Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA037670, Jared D. Moses, Judge.
Al F. Amer for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General for Plaintiff and Respondent.
EPSTEIN, P. J.
Appellant Jaber Ayed Haddad was convicted of possession of a firearm by a convicted felon, possession of ammunition, and two counts of assault with a semiautomatic firearm. As to both counts of assault, the jury returned true findings on personal use of a firearm enhancements. He appeals the assault convictions and the enhancements, on the basis of insufficient evidence. He also argues the court violated his due process rights by allowing the prosecution to offer evidence that a witness received bribe offers from a third party in exchange for not appearing at trial. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On February 8, 2007, Nicholas W. and Ryan A. got into a fight at their high school in Lancaster. Security intervened and Nicholas and Ryan decided to continue the fight at the nearby Lane Park. Ryan did not show. Nicholas obtained Ryan’s phone number and called him, at which point Ryan informed him that he would not be coming. Later that day, Nicholas began receiving phone calls from Lynette A., Ryan’s mother, who attempted to set up a fight between Nicholas and Ryan. Nicholas eventually agreed and drove back to the park that evening with several friends, including James C. and Brian A. Lynette and Ryan arrived shortly thereafter, and Lynette proceeded to confront Nicholas. Nicholas attempted to reach Ryan who was sitting in the car. Lynette grabbed Nicholas and the two ended up on the ground. Ryan attempted to aid his mother but was struck by James. At that moment, a black SUV pulled up next to Brian’s car. Appellant, Lynette’s boyfriend at the time, stepped out of the vehicle with a black handgun. He pulled back the slide on the gun and then struck James in the face. He then moved towards Nicholas, who was face down on the ground, and struck him with the gun in the back of the head several times. Appellant waved the gun in the air as the crowd dispersed, then got into his SUV and drove off.
Police and paramedics arrived at the scene some two hours after the incident. A police broadcast was put out to look for a vehicle in connection with the assault. The license plate was traced to a residence on 17th Street in Lancaster. Los Angeles Sheriff’s Deputy Robert Garcia responded to the residence. After speaking with a woman there, Garcia was directed to another residence, also on 17th Street in Lancaster. Garcia found several people in the house and detained them, including appellant. He then searched the residence and found a gun.
Police brought Nicholas to the second residence on 17th Street. He identified appellant as his attacker based on his facial features and shoes. Police then showed Nicholas the gun they found at the residence. He identified it as the gun used at Lane Park, recognizing the black handle and silver lining.
In November 2008, appellant was charged in an amended information as follows: assault with a deadly weapon in counts 1 and 2; possession of a firearm by a felon in count 3; possession of ammunition in count 4; possession of marijuana weighing more than 28.5 grams in count 5; and assault with a semiautomatic firearm in counts 6 and 7. It was further alleged that appellant personally used a firearm when committing counts 1, 2, 6, and 7.
Counts 1 and 2 were dismissed due to a plea negotiation. The jury found appellant guilty on counts 3, 4, 6, and 7 and returned true findings on the firearms enhancements. The court sentenced him to state prison for nine years for count 6 and the handgun enhancement. The court imposed and stayed all sentences on the remaining counts pursuant to Penal Code section 654. This timely appeal followed.
DISCUSSION
I
Appellant argues that Nicholas’s testimony concerning telephone conversations with Lynette was inadmissible under the hearsay rule and Evidence Code section 352. He contends the court’s error in allowing the inadmissible evidence violated his due process rights. We do not agree.
All further statutory references are to the Evidence Code, unless otherwise specified.
During his direct examination of Nicholas, the prosecutor requested a sidebar with the court. The prosecutor believed defense counsel would elicit evidence that, following the incident at Lane Park, Nicholas received bribe offers from Lynette in exchange for not appearing in court. Defense counsel said he was not considering cross-examining Nicholas with this information, but that it was possible he would explore the subject with another witness. In response, the prosecutor stated: “I just want to get in front of it, ” to which defense counsel answered, “[b]ut the problem that confronts is that... in effect it almost forces me then to put that witness on when I wasn’t absolutely sure I was going to do it.” The court asked if there was any offer of proof and the prosecution stated that someone, presumably Nicholas, left a voicemail message on Lynette’s phone saying that he had been subpoenaed to appear in court and intended to comply unless she wants to settle the matter. The court responded: “Well, given that, I’m inclined to let [the prosecutor] go into that. It seems to make sense.”
The prosecutor continued questioning Nicholas. Nicholas testified that he had already been to court five or six times for the present matter and that his appearances seemed “pretty worthless.” He then testified that Lynette called him over 40 times beginning in 2008, and that they spoke on the phone between 10 to 20 times. In several phone calls, Lynette asked Nicholas if she could do anything or give him anything to not show up in court and “make everything go away.” This included an offer to get Nicholas a job. He was not interested at first but “towards the end I had started getting a little bit interested because I wanted the case to be over.” Nicholas admitted leaving her a voicemail message once saying he had been subpoenaed and to call him back if she had anything to offer. He testified that nothing came of the message, he never accepted anything from her, he appeared in court whenever requested and was truthful at all times.
