THE PEOPLE, Plaintiff and Respondent, v. JECARR FRANSWA MERCHANT, Defendant and Appellant.
D075388
(Super. Ct. No. RIF1406238)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 10/9/19
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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
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 (
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. (
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 (
DISCUSSION
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 criminal defendant has a Sixth Amendment right “to be confronted with the witnesses against him.” (
“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 is sufficient evidence from which the trial court could make its finding on a preponderance standard. (See People v. Kerley (2018) 23 Cal.App.5th 513, 559 (Kerley).)
b. Application
Before trial, the prosecution filed a motion seeking to admit Lisa‘s out-of-court statements to law enforcement. It proffered her statements to officers on December 22, 2014 describing the charged offense as well as her statements to officers earlier that year describing domestic violence incidents on March 8 and November 21. According to the prosecution, Merchant‘s statements to Lisa during recorded jail calls supported application of the forfeiture-by-wrongdoing doctrine.
The court determined Lisa‘s statements were testimonial in nature, implicating Merchant‘s right to confrontation.3 Nevertheless, reviewing Merchant‘s recorded jail calls, it determined he intentionally secured Lisa‘s unavailability at trial and thereby forfeited his confrontation right. The judge acknowledged the case was “a lot weaker” than the usual forfeiture by wrongdoing case because Lisa was not killed or expressly threatened with harm to make her stay away. Merchant instead engaged in “more of a passive coercion.” Yet there was enough evidence from the jail calls and Merchant‘s pattern of abuse to find by a preponderance that his actions intended to and succeeded in keeping Lisa away.
Sufficient evidence supports the trial court‘s finding. A criminal protective order was entered two days after the offense on December 24, 2014, precluding Merchant from any contact with Lisa. On January 6, Merchant called his friends “Groove,” “Buck,” and “Snake.” Groove said the D.A. was in the area searching for Lisa. Buck told Merchant, “As long as she don‘t come in to court you could be all right.” Merchant asked Groove or Snake to check in on Lisa and “keep her away for six months.” Groove agreed.
Merchant called later that day to remind Lisa to stay under the radar. He told her he knew she would be there for him and reconfirmed whether he should “[g]o all the way to trial with this?” Lisa again assured him that she was not going anywhere. Merchant seemed satisfied. The call ended shortly after with an exchange of “I love you[‘s].”
On January 8, Merchant called Lisa to say the D.A. would have to drop charges if she did not appear for two months. Lisa assured Merchant that she was hiding from the D.A., and not to worry. Seemingly placated, Merchant instructed her to stay by the phone.
The next day, Merchant called and told Lisa not to leave the house without telling him. He told her he felt stressed, but his “homie” told him to calm down because Lisa wasn‘t going anywhere and had just been “talkin’ good.” Lisa told him, “calm down ‘cause I ain‘t going nowhere“; Merchant emphasized that she needed to “lay low.” Later that day, he called Lisa again and convinced her not to leave the house, even for a job interview. Two hours later, Merchant called to warn Lisa not to invite guests over.
On January 10, Lisa told Merchant she caught Snake staring at her when she went to the store. Merchant explained that Snake was just worried that Lisa would show up, and she should reassure him otherwise.
In all, Merchant called Lisa 167 times between January and May 2015. Although he made no direct threat to harm her, Lisa‘s friend told the district attorney‘s office weeks before trial that Lisa remained terrified of what might happen to her if she came to court. Sufficient evidence supports the court‘s
Jones, supra, 207 Cal.App.4th 1392 is analogous. There, the defendant was on trial for choking someone who told his ex-girlfriend that he was seeing another woman. The ex-girlfriend told detectives that she had ended her five-year relationship with the defendant because of physical violence, and that on the date of the charged offense, he had called her with the victim‘s cell phone to say, ” ‘I just choked your homegirl out and I have her phone.’ ” (Id. at pp. 1395−1396.) The ex-girlfriend failed to appear at trial, and jail records showed the defendant had called her a dozen times to dissuade her from testifying. (Id. at p. 1396.) Based on these calls, the trial court properly applied the forfeiture-by-wrongdoing doctrine to admit the ex-girlfriend‘s statements to detectives. As the court explained, applying the doctrine on these facts advanced its objective of helping courts maintain the integrity of judicial proceedings and removing incentives for defendants to intimidate, bribe, or kill witnesses who might appear against them. (Id. at p. 1399.)
