P. v. Asserope

Filed 7/23/08 P. v. Asserope CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Douglas W. Sortino, Judge. Affirmed.

Tara K. Allen, 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, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.

___________________________________

Ernest Asserope appeals from the judgment (order granting probation) entered following a jury trial in which he was convicted of misdemeanor battery of a spouse and dissuading a witness from reporting a crime arising out of an incident that occurred on June 9, 2006, and making a criminal threat on August 4, 2006. He contends that the trial court committed prejudicial error in admitting evidence of a 911 call and failing to instruct on self-defense. We affirm.

BACKGROUND

In June 2006, defendant and his wife, Florence Evans, resided together in Los Angeles with their nine-year-old daughter and six-year-old son. Defendant and Evans were both employed by Cedars Sinai Medical Center. Due to marital problems, they had not shared a bedroom for over a year.

On June 9, 2006, defendant and Evans got into an argument about whether defendant would watch the children while Evans went to work. Defendant said he would not do so and became angry. He grabbed Evans by the neck and began to choke her. He next struck Evans in the head and kicked her while she was on the floor. Defendant also threatened to kill Evans if she called the police. Defendant eventually released Evans. She went to a neighbors home and called the police. After the call, she went back to her house to check on the children. Defendant was gone. (Evans later learned that he went to live with a friend.) When police officers arrived, Evans described the incident to them.

After the incident, defendant continued to have contact with his children, sometimes visiting them at school. As of August 4, 2006, Evanss car was disabled because it had been vandalized. She asked coworker James Whitaker to drive her to school to pick up her son that day. Whitaker did so and waited in the car while Evans went into the school. As Whitaker waited, defendant drove up, cursed at Whitaker, and asked him to leave. Whitaker said he would not leave unless Evans asked him to, whereupon defendant pointed a handgun at Whitaker and threatened to shoot if Whitaker did not leave. When Evans returned to the car with her son, defendant turned the gun toward her and threatened to kill her. (This threat provided the basis of defendants conviction of making a criminal threat.) Evans next ran back into the school and Whitaker drove away.

Once inside the school again, Evans called 911. She told the dispatcher that her husband was threatening her with a gun. Whitaker later drove back to the school to pick up Evans and her son. They next went to the police station, where Evans made a report about the incident.

Testifying on his own behalf, defendant stated that sometime during April or May 2006, he concluded that Evans was having an affair with Whitaker. On June 9, he told Evans that he was going to leave her and asked for a divorce. Evans became upset, asked defendant to stay, and pulled on his arms in an attempt to keep him from leaving, causing scratches. (Defendant photographed these scratches about a week later, and the photos were admitted into evidence.) Defendant denied having hit or kicked Evans on June 9 or at any other time.

Defendant continued that on August 4, 2006, while he and Evans were at work, Evans asked him to pick up the children at school. When defendant arrived, he saw Whitaker parked outside. Defendant denied having pointed a firearm at Whitaker or otherwise threatening him.

DISCUSSION

1. Evidence of 911 Call

Before Evans took the stand at trial, a hearing was held on the prosecutors request to admit into evidence a tape recording and transcript of Evanss 911 call of August 4, 2006. The prosecutor argued that the evidence qualified under the spontaneous statement exception to the hearsay rule of Evidence Code section 1240.^[1] Defendant countered, among other arguments, that two portions of the call did not qualify under the exception because they did not purport to describe a condition or event that Evans had perceived.^[2] The prosecutor noted that one of the elements of making a criminal threat is that the victim be in sustained fear and argued that references to prior threats were therefore relevant.^[3] Defendant countered by interposing an objection under Evidence Code section 352.

The court ruled that the unredacted tape and transcript could be presented to the jury, concluding the evidence went to the element of Evanss sustained fear and that the probative value of the evidence outweighed its prejudicial effect. Evans then took the stand. At the conclusion of the prosecutors direct examination, the tape was played in open court and a transcript was provided to the jury.

Defendant contends that the trial court prejudicially abused its discretion in failing to redact evidence regarding the 911 call. The contention is unavailing.

To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. [Citations.]

The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [] The basis for this circumstantial probability of trustworthiness is that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of ones actual impressions and belief. [Citation.] (People v. Poggi (1988) 45 Cal.3d 306, 318.)

Defendant does not contest the relevance of the 911 call. Rather, he argues that the portions of the call that are italicized in footnote 2 should have been excised as hearsay because they did not purport to narrate, describe, or explain events occurring at or near the time of the call, as required by Evidence Code section 1240.

