Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA056949. Zaven V. Sinanian, Judge.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Manuel C. Banos appeals from his conviction of second degree murder of Mary Cortez and first degree burglary. He contends the trial court erred in admitting into evidence statements Cortez made to police regarding acts of domestic violence committed by defendant against her. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that on June 7, 2003, defendant was arrested for hitting Cortez, his ex-girlfriend, after Cortez reported the incident to police. On July 23, 2003, a protective order was issued proscribing defendant from annoying, harassing, striking, threatening or disturbing Cortez for three years. Over the next several months, defendant was arrested several more times after Cortez reported his acts of violence against her to the police. When City of Burbank Police Officer Edmund Zepeda arrived at Cortez’s apartment after one such incident on March 27, 2004, he saw defendant, who was already in handcuffs.
Meanwhile, Cortez began dating defendant’s friend, Javier Garcia. On April 10, 2004, Garcia and Cortez spent the evening together before returning to Cortez’s apartment. When defendant called there three times about 3:00 a.m., Garcia answered the phone each time. The first two times, Garcia simply hung up; the third time, Garcia gave the phone to Cortez. When Cortez handed the phone back to Garcia, she told him that defendant had threatened to kill her. A little later, Cortez heard noises outside. Garcia looked out the window and saw someone trying to peek in. Garcia told Cortez to call the police. As defendant came in through the window, Garcia ran into the kitchen and armed himself with a knife and knife sharpener before returning to the bedroom to confront defendant. But Garcia got scared and ran out of the apartment. As he was leaving, Garcia saw defendant running toward Cortez with his right arm raised. Once outside, Garcia threw away the knife and knife sharpener he had picked up. He was on the next street when he heard Cortez calling his name and screaming for help.
Cortez was still alive about 4:00 a.m., when Zepeda and his partner, who were investigating a report of a disturbance between a boyfriend and girlfriend, heard the sound of a woman moaning coming from Cortez’s apartment. Through the open front door, Zepeda saw defendant, whom he recognized from the prior arrest, wearing black gloves and kneeling beside a female body. Still standing outside the front door, Zepeda identified himself as a police officer. Defendant stood up, said “my wife” a few times and walked towards Zepeda. When he reached the front door, defendant slammed it shut. As Zepeda tried to kick the door open he heard someone running towards the back of the apartment. As he ran down the walkway between buildings, Zepeda heard the back door slam. Arriving at the back of the building, Zepeda did not see defendant, but heard rustling in the bushes. Recalling that there was a victim inside the apartment, Zepeda abandoned the search for defendant and returned to the apartment.
Back inside the apartment, Zepeda asked Cortez, who was lying on the floor covered in blood, where she was hurt, but Cortez just moaned. Zepeda accompanied her in an ambulance to the hospital while his partner remained at the apartment to preserve the scene.
Defendant was apprehended later that morning after a foot chase through a nearby multi-level parking lot. He was transported to Cortez’s apartment where he was left alone in the back of a patrol car with a friend. Unbeknownst to the two men, their conversation was recorded and the recording was introduced into evidence. Defendant said to his friend: “I got even with that whore, like I wanted to. I’m very happy.” Defendant said he used a hammer to “smash[] her . . . so she’ll learn, that fucking whore.” (Italics in original.) When interviewed by the police, defendant admitted threatening Cortez, climbing through the bedroom window and hitting Cortez with a piece of wood.
At trial, defendant testified that he moved in with Cortez in late 2001. She practiced witchcraft and defendant believed she had the power to cast spells. Six months after moving in with her, defendant began to get headaches, which he believed Cortez was making happen. Even after Cortez caused him to be arrested several times, defendant reunited with her because he was bewitched and completely under her control.
Defendant was once again living with Cortez, on April 10, 2004, when he called and told her that he would be spending the night with his sister because it was closer to work. But he got drunk and decided to go back to Cortez’s apartment about 2:00 a.m. He did not then know that she was with Garcia and he did not intend to kill her.
Arriving at Cortez’s apartment in the early morning hours of April 11, 2004, defendant used his own key to open the front door. In the bedroom, defendant found Cortez and Garcia in bed together. Defendant recalled: “I was drunk and I was angry and I took out my hammer. And he ran through the window just wearing his underwear. I wanted to grab him but I couldn’t. And then I wanted to run out through the door but [Cortez] didn’t want to let me. She was in the living room and she tried to stop me.” After hitting Cortez in the head with the hammer, defendant “lost my mind. I hit her like three times that I can remember. . . . I started to go crazy. I – I wanted to help her. I started to hold her and there was blood everywhere. And I was trying sort of to help her. That’s why there was blood everywhere.” Defendant next went out of the front door and threw the hammer in one trash bin and his sweatshirt in a neighbor’s trash bin. Returning to the apartment, he replaced his bloody shorts with a pair of Garcia’s pants and then went outside again to throw the bloody shorts across the street. Returning to the apartment once again, defendant tried to “fix everything,” including replacing the window screen. When the police came, defendant slammed the front door and ran out the back.
