Filed 4/16/18 P. v. Fowler CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL RAY FOWLER,

Defendant and Appellant.

F073444

(Super. Ct. No. CRF43675)


OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Eleanor Provost,* and James A. Boscoe, Judges.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Michael Ray Fowler was convicted at the conclusion of a jury trial on July 22, 2015, of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count II and false imprisonment (id., § 236; count III). The jury acquitted defendant of domestic violence (id., § 273.5, subd. (a)(1); count I). In a bifurcated proceeding on September 8, 2015, the trial court found true the enhancements alleged in the second amended information that defendant had prior serious felony convictions for assault with a deadly weapon in 2001 and residential burglary in 1986. These enhancements were alleged pursuant to Penal Code section 667, subdivision (a) and the three strikes law (id., § 667, subds. (b)-(i)). The trial court also found true three prior prison term enhancements (id., § 667.5, subd. (b)). On January 26, 2016, the trial court sentenced defendant to 25 years to life on count II, plus two 5-year terms for the prior serious felony enhancements. The trial court’s sentence on count III and the prison term enhancements were stayed.
The victim, B.M., was unavailable to testify at trial. On appeal, defendant contends the trial court erred in allowing the investigating sheriff’s deputy to testify about what B.M. told him about defendant’s assault. Defendant argues the trial court improperly relied on Evidence Code section 1370, which he argues has been superseded by section 1390 and not cited by the trial court. In addition, he relies on Crawford v. Washington (2004) 541 U.S. 36 (Crawford) to argue the testimony violated his right of confrontation. The People reply that the victim’s hearsay statements are admissible because of defendant’s own misconduct under the doctrine of forfeiture by wrongdoing. Defendant further contends there was insufficient evidence of wrongdoing to support the People’s forfeiture theory and the People failed to demonstrate due diligence in trying to procure the victim as a witness for trial. We affirm the judgment.
FACTS
In Limine Motion
The prosecutor filed a motion in limine seeking to have B.M.’s statement to Deputy Phillip Halencak admitted into evidence pursuant to sections 402, 1370, and 1390. The motion set forth a time line involving court appearances leading to continuances that were further substantiated by the reporter’s transcripts from those hearings. Defendant and B.M. appeared in court together on the following dates and were ordered by the trial court to return to court for subsequent trial dates: April 9, 2014, April 29, 2014, July 14, 2014, and August 6, 2014. At the hearing on July 14, B.M. was ordered to appear for a subsequent trial date. At that time, she told the court she was not going to testify against defendant. At the hearing on August 6, B.M. told the court she was married to defendant. She was ordered back to court on October 8, 2014, but failed to appear. In November 2014, the prosecutor served B.M. with a subpoena to appear for trial on December 10, 2014. B.M. appeared with defendant on that date, and after a continuance was granted, B.M. was ordered back to court on March 25, 2015.
B.M. and defendant appeared for a pretrial hearing on March 9, 2015. The trial court granted defendant’s motion to substitute his trial counsel and continued the trial to May 27, 2015. B.M. was again ordered to appear for the new trial date. B.M. failed to appear for trial on May 27 despite being under subpoena. The prosecutor explained to the court defendant and B.M. were now married, the prosecutor believed defendant knew where she was, and further believed defendant was actively involved in secreting B.M. The prosecutor further explained B.M. arrived in court with defendant, sat with him, and left with him on multiple occasions.
During the hearing on May 27, the issue of defendant’s bail was reexamined. Defendant represented to the court he was homeless. Defense counsel told the court defendant had nothing to do with the victim’s absence from the proceedings. The court increased defendant’s bail. Defendant told the court he last slept in his truck and claimed it was at a friend’s house. Defendant refused to tell the court the identity of his friend. Defendant said his last address was in Groveland. Eight months earlier, he lived in Jamestown. There was a hearing related to the increase in defendant’s bail on May 29, 2015, before Judge Provost. The prosecutor represented defendant’s truck had been located with Oregon plates registered to defendant. Authorities in Oregon provided the People with documentation from utility records showing defendant lived at an address in Klamath Falls, Oregon and was not homeless. The prosecutor sought a further increase in defendant’s bail. Based on the misrepresentation defendant made about his residence, the trial court again increased defendant’s bail.