Merchant attempts to distinguish Jones, arguing his jail calls to Lisa were more remote in time and did not so clearly cause her failure to appear. According to Merchant, “[t]here is an extremely significant difference from contacting a witness and discouraging [her] attendance at trial one week before trial, as in Jones, and in doing so nearly a year and a half prior to trial, as in this case.” But while there may be a distinction, it is not as stark as Merchant suggests. Merchant made 167 calls over a five-month period soon after his arrest, locking in Lisa‘s nonappearance before he decided to reject the plea offer. Viewed in context of an abusive relationship, his pleading, cajoling, and careful monitoring of Lisa‘s whereabouts could reasonably be taken as a threat to induce her nonappearance at trial a year later. According to Lisa‘s friend, who spoke with a D.A. investigator just two weeks before trial, Lisa remained “terrified” to come forward.
The facts are sufficiently analogous to Jones to justify the same outcome under a preponderance-of-the-evidence standard. There was no error in
2. The Trial Court Did Not Err in Admitting Merchant‘s Prior Acts of Domestic Violence.
Merchant contends the trial court abused its discretion in admitting evidence of prior acts of domestic violence against Lisa and former girlfriend J.C. under
a. Additional Background
Merchant had an on-and-off relationship with J.C. starting in 2005; their daughter was born in November 2013. He began dating Lisa in January 2014, 11 months before being charged in this case. Prior to trial, the prosecution filed a motion in limine to admit Merchant‘s prior acts of physical violence against Lisa and J.C. According to the prosecution, the 11 prior acts against the women and a twelfth act against Merchant‘s stepfather tended to show Merchant‘s propensity to commit domestic violence under
Specifically, the court found two prior acts involving Lisa admissible:
- On March 8, 2014, Merchant was upset that Lisa was not ready for bed and pushed her several times in the face and chest. Charges for this incident were separately pending at trial. The trial court found this evidence admissible under
section 1109 to show propensity and concluded that because Lisa would not testify, its presentation would consume little time for purposes ofsection 352 . - On November 21, 2014, Lisa and Merchant got into an argument while she was driving a vehicle. He punched her in the side of the head and pulled her hair. When she stopped for gas, he drove away and left her stranded. Charges for this incident were separately pending at trial. This evidence was found admissible under
section 1109 . In addition, given the similarities to the charges, it was admissible to show that Merchant acted pursuant to a common plan and not by mistake or accident undersection 1101, subdivision (b) .Section 352 did not require exclusion given the high probative value and minimal consumption of time.
Likewise, the court found six events concerning J.C. admissible:
- In April or May 2008, while J.C. was driving on the freeway with Merchant in the passenger seat, he punched her in the stomach and shoulder and threw her cell phone in the back seat. When J.C. stopped the car, he retrieved the phone, called a friend, and said he wanted to kill J.C. but did not want to go to jail. He then threatened J.C. that he could kill her if he wanted and proceeded to throw her cell phone outside the car. This court found this evidence admissible to show propensity under
section 1109 and common plan and intent undersection 1101, subdivision (b) . - On an unspecified date, Merchant asked J.C. to perform a sexual act. She refused and wanted to go home. Merchant prevented her from leaving, pushing her onto the bed. As she reached across the bed for her phone to call the police, he grabbed her hard by the hair and threatened to shoot her. The court found this evidence admissible to show propensity under
section 1109 and intent undersection 1101, subdivision (b) . - On August 11, 2008, Merchant pushed J.C. and hit her in the ear and thigh. When she stepped outside to leave, he grabbed her belongings and took them inside. She tried to retrieve them, but Merchant kicked her. This evidence was admissible to show propensity under
section 1109 and intent undersection 1101, subdivision (b) . - On July 25, 2009, while Merchant was driving on the freeway, J.C. tried to end their relationship. Merchant punched her and refused to take her home. He instead drove J.C. to his house and took away her keys to prevent her from leaving. J.C. eventually managed to grab her keys and leave. This evidence was admissible under
section 1109 and under1101, subdivision (b) to show common plan and intent. - Merchant called J.C. nearly 100 times over a two-week period in November 2010, in violation of a criminal protective order. When J.C. asked to be left alone, Merchant threatened that they would remain together “til death.” This evidence was admissible under
section 1109 and under1101, subdivision (b) to show common plan and intent.Section 352 narrowed how this “100 calls” evidence could be presented. As the trial court explained: “The fact that it happened over a hundred times is one thing. But the fact that all the calls are played would be another.” - In May 2011, Merchant pleaded guilty to false imprisonment of J.C. in connection with the July 25, 2009 incident. This evidence was admissible
under section 1109 to show propensity and undersection 1101, subdivision (b) to show common plan and intent.
