Filed 6/17/20
                              CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                              (Yolo)
                                               ----




 THE PEOPLE,                                                     C082186

                  Plaintiff and Respondent,             (Super. Ct. No. CRF155128)

          v.

 JESSIE RENEAUX,

                  Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Yolo County,
David Rosenberg, Judge. Affirmed in part and remanded in part.

      Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant
and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Kathleen A. McKenna, Supervising Deputy Attorneys General, F. Matt Chen, Deputy
Attorney General, for Plaintiff and Respondent.




                                                1
                               SUMMARY OF THE APPEAL
       A jury found defendant, Jessie Reneaux, guilty of inflicting corporal injury on his
girlfriend, L.E., with whom he was cohabiting, guilty of false imprisonment of his
girlfriend, and guilty of dissuading his girlfriend from testifying against him. He appeals
arguing that: 1) the trial court violated his right to confront witnesses against him by
allowing the girlfriend’s out of court testimonial statements to be admitted into evidence;
and, 2) the trial court abused its discretion when it imposed consecutive rather than
concurrent terms.
       We hold the defendant forfeited by his own wrongdoing his Sixth Amendment
right to confront and cross-examine L.E. and we hold that the trial court did not abuse its
discretion in sentencing the defendant to consecutive prison terms.
       In supplemental briefing, defendant contends in light of the recent passage of
Senate Bill No. 1393 (SB 1393), this matter must be remanded to permit the trial court to
consider whether it should exercise its newly-legislated discretion to strike or dismiss the
prior serious felony conviction enhancements imposed under Penal Code section 667,
subdivision (a) - statutory section references that follow are to the Penal Code unless
otherwise set forth. The People correctly agree.
       We affirm the judgment of conviction but remand the matter to the trial court for
the limited purpose of allowing the trial court to exercise its sentencing discretion under
sections 1385 and 667, subdivision (a) to strike or dismiss the prior serious felony
conviction enhancements.

                                           FACTS
       Defendant began living with his girlfriend L.E. in June 2015. Their landlord,
Robert Clark, lived in a separate building on the same lot. From June to August, Clark
grew concerned for E.’s safety because he would hear incidents of arguing, banging,
shouting, “and stuff.”



                                              2
       On August 13, Officer David Gonzalez responded to a call of vandalism at the
property. While there, he spoke with E. She was crying and very emotional. Once she
regained her composure, E. informed Gonzalez she and defendant had gotten into an
argument while she was getting ready to go to work. He became very angry, threw things
around the house, and punched a hole in the wall. As she went to get in her car to leave
and go to work, defendant followed her and continued yelling at her. When she got in
her car, he punched the windshield and cracked it, he punched the roof and dented it, and
got into the car and damaged the ignition. She felt she was not able to leave. She told
Gonzalez she was afraid for her life and did not want defendant to hurt her. She called
friends to come help her and defendant left. Gonzalez’s partner, Corporal Ramos, tried to
start the car and it did not start.
       About two weeks later, in the early morning of August 28, Clark again heard
shouting and banging from defendant’s apartment. His daughter called law enforcement
to report the disturbance. Officer Hermosillo went to the apartment, knocked loudly on
the door and announced himself, but no one answered. He had dispatch attempt to call
the reporting party, but they were not able to reach her.
       E. had arrived home around 3:00 a.m., and defendant was in the bedroom writing a
letter. She walked into the bedroom and he yelled at her, “Fucking bitch. I fucking hate
you.” He got up, grabbed her, and pushed and pulled her around the apartment.
Eventually, E. went into the bedroom, laid down, and cried. Later, when officers arrived
at the apartment, defendant saw them through the window. He grabbed E., held her
down, put his hand on her mouth, and told her to shut up. This is why she did not
respond when Hermosillo knocked on the door. Defendant then punched holes in the
wall, used a knife to cause additional damage, threw E.’s belongings out the window, and
screwed the door closed. E. was afraid for her safety and felt trapped.
       The next morning, Clark went to the apartment for a maintenance call. When he
called and later knocked on the door, neither defendant nor E. answered. Clark was

                                             3
concerned, particularly in light of the disturbance the night before, and he called the
police. Eventually, defendant and E. answered the door. Clark saw bruising on E. and
asked defendant about damaging the apartment. Clark told the 911 dispatcher that when
officers came out the night before, defendant prevented E. from answering the door, and
she now had bruises on her arm. He stated she wanted to file a report and document the
assault. He also told dispatch that defendant had walked off when he had been
confronted about damage to the apartment. After the officers arrived, E. answered the
door. She appeared in distress, had bruises on her arm, and reported her jaw was sore
because defendant had been preventing her from allowing officers entry into the
apartment.
         Officer Hatcher was one of the officers who went to the property after Clark’s call.
Hatcher noticed E. had visible bruising on her arms and jaw line. She appeared scared,
hesitant, and uncomfortable. Based on the events as E. reported them, and her statement
that she was afraid for her safety, Hatcher helped her obtain an emergency protective
order.
         On September 2, 2015, E. reported to law enforcement that defendant had come to
the house, trying to “make peace” before turning himself in. She reported they argued
prior to him leaving.
         Defendant was arrested on September 9, 2015.
         On September 9, 2015 and again on January 9, 2016, defendant called E. from the
jail. The pertinent details of those calls are set forth, post.
         On September 22, 2015, E. requested a copy of the police report from August 28.
Sometime within two weeks after defendant’s arrest, E. called Hatcher and left a
voicemail. When Hatcher spoke with E., E. stated she wanted to change the report and
that what Hatcher had written down was not exactly what had happened. She did not
elaborate further. Also on September 22, 2015, E. called the district attorney’s office to
say she had lied and was told to call the police.

