Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA340280. John S. Fisher, Judge.
Doris M. Frizzell, 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, Assistant Attorney General, Linda C. Johnson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
A jury convicted Christopher Lipsey of attempted murder, but could not agree on whether the murder was premeditated. It further found that Lipsey personally discharged a firearm, and personally discharged a firearm causing great bodily injury (GBI), and that he had committed the attempted murder for the benefit of a criminal street gang. (Pen. Code, §§ 664/187, subd. (a), 12022.53, subds. (c), (d), 186.22, subd. (b)(1).) In a bifurcated proceeding, the trial court found that Lipsey had suffered a prior strike conviction for robbery, which also qualified as a prior serious felony conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667, subd. (a).) The court thereafter sentenced Lipsey to an aggregate term of 47 years to life in state prison. We reject Lipsey’s claims that his federal and state constitutional right to confront a witness against him was violated by the use of the witness’s preliminary hearing testimony, and that the GBI finding is not supported by substantial evidence, and affirm the judgment.
All further references are to the Penal Code unless otherwise indicated.
FACTS
On April 29, 2008, M.B. (the victim) went to the Family Farms Market near 43rd Street and Central Avenue with Brian F. and Brian’s girlfriend. M.B. was a member of the Bloodstone Villains gang, which is a rival to the Crips. While the group was in the market, a Black male walked up and stated that he was a member of the Four Trey Gangster Crips, that the market was in the “Four Trey hood, ” and that M.B. was “out of [his] boundaries.” When M.B. and his companions left the market, they were accosted by Lipsey, a member of the Four Trey Crips, and several more Four Trey gang members. An argument started, and Lipsey punched M.B. M.B. fell to the ground. Lipsey then pulled a gun from his waistband and fired a single gunshot at M.B. The bullet entered and exited the upper part of M.B.’s left buttock; he was treated at a local hospital and released within a “few hours;” he was “walking still after [he] got shot later on that day, ” with “no setbacks or nothing.”
Los Angeles Police Department Officer Ryan Bellows investigated the shooting. In the course of his investigation, Bellows reviewed the market’s surveillance videos. About a week after the market shooting, Bellows was on patrol when he saw Lipsey. Bellows believed that Lipsey looked like the shooter in the market’s surveillance tapes and transported him to the Newton Street station for questioning. Lipsey waived his Miranda rights and agreed to talk about the shooting. Lipsey admitted that he had been at the market and admitted that he “socked” M.B. According to Lipsey, the shooting occurred when M.B. pulled out a gun, and Lipsey grabbed the gun away and shot M.B. Lipsey said that he ran from the scene and threw the gun in a bush by a park on 47th Street. On May 13, 2008, M.B. identified Lipsey from a six-pack photographic lineup (six-pack).
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
At Lipsey’s preliminary hearing, M.B. testified that Lipsey’s photograph was already circled when M.B. first saw the six-pack. According to M.B., the detective said that Lipsey had shot M.B., and that M.B. had to go along with the identification or his parole would be violated. M.B.’s wife testified at trial. She said that M.B. told her he had been placed in the same jail cell as Lipsey. Further, that Lipsey’s eyes widened upon seeing M.B., and that Lipsey said he knew M.B. would not snitch on him.
In December 2008, the People filed an information charging Lipsey with the attempted murder of M.B., with allegations that Lipsey had personally discharged a firearm and personally discharged a firearm causing GBI, and that he had committed the attempted murder for the benefit of a criminal street gang. (§§ 664/187, subd. (a), 12022.53, subds. (b)-(d), 186.22.) The case was tried to a jury in late April and early May 2009, at which time the People presented evidence establishing the facts summarized above. Lipsey did not present any defense evidence; his trial counsel argued that Lipsey’s pretrial statement should be considered a “false confession” given in response to Officer Bellows’s suggestions, and that any other evidence tending to identify Lipsey as the shooter was sufficiently suspect so as to raise reasonable doubt. Defense counsel alternatively argued that Lipsey was not guilty of any crime because he had acted in self-defense. He argued alternatively that, if he committed any crime, he was not guilty of attempted murder in that the People had failed to prove beyond a reasonable doubt that he had harbored the intent to kill, making his crime at most an assault with a deadly weapon.
