Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-24618
Parrilli, J.
Introduction
In People v. Younger (2000) 84 Cal.App.4th 1360 (Younger I), we reversed appellant Darrell Younger’s conviction for first degree murder of Heather Moore due to error in instructing the jury regarding appellant’s prior offenses of domestic violence against the murder victim and others. (Ibid.) After a retrial by jury beginning in November 2003, appellant was convicted of second degree murder, in violation of Penal Code section 187, subdivision (a). On March 28, 2005, the trial court sentenced appellant to an indeterminate term of 15-years to life, to be served concurrently with a 2-year term for an auto theft conviction we let stand in Younger I. Appellant filed a timely notice of appeal on April 25, 2005.
Between 1990 and 1995, appellant and Heather Moore had a turbulent relationship marked by periods of separation, frequent moves, and numerous physical and verbal altercations. The relationship produced two children, S. and A. Moore was found on January 4, 1996, in the bathtub of her Santa Rosa apartment, strangled by a noose tied to the showerhead. (Younger I, supra, 84 Cal.App.4th at pp. 1361-1364.)
Further statutory references are to the Penal Code unless otherwise noted.
Appellant now contends: (1) the trial court erred in refusing to allow defense counsel to exercise remaining peremptory challenges when a juror was excused before the selection of alternates had been completed; (2) admission of the victim’s hearsay statements regarding other instances of domestic violence violated appellant’s Sixth Amendment right to confront the witnesses against him; (3) the trial court erred in overruling defense counsel’s objection to the use of the term “victim” to refer to the decedent; (4) the trial court erred by giving CALJIC 2.50; (5) Evidence Code section 1109 is unconstitutional; and, (6) CALJIC 2.50.02 violates the due process clause. On March 9, 2007, we called for simultaneous supplemental briefing on the significance to the issues on this appeal of People v. Giles (2007) 40 Cal.4th 833, which applied the doctrine of forfeiture by wrongdoing to the Sixth Amendment right of confrontation. Supplemental briefing was completed on April 10, 2007. After consideration of appellant’s current contentions, and reciting only those parts of the record relevant to the issues before us, we affirm.
Discussion
1. Peremptory Challenges
Jury selection began on November 5, 2003. Under the process used for jury selection, eighteen people were seated, twelve in the jury box and six seated outside the jury box in seats designated as 13 through 18. Persons seated in the jury box who were excused for cause, and those against whom counsel exercised a peremptory challenge, were replaced by prospective jurors from the “six pack.” After both sides consecutively passed their peremptory challenges, 12 trial jurors were sworn on November 14, 2003.
This method of jury selection is informally referred to as the “six-pack” method.
The court then explained that five alternate jurors would be selected due to the anticipated length of the trial, and described the method for selecting them. Chairs 13-18 would be filled and six prospective alternates questioned at a time. This process began and after the first round of questioning the two prospective alternates who were passed by both sides (Jurors 1275 and 1133) moved into chairs 13 and 14. Four more prospective alternates were seated in chairs 15 through 18. It was agreed that should the need arise to replace jurors already sworn, alternates would go into the jury box in the numerical sequence in which they sat in the six chairs. That is, seat 13 would be the first replacement juror, seat 14 the next, and so forth. After prospective alternate juror numbers 1275 and 1133 had been passed upon by both sides, but before alternate jurors had been selected and sworn, the court received notification that one of the sworn jurors (Juror 1) brought in a written hardship declaration. After questioning Juror 1, the parties stipulated the juror could be excused. At that point the following exchange took place:
“Defense: So does 1275 go to 1 and then we seat one more alternate because it’s the Court’s intent to have us start testimony with five alternates in place? The question I want resolved at this point then is since we’re actually looking at six people instead of five, are we going to give everyone six peremptories? This was unexpected.
Defense counsel was apparently referring to challenges to the alternate jurors at this point. Before both sides accepted the 12 jurors sworn to try the case, the defense had exercised 17 of its 20 permitted challenges, leaving 3 peremptory challenges unused. At no point did defense counsel advise the trial court that he was requesting to reopen jury selection and have his unused challenges restored.
Prosecution: So we used one alternate and we’re still going to go with five; is that correct?
Court: That’s right.
Defense: I’m assuming at this point that there might be one more peremptory challenge that could be exercised on 1275 as a seated juror, wouldn’t there?
Prosecution: No. The jury’s been sworn, therefore jeopardy is attached. I think we’re using our alternate.
Court: The alternate is going to go up right now. You agreed on the alternate and you agreed to the process so the alternate is going to be placed into the jury panel by the procedure that everybody agreed to utilize. Then that leaves us with just Juror 1133 as one agreed-upon alternate, and we have to choose four more. [¶] So my question was because of this unexpected thing that happened –
Defense: Before we go any further, we’re going to need to talk to 1309 . . . about whether or not she has a hardship too.”
Then, alternate juror selection continued until five alternates had been selected.
