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People v. Merchant

California Court of Appeals, Fourth District, First Division

October 9, 2019

THE PEOPLE, Plaintiff and Respondent,
JECARR FRANSWA MERCHANT, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of Riverside County RIF1406238, Bernard J. Schwartz, Judge. Affirmed.

          Law Office of Corey Evan Parker and Corey Evan Parker for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

          DATO, J.

         A jury convicted Jecarr Franswa Merchant of kidnapping, battery, and dissuading a witness after he careened down the freeway refusing girlfriend Lisa R.'s pleas to stop or let her out, pulled Lisa's hair, and flung her cell phone out the window as she tried to call 911. Lisa did not appear at trial. Applying the forfeiture-by-wrongdoing exception to the Sixth Amendment right to confrontation, the court admitted her statements to law enforcement on the day of the incident. It further allowed the prosecution to introduce evidence of Merchant's prior acts of domestic violence against Lisa and his former girlfriend, J.C. Merchant challenges the admission of both categories of evidence. Finding no error, we affirm the judgment.


         Merchant and Lisa started dating in January 2014. On December 22, Lisa agreed to accompany him on a drive from Lancaster to a point near the junction with the Interstate 210 (I-210) freeway. When Merchant continued going south past I-210, Lisa asked to be dropped off, saying she had things to do. Merchant became angry and began driving recklessly. Concerned, Lisa asked to be dropped off at the shoulder. She tried to make eye contact with other drivers in hopes that someone might call for help. She managed to call 911 herself, further enraging Merchant.

         As Lisa spoke to the emergency dispatcher, Merchant grabbed her by the hair and jacket. He swerved and sped at 90 to 100 miles per hour down the freeway, going on the shoulder and nearly hitting several cars. Lisa felt something bad was going to happen to her; she feared Merchant would drive to a deserted spot and beat her. Caltrans live feed cameras captured Merchant's vehicle "going crazy" on the right shoulder of the freeway while a woman passenger screamed for help and tried to get out of the moving vehicle.

         Lisa told the dispatcher, "my boyfriend − he is kidnapping me. He's in my Ford Excursion. And he won't pull over. He's on [Interstate] 15 headed to San Diego, please somebody help me." She tried to convey their location and direction of travel. Furious, Merchant told her, "You're makin' me go to jail bitch. Whatever, I already got a charge like this and shit... I don't need this. I'll go to jail for life." At some point the 911 call dropped. When Lisa tried to call back, Merchant ripped the phone out of her hand and threw it out the window.

         Merchant exited the highway and drove over a center island. Lisa tried to open the door to escape. Law enforcement caught up just as Lisa managed to shift the gear into park. Merchant's vehicle was low on gas and would not restart. A California Highway Patrol officer interviewed Lisa at the scene. She described what happened in detail and estimated Merchant drove for 10 or 12 minutes as she begged to be let out.

         The Riverside County District Attorney (D.A.) filed an amended information charging Merchant with kidnapping (Pen. Code, § 207, subd. (a), count 1), willful infliction of corporal injury (Pen. Code, § 273.5, subd. (a), count 2), dissuading a witness (Pen. Code, § 136.1, subd. (c)(1), count 3), and robbery (Pen. Code, § 211, count 4). The information alleged Merchant had served three prior prison terms (Pen. Code, § 667.5, subd. (b)), was previously convicted of a serious felony (Pen. Code, § 667, subd. (a)), and had a prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).

         The case proceeded to trial in May 2017. The court allowed the prosecution to introduce Merchant's past acts of domestic violence-two directed at Lisa and six directed at his former girlfriend, J.C.-to show his propensity for domestic violence and his intent and common plan. (Evid. Code, §§ 1109, 1101, subd. (b).)[1] Lisa never appeared for trial, and the parties stipulated she was unavailable (§ 240). Over defense objection, the court relied on a series of jail calls between Merchant and Lisa to apply the forfeiture-by-wrongdoing exception to the Sixth Amendment right to confrontation. Based on this ruling, the prosecution introduced Lisa's statements to the highway patrol officer on December 22.

         Merchant did not testify. His primary defense was that there was no kidnapping-"What kidnapper allows his victim to call 911 and talk for ten minutes?" Counsel labeled her recorded statements a "hysterical, unbelievable version of what happened" and argued Lisa invented the kidnapping allegation because she was angry at Merchant.

