P. v. Rapoza

Filed 8/10/07 P. v. Rapoza CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Eddie Rapoza appeals a judgment entered upon a jury verdict finding him guilty of one count of first degree murder and two counts of second degree murder, and finding true a multiple murder enhancement allegation. (Pen. Code,[1] 187, subd. (a), 190.2, subd. (a)(3).) The trial court sentenced him to 25 years to life without the possibility of parole for the first degree murder, and two consecutive terms of 15 years to life for the second degree murders. We affirm.

I. BACKGROUND

A. The Crash and Aftermath

Defendant drove off a cliff in Moss Beach in a van containing his pregnant wife, Raye Rapoza,[2] and four-year-old daughter, Tehani, on October 6, 2002. The van had accelerated quickly along the street leading to the cliff. It did not appear to brake or turn to avoid the cliff, instead turning slightly to follow a path to the cliff. The van landed in the ocean. Raye died almost immediately from injuries she suffered in the crash. The fetus she was carrying, which was viable and was at 30 to 32 weeks gestation, died with her. Tehani also suffered serious injuries, and died shortly after she was taken to hospital.

After the crash, defendant appeared distraught. He told a paramedic that his foot had become caught beneath the brake pedal and he could not get his foot off the accelerator, and he told a resident who had come to help that his foot had become stuck in the accelerator.

B. Defendants Statements

Joseph Farmer, a deputy sheriff for the San Mateo County Sheriffs Office, investigated the crash. Two days after the crash, he went with a detective, Gary Ramos, to visit defendant at the hospital. He first spoke with defendants nurse, who told him defendant had been carrying on conversations and had received a low dose of medicine for his pain, and with defendants pastor, who had been visiting defendant and told Farmer he had just spoken with defendant and defendant seemed alert and lucid.[3] Defendant told the officers he and Raye had stopped at a lookout point off the road to watch the waves. They got back in the van, and his shoe became wedged between the gas pedal and the console or firewall[4] when he put his foot on the gas pedal. When he tried to pull his foot out, the airbags deployed. He stepped on the brake, but could not stop the van from going over the cliff.

In a second interview the following day, defendant again told Farmer and Ramos his foot had become stuck in the accelerator. He denied having stopped the car or gotten out of the van, but said his foot had become stuck as he was driving, just before he was going to make a turn. He was wearing new shoes, which he thought might have been too wide. He initially told them he and Raye had a good relationship. Later, he admitted that the two of them had argued frequently, though not seriously. He had accused Raye of being unfaithful to him, he believed she was involved with another man, he did not believe he was the father of the baby she was expecting, and he thought she had been gathering money in preparation for leaving him.[5]

After reading defendant his Miranda rights, Ramos asked if it had become too much for [him] and he had made a bad decision in the spur of the moment. Defendant replied, I think so. He said he and Raye had been fighting because defendant thought she was unfaithful. He had tried to frighten Raye by driving toward the cliff, and his foot had become stuck. He was asking her to tell him the truth as he drove. The following exchange took place during the interview: Q. Were you trying to hurt yourself, too? [] A. Yeah. [] Q. Whats that? [] A. Yes. [] Q. Did you want to die there? [] A. No, yes. All of us. [] Q. You wanted everybody to die? [] A. All my family *** [indicates unintelligible portions of tape-recorded interview] family *** [] Q. [W]hen did you make that decision that you wanted everybody to die? [] A. in that ***. The more evidence that came out. I mean, shit. [] Q. Are you talking about that morning or youre talking [] A. That, that previous morning . . . . He told the officers he had wanted Raye to tell [him] the truth and get out of the car. Raye started talking, and he accelerated and drove off the cliff. He had decided to drive off the cliff, and he told Raye to get out and take Tehani with her because he was going to do so. She stayed in the car, trying to call [his] bluff, according to defendant, because she did not believe he would drive off the cliff if she stayed in the car. The following discussion took place: Q. . . . [W]hy did you take off if they were still in the car? [] A. Cause I called her bluff. [] Q. Okay. So you knew all three of you were going to die? [] A. Somewhat. [] Q. What about, what about the baby that Raye was carrying? [] A. The baby wasnt my baby. [] Q. Did you want to kill the baby, also? [] A. I wanted to kill the guy who made that baby. [] Q. What about, what about the baby? [] A. I just, like I said I wanted *** Tell me the truth ***. [] Q. So, when Raye didnt get out of the car, you knew she was going to die with you? You knew Tehani was going to die with you? Were you thinking. [] A. All for one. One for all. Defendant also told the officers, I dont want to go to jail. Can you guys give me the electric chair?

