Filed 4/15/14 P. v. Martinez CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136817
v.
RICARDO MARTINEZ,                                                    (Solano County
                                                                     Super. Ct. No. FCR280797)
         Defendant and Appellant.


         Defendant Ricardo Martinez was convicted of two counts of murder by lying in
wait after he shot his former domestic partner and her boyfriend. Defendant contends the
trial court erred in admitting hearsay evidence of several of his acts of domestic violence
against the female victim, including a declaration the victim had prepared to support her
application for a restraining order against him. Because we find admission of the
evidence to have been harmless under the standard of Chapman v. California (1967)
386 U.S. 18, we affirm.
                                               I. BACKGROUND
         Defendant was charged in an information, filed August 16, 2011, with two counts
of murder. (Pen. Code, § 187, subd. (a).) Both murders were alleged to have been
committed by means of lying in wait, a special circumstance. (Pen. Code, § 190.2,
subd. (a)(15).) The information also alleged the special circumstance of multiple
murders. (Id., subd. (a)(3).) In addition, defendant was charged with attempted murder
(Pen. Code, §§ 187, subd. (a), 664), two counts of assault with a deadly weapon (Pen.
Code, § 245, subd. (a)(1)), and making criminal threats (Pen. Code, § 422).
       It was not disputed at trial that defendant shot and killed his one-time domestic
partner, Maria Terrones, and a man she was dating, Jose Velarde-Lopez. A primary
witness was Martha Camacho, Maria’s “very good friend[]” for many years and the
domestic partner of Maria’s brother, Arturo Terrones.1 According to Camacho, Maria
had been living with defendant for four or five years before the killings. Over defense
objection, Camacho was permitted to testify about defendant’s abusive relationship with
Maria. Certain of the testimony was known to Camacho only because Maria had told
her—for example, that defendant strictly controlled Maria’s activities, threatened her if
she left him, had attempted to strangle Maria with a phone charger cord, pinched her,
insulted her, and sexually assaulted her. On one occasion, however, Camacho saw
defendant grab Maria by the chin and shove her head into the wall. Camacho said Maria
told her she was “very afraid of living with” defendant, and Maria would only speak with
Camacho when she was away from the house or in a private place.
       In September 2010, Camacho testified, Maria moved out of the apartment she
shared with defendant and moved into the Fairfield apartment Camacho shared with
Arturo. Sometime thereafter, Arturo discovered the brake lines on Maria’s car had been
severed and the oil drained from the engine. As a result, Arturo and Camacho followed
Maria every day as she drove to work. Camacho saw defendant at their apartment
complex often, the first time on the day after Maria moved out of the apartment in which
she and defendant lived. On “four . . . or five” occasions, defendant spoke with
Camacho, asking her to turn Maria out of the apartment. Each time, defendant’s
demeanor was angry, and Camacho told defendant he needed to forget Maria and move
on with his life. Maria told Camacho defendant also had visited Maria’s place of work
and spoken with her manager. At one point, defendant, using a copy of a key Camacho
had given Maria before she left defendant, entered Camacho and Arturo’s apartment.
Defendant hurriedly left when Camacho screamed. After she changed the locks,


       1
       To avoid confusion, we will refer to Maria and Arturo Terrones by their given
names. We mean no disrespect by using the familiar form of address.


                                             2
Camacho continued to see defendant pass by their apartment. Eventually, she went with
Maria to obtain a domestic violence restraining order. The declaration executed by Maria
in support of the restraining order, which was provided to the jury, largely reiterated
matters about which Camacho testified.
       There was other evidence of an obsessive relationship. Arturo testified that, after
Maria moved out, he and Camacho followed her to work because defendant was
following her. One day about a month after Maria moved out, as Arturo parked his truck
outside their apartment, defendant walked up to the truck, grabbed Arturo by the shirt,
and stuck a “big” knife against his chest. He demanded Arturo and Camacho put Maria
out of their apartment. After Arturo refused, explaining Maria “was my sister,”
defendant followed Arturo as he drove to work. Several days later, as Arturo was leaving
for work, defendant approached him and demanded the name and address of the man
Maria was seeing. Defendant said he would return and kill Arturo if he did not provide
the information. Defendant admitted to another person he had been following Maria and
visiting her workplace, and defendant told the police he had warned Maria to “watch
yourself” after she moved out.
       Around 7:00 p.m. on November 12, 2010, Camacho and Maria saw defendant in a
car in the parking area of Camacho’s building. Maria confronted defendant, screaming
that she had a restraining order. He told her “you’re nobody, you’re just a bitch,” and
said he had never seen the order. At this, Maria stood in front of defendant’s car and
sought help from other apartment residents, who used their own cars to prevent him from
leaving. Defendant parked his car, got out and locked it, and ran across the street toward
Arturo, who was standing by the door of his apartment. Defendant threatened Arturo
with a knife before running off. The abandoned car was towed away later that evening.
       After midnight the same night, Maria returned from dinner with Arturo, Camacho,
and Velarde-Lopez. As they approached the door of their apartment, Camacho spotted
defendant in the half-light, standing near a truck in the parking lot a short distance away.
As she watched, defendant bent down and grabbed something from the tire of the truck.
Camacho then urged the group to hurry into the apartment. Defendant walked toward


