Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA317431, Craig E. Veals, Judge. Affirmed.
Meredith J. Watts, 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, Steven D. Matthews and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Following a jury trial, appellant Richard Longoria (“Longoria”) was convicted of attempted voluntary manslaughter and assault with a firearm. The jury also found true the sentencing enhancement allegations that Longoria personally used a firearm in the commission of the offenses within the meaning of Penal Code section 12022.5, and inflicted great bodily injury in the commission of the offenses within the meaning of Penal Code section 12022.7. Longoria was sentenced to a term of 18 years.
Unless otherwise stated, all further statutory references are to the Penal Code.
On appeal, Longoria argues that the trial court violated his constitutional right to confront witnesses when it admitted the preliminary hearing testimony of the alleged victim in this case, Pete Jimenez (“Jimenez”), at trial. Specifically, Longoria contends that Jimenez was not an unavailable witness within the meaning of Evidence Code section 240 because the prosecution failed to exercise due diligence in securing Jimenez’ appearance at trial. Longoria also claims that he did not have an adequate opportunity to cross-examine Jimenez at the preliminary hearing within the meaning of Evidence Code section 1291. We conclude that the trial court did not err in admitting Jimenez’ preliminary hearing testimony, and on that basis, affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Prosecution’s Case
In an amended Information filed on May 10, 2007, the Los Angeles County District Attorney charged Longoria with one count of attempted murder in violation of sections 187, subdivision (a), and 664, and one count of assault with a firearm in violation of section 245, subdivision (a)(2). It further was alleged that Longoria personally used a firearm in the commission of the offenses in violation of sections 12022.5, 1192.7, subdivision (c), and 667.5, subdivision (c), and that he inflicted great bodily injury on his victim in violation of section 12022.7, subdivision (a). The Information also alleged that Longoria had one prior serious felony conviction within the meaning of sections 1170.12 and 667, and four prior convictions for which he served prison terms within the meaning of section 667.5. Following Longoria’s plea of not guilty to all charges, a jury trial commenced on May 18, 2007.
A. Live Witness Testimony
A total of six witnesses testified at trial on behalf of the prosecution. Kenneth Duran (“Duran”) testified that, on the early morning of September 28, 2006, he began drinking beer at his apartment in East Los Angeles. Jimenez joined Duran at his home that morning and the two men drank 16-ounce cans of beer for approximately four to five hours. Duran had known Jimenez for 20 years and considered him a good friend. They often spent time together at Duran’s home. Duran could not recall how much he or Jimenez drank that day, but Duran acknowledged that he had been on a drinking binge for about three months.
Later that afternoon, Longoria and his cousin, Mark Ochoa (“Ochoa”), arrived at Duran’s apartment. Duran knew Ochoa, but did not know Longoria well. The four men sat at Duran’s kitchen table drinking beer. After about an hour, Longoria and Jimenez began to argue. The argument eventually escalated into a physical fight; Jimenez possibly threw the first punch. Jimenez hit Longoria’s face with his left fist causing Longoria’s nose to bleed. The fight continued with the two men rolling around on the floor while Duran and Ochoa tried to separate them. Duran could not recall how many punches were thrown by either Jimenez or Longoria, but he did observe that both men were hitting each other. Jimenez did not kick Longoria or use a weapon, but appeared to have the upper hand in the fight. Duran also observed that Longoria was bleeding during the fight while Jimenez was not. At some point, the two men stopped fighting, separated, and stood up. A second later, Longoria shot Jimenez. Although Duran did not actually see Longoria arm himself, he testified that he knew Longoria was the shooter because Duran and Ochoa were both standing beside Jimenez and facing Longoria when the shot was fired.
Immediately after the shooting, Jimenez and Duran ran out of the apartment. Duran then called 911. A neighbor drove Jimenez to the hospital while Duran followed in his car. Later that afternoon, Duran spoke with the police. One of the officers that interviewed Duran was Deputy Sheriff Ricardo Pedroza. Deputy Pedroza testified that he spoke with Duran at the hospital on the day of the shooting. Duran was calm and cooperative during their interview and did not appear to be under the influence of alcohol. Duran testified at trial that officers showed him a shirt and a gun that they had recovered, but he could not recall if he had identified those items as the shirt that Longoria was wearing or the gun that he used in the shooting.