Three days later, defendant was being taken from the jail to a hospital for treatment. The paramedic who was caring for him asked him why he had driven the van over the cliff. Defendant answered, referring to his wife,  The bitch was evil. She had to die,  or  Because she was a cheating bitch.  The paramedic asked,  Why the little girl?  Defendant called Tehani a cunt and said she was involved in the affair Raye was having, saying something like  the cunt was protecting [Raye]. 

C. The Accident Reconstruction

An automotive technician for the California Highway Patrol examined the van after the crash and found no problems that would have caused it to go off the cliff. Stein Husher, a research engineer specializing in automobile accident analysis and accident reconstruction, inspected the van, an exemplar vehicle, the site, the shoes defendant was wearing at the time of the crash, and a report analyzing the vehicles data recorder. He concluded the vans airbags did not deploy until the van went off the cliff and struck the beach. Based on experiments he conducted with defendants shoes and the exemplar vehicle, Husher concluded it was not possible for defendant to get his foot stuck between the accelerator and the center console or firewall or for him to catch his foot under the brake pedal in a way that would cause acceleration. There was no record of any reports either to Chrysler, the manufacturer of the van, or to the National Highway Traffic Safety Administrations Office of Defect Investigation of anyone getting a foot caught on an accelerator or pedal of the type of van defendant was driving.

D. Defendants Marriage with Raye

Defendants marriage to Raye had been rocky for some time before the crash. They grew up in Hawaii, and were living there when they met and married. At some point, apparently in the mid-1990s, they moved to California, but visited Hawaii on vacations. Rayes brother testified at trial that he lived with defendant and Raye for about eight months in Hawaii in 1993 or 1994. During that time, the couple would often quarrel while driving, and when they did so, defendant would drive recklessly. For instance, he would act as if he was going to drive through a red light or a stop sign, but stop at the last moment. When she told him to stop, he would only drive more recklessly.[6]

After they moved to California, defendant and Raye lived with Rayes brother-in-law, Gary Maganaris, and his wife, for about three years beginning in 1996. At the time, they did not argue an unusual amount. They moved to their own home in 1999. By the end of 2001 or 2002, Maganaris, who saw them regularly, noticed that their fights had become more frequent and louder. Defendant was using drugs, the cost of which was putting a financial strain on the couple.

Defendant was arrested in Hawaii in approximately February 2002 for assaulting Raye. Raye asked her father not to bail defendant out, so that defendant could think about the situation. She returned to the mainland without defendant. She told Maganaris defendant was in jail in Hawaii and she did not want to bail him out.[7]

After defendant returned to California, the fighting became so bad that Raye took Tehani and moved in with Maganaris and his wife in April 2002, and stayed about a month. She told Maganaris she thought defendant would kill himself if she left him, and told him defendant had threatened to do so. During this time, defendant called Rayes cell phone many times a day. He also called Maganariss home phone number over and over. There were nights defendant called so often Maganaris unplugged his telephone. He tried to have defendants number blocked. He and Raye both asked defendant to leave them alone, but defendant did not do so. More than once, Maganaris called the police because defendant showed up at his house. Raye told him defendant had threatened to burn Maganariss house down, and that he had threatened violence against her parents. Maganaris told Raye defendant was a danger to her and that she should get away from him. Raye told him she did not believe either she or Tehani was in danger, and that defendant would harm only himself. She did not want to leave defendant permanently, partly because she was pregnant and did not think she could afford to separate, and partly because she was afraid defendant would kill himself if she did so.

Maganaris met with defendant, who told him he believed Raye was taking money from the couples account in preparation for moving away. He also said he believed a gap was growing between him and Raye because Raye was receiving promotions in her job and getting new opportunities. Her job responsibilities sometimes kept her out in the evenings, and defendant was upset and insecure about the situation. He told Maganaris he would kill himself if Raye left him permanently.