Appellant characterizes the above exchange as a denial by the trial court, over his objection, of a request to exercise his unexhausted peremptory challenges when a juror was excused but before the alternates were sworn. Even if we were to accept this characterization, any such claim is now foreclosed by People v. Cottle (2006) 39 Cal.4th 246, 256 (Cottle). In Cottle, the Supreme Court addressed exactly the same claim: “whether a trial court has discretion to reopen jury selection after the trial jury has been impaneled, but before alternate jurors are sworn.” (Id. at p. 249.) The court held “that the trial court lacks discretion to do so under the Trial Jury Selection and Management Act (Code Civ. Proc., § 190 et seq., eff. Jan. 1, 1989) [] (Trial Jury Selection Act).” (Ibid) In his reply brief, appellant acknowledges we are bound by Cottle, and offers no further argument on this point. We conclude there was no error in the jury selection process.
(People v. Visciotti (1992) 2 Cal.4th 1, 54 [“Absent objection, the issue has not been preserved for appeal”].)
2. Admission of Victim’s Hearsay Statements
(i)
Pre-trial, appellant filed a motion contending all evidence of appellant’s prior acts of assaultive behavior against the victim Heather Moore (and two other former girlfriends) be excluded under Evidence Code section 1109 (section 1109) as unduly prejudicial under Evidence Code section 352. The People opposed appellant’s motion, but also contended in its trial brief that the victim’s statements to police concerning two prior instances of domestic violence in 1993 and 1995 were admissible under Evidence Code section 1370 (section 1370). It appears from the record the trial court denied appellant’s motion and admitted the evidence regarding the 1993 and 1995 incidents of domestic violence pursuant to section 1109, without mentioning whether the evidence was also admissible under section 1370. Subsequently, during trial the prosecution sought to display to the jury on an overhead projector a statement which the victim wrote out at the Oroville Police station on July 18, 1995, concerning an incident of domestic violence against her by appellant earlier the same day. The trial court ruled this statement was admissible pursuant to section 1370.
Evidence Code section 1109 provides that “. . . evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evidence Code section 1109, subd. (a)(1).)
Evidence Code section 1370 provides: (a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:
After the jury returned its verdict, appellant filed a motion for new trial based on Crawford v. Washington (2004) 541 U.S. 36, 59 (under confrontation clause of the Sixth Amendment, testimonial statements of witnesses absent from trial are only admissible where the declarant is unavailable, and defendant has had a prior opportunity to cross-examine declarant). The trial court concluded some of the statements Moore made to police officers were testimonial in nature and some were not, that Moore’s statements to the physician were testimonial in nature, but deemed the admission of such testimonial hearsay was not prejudicial. In his opening brief, appellant contends all Moore’s statements to responding police officers were testimonial in nature under the subsequent case of Davis v. Washington (2006) ___ U.S. ___, 126 S.Ct. 2266 (Davis), and, as a consequence, the trial court’s prejudice analysis cannot stand.
In Davis, the high court examined the testimonial nature of hearsay statements in two different domestic violence cases, and announced the following standard: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis, supra, 126 S.Ct. at pp. 2273-2274.) The high court concluded in one case the victim’s statement to a 911 operator identifying defendant as the assailant “objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying.” (Id. at p. 2277.) Thus, the statement was not a testimonial one. (Ibid.) In the other case, however, statements made to police officers by the victim at the scene when there was no emergency in progress were “part of an investigation into possibly criminal past conduct.” (Davis, supra, 126 S.Ct. at p. 2278.) “Objectively viewed, the primary . . . purpose of the interrogation was to investigate a possible crime[.]” (Ibid.) The high court concluded “[s]uch statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.” (Ibid.)
Nevertheless, the high court stated “when 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. We reiterate what we said in Crawford: that ‘the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds.’ [Citation.] That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” (Davis, supra, 126 S.Ct. at p. 2280.) It is the issue of forfeiture by wrongdoing which our own Supreme Court recently addressed in People v. Giles, supra, 40 Cal.4th 833 (Giles), prompting our request for supplemental briefing.
(ii)
In Giles, supra, “defendant admitted that he killed his ex-girlfriend, but claimed that the killing was committed in self-defense. Over defendant’s objection, the trial court admitted the victim’s prior statements to a police officer who had been investigating a report of domestic violence involving defendant and the victim. The prior incident had occurred a few weeks before the killing. The victim related that, during that incident, defendant had held a knife to her and threatened to kill her.” (Giles, supra, 40 Cal.4th at p. 837.) The trial court admitted the victim’s prior statements pursuant to Evidence Code section 1370. The Court of Appeal upheld admission of the victim’s statements against defendant’s Sixth Amendment claim by concluding defendant forfeited by wrongdoing his right to confront the victim. (Id. at pp. 839-840.)