The details of B.M.’s appearances with defendant, the continuances sought by defendant, and the hearings on the increase in defendant’s bail were set out in the prosecutor’s in limine motion. The motion further stated B.M. was living with defendant at the same address in Oregon. The motion argued B.M. was unavailable as a witness pursuant to section 240, the People had exercised diligence in attempting to secure her as a witness but could not do so, and her statement to Deputy Halencak was reliable under section 1370. The prosecutor’s in limine motion also had a full section devoted to the hearsay exception set forth in section 1390, which codifies the doctrine of forfeiture by wrongdoing. The prosecutor argued that although Deputy Halencak’s testimony concerning B.M.’s statements to him about defendant’s attack were testimonial hearsay, they were nevertheless admissible under section 1390 and United States Supreme Court precedent.
In Limine Hearing
The trial court conducted a hearing on whether B.M.’s prior statements to the investigating deputy were admissible. The motion focused on sections 240 and 1370. The People called Halencak and Tuolumne County District Attorney Investigator Jeff Snyder as witnesses. After defendant had represented in court he was homeless and lived in his pickup truck, Halencak drove through the area looking for the truck in parking lots. Halencak was familiar with defendant’s truck, a “white Chevy extra cab pickup, dual drive.” Halencak found the truck, with Oregon license plates, in a parking structure on Washington Street. Halencak ran the license plate number through the Oregon Department of Motor Vehicles and learned it was registered to B.M. at an address in Klamath Falls, Oregon.
When the vehicle exited the parking structure, Halencak followed it to Jamestown and contacted the driver, who identified himself as Richard G. Richard G. told Halencak his brother was close friends with defendant, and Richard G. was instructed to drive the truck back if defendant was taken into custody. Halencak contacted authorities in Klamath Falls to do a welfare check on B.M. in an attempt to locate her at the address used for the truck’s registration. Halencak provided the address at the hearing. An officer from Klamath Falls went to the address and talked to a neighbor who represented that an older male and female couple had lived at the residence. The water utility service for the residence was in defendant’s name and included his correct date of birth. Halencak obtained a body attachment warrant and explored with Investigator Snyder the possibility of picking up B.M.
Investigator Snyder was also involved in investigating B.M.’s whereabouts. Snyder personally served B.M. with a subpoena to attend the jury trial. After May 27, 2015, Snyder attempted to locate B.M. Snyder contacted the Klamath Falls Police Department and learned B.M.’s address. The local police also had access to the utility records for that address and learned defendant’s name was associated with the same address. Snyder talked to Investigator John Dougherty of the Klamath Falls District Attorney’s Office, who was unable to make contact with the residents at B.M.’s home on several different occasions. Dougherty was unable to confirm B.M. was living at the residence.
Snyder contacted an investigator with Tuolumne County Social Services to perform a database search to see if B.M. was receiving financial aid. The investigator discovered B.M. had received such aid in the past while she lived in California, but at the time of trial she was collecting financial aid in Oregon. Financial aid was being sent to B.M.’s address in Klamath Falls, Oregon. Snyder learned this information in mid-June 2015.
Snyder did not go to Klamath Falls to see if B.M. was there. Although Snyder had a body attachment, he learned from Oregon authorities they would not act on it unless it was a criminal warrant. Snyder did not try to execute the body attachment on B.M. in Oregon because it was his understanding there would have to be an extradition hearing if he took her into custody in that venue.
When the prosecutor asked the trial court to take judicial notice of the hearing transcript of the pretrial hearing on May 27, 2015, the court gave a positive response. The prosecutor argued B.M. and defendant appeared together in court during pretrial proceedings and it was clear before the May 27th pretrial hearing that B.M. would do whatever she could to absent herself from trial. After being personally served by Investigator Snyder to appear for trial, B.M. failed to do so. Defendant and B.M. got married during the course of the proceedings and presumably live together. At the May 27th hearing, defendant lied when he represented he was homeless because he had a residence in Klamath Falls.