In 2002, up until Rayes death, Maganaris noticed that defendant was becoming increasingly possessive of Raye, calling incessantly and asking her to come home if she was out with Maganaris and his wife. Maganaris again suggested to Raye that defendant was unstable and dangerous, and she told him she did not believe defendant would harm her.

In April 2002, Raye told Maganaris defendant had called her and said something like,  I just wanted to say I love you before I end it,  then had hung up the telephone. She took his statement as a suicide threat and called the police.

Raye returned to defendant, hopeful that he would change. The couples problems continued, however. Raye moved out again on more than one occasion, but each time she returned to defendant.

A few months after she returned to California in 2002, Raye told her father the relationship was deteriorating due to defendants jealousy, mistrust, and paranoia, and that she intended to leave defendant. Matters appeared to improve after she became pregnant with her second child, but during the summer of 2002, she again told her father she planned to leave defendant.

Rayes cousin, Joshua Torres, saw Raye and her family approximately every other weekend, and occasionally spent the night at their home. He noticed that defendant became jumpy and edgier during 2002, became verbally abusive to Raye, spoke to her in a mean or aggressive tone, and tried to know where she was at all times. About a year before the crash, at defendants suggestion, defendant and Torres went to the spot at Moss Beach where defendant later drove off the cliff. They parked and looked over the edge of the cliff. Defendant asked Torres, Do you think you would live or die if you jumped off? Torres was laughing, but defendant was not.

A friend and colleague of Raye, Angela Allen, also testified that defendant was jealous and checked up on Raye when she was out with friends.[8] In 2002 Raye told Allen her relationship with defendant had gotten worse, and that he was possessive and jealous, and was insecure because of her success at her work. She was making plans to leave him. Allen became concerned for Rayes safety, and offered to take her into her own home. Raye refused, saying she wanted to try to make the marriage work for the sake of Tehani and the baby Raye was expecting. Raye was concerned that defendant would carry out his threats to kill himself if she left him, and was also concerned she would not be able to manage financially on her own. However, she told Allen that she would not stay with defendant if she thought she or Tehani were in danger. The relationship repeatedly deteriorated and improved during 2002. When defendant told Raye that he thought she was having an affair and that he did not think he was the babys father, Raye thought his suspicions were ludicrous.

A colleague of defendant recalled that defendant had told him he was having problems in his marriage, that he thought Raye was having an affair, and that he would kill himself if his marriage ended.

Ann Mendoza, a friend of Raye, testified that Raye had told her that whenever she and defendant argued, he told her that he would kill himself if she left him. In particular, when they were driving, he would threaten to drive off a cliff if she left him. In 1995, Raye called Mendoza, crying and upset. She told Mendoza that during an argument, defendant had put a knife into her hand and told her to kill him if she wanted to leave him.[9] She stayed with Mendoza for two weeks after that. In 2002, Raye told Mendoza about the periodic difficulties in the couples relationship and about her desire to make the marriage work. Mendoza expressed her concern for Rayes safety and advised her to leave defendant, but Raye told her she did not think defendant would hurt her or Tehani. She was concerned, however, that he would harm himself.

After the crash, defendant called Rayes father and asked him to write a character letter on his behalf. Rayes father asked defendant if the crash had been an accident, and said that if defendant assured him it had been, he would write the letter defendant requested. Defendant did not answer Rayes fathers questions. He did, however, tell Rayes father that he thought Raye had been unfaithful to him.

E. The Defense

Defendant presented expert testimony that defendants foot could have become caught between the accelerator and brake pedals, resulting in the accelerator being depressed more than halfway. Such an event could lead to hypervigilance, or a panicked state in which the driver could not react in time to avoid an accident. Defendant also presented and elicited evidence that when he gave his statements after the crash, he was taking medications that caused depression, drowsiness, slowness in thinking, and confusion, and that he suffered cognitive impairment at the time.

II. DISCUSSION

A. Admissibility of Rayes Statements

The jury heard evidence of various statements Raye had made regarding defendants suicide threats and her views of the couples marriage. In particular, Maganaris, Rayes brother-in-law, testified that Raye had told him defendant would kill himself if she left him, that defendant had threatened to burn Maganariss house down, and that he had threatened physical harm to Rayes parents; Allen, Rayes friend, testified that Raye had told her defendant was possessive and had threatened to kill himself if she left him; and Mendoza, Rayes friend, testified that Raye had told her defendant threatened to kill himself if she left him, that he had threatened to do so by driving off a cliff, that in 1995 he had given Raye a knife and told her to kill him if she wanted to leave him, and that Raye was afraid defendant would harm himself if she left him.