The Supreme Court noted “there is no dispute that the victim’s prior statements were testimonial in nature.” (Giles, supra, 40 Cal.4th at p. 841.) However, the court noted under the equitable doctrine of forfeiture by wrongdoing, “a defendant is deemed to have lost the right to object on confrontation grounds to the admission of out-of-court statements of a witness whose unavailability the defendant caused.” (Id. at p. 837.) There is no requirement that for the doctrine to apply defendant must “kill the victim with the intent of preventing her testimony at a pending or potential trial.” (Id. at p. 841.) Rather, “wrongfully causing one’s own inability to cross-examine is what lies at the core of the forfeiture rule.” (Id. at p. 848.) Additionally, the Supreme Court concluded “the doctrine of forfeiture by wrongdoing applies where the alleged wrongdoing is the same as the offense for which defendant was on trial.” (Id. at p. 851)
The court also described the procedure to be adopted in cases where defendant is “on trial for the same wrongdoing (murder) that caused the forfeiture of his right to confront the victim.” (Giles, supra, 40 Cal.4th at p. 851.) The trial court should make a “preliminary determination of forfeiture,” even though in essence this requires the trial court to “make the same determination of guilt of the charged crime as the jury.” (Ibid.) The prosecution must prove the facts supporting the application of the forfeiture doctrine to the trial court by a preponderance of the evidence. (Id. at pp. 852-853.)
Further, the court prescribed limitations to the doctrine of forfeiture by wrongdoing: “First, the witness should be genuinely unavailable to testify and the unavailability for cross-examination should be caused by the defendant’s intentional criminal act. Second, a trial court cannot make a forfeiture finding based solely on the unavailable witness’s unconfronted testimony; there must be independent corroborative evidence that supports the forfeiture finding.” (Giles, supra, 40 Cal.4th at p. 854.) Also, the doctrine “only bars a defendant’s objection under the confrontation clause of the federal Constitution and does not bar statutory objections under the Evidence Code. Thus, even if it is established that a defendant has forfeited his or her right of confrontation, the contested evidence is still governed by the rules of evidence; a trial court should still determine whether an unavailable witness’s prior hearsay statement falls within a recognized hearsay exception and whether the probative value of the proffered evidence outweighs its prejudicial effect. (Evid. Code, § 352.) Finally, the jury should not be advised of the trial court’s underlying finding that defendant committed an intentional criminal act so that the jury will draw no inference about the ultimate issue of guilt based on the evidentiary ruling itself.” (Giles, supra, 40 Cal.4th at p. 854.)
(iii)
In his supplemental brief, appellant acknowledges we are bound by Giles, but continues to dispute its conclusions and attempts to distinguish the case. Appellant contends the doctrine of forfeiture by wrongdoing “should be applied only in cases like Giles, in which equity demands it to prevent the jury from being mislead [sic] by the defendant.” Appellant states “similar equitable concerns do [not] appear” in this case because he “did not testify to statements by Ms. Moore which portrayed Ms. Moore in one light, while seeking to exclude statements attributed to Ms. Moore which portrayed her in a different light.” Thus, according to appellant, Giles does not apply here.
We cannot accept appellant’s narrow reading of Giles. True, the Giles court stated “[d]efendant should not be able to take advantage of his own wrong by using the victim’s statements to bolster his self-defense theory, while capitalizing on her unavailability and asserting his confrontation rights to prevent the prosecution from using her conflicting statements.” (Giles, supra, 40 Cal.4th at p. 850.) However, Giles did not limit application of the doctrine of forfeiture to cases in which a defendant uses the victim’s hearsay statements as a sword in his own defense but at the same time uses the right to confrontation as a shield against the victim’s statements. Indeed, the only limitations the court placed upon the doctrine were “the witness should be genuinely unavailable to testify and the unavailability for cross-examination should be caused by the defendant’s intentional criminal act. Second, a trial court cannot make a forfeiture finding based solely on the unavailable witness’s unconfronted testimony; there must be independent corroborative evidence that supports the forfeiture finding.” (Giles, supra, 40 Cal.4th at p. 854.) Thus, we reject appellant’s assertion the forfeiture doctrine does not apply because the equities present in Giles are absent here.
The court’s statement was delivered in the course of rejecting an “intent-to-silence” element for the doctrine of forfeiture by wrongdoing to apply: “Thus, it appears that the intent-to-silence element required by some cases evolved from the erroneous characterization of the forfeiture doctrine as the waiver by misconduct doctrine. Because a waiver is an intelligent relinquishment of a known right, the intent-to-silence element was added to establish the defendant was on notice that the declarant was a potential witness and therefore knowingly relinquished the right to cross-examine that witness.” (Giles, supra, 40 Cal.4th at pp. 848-849.)
