THE PEOPLE v. POUV BILLY YIN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

Pouv Billy Yin appeals from the judgment entered after a jury convicted him of mayhem and assault with a deadly weapon.   He contends the trial court committed prejudicial instructional error and improperly sentenced him without a probation report.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

An information, dated March 12, 2009, charged Yin with mayhem (Pen.Code,

§ 203 ¹ ) and assault with a deadly weapon (§ 245, subd. (a)(1)).   As to the mayhem count, the information specially alleged that Yin had personally used a deadly weapon-a butcher knife-in committing the offense (§ 12022, subd. (b)(1)).   As to the count for assault with a deadly weapon, the information specially alleged that Yin had personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).²

2. The Evidence Presented at Trial

In January 2009, Paul Kao lived at his girlfriend's home in Long Beach.   On the evening of January 24, 2009, there was a get together at the home, which Yin, who was a close friend of Kao and had known him for years, attended.   At approximately 9:00 p.m., Kao was in his girlfriend's bedroom with a number of the guests, including Yin, when he felt a blow to the back of his neck.   He looked back, saw a knife coming at him and picked up his left hand to block the knife.   He then was struck again, this time on his left hand.   Kao realized that both his neck and left hand had been stabbed with the knife.

Paramedics transported Kao to the hospital, where he received stapling stitches on his neck and left hand.   He returned to the hospital two times for the injury to his hand and received surgery on it.   At the preliminary hearing, on February 26, 2009, about a month after the stabbing and soon after the surgery, Kao could not make a fist with his left hand and did not have full use of his pinky finger.   By the time of trial, which took place on January 27 and 28, 2010 (a year after the stabbing), Kao could make a fist and had regained use of his pinky finger.   Nevertheless, the middle knuckle on the finger stuck out, and he could not fully straighten it.   His hand never functioned as it did before the stabbing.   He has a four-inch scar on his hand and a four- to five-inch scar on the back of his neck, below his hairline.

Long Beach Police Department Officer David Weise testified at trial that, on January 24, 2009, he arrived at Kao's girlfriend's home when Kao was being treated by paramedics.   Officer Weise asked Kao who had stabbed him, and Kao replied “Billy,” which is Yin's middle name and a name that he goes by.   Officer Weise followed Kao to the hospital, where Kao told Officer Weise that, after he was struck, he turned around and saw “Billy,” whom he also referred to by the nickname “Shanker,” holding a six- to eight-inch butcher knife.

Detectives Carlos Grimaldo and Patrick Lyon also interviewed Kao at the hospital while he was being treated for his injuries.   Kao reported that “his friend Billy for no reason stabbed him in the back of his neck.   As [Billy] was attempting to stab him a second time, he put his left hand to block the blunt force of the butcher knife that [Billy] was trying to hit him again with, at which point the suspect struck his left hand, also stabbing.”   After Kao described Yin to the detectives, they left the hospital and compiled a lineup containing Yin's photograph.   They returned to the hospital and showed Kao the lineup.   Detective Grimaldo asked Kao if he saw “Billy” in the lineup.   Kao responded affirmatively and circled the picture of Yin. Kao also gave a statement to Detective Grimaldo that “the guy I circled is the guy that stabbed me one time on my neck and one time on my left hand with a butcher knife.”   Detective Grimaldo wrote the statement, because Kao was unable to write due to his injuries and treatment by hospital personnel, and then asked Kao if he agreed with it.   Kao responded “yes.”

The same evening, Detective Jayson Torres interviewed Samnang Im, who had attended the get together and made the 9-1-1 call after Kao was injured.   Detective Torres showed Im a lineup containing Yin's photograph and said a possible suspect was in the lineup.   Im identified Yin as the suspect and told Detective Torres that he had seen Yin exiting the home where Kao lived “concealing something under his shirt or sweater and fleeing in an unknown direction.”   Im, however, said he was not present when Kao was stabbed.

Based on the identifications of Yin and information received regarding Yin's whereabouts, Detectives Grimaldo and Lyon detained Yin early the next morning at his sister's house.

Before trial, Detective Grimaldo interviewed Im twice.   On the first occasion, the day of the preliminary hearing, Im stated that, while he was at Kao's girlfriend's home, he observed Yin strike Kao twice with an unknown object.   Im said this version of the incident was correct, even though he previously had reported to police that he was not present when Kao was stabbed.   On the second occasion, shortly before trial, Im reported that, when the stabbing occurred, only he, Kao and Yin were present and “out of nowhere [Yin] started striking [Kao] with an unknown object on his hand.  [Kao] began to yell, ‘help, help, help,’ at which point ․ Im observed [Kao] bleeding.  [Kao and Im] both ran out to the driveway, where ․ Im dialed 9-1-1.   As they were waiting for paramedics and police to arrive, [Yin] walked out of the residence onto the driveway holding an unknown object underneath his shirt with his right hand.   The suspect never said anything to [Im] nor [Kao], continued to walk ․ [until he was] out of sight.”