                                                4
       E. refused to testify at trial.

                                    LEGAL PROCEEDINGS
       An information charged defendant with dissuading a witness (§ 136.1 - count 1);
two counts of false imprisonment (§§ 236 & 237, subd. (a) - counts 2 & 4); infliction of
corporal injury on a cohabitant (§ 273.5, subd. (a) - count 3); and, vandalism (§ 594,
subd. (a)(1) - count 5). The information also alleged a repeat offender enhancement as to
count 3 (§ 273.5, subd. (e)(1)), that defendant had a prior strike conviction (§ 667, subds.
(c) & (e)(1)), a prior serious felony conviction (§ 667, subd. (a)(1)) and had served a prior
prison term (§ 667.5, subd. (b)).
       A jury found defendant guilty on counts 1 through 3 but was unable to reach a
verdict on counts 4 and 5. In bifurcated proceedings, the trial court found all the
enhancement allegations true.
       The trial court sentenced defendant to an aggregate term of 21 years four months
as follows: the midterm of four years, doubled for the strike to eight years, for inflicting
corporal injury with a repeat offender allegation, in count three, as the principal term; the
midterm of three years, doubled for the strike to six years, for his conviction of
dissuading a witness in count one; a consecutive term of eight months, one-third of the
midterm, doubled for the strike to one year four months, for false imprisonment in count
two, plus a sentence enhancement of five years to be served consecutively for a prior
serious felony conviction. The court added a consecutive one-year term for the prior
prison term enhancement.




                                              5
                                        DISCUSSION

                                               I

                                 Forfeiture-by-Wrongdoing

        Defendant contends the admission of E.’s hearsay statements made to law
enforcement violated his Sixth Amendment right to confront the witnesses against him.
He contends the trial court erred in finding the doctrine of forfeiture by wrongdoing
applied which rendered these statements admissible, as there was not substantial evidence
he intended to make E. unavailable to testify and the independent advice of her court
appointed attorney is what caused her refusal to testify.

        A.     Procedural Background

        The People filed a motion in limine seeking to admit E.’s statements to Hatcher
and Gonzalez. The People argued defendant had forfeited his confrontation rights by
discouraging the victim from attending hearings and encouraging her to call authorities
and claim she had lied in her previous reports; that is, forfeiture by wrongdoing.
Attached to the motion were transcripts of two jail calls from defendant to E.
        Exhibit A was a portion of the September 9 phone call referred to above. Exhibit
B was an excerpt from the conversation between defendant and E. on January 9, 2016.

        1.     The September 9, 2015 Call

               The transcript of this call (Exhibit A) set forth the following:
        “[Defendant]: You need to call, baby, and say you made another false report,
that’s it.
        “[E.]: OK.
        “[Defendant]: And that this was all a fuckin’ lie baby. Baby?
        “[E.]: Alright.




                                               6
       “[Defendant]: That’s the only way, I’m telling you, that’s the only fuckin’ thing
you can do, baby. I’m telling you because I fuckin’, baby, I wanna fuckin’ marry you,
and I wanna fuckin’ be with you but[--]
       “[E.]: I know baby.
       “[Defendant]: If I go to fuckin’ prison, [E.], and I don’t have you anymore, baby,
I don’t wanna fuckin’, I don’t wanna fuckin’ be out.
       “[E.]: I know baby. You’re not going. I’m gonna, I’m getting you out.
       “[Defendant]: Baby, for real.
       “[E.]: Huh?
       “[Defendant]: Look at me baby. You’re the only place I wanna fuckin’ be, baby,
is in your fuckin’ arms.
       “[E.]: I know baby.
       “[Defendant]: C’mon [E.]. Go fuckin’ do this baby.
       “[E.]: I will. I’m going to do it tomorrow morning, I promise.”

       2.     The January 9, 2016 Call

       Exhibit B was a selected transcript of a second call on January 9, 2016:
       “[Defendant]: So you got me though?
       “[E.]: For sure.
       “[Defendant]: Alright, I love you babe.
       “[E.]: No worries. I love you too. Alright, I’m coming, am I gonna come to see
you? Can I come see you like Tuesday or something?
       “[Defendant]: No.
       “[E.]: Huh?
       “[Defendant]: What?
       “[E.]: I’m gonna come see you Tuesday or something[.]
       “[Defendant]: No.


