APPEAL from a judgment of the Superior Court of Los Angeles County, Cary H. Nishimoto, Judge. (Los Angeles County Super. Ct. No. YA079266)
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part, reversed in part, and remanded.
On appeal, defendant Kevin Jermaine Jones, who was convicted of making a criminal threat (Pen. Code, § 422*fn2 ), grand theft from a person (§ 487), and simple assault (§ 240), contends, inter alia, that the trial court erred in admitting hearsay statements under the forfeiture by wrongdoing doctrine. In the published portion of this opinion, we hold that under the forfeiture by wrongdoing doctrine, the trial court properly admitted a statement by a witness who was dissuaded from appearing at trial by defendant. In the unpublished portion of this opinion, we order sentence enhancements stricken. We otherwise affirm the judgment.
In June of 2009, Los Angeles Police Department Officer Pedro Cabunoc and his partner responded to a 911 call from Dominique Durden, defendant's then girlfriend. Durden told the officers that she was watering her lawn when defendant placed her in a bear hug from behind. Durden screamed and attempted to break free. Defendant placed his hand over Durden's mouth to stop her screaming. Defendant ultimately let go of Durden, and she willingly accompanied him into her apartment where they discussed ending their relationship. During the discussion, defendant grabbed Durden with his hand, placing it around her neck in a choking manner. Defendant forcibly and violently put Durden on the floor. Durden feared for her life. Eventually, defendant released Durden, took Durden's car keys, and left. Defendant was not charged in the incident.
Carl Smith, defendant's brother, was the father of Bri-Ana Breland's children. In June of 2010, Breland drove Smith, and two children to Smith's mother's house in Inglewood. When they arrived, Smith's mother and defendant were outside. Smith, his mother, and Smith's older son left to pay Smith's phone bill. Breland and her six-month-old son waited in the car for Smith to return.
As Breland, who was pregnant, waited in the car, defendant approached yelling foul language. Defendant told Breland that that she was "going to learn to keep [her] mouth closed." According to Breland, defendant expressed anger that Breland had allegedly told one of defendant's two girlfriends about the other. One of the girlfriends was Durden, a friend of Breland. Breland denied telling Durden or anyone else that defendant was seeing more than one woman.
Defendant threatened Breland. He opened the passenger door, kneeled in the car, and choked her. He held her with one hand around the middle of her neck and squeezed hard, hurting Breland "very badly." Breland felt as though she was going to die. She tried to remove defendant's hand from her, but defendant would not let go. Breland started to give up. She had trouble breathing and was light-headed and dizzy. Defendant said, "Now, bitch, I bet you won't open your mouth no more, and I bet you'll keep my name out your mouth." Defendant appeared to be getting more upset with Breland and told her that he was going to kill her. Breland believed that her life was in danger.
At some point, defendant released the pressure on Breland's neck, and Breland reached for her cell phone to call 911. Defendant grabbed the phone and threw it in the street in an attempt to break it. Defendant then grabbed a bottle of baby lotion and threw the lotion all over the inside of the car and on Breland. As he threw the lotion, defendant said, "Now what?" As defendant continued to threaten Breland, she drove away.
Although she did not know its location, Breland intended to drive to the police station. As she was driving to the police station, Breland saw Smith and his mother driving in the opposite direction. Smith's mother stopped, and Smith and his son got out of Smith's mother's car and into Breland's car. Breland did not tell Smith what had happened; he already knew. Breland asked Smith for the location of the police station. Smith said he did not want to get involved, and he and his son got out of the car. Breland drove to the police station where she told an officer what had happened. When she returned home that night, Breland was still in fear for her safety because defendant knew where she lived.
Breland spoke with Smith the night before her testimony. Smith told Breland not to go to court. Breland was afraid when she testified.
In October of 2010, during an interview of Durden by Detective Marya Parente, Durden said that she had dated defendant for about five years and ended the relationship because of physical violence between them. Durden stated that she and Breland were friends and that defendant called her on the date of the incident using Breland's phone. Durden said that defendant told her, "I just choked your homegirl out and I have her phone." Durden added that she was afraid of defendant due to the prior acts of violence between them. Detective Parente testified that Durden was not cooperative and that Durden did not seem as though she wanted to get involved
On March 23, 2011, Detective Parente spoke to Durden after Durden had been served with a subpoena to appear in court. Durden acknowledged service of the subpoena. When Durden failed to appear in court on March 25, 2011, a body attachment for her was issued in the amount of $75,000. Thereafter, Detective Parente and other officers attempted, unsuccessfully, to contact Durden.
On March 28, 2011, Detective Parente made a request for records from the inmate telephone monitoring system--a system that records all inmate telephone calls from county jail--concerning calls placed by defendant. Defendant placed 12 phone calls to Durden that consisted of about 10 hours of conversation. Detective Parente prepared a recording and transcript of portions of the conversations. The recording was played for the jurors, and the transcript was provided to the jurors. Those recordings included what the trial court suggested were threats by defendant to dissuade Durden from testifying in his case.
I. The Trial Court Properly Admitted Durden's Statement ...