At trial, Kao recanted his identification of “Billy” as the person who had stabbed him.   He did not see who held the butcher knife when he turned around after being stabbed.   Kao saw “Billy,” who was scared, holding the knife, but “Billy” was in the kitchen cooking.   He did not see blood on the knife.   “Billy” is not the one who stabbed him, and he did not tell his girlfriend that “Billy” had stabbed him.   He gave the police a description of “Billy” because his girlfriend had told him that “Billy” stabbed him.   But he did not know who had stabbed him.   According to Kao, he circled Yin's photograph in the lineup because the detectives asked him to identify Yin, and he did not tell the detectives that “Billy” had stabbed him, as written on the identification as the victim's statement.

Im, at trial, testified that, contrary to his statements to Detective Grimaldo, he did not see Yin stab Kao. His most recent statement to Detective Grimaldo shortly before trial was not true.   He made the statement hoping it would help him “get out of jail.”   Im, however, acknowledged that, when he spoke to Detective Grimaldo, he already had been released from custody.

Kao's girlfriend testified that she was not home when Kao was stabbed.   Soon after the stabbing, Kao called her and said that Yin had “chop[ped] his neck.”   Although she did not inform Kao, Yin was at her house in the afternoon on January 24, 2009, before the get together, and made sexual advances toward her.

Yin did not present any evidence in defense.   The sole theory of the defense in closing argument was that, based on the evidence, the jury could not conclude beyond a reasonable doubt that Yin was the one who had stabbed Kao.

3. The Jury's Verdict and Sentencing

The jury found Yin guilty of mayhem and assault with a deadly weapon.   It found true the special allegation under section 12022, subdivision (b)(1), of personal use of a deadly weapon on the mayhem charge and the special allegation under section 12022.7, subdivision (a), of great bodily injury on the assault with a deadly weapon charge.   The trial court sentenced Yin to nine years in state prison, consisting of the eight-year upper term for the mayhem conviction, plus one year for the section 12022, subdivision (b)(1), enhancement.   It imposed the four-year upper term for the assault with a deadly weapon conviction, plus three years for the section 12022.7, subdivision (a), enhancement, and stayed execution of sentence pursuant to section 654.

DISCUSSION

1. The Trial Court Did Not Err by Failing to Instruct the Jury on Battery with Serious Bodily Injury, a Lesser Included Offense of Mayhem

A person is guilty of mayhem if he “unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip․”  (§ 203.)   Battery with serious bodily injury is the “willful and unlawful use of force or violence upon the person of another,” which results in “serious bodily injury,” defined 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.” (§§ 242, 243, subds.(d) & (f)(4).)   Mayhem thus includes all of the elements of serious bodily injury and in addition that the disfigurement is permanent.   As a result, battery with serious bodily injury is a lesser included offense of mayhem.  (People v. Ausbie (2004) 123 Cal.App.4th 855, 859 [“completed offense of mayhem, of necessity, includes the completed offense of battery with serious bodily injury”], disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228.)

Yin contends the trial court erred when it failed to instruct the jury sua sponte on battery with serious bodily injury as a lesser included offense of mayhem.   We disagree.

A trial court must instruct sua sponte on a lesser included offense when some evidence in the record, if believed by the trier of fact, would show the lesser, but not the greater, offense was committed.  (People v. Hagen (1998) 19 Cal.4th 652, 672.)   It need not instruct on a lesser offense when no evidence shows the offense committed was less than that charged.  (People v. Barton (1995) 12 Cal.4th 186, 194-195;  see also People v. Breverman (1998) 19 Cal.4th 142, 162 [instructing on lesser offense required only when “evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury”].)

According to the evidence, Yin approached Kao from behind and stabbed him in the back of the neck with a butcher knife, removed the knife and then, while attempting to strike Kao in the neck a second time, hit his left hand as he put his hand up to his neck.   As a result of the stab wounds, Kao has a four- to five-inch scar on his neck below the hairline and a four-inch scar on his hand.   In addition, at trial, the middle knuckle of his pinky finger stuck out, and he could not fully straighten the finger.   Despite the passage of a year between the time of the injury and trial, and surgery and treatment to his hand, Kao's hand never functioned as it did before the stabbing.   No conflicting evidence was presented to the jury regarding the permanency of Kao's injuries.³  The evidence thus does not show that the offense committed was any less than the crime of mayhem as charged.   The trial court, therefore, had no sua sponte duty to instruct the jury on the lesser included offense of battery with serious bodily injury.

