People v. Merchant, 40 Cal.App.5th 1179

On Dec. 22, 2014 Merchant drove with girlfriend Lisa in a car, sped on the freeway, grabbed her hair, she called 911, he threw her phone out the window, and officers later detained the vehicle; Caltrans video corroborated the passenger screaming for help.
Lisa did not appear at trial and was stipulated unavailable; her on-scene statements to CHP were central to the prosecution.
The D.A. charged Merchant with kidnapping (Pen. Code § 207), corporal injury to a cohabitant (§ 273.5), dissuading a witness (§ 136.1), and robbery (§ 211); jury convicted on kidnapping and dissuading a witness, convicted misdemeanor battery as lesser included, acquitted of robbery.
Trial court admitted Lisa’s hearsay statements under the forfeiture-by-wrongdoing doctrine after reviewing recorded jail calls in which Merchant repeatedly urged Lisa to "lay low" and not appear for the prosecutor.
The court also admitted eight prior acts of domestic violence (against Lisa and a former girlfriend) under Evid. Code §§ 1109 and 1101(b), after excluding four incidents as cumulative or minimally probative.
Merchant appealed, arguing (1) admission of Lisa’s testimonial statements violated the Confrontation Clause and (2) the prior-act evidence was erroneously admitted or unduly prejudicial; appellate court affirmed and upheld the convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Lisa’s testimonial out-of-court statements were admissible despite Confrontation Clause because Merchant forfeited his right by wrongdoing	Forfeiture-by-wrongdoing applies: recorded jail calls and pattern of abuse show intent to procure Lisa’s unavailability, so her statements are admissible	Calls were nonthreatening/too remote (16 months before trial) and thus insufficient to show intent to prevent testimony	Forfeiture proved by preponderance: repeated calls, monitoring, and abusive relationship dynamics showed intent and success in keeping Lisa away; statements admissible
Whether prior domestic-violence acts were admissible under Evid. Code §§ 1109 and 1101(b) and not exclusionary under § 352	Prior acts highly probative of propensity, intent, and common plan; admitted incidents were similar and not overly prejudicial	Incidents were cumulative, remote, or insufficiently similar; admission violated due process and risked lowering proof standard	Admission of eight prior acts was within trial court discretion: probative value outweighed prejudice, excluded incidents show careful balancing, and CALCRIM/standard-of-proof instructions cured concerns

Crawford v. Washington, 541 U.S. 36 (Confrontation Clause bars testimonial hearsay absent unavailability and prior cross-examination)
Davis v. Washington, 547 U.S. 813 (Confrontation Clause analysis and discussion of forfeiture doctrine procedure)
Giles v. California, 554 U.S. 353 (forfeiture-by-wrongdoing requires intent to procure declarant's unavailability)
People v. Perez, 4 Cal.5th 421 (California articulation that forfeiture requires intent to prevent in-court testimony)
People v. Jones, 207 Cal.App.4th 1392 (forfeiture applied where jail calls dissuaded witness from testifying)
People v. Kerley, 23 Cal.App.5th 513 (standards for reviewing forfeiture and other-act evidence)
Ewoldt v. State, 7 Cal.4th 380 (standards for similarity when admitting other-act evidence under § 1101(b))
People v. Johnson, 185 Cal.App.4th 520 (statutory purpose and admissibility principles under § 1109)