence of defense of another,
but there’s enough evidence that I do believe the self-defense instruction is warranted.”
The court subsequently instructed the jury on self-defense without the defense of
others language.
B. Applicable Law and Standard of Review
The trial court must give an instruction when “there was substantial evidence
presented which would warrant the giving of the instruction. [Citation.] A jury
instruction need not be given whenever any evidence is presented, no matter how weak.
21
[Citation.] Rather, the accused must present ‘evidence sufficient to deserve consideration
by the jury, i.e., evidence from which a jury composed of reasonable men could have
concluded that the particular facts underlying the instruction did exist.’ ” (People v.
Strozier (1993) 20 Cal.App.4th 55, 62–63; see also People v. Salas (2006) 37 Cal.4th
967, 982–983 [“defendant has a right to have the trial court . . . give a jury instruction on
any affirmative defense for which the record contains substantial evidence [citation]—
evidence sufficient for a reasonable jury to find in favor of the defendant”]; People v.
Michaels (2002) 28 Cal.4th 486, 529 [court must instruct on all material issues presented
by the evidence, including affirmative defenses such as a self-defense and defense of
others].)
We review the trial court’s decision not to give a requested instruction under the
de novo standard of review. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584.) We
conclude that the record here does not contain substantial evidence to support the
requested instruction.
C. Discussion
Defendant’s request for the defense of others instruction was based on his
statement to Inspector Flores the day of the incident. As he describes it in his opening
brief, “During the recorded rambling remarks made by appellant at the police station,
appellant stated that he came over to the Masonic Street apartment in response to
Munjar’s messages inviting him, that he expected to find Munjar alone but instead, saw a
male having sex with her, and that he construed what he had seen as an act of unlawful
touching committed against Munjar. [Citation.] According to appellant, Chow then
jumped up quickly and started ‘talking shit’ and ‘they all just start[ed] fighting.’ ” This
account takes great liberty with what defendant said to Inspector Flores.
In the referenced portion of the statement, defendant actually said this: “So I go
upstairs and then the door was unlocked . . . so I coming right in. I knocked first and the
door comes unlocked. And then I come right in, and when I turn the lights on, then they
in bed fucking. Or just got finished fucking and then he gets up hella quick and then he
starts talking shit. And then I say, ‘What the fuck!’ And he’s like talking shit, ‘Fuck
22
you . . . lalalala!’ And then I just said, ‘fuck it’ and just hit him. And I hit him like four
or five times. And I was wrong, I was wrong. . . .” This passage is hardly evidence—let
alone substantial evidence—that defendant assaulted Chow because he believed Munjar
was imminent danger of harm from him. And nothing else in defendant’s statement can
be construed as a claim that he acted in defense of Munjar. To the contrary: it is replete
with acknowledgments by defendant that he assaulted Chow because, upon entering the
apartment and discovering Munjar in bed with Chow, he realized she was sleeping with
someone else.
Defendant also claims circumstantial evidence mandated the giving of the
instruction. According to him, the evidence “demonstrated that appellant had been
induced to come to the Masonic Street apartment by Munjar’s texts to him describing her
distress at the death of her niece. As Munjar admitted, she knew that appellant would
‘reach out’ to comfort her and would likely appear because that was his habitual reaction
to her signals to him. [Citation.] She had represented to appellant that she lived alone
and had never warned him not to come over. In fact, she had given him a key to the
apartment. [Citation.] Appellant understood that she was implicitly inviting him over
that night through her text messages invoking her emotional neediness. [Citation.]
Appellant and Munjar had just had sex earlier that day, and appellant believed theirs was
an ongoing and exclusive relationship. [Citation.] In the context of his understanding of
the situation, which was fostered by Munjar’s acts and statements, appellant believed that
Munjar—who, by her own admission, was rendered essentially unconscious by the
combination of Ambien, marijuana and alcohol she had ingested prior to going to
sleep . . . would not have invited him over had she planned to have sex with Chow.