2. The Trial Court's Failure to Give a Unanimity Instruction Does Not Require Reversal of Yin's Mayhem Conviction

A criminal defendant's right to a jury trial includes the right to a unanimous verdict, including unanimous agreement on the act constituting the charged offense.  (Cal. Const., art. 1, § 16;  People v. Collins (2001) 26 Cal.4th 297, 304;  People v. Moore (1986) 185 Cal.App.3d 1005, 1014.)   As a result, “ ‘when an accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specified act relied upon to prove the charge or the jury must be instructed ․ that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.’ ”  (Moore, at p. 1014, italics omitted;  see also People v. Beardslee (1991) 53 Cal.3d 68, 93.)   When required under the facts, even if not requested, a unanimity instruction must be given by the court sua sponte.  (Moore, at p. 1014.)

Yin points out that the People argued two theories of mayhem to the jury, one based on the disfigurement to Kao's finger and one based on the disfigurement to his neck.⁴  Yin asserts that, because it is impossible to determine which theory of the crime-the disfigurement to the finger or the neck-the jury used to find him guilty of mayhem, the trial court committed prejudicial error by failing to give a unanimity instruction sua sponte pursuant to CALJIC No. 17.01.⁵

Any error by the trial court in failing to give a unanimity instruction under CALJIC No. 17.01 is harmless.   As noted, based on the evidence, Kao has a four- to five-inch scar on the back of his neck below the hairline from first stab wound.   From the second stab wound, Kao has a four-inch scar on his left hand.   In addition, at trial, the middle knuckle on his pinky finger stuck out, and he could not fully straighten the finger.   After the stabbing, his hand never functioned the same.   No evidence contradicts Kao's testimony about the permanent, disfiguring nature of his injury.   And Yin argued only that he was not the person who stabbed Kao, a theory that the jury rejected.   No evidence, therefore, suggests that either the neck or the hand wound was insufficient to establish mayhem, or that Yin stabbed Kao in only one of the places in which he was injured.   Under those circumstances, without reasonable doubt, the jury would have reached the same verdict on the mayhem count even if the trial court had given a unanimity instruction.  (People v. Jones (1990) 51 Cal.3d 294, 307, 322 [recognizing cases finding “harmless any error in failing either to select specific offenses or give a unanimity instruction, if the record indicated the jury resolved the basic credibility dispute against defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed”];  People v. Diedrich (1982) 31 Cal.3d 263, 283 [noting harmless nature of failure to give unanimity instruction when defendant offers same defense to all charged acts and “jury's verdict implies that it did not believe the only defense offered”];  People v. Wolfe (2003) 114 Cal.App.4th 177, 188 [failure to give unanimity instruction on gun possession charge based on multiple guns harmless beyond a reasonable doubt when jury's guilty verdict showed unequivocally that it disbelieved the “unitary” defense theory that all of the guns belonged to defendant's mother and he had no dominion or control over them].)

3. The Trial Court Did Not Commit Prejudicial Error by Failing to Instruct on How to Weigh Conflicting Testimony

Yin contends the trial court prejudicially erred by failing to instruct the jury sua sponte under CALJIC No. 2.22 on how to weigh conflicting testimony.⁶  He asserts that, because Kao and Im at trial did not identify him as the perpetrator, the jury should have been told that it could not resolve conflicting testimony by favoring the majority of witnesses who did identify him as the perpetrator.   Assuming there was conflicting testimony presented at trial that required an instruction under CALJIC No. 2.22, any error in failing to give the instruction was harmless.

The trial court's instructions to the jury, as a whole, took into consideration the inconsistencies between the trial testimony of Kao and Im and their prior statements to police identifying Yin as the perpetrator, as well as the inconsistencies between Kao's and Im's trial testimony and the testimony of Kao's girlfriend and the police witnesses.   The court gave CALJIC No. 2.13 telling the jury how to evaluate a witness's trial testimony that is inconsistent with the witness's prior statements.⁷  It also told the jury under CALJIC No. 2.20 how to assess the believability of a witness.   It further instructed under CALJIC No. 2.21.1 that “[d]iscrepancies in a witness's testimony or between a witness's testimony and that of other witnesses, if there were any, do not necessarily mean that any witness should be discredited.”   And it gave CALJIC No. 2.27, telling the jury that it “should give the testimony of a single witness whatever weight you think it deserves.   Testimony concerning any fact by one witness, which you believe, is sufficient for proof of that fact.   You should carefully review all the evidence upon which the proof of that fact depends.”   Taking these instructions as a whole, the jury would have understood that the number of witnesses testifying to a certain fact is not controlling and that it need not find a certain fact simply because the majority of witnesses testified to that fact.   As a result, it is not reasonably probable that Yin would have obtained a more favorable result at trial had the court instructed the jury under CALJIC No. 2.22.  (People v. Wilson (2008) 43 Cal.4th 1, 21 [claim of instructional error reviewed in light of jury charge as a whole to determine whether it is reasonably probable the jury would have reached a verdict more favorable to the defendant had additional instruction been given].)

