Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC619064
Mihara, J.
By amended information filed June 7, 2006, defendant Joseph Anthony Melero was charged with battery inflicting great bodily injury on Lena Shaw (Pen. Code, §§ 242-243, subd. (d), 667, 1192.7; count 1), battery inflicting great bodily injury on Ian Rodriguez (Pen. Code, §§ 242-243, subd. (d), 667, 1192.7; count 2), resisting arrest (Pen. Code, § 69; count 3), and resisting an officer (Pen. Code, § 148, subd. (a)(1); count 4). The information also alleged a previous strike conviction (§§ 667.5, subd. (c), 1192.7, subd. (c)), a prior serious felony conviction (§§ 667, subd. (a), 1192.7), and a prior prison term (§ 667.5, subd. (b)). On June 26, 2006, a jury acquitted defendant on count 1, the battery involving Shaw, but found defendant guilty of the three remaining charges. The jury also found the special allegations to be true. On November 9, 2006, the trial court denied defendant’s motion for a new trial and sentenced defendant to 11 years in prison. Defendant was ordered to pay, among other things, $8,000 in restitution to Rodriguez. On appeal, defendant contends the court erred (1) in refusing to give the self-defense instruction set forth in CALCRIM No. 3470 as to count 2, (2) in striking witness testimony related to the defense of self-defense, and (3) in awarding $8,000 in restitution to compensate Rodriguez for lost wages.
All further statutory references are to the Penal Code unless otherwise noted.
I. Background
A. Prosecution
At approximately 2:00 a.m. on January 29, 2006, Lena Shaw left Blinky’s, a bar in Santa Clara. Blinky’s shares a parking lot with another bar, Claran Lounge. In the parking lot, Shaw observed an argument between a man (defendant) and a woman (Ta’Lana Carr). Shaw, who had been drinking, decided to intervene even though she did not know defendant or Carr. She told defendant that he should not be treating a woman that way, and he told her to leave. Neither defendant nor Carr appeared to welcome Shaw’s involvement. The argument between Shaw and defendant escalated as they yelled profanities at each other. Carr stood between them to stop the argument.
At one point, Shaw turned and left, but a comment caused her to return to defendant. According to Shaw, they continued to argue, and she put up her hands in self-defense as defendant came close to her. Shaw’s hands made contact with defendant’s chest. Defendant punched her and she fell forward on her face. Shaw bruised her face, chipped a couple of teeth, and lost consciousness. She was taken to the emergency room for treatment and saw a dentist twice for follow-up care.
Meanwhile, Ian Rodriguez arrived at the parking lot around 2:00 a.m. to pick up a friend from Claran Lounge. He had not been drinking. A verbal altercation between a man (defendant) and a woman (Shaw) attracted his attention. He saw defendant hit Shaw in the face, and testified that she fell backward onto the ground. Rodriguez, who had been a military policeman and had received some medical training, went to Shaw’s aid, passing defendant on the way. Defendant had taken an aggressive stance and was yelling. Rodriguez knelt down next to Shaw and attempted to help her. About two or three minutes later, he felt a tap on his shoulder and looked up. Defendant punched him in the face. Rodriguez did not remember much of the evening after being punched.
The next day, Rodriguez went to the emergency room for treatment and learned that his jaw was fractured in two places. A metal plate was installed and his jaw wired shut during surgery. Rodriguez was unable to eat solid foods for approximately six weeks. He lost his job due to his inability to work with his jaw was wired shut, and he lost 25 pounds. A second surgery was required to remove the wire bars holding his jaw closed.
One police officer testified regarding defendant’s arrest. As the officer arrived on the scene, defendant refused orders to stop and ran down the street and onto residential property. Officers eventually surrounded and tackled defendant. He refused orders to show the officers his hands and they forcibly moved his hands to place him in handcuffs.
B. Defense
Carr testified on defendant’s behalf. She explained that defendant was at Claran Lounge on January 29 to attend her birthday celebration. After the bar closed, about 1:45 a.m., she and defendant chatted in the parking lot as they waited for defendant’s ride. They did not argue. A woman (Shaw) approached and yelled at defendant. Shaw told defendant she heard him call Carr a bitch. Carr explained that defendant had not done so and they tried to walk away from Shaw. Shaw followed and continued to yell at defendant. Shaw walked up to defendant and pushed him, saying “You think you are bad? You think you are hard?” Carr stood between them and Shaw was momentarily pulled away. Shaw returned, confronted defendant “forehead to forehead[,]” and pushed him a second time. Defendant pushed Shaw away from him and jumped backward. Shaw fell forward to the ground.