(iv)
We must therefore consider whether the evidence appellant murdered Heather Moore is sufficient to support the forfeiture doctrine. The prosecution’s forensic pathologist, Dr. A. Jay Chapman, testified he performed the autopsy on Moore on January 5, 1996, the day after the body was discovered. The body was in a moderately advanced state of decomposition and the rope was still around the neck. In the opinion of the forensic pathologist, the combination of a number of factors suggested this was a murder rather than a suicide. The victim’s hair was entangled in the knot around her neck, which the forensic pathologist thought unusual and had never seen in a suicide. The victim was found seated in the bathtub with her back to the showerhead wall and the rope round her neck tied to the showerhead. The pathologist stated he would expect a suicide to use a much shorter rope because most people think strangulation requires a great deal of pressure generated by full or partial suspension of the body: in fact little weight is required to occlude the carotid arteries which can cause death by hanging even though the airway or trachea is not occluded at all. Also, Moore was found wearing only panties, a bra, and socks, whereas in the forensic pathologist’s experience female suicides will be completely clothed or even “all quaffed up” so they’re found in a presentable condition after death. The forensic pathologist opined that “for all these things I mentioned to occur in a single case, I find it much less likely that the case represents a suicidal hanging as a death at the hands of someone else. Also, the pathologist testified if Moore had been smothered or drowned beforehand no sign of it would show in the autopsy due to the state of decomposition of the body.
In its ruling on appellant’s motion for a new trial, the trial court stated the forfeiture doctrine did not apply because “the People [cannot] show that the defendant was motivated at least in part by a desire to render the declarant unavailable as a witness or a potential witness.” However, the trial court did not have the benefit of Giles, supra, which specifically rejected an intent-to-silence requirement for the forfeiture doctrine. (Giles, supra, 40 Cal.4th at p. 846-847.)
Dr. Robert Lawrence, the defense expert and a pathologist for the coroner’s office in San Joaquin County, reviewed photographs of the death scene, a brief investigative report by the coroner’s office, and Dr. Chapman’s autopsy report as well as his testimony at the original trial. Dr. Lawrence’s opinion was that Heather died by suicide.
Other evidence also indicates appellant killed Moore. In this regard, our review of the record confirms the trial court accurately summarized the state of the evidence in chronological fashion as follows:
The trial court stated: “Ms. Marlow testified that she visited Heather on December 16th, 17th, of 1995. She testified that Darrell [appellant] wasn’t there. He was away. [¶] She testified that Heather was looking forward to JC [Junior college]; that it looked like daycare was being arranged. [Heather] was sure she was going to get a promotion to be a server at Lyons Restaurant [and] was getting financial and supportive advice from her uncle. Her uncle had given her an advance on her inheritance. She was using that money to get herself set up to be independent. [¶] [Heather] purchased Christmas presents with a coworker. [¶] [Heather] wanted the defendant out in December, out of her house, that he was only there to watch the kids while she worked and that Mr. Younger was looking for an apartment. [¶] [Heather] wasn’t depressed about the defendant leaving, and they discussed dating. [¶] Heather told her grandmother, who lived in Colorado, sometime in the weeks before Christmas that she had given the defendant until April 15th to move out.
“What was the defendant doing the same weekend that Nina Marlow was with Heather? Well, he evidently visited with his sister Antoinette where they discussed Antoinette and her children and the defendant going to Tahoe over Christmas. The same weekend the defendant visited his sister Michelle where he jokingly asked her if she could get an ID in Heather’s name so that the sister could claim Heather’s inheritance. After all, she did resemble Heather. And if Michelle were to do that, the defendant would give her $20,000.
“On December 19, Heather learned that S. had been accepted at the JC daycare, and she was told that A. was on the waiting list and that it looked promising. [A] JC staff person came into Court and testified that Heather was really excited about this news. On December 20th, Heather’s grandmother called Heather’s house. Heather was at work and the defendant was home. The defendant told grandma Heather wanted him out. [¶] Mr. Younger thought Heather was having an affair. Mr. Younger didn’t want to leave, talked about how pretty Heather was, talked about the fact he had found men’s telephone numbers in [Heather’s] belongings.
“Around the same time, defendant was making similar comments to friends of Heather’s who called. [One of] [t]hose friends described the defendant’s mood as sad and depressed. [¶] The defendant was making comments to his coworkers and others in the weeks leading up to Heather’s death. [¶] He was seen looking up lawyers in the telephone book. [¶] He was continually concerned that Heather had falsely accused him of abusing her. In fact, he was preoccupied on that subject. [¶] He was concerned that Heather was prostituting herself during the day when he was at work. [¶] He said that Heather threatened suicide if he left. [¶] . . . [¶] He talked to a coworker and mused, ‘What would you do if you found out your wife was hooking?’ What he told the coworker was, ‘I think I’d like to kill the bitch.’
“The defendant repeatedly called Heather’s manager at Lyons trying to get her fired. He accused Heather of stealing. He demanded to speak with her over and over. He threatened to kick the butt of the manager accusing the manager of running a whorehouse and not a restaurant. [¶] Around this time, the defendant found telephone numbers Heather had gotten from men, and he started calling those telephone numbers. He told . . . these people that he suspected Heather of seeing other men and that he wanted custody of the kids. [¶] He told a coworker of Heather’s who asked Heather out, ‘Remember OJ. Oh, no. I’m just kidding.’
“Heather worked from 5:00 p.m. on December 21st, and she was off work at 1:00 o’clock in the morning on the 22nd of December. [¶] On December 22nd, Heather was due to go back to work at 8:00 o’clock at night, and she failed to come in to work. On that same day, December 22nd, defendant stopped by the tire shop to pick up his check. The defendant was driving Heather’s car and the two kids were with him. [¶] The defendant said to his employer they’re going to his sister’s for Christmas. [¶] The defendant was expected back at work at the tire shop on December 26th. He never called nor did he ever go back to work there.