The prosecutor argued the only reason for defendant “to pull up … stakes … and move to” Oregon was to avoid criminal prosecution. The prosecutor explained that under Code of Civil Procedure section 1219, subdivision (b), the victim of domestic violence cannot be taken into custody. The prosecutor emphasized it was defendant’s “wrongdoing” in moving B.M. to Oregon in the midst of a criminal prosecution, coupled with lying to the court about his residence and not knowing her location, that caused B.M. to not be in court for trial. Because of Code of Civil Procedure section 1219, subdivision (b), the People were virtually powerless to compel B.M.’s presence in court. The People argued B.M.’s statements to Halencak were trustworthy. The prosecutor emphasized defendant was controlling B.M.’s whereabouts and she was not in court because of his “wrongdoing.”
Defense counsel argued the People knew where B.M. was living and their efforts to contact her were insufficient. Defense counsel denied his client committed any wrongdoing. Defense counsel argued the district attorney should have used the body attachment to bring B.M. back from Oregon. Counsel further argued B.M.’s statements to Halencak were untrustworthy.
The prosecutor argued that if the evidence showed B.M. absented herself on her own, the issues of diligence and procuring her attendance might take on a different tone. The residence in Klamath Falls had the utilities in defendant’s name. The prosecutor contended B.M. was living in defendant’s home and it was he who put B.M. in the position of not being present for trial. Defense counsel reiterated his client had not engaged in “wrongdoing” and had not been in contact with B.M.
The trial court noted it had to consider defendant’s due process rights and determine whether he would have the opportunity to confront B.M. or whether the circumstances allow a prior statement into evidence under section 1370. The court held the statements admissible, finding the requirements of section 1370 satisfied. The court found the statements trustworthy based on the timing of when they were made. Turning to section 240, the court did not consider defendant’s conduct to be criminal in nature. The court found, however, “[a]ny conduct that, I think, puts the witness beyond the authority of the Court, or that makes her testimony unavailable, is sufficient to meet the 240 exception.” The court noted there were authorities holding the marriage of a victim of domestic violence, with the belief it would prevent the victim’s testimony, can lead to the reasonable inference the marriage was an effort to limit or prevent the victim’s testimony.
The trial court further noted B.M.’s move to Oregon, outside the jurisdiction of California, made it difficult for the People to procure her attendance by executing a body attachment. The court observed Code of Civil Procedure section 1219, subdivision (b) further impeded the People’s ability to get B.M. to trial. The court declined to make an order finding B.M. in contempt because the order would be unenforceable and illegal. Referring to sections 240 and 1370, the court granted the People’s motion in limine to allow the introduction of B.M.’s statements.
Trial Evidence
On March 20, 2014, around 1:00 p.m., Melissa P. heard what sounded like fighting in a neighbor’s house in rural Groveland. Ms. P., who knew defendant and was familiar with his voice, heard him yelling, “I am going to kill you.” She also heard a woman pleading, “No, no.” Ms. P. called 911.
Tuolumne County Sheriff’s Deputy Phillip Halencak responded at 2:00 p.m. to defendant’s residence. Defendant and B.M. were being separated by California Highway Patrol officers. Halencak took a statement from B.M., who told the deputy she and defendant were packing to move and had been arguing since 11:00 a.m. When B.M. pulled the cord off the satellite receiver, defendant became enraged and began to strangle her with the cord until she nearly lost consciousness. When B.M. tried to run out of the trailer, defendant would shove her down onto the bed or hold her in a bear hug. Defendant continued to yell at her. Defendant kept her inside the trailer until officers arrived. B.M. declined any medical attention or a protective order because her daughter was coming to take her away from defendant anyway.