After Shaw fell, a man (Rodriguez) came over and inquired into what had happened. He asked Shaw if defendant hit her. Rodriguez then walked toward Blinky’s “and he called a bunch of the guys that were in the bar out[.]” Rodriguez, who defense counsel referred to as “the gentleman,” “seemed to be upset, mad.” Carr explained that defendant walked down a nearby alleyway, “so the gentleman -- it was about 7- 8- 10 of them” followed defendant. Carr walked toward the alleyway to find the group surrounding defendant, who “looked scared.” They yelled at defendant and “he appeared to be afraid, like trapped.” Carr did not see any of the men touch defendant, nor did she see defendant punch anyone. Defendant broke free of the group and Carr watched him jog down the alleyway.
There is some disagreement as to whether this testimony was stricken. However, it appears to this court that the trial court struck only a latter portion of Carr’s testimony and that this particular evidence was before the jury. (See, infra, Section II.B at p. 8.)
Officer Scott Fitzgerald, who interviewed Rodriguez the night of the incident, also testified. Fitzgerald observed injuries around Rodriguez’s mouth, with some “dry blood that was minor.” Rodriguez appeared sober. Rodriguez told Fitzgerald that while in the parking lot he heard a punch and confronted a man in a football jersey (defendant), asking him if he hit the girl. Defendant punched him. Rodriguez did not retaliate, but “turn[ed] his attention back to the female victim on the ground rendering aid.” From what Fitzgerald was told, he believed that Rodriguez attended to Shaw after he was punched.
C. Instructions and Verdict
Defense counsel requested CALCRIM No. 3470, a self-defense instruction, as to counts 1 and 2, the two counts of battery. The instruction was given for count 1 (Shaw), but denied for count 2 (Rodriguez). The jury found defendant not guilty of count 1, but guilty of count 2 and the remaining counts.
II. Discussion
A. Self-Defense Jury Instruction
Defendant contends the trial court erred, and violated his constitutional right to due process, in refusing to provide CALCRIM No. 3470 in relation to count 2. The jury instruction provides that a defendant is not guilty of battery if he or she used force against the other person in lawful self-defense. (CALCRIM No. 3470.) We uphold the trial court’s ruling.
The trial court must give a requested instruction on a defense if there is substantial evidence to support it. (People v. Panah (2005) 35 Cal.4th 395, 484; People v. Oropeza (2007) 151 Cal.App.4th 73, 78 (Oropeza).) “In this context substantial evidence means evidence which is sufficient to deserve consideration by the jury and from which a jury composed of reasonable persons could conclude the particular facts underlying the instruction existed. The trial court is not required to present theories the jury could not reasonably find to exist.” (Oropeza, at p. 78, citing People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201.) However, “[d]oubts as to the sufficiency of the evidence should be resolved in the accused’s favor.” (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)
We apply the same standard on appeal. In doing so, we do not defer to the trial court’s ruling but independently determine whether the evidence warranted instruction. (People v. Waidla (2000) 22 Cal.4th 690, 733, 737; People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.)
An act of self-defense is justified if the defendant holds “an honest and reasonable belief that bodily injury is about to be inflicted upon him.” (People v. Goins (1991) 228 Cal.App.3d 511, 516, italics in original.) “[T]he right of self-defense does not extend beyond the time of real or apparent danger[.]” (People v. Pinholster (1992) 1 Cal.4th 865, 966.) Consistent with this caselaw, CALCRIM No. 3470 explains that the defendant must have “reasonably believed that [he or she] was in imminent danger of suffering bodily injury” and “that the immediate use of force was necessary to defend against that danger[.]” The instruction further provides that a defendant may use no more force than is reasonably necessary to defend against the danger. (CALCRIM No. 3470.)