The trial court instructed the jury on attempted premeditated murder, attempted murder, attempted voluntary manslaughter, and assault with a firearm. The court submitted the cause to the jury late in the day on May 5, 2009. On May 6, 2009, the jury returned a verdict finding Lipsey guilty of attempted murder of M.B., with findings that Lipsey had personally discharged a firearm and had personally discharged a firearm causing GBI, and that he had committed the attempted murder for the benefit of a criminal street gang. On June 8, 2009, the trial court sentenced Lipsey as noted at the outset of this opinion.
Lipsey filed a timely notice of appeal.
DISCUSSION
I. Use of Prior Testimony
Lipsey contends his attempted murder conviction must be reversed because the trial court allowed the prosecution to present victim M.B.’s testimony from Lipsey’s preliminary hearing in lieu of M.B.’s live testimony at trial. We disagree.
A defendant in a criminal prosecution has a federal and state constitutional right to confront the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) In addition, hearsay evidence is generally inadmissible except as provided by law (Evid. Code, § 1200, subd. (b)), and is inadmissible against a defendant in a criminal prosecution where it would result in a violation of the right of confrontation (Evid. Code, § 1204). Where a declarant is unavailable for trial, however, and the defendant has been granted a prior opportunity to cross-examine the declarant, his or her prior testimony is admissible. (Evid. Code, § 1291.) “When the requirements of Evidence Code section 1291 are met, ‘admitting former testimony... does not violate a defendant’s right of confrontation.... [Citations.]’ ” (People v. Wilson (2005) 36 Cal.4th 309, 340, discussing Crawford v. Washington (2004) 541 U.S. 36, 59.) A trial court’s ruling on Evidence Code section 1291 is subject to a mixed standard of review: the trial court’s determination of historical facts is examined under the substantial evidence test, while the trial court’s unavailability and due diligence determination is given independent review. (People v. Cromer (2001) 24 Cal.4th 889, 900-903.)
Prior to the use of M.B.’s testimony from Lipsey’s preliminary hearing, the trial court conducted a hearing on the issue of whether the People had established that M.B. was legally unavailable. The record before us on appeal establishes the following historic fact context for Lipsey’s argument:
In early April 2009, the trial court conducted a trial setting conference and set the case for trial on April 22. The case was thereafter continued to April 27. Officer Bellows obtained a subpoena for M.B. “shortly before April 23rd” but could not recall the exact date. On April 23, at 5:00 p.m., Bellows went to serve M.B. at his last known residence, but no one answered the door. When the officer called M.B.’s telephone number, he learned that the number was no longer in service. Bellows returned to M.B.’s residence on April 24, at 10:00 a.m., but, again, no one answered the door. At 11:30 a.m., Bellows called M.B.’s wife, but her cellular telephone was turned off.
On April 27, 2009, the trial court called a panel of prospective jurors, and voir dire commenced. At 12:00 p.m., Officer Bellows again tried to call M.B.’s wife’s cellular telephone, but, again, her phone was turned off. At that point, Bellows contacted another officer. That evening, the second officer served M.B.’s wife with a subpoena; she later testified at Lipsey’s trial. At the time she was served with a subpoena, M.B.’s wife told the second officer that M.B. had moved from the family residence, and that she did not know where he was living.
Voir dire continued throughout the day on April 28, 2009. That morning, Officer Bellows went back to M.B.’s wife’s residence, but no one answered the door. At “noonish, ” Bellows returned to the police station, where he checked to see whether M.B. was in custody. Bellows learned that M.B. had been in custody, but he had been released on April 2, 2009.
On April 29, 2009, Officer Bellows again checked department resources to see whether M.B. had been taken into custody; he had not. Bellows then contacted County Hospital as well as California Hospital to see whether M.B. had been admitted for any reason; he had not. Meanwhile, in the courtroom, the trial court impaneled the jury and alternates at the end of the day.
