Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI901701. John M. Tomberlin, Judge.
Thomas K. Macomber, under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant, Raymond Chatman, of assault with a deadly weapon, i.e., a hammer (Pen. Code, § 245, subd. (a)(1)) and exhibiting a deadly weapon (§ 417, subd. (a)(1)). He was granted probation and appeals claiming the trial court erred in excluding statements he made, refusing to give instructions on self-defense and imposing the costs of some services provided to him. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
On July 30, 2009, the fifty-one-year-old defendant was arguing with his elderly mother, with whom he lived, outside the front of their home. According to the victim, who is defendant’s brother, the victim was, from many miles away, on the phone at the time with their mother and could hear defendant in the background cussing at the mother. The victim told his mother to put defendant on the phone and defendant responded with an expletive. The victim was concerned about his mother’s welfare, so he drove from his Moreno Valley home to her home in Hesperia. He called her while on route and could hear that the conflict between her and defendant was still on-going. When he arrived at their home, his mother and defendant were still arguing outside. The victim got out of his car, walked through the open gate of the fence that surrounded the front yard and began to approach defendant, who was seated at a table in the front yard. The victim asked defendant what was going on and defendant exploded with profanities, curses and threats. Defendant, who had a hysterical look on his face, held a walking stick in his left hand and put a motorcycle helmet on his head. He picked up a hammer in his right hand and approached the victim, who began backing away. Both ended up outside the open gate. The victim had nothing in his hands and he talked to defendant in an effort to calm him. Defendant told the victim that he was going to hit him in the head. The victim told defendant that he did not look like himself and if defendant swung the hammer at the victim, he would miss and the victim would “get” defendant. As he continued to yell, defendant raised his arm up and swung the hammer at the victim while within an arm’s length of him. The victim moved out of the way of the hammer, then grabbed defendant by the neck and unsuccessfully tried to get the hammer away from him. The victim then pushed defendant away from him to avoid being hit with the hammer. The victim reminded defendant that the former had told the latter that he would “get” him. Defendant backed up and walked to his truck, which was parked at the home of the next door neighbor. Defendant picked up a long object that the victim thought was an ax, and, holding it with both hands, began approaching the victim while yelling obscenities. Fearing that defendant would pursue him if he ran, the victim stood his ground and while the mother called 911 and described to the dispatcher what was going on, defendant stopped.
Issues and Discussion
1. Exclusion of Defendant’s Statements
Before trial began, the People filed a trial brief in which they moved to prohibit the defense from introducing out of court statements made by defendant by having other witnesses testify about them. The People asserted that if defendant wanted to introduce his statements, he must take the stand or find an exception, other than Evidence Code section 1220 (for statements offered against a party) that applied.
During a hearing on the motion, the prosecutor pointed out that her motion was directed at “Miranda statements” defendant had made. The trial court told defense counsel it was unaware of any authority for admitting them, as they were admissible only against, and not for, a party, which would be under the admission of a party opponent exception to the hearsay rule. (Evid. Code, § 1220) Defense counsel then abandoned his previously asserted position that defendant’s statements were spontaneous, and claimed that they were admissible as non-hearsay evidence of his state of mind, which were relevant to the self-defense he was going to claim. The trial court responded, “The way you get... a self-defense claim heard is usually testimony of the person [that he]... has a right to self[-]defense. [¶]... [¶]... I’ll listen to whatever authority you... might want to provide me, but it... doesn’t come in. His... self-serving statements to someone-no.” Defense counsel made no further argument about the matter.
Miranda v. Arizona (1966) 384 U.S. 436.
At trial, during cross-examination of the victim, defense counsel asked him if he had stabbed defendant in the arm in 1978. The prosecutor objected on the basis of relevancy and the trial court sustained her objection, saying to defense counsel, “[T]here has been nothing in my opinion to justify the giving of a self-defense instruction, so I’m not going to be instructing on self-defense on the state of the evidence.” Defense counsel agreed. The trial court added that if defendant took the stand and claimed self-defense, then such evidence would be relevant to the issue whether defendant had a reason to be afraid of the victim. The trial court told defense counsel, “... Unless you can get the [police officer who responded to the scene of the instant incident] to establish a reasonable scenario that it look[ed] like [defendant] was protecting himself-I haven’t heard anything like that, so right now I’m not instructing on self-defense.”