Defendant contends this evidencemuch of which the jury was instructed was admitted not for its truth, but to show Rayes state of mindwas irrelevant and inadmissible. According to defendant, neither Rayes state of mind nor defendants belief about her state of mind tends to show that he acted with malice and deliberation.

Evidence Code section 1250 provides in part: (a) Subject to Section 1252, evidence of a statement of the declarants then existing state of mind, emotion, or physical sensation . . . is not made inadmissible by the hearsay rule when: [] (1) The evidence is offered to prove the declarants state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [] (2) The evidence is offered to prove or explain acts or conduct of the declarant.

Defendants own statement to the sheriffs officers establishes that Rayes state of mind and the reasons for her actions were at issue in the trial. Defendant told Farmer and Ramos that he had told Raye he was going to drive off the cliff and that she should get out and take Tehani with her, and that she stayed in the car anyway, call[ing his] bluff, because she did not believe he would drive off the cliff if she was in the car. At trial, he took the position that these statements were inaccurate, and that at the time he made them, he was impaired by the medications he had taken. Rayes fear that defendant was likely to kill himself and her belief that he would not harm her or Tehani were relevant to the credibility of defendants confessionincluding his admission that he expressed his intent to drive off the cliffbecause it corroborates and explains defendants statement that even after he told Raye he planned to drive off the cliff, she stayed in the van with Tehani.

Our Supreme Court has made clear that evidence of a declarants statements can be used to prove the actions of the defendant. (See People v. Majors (1998) 18 Cal.4th 385, 404 (Majors); see also People v. Griffin (2004) 33 Cal.4th 536, 577-579 (Griffin).) In Majors, for instance, a victims statement that he intended to meet people from Arizona to conduct a drug deal on the night he was killed was relevant, because his own conduct was one of the central issues of the case. (Majors, supra, 18 Cal.4th at pp. 404-405.) Similarly, in Griffin, a murder victims statement that she intended to confront the defendant was found to be relevantthat is, it tended to prove what had transpiredand to fall within the state-of-mind exception to the hearsay rule because it suggested that the victim confronted the defendant in accordance with her expressed intent and that in response he murdered her. (Griffin, supra, 33 Cal.4th at p. 578.) Similarly, here, Rayes decision to stay in the van even after defendant threatened to drive it off the cliff was relevant. We see no error in admitting evidence of her reasons for doing so.

Defendant also argues the evidence was more prejudicial than probative because the jury must inevitably have considered Rayes statements not just as evidence of her state of mind, but as evidence that defendant had in fact threatened suicide and contemplated carrying it out by driving off a cliff. We see no reason to believe the jury did not follow the trial courts instructions. In any case, the jury heard other evidence, which defendant does not challenge, that he had made suicide threats. As discussed earlier, both Maganaris and a colleague of defendant testified that defendant had said he would kill himself if Raye left him, and Torres testified that defendant took him to the cliff at Moss Beach and asked about what would happen if you jumped off the cliff. In the circumstances, we reject defendants contention that the probative value of Rayes statements was dwarfed by the risk of prejudice.

Defendant also contends the trial court erred in applying the forfeiture by wrongdoing doctrine to certain of Rayes statements. As defendant notes, the United States Supreme Court has ruled that the confrontation clause of the United States Constitution bars the admission of out-of-court testimonial statements except where the declarant is unavailable and the defendant has had the opportunity to cross-examine the declarant. (Crawford v. Washington (2004) 541 U.S. 36, 68-69 (Crawford).) The court, however, has made clear that a defendant may forfeit his right to confrontation by his own wrongdoing. (Id. at p. 62; see also Davis v. Washington (2006) 547 U.S. ____, 165 L.Ed.2d 224, 244, 126 S.Ct. 2266, 2279-2280.)