Defendant did not testify and made no out-of-court comments indicating that when he punched Rodriguez, he believed it necessary to avoid bodily injury. In such a case, “substantial evidence of a defendant’s state of mind may be found in the testimony of witnesses other than a defendant.” (People v. Hill (2005) 131 Cal.App.4th 1089, 1102, disapproved on other grounds.) Carr testified that Rodriguez went to the bar, called out a bunch of men, and the group then followed defendant down an alleyway. Defendant was surrounded by the group and appeared scared and trapped. Rodriguez also stated that while he was helping Shaw, he heard people shouting “‘let’s get him, let’s get him.’” Carr did not state, however, that defendant was scared and/or surrounded by the group at the time he punched Rodriguez. Rodriguez’s role in the group is not defined, nor is defendant’s response to the group. Indeed, Carr testified that she did not see anyone (other than Shaw) touch defendant, and that defendant did not punch anyone. In this context, the mere presence of an angry “mob” is insufficient to justify the self-defense instruction as to defendant’s battery of Rodriguez.
Defendant further contends Carr’s and Fitzgerald’s testimony establishes that defendant punched Rodriguez immediately after he was “confronted by [the] angry man.” The testimony regarding the precise sequence of events is vague, however, and gives no indication of Rodriguez’s demeanor at the time he was punched. Carr stated only that as Rodriguez approached defendant and Shaw, he “asked what happened[.]” Rodriguez “seemed to be . . . mad” as he turned to the bar and followed defendant with a group of men. Fitzgerald stated that Rodriguez told him that he asked defendant if he hit Shaw. In response to defense counsel’s question whether defendant “then hit” Rodriguez, the officer said “[y]es,” and explained that Rodriguez did not retaliate but “turn[ed] his attention back to the female victim on the ground rendering aid.” The officer then confirmed that he believed Rodriguez provided aid to Shaw “after he was struck.”
The People argue that Carr’s testimony on this point is inconsistent. They claim she also testified that Rodriguez stayed with Shaw as the group followed defendant. Defendant appears to agree with this interpretation of the testimony. Both parties cite Carr’s response to a query regarding who was with Shaw when the group surrounded defendant. Carr stated: “It was the same guy that actually told her, you know, Are you still here?” It appears to this court, however, that this is not a reference to Rodriguez. Carr had earlier explained that between Shaw’s first and second push an older gentleman who seemed to know Shaw pulled her aside, saying “Hey, you are still here?” This statement was stricken based on a separate hearsay objection to Carr’s entire answer. It nevertheless suggests that Carr was referring to this unidentified witness, and not to Rodriguez when she explained who was with Shaw at the time defendant was surrounded in the alleyway.
There is no evidence that Rodriguez physically or verbally threatened defendant just prior to the punch. Carr’s observation regarding Rodriguez’s anger is of minimal relevance, as it is not tied to defendant’s purported act of self-defense. Absent further clarification, the phrase “turn[ed] his attention back” could suggest that Rodriguez had already turned his focus to Shaw when he was hit; i.e., he was not directly confronting defendant. However, even if we accept defendant’s interpretation of the testimony (that Rodriguez angrily asked defendant if he hit Shaw just prior to being punched), the evidence is insufficient for a jury to conclude that defendant reasonably believed that the use of force was necessary at the time he punched Rodriguez. Mere questions regarding Shaw’s injury and defendant’s role, in the absence of any threatening gesture by Rodriguez, are insufficient to show a bodily threat to defendant or to establish a reasonable belief in imminent injury.
We concur with the trial court that there was insufficient evidence to support an instruction on self-defense as to count 2. Accordingly, defendant’s due process right to a fair trial was not violated by the court’s exclusion of CALCRIM No. 3470 as to count 2.
B. Exclusion of Witness Testimony
In a related argument, defendant contends the court erred in excluding as hearsay Carr’s testimony “that she heard [] Rodriguez incite a group of about 7 to 10 men to leave the bar and attack [defendant].” We agree with defendant that this type of statement may be admissible to show its effect on defendant, an appropriate non-hearsay purpose. (See People v. Scalzi (1981) 126 Cal.App.3d 901, 907 [extrajudicial statement may be admissible as non-hearsay if it affected hearer’s state of mind]; see also People v. Hines (1997) 15 Cal.4th 997, 1047 [evidence of out-of-court statement admissible if offered for non-hearsay purpose and that purpose is relevant to an issue in dispute].) However, we find no prejudice resulting from the court’s ruling.