Appellant therefore reasonably understood what he saw and Munjar being unlawfully
touched by Chow and reasonably believed that she would continue to be unlawfully
touched were he not to defend her against that danger.” The flaws in this theory are
many.
First, Munjar testified at the second trial that she had not in fact given defendant a
key and that she had broken up with him months before, repeatedly telling him she was
23
seeing someone else. Thus, defendant’s scenario conflicts with the evidence presented at
the second trial. Additionally, there was extensive direct evidence that defendant did not
think Chow was assaulting Munjar, including defendant’s many incriminating statements,
Chow’s description of the incident, and Ballotta’s testimony that he heard a man yell,
“Are you fucking him?” Further, the evidence indicated that both Chow and Munjar
were asleep when defendant entered the bedroom, which undermines defendant’s claim
that he thought Munjar was in imminent danger. Indeed, defense counsel argued in
closing argument that Chow and Munjar were in a “drug induced, drunken sleep” when
defendant entered the bedroom. And in making this very argument, defendant himself
represents that Munjar was “rendered essentially unconscious by the combination of
Ambien, marijuana and alcohol she had ingested prior to going to sleep.” In light of all
this, we cannot conclude that defendant’s claimed circumstantial evidence was sufficient
for a reasonable jury to find that defendant acted in defense of Munjar.
In a final word on this issue, we note that defendant’s claim that the evidence at
the second trial was “virtually identical” to the evidence at the first trial directly conflicts
with his claim that Munjar told contradictory accounts at the two trials. And she did in
fact give conflicting testimony on facts relevant to this issue. For example, at the first
trial, she testified that she was awakened by defendant and Chow fighting; at the second,
she testified she woke up to find defendant pinning both her and Chow to the bed and
punching or choking them. At the first trial, she testified defendant yelled, “[W]hat are
you doing to my girlfriend?”; at the second, she testified that defendant yelled, “[S]hut
up, motherfucker. I’ll kill you.” While the testimony at the first trial may have
constituted substantial evidence warranting a defense of others instruction, no such
testimony was offered in the second trial.
D. Harmless Error
Even if we were to conclude the court erred in failing to instruct on defense of
others, such error would have been harmless. (People v. Randle (2005) 35 Cal.4th 987,
1003 [error in failing to instruct on defense of others is state law error subject to Watson
analysis].) As detailed above, the evidence was overwhelming that defendant’s assault
24
on Chow was motivated by defendant’s discovery of Munjar in bed with another man. It
thus cannot be said that it was reasonably probable defendant would have obtained a
more favorable result had the court given a defense of others instruction. (See People v.
Watson (1956) 46 Cal.2d 818, 836 [conviction of the charged offense may be reversed
only if it appears from the record reasonably probable the defendant would have obtained
a more favorable result].)
II. The Prosecutor Did Not Commit Misconduct By Knowingly Suborning
Munjar’s Perjured Testimony
Defendant next objects that the prosecutor knowingly allowed Munjar to commit
perjury during the second trial, and that in doing so, he committed prosecutorial
misconduct in violation of defendant’s Fourteenth Amendment right to due process.
Again, we reject this argument.
A. Applicable Law
In an oft-quoted passage, the United States Supreme Court in Napue v. Illinois
(1959) 360 U.S. 264, 270, addressed the State’s use of false testimony: “[A] conviction
obtained through use of false evidence, known to be such by representatives of the State,
must fall under the Fourteenth Amendment. [Citations.] The same result obtains when
the State, although not soliciting false evidence, allows it to go uncorrected when it
appears. [Citations.] [¶] The principle that a State may not knowingly use false
evidence, including false testimony, to obtain a tainted conviction, implicit in any
concept of ordered liberty, does not cease to apply merely because the false testimony
goes only to the credibility of the witness. The jury’s estimate of the truthfulness and
reliability of a given witness may well be determinative of guilt or innocence, and it is
upon such subtle factors as the possible interest of the witness in testifying falsely that a
defendant’s life or liberty may depend.” The court went on to explain that a prosecutor
“ ‘has the responsibility and duty to correct what he [or she] knows to be false and elicit
the truth. . . .’ ” (Ibid.) The California Supreme Court has likewise acknowledged this
prosecutorial obligation. (People v. Harrison (2005) 35 Cal.4th 208, 242 [“ ‘Under well-
25
established principles of due process, the prosecution cannot present evidence it knows is
false and must correct any falsity of which it is aware in the evidence it presents . . . .’ ”].)