The trial court here concluded that defendant had forfeited his right to confront Raye regarding testimonial statements she had made by his wrongful act in killing her. Defendant argues the court erred in doing so, contending that the doctrine of forfeiture by wrongdoing applies only when a defendant kills or otherwise procures a witnesss unavailability for the purpose of preventing the witness from testifying. After briefing in this case was complete, our Supreme Court ruled that the doctrine should be applied even when the defendants intent was not to silence the witness. (People v. Giles (2007) 40 Cal.4th 833, 841-850.) Accordingly, we reject defendants contention.[10]

B. Vehicular Manslaughter as Lesser Included Offense

The trial court refused defendants request to instruct the jury on vehicular manslaughter ( 192, subd. (c)(1), (2)) as a lesser included offense of murder. A court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 112, 118 (Birks).) However, a defendant is not entitled to have the jury instructed on lesser offenses that are related to the charged offense but not necessarily included in it if the prosecutor objects. (Id. at pp. 112-113, 136.) The question before us is whether the crime of vehicular manslaughter is included in the charged offense of murder.

The crime of murder is defined as the unlawful killing of a human being, or a fetus, with malice aforethought. ( 187, subd. (a).) The crime of vehicular manslaughter is the unlawful killing of a human being without malice, committed when driving a vehicle in the commission of an unlawful act . . . ; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner . . . . ( 192, subd. (c)(1), (2).)

Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (Birks, supra, 19 Cal.4th at p. 117.) Manslaughter has long been treated as a lesser included offense of murder. (People v. Sanchez (2001) 24 Cal.4th 983, 989 (Sanchez).) Here, however, the lesser offense at issue is not simple manslaughter, but vehicular manslaughter. In a similar case, the court in Sanchez considered whether gross vehicular manslaughter while intoxicated ( 191.5, subd. (a))rather than simple manslaughterwas a lesser included offense of murder. The court concluded it was not, stating: Unlike manslaughter generally, vehicular manslaughter while intoxicated requires proof of elements that are not necessary to a murder conviction. The use of a vehicle while intoxicated is not merely a circumstance, but an element of proof when the charge is gross vehicular manslaughter while intoxicated. Gross vehicular manslaughter while intoxicated is not merely a degree of murder, nor is it a crime with a lengthy pedigree as a lesser included offense within the crime of murder. (Id. at p. 991.) Thus, [t]he lesser offense contains crucial elements of proof that are absent from the greater offense, thereby making it possible to commit the greater offense without necessarily committing the lesser offense. (Id. at p. 989.)

Here, the information charged defendant with the murders of Raye, the fetus she was carrying, and Tehani. It did not mention the use of a vehicle. Thus, the accusatory pleading did not contain all the elements of the crime of vehicular manslaughter. (See Birks, supra, 19 Cal.4th at p. 117.) Similarly, the crime of murder does not contain all of the elements of vehicular manslaughter. Simply put, vehicular manslaughter involves the driving of a vehicle, and it would certainly be possible to commit murder without committing vehicular manslaughter. (See ibid.; see also Sanchez, supra, 24 Cal.4th at p. 989.)

Defendant argues that the rule of Sanchez does not apply here because the lesser offense at issue is not vehicular manslaughter while intoxicated, like the defendant in Sanchez, but simply vehicular manslaughter. The high courts reasoning of Sanchez, however, appears to apply equally to the crime at issue here. In its decision, the court discussed and disapproved People v. Garcia (1995) 41 Cal.App.4th 1832 (Garcia) and People v. Watson (1983) 150 Cal.App.3d 313 (Watson), which had concluded vehicular manslaughter while intoxicated was a lesser included offense of murder. (Sanchez, supra, 24 Cal.4th at pp. 990-991 & fn. 3.) According to Sanchez, the court in Garcia had concluded that use of a vehicle is merely a circumstance relating to punishment, but not a separate element that is absent from a charge of murder. (Sanchez, supra, 24 Cal.4th at p. 990, citing Garcia, supra, 41 Cal.App.4th at p. 1854.) Likewise, the court in Sanchez stated, the Court of Appeal in [Watson] held that use of a vehicle and intoxication are not elements of vehicular manslaughter while intoxicated, . . . but merely . . . circumstances under which an unlawful killing constitutes manslaughter . . . .  (Sanchez, supra, 24 Cal.4th at p. 990, quoting Watson, supra, 150 Cal.App.3d at p. 322.)[11] The court in Sanchez concluded, these decisions stray too far from the general principle that an offense is necessarily included within a greater offense when the greater offense cannot be committed without committing the lesser offense. (Sanchez, supra, 24 Cal.4th at pp. 990-991.) It went on to state: Although it has long been held that manslaughter is a lesser included offense of murder, this tradition has not explicitly included offenses requiring proof of specific elements unique to vehicular manslaughter. (Id. at p. 991.) Under the reasoning of Sanchez, the use of a vehicle is one such element. (Ibid.)