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them and, from about 15 feet away, began shooting. Camacho and Arturo were able to
run and hide. Maria stayed behind near the apartment and begged defendant to leave
them alone. Defendant shot Maria in the head before chasing down Velarde-Lopez, who
was partially disabled and had fallen while attempting to run. From a distance of less
than 12 inches, defendant shot Velarde-Lopez. Maria slumped against the door of the
apartment next to that of Camacho and Arturo, while Velarde-Lopez was found under an
external staircase three apartments farther on.
       Defendant was eventually caught in New Mexico and admitted the shootings. In
an interview with police, defendant said he had stolen a gun from a neighbor two or three
days before the shooting because he “needed a gun to kill [Velarde-Lopez].” At the time
of the initial confrontation on November 12, defendant noticed that Maria and the others
appeared to be going out. Assuming they would return to the apartment complex later
that night, he returned with the loaded gun to wait. About an hour passed before the
group returned. When they were almost to the door of the apartment, he attempted to
intercept them. He said he chased and shot Velarde-Lopez, claiming Maria died because
she “got in the way” as he was shooting at Velarde-Lopez. Defendant explained that he
was “deep . . . in love” with Maria and was angry that she was dating another man. If he
had the gun with him at the time of the earlier confrontation that evening, he said, he
would “probably [have] use[d] it right there.”
       The jury convicted defendant of both murder charges and found true the special
circumstance allegations of multiple murders and lying in wait as to each murder, but it
acquitted him of the attempted murder of Arturo. He was also found guilty of making
criminal threats and one of the two counts of assault with a deadly weapon against
Arturo. Consecutive sentences of life without the possibility of parole were imposed for
the murder charges.
                                    II. DISCUSSION
       Defendant contends the trial court erroneously admitted hearsay evidence of his
acts of domestic violence against Maria in the testimony of Camacho and the declaration
by Maria in support of her request for a restraining order. We review a trial court’s


                                             4
admission of evidence for abuse of discretion. (People v. DeHoyos (2013) 57 Cal.4th 79,
131.)
        In response to defendant’s motion to exclude this evidence, the trial court
tentatively ruled it generally admissible under Evidence Code2 section 1109, subject to
other objections, on the grounds it was “very probative . . . as to whether the defendant
harbored premeditation and deliberation.” The court then held a hearing under
section 402 to determine the reliability of the various statements.
        At the hearing, Camacho testified that she rarely saw Maria for any length of time,
but she often spoke with Maria by telephone during her lunch hour. Prior to Maria’s
moving in with Camacho and Arturo, Maria had described to Camacho threats defendant
had made. She also had told Camacho that defendant had attempted to strangle her, had
dropped a weight on her leg causing a bruise, pinched her while she was sleeping, and
had sexually assaulted her on more than one occasion. Ten days before the killing,
Camacho went with Maria to the courthouse to obtain the restraining order. Speaking
English, Maria essentially dictated the declaration to a person at the courthouse, at the
same time telling Camacho in Spanish what she was saying. At that time, Maria
described other acts of violence and obsessive behavior by defendant.
        The trial court found the statements in the declaration, but not Maria’s
independent statements to Camacho, to be “testimonial” for purposes of Crawford v.
Washington (2004) 541 U.S. 36 (Crawford). It nonetheless ruled the declaration
admissible under sections 1109, 1250, and 1370, concluding the confrontation clause
objection had been forfeited pursuant to the doctrine of forfeiture by wrongdoing
articulated in Giles v. California (2008) 554 U.S. 353 (Giles).3 The court found

        2
            All further statutory references are to the Evidence Code.
        3
          Section 1109 states that, in a prosecution for a crime involving domestic
violence, evidence of other acts of domestic violence by the defendant is not made
inadmissible by section 1101, which precludes the admission of evidence of a character
trait to prove conduct in conformance with the trait. (§ 1109, subd. (a)(1).) Section 1250
allows the admission of a declarant’s hearsay statement to prove the declarant’s state of
mind or physical sensation. (Id., subd. (a)(1).) Section 1370 allows the admission of