“What was defendant’s behavior after December 22nd? Well, on the 22nd he showed up unannounced at his sister Michelle’s house with the kids in the car, and then he began to make various statements to his sisters which conflicted. [¶] He told Michelle that Heather didn’t know he left. And then he said, ‘No, Heather said to take the kids.’ To Antoinette, defendant . . . said that Heather was going to her brother’s for Christmas, and then he later said that after they had argued the defendant grabbed the boys, [and] left Heather in the bathroom crying. [¶] . . . [¶] On the 23rd of December, the defendant called Heather’s manager at Lyons and wanted to know, ‘Where’s Heather?’ The defendant told the manager that she hadn’t come home and to tell Heather to call him if she wanted to see her kids again.
“Now, he told different things to his sister Tiffany. Defendant left during an argument. Heather told defendant to leave. Defendant told her he was taking the kids. Heather locked herself in the bathroom. [¶] But then at a different time he told Tiffany that Heather hugged him and the children goodbye outside when the kids were in the car. [¶] The defendant told Tiffany he left a note for Heather. The pages were spread out on the kitchen table. [¶] And then at a later time the defendant said [after he wrote the note Heather read it in his presence and then ] ran into the bathroom [and locked the door].
“Then there were the odd statements that Mr. Younger made concerning Heather—or really concerning the kids and the fact that they didn’t have a mom anymore. When sister Michelle asked whether Heather – why Heather hadn’t been calling, the defendant said something to the effect of, ‘They don’t have a mom anymore and that she doesn’t care.’ [¶] He told his sister Tiffany he wanted Tiffany to be a mom for the children. [¶] After Antoinette had disciplined the kids, the defendant said, ‘Don’t be mean to them because they don’t have a mom anymore.’ [¶] . . . [¶] There was testimony coming from Antoinette about a night where she and some friends were drinking beer and talking about dreams and defendant said, ‘You know what I dreamt last night? I dreamt I killed Heather.’ And shortly after he made that statement, he went up to bed.
“On the 29th of December, defendant said he had to go to Santa Rosa to pick up his paycheck and to get the kid’s stuff, although there’s been testimony that he had his paycheck. Antoinette offered to go with him, and the defendant said he didn’t want a confrontation between Heather and Antoinette; that she could come but she would have to stay at a restaurant with the boys while he went to an apartment. It ended up Antoinette didn’t go on this trip because she got ill, but the defendant did leave in the car with the boys. [¶] On either December 26th or the 29th, the assistant manager at the apartment testified that he thought he saw defendant driving through the parking lot but the defendant didn’t stop. He just kept driving.
“On December 31st, the defendant asked his sister Antoinette if he could spend the night there, and she refused. The defendant was very upset and crying saying that he had nowhere to go, ‘Look at the babies. They don’t have a mom anymore.’ He didn’t know what he was going to do. [¶] Antoinette told the defendant to go back to Heather, that she was sure that Heather would take him in.
“Between December 25th and December 31st, the defendant told his former girlfriend Ramona Taylor that he took the children because Heather was neglecting them and [the authorities were involved]. [¶] Defendant’s . . . sisters, [Michelle and Antoinette] and Nina Marlow all testified that Heather was a good mom and never abused the children.
“Five envelopes were found at the crime scene. . . . [I]t was a letter written on five envelopes. They were spread out on the dining room table. [¶] In that letter, defendant blamed Heather for lying to him, abusing the children, and falsely accusing Mr. Younger of hitting and raping her. ‘I’m taking the children. I know I can get custody.’ She could not be faithful.
“In the statement which the defendant made and which was played for the jury, the statement of January 6th of ’96, that’s the interview in the Davis Police Department, even before [police told him] that Heather was dead, he brought up the subject of suicide and said that Heather had been threatening suicide; that he had been advised to take the kids by an attorney; that Heather was lying about the domestic violence in Oroville. At some point during that interview defendant said Heather had just taken a bath and was wearing her underwear when he left. [¶] The night of that interview his sister Tiffany overheard defendant asking S., the oldest child, what he had told police that day at the police station.
[¶] . . . [¶]
“Then we have Mr. Amos, the coast guard officer and the knot expert. It was powerful testimony. Mr. Amos demonstrated recreating the knot, and he discovered, and it was shown to this jury, that in order to replicate the wraps in the knot, there needed to be tension on the loose end of the rope.
[¶] . . . [¶]
“Then we have testimony from people like Ramona Taylor who Mr. Younger had an extended relationship with. [¶] At one party, Ramona Taylor called Heather a bitch and defendant shoved her against the wall with his hand near her collar bone. [¶] At another incident, [Taylor] testified that she was baby-sitting . . . Antoinette’s children, and she had taken some Percodan. She was recovering from surgery and defendant came to where she was baby-sitting. He had been drinking. He hit her on the legs and hit her in the head, and she was actually knocked out. Later . . . after further argument, he grabbed her from behind and began choking her and threatening too [sic] kill her. She had bruises.