         The jury found Merchant guilty as charged on counts 1 and 3. On count 2, it convicted him of the lesser included offense of misdemeanor battery against a spouse or cohabitant (Pen. Code, § 243, subd. (e)); on count 4 it acquitted him of robbery. Merchant admitted his prior conviction allegations. In November 2017, the court sentenced him to a total term of 29 years, consisting of the eight-year upper term for count 1, doubled for the strike; a consecutive three-year middle term on count 3, doubled for the strike; two years for two of the prison priors; and a five-year enhancement for the prior serious felony conviction.


         Merchant raises two claims of evidentiary error. First, he argues Lisa's hearsay statements to law enforcement were admitted in violation of his constitutional right to confront adverse witnesses. Second, he challenges the admission of prior domestic violence evidence. We find no error as to either claim.

         1. Lisa's Hearsay Statements Were Properly Admitted.

         With Lisa unavailable, her hearsay statements to the responding highway patrol officer were central to the prosecution's case. In addition, the prosecution relied on law enforcement witnesses to describe Lisa's past domestic violence reports. This evidence was admitted under the forfeiture-by-wrongdoing exception to Merchant's Sixth Amendment right to confrontation.

         Merchant argues the court erred in applying the forfeiture-by-wrongdoing doctrine. He claims his actions in exhorting Lisa not to come to court fell short of the "wrongdoing" required to trigger the exception. Although he may have attempted to make Lisa feel guilty about attending trial, Merchant contends he did not threaten her in any of the jail calls. He further maintains that jail calls to Lisa made 16 months before trial were too remote in time to permit a nonspeculative inference that those calls secured Lisa's unavailability. We disagree. Because substantial evidence supports the court's finding that Merchant engaged in wrongdoing designed to prevent Lisa from testifying at trial, admitting Lisa's statements to law enforcement did not violate Merchant's constitutional right to confront her.

         a. Legal Principles

         A criminal defendant has a Sixth Amendment right "to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) A court may not admit a witness's testimonial hearsay statements against a defendant unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. (Crawford v. Washington (2004) 541 U.S. 36, 53−54.) Nonetheless, in narrow circumstances a defendant may forfeit his right to confrontation by his own wrongdoing. (Id. at p. 62; Davis v. Washington (2006) 547 U.S. 813, 833 (Davis).) "[W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system." (Davis, at p. 833.) For the forfeiture-by-wrongdoing exception to apply, a defendant must have engaged in wrongful conduct designed to prevent a witness from testifying. (Giles v. California (2008) 554 U.S. 353, 359−361, 368, 377 (Giles II).) Said differently, a defendant must "engag[e] in wrongdoing that renders the declarant unavailable with an intent to prevent that declarant's in-court testimony." (People v. Perez (2018) 4 Cal.5th 421, 455, fn. 3.)

         "Wrongdoing" need not rise to the level of murder. (People v. Jones (2012) 207 Cal.App.4th 1392, 1399 (Jones).) "The common-law forfeiture rule was aimed at removing the otherwise powerful incentive for defendants to intimidate, bribe, and kill the witnesses against them-in other words, it is grounded in 'the ability of courts to protect the integrity of their proceedings.'" (Giles II, supra, 554 U.S. at p. 374.) Thus in Jones, the defendant forfeited his right to confrontation when during phone calls from jail he dissuaded his ex-girlfriend from testifying by implying he had friends on the outside available to do "whatever [was] necessary." (Jones, at pp. 1398−1399.)

         The Supreme Court declined in Davis to decide what procedure courts must follow to find forfeiture by wrongdoing. (Davis, supra, 547 U.S. at p. 833.) But it observed that federal courts generally utilize a preponderance-of-the-evidence standard when applying a parallel hearsay exception. (Ibid.) California courts have since adopted a preponderance standard for evaluating forfeiture by wrongdoing. (People v. Giles (2007) 40 Cal.4th 833, 853 (Giles I), overruled on other grounds in Giles II, supra, 554 U.S. 353, 365; People v. Banos (2009) 178 Cal.App.4th 483, 503, fn. 12.)[2] We evaluate whether there ...

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