B. Background
Prior to the commencement of the second trial, defendant moved for dismissal of
the case based on inconsistent testimony by Chow and Munjar. The court agreed that
Munjar had lied in her prior testimony but disagreed as to Chow. Counsel for defendant
responded, “I think they’re really liars, to really cut to the chase, and I think the problem
is that in the initial trial, the prosecutor is aware that there are different statements, and
that’s not unusual, as the court has said, but after the first trial, I think, given the state of
the evidence that Mr. Kennedy should not be prosecuted based on that testimony, those
witnesses and that state of the evidence, it is wrong, and therefore, I’m asking that the
case be dismissed.”
The prosecutor disagreed that dismissal was proper, objecting that he did not
knowingly suborn perjury. He acknowledged his duty to point out the inconsistencies in
Munjar’s testimony if he did call her to testify in the second trial.
The court denied the motion to dismiss, observing that the prosecutor understood
his duty to correct any false statements or inconsistencies.
During the prosecution’s case in chief, Munjar offered testimony that conflicted
with her prior testimony. When the court asked if she had told the truth during her
testimony at the preliminary hearing and the first trial, she took the Fifth. Munjar was
then granted immunity from prosecution for perjury arising out of her prior testimony,
although the court made it clear that if she committed perjury in that proceeding, she
could be prosecuted.
Following the close of testimony, defense counsel once again unsuccessfully
moved for dismissal, urging that the grant of immunity to Munjar was an improper
license for her to commit further perjury, thereby denying defendant his constitutional
right to a fair trial.
26
C. Discussion
We understand defendant’s argument to essentially be two-fold. First, he contends
the prosecutor committed misconduct by knowingly suborning Munjar’s perjury at the
second trial. Second, he contends the prosecutor failed to fulfill his obligation to alert the
jury to inconsistencies in Munjar’s testimony.
As to defendant’s first argument, it cannot be disputed that Munjar offered
conflicting accounts to the police, at the preliminary hearing, and at the first and second
trials. From this, defendant concludes she was necessarily lying at the second trial. But
the fact is, other than instances where Munjar’s testimony was contradicted by telephone
and text records, we have no way of knowing what testimony was truthful. It could be
that her early versions were false, such that her testimony at the second trial was the truth.
Indeed, Munjar testified at the second trial she lied previously because defendant asked
her to and she was afraid, she did not want him to get in trouble, and she did not want
Chow to find out she had had sex with defendant the day before the incident. The record
thus does not support defendant’s claim that Munjar’s conflicting testimony at the second
trial necessarily constituted perjury. We therefore must reject his allegation that the
prosecutor knowingly suborned Munjar’s perjury by calling her as a witness at the second
trial.
The question, then, is whether the prosecutor fulfilled his duty to identify the
inconsistencies in Munjar’s testimony. We conclude he did.
We first note that despite defendant’s complaint “the district attorney failed to
make any mention of Munjar’s repeated perjured statements” or that he “did not point out
falsehoods,” defendant is hard pressed to identify the supposed material lies the
prosecutor did not correct. In his opening brief, defendant references Munjar’s “perjured
statements []regarding texting with [defendant], as one example[].” And in his reply
brief, he claims the prosecutor did not discuss the following lies that were relevant to
Munjar’s testimony: “incidents involving her landlady, Lucy [Chiang]; a car accident in
which she falsified the facts and alleged she was the victim, while Chow perjuriously
presented himself as a disinterested eyewitness; the texts that she lied about sending; the
27
sexual encounter she denied having; the relatives she claimed had died but hadn’t, and
many others.” Most of these—e.g., the landlord, the car accident—are simply examples
of other witnesses offering testimony contradicting that of Munjar. In such a case, the
jury is simply free to believe whichever witness it finds more credible. (People v. Montes
(2014) 58 Cal.4th 809, 835 [matters of credibility are for the jury to decide]; People v.
