Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 150516
Simons, J.
Anthony Pharr (appellant) appeals his conviction by jury trial of first degree murder (Pen. Code, §§ 187, subd. (a)) with personal and intentional use of a firearm (Pen. Code, §§12022.53, subds. (b)-(d)). Appellant’s sole contention is that the trial court committed prejudicial error by admitting hearsay testimony by the victim’s mother. We reject the contention and affirm.
Appellant was sentenced to 50 years to life in state prison on the murder and Penal Code section 12022.53, subdivision (d) enhancement. Consecutive terms totaling 30 years on the other firearm enhancements were stayed.
BACKGROUND
On June 2, 2004, the victim, 15-year-old Jeremee Timms, and appellant were friends and members of a gang called Scandalous Type Individuals (STI). According to the victim’s mother, Lisa Carson, on the evening of the shooting, she and the victim were at their home with the victim’s friend, Roy Terrell, also known as “Noonie.” Carson testified that the victim received a telephone call, and that the victim sounded worried during the call. When he left the house at about 9:00 or 9:30 p.m., the victim told Carson, “Mom, I’m leaving. If I don’t come back, I love you.” Carson said that appellant and the victim used to argue “over little stupid stuff.” However, the victim did not argue with appellant any more than with any of the victim’s other friends.
On the night of the shooting, Elizabeth Allen was standing in front of a residence on 82d Avenue near Rudsdale when she saw two boys, one of whom was the victim, running down the street as if being chased, and heard three or four gunshots. Three other boys ran in a different direction. Allen saw the victim fall. Allen approached him and called 911. The victim was pronounced dead after paramedics responded to the scene. His death was caused by multiple gunshot wounds to his chest, forearm, thigh and buttocks.
In July 2004, police seized a 357 Magnum revolver from Pierre Rushing, which had been stolen in March. Firearms expert Mark Bennett opined that the bullets recovered from the victim’s body were fired from that revolver. According to police, based on the Oakland location of the recovered revolver and Rushing’s association with that location, the revolver could have been a “turf gun,” one available to a group of people in a particular area.
In September 2004, Willie Torrence, also known as “Whoa,” another member of STI, gave a tape-recorded statement to police. Torrence stated there was “bad blood” between appellant and the victim because the victim had not defended their mutual friend “Mikey,” who was killed. Torrence said appellant and the victim had fought in April, and appellant had a grudge against the victim because the victim “whooped him” in front of other people. Eventually, “[appellant] couldn’t take it no more.” Torrence told police that on the night of the shooting he was with his friend Mikell when appellant called to say he was coming. Appellant had apparently been arguing on the phone with the victim. Appellant arrived and told Torrence the victim was coming to see him and “he gotta fight me or Noon[ie], one of us.” When the victim arrived he started talking to Torrence about appellant. The victim stepped to the edge of the curb as though he was going to rush at appellant, and appellant started to back up and appeared scared. Appellant then started pointing the gun. The victim said, “What you gonna do? Shoot me?” The victim ducked and appellant started firing a total of six slow, deliberate shots. The victim was unarmed.
In February 2007, Torrence was interviewed by District Attorney Inspector Chew about the shooting. Torrence told Chew that the victim and appellant had an ongoing dispute and had been arguing for several days or weeks prior to the shooting. Immediately before the shooting, the discussion became heated; appellant and the victim were preparing to get in another physical fight. Torrence said when the victim saw the gun he said to appellant, “If you’re going to shoot me, go ahead and shoot me,” and appellant shot the victim.
At trial, Torrence denied any argument between appellant and the victim just prior to the shooting and denied seeing appellant with a gun or seeing the victim get shot. He said he learned of the shooting the next day.
Kalonji Edwards saw appellant shoot the victim. Edwards said he was intoxicated and did not hear what appellant and the victim were saying just prior to the shooting. After Edwards heard the first shot he turned around and saw appellant fire the remaining shots at the victim. Appellant was about six feet from the victim at the time of the shooting. Edwards testified that at the preliminary hearing appellant told him not to say appellant was the shooter.