“Other testimony at this trial came from Cara Sutton [appellant’s ex-wife]. [¶] In 1985, defendant assaulted her. He attacked her when she threatened to quit making payments on his Harley-Davidson. [¶] Defendant jumped on her when she was on the bed, put a pillow over her head. She was on her stomach, and he grabbed her from behind and began choking her. She was still face down. [¶] . . . [After that] ‘she left the defendant and the marriage was over.’ ”
In addition to all the above evidence accurately summarized from the record by the trial court, there was testimony from a number of police officers who contacted Heather in response to reported incidents of domestic violence. (See post, section (v).)
(v)
The forfeiture doctrine applies where a preponderance of the evidence permits a finding, based on “independent corroborative evidence” in addition to the unavailable witness’s unconfronted testimony, that the “unavailability [of the declarant] for cross-examination [was] caused by the defendant’s intentional criminal act.” (Giles, supra, 40 Cal.4th at p. 854.) We conclude the evidence adduced above amply meets this standard. Accordingly, appellant has forfeited his right to assert a violation of the Sixth Amendment right to confrontation concerning the admission of Heather’s hearsay statements.
However, Giles cautioned that “[t]he forfeiture by wrongdoing doctrine, as adopted by us, only bars a defendant’s objection under the confrontation clause of the federal Constitution and does not bar statutory objections under the Evidence Code. Thus, even if it is established that a defendant has forfeited his or her right of confrontation, the contested evidence is still governed by the rules of evidence; a trial court should still determine whether an unavailable witness’s prior hearsay statement falls within a recognized hearsay exception and whether the probative value of the proffered evidence outweighs its prejudicial effect. (Evid.Code, § 352.)” (Giles, supra, 40 Cal.4th at p. 854.) In Giles, the defendant forfeited his constitutional confrontation clause objection to the admission of the victim’s statements concerning a prior incident of domestic violence. The trial court had ruled “the statements were admissible under Evidence Code section 1370, which establishes a hearsay exception for out-of-court statements describing the infliction of physical injury on the declarant when the declarant is unavailable to testify at trial and the statements are trustworthy.” (Giles, supra, 40 Cal.4th at p. 839.)
In this case, the trial court ruled before trial that Heather’s statements were not unduly prejudicial and were admissible under Evidence Code section 1109. In the context of deciding whether Heather’s statements were testimonial under Crawford, supra, for purposes of ruling on appellant’s post-trial motion for a new trial, the trial court noted that not all Heather’s statements fell within the “spontaneous declaration” exception to the hearsay rule. We agree. The oral statements Heather made to Officer Gomez on April 26, 1993, to Officer Reinhardt on July 18, 1995, and to Officer Roberson and Detective Hatley on July 20, 1995, fell within the spontaneous declaration exception to the hearsay rule under Evidence Code section 1240. Also, as the court ruled during trial, the written statement by the victim prepared at the request of Officer Reinhardt on July 18, 1995, was admissible under the hearsay exception provided in section 1370. (Giles, supra, 40 Cal.4th at p. 839.) Accordingly, because appellant forfeited his confrontation right to object to these statements, and because they fell within a recognized exception to the hearsay rule, the trial court did not err by admitting them into evidence.
We discuss more fully below appellant’s challenge to the evidence admitted against him under Evidence Code section 1109, see post section V.
An exception to the hearsay rule applies for spontaneous declarations, “which: (1) ‘[p]urport[ ] to narrate, describe, or explain an act, condition, or event perceived by the declarant’ (citation); and (2) were ‘made spontaneously’ (citation), even if in response to questioning (citation), ‘while the declarant was under the stress of excitement caused by such perception’ (citation).” (People v. Alvarez (1996) 14 Cal.4th 155, 185.)
Officer Gomez testified she contacted Heather at her apartment in response to a reported assault. Heather was “upset and frightened.” Heather told Gomez she got into a fight with appellant about his drinking; that appellant slapped her, grabbed her by the arms and dragged her off the bed, hit her in the head with a closed fist, called her a bitch and said he was going to kill her.
Officer Reinhardt testified he arrived at Heather’s apartment at 7:10 a.m. in response to a report of “ongoing disturbance throughout the night.” Heather told Reinhardt she had been physically and sexually assaulted by appellant. Heather was “upset and scared.” Reinhardt noticed bruising on Heather’s neck and Heather told him she had been “battered about her body, the entire body, and also been kicked in her hip area.”
Officer Roberson testified he responded to a dispatch that a woman reported her boyfriend was trying to break into her apartment. Roberson met with Heather, who was “crying, appeared to be upset and scared.” Heather told Roberson “she was inside her apartment with the door locked, and [appellant] had kicked the door in.” Detective Hatley testified he responded to a 911 call regarding domestic violence and arrived on the scene after Officer Roberson. Heather told Hatley appellant “had arrived at the residence, demanded entry. The door was locked, and he forced the door open and entered.”
