Filed 9/8/20 P. v. Statum CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

DAYMOND STATUM,

Defendant and Appellant.

B297613

Los Angeles County

Super. Ct. No. YA097807

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Hector Guzman, Judge. Reversed and remanded 

with instructions.

Robert A. Werth, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Acting 

Senior Attorney General, Michael R. Johnson and Theresa A. 

Patterson, Deputy Attorneys General, for Plaintiff and 

Respondent. 
2

INTRODUCTION

A jury convicted defendant and appellant Daymond Statum 

of corporal injury to a cohabitant within seven years of a prior 

conviction, in violation of Penal Code section 273.5, subdivision 

(f)(1).

1 The jury also found true the allegations that Statum 

personally used a deadly and dangerous weapon, a ceramic bowl 

(§ 12022, subd. (b)(1)), and that Statum personally inflicted great 

bodily injury. (§ 12022.7, subd. (e).)

Statum raises three issues on appeal. First, he argues the 

trial court erred by improperly admitting testimony about 

statements made by the victim. Statum alleges the statements 

were hearsay and did not fall within the spontaneous statement 

exception to the hearsay rule. Second, Statum argues the weapon 

use and great bodily injury enhancements should be stricken 

because they are unsupported by substantial evidence. Finally, 

Statum contends the trial court erroneously imposed a Domestic 

Violence Fund Fee. We reject Statum's first two arguments, but 

remand the case to the trial court with instructions to strike the 

domestic violence fee.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an

information against Statum alleging one count of corporal injury 

to a cohabitant after a prior conviction of corporal injury to a 

1 All undesignated statutory references are to the Penal 

Code.
3

cohabitant within seven years. (§§ 273.5, subd. (a), 273.5, subd. 

(f)(1).) The information also alleged Statum (1) personally used a 

deadly and dangerous weapon, a ceramic bowl, and (2) personally 

inflicted great bodily injury upon the victim. (§§ 12022, subd. 

(b)(1), 12202.7, subd. (e).) It further alleged Statum sustained a 

prior strike conviction. (§§ 1170.12 subd. (a), 667, subds. (b)-(i).)

The jury found Statum guilty and found the weapon use and 

great bodily injury enhancements true. The court found the prior 

strike true in a bifurcated proceeding outside the presence of the 

jury. 

The trial court sentenced Statum to the mid-term of four 

years as to the base count, doubled to eight years because he 

sustained a prior strike conviction. The court also imposed the 

low term of three years pursuant to section 12022.7, subdivision

(e) and an additional one year under section 12022, subdivision

(b)(1). Finally, the trial court imposed a $500.00 Domestic 

Violence Fund Fee pursuant to section 1203.097, subdivision 

(a)(5).

FACTUAL BACKGROUND

Statum lived with the victim, Antaneka Watson, along with 

their three children. On December 28, 2017, Statum and Watson

were lying in bed watching television. Statum was eating cereal 

from a bowl. The couple argued and Statum suddenly stood up. 

Immediately after, Watson realized she was bleeding from her 

mouth. Watson did not see what caused her bleeding, but she had 

milk and cereal on her. Watson went to the bathroom and saw 

her tooth was cracked. After Watson told defendant she was 

going to call the police, she ran to the apartment complex 
4

management office. Once in the management office, Watson 

spoke to an apartment complex employee, Latrice Clay. 

Immediately after, Watson called 911. Watson told the 911 

operator the father of her children had “busted open” her head 

and tooth. 

Clay was in the apartment complex office when Watson 

entered the office lobby. Clay observed Watson crying, shaking, 

and bleeding from the forehead and mouth. Clay also observed 

Watson had cereal and milk in her hair. After Watson hung up 

with 911, Clay asked her what had happened. Watson said the 

father of her children had hit her in the face with a bowl. 

Police arrived and took photographs of Watson’s injuries, 

which included a cut on her forehead, a cut on her mouth, and a 

chipped tooth. Watson took pain medication for a day and went to 

a dentist to have her tooth fixed. 

