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PEOPLE v. BANOS
178 Cal.App.4th 483 (2009)
Court of Appeals of California, Second District, Division Eight.
October 19, 2009.
"[DEFENDANT]: What? "CORTEZ: Yeah. "[DEFENDANT]: I am going to kill you. (Unintelligible.)" The sound of Officer Armendariz entering the apartment a second time then can be heard on the tape. Officer Armendariz testified that, about 10 minutes after first leaving Cortez, he was dispatched back to her apartment "code three," which means with lights and siren activated. When Armendariz arrived back at the apartment, defendant was sitting on the couch next to Cortez. Defendant was arrested. On July 23, 2003, a protective order was issued which restrained defendant from annoying, harassing, striking, threatening or disturbing Cortez for a period of three years. 2. December 30, 2003 Some six months later, Officer Armendariz and his partner, Officer Mark Neufeld, were dispatched to Cortez's apartment to investigate a possible violation of the restraining order. When they arrived, Neufeld saw defendant walking out of Cortez's apartment. Defendant told Neufeld that he had arrived about an hour earlier; defendant said he was aware of the restraining order but wanted to reunite with Cortez. The officers also spoke to Cortez, whom Neufeld described as "frightened, very nervous." Defendant was arrested a second time.
1. Defendant claims the trial court erred by admitting a much later 911 call, one on March 27, 2004. (See Discussion, pts. A-C, post.) 2. The People also argue that the statements are admissible under Evidence Code section 1240 (section 1240). We do not need to address whether the evidence is admissible as Cortez's "spontaneous statements" because defendant does not argue on appeal that the testimony was hearsay under state law.
At the hearing on the prosecution's motion to allow testimony about defendant's prior acts of domestic violence against Cortez, the parties made several arguments not maintained on appeal. The trial court apparently found that the prior domestic violence evidence was admissible under Evidence Code section 1109 (evidence of prior acts of domestic violence admissible under certain circumstances). The court also rejected the defense argument that, aside from the confrontation clause violation, Cortez's out-of-court statements to police officers were hearsay under state law. The court held that evidence qualified as spontaneous statements under section 1240. Defendant also asserted an Evidence Code section 352 objection. The parties did not address Evidence Code section 1350, which codifies as a hearsay exception some aspects of the common law forfeiture by wrongdoing rule. (See fn. 8, post.) Because none of these points is raised on appeal we do not address them, other than to observe there is some overlap between the spontaneous statement hearsay exception under section 1240 and the nontestimonial nature of spontaneous statements under Crawford and Davis. (See People v. Pedroza (2007) 147 Cal.App.4th 784, 792-794 [54 Cal.Rptr.3d 636] ["`difficult to identify any circumstances'" under which a spontaneous statement would be testimonial]; People v. Corella (2004) 122 Cal.App.4th 461, 469 [18 Cal.Rptr.3d 770].) 3. The fact that a statement is not testimonial and therefore is admissible under Crawford does not mean it is necessarily admissible under applicable state evidentiary rules. (Giles I, supra, 40 Cal.4th at p. 854, overruled on other grounds in Giles II, supra, 554 U.S. ___ [128 S.Ct. 2678].) As we have pointed out, defendant does not claim any state law error. 4. Calls made to 911 often present both testimonial and nontestimonial elements. (See Note, The Price of Silence: The Prosecution of Domestic Violence Cases in Light of Crawford v. Washington (2005) 79 So.Cal. L.Rev. 213, 264 & fn. 52 (The Price of Silence).) 5. It was the testimonial portion of Cortez's statement to which Officer Armendariz testified at trial. 6. Prior to Giles II, a criminal defendant's Sixth Amendment rights did not bar admission of an unavailable witness's statement if the statement bore "adequate `indicia of reliability,'" which occurred when the evidence either fell within a firmly rooted hearsay exception or bore particular guarantees of trustworthiness. (Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 100 S.Ct. 2531].) 7. We have held that Evidence Code section 356 (whole statement admissible if part received) is also a rule founded not on reliability, but on fairness, and hearsay statements admitted under that statute are not subject to Crawford. (People v. Parrish (2007) 152 Cal.App.4th 263, 271-274 [60 Cal.Rptr.3d 868].) 