Terrell was present when appellant shot the victim. Prior to the shooting Terrell was at the victim’s house. Terrell said the victim phoned appellant, and the two argued. About two hours later, the victim told Terrell they were going to meet appellant. When Terrell and the victim arrived at 82d and Rudsdale, they met appellant, Edwards and Torrence. Appellant and the victim argued again and moved closer to each other. Appellant pulled a gun from his waistband while the victim was standing in front of him. The victim said, “If you’re going to shoot me, shoot me,” and appellant shot the victim. The day after the shooting appellant told Terrell, “Stay solid,” meaning “Don’t snitch.”
Oakland Police Sergeant Rullamas testified that Terrell told him that prior to the shooting Jonathan Rosby called the victim and said that appellant was “talking bad” about the victim, Rosby’s gun was missing, and that “they better watch out.” Terrell also told Rullamas that on the night of the shooting appellant told Terrell he did not want to fight the victim because the victim was bigger than he.
Florence Sims, a friend of appellant’s family, testified that after the shooting appellant called Sims’s sister, Bonita, to pick him up. When appellant got into the car with Sims, Maurice Johnson, and Bonita’s son, appellant said he had killed the victim. Appellant then said someone else had killed the victim. Sims said that when appellant arrived home he told his mother he had killed the victim and had obtained the gun from one of his friends.
Johnson, appellant’s cousin, was interviewed by police in November 2005 and the interview was secretly recorded. Johnson said that appellant called him on the night of the shooting to ask him for a ride; and, after getting in the car, appellant said he had killed the victim. Subsequently, appellant called Johnson, said his lawyer wanted to talk to Johnson and said, “you know what to say man, you know for real, ‘cause you know I didn’t do it, you know I didn’t do it.” At trial, Johnson said he learned about the killing from the newspapers three days after it happened. Johnson recanted his statement to police that appellant confessed he had shot the victim.
Appellant did not contest the identity of the shooter at trial. Instead, the thrust of the defense was self-defense, voluntary manslaughter based on heat of passion or sudden quarrel or imperfect self-defense. The jury rejected these theories and convicted appellant of first degree murder.
DISCUSSION
Appellant contends the trial court erred in admitting Carson’s testimony regarding the victim’s hearsay statements suggesting that appellant was planning to kill him.
The relevant portion of Carson’s direct examination testimony is as follows:
“[PROSECUTOR]: . . . [W]ell, at some point, did [the victim] leave your house that evening?
“[CARSON]: He left the night that [appellant] called.
“[DEFENSE COUNSEL]: Objection, Your Honor, hearsay. Ask that it be stricken.
“THE COURT: Rephrase your question.
“[PROSECUTOR]: When is the last time that you saw [the victim]?
“[CARSON]: The night when he left.
“[PROSECUTOR]: So he left your house on 87th that night?
“[CARSON]: Yes.
“[PROSECUTOR]: About what time?
“[CARSON]: Around nine o’clock or 9:30.
“[PROSECUTOR]: Do you know why he left?
“[DEFENSE COUNSEL]: Objection, calls for hearsay, Your Honor.
“THE COURT: Calls for a yes or know answer. She may answer.
“[CARSON]: Yes.
“[PROSECUTOR]: And why was that?
“[CARSON]: Because [appellant] called.
“[DEFENSE COUNSEL]: Objection, Your Honor. Calls for hearsay.
“THE COURT: Sustained.
“[PROSECUTOR]: Being offered not for the truth but the effect on the listener.
“THE COURT: All right. Ladies and gentlemen, sometimes we have evidence that is admitted not for the truth of the matter asserted but only to explain what the listener did in response. And that will be admitted for that purpose only.
“[PROSECUTOR]: Thank you.
“THE COURT: Go ahead.
“[CARSON]: I don’t understand.
“[PROSECUTOR]: You can answer the question.
“THE COURT: You can answer. Do you remember the question?
“[CARSON]: Yes.
“THE COURT: Go ahead, re-ask it.
“[PROSECUTOR]: You said that [the victim] left, and I said why did he leave. And you were just about to answer why he left.