At trial, Watson testified about a prior domestic violence 

incident involving defendant. Watson claimed she could not recall 

many details because the incident occurred several years prior, 

on March 27, 2017. A Los Angeles County Deputy Sherriff 

provided additional details of the incident. Watson and Statum

had engaged in an argument. Statum subsequently punched 

Watson five to six times and slapped her in the face. As a result, 

Watson fell to the floor while holding her son. The deputy sheriff 

observed a bump on Watson’s forehead and a laceration on her 

back. The parties stipulated Statum was convicted of a section 

273.5 violation as a result of the incident.
5

DISCUSSION

I. Statum’s Evidentiary Argument

Statum contends the trial court erred by admitting the 

statements Watson made to the apartment complex employee, 

Clay. Specifically, he asserts the statements were hearsay and 

thus inadmissible, and the trial court erred by concluding they

were admissible under the spontaneous statement exception to 

the hearsay rule. 

1. Background 

The trial court held an Evidence Code section 402 hearing 

to determine whether the statements were admissible. It found 

Clay’s statements fell within the spontaneous statement 

exception to the hearsay rule. (Evid. Code § 1240.) The trial court

pointed to Watson’s demeanor while she made the statements. 

She was “screaming[,] shaking[,] crying.” Because of her 

demeanor, the trial court found Watson was still “under the 

stress of excitement[,] when speaking to Clay.” On appeal, 

defendant contends Watson’s statements were not spontaneous 

because she had ample opportunity to regain her composure 

before making the statements to Clay.

2. Legal principles

“‘The decision to admit evidence under . . . section 1240 is 

reviewed for abuse of discretion. “Whether the requirements of 

the spontaneous statement exception are satisfied in any given 

case is, in general, largely a question of fact . . . . In performing 
6

this [analysis], the court ‘necessarily [exercises] some element of 

discretion. . . .’”’ We will uphold the trial court’s determination if 

its resolution of factual questions is supported by substantial 

evidence. We review for abuse of discretion the ultimate decision 

whether to admit the evidence.” (People v. Stanphill (2009) 170 

Cal.App.4th 61, 73, citations omitted.)

Under Evidence Code 1240, “[e]vidence of a statement is not 

made inadmissible by the hearsay rule if the statement: [¶] 

(a) [p]urports to narrate, describe, or explain an act, condition, or 

event perceived by the declarant; and [¶] (b) [w]as made 

spontaneously while the declarant was under the stress of 

excitement caused by such perception.” Purported spontaneous 

statements require “‘(1). . . some occurrence startling enough to 

produce [ ] 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 [still] dominate[s] and the reflective 

powers [remain] in abeyance; and (3) the utterance must relate to 

the circumstance of the occurrence preceding it.’ [Citations.]”

(People v. Poggi (1988) 45 Cal.3d 306, 318; cf. People v. Bryant, 

Smith and Wheeler (2014) 60 Cal.4th 335, 416; People v. 

Merriman (2014) 60 Cal.4th 1, 64.)

“‘“Whether the requirements of the spontaneous statement 

exception are satisfied in any given case is, in general, largely a 

question of fact. [Citation.]”’” (People v. Stanphill, supra, 170 

Cal.App.4th 61, 73.) “The crucial element in determining whether 

an out-of-court statement is admissible as a spontaneous 

declaration is the mental state of the speaker. [Citation.]” (People 

v. Gutierrez (2009) 45 Cal.4th 789, 811.) The court considers a 

“number of factors” in determining whether “the declarant was 
7

still under the stress and excitement of the startling event and 

before there was ‘time to contrive and misrepresent.’ [Citation.] 

Such factors include the passage of time between the startling 

event and the statement, whether the declarant blurted out the 

statement or made it in response to questioning, the declarant's 

emotional state and physical condition at the time of making the 

statement, and whether the content of the statement suggested 

an opportunity for reflection and fabrication. [Citations.]” (People 

v. Merriman, supra, 60 Cal.4th at p. 64; see, e.g. People v. Brown 

(2003) 31 Cal.4th 518, 541 [the trial court properly considered the 

declarant “was crying, shaking and visibly upset” when making 

the statement].) “[N]o one factor or combination of factors is 

dispositive. [Citations.]” (People v. Merriman, supra, 60 Cal.4th 1, 

64-65.)

“Because the . . . requirement. . . that the statement was 

made before there was ‘“time to contrive and misrepresent,”’ 

‘relates to the peculiar facts of the individual case more than the 

[other requirements] [citations], the discretion of the trial court is 

at its broadest when it determines whether this requirement is 

met.’ [Citation.]” (People v. Lynch (2010) 50 Cal.4th 693, 752.)