By contrast, the court excluded the following four acts as minimally probative or cumulative:
- In early 2008, when J.C. tried to break up with Merchant, he became angry and would not let her leave. He grabbed her necklace and broke it. When J.C. got in her car to drive away, Merchant threw a jewelry box at the car, damaging the rear tail light. This evidence was inadmissible under
sections 1109 and1101, subdivision (b) because the extent of physical violence was “minimally relevant.” The court also excluded it undersection 352 explaining, “there‘s a cumulative nature to these,” and “[a]t some point, the number of incidents becomes . . . more prejudicial than probative.”
- In August 2009, Merchant threatened J.C., who was then on probation, that he could make her life miserable and put her back in jail. The court found this inadmissible under
sections 1109 and1101, subdivision (b) because “there‘s no physical violence,” and the evidence did not tend to show a common plan. It also found the evidence cumulative undersection 352 . - In 2011, while awaiting trial in another case, Merchant relentlessly called J.C. and threatened to hurt her unless she sent him nude pictures. Once she did so, he threatened to share the pictures with her family and coworkers, stating he wasn‘t going to jail for no bitch. The court deemed this evidence cumulative under
section 352 , since it was encompassed within the “100 calls” evidence admitted above. And to the extent it was offered just to show that Merchant had made threats, it was inadmissible undersections 1109 or1101, subdivision (b) . - In January 2006, Merchant threatened his stepfather at gunpoint not to touch his property. He was convicted for criminal threats and imprisoned for four years, eight months. This was inadmissible under
section 1109 and minimally relevant for a noncharacter purpose undersection 1101, subdivision (b) because the victim was not in a dating relationship with Merchant.
b. Legal Principles
Character evidence is generally inadmissible to prove a defendant‘s conduct on a specific occasion. (
In addition, the Legislature has carved out specific exceptions to the ban on propensity evidence for defendants charged with sex crimes (
Even if other act evidence is relevant and admissible under
c. Analysis
We readily conclude that the trial court did not err in admitting eight items of other act evidence under
Taken together, the prior act evidence demonstrated Merchant‘s pattern of control in romantic relationships. He tended to convert verbal disagreements with his girlfriend into physical abuse, inflict physical violence (including in a moving vehicle), prevent her from leaving, and block her attempts to call for help. This pattern was highly probative of his propensity to engage in similar conduct on December 22 as charged. (
It is significant that the court excluded four items of prior act evidence. In three of the excluded incidents, Merchant merely threatened J.C. or caused property damage. The extent of physical violence in these incidents was found minimally probative to the case. The court further reasoned that at some point, domestic violence evidence concerning J.C. became cumulative and more prejudicial than probative. It excluded Merchant‘s criminal threat against his stepfather—the victim was not someone Merchant had dated, and the act was minimally probative of his intent or common plan.
As we read the record, the trial court carefully weighed relevant factors to admit acts that bore a reasonable similarity to the charged offenses and exclude those deemed cumulative or minimally probative. The admitted domestic violence evidence was highly probative and not unduly prejudicial, as it did not invite the jury to prejudge Merchant or consider extraneous
We reject each of Merchant‘s arguments to the contrary. He claims the incidents involving J.C. had no probative value. But the fact that Merchant engaged in domestic violence against two different women strengthens its probative value on propensity. (People v. Morton (2008) 159 Cal.App.4th 239, 247.) Courts have consistently rejected his next claim—that the admission of propensity evidence under
Merchant argues the instruction on propensity evidence invited the jury to convict him under a lower standard of proof. The jury was told to evaluate whether prior acts of domestic violence occurred under a preponderance standard. The instruction explained that a finding that abuse occurred was a single factor to consider and insufficient standing alone to prove guilt. It also made clear that even if past domestic violence occurred, the prosecution still had to prove each charge and allegation beyond a reasonable doubt. (Former CALCRIM No. 852, now CALCRIM No. 852A.)6 As Merchant concedes, courts have consistently rejected the claim he makes. (People v. Reyes (2008) 160 Cal.App.4th 246, 250−253; Kerley, supra, 23 Cal.App.5th at p. 543.)
Finally, Merchant argues his 2011 conviction for false imprisonment was inadmissible under
3. Sufficiency of the Evidence
Merchant makes a two-sentence argument that his convictions must be reversed for insufficient evidence. This contention turns entirely on his two claims of evidentiary error. Absent improperly admitted hearsay and propensity evidence, Merchant maintains there is insufficient evidence to sustain the convictions. Because we find no error in the admission of Lisa‘s unconfronted statements, or in the admission of prior domestic violence evidence, we likewise reject his insufficiency-of-the-evidence claim.
DISPOSITION
The judgment is affirmed.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
O‘ROURKE, J.