APPEAL from a judgment of the Superior Court of Los Angeles County. Zaven V. Sinanian, Judge. Affirmed. (Los Angeles County Super. Ct. No. GA056949).
The opinion of the court was delivered by: Rubin, Acting P. J.
Filed 10/19/2009; Opn. on remand from Supreme Ct.
CERTIFIED FOR PUBLICATION
In 2006, a jury convicted defendant Manuel Banos of the second degree murder of his ex-girlfriend, Mary Ann Cortez, and two counts of first degree burglary. On appeal, defendant challenges on Sixth Amendment grounds the admission into evidence of certain of Cortez‟s out-of-court statements to police during prior domestic violence investigations. In an earlier opinion, we affirmed the judgment after upholding the admission of those statements under the forfeiture by wrongdoing exception to the confrontation clause as articulated by our Supreme Court in People v. Giles (2007) 40 Cal.4th 833, certiorari granted January 11, 2008 ___ U.S. ___ [128 S.Ct. 976] (Giles I). Under that doctrine, a defendant may forfeit the right to confront a witness when he has killed that witness or otherwise made the witness unavailable at trial. (People v. Banos (Jan. 28, 2008, B194272) [nonpub. opn.].) The United States Supreme Court vacated our judgment and transferred the case back to us for reconsideration in light of its decision in Giles v. California (2008) 554 U.S. ___ [128 S.Ct. 2678] (Giles II). In Giles II, the court concluded that the forfeiture by wrongdoing exception applies only upon a showing that the defendant killed the witness for the purpose of making him or her unavailable as a witness at trial.
We have now considered defendant‟s appeal in light of Giles II and again affirm the judgment. Certain of Cortez‟s statements are not testimonial and are admissible under Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford) and Davis v. Washington (2006) 547 U.S. 813 (Davis). The balance is admissible under the forfeiture by wrongdoing exception, as formulated in Giles II: there was substantial evidence that defendant killed Cortez to prevent her from reporting his prior conduct to police and from testifying against him. That defendant may have also had other motives for the killing (e.g., retribution for infidelity) does not preclude application of the exception.
FACTUAL AND PROCEDURAL BACKGROUND
We recite the evidence in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358). Much of the evidence was unchallenged, including testimony that victim Cortez‟s complaints to police had resulted in defendant‟s arrest three times in the 10 months before Cortez was killed. Because of the significance of these arrests on the issue remanded to us, we start our factual summary with events prior to the Cortez killing.
A. Prior Arrests of Defendant for Domestic Violence
When Burbank Police Officer Mark Armendariz responded to Cortez‟s apartment around 10:45 p.m., on June 7, 2003, Cortez was "excited" and "upset." Armendariz and Cortez spoke about defendant‟s physical assault on her earlier that day. Armendariz left to see if defendant was still in the vicinity, did not find him and then resumed other duties.
Minutes after Officer Armendariz left, Cortez again called 911. The admission into evidence of the recording of that telephone call is not challenged on appeal.*fn1
Although the telephone call was to 911, most of the recorded material was an exchange between Cortez and defendant:
"[DEFENDANT]: Do you want to speak to the police?
"[DEFENDANT]: Are you going to talk?
"CORTEZ: Why are you hitting me?
"[DEFENDANT]: I am going to kill you. (Unintelligible.)
"CORTEZ: What do you want, Manuel?
"CORTEZ: I didn‟t call anybody.
"CORTEZ: Manuel, my phone don‟t reach. Manuel (Unintelligible.) Leave me alone. I just want to sit down. (Screams.) (Cries.)
"[DEFENDANT]: (Unintelligible.) I‟ll kill you, true to God. (Unintelligible.)
"[DEFENDANT]: Are you going to speak to the cops? Are you going to speak?
"[DEFENDANT]: Are you going to shut up or am I going to kill you?
"[DEFENDANT]: Are you going to shut up or am I going to kill you? I am going to kill you. Are you going to shut up? Are you going to shut up?
"[DEFENDANT]: Are you going to ...