Gordon (1973) 10 Cal.3d 460, 474 [“[T]he jury could decide for itself which of the
conflicting versions of the incidents in question was true.”].) As to the texts Munjar
denied sending and the sexual encounter she denied having, those issues were in fact
brought to the jury’s attention during the trial.
Moreover, defense counsel subjected Munjar to a withering cross-examination that
thoroughly painted her as a liar. We detailed above the numerous inconsistencies defense
counsel brought out, and we need not repeat them here. Suffice to say, the jury was
thoroughly informed about the numerous contradictions in Munjar’s testimony.
Additionally, during closing arguments, both the prosecutor and defense counsel
extensively addressed Munjar’s inconsistent testimony. The prosecutor first had this to
say:
“We’ll talk briefly about Ms. Munjar.
“It’s not pretty. It’s pretty bad when you have to give someone immunity right on
the stand about previous lies that they told at previous hearings.
“Now, you’ll have to weigh her testimony as your experience as you decide.
There is plenty.
“We sat through all of this to impeach to just say Ms. Munjar is not a credible
person when it comes to this particular event because she’s told so many different
versions of what happened.
“Each version has something like, you know, ‘I gave him the key’ and ‘I didn’t.
“ ‘The Lights were on. No, they were off.’
“ ‘I didn’t see what happened. But no, I heard, but I did see because the lights
were on.’
“ ‘I didn’t have sex with him. I did.
28
“ ‘I didn’t text him. No, actually I did.’
“I mean, it goes back and forth, back and forth.
“I just want to put that out that Mr. Kennedy called her, at least called her 56 times
from the county jail asking her to alter the testimony, and she did it.
“January 28, 2010, she came down here and testified in front of Honorable Judge
Chan, and she tried to help Mr. Kennedy. She tried to paint it as mutual combat.
“She tried to say that she gave him a key, even though . . . he’s trying to get her to
deliver a key to him.
“These were all lies, and the question is why would she do that.”
Defense counsel’s closing argument mentioned many of Munjar’s specific
inconsistencies, and also emphatically argued, “[S]he can’t stop herself because she is a
liar. That’s what she is. Morning til night, she is a liar.”
And in the prosecutor’s closing rebuttal, he again emphasized Munjar’s lies:
“The question was why was Ms. Munjar brought here. Why was she given
immunity. Why would you put on such tainted evidence.
“One, in all intents and purposes, it’s almost like she is a defense witness, because
that’s what their case is based on. [¶] [‘]She tells so many lies and has done things so
inconsistent with what a reasonable person would do that this whole case should be
thrown out.[’]
“It even got to the point where counsel started referring to Lester and Ms. Munjar
as ‘they,’ they lied, they set Mr. Kennedy up. [¶] . . .
“I understand that you in some way want to have all the facts as much as you can
get because we’re asking you to make an important decision here today, and that’s why
she was brought here. [¶] . . .
“Her credibility unfortunately is shot. She’s given so many different answers.
[¶] . . .
“She has to come into court now and be labeled a liar and have her whole personal
life displayed to satisfy the burden to prove the defendant beat them up. But that’s what
we have to do, and that’s what we do and we did that.
29
“I don’t have much to go on. It is what it is, as we say around here.
“I would love Polly Purebred to be my victim who would tell the same story every
single time, but it is what it is.
“Emmalyn is who she is.”
In short, the prosecutor made no attempt to hide Munjar’s lies from the jury.
Instead, he was forthright about the many inconsistencies in her testimony and the fact
that her story was constantly changing. This was bolstered by defense counsel’s
cross-examination of Munjar and her closing argument, which further drove home the
fact of Munjar’s perjury. In light of this, we cannot agree the prosecutor committed
misconduct.