                                                5
defendant had killed Maria in part to prevent her from obtaining the restraining order or
testifying at a hearing on the restraining order scheduled for November 24. The
independent statements to Camacho were ruled admissible solely on the basis of
section 1109. The court declined to exclude any evidence under section 352, although it
noted the evidence could become cumulative.
       We conclude the trial court erred in admitting this evidence. The declaration and
any information Camacho learned only because she was present when the declaration was
made are testimonial in nature under Crawford, as the court found. (E.g., People v.
Streeter (2012) 54 Cal.4th 205, 239–240 (Streeter), disapproved on other grounds as
stated in People v. Harris (2013) 57 Cal.4th 804, 834 [Attorney General concedes
statements in restraining order declaration are “testimonial” under Crawford].)4
Although, as Giles holds, a defendant’s confrontation clause right to exclude such
hearsay is forfeited if the defendant killed the declarant for the purpose of preventing
testimony or cooperation with law enforcement (People v. Banos (2009) 178 Cal.App.4th
483, 501–502), there was no substantial evidence to support the trial court’s attribution of
that motive to defendant here. Because defendant learned Maria had already obtained the
restraining order on the day of the killings, he cannot have killed her to prevent her from

hearsay statements describing the infliction of physical injury on the declarant under
specific circumstances indicating its trustworthiness. (Id., subds. (a)(1)–(5).)
       4
         Although the Attorney General conceded the testimonial nature of precisely this
type of evidence in Streeter, she contests the issue in this appeal. The Attorney General
explains her decision to contest the issue here by pointing to the Supreme Court’s post-
Streeter statement in People v. Dungo (2012) 55 Cal.4th 608, that the primary purpose of
a statement must pertain to a criminal prosecution to be “testimonial.” (Id. at p. 619.)
While we acknowledge the unrestricted nature of the statement in Dungo, the document
there under consideration was an autopsy report, which the court described as having
other, potentially nontestimonial uses. (Id. at p. 621.) We do not believe the “criminal
prosecution” requirement was intended to apply when a statement claimed to be
testimonial is, literally, testimony. Nothing in Crawford suggests that testimony given
outside criminal proceedings is for that reason alone not testimonial. (Crawford, supra,
541 U.S. at pp. 51–52 [“Various formulations of this core class of ‘testimonial’
statements exist: . . . ‘extrajudicial statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confessions.’ ”].)


                                             6
obtaining the restraining order, as the trial court suggested. Further, because it is
undisputed defendant was never served with the restraining order documents, there is no
evidence he was even aware of the hearing scheduled for November 24, let alone that he
killed Maria to prevent her from appearing there.
       The Attorney General posits various statutory bases for admitting the declaration,
such as sections 1202 and 1370. So long as the declaration was used to prove the truth of
its contents, as it was here, these statutory bases could not excuse the confrontation clause
violation. (See People v. Blacksher (2011) 52 Cal.4th 769, 808, fn. 23 [only hearsay
statements admitted for purpose other than proving truth of matter asserted do not
implicate the confrontation clause].) Further, section 1202, the primary statute on which
the Attorney General relies, is not an independent hearsay exception. It allows otherwise
admissible hearsay to be used to impeach another hearsay statement. (Blacksher, at
p. 806 & fn. 22.) Such was not the case here.
       The Attorney General argues Maria’s statements about defendant’s violent acts,
both those made in the declaration and to Camacho, were admissible under People v.
Riccardi (2012) 54 Cal.4th 758 (Riccardi) for the nonhearsay purpose of providing
evidence of Maria’s state of mind—her fear of defendant. While it is certainly true
Riccardi holds that the violent acts of a domestic abuser can be admitted as circumstantial
evidence of the abused person’s fear (id. at pp. 822–823), we are reluctant to affirm their
admission on this theory. Given defendant’s confession of responsibility for the killings,
Maria’s fear of him was only tangentially relevant to the disputed issues at trial, and there
was a good deal of other admissible evidence to prove her fear, including her decision to
move out, her filing for a restraining order, and her unequivocal statement of fear to
Camacho. The admission of evidence of acts of violence to prove a fact of marginal
relevance that was firmly established by other, less inflammatory evidence carries a
substantial risk of the type of prejudice that would preclude its admission under
section 352. (People v. Lopez (2013) 56 Cal.4th 1028, 1059 [“ ‘ “The ‘prejudice’
referred to in Evidence Code section 352 applies to evidence which uniquely tends to