Accordingly, we conclude vehicular manslaughter was not a lesser included offense of murder. The trial court did not err in refusing defendants request for an instruction on vehicular manslaughter.

C. Autopsy Photograph of Fetus

Defendant contends in his briefs on appeal that the trial court should not have admitted an autopsy photograph of the fetus Raye was carrying at the time she died. At our request, the parties supplied supplemental briefing addressing whether the trial court ruled on the admissibility of the photograph at trial and whether the photograph was published to the jury. The parties now agree the record does not support a contention that the photograph was admitted into evidence at trial or that the jury saw it. Accordingly, we need not consider the issue.[12]

D. Sealed Portions of Appellate Record

In his opening brief on appeal, defendant contends he was deprived of his right to a complete record on appeal because he had been denied access to certain transcripts and other documents. After the opening brief was filed, this court granted defendant access to all of the sealed documents except those relevant to his motion for discovery of the personnel records of Farmer and Ramos of the San Mateo County Sheriffs Office pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. We have reviewed the sealed transcript of the hearing on the Pitchess motion and the personnel files that the trial court reviewed in camera, and conclude the trial court did not abuse its discretion in declining to disclose any information from the files to the defense. (See People v. Mooc (2001) 26 Cal.4th 1216, 1232.)

III. DISPOSITION

The judgment is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

REARDON, Acting P. J.

___________________________

SEPULVEDA, J.

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[1] All undesignated statutory references are to the Penal Code.

[2] Because defendant and Raye Rapoza shared the same last name, we will refer to Raye by her first name. We mean no disrespect by this designation.

[3] This evidence was admitted not for its truth, but for Farmers state of mind, that is, that he thought he could interview defendant.

[4] Defendant later described the firewall as the lump at the middle of the car.

[5] DNA testing later showed that defendant was the father of the child Raye was expecting.

[6] Rayes brother also testified that defendant normally drove with one foot on the accelerator and one on the brake. Her father corroborated this description of defendants driving.

[7] The trial court instructed the jury that Rayes statements about defendants being in jail and about her not wanting to bail him out were only admitted to show her state of mind, not for the truth of the statements.

[8] The trial court instructed the jury that Allens testimony regarding things Raye had told her were admissible only for Rayes state of mind about her relationship with defendant.

[9] The court instructed the jury that this testimony was admitted not for its truth, but for Rayes state of mind and concerns about the defendant.

[10] There is some confusion about what evidence defendant challenges on confrontation clause grounds. He argued in his opening brief that the forfeiture by wrongdoing doctrine was erroneously applied to allow introduction of Rayes statements to her family and friends about defendants suicide threats and her intent to end the marriage. The Attorney General pointed out in its respondents brief that Rayes statements to family and friends were not testimonial and hence not protected by the confrontation clause. (See Griffin, supra, 33 Cal.4th at p. 579, fn. 19 [statement made by victim to friend at school not testimonial hearsay within meaning of Crawford].) In his reply brief, defendant agreed that the admission of nontestimonial statements did not violate the confrontation clause. Instead, he challenged in his reply brief only certain statements Raye made when applying for a restraining order in 1995, and statements she made to police officers in Hawaii in 2002 when she had defendant arrested for domestic violence. The parties draw our attention to the portions of the record at which the court considered whether these testimonial statements were admissible, but they do not point to the portion of the record in which such statements were actually introduced into evidence. Assuming they were introduced, we see no error in applying the doctrine of forfeiture by wrongdoing.

[11] We note that although the defendant in Watson was intoxicated, the lesser offense under consideration was vehicular manslaughter. (Watson, supra, 150 Cal.App.3d at pp. 320-323 & fn. 5.)

[12] Because we find no error in the rulings defendant challenges, we also reject his claim that he was prejudiced by the cumulative effect of the errors.