THE PEOPLE v. ANTONIO MARTICE KING (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Antonio Martice King appeals from the judgment entered upon his convictions by jury of willful, deliberate and premeditated attempted murder (Pen.Code, §§ 664, 187, subd. (a), count 1) ¹ and two counts of assault with a firearm (§ 245, subd. (a)(2), counts 2 & 3).   The jury found to be true the firearm allegations within the meaning of section 12022.53, subdivisions (b) and (c) (count 1), the firearm allegation within the meaning of section 12022.5, subdivision (a) (counts 2 & 3), and the great bodily injury allegation within the meaning of section 12022.7, subdivision (a) (count 2).   Defendant was sentenced to an aggregate state prison term of 37 years to life.   Defendant contends that the trial court erred by allowing the victim to testify to an unidentified man's statements to defendant, thereby depriving defendant of his state and federal rights to a fair trial and due process of law.

We affirm.

FACTUAL BACKGROUND

The Prosecution's Evidence

Herbert Haney (Haney) lived with his parents in Los Angeles.   On March 14, 2008, at approximately 8:00 p.m., he was walking on 64th Street, near Eighth Avenue.   He noticed defendant “hanging out” in a chair in front of an apartment.   Defendant was wearing a black hoodie sweatshirt and blue jeans.   His hair was short and trimmed, and he had a thin goatee.   One of his arms was concealed in his sweatshirt.

Haney approached defendant, mistaking him for someone else, and said, “Hey, guys, what the fuck is going on tonight?   You guys going to pop?   Anything crackin' tonight?”   Defendant responded, “Who the fuck are you.   I don't know who the hell you are.”   As Haney moved away, defendant got up and asked Haney where he was from and who he knew at the apartments.   Haney responded that he thought defendant was someone else, “so I really don't see no problem here.”   Haney had seen defendant in the area once or twice within a few days before.

As Haney began walking away, defendant ran into the apartment, returned with another man and ran after Haney.   Haney did not know the other man but recognized him from the neighborhood.   Defendant asked why Haney was questioning him.   The other man, referring to Haney, said “Yeah, I know this dude․  This person, he is always around here.   He skateboard around here.   Just leave him alone.   He is a local over here.”   Haney told defendant that he knew the person who lived at that location longer than defendant and had a right to ask who was on his porch.   Haney then walked away and defendant followed him, walking on the other side of the street.   The other man said, “Hey, dude, you don't need to do that.   He is not like that, man.   You don't even need to go like that.”

Later that same evening, between 10:30 or 11:00 p.m., Haney saw defendant again near the same apartments.   Jose, the man for whom Haney had mistaken defendant, approached Haney and gave him a hug, and walked him home, as if trying to get Haney out of the area.   Defendant mumbled something.

On March 19, 2008, near 6:25 p.m., Haney again saw defendant in the vicinity of 64th Street and Eighth Avenue, wearing the same hoodie and blue jeans.   Defendant's hand was again concealed in his jacket.   Defendant scowled at Haney, walked up a driveway, turned and began shooting at Haney.   Haney ran to his house with defendant chasing him, holding a gun in what Haney believed was his left hand, continuing to fire.   Haney saw his father, Herbert Young (Young), on their porch and his mother in the doorway.   Haney waived his arms and yelled for his parents to go inside.   Young saw a Black male running after Haney.   Haney and his parents went inside, where Young realized that he had been shot in the buttocks.   Haney telephoned the police.

When the police arrived, Haney spoke to Officer Michael Estrada and described defendant as an African-American male, five feet nine or ten inches tall, weighing approximately160 pounds, with short hair and a short goatee.   He said defendant was wearing a black hoodie and blue jeans.   Haney did not mention that one of defendant's arms was in his sweatshirt, that there were any bulges in the sleeves, or any abnormalities to his arm.   He told the officer that the shooter held the gun in his right hand, but this was not included in the police report.

After talking to the police, Haney returned to where the shots were fired and picked up two bullets marked with “.38,” that he claimed to have given to Officer Estrada.   The officer denied that Haney did so.   Officer Estrada went to the corner of 64th Street to look for shell casings but found none.   Later that evening, Haney identified defendant in a photographic lineup as the person who shot at him.

Weeks later, Haney was getting off of a bus at Hyde Park Boulevard and Crenshaw Boulevard, when he saw defendant on a bicycle, wearing the same black hoodie.   Defendant lifted his shirt, and Haney saw a firearm in his waistband.   One of defendant's hands was on the bicycle and the other near his waist.   Haney ran to a friend's house.

One night, a few weeks after this incident, Haney saw defendant as Haney was walking home from a friend's house.   Defendant said to him, “I got your punk ass now.”   Haney ran, chased by defendant, who was trying to grab something from his pants area.   Eventually, defendant stopped chasing Haney, who called the police.

Haney saw defendant one or two more times.   On one of those occasions, again near the bus stop, defendant was riding his bicycle.   Defendant just stared at Haney.   Haney never saw anything wrong with defendant's arm.

The Defense Evidence

On June 27, 2008, Officer Luis Marin contacted Haney and discussed the first incident by the bus stop.   According to the officer, Haney told him that the perpetrator was six feet two inches tall and weighed 140 pounds.   Haney further said that defendant was wearing a white tank top and shorts and lifted his shirt to display a firearm.   He did not mention any scars on defendant's arms or that one arm was under his shirt.   Haney told the officer about other interactions with defendant, but Officer Marin did not include them in his report because he did not think they were crimes.