Although Evanss references to stalking and threatening to kill her arguably referred to defendants conduct at the time of the call on August 4, 2006, the two statements about what had occurred two months ago did not. But to the extent the trial court erred in failing to excise the improper hearsay statements, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) At the time the tape was played, Evans had already testified that on June 9, 2006 (approximately two months ago), defendant had been abusive, threatened to kill her, and moved out of the house. And given a second threat to kill Evans on August 4, Evanss references to defendants stalking and harassment in the intervening period could not have prejudiced defendant. Defendants contention of reversible error must therefore be rejected.

2. Self-defense Instructions

Defendants jury was instructed under CALCRIM No. 841 on battery against a spouse. The instruction contains an optional provision on self-defense, which defendant did not request and the trial court did not read. Defendant contends that the trial court had a sua sponte duty to instruct with the self-defense provision. We disagree.

A trial courts duty to instruct, sua sponte, on particular defenses arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. [Citations.] (People v. Maury (2003) 30 Cal.4th 342, 424.) The question of whether substantial evidence exists is one of law. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)

Defendants contention relies on evidence of the scratches he testified Evans had inflicted during the June 9, 2006 altercation. In addition, defendant testified that Evans hit him on other occasions and had thrashed the belongings he left behind when he moved out. But self-defense would be relevant only if defendant had struck Evans to defend himself. Such a notion would be inconsistent with the defense proffered at trial that defendant did not hit or kick on June 9 or at any other time. Accordingly, the trial court did not err by failing to instruct on self-defense.

DISPOSITION

The judgment (order granting probation) is affirmed.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

ROTHSCHILD, J.

NEIDORF, J.^*

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^[1]Evidence Code section 1240 provides: Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.

^[2]The transcript of the tape provides as follows (the portions that defendant asserted did not qualify as spontaneous statements are in italics):

Caller: Come here, Come here

Operator: Operator 394

Caller: yeah, hold on.

Caller 2: Hello?

Operator: Yes.

Caller 2: Um, I left my husband like about two months ago . . . hes been stalking me and threatening to kill me.

Operator: Okay

Caller 2: and . . . I have a co-worker cause my cars on the blink; he pulled a gun out on me and the car driver . . . the car driver, hes, hes trailing him right now with a gun, pointed at myat the, at the driver.

Operator: Whats the addwhats the address?

Caller 2: (uh, what is the address here?) 2101 West 24th Street.

Operator: Is the guy with the gun, is he White, Black, Hispanic?

Caller 2: Hes uh, Black.

Operator: What is he wearing?

Caller 2: Hes, hes wearing a white and blue bomber jacket, but hes in a blue Lexus. Im not sure of the um, license plates.

Operator: Is it in front of this address?

Caller 2: Yes, he was trailing him around the block.

Operator: And what kind of car is your friend in?

Caller 2: Amy friend is in a Toyota uh, SemaIm not sure of theSemata, Im not sure.

Caller 2: It happened at the Childrens Center where my child is hysterical right now. And hes following the guy right now in the blue Toyota. And hes in a blue Lexus. They turned [on] Gramercy and even um, and even another parent is crying with her kids.

Operator: Last seen turn on Gramercy.

Caller 2: Yeah.

Operator: Your name?

Caller 2: uh, Florence.

Operator: Okay, were going to send the police there, and uh, what are you wearing, are you inside?

Caller 2: Im inside the center, the childrens center.

Operator: Alright, inside. And the guy with the gun, this is a ex-boyfriend, or

Caller 2: Ex-husband, well we separated because I had to put him out because of his abusive ways. The police had to come to the house, and I put him out two months ago. Hes been harassing me, stalking me, and everything since then. And now the caller thats being chased, is on my cell phone right now.

Operator: Okay, and

Caller 2: (hello?)

Operator: the person that hes chasing

Caller 2: (Im on the phone with the police, Im on the phone with the police, can, can you come back? Thank you, come back) Hello?

Operator: And the person hes chasing is that your boyfriend?

Caller 2: Uh, no, its a co-worker, thats been helping me out, um, bringing, you know helping me out cause my car is in the shop.

Operator: Okay, were sending an officer out, Florence.

Caller 2: Thank you.

Operator: Thanks, bye.

^[3]Penal Code section 422 provides in pertinent part: Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished . . . . (Italics added.)

^*Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.