Deputy Halencak has experience in investigating strangulations and observed a red linear mark on the right side of B.M.’s neck and extending to the back of her neck. Halencak entered the bedroom of the residence and observed a coaxial cable for a satellite system coming out of the wall. The other end of the cable was detached from the satellite receiver.
Defense investigator Bill Perreira testified B.M. came to his office in December 2014 and told him the police report summarizing her statement was incorrect. She said they had wrestled around and she got tangled in the cords, but defendant never hit or strangled her. B.M. also said she had thrown a television set.
Defendant testified he told Halencak before his arrest that he and B.M. only argued, wrestled, and got tangled in the cords. When B.M. threw the television at defendant, he stepped outside to avoid more fighting. Defendant denied punching or hitting B.M. Defendant denied using a cord to strangle B.M. Defendant explained he did not inflict any injury to B.M. and saw no injury on her. Defendant also denied threatening to kill B.M. Defendant admitted pushing her away several times because she was hitting him. Defendant said B.M. was prone to having violent outbursts. Defendant denied preventing B.M. from leaving. Defendant gave B.M. a pickup truck and registered it under her name so she could come and go as she pleased.
ADMISSION OF TESTIMONIAL HEARSAY
Issues
Defendant argues the trial court erred in relying on section 1370 because it was superseded by Crawford and section 1390. Defendant argues there was no evidence he acted wrongfully pursuant to section 1390, so there is insufficient evidence supporting forfeiture by wrongdoing. Defendant further argues the People failed to demonstrate due diligence in trying to procure B.M.’s presence at trial. We reject these contentions.
Forfeiture by Wrongdoing
The confrontation clause bars admission of testimonial hearsay unless “the declarant is unavailable, and … the defendant has had a prior opportunity to cross-examine.” (Crawford, supra, 541 U.S. at p. 59.) A defendant’s confrontation rights are subject to certain exceptions, including the forfeiture by wrongdoing doctrine, which allows admission of unconfronted testimonial statements “where the defendant ha[s] engaged in wrongful conduct designed to prevent a witness’s testimony.” (Giles v. California (2008) 554 U.S. 353, 366; see Crawford, supra, 541 U.S. at p. 62 [“the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds”]; United States v. Jackson (4th Cir. 2013) 706 F.3d 264, 265 [“so long as a defendant intends to prevent a witness from testifying, the forfeiture-by-wrongdoing exception applies even if the defendant also had other motivations for harming the witness”]; People v. Banos (2009) 178 Cal.App.4th 483, 504.)
California’s counterpart to the forfeiture by wrongdoing doctrine is codified in section 1390. The doctrine of forfeiture by wrongdoing is aimed at protecting the integrity of court proceedings and applies to anyone who obtains the absence of a witness by wrongdoing, regardless of the nature of the wrongdoing. (People v. Jones (2012) 207 Cal.App.4th 1392, 1399.)
Defendant contends the trial court improperly relied on section 1370 in making its ruling; defendant is reading the in limine hearing transcript too literally. In his written motion, the prosecutor cited to and relied on both section 1370 and section 1390 and made arguments based on both statutes. During their oral arguments on the in limine motion, both the prosecutor and defense counsel argued the issue of whether there was evidence defendant acted wrongfully in causing B.M.’s absence at trial. Although the trial court referred to Code of Civil Procedure section 1219, subdivision (b) and cited to sections 240 and 1370 in making its ruling, the trial court also made a finding relating to defendant’s wrongful conduct. Specifically, the court noted defendant’s conduct, while not criminal in nature, caused the witness to become unavailable. Parenthetically, a finding of wrongful conduct by defendant was not necessary for the trial court’s ruling on B.M.’s unavailability as a witness pursuant to section 240. Under section 240, there is no requirement the witness’s unavailability must be caused by someone’s wrongful conduct.
Thus, while the trial court did not expressly rely on section 1390, its ruling included a finding, without expressly calling it so, that defendant had acted wrongfully in causing the victim’s absence as a witness. Consequently, section 1390’s requirement the defendant wrongfully caused the witness’s absence, which is necessary to apply the doctrine of forfeiture by wrongdoing, was satisfied by the court’s implied finding. Remanding the case for a formal finding on section 1390 would serve no purpose because the trial court still complied with the requirements of the statute.