Susie Acosta (“Acosta”) testified that, in September 2006, she was living in the same apartment complex as Duran. She recalled that she was in her apartment that afternoon when she heard a shot that sounded like a firecracker. She immediately went outside and saw Duran running from his apartment and yelling to call 911. Acosta stated that she did not see anyone else entering or leaving Duran’s apartment that day. However, Deputy Sheriff Michael Rodriguez had interviewed Acosta on the day of the shooting and testified that she said she had seen four men enter Duran’s apartment earlier that afternoon. Acosta also told Deputy Rodriguez that, approximately 10 to 15 minutes after the men went inside, she heard a gunshot and then saw Duran and another man whom she did not know fleeing the apartment. Acosta observed that the other man had blood on his shirt and that Duran was helping him walk toward the sidewalk.
A few hours after the shooting, Deputy Rodriguez and other officers conducted a search of Duran’s apartment and recovered a blue shirt in the living room area. The shirt had blood stains on it and a tear in the back. Deputy Rodriguez testified that he later showed the shirt to Duran and that Duran said it belonged to Longoria. Deputy Rodriguez was not aware of any blood samples being taken from Duran’s apartment during the search.
Sergeant Ronald Ridley testified that he was the investigating officer on the case. Approximately an hour after the shooting, Sergeant Ridley went to Ochoa’s residence in Montebello, which was about one mile from the crime scene. Longoria was present at that location and was being detained. During a search of the property, sheriff’s deputies recovered a .22 caliber revolver stuffed between two mattresses behind Ochoa’s garage. The gun was loaded with four bullets and two casings that had been fired, and was wrapped in a black shirt that appeared to have blood stains on it. Deputies also recovered wet clothing from a washing machine at Ochoa’s residence. No blood samples were taken from the black shirt, and although the gun was tested for fingerprints, none were recovered. Sergeant Ridley testified that he later showed Duran the gun that was recovered and that Duran positively identified it as the gun used in the shooting.
Dr. Mark Odou was the trauma surgeon who treated Jimenez for the injuries he sustained in the shooting. Dr. Odou testified that a single bullet went through Jimenez’ left hand and entered the right side of his chest about an inch to an inch and a half from his heart. The bullet travelled down through the lungs and possibly the liver, likely bounced off a rib, and then landed at the base of the pelvis. Jimenez did not require surgery for his injuries. Instead, the bullet was left inside his abdominal cavity. Jimenez was discharged from the hospital after three days.
B. Preliminary Hearing Testimony
Jimenez testified at a preliminary hearing on March 7, 2007. Over the objection of defense counsel, the trial court admitted Jimenez’ preliminary hearing testimony at trial, and the transcript of the testimony was read to the jury. Jimenez’ recollection of the events surrounding the shooting was vague. He testified that he was having a beer at Duran’s apartment on the afternoon of September 28, 2006, when he got into a fight with another person. He had been there about an hour before the fight began and had drank two or three beers. Jimenez was not under the influence of any drugs that day other than alcohol and was not armed. He was sitting at the table and drinking with three other men when the fight began, but he did not remember what the fight was about or how it started. Jimenez did recall hitting the other person one time with his right hand and the person falling to the ground after being hit. Jimenez also recalled being on the ground during the altercation. He did not remember if the other person was injured or bleeding.
A second person jumped on Jimenez to try to break up the fight. Jimenez pushed that person off him. The person with whom he had been fighting then stood up and shot Jimenez. Jimenez lifted his left arm immediately before being hit and the bullet went through his hand and into his chest. He believed that the shooter was standing about 15 feet away when he fired his weapon, but he was not certain about the distance. After the shooting, Jimenez ran from the apartment and went to the hospital for treatment. He testified that he did not see the person who shot him in court and did not have a good memory of what that person looked like.