James Inghram (Inghram) owned the residences on South Eighth Avenue, where Haney had seen defendant.   They were vacant, locked and secured in March 2008.   Inghram had no personal knowledge of any shooting at the properties, did not recognize having ever seen defendant before and was not present on the day of the shooting.

Jannika Walker, defendant's girlfriend, testified that she met him in the summer of 2007.   A few months later he suffered an injury to his right arm requiring surgery and requiring him to wear a “fixation device” on his arm from October 14, 2007 until March 24, 2008.   Defendant kept his sling inside his hoodie while his arm was injured.

DISCUSSION

Background

During Haney's trial testimony, defense counsel objected to three of his statements regarding what was said by the unidentified man who was with defendant on March 14, 2008, as follows:

“[PROSECUTOR]:  And did the person that was with [defendant], did he say anything to you?

“[HANEY]:  He was like, uhm, ‘Yeah, I know this dude.’

“[DEFENSE COUNSEL]:  Objection.   Relevance.

“THE COURT:  Overruled.”

Haney continued his response:

“[HANEY]:  ‘Yeah, I know this person.   This person, he is always around here.   He skateboard around here.   Just leave him alone.   He is a local over here.’

“[PROSECUTOR]:  That person was referring to you?

“[HANEY]:  Yes, he was.   He was referring to me.

“[DEFENSE COUNSEL]:  Objection.   Speculation.  Foundation.   Move to strike.

“THE COURT:  I'll overrule the objection.   The answer remains.   Motion denied.”

Questioning continued regarding events as defendant followed Haney down the street:

“[PROSECUTOR]:  And then what happened?

“[HANEY]:  The gentleman that he brought to approach me was saying, ‘Hey, dude, you don't need to do that.   He is not like that, man.   You don't even need to go like that.’ ”

“[DEFENSE COUNSEL]:  Objection.   Hearsay.

“THE COURT:  Overruled.   Not received for its truth.”

Contentions

Defendant contends that the trial court erred in allowing admission of the foregoing statements.   He argues that they were hearsay, irrelevant ² and “so unduly prejudicial” that it rendered the trial “fundamentally unfair” and a violation of due process.

The respondent contends that defendant forfeited his relevance and Evidence Code section 352 claims because he failed to raise them in the trial court and that his hearsay claim only applies to the third challenged statement because it was the only question and answer to which that objection was interposed.   The respondent further contends that any error was harmless.

Nonhearsay

Inadmissible hearsay is an out-of-court statement being offered to prove the truth of the matter stated.  (Evid.Code, § 1200.)   A statement not offered for its truth is not hearsay.  (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224.)   A trial court's evidentiary ruling is reviewed for an abuse of discretion.  (People v. Williams (2006) 40 Cal.4th 287, 317.)

The evidence offered here was not offered for the truth of the statement, that Haney was a local skateboarder, but as corroboration of the fact that Haney and defendant were present together and had a dispute on that occasion-a legitimate, relevant, nonhearsay purpose.   Therefore the evidentiary objection was properly overruled by the trial court.   However, even if the evidence was wrongly admitted, any error was harmless.

Harmless Error

We conclude that even if the objections to the challenged testimony were not forfeited and were meritorious, any errors in admitting the evidence were harmless in that a result more favorable to the defendant would not have been reasonably probable if such evidence were excluded.  (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019;  People v. Watson (1956) 46 Cal.2d 818, 836;  People v. Lara (1994) 30 Cal.App.4th 658, 676 [“if defendant fails to show harm, claim may be rejected without discussing propriety of underlying cause”].)

First, the evidence against defendant was strong.   Haney described the confrontation with defendant, running from him and seeing him holding the gun and firing at him.   Haney, who had seen defendant in the neighborhood before the charged incident, identified him in a six-pack photo display on the evening of the shooting and at trial as the person who shot at him.   Because defendant was not a complete stranger to Haney, Haney's identification of defendant had added weight.   Moreover, Haney gave police a sufficient description of defendant to allow Officer Estrada to obtain a photograph of defendant for the photo display.

Second, the challenged evidence consisted of three insignificant comments, contained in approximately one transcript page of testimony out of nearly 200 pages of the transcript of the trial testimony.   That challenged evidence was the subject of one brief comment by the prosecutor in closing argument, with no particular emphasis placed on it.

Third, the testimony did not bolster Haney's credibility.   The statements of the unidentified man were simply that he knew Haney, that Haney lived in the neighborhood, and that the shooter should leave Haney alone.   Defendant claims the unidentified man's statement “certainly operated to inculpate [defendant].”   We do not find that to be the case, particularly since the statements were not even made on the occasion of the shooting.

Fourth, as defendant concedes in his opening brief, “this was a case of misidentification, not self-defense.”   The principal issue was whether defendant was the shooter.   The challenged evidence had no bearing on the identification issue.   The statements of the unidentified man did not identify defendant as the shooter and said nothing to suggest that defendant was the shooter.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1. All further references are to the Penal Code unless otherwise indicated..  FN1. All further references are to the Penal Code unless otherwise indicated.

FN2. While defendant argued in his opening brief that the statements were also more prejudicial than probative under Evidence Code section 352, he concedes in his reply brief that that objection was not made in the trial court and was therefore forfeited..  FN2. While defendant argued in his opening brief that the statements were also more prejudicial than probative under Evidence Code section 352, he concedes in his reply brief that that objection was not made in the trial court and was therefore forfeited.

_, P.J. BOREN _, J. DOI TODD