                                            7
       “[E.]: Why?
       “[Defendant]: What do you mean, ‘why?’
       “[E.]: Well what’s Tuesday? Is it on Wednesday?
       “[Defendant]: I have court Tuesday, Wednesday and Thursday.
       “[E.]: That . . . it says the 14th.
       “[Defendant]: I got court Tuesday, Wednesday, Thursday.
       “[E.]: Well, my paper says the 14th.
       “[Defendant]: Well, what does that mean?
       “[E.]: Well, I didn’t know, I just figured . . . so you have it for three days? That’s
ridiculous.
       “[Defendant]: Yeah.
       “[E.]: Oh, I didn’t know that.”
       The People argued in the September 9 call, defendant attempted to interfere with
the justice system by encouraging E. to recant and in the January 9 call defendant
suggested she should not appear for court at the upcoming trial readiness conference on
January 14.
       In arguing the motion, the People noted E. had been subpoenaed for a trial
readiness conference on January 14 and failed to appear. A warrant had been issued and
law enforcement had been unable to find her.
       Defense counsel argued E. in fact lied and made a false report, and defendant was
not threatening her, but asking her to correct the record. Counsel also argued there was
no inference of a threat, intimidation or coercion for E. to not come to court.
       The trial court ruled the hearsay statements to Gonzalez and Hatcher were
admissible pursuant to the forfeiture by wrongdoing doctrine.
       Later in the hearing, E. appeared in court with appointed conflicts counsel,
attorney Spangler. (The record does not reflect attorney Spangler’s first name.) Spangler
told the court that E. was not willing to testify. Spangler said she would be asserting her

                                              8
Fifth Amendment privilege against self-incrimination because the prosecution could not
offer her “effective immunity since there’s nothing to preclude them from charging her
with perjury based on whatever testimony she gives. [¶] . . . if they don’t believe she
testified truthfully.” Spangler also said that even with immunity, E. would not testify.
       At the People’s request, the trial court held an Evidence Code section 402 hearing.
E. took the witness stand, gave her name and date of birth, and refused to answer any
other questions. The People said they would offer her “use immunity.” She continued to
refuse to answer questions. Spangler stated, “she’s not going to answer any questions
period. That’s her instruction to me. However on the legal side of this there is no
warranty from the prosecution, nor can there be, that if they believe she does not testify
truthfully that she would not be prosecuted for perjury. The prosecution cannot
immunize her from perjury, and she has no control over what they believe is perjury or
not.” The trial court clarified, even if she were given an “all encompassing” immunity,
she would not testify. Spangler stated, “That is correct, and those are her instructions to
me.” Given E.’s refusal to testify, even with a grant of immunity, the trial court held her
in contempt of court.
       The prosecution called E. as its first witness. She answered a few general
questions about where she lived. When asked where she was living in August 2015, she
answered, “On the advice of my counsel, I claim the Fifth Amendment. I’m not
answering any more questions.” The People indicated they were willing to offer her a
grant of immunity. E. continued to claim her Fifth Amendment privilege. The trial court
found the privilege did not apply and ordered her to testify. She refused. The trial court
instructed the jury E. did not have the right to refuse to testify and they could consider
that fact in their deliberations.




                                              9
       B.     Standard of Review

       Our standard of review is de novo as to those parts of the appeal that raise
questions of law and mixed questions of law and fact. “In the constitutional realm . . .
[the United States Supreme Court has] often held that the role of appellate courts ‘in
marking out the limits of [a] standard through the process of case-by-case adjudication’
favors de novo review even when answering a mixed question primarily involves
plunging into a factual record. [Citations.]” (U.S. Bank N.A. v. Vill. at Lakeridge, LLC
(2018) __ U.S. __ [200 L.Ed.2d 218, 227, fn. 4], italics omitted.)
       We defer to the trial court’s findings of fact and, on review, we apply the
substantial evidence standard to those factual findings. (U.S. Bank N.A. v. Vill. At
Lakeridge, LLC, supra, __ U.S. __ [200 L.Ed.2d at p. 227]; see People v. Kerley (2018)
23 Cal.App.5th 513, 559; People v. Banos (2009) 178 Cal.App.4th 483, 486, People v.
Cromer (2001) 24 Cal.4th 889, 900 [when reviewing prosecution’s failed efforts to locate
a missing witness, historical facts are subject to substantial evidence review]; People v.
Majors (1998) 18 Cal.4th 385, 417 [when reviewing for juror misconduct, credibility
determinations and findings on questions of historical fact subject to substantial evidence
review]; People v. Jones (1998) 17 Cal.4th 279, 296 [when reviewing voluntariness of
confession, details of interrogation are subject to substantial evidence review]; People v.
Alvarez (1996) 14 Cal.4th 155, 182 [when reviewing denial of motion to suppress, court’s
findings on historical fact are reviewed for substantial evidence].)
       In this case, the resolution of this matter is predominantly factual. The primary
legal questions, whether the statements were testimonial and whether E. was unavailable
(People v. Nelson (2010) 190 Cal.App.4th 1453, 1466; Cromer, supra, 24 Cal.4th at
pp. 896-901), are undisputed by the parties. The facts of the content of the phone calls
and E.’s refusal to testify are also undisputed.