Jimenez also testified that he had been trained in kickboxing. He started his training when he was approximately 10 years old and had attended a kickboxing school in Pasadena. He participated in some kickboxing competitions over the years and had won a trophy. According to Jimenez, he did not use any kickboxing techniques or weapons against the person who shot him.
II. The Defense Case
Longoria did not call any witnesses or present any evidence in his defense.
III. Verdict and Sentencing
The jury found Longoria guilty of the lesser-included offense of attempted voluntary manslaughter and of assault with a firearm. The jury also found true the allegations that Longoria personally used a firearm and inflicted great bodily injury in the commission of the offenses. In a bifurcated proceeding, the trial court found true the allegations that Longoria had one prior serious felony conviction and four prior convictions for which he had served prison terms. The trial court sentenced Longoria to an aggregate term of 18 years, consisting of three years on the attempted voluntary manslaughter charge, doubled to six years based on the prior felony strike, plus seven years on the firearm and great bodily injury enhancements and five years on the prior serious felony enhancement. The sentence on the assault with a firearm charge was imposed, but stayed. On September 10, 2007, Longoria filed a timely notice of appeal.
DISCUSSION
Longoria’s sole argument on appeal is that the admission of Jimenez’ preliminary hearing testimony at trial violated his constitutional right to confront witnesses and the requirements of Evidence Code section 1291. We disagree.
A criminal defendant has a constitutional right to confront witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) That right, however, is not absolute. (People v. Valencia (2008) 43 Cal.4th 268, 291; People v. Wilson (2005) 36 Cal.4th 309, 340.) It “may ‘in appropriate cases’ bow to other legitimate interests in the criminal trial process. [Citations.]” (People v. Carter (2005) 36 Cal.4th 1114, 1172.) Specifically, “[i]f a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial.” (People v. Smith (2003) 30 Cal.4th 581, 609, citing Barber v. Page (1968) 390 U.S. 719.) The United States Supreme Court reaffirmed this principle in Crawford v. Washington (2004) 541 U.S. 36, 59, asserting that “[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”
Evidence Code section 1291 codifies this traditional exception to the constitutional right of confrontation. It provides, in relevant part, that “[e]vidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness,” and “[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” (Evid. Code, § 1291, subd. (a)(2).) A declarant is “unavailable as a witness” under Evidence Code section 240 if he or she is “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (Evid. Code, § 240, subd. (a)(5).)
As the California Supreme Court has recognized, “[t]he constitutional and statutory requirements are ‘in harmony.’ [Citation.]” (People v. Smith, supra, 30 Cal.4th at p. 609.) Therefore, “[w]hen the requirements of Evidence Code section 1291 are met, ‘admitting former testimony in evidence does not violate a defendant’s right of confrontation under the federal Constitution.’ [Citations.]” (People v. Wilson, supra, 36 Cal.4th at p. 340.) The proponent of the prior testimony has the burden of establishing by competent evidence that the witness is unavailable. (People v. Cummings (1993) 4 Cal.4th 1233, 1296; People v. Price (1991) 1 Cal.4th 324, 424.)
I. Jimenez Was Unavailable As A Witness At Trial
Longoria first asserts that Jimenez was not an unavailable witness because the prosecution failed to demonstrate reasonable diligence in procuring his attendance at trial. “What constitutes due diligence to secure the presence of a witness depends upon the facts of the individual case. [Citation.]” (People v. Sanders (1995) 11 Cal.4th 475, 523.) The term is incapable of a mechanical definition, but “connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.” (Ibid.) Relevant considerations include the timelines of the search, the importance of the proffered testimony, whether leads of the witness’s location were competently explored, and whether the witness would have been produced if reasonable diligence had been exercised. (People v. Wilson, supra, 36 Cal.4th at p. 341; People v. Sanders, supra, at p. 523.) Where the relevant facts are undisputed, we independently review a trial court’s determination of reasonable diligence. (People v. Cromer (2001) 24 Cal.4th 889, 901.)