Heather prepared a written statement after Officer Reinhardt, at Heather’s request, transported her and her two children from her apartment to the police station.
On the other hand, Heather’s statements to Detective Severson on April 29, 1993, to Detective Hatley on July 18, 1995, and to Dr. Cohen on July 18, 1995, were not spontaneous declarations, do not fall within any other recognized hearsay objection, and were therefore inadmissible. Accordingly, although appellant forfeited by wrongdoing his confrontation right under the federal Constitution to object to these statements, the trial court erred under state law by admitting the statements into evidence in the absence of a recognized hearsay exception. (See Giles, supra, 40 Cal.4th at p. 854.) However, this error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836, because the inadmissible statements are both cumulative to, and duplicative of, evidence presented in Heather’s admissible spontaneous declarations. Moreover, the evidence of guilt was so overwhelming that even after a 53-day trial the jury asked no questions during deliberations, did not ask for readback of testimony, and took only one day to reach its verdict. Thus, we are confident a verdict more favorable to the appellant was not reasonably probable had the evidence been excluded.
Detective Severson went to interview Heather at her apartment three days after the events testified to by Officer Gomez, see footnote 13, ante.
Detective Hatley interviewed Heather at the police station later on the same day that Officer Reinhardt responded to Heather’s apartment, see footnote14, ante.
Dr. Cohen examined Heather after the incidents described by Officer Reinhardt, see footnote 14, ante. Heather told Dr. Cohen “she was involved in nonconsensual intercourse.”
3. Use of the Term “Victim” to Refer to the Decedent
Appellant states some of the witnesses at trial referred to Heather Moore as “the victim.” Appellant contends the effect of this was to undermine the presumption of innocence and violate the due process clause. Further, appellant asserts this error was prejudicial under the Chapman standard.
Chapman v. California (1967) 386 U.S. 18.
Appellant failed to raise this constitutional claim below, and has therefore waived the right to appeal on those grounds. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20 [defendant’s federal constitutional due process, fair trial, reliable guilt determination claims concerning the admissibility of a videotape waived in a capital case when they were not raised in the trial court]; In re Brian K. (2002) 103 Cal.App.4th 39, 42 [“Because Brian K. did not raise a due process objection in the trial court, he may not raise it for the first time on appeal”].)
The claim arose in the context of a motion in limine appellant presented to the trial court: Number 34 stated, “Defense requests that Heather Moore be referred to as “Ms. Moore” rather than “Heather” or “the victim.” The following colloquy took place on this motion:
“Court: The last one is 35?
Prosecutor: Actually, 34.
Court: I’m sorry I missed one.
Prosecutor: . . . [T]here’s no authority for this particular request. He can’t cite any case whatsoever or any Penal Code section or Evidence Code section or anything like that. . . . [T]here are going to be people that are Heather’s friends and family that are going to be more comfortable referring to her as “Heather,” and there are going to be other witnesses such as Dr. Simon and Dr. Chapman who are going to be more comfortable referring to her as “Ms. Moore” or “the victim.” So the People feel that request should be denied.
Court: Mr. [Defense Counsel] I’ll hear you on it.
Defense: I think that sometimes in trial there gets to be an unfair identification with the victim by the jury by lots of familiar talk calling the victim by her first name or calling her “the victim.” It’s going to be up to the jury to decide whether or not Ms. Moore is the victim of a crime or took her own life. And we’re frequently told this is a formal court of law and . . . I would like the Court to order that the proceedings relating to Ms. Moore be conducted with that same kind of formality.
Prosecutor: There’s a big difference between us referring to each other and Mr. or Ms. . . . as opposed to witnesses referring to a person that they’re talking about under situations where they are going to feel comfortable. [¶] To artificially impose upon family to refer to someone that was near and dear to them as “Ms. Moore” is just ridiculous. . . .
Court: It’s denied.”
We see no abuse of discretion in the trial court’s denial of appellant’s motion in limine. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640 [denial of motion in limine reviewed for abuse of discretion].) Moreover, we note at trial Heather Moore was referred to by some witnesses as Ms. Moore, by some as “the victim,” and by others as Heather. At no time during trial did appellant object to overuse of the term “victim” in reference to Ms. Moore, and at no time did appellant allege misconduct by the prosecutor in referring to Ms. Moore. Appellant’s claim fails.
4. Jury Instructions
(i)
The trial court gave two instructions concerning evidence of appellant’s prior bad acts of domestic violence. The trial court gave CALJIC 2.50.02 (Evidence of Other Domestic Violence (Evidence Code § 1109)). However, apparently concerned that CALJIC 2.50.02 was “the instruction that got everybody in trouble” in Younger I, the trial court also decided to give CALJIC 2.50 (Evidence of Other Crimes), modified in the same way as given in Younger I.