The jury found defendant guilty of second degree murder and two counts of first degree burglary. It found true two allegations that he personally used deadly or dangerous weapons in the murder – a piece of wood and a hammer. Defendant admitted prior convictions alleged pursuant to the “Three Strikes” law and Penal Code section 667, subdivision (a)(1). He was sentenced to a total of 36 years to life in prison.
The second burglary count was based on the evidence that defendant left Cortez’s apartment after the attack, and then returned.
DISCUSSION
Defendant’s sole contention on appeal is that, under Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford), he was denied due process and his Sixth Amendment right to confront and cross-examine witnesses as a result of the admission into evidence of statements made by Cortez to police on June 7, 2003, December 30, 2003, and March 27, 2004, when she reported defendant’s acts of domestic violence against her. We disagree.
In Crawford, the United States Supreme Court held that the confrontation clause bars the admission of out-of-court “testimonial” statements except when the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at pp. 61-68.) According to the previous rule, announced in Ohio v. Roberts (1980) 448 U.S. 56, 66, 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. But under Crawford, hearsay rules and judicial determinations of reliability no longer satisfy a defendant’s confrontation right: “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” (Crawford, supra, at pp. 68-69.)
However, the court in Crawford renounced only those exceptions to the confrontation clause that purported to assess the reliability of testimony. It expressly noted that the equitable principle of forfeiture by wrongdoing remained a valid exception to the confrontation clause: “For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability. [Citation.]” (Crawford, supra, 541 U.S. at p. 62.)
In People v. Giles (2007) 40 Cal.4th 833 (Giles) cert. granted Jan. 11, 2008 __ U.S. __ [__ S.Ct. __] [2008 WL 109701], our Supreme Court was recently called upon to apply the forfeiture by wrongdoing exception articulated by the court in Crawford to facts similar to those at issue here. In Giles, the defendant was convicted of the first degree murder of his ex-girlfriend. On appeal, he challenged the trial court’s admission into evidence of the victim’s statements to a police officer concerning an incident in which the defendant held a knife to her and threatened to kill her. The court in Giles affirmed the conviction. It held that, under the forfeiture by wrongdoing exception articulated by the court in Crawford, the defendant forfeited his right to confront his ex-girlfriend about the prior incident of domestic violence by killing her and thus making it impossible for her to be at the murder trial. Moreover, it held that the forfeiture by wrongdoing doctrine applied even where the alleged wrongdoing is the same offense as that for which the defendant is on trial. (Giles, at p. 837.) “A defendant whose intentional criminal act renders a witness unavailable for trial benefits from his crime if he can use the witness’s unavailability to exclude damaging hearsay statements by the witness that would otherwise be admissible. This is so whether or not the defendant specifically intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable. [Fn. omitted.]” (Giles, supra,at p. 849; People v. Parrish (2007) 152 Cal.App.4th 263.)
Giles was filed on March 5, 2007, five weeks after defendant filed his opening brief in this case on January 30, 2007.
In Giles, the statement was admitted under a hearsay exception that appeared valid at the defendant’s pre-Crawford trial and the issue of forfeiture by wrongdoing was not litigated. However, it was undisputed that the victim was unavailable to testify as a result of her death and that her death was the result of defendant’s actions. (Id. at p. 840.)
Here, in a motion in limine to introduce into evidence Cortez’s statements to the police who were investigating her prior accusations against defendant of domestic violence, the prosecutor argued, inter alia, that the statements fell within the Crawford exception for forfeiture by wrongdoing. At the hearing on the motion, defense counsel objected on the grounds that admission of the statements violated defendant’s confrontation rights. The trial court overruled the objection and allowed the evidence.
We find no error. Here, as in Giles, there was no dispute that defendant rendered Cortez unavailable to testify by killing her. He in fact testified so. Under Giles, by doing so, defendant forfeited his constitutional right to confront and cross-examine her.
In his reply brief, defendant argues that, notwithstanding Giles,“the United States Supreme Court has not applied the forfeiture by wrongdoing doctrine to a confrontation clause violation post Crawford and its application here is violative of his constitutional rights.” But, as defendant acknowledges, this court is bound by Giles. Although the United States Supreme Court has granted certiorari in Giles, we remain bound by the holding in that case unless and until the United States Supreme Court declares it to be an incorrect statement of federal law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.