8. Reynolds in turn relied on a series of 17th and 19th-century English and American cases, e.g., Lord Morley's Case (1666) 6 How. St. Tr. 769, 770 (H.L.) and Williams v. The State (1856) 19 Ga. 402. (See Giles II, supra, 554 U.S. at pp. ___-___ [128 S.Ct. at pp. 2682-2684] [historical development of doctrine].) 9. A similar limitation is expressed in Evidence Code section 1350 which states in part, "(a) In a criminal proceeding charging a serious felony, evidence of a statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, and all of the following are true: [¶] (1) There is clear and convincing evidence that the declarant's unavailability was knowingly caused by, aided by, or solicited by the party against whom the statement is offered for the purpose of preventing the arrest or prosecution of the party and is the result of the death by homicide or the kidnapping of the declarant. [¶] (2) There is no evidence that the unavailability of the declarant was caused by, aided by, solicited by, or procured on behalf of, the party who is offering the statement." Neither side relies on Evidence Code section 1350. 10. Of course even under Giles II, when the defendant is found to have killed the victim for the purpose of preventing his or her testimony, the judge also makes the preliminary determination that the defendant was the killer. Justice Souter, in his Giles II concurrence, described the conundrum, and its path to clarity, this way: "Equity demands something more than this near circularity before the right to confrontation is forfeited, and more is supplied by showing intent to prevent the witness from testifying." (Giles II, supra, 554 U.S. at p. ___ [128 S.Ct. at p. 2694] (conc. opn. of Souter, J.); see generally The Price of Silence, supra, 79 So.Cal. L.Rev. at pp. 229-231.) 11. The People's motion in limine stated that a hearing on defendant's violation of the restraining order was scheduled for April 19, 2004, just a week after the murder. Although there was no minute order or other evidence presented, the date was not challenged by the defense either at trial or on appeal. 12. The trial court made no express findings on whether defendant killed Cortez to prevent her from cooperating or testifying. The People's motion in limine expressly raised the forfeiture by wrongdoing doctrine, but, except for an occasional reference to Crawford at oral argument on the motion, neither the parties nor the attorneys gave substantive attention to the point. Because the motion in limine was in the nature of a motion under Evidence Code section 400 to determine a preliminary fact, Evidence Code section 402, subdivision (c) comes into play: "A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute." (See also Evid. Code, § 1350, subd. (c).)
We also observe that neither in the trial court nor on appeal did the parties address the burden of proof that governs the determination of forfeiture by wrongdoing. Nor did the trial court make any statements on the subject. In Davis, supra, 547 U.S. at page 833, the court expressly took no position on the evidentiary standard, but noted that federal courts applying Federal Rules of Evidence, rule 804(b)(6) (28 U.S.C.) generally used the preponderance of the evidence standard. In Giles II, the majority is silent, although Justice Souter in his concurrence assumes that the standard is one of preponderance. (Giles II, 554 U.S. at p. ___ [128 S.Ct. at p. 2694] (conc. opn. of Souter, J.).) Our Supreme Court in Giles I, supra, 40 Cal.4th at page 853, expressly held the preponderance of the evidence standard applies. The court repeated that holding in People v. Zambrano (2007) 41 Cal.4th 1082, 1147, footnote 21 [63 Cal.Rptr.3d 297, 163 P.3d 4], disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22 [87 Cal.Rptr.3d 209, 198 P.3d 11]. Both Giles I and Zambrano preceded Giles II. Because the United States Supreme Court in Giles II did not reject the Giles I burden of proof analysis, we conclude that it is still the law of California. (See Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 709, fn. 12 [238 Cal.Rptr. 780, 739 P.2d 140]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) We do observe that to the extent Evidence Code section 1350 codifies some aspects of the common law forfeiture by wrongdoing doctrine, the statute in part requires clear and convincing evidence. (See Evid. Code, § 1350, subd. (a)(1).) We do not attempt to reconcile the apparent conflict here. * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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