Opinion
F042135.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. BALDOMERO CALDERON VASQUEZ, Defendant and Appellant.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John G. McLean and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
A jury convicted appellant Baldomero Calderon Vasquez of possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).) The trial court sentenced appellant to the upper term of three years with all but eight months stayed pending successful completion of appellants nine-year sentence in another case, Kern County Superior Court case No. SC083324A. The court also sentenced appellant to an additional two years pursuant to a Penal Code section 12022.2 enhancement (felony committed while released on bail). Appellant was sentenced to a total term of 11 years 8 months. He timely appeals, contending the trial court prejudicially erred in allowing the introduction of hearsay evidence. We find no prejudice, and affirm.
FACTS
In August of 2002 appellant went to Andrew Rodriguezs house to discuss the purchase of a car Rodriguez was selling. Rodriguez left his house to run errands, and when he returned he saw people fighting in the street. He observed a man with salt-and-pepper hair reach into a brown car and pull out a handgun. He only saw the man from the back. Rodriguez called 9-1-1 and reported the incident, but did not leave his name. However, he testified at trial that he did call 9-1-1. Rodriguez also testified that he spoke with a "Deputy Craig" about the incident, but testified that he did not identify anyone.
Kern County Sheriffs Deputies Alfred Juarez and Roger Dixon arrived on the scene. They spotted appellant hiding (ducked down) in the front passenger seat of a brown Oldsmobile Cutlass, matching the description of the vehicle reported to 9-1-1. Deputy Dixon ordered appellant out of the car and Deputy Juarez found a loaded handgun protruding from under the front seat of the vehicle.
A third deputy, Deputy James Craig, then interviewed an "individual [who] did not want to be identified" who lived in the front house next to the auto body shop. This individual admitted he had called the Sheriffs office, and identified appellant as the person with the gun. This person told Deputy Craig that appellant had stated to the person he was arguing with "[w]hat are you going to do now?" Deputy Craig recalled interviewing only one civilian and testified he later learned this person was Rodriguez.
DISCUSSION
Appellants sole claim on appeal is that the trial court prejudicially erred in allowing the testimony of Deputy Craig. He contends the statements by Deputy Craig regarding what Rodriguez told him at the scene were inadmissible hearsay, because it was never firmly established that the individual Deputy Craig interviewed was Rodriguez. Thus, appellant maintains that it could not have been used as an inconsistent statement by Rodriguez or to show bias or motive. Respondent contends that, regardless of any error, appellant cannot show prejudice.
We agree with respondent. Even without Officer Craigs testimony, appellants guilt with respect to being a felon in possession of a handgun was conclusively established on this record. Rodriguez testified that a man with salt-and-pepper hair reached into a brown car in front of his house and pulled a "shiny object out" that he believed to be a gun. He further testified that the man returned toward the brown car. Reporting officers then responded to a 9-1-1 call reporting a Hispanic male with gray hair had a gun and was in a brown car near Rodriguezs address. The reporting officers testified they drove by a brown car parked near Rodriguezs house, saw appellant attempting to hide in the car, and when they removed appellant (the sole occupant) from the brown car there was a shiny gun protruding from under the front seat. This testimony sufficiently established that appellant violated Penal Code section 12021, subdivision (a). (People v. Ratliff (1990) 223 Cal.App.3d 1401, 1411 [a violation of Penal Code section 12021, subdivision (a) "is committed the instant the felon in any way has a firearm within his control."].)
Appellant does not deny that he was hiding in the car or that the gun was in the car, but merely that without Deputy Craigs testimony a jury could have reasonably believed appellant was not aware that the gun was in the car with him. Based on other evidence before the jury, however, Deputy Craigs testimony — even if erroneously admitted — could not have affected the outcome. While Deputy Craigs testimony directly placed the gun in appellants hand, that fact had already been overwhelmingly established by the circumstantial evidence set forth above linking appellant as the person who brandished the weapon. And this evidence, of course, is in addition to the fact appellant was found hiding from police in a car with a firearm in plain view within his reach. Accordingly, error, if any, was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18; People v. Earp (1999) 20 Cal.4th 826, 878 [a judgment is not reversed for erroneous admission of evidence unless the admitted evidence should have been excluded on the ground stated and the errors complained of resulted in a miscarriage of justice]; People v. Scheid (1997) 16 Cal.4th 1, 21 [erroneous admission of evidence warrants reversal only if the appellate court concludes that it is reasonably probable the jury would have reached a different result had the evidence been excluded].)
DISPOSITION
The judgment is affirmed.