A due diligence hearing was held in this case on May 24, 2007. Eric Gonzalez (“Gonzalez”), an investigator for the Los Angeles County District Attorney’s Office, testified on behalf of the prosecution. Gonzalez was assigned to serve Jimenez with a subpoena to appear at trial. He began searching for Jimenez on May 14, 2007, four days before trial was scheduled to start. Gonzalez had two known addresses and one cellular phone number for Jimenez at the time he commenced his search.
On May 14, 2007, Gonzalez visited Jimenez’ last known address in East Los Angeles. He knocked on the front door, but no one answered. He observed through a window that the residence was vacant and was being re-painted and re-carpeted. On May 16, 2007, Gonzalez called Jimenez’ cellular phone three to four times, but each time received a recording that there were no usage minutes remaining on the phone. On that date, Gonzalez also tried to visit Jimenez’ mother at her home in Montebello, which was the address listed on Jimenez’ Department of Motor Vehicle records. No one answered the door. On May 17, 2007, Gonzalez contacted Jimenez’ mother by telephone and later met with her in person at her home address. She told Gonzalez that Jimenez did not live at that address and that she did not know where he lived. She stated that he occasionally visited her there, but she did not know when he would stop by. She also indicated that Jimenez was unemployed.
On May 21, 2007, Gonzalez again contacted Jimenez’ mother by telephone and was told that she had not heard from her son. Gonzalez then called Jimenez’ cellular phone and was able to reach him. Jimenez agreed to meet Gonzalez later that morning at the Department of Public Social Services (“DPSS”) office. Although Gonzalez waited over two hours for Jimenez to arrive, he never did. Gonzalez confirmed with the DPSS clerk that Jimenez had not checked in. He also spoke with Jimenez’ caseworker who said that Jimenez was scheduled to come in that morning, but had not done so. Gonzalez asked the caseworker how Jimenez received his DPSS checks and was told that they were processed directly into an ATM account. On that date, Gonzalez also contacted the Sheriff’s Inmate Information Center which confirmed that Jimenez was not in custody.
On May 22, 2007, Gonzalez called Jimenez’ cellular phone, but received another recording that the phone did not have any usage minutes. He also called the Los Angeles County General Hospital and confirmed that Jimenez was not a patient there. In addition, he contacted the Los Angeles County Coroner’s Office and was advised that it did not have anyone matching Jimenez’ name or description. On May 23, 2007, Gonzalez again called Jimenez’ cellular phone and went to his mother’s house, but there was no answer.
On cross-examination, Gonzalez admitted that he never contacted Duran in his efforts to locate Jimenez. Instead, he spoke with two other witnesses, Ochoa and Acosta, and asked them about Jimenez’ whereabouts. Gonzalez also acknowledged that he did not speak with the investigator who had secured Jimenez’ presence at the preliminary hearing. He further admitted that he did not contact the Department of Water and Power or the United States Postal Service to inquire about a current address for Jimenez, did not call Beverly Hospital where Jimenez had been treated following the shooting, and did not try to determine if Jimenez was the registered owner of any vehicles.
After Gonzalez testified, the prosecuting attorney explained other efforts that had been made to serve a subpoena on Jimenez. She was unclear about the specifics, but indicated that she had been in contact with two investigators from the district attorney’s office during the week before the trial began. She provided one of the investigators with Jimenez’ cellular phone number, which she had found on a note in the file. She also learned from one of the investigators that he had spoken with Jimenez and that Jimenez had an MRI scheduled sometime that week. The investigator told the prosecutor that he intended to personally serve Jimenez with a subpoena to appear at trial on May 18, 2007.
The prosecutor did not identify either investigator by name at the due diligence hearing. It is unclear from the record if she was referring to Gonzalez in recounting her communications with these investigators.
The trial court concluded that Jimenez was unavailable as a witness. In reaching its ruling, the court stated, “I think [Gonzalez] made a concerted effort and virtually exhausted everything that was available to him. [¶] There are always other leads that one might take or follow, but it’s clear to me that there was a storm that he created in trying to locate this individual, Mr. Jimenez.” The court permitted the prosecution to read the transcript of Jimenez’ preliminary hearing testimony to the jury.