After Carr explained that a man (Rodriguez) approached defendant to ask what had happened, she was asked, “And what did this man do?” Carr stated: “Right after that happened, he walked towards -- um, I think there’s a bar, something, or another bar, and he called a bunch of guys that were in the bar out, and saying that, you know, this guy hit this girl, you know. Let’s show this punk that he doesn’t hit girls.” The trial court sustained a hearsay objection, and ruled that “what was said is stricken.” Defense counsel attempted to lay a foundation for the stricken statements, but the ruling was not reversed.
It appears to this court that the trial court struck only the latter portion of Carr’s testimony; i.e., Rodriguez’s statements that defendant hit a girl and that he should be taught a lesson. Carr’s entire answer, including the stricken statements, is relevant only to a claim of self-defense. However, even if we consider the entire answer, there is no evidentiary link between the angry mob and defendant’s fear, and his attack on Rodriguez. The only evidence presented regarding the timing of the attack on Rodriguez suggests that it occurred prior to, or at least separate and apart from, Rodriguez’s gathering of a group to follow and surround defendant. Rodriguez testified that he was punched as he knelt beside Shaw. Fitzgerald testified that Rodriguez was punched just after he approached defendant and Shaw, and that Rodriguez then rendered aid to Shaw. Carr did not see defendant punch Rodriguez.
As the record lacks any indication that defendant hit Rodriguez after he incited an angry mob to attack defendant, the excluded statements are irrelevant. Furthermore, because we found, above, that the trial court properly denied the self-defense instruction, the statements are not relevant to any issue actually in dispute. Accordingly, we find no prejudicial error in the court’s exclusion of Carr’s testimony on this point. (See People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [reversal for erroneous exclusion of evidence only necessary if there is a reasonable probability the admission of the evidence would have brought about a different result]; People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Victim Restitution
Defendant objects to the court’s order of $8,000 in restitution to Rodriguez to cover lost wages. Specifically, defendant contends that there is no factual basis for the amount of restitution ordered. We disagree.
Victims have a constitutional right to restitution for financial losses. (Cal. Const., art. I, § 28, subds. (a) & (b); People v. Carbajal (1995) 10 Cal.4th 1114, 1122.) This constitutional mandate is implemented by section 1202.4, which provides in pertinent part: “[A] victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (§ 1202.4, subd. (a)(1); People v. Mearns (2002) 97 Cal.App.4th 493, 498 (Mearns).) Pursuant to subdivision (f)(3)(D) of section 1202.4, economic loss includes “[w]ages or profits lost due to injury incurred by the victim[.]”
We review an order of restitution under the abuse of discretion standard. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045 (Keichler).) If there is “‘a factual and rational basis for the amount of restitution ordered by the trial court,’” the court did not abuse its discretion. (Mearns, supra, 97 Cal.App.4th at p. 499.) “[S]entencing judges are given virtually unlimited discretion as to the kind of information that they can consider and the source from whence it comes.” (People v. Baumann (1985) 176 Cal.App.3d 67, 81, internal quotation marks omitted.)
Defendant objects to the restitution award because the amount was based solely on Rodriguez’s statement to the probation officer. As set forth in the probation report, Rodriguez informed the probation officer that due to the jaw fracture he lost his job as a car salesman. He was unable to work as a broker, his other form of employment, while his jaw was wired shut. He estimated lost wages of $8,000. Accordingly, the probation officer recommended restitution of $8,000 to Rodriguez.
We find the evidence sufficient. The court may consider the probation report in determining restitution, including hearsay statements from the victims. (Keichler, supra, 129 Cal.App.4th at p. 1048; People v. Foster (1993) 14 Cal.App.4th 939, 946 (Foster), superseded by statute on other grounds.) The claim for lost wages is further supported by Rodriguez’s trial testimony that he was unable to work while his jaw was wired shut, and that he lost his job due to the injury. Moreover, if “the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.” (Foster, at p. 947.) Defendant did not object to the factual basis for the restitution award nor did he offer any contrary information.
We conclude that there is a factual basis for the court’s award of $8,000 in restitution to Rodriguez, and we find no abuse of discretion.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.