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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 was charged with first degree murder and burglary. After the jury was unable to agree on the degree of the murder, the prosecutor withdrew the first degree allegation. The jury found defendant guilty of second degree murder and burglary and found true two deadly/dangerous
weapon enhancements. Defendant admitted prior convictions. He was sentenced to 36 years to life in prison. DISCUSSIONA. Summary of Relevant Trial Court Proceedings on Cortez's Out-of-court Statements At trial, the People sought to introduce statements Cortez made to police on the three occasions they had arrested defendant, as well as the recording of the 911 call Cortez made on March 27, 2004. In a pretrial motion, the People asserted that Cortez's out-of-court statements were admissible because they fell within the confrontation clause exception for forfeiture by wrongdoing. The prosecutor argued defendant killed Cortez on April 11, 2004, and thus prevented her from appearing in court and "testifying to the prior acts of domestic violence." Over defendant's objections founded primarily on Crawford, supra, 541 U.S. at pages 53-54, the trial court granted the People's motion, thus paving the way for the admission of the following evidence about what Cortez told the officers. It is this evidence that defendant now challenges. —June 7, 2003 (I): Officer Armendariz testified that during his first meeting with Cortez at her apartment on June 7, 2003, Cortez told him that earlier that day she and defendant were at a laundromat when they started arguing about their relationship. After defendant hit Cortez, she called a cab to leave, but defendant followed Cortez into the taxi and continued assaulting her. When Cortez tried to call 911 in the cab, defendant took her cell phone and punched her in the face several times. Defendant eventually got out of the cab, and Cortez went home. Cortez called 911 again, this time reaching dispatch. Before police arrived defendant telephoned her and said, "I'm going to get even with you. When you are asleep I'm going to come over and kill you and split to Mexico." When Armendariz spoke to her the first time in her apartment, Cortez told him of the phone call and that she was afraid defendant might come back and hurt her. Cortez told Armendariz that she intended to find somewhere else to stay. —June 7, 2003 (II): Some time later that evening following Cortez's third 911 call, Officer Armendariz returned to Cortez's apartment. Cortez told him that defendant had broken into her apartment after Armendariz had left and that defendant had hit her in the face with his fist three or four times, choked her, and threatened to kill her. Cortez told Officer Armendariz that defendant said, "I'm going to kill you. I heard everything that you said to the police" and "[f]or telling the police, now you are going to get it." When Cortez called
911, defendant pulled the telephone away and continued the assault. (The third 911 call is the one that we set out verbatim, ante.) —December 30, 2003: Officer Neufeld testified that on December 30, 2003, Cortez told him that as of October she and defendant had been seeing each other only "off and on." Defendant wanted to reunite but Cortez refused because of defendant's past violence toward her. Defendant had spent the prior night with Cortez; when she asked defendant to leave, he refused and, when Cortez threatened to call the police if he did not leave, defendant said he would kill her if she called the police. Cortez did not telephone the police because she "was concerned for her safety if she got the police involved because she genuinely believed that he could take her life." Cortez told Neufeld that she "was genuinely concerned for her safety and believed that [defendant] was capable of committing harm to her." Neufeld advised Cortez to stay with friends or relatives until things calmed down, but Cortez said there was no one to stay with her and nowhere for her to go.
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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