While a lapse in time is relevant to the spontaneous statement 

analysis, “‘[t]he amount of time that passes between a startling 

event and subsequent declaration is not dispositive[.] [The 

amount of time] will be scrutinized, along with other factors, to 

determine if the speaker’s mental state remains excited.’

[Citations.]” (People v. Clark (2011) 52 Cal.4th 856, 926 [sevenhour time lapse between event and utterance “retained . . . 

spontaneity because . . . [declarant’s] mental and physical 

condition prevented her from reflecting on and fabricating her 

account of what had happened. [Citations.]”]; see People v. 
8

Penunuri (2018) 5 Cal.5th 126, 152-153 [“trial court did not abuse 

its discretion in concluding [the declarant] was still in an excited 

and unreflective state of stress” 20-40 minutes after startling 

occurrence].) “‘Although . . . responses to detailed questioning are 

likely to lack spontaneity, . . . an answer to a simple inquiry may 

be spontaneous. [Citation.] The trial court must consider each 

fact pattern on its own merits and is vested with reasonable 

discretion in the matter. [Citation.]’ [Citation.]” (People v. 

Stanphill, supra, 170 Cal.App.4th at p. 73.)

3. Analysis

Applying the above-stated principles, we reject Statum’s 

contention that the trial court abused its discretion. Watson was 

caught off guard when the bowl hit her in the face. She became 

even more startled when she realized she was bleeding from her 

face and that her front tooth was chipped. Watson was still 

crying, shaking, and yelling when she arrived at the management 

office and spoke to Clay. While some time had passed since 

Statum had hit her in the face with the bowl, the record indicates 

she was still in a state of unreflective stress. Further, she was 

still covered in milk and cereal from the incident and had not had 

the opportunity to clean herself. The statements made by Watson 

to Clay related specifically to what had happened between her 

and Statum. We therefore find the trial court did not abuse its 

discretion in finding the statements Watson made to Clay fell 

within the spontaneous statement exception to the hearsay rule. 
9

II. The Sentencing Enhancements Were Supported by 

Substantial Evidence

Statum argues the great bodily injury (§12022.7, subd. (e)) 

and personal use of a dangerous or deadly weapon (§ 12022, subd. 

(b)(1)) enhancements were not supported by substantial evidence.

We disagree. We will discuss each enhancement in turn.

1. Great Bodily Injury Enhancement 

Statum argues the great bodily injury enhancement should 

be stricken because the injuries Watson sustained were only 

“minor or moderate harm.” He therefore argues the section

12022.7, subdivision (e) enhancement must be vacated. We 

disagree.

Under section 12022.7, subdivision (e), “[a]ny person who 

personally inflicts great bodily injury under circumstances 

involving domestic violence in the commission of a felony or 

attempted felony shall be punished by an additional and 

consecutive term of imprisonment in the state prison for three, 

four, or five years.” Great bodily injury is defined as “significant 

or substantial physical injury.” (§ 12022.7, subd. (f).)

“The determination of whether the harm resulting to the 

victim constitutes great bodily injury is a question of fact, and the 

finding will be upheld if there is sufficient evidence to sustain it. 

[Citation.] ‘A fine line can divide an injury from being significant 

or substantial from an injury that does not quite meet the 

description. Clearly it is the trier of fact that must in most 

situations make the determination.’ [Citations.]” (People v. Lopez

(1986) 176 Cal.App.3d 460, 463.) “‘“If there is sufficient evidence 
10

to sustain the jury’s finding of great bodily injury, we are bound 

to accept it, even though the circumstances might reasonably be 

reconciled with a contrary finding.”’ [Citations.]” (People v. 

Escobar (1992) 3 Cal.4th 740, 750.) “Proof that a victim's bodily 

injury is ‘great’—that is, significant or substantial within the 

meaning of section 12022.7—is commonly established by evidence 

of the severity of the victim’s physical injury, the resulting pain, 

or the medical care required to treat or repair the injury.

[Citations.]” (People v. Cross (2008) 45 Cal.4th 58, 66.) There is 

“no specific requirement that the victim suffer ‘permanent,’ 

‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of 

bodily function.” (People v. Escobar, supra, 3 Cal. 4th at p. 750.)