Even if we were to conclude otherwise, the record does not show defendant
suffered prejudice. (People v. Adams (1993) 19 Cal.App.4th 412, 427 [no reversal if
failure to disclose false testimony was harmless beyond a reasonable doubt].) The jury
acquitted defendant of the sole charge in which Munjar was the named victim, suggesting
it did not believe her testimony. The counts on which defendant was convicted all
involved Chow, and his testimony provided ample, independent support for those
convictions.
III. The Jury’s Finding That Chow Suffered Great Bodily Injury Was
Supported By Substantial Evidence
The jury convicted defendant of battery with serious bodily injury and found true
the section 12022.7 great bodily injury enhancement on all three charges involving
Chow. Defendant contends there was insufficient evidence to support these findings
“since the injuries suffered by Chow were not sufficiently serious, significant or
substantial to meet the requisite statutory definitions.” We disagree.
Section 12022.7, subdivision (a), provides for a three-year enhancement for a
defendant who inflicts great bodily injury on another person, other than an accomplice,
during the commission of a felony. “Great bodily injury” and “serious bodily injury”
have substantially the same meaning. (People v. Hawkins (1993) 15 Cal.App.4th 1373,
1375.) Section 243, which sets forth the punishment for the crime of battery when
30
committed under various circumstances, defines “ ‘[s]erious bodily injury’ ” as “a serious
impairment of physical condition, including, but not limited to, the following: loss of
consciousness; concussion; bone fracture; protracted loss or impairment of function of
any bodily member or organ; a wound requiring extensive suturing; and serious
disfigurement.” (§ 243, subd. (f)(4); see also CALCRIM No. 925 [battery causing
serious bodily injury].) We easily find substantial evidence that Chow suffered
qualifying injuries.
To begin with, the uncontroverted evidence showed that Chow suffered a “left
orbital blowout fracture.” As expert witness Emerson described it, the lower and side
portions of his eye socket were shattered, there were bone fragments in the muscle and
muscle trapped within the bone fragments, and Chow’s eye was swollen shut. Chow
testified that he continued to experience vision deficits in his left eye as a result of his
injury. This alone was sufficient to support the jury’s finding. But there was more.
Chow also testified he lost consciousness during the assault, and he suffered multiple
lacerations requiring sutures and a broken nose. The jury could reasonably conclude
these injuries fell within the scope of serious or great bodily injury. (See, e.g., People v.
Belton (2008) 168 Cal.App.4th 432, 440 [loss of tooth, which victim could not replace
due to lack of insurance, and wounds requiring sutures on eyebrow and mouth constituted
sufficient “ ‘serious impairment of . . . physical condition’ ” to support conviction for
battery with serious bodily injury]; People v. Muniz (1989) 213 Cal.App.3d 1508, 1520
[extensive bruises, severely swollen eye]; People v. Corona (1989) 213 Cal.App.3d 589,
592 [swollen jaw, bruises to head and neck, cut above eye requiring stitches]; People v.
Sanchez (1982) 131 Cal.App.3d 718, 733 [multiple abrasions, lacerations, swelling and
bruising to eye and cheek].)
Defendant attempts to undermine this evidence by pointing out that Chow
previously stated he did not lose consciousness; his lacerations were “small” and did not
require extensive suturing; a “Dr. Chung” testified at the first trial that Chow was
“ ‘evaluated for a [sic] orbital fracture’ ”; and Chow checked himself out of the hospital
against medical advice and never sought further medical care. Dr. Chung testified at the
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first trial, but not the second. His testimony is therefore irrelevant to the serious bodily
injury finding at the second trial. Beyond that, the evidence to which defendant points
was before the jury, and it was up to the jury to determine whether all of the evidence
established serious bodily injury beyond a reasonable doubt. (People v. Escobar (1992) 3
Cal.4th 740, 750.) It found that it did, the evidence defendant identifies notwithstanding.
And it is not our role to reweigh the evidence or reevaluate a witness’s credibility; we are
merely tasked with determining whether the jury’s finding was supported by substantial
evidence (ibid.), and we conclude it was.
DISPOSITION
The judgment of conviction is affirmed.
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_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
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