Based on our independent review of the record, we agree with the trial court that the prosecution satisfied its burden of showing due diligence. As the trial court correctly observed, the prosecution’s efforts to serve Jimenez with a subpoena for trial should have “commenced a little earlier.” Nevertheless, the record reflects that the district attorney’s investigator visited Jimenez’ last known addresses a total of four times, called Jimenez’ cellular phone at least six times, contacted Jimenez’ mother by telephone and in person several times, spoke with Jimenez’ DPSS caseworker and inquired about how he received his checks, and contacted the local sheriff’s department, county hospital, and coroner’s office. Notably, the investigator was able to reach Jimenez directly through these efforts and arranged to meet him at a designated time and location. Jimenez failed to appear at the scheduled meeting, however, thus suggesting that he was actively avoiding service. Under these circumstances, it appears unlikely that Jimenez would have cooperated with other additional efforts that could have been made to secure his presence at trial, even if such efforts had begun earlier. (See, e.g., People v. Diaz (2002) 95 Cal.App.4th 695, 706 [concluding that the prosecution showed due diligence in trying to secure a witness’s presence at trial, in part, because “it is fairly clear [the witness] purposefully made herself unavailable”].) The prosecution’s efforts to locate Jimenez, although not exhaustive, demonstrated reasonable diligence.
Longoria contends that the prosecution should have known Jimenez would be uncooperative long before trial began because he failed to appear at the first preliminary hearing. However, the record does not contain any specific evidence to support this claim. At the due diligence hearing, defense counsel did represent that Jimenez had not testified at the first preliminary hearing and that the case had been dismissed and then re-filed. However, she stated that the case was dismissed because “the magistrate prevented some cross-examination of the first preliminary hearing.” It is unclear how such a dismissal was related to Jimenez’ alleged failure to appear. Even assuming the dismissal was caused by Jimenez’s failure to testify at the first preliminary hearing, the record is silent as to what efforts were made to procure his attendance at that proceeding and why those efforts were unsuccessful. The record is also silent as to what efforts were made to secure Jimenez’ presence at the second preliminary hearing and whether there was any difficulty in serving him at that time. Rather, what is clear from the record is that Jimenez was produced and did testify at the subsequent preliminary hearing. (See People v. Wilson, supra, 36 Cal.4th at p. 342 [“The prosecution is not required ‘to keep “periodic tabs” on every material witness in a criminal case . . .’ [and] is not required, absent knowledge of a ‘substantial risk that this important witness would flee,’ to ‘take adequate preventative measures’ to stop the witness from disappearing.”].)
Longoria also argues that the prosecution should have taken additional steps to locate Jimenez, such as contacting Duran who had been Jimenez’ friend for 20 years or speaking with the investigator who had procured Jimenez’ attendance at the preliminary hearing. However, we “will not reverse a trial court’s [due diligence] determination simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. . . . The law requires only reasonable efforts, not prescient perfection.” (People v. McElroy (1989) 208 Cal.App.3d 1415, 1428, disapproved on other grounds by People v. Cromer, supra, 24 Cal.4th at p. 901, fn. 3.) “That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness.” (People v. Cummings, supra, 4 Cal.4th at p. 1298.) Because the prosecution exercised reasonable diligence in this case, the trial court did not err in concluding that Jimenez was an unavailable witness within the meaning of Evidence Code section 1291.
II. Longoria Had An Opportunity To Cross-Examine Jimenez With A Similar Interest And Motive
Longoria also claims that he did not have an adequate opportunity to cross-examine Jimenez because his motive and interest at the preliminary hearing were not sufficiently similar to that which he had at trial. A defendant’s interest and motive at a second proceeding is not dissimilar to his interest at a first proceeding within the meaning of Evidence Code section 1291, subdivision (a)(2), simply because events occurring after the first proceeding might have led counsel to alter the nature and scope of cross-examination of the witness in certain particulars. (People v. Alcala (1992) 4 Cal.4th 742, 784.) “For the preliminary hearing testimony of an unavailable witness to be admissible at trial under Evidence Code section 1291, these motives need not be identical, only ‘similar.’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 975.) Therefore, when a defendant has had an opportunity to cross-examine a witness at the time of the prior testimony, that testimony is deemed sufficiently reliable to satisfy both constitutional and statutory requirements, “‘regardless whether subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony.’” (People v. Wilson, supra, 36 Cal.4th at p. 343.) Applying these principles, reviewing courts “have routinely allowed admission of the preliminary hearing testimony of an unavailable witness.” (People v. Smith, supra, 30 Cal.4th at p. 611; see also People v. Valencia, supra, 43 Cal.4th at pp. 291-295; People v. Harris (2005) 37 Cal.4th 310, 332-333; People v. Zapien, supra, at pp. 973-976.)