“[CARSON]: Okay. Somebody had called [the victim] and said Whoa is getting beat up. So he said, ‘Why should we be meeting on 82d and Rudsdale?’
“[PROSECUTOR]: You heard [the victim] say those words?
“[CARSON]: Yeah. Yes.
“[PROSECUTOR]: And had you heard [the victim’s] phone ring prior to hearing him saying those words?
“[CARSON]: Yes, I heard him.
“[PROSECUTOR]: Was that on a cell phone or
“[CARSON]: That was on a cell phone.
“[PROSECUTOR]: Where was [the victim] when this phone call took place?
“[CARSON]: He was up in my kitchen.
“[PROSECUTOR]: What was his demeanor like? In other words, how did he sound, his tone of voice, when he was on the phone?
“[CARSON]: Um, he sound like he was worried, you know, because he said, ‘You want me to meet you on 82d and Rudsdale?’ He said, ‘I thought we meet on East 14th.’ ”
“[PROSECUTOR]: Did he seem confused at all or did he seem more concerned or worried than confused?
“[CARSON]: I, I think more worried, because he told me, ‘Mom, I’m leaving. If I don’t come back, I love you.’ ”
Appellant argues admission of Carson’s testimony about the victim’s statements violated the statutory prohibition against hearsay (Evid. Code, § 1200, subd. (b)) and his due process rights under the Fifth and Fourteenth Amendments. He contends the error was prejudicial because the statements inferred that appellant “planned to lure the victim to a lethal confrontation.”
All undesignated section references are to the Evidence Code.
Appellant’s failure to specifically object to Carson’s statements on constitutional grounds waives the constitutional claim on appeal. (§ 353, subd. (a)); People v. Bolden (2002) 29 Cal.4th 515, 546-547.)
The People correctly argue that appellant’s failure to object to Carson’s testimony, “Um, he sound like he was worried, you know, because he said, ‘You want me to meet you on 82d and Rudsdale?’ He said, ‘I thought we meet on East 14th,’ ” and “I think [the victim was] more worried, because he told me, ‘Mom, I’m leaving. If I don’t come back, I love you,’ ” waives any claim of error as to those statements on appeal. (§ 353, subd. (a).) We reject appellant’s assertion that he was not required to renew his hearsay objection to Carson’s subsequent testimony that “logically fell within the scope of the trial court’s [prior] ruling” admitting Carson’s testimony “to explain what the listener did in response.” Appellant’s prior hearsay objection was not made to Carson’s ongoing testimony regarding statements by the victim, and therefore his failure to object to this part of Carson’s testimony fails to preserve the issue for appeal.
In any event, even if the issue were preserved on appeal and the trial court should have excluded Carson’s testimony regarding all of the victim’s statements that related to the phone call, the error would be harmless. (People v. Watson (1956) 46 Cal.2d 818, 836-837; accord, People v. Duarte (2000) 24 Cal.4th 603, 618-619.) Appellant contends the evidence was prejudicial because it showed appellant lured the victim to the site of the killing, providing key support to the prosecution’s claim the killing was premeditated. But the evidence of premeditation was overwhelming. Numerous witnesses testified that appellant and the victim were engaged in an ongoing dispute that had been marked by arguing and physical confrontation. Terrell testified that during the evening of the shooting, appellant and the victim argued, and the victim told Terrell they were going to meet appellant. In Torrence’s statement to police, he said that on the night of the shooting appellant told Torrence that the victim was coming to meet appellant and would have to fight him. Appellant had lost a previous fistfight to the victim and had prepared for the expected encounter by arming himself with a loaded firearm and concealing the weapon on his person. Moreover, appellant’s claim that his conduct was excused or mitigated by the victim’s aggressive behavior was seriously undermined by evidence of his efforts to persuade Edwards, Johnson and Terrell to support the contradictory defense that he was not present.
The evidence of premeditation was so strong that had we concluded the trial court’s error was of federal constitutional dimension, we would find it harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
DISPOSITION
The judgment is affirmed.
We concur, Jones, P.J., Needham, J.