California Court of Appeals, Fourth District, First Division
from a judgment of the Superior Court of Riverside County
RIF1406238, Bernard J. Schwartz, Judge. Affirmed.
Office of Corey Evan Parker and Corey Evan Parker for
Defendant and Appellant.
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.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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,
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).) 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.
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.
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.
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
Lisa's Hearsay Statements Were Properly
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.
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.
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.)
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.
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.) We evaluate whether