As given, CALJIC 2.50 stated: Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence on one or more occasions other than that charged in the case. [¶] This evidence, if believed, may also be considered by you for the purpose of determining if it tends to show: [¶] The existence of the intent which is a necessary element of the crime charged; [¶] The identity of the person who committed the crime, if any, of which the defendant is accused; A motive for the commission of the crime charged.” Defense counsel objected it was “not appropriate that 2.50 be given in light of 2.50.02 which I’m sure is about to be given.” Counsel stated “2.50 is directed toward evidence received for Evidence Code section 1101(b) purposes and in fact is received only for a limited purpose, [whereas] 2.50.02 relates to evidence of other crimes where the evidence goes to show character or predisposition and . . . isn’t limited.” Counsel added “there was nothing distinctive about any of these past crimes” relevant to the issue of identity, or “for that matter, motive or intent.” The trial court stated it was going to give the same modified CALJIC 2.50 given in Younger I, noting that “[i]t doesn’t appear there was a problem with that instruction. It certainly wasn’t noted in the appellate decision.”
(ii)
Appellant contends it was error for the trial court to allow the jury to consider his prior acts of domestic violence under CALJIC 2.50 because none of the acts had any bearing on issues of intent or identity. Appellant asserts this error was prejudicial under the Watson standard.
Appellant concedes the incidents in Oroville in 1995 “logically bore on ‘motive’.”
People v. Watson, supra, 46 Cal.2d 818, 836.
Even if the trial court erred by giving the modified CALJIC 2.50 as well as CALJIC 2.50.02, any error was harmless. First, in his closing argument the prosecutor reviewed in great detail all the prior acts of domestic violence offered into evidence. The prosecutor then asked the jury rhetorically, “What are we going to do with all this domestic violence information?” He continued, “Well, the law tells you what you can do with it. There is a CALJIC instruction which is the law that . . . has been given to you by the Court.” Then the prosecutor discussed CALJIC 2.50.02 at some length; he explained to the jury if it found appellant committed these prior acts of domestic violence that was not enough alone to convict appellant of murder. The prosecutor did not mention intent or motive at all in connection with his discussion of the prior acts of domestic violence and did not urge the jury to consider the evidence for such purposes. Conversely, in urging first degree murder to the jury, the prosecutor discussed the issue of motive and did not mention prior acts of domestic violence. Second, and more importantly, CALJIC 2.50.02 allowed the jury to consider evidence of prior acts of domestic violence without limitation and for any purpose bearing on appellant’s propensity to commit the crime, which would necessarily incorporate identity, motive and intent. Indeed, when confronted with the same issue one court stated: “Because we conclude the prior domestic violence evidence was generally admissible under section 1109, we need not consider appellant’s alternative argument that it should have been excluded when offered for a specific purpose under section 1101.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1316.) In sum, any error was harmless.
Appellant asserts Evidence Code section 1109 is unconstitutional, and therefore the trial court erred by admitting evidence of prior acts of domestic violence under that section. Not only was this claim waived by appellant’s failure to raise it below (see People v. Rodrigues, supra, 8 Cal.4th at p. 1118), it is without merit. Appellate courts have repeatedly rejected challenges to Evidence section 1109 on federal constitutional grounds. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1029; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Jennings, supra, 81 Cal.App.4th at pp. 1309-1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Johnson (2000) 77 Cal.App.4th 410, 416-419.) All these cases relied on People v. Falsetta (1999) 21 Cal.4th 903, in which the Supreme Court concluded that a similar statute, Evidence Code section 1108, did not violate due process because the trial court’s discretion to exclude evidence under Evidence Code section 352 provides a procedural safeguard against prejudice. Admission of evidence of prior acts of domestic violence under section 1109 is similarly subject to the limitations of section 352. (§ 1109, subd. (a).) Accordingly, under the reasoning of Falsetta, this safeguard ensures section 1109 also passes constitutional muster.
Evidence Code section 1109 provides: “(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
6. CALJIC 2.50.02
Appellant contends the trial court violated his due process rights by instructing the jury with CALJIC 2.50.02 (Evidence of Other Domestic Violence). Appellant asserts CALJIC 2.50.02 permitted the jury to convict him of second degree murder on the basis of prior acts found by a preponderance of the evidence, rather than by non-propensity evidence proved beyond a reasonable doubt.
However, appellant concedes we are bound by People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (Reliford) [approving the 1999 version of CALJIC 2.50.01, an instruction which mirrors CALJIC 2.50.02 in addressing the admission of evidence of a defendant’s prior uncharged sexual offenses].) In Reliford, the Supreme Court determined CALJIC 2.50.01 does not “authorize a guilty verdict based solely on proof of uncharged conduct” (id. at p. 1013) and thus does not allow the jury to convict based only upon prior bad acts proven by a preponderance of the evidence.” (Reliford, supra, 29 Cal.4th at p. 1016 [“We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof”].) Accordingly, appellant’s claim is foreclosed by Reliford.
Although appellant recognizes Reliford precludes his claim, he wishes to preserve for federal review his argument that CALJIC No. 2.50.02 is constitutionally infirm.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Pollak, J.
(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
(2) The declarant is unavailable as a witness pursuant to Section 240.
(3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.
(4) The statement was made under circumstances that would indicate its trustworthiness.
(5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official. (Ibid.)