On the morning of April 30, 2009, Officer Bellows again checked department resources to see whether M.B. had been taken into custody and again checked County Hospital and California Hospital. Again, the officer did not find M.B. In the courtroom, trial witnesses began testifying. An officer who had responded to the shooting at the Family Farm Market testified, following which Bellows testified about his investigation. The court then conducted a hearing outside the presence of the jury on whether victim M.B. was “unavailable” within the meaning of Evidence Code section 1291. Bellows was the only witness. Officer Bellows testified to the aforementioned efforts he made to locate M.B. Officer Bellows added that given M.B.’s gang status, it was unlikely M.B. would have appeared even if he had been properly served in advance of trial. At the conclusion of the hearing, the court ruled that Bellows had done “all he could within reason” to secure M.B.’s appearance at trial. The court allowed M.B.’s prior testimony from Lipsey’s preliminary hearing to be read to the jury. Lipsey argues that the prosecution “did not demonstrate a sufficient level of effort” to secure M.B.’s appearance at trial. Even assuming this is true, we find any error in admitting M.B.’s prior testimony harmless under the constitutional standard prescribed by the Supreme Court in Chapman v. California (1967) 386 U.S. 18, 24. It is undisputed that M.B. received a gunshot wound in front of the Family Farms Market; it is equally undisputed that Lipsey confessed he shot M.B., albeit with an explanation. Videotapes of the incident were presented to the jury. M.B.’s prior testimony was not a critical part of the prosecution’s case, and, indeed, his testimony was rife with a tenor of reluctance, if not his outright refusal, to identify Lipsey as the shooter. The more predominant element of the case against Lipsey was his confession, which stood or fell on its own insofar as his identity and intent were concerned. We do not agree with Lipsey’s argument that it was important for M.B.’s identification of Lipsey from the six-pack to be shown by his trial testimony –– and not his prior testimony –– in order to buttress the veracity of Lipsey’s confessioN.M.B.’s prior testimony consisted largely of M.B. retreating from any eyewitness identification of Lipsey and of recanting his pretrial six-pack identification of Lipsey. (See fn. 3, ante.) We are satisfied that, whether by live testimony or by his prior testimony, M.B. attempted to undercut his pretrial six-pack identification. It was not critical as Lipsey argues on appeal, for the live testimony to have been given. In our view, the result would have been the same. The jury’s verdict establishes that the jurors gave credence to Lipsey’s confession insofar as the issue of identity was concerned, and that the jury rejected his self-defense story, and we see nothing in the trial record which persuades us that M.B.’s prior testimony played a significant role in tipping the scales in favor of the jury’s decision to convict Lipsey of an attempted murder.
II. GBI
Lipsey contends the jury’s finding that he discharged a firearm and caused GBI must be reversed because the evidence does not support a finding that M.B. suffered GBI. According to Lipsey, it is legally and factually incorrect that GBI may be found in any case in which there is evidence of any kind of bullet wound, which, says Lipsey, is what occurred in his case. In Lipsey’s words: “[A]n examination of the cases reveals that, in general, injuries inflicted with a gun tend to be viewed as more serious than those inflicted using other weapons, regardless of the severity of the bodily damage actually present. [¶] This double standard is not the law....” We find Lipsey’s argument unavailing.
We do not have to decide whether a mere “grazing” wound is sufficient to sustain a GBI finding; the evidence in Lipsey’s case established that M.B. suffered a through and through bullet wound, that paramedics responded to the scene, and that he was taken to a local hospital. Although M.B. was released within hours and minimized his own injury, we cannot say as a matter of law that his bullet wound did not amount to a “significant or substantial physical injury.” (§ 12022.7, subd. (f); see also People v. Escobar (1992) 3 Cal.4th 740, 750 [GBI is a question of fact reviewed under the substantial evidence test]; accord, People v. Jaramillo (1979) 98 Cal.App.3d 830, 836.)
DISPOSITION
The judgment is affirmed.
I concur: FLIER, J., GRIMES, J.