The trial court’s citation to section 1370 also does not indicate a misapplication of the law. Once the doctrine of forfeiture by wrongdoing has been invoked, subdivision (b)(4) of section 1390 requires the court to consider the reliability of the proffered statement. In doing so, a trial court cannot err in relying on the criteria for determining reliability set forth in section 1370. Had the trial court failed to make a finding concerning the wrongfulness of defendant’s conduct, it would not have complied with the requirements of section 1390, and the introduction of the hearsay statement could have constituted a violation of the confrontation clause. The doctrine of forfeiture by wrongdoing acts as an exception to the introduction of testimonial hearsay prohibited by Crawford and its progeny. We therefore reject defendant’s argument the trial court improperly admitted B.M.’s hearsay statements to Deputy Halencak and that section 1370 has been superseded by Crawford.
Evidence of Wrongdoing
Defendant argues insufficient evidence was produced at the in limine hearing to show he acted wrongfully. Although this issue is factually close, we conclude the evidence supports the trial court’s ruling.
The reviewing court determines if there is substantial evidence to support the trial court’s express or implied finding the defendant acted to prevent a witness from testifying. (People v. Banos, supra, 178 Cal.App.4th at p. 502.) Rulings by the trial court on the admissibility of evidence are reviewed for abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043, 1120.)
Although criminal defendants have no duty to assist the state in proving their guilt, they do have a duty to refrain from acting in ways that destroy the integrity of the trial system. (Davis v. Washington (2006) 547 U.S. 813, 833.) For the doctrine of forfeiture by wrongdoing to apply, the defendant must affirmatively engage in conduct designed to prevent the witness from testifying. (Giles v. California, supra, 554 U.S. at pp. 359, 365.) As noted above, conduct causing the absence of a witness satisfies the doctrine of forfeiture by wrongdoing, whatever the nature of the wrongdoing. (People v. Jones, supra, 207 Cal.App.4th at pp. 1396–1397, 1399 [defendant recorded in jail dissuading witness from telling police what he did].)
Wrongdoing under this forfeiture doctrine can include conduct that is otherwise legal, including marriage with a victim to prevent her testimony through invocation of the marital privilege doctrine. (Commonwealth v. Szerlong (2010) 457 Mass. 858, 862–865; U.S. v. Montague (10th Cir. 2005) 421 F.3d 1099, 1102–1103.) Collusion by a defendant with a witness not to testify at a criminal trial also satisfies the doctrine of forfeiture by wrongdoing. (See Commonwealth v. Edwards (2005) 444 Mass. 526, 537–542.)
The trial court noted defendant’s conduct was not criminal but included conduct to put the witness beyond the authority of the court and make her testimony unavailable. At a pretrial hearing, B.M. herself represented to the court she was married to defendant. At another hearing, B.M. told the court she would refuse to testify. B.M. at first attended several court proceedings with defendant, sat with him in court, and left with him at the conclusion of the hearing. The prosecutor made a record to this effect during more than one pretrial hearing without objection from defendant.
Defendant moved with B.M. to Klamath Falls and applied for utilities to the residence in his name. B.M. stopped receiving public assistance in California, but resumed receiving it at her residence in Klamath Falls. Shortly after defendant substituted counsel, the trial court increased his bail. Defendant stated he was homeless and living in his truck, when in fact his vehicle registration was in B.M.’s name and listed their Klamath Falls address.
This is a case where the People had to show, by a preponderance of the evidence, defendant acted wrongfully to prevent B.M. from testifying. Absent a direct statement threatening the witness, showing the intent of a defendant is always difficult. A defendant’s mental state is rarely susceptible to direct proof and must usually be proven circumstantially. (People v. Thomas (2011) 52 Cal.4th 336, 355.) Viewed separately, any piece of the evidence presented by the prosecution to establish defendant’s wrongdoing could appear innocuous. Examined in its entirety, however, there is substantial circumstantial evidence defendant colluded with B.M. so she would not testify at his trial. We find the doctrine of forfeiture by wrongdoing applicable to this case and B.M.’s statement to the investigating deputy to be reliable.