                                              10
       The dissent raises a legal question we must resolve, that is, whether the rule of
forfeiture by wrongdoing applies in light of the evidence adduced at trial. We address
that question, post.
       We must uphold the trial court’s factual findings if the record contains evidence
that is reasonable, credible and of solid value. (See People v. Johnson (1980) 26 Cal.3d
557, 577–578.) The substantial evidence standard “is deferential: ‘When a trial court’s
factual determination is attacked on the ground that there is no substantial evidence to
sustain it, the power of an appellate court begins and ends with the determination as to
whether, on the entire record, there is substantial evidence, contradicted or
uncontradicted, which will support the determination . . . .’ [Citation.]” (People v.
Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. omitted, italics omitted.)
       Here, at least one fact was in dispute—defendant’s intent. (See People v. Maciel
(1925) 71 Cal.App. 213, 218 [specific intent is a question of fact].) The court had to
decide whether defendant by his statements in the phone calls intended to dissuade the
witness from testifying against him. Defendant argued in the trial court that his
statements had two possible interpretations. Either he was trying to persuade the witness
to recant her statements to the police and now tell a lie, as the prosecution argued, or he
was criticizing her for lying and was trying to persuade her now to tell the truth.
Defendant argued it was the latter of the two interpretations; he intended for the witness
to talk with law enforcement and cooperate, not absent herself from trial. As noted
earlier, the court found defendant intended to dissuade the witness from testifying.

       C.      Analysis

       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 v. Washington (2004) 541 U.S. 36, 59 [158 L.Ed.2d 177]
(Crawford).)


                                             11
       But a defendant’s confrontation rights are subject to certain exceptions, including
forfeiture by wrongdoing, 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 [171 L.Ed.2d 488]
(Giles).)
       “In Giles, the court held that the doctrine of forfeiture by wrongdoing permits
admission of unconfronted statements of an unavailable witness only if the trial judge
finds by a preponderance of the evidence that the defendant by a wrongful act made the
witness unavailable with the intent of preventing the witness from testifying. (Id.[,
554 U.S.] at pp. 358-368.) The goal of the doctrine was to remove 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 the courts to protect the integrity
of their proceedings.” ’ (Id. at p. 374.)” (People v. Kerley, supra, 23 Cal.App.5th at
pp. 549–550.)
       This doctrine is codified in California Evidence Code section 1390, which
provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the
statement is offered against a party that has engaged, or aided and abetted, in the
wrongdoing that was intended to, and did, procure the unavailability of the declarant as a
witness.”
       The underlying factual issues to be resolved by the trial court in applying the
forfeiture by wrongdoing doctrine include: (1) whether by his wrongful conduct the
defendant caused a witness to be unavailable to testify; and (2) whether the defendant
intended to cause the witness to be unavailable. (Giles, supra, 554 U.S. at pp. 358-360;
Banos, supra, 178 Cal.App.4th at p. 502.)
       About a week before he was arrested, defendant went to E.’s apartment and spoke
with her to “make peace.” On the day he was arrested, he called E. from jail. He told her
she needed to call law enforcement and tell them she had made a false report. She agreed

                                             12
to make the call. He continued, that she needed to tell law enforcement it was all a lie.
She agreed to tell them that. He told her it was “the only way,” the only thing she could
do, because he wanted to marry her, and if he went to prison he would not have her
anymore. She promised she would get him out. He told her in his arms was the only
place he wanted to be. He urged her to “fuckin’ do this baby.” She again promised she
would.
         Shortly after that phone call, E. contacted the police department and told them she
wanted to change her story, and what they had in their report was not accurate. She also
contacted the district attorney’s office and informed them she had lied in the report.
Although E. had earlier contact with law enforcement after the incident between herself
and defendant, she did not indicate she wanted to recant her statements or had lied in her
statements until after the September 9 phone call with defendant; a phone call in which
he encouraged her to not cooperate with law enforcement and cajoled her by promising to
marry her, but only if she could get him out of jail by not cooperating with law
enforcement. It was reasonable to infer from this evidence, that defendant’s statements
telling her not to cooperate with law enforcement and promising to marry her but only if
she got him out of jail were intended to, and did, cause E. to recant her statements to law
enforcement, and later, to refuse to testify despite a grant of immunity.
         A trial readiness conference was scheduled for January 14, 2016. On January 9,
2016, the Saturday before the trial readiness conference, defendant called E. again.
Although the trial court was not particularly persuaded by this phone call, in our
substantial evidence review, we are not precluded from considering this evidence in
determining whether substantial evidence supports the trial court’s finding. Our task is
not to decide whether the trial court’s decision is the only reasonable outcome given the
facts. Rather, we must decide whether, viewing the facts in the light most favorable to
the decision, a rational decision maker could find as the trial court did. (See People v.
Johnson, supra, 26 Cal.3d at pp. 576-577.)