“Abrasions, lacerations, and bruising can constitute great bodily 

injury. [Citation.]” (People v. Jung (1999) 71 Cal.App.4th 1036, 

1042.)

Here, Watson suffered cuts on her mouth and forehead and 

a chipped tooth. Watson took pain medication for a day and went 

to a dentist to have her tooth fixed. While Watson’s injuries were 

not permanent, the jury was entitled to conclude they constituted

great bodily injury. We therefore find the great bodily injury 

enhancement was supported by substantial evidence.

2. Dangerous or Deadly Weapon Enhancement

Statum next argues the weapon use enhancement is not 

supported by substantial evidence because the ceramic bowl was 

not a dangerous or deadly weapon. 

Under section 12022, subdivision (b)(1), “A person who 

personally uses a deadly or dangerous weapon in the commission 

of a felony or attempted felony shall be punished by an additional 
11

and consecutive term of imprisonment in the state prison for one 

year, unless use of a deadly or dangerous weapon is an element of 

that offense.”

“There are two categories of ‘dangerous or deadly weapons.’

First, there are those instrumentalities which are weapons in the 

strict sense of the word, such as guns, dirks, etc. Second, there 

are those instrumentalities which are not weapons in the strict 

sense of the word, but which may be used as such, such as . . . 

heavy objects. These are not weapons in the strict sense of the 

word and are not ‘dangerous or deadly’ to others in the ordinary 

use for which they are designed. As such they may not be said as 

a matter of law to be dangerous or deadly weapons.” (People v. 

Reid (1982) 133 Cal.App.3d 354, 365.) “When it appears that an 

instrumentality . . . is capable of being used in a dangerous or 

deadly manner, and it may be fairly inferred from the evidence 

that its possessor intended on a particular occasion to use it as a 

weapon should the circumstances require, its character as a 

dangerous or deadly weapon may be established, at least for the 

purposes of that occasion. [Citations.] [Fn. omitted.]” (Ibid.) When 

an item falls into the second category, “the only issue we have 

before us is whether it could be ‘fairly inferred from the evidence’ 

that” defendant “intended to use” the item “in a dangerous or 

deadly manner[.]” (Ibid.) “The item cannot be considered to be 

dangerous or deadly unless it appears that it is capable of being 

used in a dangerous or deadly manner and it may be inferred 

from the evidence that the user intended to use it as a weapon 

should the circumstances require. [Citation.]” (Id. at p. 367.)

A cereal bowl is not a weapon in the strict sense of the word 

and thus falls into the second category. The bowl used was a 

heavy object as evidenced by the victim’s injuries, lacerations to 
12

her face and a chipped tooth. No witness identified what the bowl 

was made of. Photos appear to depict a ceramic bowl containing 

milk and cereal. Statum hit Watson’s face with the bowl in the 

midst of an argument.

In sum, we conclude substantial evidence supports the 

conclusion Statum intended to use the bowl in a dangerous 

manner.

III. The Trial Court Erroneously Imposed a $500 

Domestic Violence Fund Assessment

At the sentencing hearing, the trial court imposed a $500 

domestic violence assessment. Per the minute order, the payment 

was imposed pursuant to section 1203.097, subdivision (a)(5). 

Statum alleges the trial court erroneously imposed the $500 fee.

The People agree.

Section 1203.097, subdivision (a)(5) mandates that “a 

person [who] is granted probation for a crime in which the victim 

is a [cohabitant], the terms of probation shall include . . . [¶]. . . 

[¶] [a] minimum payment by the defendant of a fee of five 

hundred dollars ($500) . . . ..” (Emphasis added.) Here, Statum 

was sentenced to state prison and was not granted probation. We 

therefore agree with Statum and the People that the trial court 

erroneously imposed the $500 fee under section 1203.097 (a)(5).
13

DISPOSITION

The case is remanded to the trial court with instructions to 

strike the Domestic Violence Fund Assessment. The clerk of the 

superior court is directed to prepare an amended abstract of 

judgment consistent with this decision, then deliver copies of the 

corrected abstract to the Department of Corrections. In all other 

respects, the judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J. 

We concur: 

WILLHITE, Acting P.J. 

COLLINS, J.