During cross-examination of the officer who responded to the scene, defense counsel asked him if he found any physical evidence to indicate that the victim was actually the aggressor in this incident. The officer said he did not. The officer testified that when he spoke to defendant at the scene, the latter was visually still very angry and emotional, and the altercation had happened a few minutes before. Defense counsel then asked the officer whether defendant told the officer that he was defending himself when he was angry and emotional. The prosecutor’s hearsay objection was sustained. Defense counsel asked to approach the bench and the trial court denied his request, saying a ruling had been made on this subject during the pretrial motion. Defense counsel then asked the officer if he had asked defendant whether defendant had been attacked. The prosecutor’s relevancy objection was sustained and the trial court instructed counsel to approach the bench. The trial court told defense counsel that he could not get defendant’s statements in through the officer and that it had already so ruled. Defense counsel said that he was not trying to get defendant’s statements to the officer in, but what the officer had asked defendant. The trial court said that that was irrelevant. The court added that defendant’s statements to the officer were hearsay and irrelevant and such self-serving statements could not be admitted that way-that if counsel wanted them in, he should put defendant on the stand. Then defense counsel said, “[I]f you... noticed[, ] the questions I asked are very specific to spontaneous statements.” The court responded, “You don’t get his spontaneous statements in. We ruled on that.”
In contending that the trial court abused its discretion (People v. Waidla (2000) 22 Cal.4th 690, 725 (Waidla)) in excluding defendant’s statements to the officer, defendant, for the first time, specifies what those statements were. According to the report authored by the officer, defendant told him that when the victim arrived at the home, he charged at defendant, who picked up a stick and attempted to defend himself as the victim rushed him. Defendant claimed that he used the stick only to scare the victim away.
Defendant asserts that his statements to the officer were admissible as spontaneous declarations. We will assume that he asserted this basis during trial by saying, “... [T]he questions I asked were very specific to spontaneous statements, ” and the trial court contemporaneously rejected it, although it erroneously thought it had rejected it earlier. We conclude that the trial court did not abuse its discretion in excluding them because it reasonably concluded that an insufficient foundation for their admission as spontaneous declarations had been laid.
While the officer testified that defendant was angry and emotional while speaking to him, there was no evidence that defendant was in that state because the victim had allegedly just charged at him. Defendant had been angry at the victim and emotional for some time before the physical confrontation occurred between them. Evidence Code section 1240 requires that defendant’s statements be made “spontaneously while [he] was under the stress of excitement caused by” the victim charging at him (italics added). If his anger and emotion were merely a continuation of that which he had been experiencing for some time up to that point, which had not resulted from the victim assertedly charging him, his statements were inadmissible under Evidence Code 1240.
Also, “the [statements] must [be made] before there [was] time to contrive and misrepresent.” (People v. Lynch (2010) 50 Cal.4th 693, 752 (Lynch).) Here, the statements were made after defendant had been questioned by two other officers and after he had been Mirandized by this officer. Next, contrary to defendant’s assertion, the fact that the statements were self-serving is a legitimate consideration in determining whether they are spontaneous declarations. (See Lynch, at p. 754; People v. Farmer (1989), 47 Cal.3d 888, 904 (Farmer) [disapproved on other grounds in Waidla, supra, 22 Cal.4th at p. 724, fn. 6]; People v. Keelin (1955) 136 Cal.App.2d 860, 870, 871.)
Indeed, “the basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker’s actual impressions and belief. [¶] The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is... not the nature of the statement but the mental state of the speaker. The nature of the utterance-how long it was made after the startling incident and whether the speaker blurted it out, for example-may be important, but solely as an indicator of the mental state of the declarant. The fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation....” (Farmer, supra, 47 Cal.3d 888, 903-904.)
At the time the trial court ruled that defendant’s statements were not admissible as spontaneous declarations, the victim had testified that defendant had responded to all his attempts to find out what was going on with anger and verbal abuse. Nothing presented by defendant contradicted this and it was supported in large part by the testimony of the mother. The 911 tape, which was played for the jury before the trial court made it ruling, also demonstrated that defendant was very angry at the victim. Defendant’s anger towards the victim and his realization, after the police arrived, that he might be arrested, gave him a motive to fabricate these statements to the third officer who spoke to him.
Moreover, even if the exclusion of defendant’s statements constituted an abuse of the trial court’s discretion, the court’s ruling did not prejudice defendant sufficiently to justify reversal of his convictions. The two other witnesses to the incident, the victim and the mother, did not corroborate defendant’s account of the confrontation between him and the victim. Additionally, defendant’s statements were that he used a stick to defend himself against the victim. He specifically denied to the officer having either a hammer or an axe (the latter served as the basis for his conviction of exhibiting a deadly weapon). However, defendant had been charged with and convicted of assaulting the victim with a hammer, not a stick. Finally, in his opening statement to the jury, defense counsel said, “... [W]e’ll see exactly what the evidence shows about the details, whether that was reasonable on defendant’s behalf to do what [he] did, allegedly pull out his hammer-his working hammer. We’ll see. Did he intend to scare [the victim] away or did he intend to... defend himself if he was attacked? Self-defense, that’s what I’m getting at. I believe the evidence will show that to some [extent] or another....” If defendant had succeeded in getting his statements to the officer admitted into evidence, he would have had a lot of explaining to do-specifically, why he claimed he defended himself against the victim with a stick, not a hammer, when his attorney claimed he had done so with a hammer.