                                              13
       In the January 9th call, defendant confirmed with her, “you got me, though?” She
assured him she did. They discussed his upcoming court dates, she told him her “paper”
told her the date was the 14th. He asked what that meant, and she said she did not know.
He then asked if she remembered what he told her. She said she knew, “no worries.”
       It is a reasonable inference that the “paper” E. was referring to in the January
phone call was the subpoena which had been issued for her to appear at that January trial
readiness conference. It is also a reasonable inference that defendant’s inquiry whether
E. “had him,” his challenge to what the reference to the subpoena meant, and his question
whether she remembered what he had told her, were intimations that she not appear at the
hearing. And, she did not appear at that hearing.
       E. remained unavailable until after the trial court ruled her prior statements to
Gonzalez and Hatcher were admissible under the forfeiture by wrongdoing doctrine. At
that point, she appeared and made clear through counsel she would not testify, even with
a grant of immunity. Counsel repeatedly indicated E. had instructed him, she was not
going to answer any questions. The trial court held her in contempt of court and required
her to go to counseling. Upon return to court, E. continued to state she refused to testify,
irrespective of a grant of immunity.
       The trial court, upon being asked to reconsider its earlier evidentiary ruling, again
found there was sufficient evidence defendant intended to dissuade the witness from
testifying. The trial court also found E.’s current refusal to testify, even with a grant of
immunity, reinforced its earlier conclusion that defendant’s conduct was the cause of her
refusal to testify, i.e. her unavailability. The trial court spoke with E.’s counsel again,
and counsel reiterated that irrespective of his advice and the grant of immunity, E. had no
intention of testifying. When the trial court found E.’s claim of Fifth Amendment
privilege invalid and ordered her to testify, E. continued to refuse to testify and claim a
Fifth Amendment privilege.



                                              14
       On the record before us and given the above, we find there is substantial evidence
to support the trial court’s ruling that defendant caused, and intended to cause, E.’s
unavailability as a witness and her refusal to testify against him at trial. Defendant
therefore forfeited by his own wrongdoing his claim that his constitutional right to
confront the witnesses against him was violated in this trial.
       Our dissenting colleague protests that in this matter, there is insufficient evidence
of wrong-doing on defendant’s part, where defendant engaged only in cajoling but
nonthreatening behavior, noting that the majority of cases in which the doctrine has been
applied has involved violence or threats of violence toward a witness or a similar type
behavior. Specifically, the dissent is of the opinion that this cajoling and urging is not
comparable to the conduct other courts have found to constitute forfeiture of a
constitutional right. Defendant’s conduct, although arguably shameful and wrong, and
even illegal such that the jury found him guilty of dissuading a witness after hearing the
much longer version of the complete call recorded September 9, does not constitute
wrongdoing of the nature contemplated by the doctrine at issue.
       Our colleague concludes that extending the doctrine to exhortations to stop lying
and to reveal false reports previously given, and to expressions of love and desire, no
matter whether they appear contrived or genuine, would stretch the doctrine beyond its
intended limits. The dissent does not explain what those intended limits are.
       We recognize defendant’s statements here were not explicitly threatening or
directive. However, consistent with the broad construction of the elements required for
the application of this doctrine, and the underlying purpose to prevent defendant from
undermining the judicial process, we do not find such explicit behavior to be necessary.
This view is particularly apt in the context of domestic violence offenses and abusive
relationships, which typically include an element of inherent psychological coercion, and
the reality that “[t]his particular type of crime is notoriously susceptible to intimidation or



