(Super. Ct. No. 08F09783)
The opinion of the court was delivered by: Duarte , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In the early morning of Thanksgiving Day, defendant, who had been using methamphetamine for several days and was restless and "acting weird," shot Augusta James several times. As James lay dying in a pool of his own blood, he identified defendant as the shooter. A jury convicted defendant of second degree murder (Pen. Code, § 187, subd. (a)) and found true the enhancement for personal use of a firearm (Pen. Code, § 12022.53, subds. (b), (c) & (d)). Defendant was sentenced to 40 years to life in prison.
On appeal, defendant contends the trial court erred in admitting James's statements to his sister and the police as dying declarations. He contends there was insufficient evidence that James believed he was dying and the admission of James's statement to the police violated defendant's right to confrontation under the Sixth Amendment. We disagree and shall affirm.
On the night before Thanksgiving Day 2008, defendant, Daneen Rothchild, Marvin Singleton, Augusta James (known as AJ), and his girlfriend Brenda Parker were at the house Daneen shared with her mother and daughter.*fn1 They were smoking crystal methamphetamine and marijuana, as well as drinking. Defendant and Singleton had been using methamphetamine for several days. Defendant looked as if he had not slept; he was acting "antsy" and "weird."
At some point defendant "flashed" a gun in front of Daneen and her mother, Deborah, while the three were in Deborah's room. At another point, while in another room of the house, defendant indicated that he wanted to speak to AJ alone, and asked others present to leave the room, so that he could "holler at [his] brother." Daneen then became angry and asked everyone to leave her house.
Singleton left the house, intending to "drop everyone off," driving with defendant in the front seat and Parker and AJ in the backseat. When Singleton stopped at AJ's house, Parker went to the house but AJ stayed by the car. AJ was trying to get some more methamphetamine. He called someone and reported "the girl" would bring it. Defendant wanted some drugs too and asked to speak to the dealer, but AJ hung up and put the phone in his pocket. Defendant complained, "Man, you didn't hear me. I said, let me talk to her." AJ let defendant use the phone and defendant made a call. He acted surprised during the call and was upset.
Defendant pulled out a gun and said, "eh." AJ leaned down by the car as if to hear or respond to defendant; defendant then fired twice. AJ turned and began running. Defendant jumped out of the car, leaving the door open, and followed AJ shooting. Singleton heard AJ make a sound--"ah, ah"--when he was hit.
Parker screamed. She and AJ's sister Antoinette went looking for AJ. They heard him calling to them. Antoinette asked AJ where he was shot and he responded, "[e]verywhere." AJ told Antoinette, "That bitch ass nigga Jules shot me." Antoinette did not tell the police that AJ had identified the shooter, even when they asked if she knew who shot her brother.*fn2
When the police arrived at the scene, AJ was on the ground in a lot of pain; "[h]e was moaning, having trouble breathing, and kind of moving around a little bit." There was a lot of blood. An officer asked AJ who shot him and AJ responded, "Jules." This exchange was captured on tape by a camera in the patrol car. Parts of the tape are unintelligible. No one can be heard asking AJ who ...