Ortiz

Marcos Ortiz appeals following a jury conviction of second degree murder with a knife. He contends the trial court committed Wheeler error and erroneously admitted statements made by the victim, Evelia Juarez. Appellant claims admission of the victim’s statements violated People v. Hamilton (1961) 55 Cal.2d 881 [ 362 P.2d 473 ] (Hamilton) (revd. on other grounds in People v. Wilson (1969) 1 Cal.3d 431, 443 [ 82 Cal.Rptr.2d 494 , 462 P.2d 22 ]). In an unpublished portion of this opinion we conclude that no Wheeler error occurred. In the published portion, we conclude that the rule of Hamilton has been abrogated by the adoption of the Evidence Code and constitutional amendment. We affirm the judgment.

Facts

Following a 1989 trip to Mexico, Evelia and Albino Juarez returned to California with appellant, their 20-year-old nephew. Appellant initially lived with the Juarez couple and their young son in a one-bedroom apartment. Appellant slept in a sleeping bag in the living room. When the Juarez family moved to a house, appellant moved with them and lived in a basement studio.

In March 1992, six months before the killing, Evelia telephoned her sister, Luz Maria Perez, and…