4. The Trial Court's Sentencing of Yin Without a Probation Report Does Not Warrant Reversal and a Remand for Resentencing

When a defendant is convicted of a felony and is eligible for probation, the trial court shall direct “a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment,” and the court shall consider any report at the sentencing hearing. (§ 1203, subd. (b)(1) & (3).)  “The preparation of the report or the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except there shall be no waiver unless the court consents thereto.   However, if the defendant is ultimately sentenced and committed to the state prison, a probation report shall be completed pursuant to Section 1203c.”  (Id. at subd. (b)(4).)   When a defendant is convicted of a felony and is not eligible for probation, preparation of a probation report is discretionary with the trial court.   (Id. at subd. (g);  People v. Llamas (1998) 67 Cal.App.4th 35, 39.)

It is undisputed that the parties did not waive preparation of a probation report and that the trial court sentenced Yin without a probation report (and then directed a post-sentence report to be prepared and forwarded to the Department of Corrections and Rehabilitation).   Yin contends that the trial court's failure to obtain a probation report before sentencing him constitutes prejudicial error requiring a remand of the matter for the filing of a probation report and resentencing.   We disagree.

“Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:  [¶] ․ [¶] (2) Any person who used ․ a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted.  [¶] (3) Any person who willfully inflicted great bodily injury ․ in the perpetration of the crime of which he or she has been convicted.  [¶] (4) Any person who has been previously convicted twice in this state of a felony ․“ (§ 1203, subd. (e).)  Given that the jury found true the special allegations that Yin personally used a deadly weapon in committing mayhem and that he personally inflicted great bodily injury in committing assault with a deadly weapon, and that he had two prior felony convictions for receiving stolen property and false personation, which he does not dispute, Yin was not eligible for probation.   He did not present any evidence or argument in the trial court suggesting that this is an “unusual case[ ] where the interests of justice would best be served” if he were granted probation.  (Ibid.) Preparation of a probation report, therefore, was discretionary.  (Id. at subd. (g);  People v. Llamas, supra, 67 Cal.App.4th at p. 39.)

In any case, even if the trial court should have obtained a probation report before sentencing Yin, any error is harmless.   As noted, three statutory circumstances-use of a deadly weapon, infliction of great bodily injury and two prior felony convictions-made Yin ineligible for probation.   Although it did not have a probation report, at the time of sentencing, the court knew about Yin's two prior felony convictions, as well as two prior misdemeanor convictions for domestic violence offenses.   Yin was on probation, with respect to the misdemeanor convictions, when he committed the crimes against Kao. Yin did not contest any of his prior convictions, or his probation status, at the sentencing hearing, and the court revoked probation in the misdemeanor cases.   Indeed, the court selected the high term for the mayhem conviction, rejecting imposition of the midterm, because Yin was on probation at the time of the offenses in this case-a circumstance that would have been reflected in a probation report.   Further, Yin did not suggest, either in the trial court or on appeal, that circumstances in mitigation existed and that he was unable to present them at the time of sentencing.   Accordingly, it is not reasonably probable that Yin would have received a more favorable sentence had the trial court obtained a probation report before sentencing.  (See People v. Dobbins (2005) 127 Cal.App.4th 176, 182 [error in failing to obtain a probation report “implicates only California statutory law,” and thus review is governed by the harmless error standard in People v. Watson (1956) 46 Cal.2d 818, 836].)

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code..  FN1. Statutory references are to the Penal Code.

FN2. The information also charged Yin with willful, deliberate and premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a)), along with the special allegations that, in committing the offense, he personally used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).  Before trial, the trial court dismissed that count on the People's motion, and it is not at issue in this appeal..  FN2. The information also charged Yin with willful, deliberate and premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a)), along with the special allegations that, in committing the offense, he personally used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).  Before trial, the trial court dismissed that count on the People's motion, and it is not at issue in this appeal.