                                              15
coercion of the victim to ensure that [the witness] does not testify at trial.” (Davis v.
Washington (2006) 547 U.S. 813, 832-833 [165 L.Ed.2d 224].)
       Whether a defendant’s conduct constitutes “wrongdoing” depends not necessarily
on its character, but on the defendant’s intent and whether his actions caused the witness
not to appear. It is true that most of the reported cases involving this exception to the
Confrontation Clause involve serious criminal conduct, but that does not preclude courts
from finding that nonthreatening conduct such as occurred here qualifies as wrongdoing
under the appropriate legal standard where the defendant acted with the intent to procure
the witness’s absence from court.
       In Carlson v. Attorney General of California (9th Cir. 2015) 791 F.3d 1003
(Carlson), the Ninth Circuit Court of Appeals explained the forfeiture-by-wrongdoing
exception, the required showing of intent, and, of importance here, the type of action that
constitutes wrongdoing. We quote Carlson at length:
       “The forfeiture-by-wrongdoing doctrine is an exception to the Confrontation
Clause’s protections. That doctrine permits the introduction of a testimonial statement by
an unavailable witness if the preponderance of the evidence shows that the ‘witness is
absent by [the defendant’s] own wrongful procurement.’ (Reynolds v. United States
(1878) 98 U.S. 145, 158 [25 L.Ed. 244] [(Reynolds)]; United States v. Johnson[, supra,
767 F.3d at pp.] 822-823 (holding that forfeiture by wrongdoing must be proven by a
preponderance of the evidence).
       “The leading post-Crawford case on forfeiture by wrongdoing, Giles, explains that
the rationale behind the rule is avoidance of ‘an intolerable incentive for defendants to
bribe, intimidate, or even kill witnesses against them.’ (554 U.S. at p. 365.) Relying on
that rationale, Giles rejected a theory of forfeiture by wrongdoing that would have
permitted unconfronted testimonial statements to be admitted against a defendant any
time the defendant had by his own culpable acts rendered the witness unavailable. (Id. at
pp. 364-365, 368.) Explaining that the ‘bad acts’ theory could not be reconciled with ‘the

                                              16
common law’s uniform exclusion of unconfronted inculpatory testimony by murder
victims,’ (id. at p. 368), Giles held that forfeiture by wrongdoing applies only where the
defendant engaged in ‘conduct designed to prevent a witness from testifying,’ (id. at
p. 365).
       “As the parties here agree, Giles established the mens rea aspect of the forfeiture-
by-wrongdoing exception: The defendant must intend that a witness be made unavailable
to testify. Neither party’s briefing, however, articulates a standard for the kind of action a
defendant must take to effectuate that intent.
       “Despite the parties’ reticence, Supreme Court authority is as clear on the overt act
point as on the mens rea question. The standard was articulated in the Court’s first
opinion applying the forfeiture-by-wrongdoing exception, Reynolds, [supra,] 98 U.S.
145, and cited approvingly in Giles. (See Giles, supra, 554 U.S. at p. 366; see also
Crawford, supra, 541 U.S. at p. 62 (citing Reynolds).
       “Reynolds explained that, ‘as long ago as the year 1666,’ in Lord Morley’s Case,
6 How. St. Tr. 769, 771 (H.L. 1666), adjudicators had admitted statements of an absent
witness who ‘was detained by the means or procurement of the [defendant],’ and that
‘now, in the leading text-books, it is laid down that if a witness is kept away by the
adverse party, his testimony . . . may be given in evidence.’ (Id. at pp. 158-159
(emphasis added) (citing evidence textbooks). Reynolds concluded that, in that case, the
state had proven enough to shift the burden to the defendant to show that he was not
‘instrumental in concealing or keeping the witness away.’ (Id. at p. 160.)
       “Well over a century later, Davis and Giles reaffirmed that the Confrontation
Clause does not protect statements by a witness kept from testifying ‘by the means or
procurement of the [defendant].’ (Giles, supra, 554 U.S. at p. 359 (internal quotation
marks omitted); see also Davis[, supra,] 547 U.S. at p. 833 (describing a defendant who
‘procur[es] or coerc[es] silence from witnesses . . . who obtains the absence of a witness
by wrongdoing’). In examining what ‘means or procurement’ signifies, Giles cited

                                             17
dictionaries defining ‘to procure’ as, inter alia, ‘to contrive and effect’; ‘to get . . . as by
request, loan, effort, labor or purchase’; ‘to contrive or devise with care . . .; to endeavor
to cause or bring about.’ (Giles[, supra,] 554 U.S. at p. 360 (internal quotation marks and
alteration omitted).
       “The pertinent Supreme Court authority, then, clearly establishes that the
forfeiture-by-wrongdoing doctrine applies where there has been affirmative action on the
part of the defendant that produces the desired result, non-appearance by a prospective
witness against him in a criminal case. Simple tolerance of, or failure to foil, a third
party’s previously expressed decision either to skip town himself rather than testifying or
to prevent another witness from appearing does not ‘cause’ or ‘effect’ or ‘bring about’ or
‘procure’ a witness’s absence.” (Carlson, supra, 791 F.3d at pp. 1009-1010, original
italics except for the last set, fns. omitted.)
       This standard of wrongdoing is broad. The defendant’s affirmative action need
not be criminal or even threatening. Rather, the action becomes “wrongdoing” because
the defendant acted with the intent to interfere with the court’s truth-finding function and
his action caused the witness not to appear.
       The Carlson court applied the standard to the facts before it on a habeas petition.
The defendant was charged with assaulting his child. At trial, the defendant’s wife and
child, although subpoenaed to testify, did not appear. The trial court invoked the
forfeiture-by-wrongdoing exception and admitted the wife’s and child’s prior statements
to police. The Ninth Circuit Court of Appeals held it could not say the state court’s
decision was unreasonable. (Carlson, supra, 791 F.3d at pp. 1004-1005.) The evidence
showed that the wife was distraught and would require emotional care, the defendant was
not at home on the nights during trial when his wife and child were also not home, and
the defendant had instructed the other children not to call their mother. (Id. at p. 1012.)
From this evidence, the trial court could infer that the defendant knew where his wife and
child were and was with them when they were absent, he wanted to keep their