In this case, we conclude that Longoria’s motive and interest in cross-examining Jimenez at the preliminary hearing were sufficiently similar to that which he had at trial. At both proceedings, Longoria’s interest and motive were to challenge Jimenez’ credibility as a witness and to discredit his account of the shooting. Defense counsel accordingly cross-examined Jimenez about his recollection of events leading up to the shooting, his drinking and drug use on the day he was shot, his participation in the fight with Longoria and the progress of the fight, and his statements to police about the hits Longoria allegedly sustained. Defense counsel also elicited testimony from Jimenez about his background, training and experience in kickboxing. Through her cross-examination, counsel thus tried to explore the extent to which Jimenez may have been the aggressor in the physical altercation with Longoria, which in turn could have supported a claim of self-defense. Longoria held a similar interest and motive at trial.
Longoria asserts that the cross-examination conducted at the preliminary hearing was not as thorough as it would have been at trial because his counsel could not have known at that early stage in the proceedings that self-defense would be the defense. Contrary to Longoria’s contention, however, the failure to explore certain areas on cross-examination does not render preliminary hearing testimony inadmissible under Evidence Code section 1291. “It is the opportunity and motive to cross-examine that matters, not the actual cross-examination.” (People v. Smith, supra, 30 Cal.4th at p. 611.) “As long as defendant was given the opportunity for effective cross-examination, the statutory requirements [are] satisfied; the admissibility of this evidence [does] not depend on whether defendant availed himself fully of that opportunity. [Citations.]” (People v. Zapien, supra, 4 Cal.4th at p. 975.) Moreover, as discussed above, defense counsel did explore areas in the preliminary hearing examination that were relevant to Longoria’s theory of self-defense, including the progress of the physical fight between Jimenez and Longoria and Jimenez’ training and experience in kickboxing. While further inquiry into Jimenez’ kickboxing background might have yielded more impeachment material, it does not demonstrate that Longoria lacked a similar motive and interest in cross-examining Jimenez at the preliminary hearing.
In sum, Longoria had an adequate opportunity to cross-examine Jimenez at the preliminary hearing and Jimenez was unavailable as a witness at trial. Accordingly, Jimenez’ preliminary hearing testimony was admissible under Evidence Code section 1291, and its admission did not violate Longoria’s constitutional right of confrontation.
III. Any Error In Admitting The Preliminary Hearing Testimony Was Harmless
Even if the trial court erred in admitting Jimenez’ preliminary hearing testimony, we conclude that any such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Although Jimenez was the victim of the assault, his recollection of the events surrounding the shooting was extremely vague. He could not recall the details of the physical altercation that preceded the shooting, nor could he identify Longoria as the person who shot him. The limited testimony that Jimenez did provide at the preliminary hearing was largely cumulative of other evidence presented at trial. Duran testified at length about the details of the fight between Jimenez and Longoria which, according to Duran, culminated with Longoria shooting Jimenez in the chest after the men were standing and separated. The trauma surgeon who treated Jimenez at the hospital testified in detail about the gunshot wounds that Jimenez sustained and the medical treatment he received. As the Attorney General correctly notes, “[w]hat Mr. Jimenez’ testimony did add was his extensive background in kickboxing, which was actually beneficial to [Longoria’s] claim of self-defense.” In light of the overwhelming evidence offered at trial to establish Longoria’s guilt, any error in admitting Jimenez’ preliminary hearing testimony was not prejudicial.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.