2. Trial Court’s Refusal to Give Instructions on Self-Defense
After the case was closed to evidence, and out of the presence of the jury, defense counsel pointed to a portion of the 911 call that recorded defendant’s statement to the victim that “you tried to run up, you tried to grab me” as the basis for a claim that defendant was entitled to instructions on self-defense. The court ruled that these statements were an insufficient basis for giving the instructions because they failed to provide the jury what it needed to conclude that defendant reasonably believed that the immediate use of force was necessary to defend against any specific danger.
Defendant here contends that the trial court erred. We do not agree with defendant that the mother’s testimony that she did not hear defendant threaten the victim with violence over the phone, that she yelled nine times for the victim to stay away and did not yell at defendant to move, that she did not see the victim run from defendant and that the victim did not appear to be afraid, but angry made such an instruction appropriate. Nor do we agree that the victim’s testimony that he was not afraid defendant was going to hit him because he felt like he was in control, that when he arrived, he walked towards defendant, asking him what his problem was and that he did not tell the responding officer that defendant attacked him constituted sufficient evidence to support instructions on self-defense. We also do not agree with defendant that the trial court should have allowed defense counsel to ask the victim if he had stabbed defendant in the arm in 1978. First, the trial court correctly ruled that there was no evidence at that point of self-defense; therefore, the evidence was irrelevant. Moreover, since defense counsel made no offer of proof that the victim had, indeed, stabbed defendant in the arm in 1978, he cannot here claim that he was prejudiced by the trial court sustaining the prosecutor’s objection.
Defendant contends that the trial court must instruct on self-defense if he is relying on it, despite the lack of evidence supporting it. This is not the law. (People v. Rubalcava (2000) 23 Cal.4th 322, 333, 334; People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12; People v. Mayberry (1975) 15 Cal.3d 143, 151; People v. Hill (2005) 131 Cal.App.4th 1089, 1101, disapproved on other grounds in People v. French (2008) 43 Cal.4th 36.)
3. Reimbursement of a Portion of the Costs of Appointment of Counsel, the Cost of Preparing the Probation Report and the Cost of Probation Supervision
The sentencing court ordered defendant to pay: $150 towards the costs of his appointed trial counsel, $505 for the cost of preparing the probation report and $15 per month toward the cost of probation supervision. The court told defendant that he could pay these, along with reimbursement of his booking fee, over time, specifically, at a rate of $20 per month, beginning within 30 days of his release from local custody, the latter being a condition of his probation. Defendant responded to the court’s offer to allow him to pay over time, thusly, “I can pay it all....” The court then told defendant he could pay it off on time if he wanted. Defendant responded, “I can.”
Despite this, defendant here contends that the trial court’s failure to hold a noticed hearing and make a determination that he had the present ability to pay the $150 towards the cost of appointment of counsel, as required by section 987.8, subdivision (b), compels us to reverse that order. That section provides, in pertinent part, “... [T]he court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost [of]... provided legal assistance.” However, as defendant, himself, points out, the order to pay may be upheld if substantial evidence supports a finding of his present ability to pay. (People v. Viray (2006) 134 Cal.App.4th 1186, 1217.) We agree with the People that defendant’s admission that he could presently afford the entire $150 for this cost constitutes substantial evidence of his ability to pay. Additionally, the probation report, of which the defense received a copy, contained as one of the probation officer’s recommended conditions of probation that defendant pay this amount. The trial court made the order during the sentencing hearing, at which defendant and his attorney had a right to speak on the matter, and, in fact, defendant did. Therefore, defendant received all the things required by section 987.8, subdivision (b), i.e., a noticed hearing, during which the trial court impliedly found that defendant had the present ability to pay $150, which finding is supported by substantial evidence.
Defendant draws our attention to the fact that he was unemployed at the time of the hearing due to a disability, while ignoring the fact that he collected $850 per month in disability benefits. Additionally, defendant’s mother testified at trial that he paid her $400 per month for rent, but only began paying that recently because he received a settlement from an accident that had occurred the year before.
Defendant also asserts that the trial court failed to determine that he had the ability to pay the costs of probation supervision and the costs of preparing the probation report by considering only the period of one year from the date of the hearing, as required by section 1203.1b, subdivision (e)(2). Defendant here contends that these orders should be reversed because there was no evidentiary hearing on defendant’s ability to pay, there was no evidence the sentencing court considered defendant’s financial position over the next year and there is insufficient evidence to support the orders. However, as with the order concerning the costs of appointed counsel, there was a hearing and defendant’s representation that he could afford to pay these costs immediately meant that the trial court considered his ability during the next year to pay and is sufficient evidence to support the orders.
Disposition
The judgment is affirmed.
We concur: RICHLI, J., CODRINGTON, J.