                                                  18
whereabouts secret, so they could not be compelled to appear, and he wished to keep his
wife away from any influence that might persuade her to reappear. (Ibid.)
       The Sixth Circuit Court of Appeals has also applied a broad standard like that
announced in Carlson and Reynolds. In Steele v. Taylor (6th Cir. 1982) 684 F.2d 1193
(Steele), disapproved on another point in Burns v. Estelle (5th Cir. 1983) 695 F.2d 847, a
prostitute to Owen, one of the defendants in a conspiracy to commit murder, informed the
FBI of the defendants’ statements regarding the murder. By the time of trial, the witness
was living with Owen and had given birth to a child. The defense used a combination of
tactics to prevent the witness from testifying. Owen obtained a lawyer for her, and his
lawyer remained as the witness’s co-counsel. The defense objected to her deposition
based on the marital privilege. The court ordered the deposition go forward, during
which the witness stated her previous statement to the FBI was false. The defense then
sought to prevent her testimony at trial by claiming the deposition established marital
privilege, she could assert her Fifth Amendment right, and her prior statement was false.
The trial court overruled the objections and ordered the witness to testify. At trial, her
lawyer, who was paid by Owen, stated the witness would not testify and he had
counseled her not to do so. Relying on Reynolds, the trial court ruled that based on the
evidence, the witness was under the control of the defendants who had procured her
refusal to testify. The court admitted the FBI’s testimony regarding the witness’s earlier
statement. (Id. at pp. 1197-1199.)
       The Sixth Circuit Court of Appeals upheld the trial court’s ruling on a habeas
petition. Explaining the forfeiture-by-wrongdoing doctrine, the court stated, “The theory
of the cases appears to be that the disclosure of relevant information at a public trial is a
paramount interest, and any significant interference with that interest, other than by
exercising a legal right to object at the trial itself, is a wrongful act. Wrongful conduct
obviously includes the use of force and threats, but it has also been held to include
persuasion and control by a defendant, the wrongful nondisclosure of information, and a

                                              19
defendant’s direction to a witness to exercise the fifth amendment privilege.” (Steele,
supra, 684 F.2d at p. 1201, fn. omitted, italics added.) Applying the rule to the facts
before it, the court held it could not say the state court committed constitutional error by
inferring from the facts that the defendants acting in concert wrongfully induced the
witness not to testify, even though there was no evidence of specific threats. The
defendants had jointly agreed that Owen would use his influence and control over the
witness to induce her not to testify. There was also evidence that the witness was afraid
of Owen, he obtained her lawyer, and that lawyer advised her not to testify. (Id. at
p. 1203.)
       To the extent that our dissenting colleague suggests that Steele may no longer be
viable after Crawford, we disagree. (Dis. opn. at pp. 3-4.) Steele remains viable, as its
holding was based on the wrongfulness of the defendants’ actions, the standard upheld by
Giles, not on any indicia of reliability on which hearsay was deemed admissible prior to
Crawford, although it addressed the latter standard in the alternative. (Steele, supra,
684 F.2d at p. 1203; see United States v. Ponzo (1st Cir. 2017) 853 F.3d 558, 579 [no
reason why pre-Crawford forfeiture-by-wrongdoing case law is not valid under Giles].)
       We further note that the Crawford opinion itself appears to have considered the
concept of forfeiture-by-wrongdoing as lying outside the Sixth Amendment issues that
the Crawford court addressed. Thus, “[t]he Roberts test allows a jury to hear evidence,
untested by the adversary process, based on a mere judicial determination of reliability.
It thus replaces the constitutionally prescribed method of assessing reliability with a
wholly foreign one. In this respect, it is very different from exceptions to the
Confrontation Clause that make no claim to be a surrogate means of assessing reliability.
For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes
confrontation claims on essentially equitable grounds; it does not purport to be an
alternative means of determining reliability. [Citation omitted, emphasis added.]”
(Crawford, supra, 541 U.S. at p. 62.)