FN3. Although the injury to Kao's hand improved somewhat after the attack, perhaps due to surgery, as of the time of trial, he still had disfigurement.   In any event, for purposes of mayhem, “ ‘permanent’ can no longer be applied in its literal sense since medical technology is increasingly capable of effective cosmetic repair of injuries that would otherwise be permanently disfiguring.   Advances in medical technology do not, however, in any way diminish the culpability of one who intentionally disfigures another.”  (People v. Hill (1994) 23 Cal.App.4th 1566, 1574.).  FN3. Although the injury to Kao's hand improved somewhat after the attack, perhaps due to surgery, as of the time of trial, he still had disfigurement.   In any event, for purposes of mayhem, “ ‘permanent’ can no longer be applied in its literal sense since medical technology is increasingly capable of effective cosmetic repair of injuries that would otherwise be permanently disfiguring.   Advances in medical technology do not, however, in any way diminish the culpability of one who intentionally disfigures another.”  (People v. Hill (1994) 23 Cal.App.4th 1566, 1574.)

FN4. During closing argument, the prosecutor stated, “This is Paul Kao's hand right after he got cut.   He has a deep, deep scar there.   And he showed that he can no longer make his pinky finger lay flat like the rest of the fingers on his hand.   It's a three- to four-inch gash that still has a scar.   It required surgery.   And he could not make a fist for at least a month.   The testimony is that he came into the preliminary hearing, he could not make a fist with the pinky, and again, he still could not straighten out the pinky finger.   Now, that certainly meets the requirements of a disfigurement or a disability.   Now we have the other injury to Paul's neck, which is a four- to five-inch gash along the back of his neck.   And you were able to see in court that he still has a scar there, and there is actually no hair where that wound was inflicted.   So, therefore, that could also count as a disfigurement in this case.   So the two elements of mayhem can be met through either injury․”.  FN4. During closing argument, the prosecutor stated, “This is Paul Kao's hand right after he got cut.   He has a deep, deep scar there.   And he showed that he can no longer make his pinky finger lay flat like the rest of the fingers on his hand.   It's a three- to four-inch gash that still has a scar.   It required surgery.   And he could not make a fist for at least a month.   The testimony is that he came into the preliminary hearing, he could not make a fist with the pinky, and again, he still could not straighten out the pinky finger.   Now, that certainly meets the requirements of a disfigurement or a disability.   Now we have the other injury to Paul's neck, which is a four- to five-inch gash along the back of his neck.   And you were able to see in court that he still has a scar there, and there is actually no hair where that wound was inflicted.   So, therefore, that could also count as a disfigurement in this case.   So the two elements of mayhem can be met through either injury․”

FN5. CALJIC No. 17.01 provides, “The defendant is accused of having committed the crime of _ [in Count _]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act][or] [omission] upon which a conviction [on Count _] may be based.   Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he][she] committed any one or more of the [acts] [or] [omissions].   However, in order to return a verdict of guilty [to Count _], all jurors must agree that [he][she] committed the same [act][or] [omission] [or] [acts] [or] [omissions].   It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”   We refer to CALJIC throughout this opinion because the trial court used CALJIC to instruct the jury..  FN5. CALJIC No. 17.01 provides, “The defendant is accused of having committed the crime of _ [in Count _]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act][or] [omission] upon which a conviction [on Count _] may be based.   Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he][she] committed any one or more of the [acts] [or] [omissions].   However, in order to return a verdict of guilty [to Count _], all jurors must agree that [he][she] committed the same [act][or] [omission] [or] [acts] [or] [omissions].   It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”   We refer to CALJIC throughout this opinion because the trial court used CALJIC to instruct the jury.

FN6. CALJIC No. 2.22 provides, “You are not required to decide any issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which you find more convincing.   You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other.   You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides].   The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence.”.  FN6. CALJIC No. 2.22 provides, “You are not required to decide any issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which you find more convincing.   You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other.   You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides].   The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence.”

FN7. The court instructed the jury under CALJIC No. 2.13, “Evidence that at some other time a witness made a statement or statements that is or are inconsistent or consistent with his/her testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion.  [¶] If you disbelieve a witness'[s] testimony that he/she no longer remembers a certain event, that testimony is inconsistent with a prior statement or statements by him/her describing that event[ ].”.  FN7. The court instructed the jury under CALJIC No. 2.13, “Evidence that at some other time a witness made a statement or statements that is or are inconsistent or consistent with his/her testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion.  [¶] If you disbelieve a witness'[s] testimony that he/she no longer remembers a certain event, that testimony is inconsistent with a prior statement or statements by him/her describing that event[ ].”

MALLANO, P. J. JOHNSON, J.