Respondent contends appellant forfeited the hearsay and section 352 arguments by failing to make timely objections at trial. We agree. In general, questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be argued on appeal. (People v. Alvarez (1996) 14 Cal.4th 155, 186; see also § 353.) “[T]o the extent [appellant] asserts a different theory for exclusion than he asserted at trial, that assertion is not cognizable [on appeal].” (People v. Partida (2005) 37 Cal.4th 428, 438.) Here, during sidebar, defense counsel objected to the prosecutor’s request to question Nicholas about his telephone conversations with Lynette. However, defense counsel did not object on constitutional, hearsay, or section 352 grounds. Rather, he argued that allowing the prosecutor to proceed with this line of questioning would force him to present evidence about the telephone calls when he had not yet decided whether to do so. Nor did defense counsel make these objections once Nicholas began testifying about the phone calls; counsel only objected to one of Nicholas’s responses as speculative.
In any event, appellant does not prevail on the merits. It is within a trial court’s discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. (§ 352.) We review evidentiary rulings for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) Prejudice “‘naturally flows from relevant, highly probative evidence.’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Section 352 is not concerned with that sort of prejudicial effect, but rather, with “evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.” (Ibid., italics omitted.)
Appellant concedes that Nicholas’s testimony concerning the telephone calls was relevant to his credibility as a witness. Instead, he argues that Nicholas’s testimony inherently implicated him in Lynette’s bribe offers and that this was unduly prejudicial since there was no evidence connecting him with Lynette’s actions. However, the record shows that the prosecutor’s purpose was to preempt any attempt by defense counsel to attack Nicholas’s credibility. The prosecutor presented no evidence and made no argument connecting appellant with the telephone calls. The prosecutor did not mention appellant’s name when examining Nicholas about the telephone calls or when summarizing Nicholas’s testimony in closing argument. During closing argument, the prosecutor discussed the credibility of Nicholas, Brian, and James, stating that “[a]ll of them appeared to be very comfortable, friendly, both on direct examination and cross-examination... there was no anger or animosity directed at either of the attorneys as they were being questioned.” The prosecutor then summarized Nicholas’s testimony, arguing that while Nicholas demonstrated frustration over the length of the trial, he never accepted any of the bribe offers. The prosecutor also noted that Nicholas’s account of the incident at Lane Park was corroborated by James and Brian. The prosecutor concluded: “I think there was nothing in the way that they testified or anything that points to the fact that they have any motive to lie....”
Nor did Nicholas’s testimony constitute inadmissible hearsay. “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (§ 1200, subd. (a).) Conversely, a statement offered for some purpose other than to prove the fact stated therein is not hearsay. (People v. Fields (1998) 61 Cal.App.4th 1063, 1068.) “Frequently, an utterance may justify an inference concerning a fact in issue, regardless of the truth or falsity of the utterance itself. It is admitted as circumstantial evidence of that independent fact.” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 36, pp. 718-719, italics omitted.) This includes statements offered to prove the impact on the listener. (See People v. Jablonski (2006) 37 Cal.4th 774, 820 [victim’s statement that she was afraid of defendant admissible to show its effect on defendant and his premeditation].) Here, the bribe Lynette offered to Nicholas was relevant to his credibility as a witness. Nicholas’s testimony was offered not to prove the truth of any statement Lynette made in the course of their telephone conversations. Rather, it was offered to show that a bribe was offered and to show the impact of that offer, or lack thereof, on him.
II
Appellant argues that the convictions on counts 6 and 7 and the true findings on the firearm enhancements were not supported by sufficient evidence. We do not agree.
In reviewing the sufficiency of evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence, such that a reasonable trier of fact could find the allegation true beyond a reasonable doubt. (People v. Frausto (2009) 180 Cal.App.4th 890, 897.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Mendez (2010) 188 Cal.App.4th 47, 56.)
First, appellant claims the evidence was insufficient to prove he was the perpetrator. We disagree, as there was ample evidence to support this finding. Brian A. testified at trial that he was standing at his car, roughly five to eight feet away from Lynette and Nicholas, when the two began fighting. He saw Ryan try to help his mother, and saw James swing at Ryan, although he could not see whether James connected. At that same moment, a black SUV drove into the parking lot and parked next to Brian’s car. A man stepped out of the SUV with a black.45-caliber gun. Brian identified the man as appellant and testified that he was looking at appellant face-to-face as appellant stepped out of the SUV. He then saw appellant pull the slide back on the gun and proceed to hit James and Nicholas with it. Brian testified that prior to the incident, he had seen appellant once before at a party. However, he did not immediately recognize appellant until he was told by a friend after the incident that they had seen appellant before.
Nicholas also testified to the identity of his attacker. Although he did not see his attacker while being struck from behind, Nicholas immediately turned around and saw appellant next to a black SUV, holding a gun. After the incident, police took Nicholas to the residence on 17th Street. The police parked the car roughly 100 feet away from the house and Nicholas remained in the car as the police brought out three people, one at a time. He identified appellant, the second person shown, as the attacker based on his facial features and shoes.
Appellant also argues the evidence was insufficient to prove that he personally used a firearm, as defined in Penal Code section 12022.5. Penal Code section 12022.5 provides: “[A]ny person who personally uses a firearm 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 3, 4, or 10 years, unless use of a firearm is an element of that offense.” Penal Code section 1203.06, subdivision (b)(2) defines using a firearm as displaying a firearm in a menacing manner, intentionally firing it, intentionally striking or hitting a human being with it, or “us[ing] it in any manner that qualifies under [Penal Code s]ection 12022.5.” The definition of personal use in Penal Code section 1203.06 applies to Penal Code section 12022.5. (See People v. Johnson (1995) 38 Cal.App.4th 1315, 1319.) The definition also has been incorporated into CALJIC No. 17.19, which the court provided here. There was ample evidence to support a finding that appellant used a firearm against Nicholas and James, pursuant to Penal Code section 12022.5.
DISPOSTION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.