People’s Due Diligence
Defendant argues the People failed to show due diligence in trying to secure B.M.’s presence at trial, and their efforts to do so were insufficient pursuant to section 240. We disagree.
Information from social service agencies indicated B.M. lived at the Klamath Falls address. Deputy Halencak and Investigator Snyder both sought assistance from local authorities in Klamath Falls to locate B.M. at the address she purportedly shared with defendant. Several attempts to locate B.M. by Oregon officials failed. B.M. was not personally served with notice to attend the trial and the prosecutor obtained a body attachment, but the ability to execute it was hampered by Code of Civil Procedure section 1219, subdivision (b).
A similar scenario occurred in People v. Cogswell (2010) 48 Cal.4th 467. There, a woman visiting from Colorado was sexually attacked and testified at the preliminary hearing that Cogswell was her attacker. But she thereafter refused to return to California to testify at trial. The prosecution sought her attendance through the Uniform Act to Secure Attendance of Witnesses from without the State in Criminal Cases (Pen. Code, § 1334 et seq.) (Uniform Act). Although a Colorado court issued a subpoena for the witness’s appearance, she did not appear for trial. The Court of Appeal found the prosecution failed to use due diligence to secure the witness’s presence at trial. The California Supreme Court concluded the prosecution did use reasonable diligence. (People v. Cogswell, supra, at pp. 471, 477–479.) The court in Cogswell noted Code of Civil Procedure section 1219, subdivision (b) was added by the Legislature to prevent the victims of sexual assault or domestic violence from being jailed for contempt for refusing to testify against the attacker. (Cogswell, supra, at p. 478.) The victim in Cogswell refused to return to California. The prosecutor could reasonably conclude that invoking the Uniform Act’s “custody-and-delivery” provision would not have altered the victim’s decision not to testify about the sexual assault and would have been a waste of time and resources. Further, confinement of a sexual assault victim to ensure her presence at the assailant’s trial would not be a reasonable means of securing her presence. (Cogswell, at p. 479.)
The same conclusion is reasonable here even though the People did not seek to employ the Uniform Act. B.M. had professed in open court her refusal to testify. When she was under subpoena to attend court in California and still a resident of this state, she was unavailable for trial on more than one occasion. B.M. married defendant during the course of these proceedings and moved to Oregon with him. Oregon officials could not find B.M. at her residence in Klamath Falls. As in Cogswell, Code of Civil Procedure section 1219, subdivision (b) creates a legal barrier to the use of contempt and ultimately of confinement as a means to secure a witness’s presence at trial. The prosecution’s attempt to employ the Uniform Act in this case would have been just as futile as the use of the Uniform Act turned out to be in Cogswell.
Defendant relies on People v. Foy (2016) 245 Cal.App.4th 328, 349–350, to support his contention the People should have been required to use the Uniform Act here. Foy is distinguishable from this case because it involved a witness from another state who was the victim of second degree robbery, with the defendant using a gun. (People v. Foy, supra, at p. 332.) The witness was not the victim of a sexual assault or domestic violence and Code of Civil Procedure section 1219, subdivision (b) had no bearing on that case. In Foy, the outcome of employing the Uniform Act was not certain or automatic. (Foy, at p. 350.) Here, use of the Uniform Act would have been futile given the witness’s history in failing to attend court proceedings, her vow to never testify, her marriage to defendant, and her move with defendant to Oregon. The People cannot, under these circumstances, be faulted for failing to go through the motion of trying to apply the Uniform Act to an obviously hostile witness with whom defendant colluded to keep from testifying at trial.
DISPOSITION
The judgment is affirmed.


PEÑA, J.
WE CONCUR:



HILL, P.J.



LEVY, J.