                                              7
evoke an emotional bias against the defendant . . . and which has very little effect on the
issues.” ’ ”].)
       The court also appears to have erred in admitting the remaining hearsay evidence.
Section 1109, cited by the trial court, does not independently authorize the admission of
hearsay evidence. The Attorney General acknowledges section 1370 was insufficient to
support their admission, since they were neither written nor recorded nor made to medical
or law enforcement personnel, as required by subdivision (a)(5). The Attorney General
argues the nonhearsay purpose of proving Maria’s state of mind, but we are skeptical of
that justification for the reasons stated above.
       Although the admission of the hearsay evidence of domestic violence was an
abuse of discretion, we conclude it was not prejudicial under the “harmless beyond a
reasonable doubt” standard of Chapman v. California, supra, 386 U.S. 18. (See People
v. Pearson (2013) 56 Cal.4th 393, 463 [applying Chapman standard in these
circumstances].) The prosecutor relied on this evidence primarily to prove premeditation,
arguing defendant killed Maria from anger at her decision to leave and her refusal to
return to the abusive and controlling relationship. As discussed above, there was
substantial admissible evidence to demonstrate defendant’s obsessive relationship with
Maria and his violent anger over her decision to move. Camacho watched as defendant
pushed Maria’s head into a wall on the day she moved from the apartment. Defendant
frequently followed her to work, apparently sabotaged her vehicle, haunted her new
residence, admitted threatening her, and twice assaulted Arturo in connection with her.
He broke into the apartment in which Maria was staying, and he repeatedly sought to
persuade Arturo and Camacho to turn her out of the apartment. As Maria told Camacho,
in a statement admissible as evidence of her state of mind, she was afraid of defendant,
and she obtained a restraining order to keep him away. The acts of violence described by
Maria to Camacho certainly added to the evidence of a violently obsessive relationship,
but the evidence of such a relationship was already substantial. In an essentially identical
situation, the court in Riccardi held that admission of this type of evidence in a murder
trial to be harmless, given the substantial admissible evidence of “[the defendant’s]


                                               8
numerous acts of stalking [the victim] and inciting her fear.” (Riccardi, supra, 54 Cal.4th
at p. 829.)
       To the extent defendant claims the evidence of several violent acts might have
prejudiced the jury against him, the jury’s acquittal of him on some of the charges, the
attempted murder of Arturo and the second assault, suggests it dispassionately evaluated
the evidence. Those acquittals were not the act of a jury inflamed by passion against
defendant. Further, the evidence of domestic violence merely added to the evidence of
other bad acts by defendant of which there was admissible evidence. Defendant admitted
having intentionally killed a defenseless Velarde-Lopez, and there was substantial
evidence from which the jury could have concluded he did the same to Maria. He
menaced Arturo with a knife and threatened to kill him, and he pushed Maria’s head
against a wall. He stalked Maria and sabotaged her car. The hearsay evidence provided
by Camacho of his earlier violent acts toward Maria would not have added materially to
the negative impact of this admissible evidence.
       Defendant claims the evidence of domestic violence prejudiced the jury’s
determination of the issues of premeditation and deliberation, but the evidence on these
issues was simply too strong to have been materially influenced by the hearsay evidence
of domestic violence. As noted above, there was substantial admissible evidence of
defendant’s anger and obsession, including Maria’s professions of fear. Defendant
himself stated that he formed the intent to kill Velarde-Lopez two days before the
killings, when he stole the gun, and said he waited for an hour for the group to return with
the admitted intent of ambushing them. The evidence of domestic violence added little to
this more direct evidence of premeditation.
       Defendant argues admission of the declaration was prejudicial because the
prosecutor referred to statements in the declaration several times in closing argument.
While we acknowledge these references, we conclude the prosecutor’s use of the
declaration was not prejudicial because, had the trial court excluded the declaration, the
prosecutor would have been able to cite other, admissible evidence to make the same
points. This is true, for example, of the prosecutor’s reference to the declaration to prove


                                              9
an abusive and controlling relationship, defendant’s threat to kill Arturo, and his pushing
Maria’s head against the wall. Accordingly, the prosecutor did not rely on hearsay
evidence to prove facts that were not otherwise present in the record through properly
admitted evidence. The presence of alternative, admissible evidence distinguishes this
situation from that of People v. Gomez (1999) 72 Cal.App.4th 405, disapproved on other
grounds in People v. Brown (2004) 33 Cal.4th 892, 908, cited by defendant, in which the
prosecutor relied during closing on inflammatory expert testimony that should have been
excluded as irrelevant because it was not supported by any evidence in the record. (Id. at
pp. 415–416, 419.)
       Because we find admission of the declaration and hearsay statements to have been
harmless under the constitutional standard for prejudice, we need not address defendant’s
claim he was denied due process by the admission of the evidence.
                                   III. DISPOSITION
       The judgment of the trial court is affirmed.

                                                 _________________________
                                                 Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Becton, J.*




*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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