                                             20
        There are three opinions, all from state courts, that address whether conduct like
that which occurred here—nonthreatening and not in violation of a court order—qualified
as wrongdoing. All three held the conduct was wrongdoing. One case occurred after
Giles, the other two preceded it. In Commonwealth v. Szerlong (2010) 457 Mass. 858
(Szerlong), the Supreme Judicial Court of Massachusetts held that a defendant’s
agreement to marry the victim to enable her to claim the spousal privilege and not have to
testify against the defendant was wrongdoing that forfeited the right to challenge
admitting the victim’s out-of-court statements. (Id. at pp. 864-866.) The marriage
occurred after a warrant had been issued for the defendant’s arrest but before the
defendant surrendered to authorities, and the victim informed others she had married the
defendant so she would not have to testify in his case. (Id. at pp. 859, 863-864.) The
court relied in part on Giles, which stated that wrongdoing was “ ‘conduct designed to
prevent a witness from testifying.’ ” (Id. at p. 863, quoting Giles, supra, 554 U.S. at
p. 368.) There was no requirement that the conduct had to be criminal. The act
constituted wrongdoing if the defendant agreed to marry the witness, and did marry her,
with an intent to enable her to claim the spousal privilege. (Szerlong, supra, at pp. 863-
865.)
        Commonwealth v. Edwards (2005) 444 Mass. 526 (Edwards), also relied upon by
Szerlong, held that wrongdoing may include a defendant’s collusion with a witness when
the defendant intends to ensure that the witness will not be heard at trial. (Id. at p. 540;
Szerlong, supra, 457 Mass. at p. 863.) The offer of proof indicated the defendant in
telephone calls from jail conspired with the witness and others to procure the witness’s
unavailability. (Edwards, supra, 444 Mass. at pp. 530-531.) The state supreme court,
remanding the matter for an evidentiary hearing, held that colluding with a witness could
qualify as wrongdoing. (Id. at p. 540.) “A defendant’s involvement in procuring a
witness’s unavailability need not consist of a criminal act, and may include a defendant’s



                                              21
collusion with a witness to ensure that the witness will not be heard at trial.” (Ibid., fns.
omitted.)
       The Iowa Supreme Court in State v. Hallum (2000) 606 N.W.2d 351 (Hallum)
relied on jailhouse correspondence to hold the defendant had forfeited his Confrontation
Clause right by wrongdoing. The defendant’s half-brother was incarcerated for refusing
to testify in defendant’s case. In a letter, the defendant told his brother to “hang in there,”
as there were only two months left until defendant’s trial. He did not think the trial court
would admit the brother’s recorded testimony. He told him to calm down and not discuss
anything of importance on the phones. (Id. at pp. 356-357.) The brother replied by letter
and told the defendant he “just can’t handle it anymore,” implying he would testify if
defendant went to trial. (Id. at p. 357.) Relying on Steele and Reynolds, the state
supreme court held the defendant procured the witness’s unavailability at trial “by
encouraging and influencing” him not to testify. (Id. at p. 358.)
       These cases flesh out the broad Johnson standard. Depending on the facts, trial
strategies, letters and phone calls from jail colluding or confirming that a witness will not
appear, and even a marriage proposal may constitute wrongdoing for purposes of the
forfeiture-by-wrongdoing doctrine if the defendant engaged in those actions with the
intent to prevent the witness from testifying.
       Defendant argues that his actions were only intended to have his victim “tell the
truth” and say she made her entire story up. This is, of course, belied in no small part by
the evidence of her physical bruising and other injuries observed by the law enforcement
officers. The trial court did not credit this argument and there is substantial evidence to
support that determination.
       Defendant also argues that his actions did not result in E.’s refusal to testify, but
instead it was E.’s attorney’s advice to her that she not testify that caused her refusal.
This argument is a non-starter, primarily because there is nothing in the record that shows
that E.’s counsel advised her not to testify. To the contrary, as far as this record shows,

                                              22
Spangler only advised E. of the possible consequences of her testifying or not testifying
and the decision not to testify was solely hers. Thus, Spangler stated at one point that
“she’s not going to answer any questions period. That’s her instruction to me” and, at
another, in response to the court’s question regarding the effect on E. of a prosecution
grant of immunity and whether she would still refuse to testify, Spangler stated, “That is
correct, and those are her instructions to me.” While E. presumably listened to and
considered her lawyer’s explanations on the question of her refusal to testify, there is
nothing in this record to demonstrate that Spangler ever told E. not to testify and the
record shows that E.’s decision not to testify was her own.
       There was no error.

                                              II

                                   Consecutive Sentencing

       Defendant contends the trial court abused its discretion by sentencing him to
consecutive rather than concurrent terms. He argues the offenses were part of one course
of conduct whose objectives were related to each other, and not independent.
       “[I]n the absence of a clear showing that its sentencing decision was arbitrary or
irrational, a trial court should be presumed to have acted to achieve legitimate sentencing
objectives and, accordingly, its discretionary determination to impose consecutive
sentences ought not be set aside on review.” (People v. Giminez (1975) 14 Cal.3d 68,
72.) “The trial court is required to determine whether a sentence shall be consecutive or
concurrent but is not required to presume in favor of concurrent sentencing. [Citations.]
If it has faithfully applied the sentencing rules, the only other question is whether, all
circumstances considered, the trial court’s decision exceeds the bounds of reason.”
(People v. Reeder (1984) 152 Cal.App.3d 900, 923.)
       In making its decision, a trial court should consider, in part: “Facts relating to the
crimes, including whether or not: [¶] (1) The crimes and their objectives were


                                              23
predominantly independent of each other; [¶] (2) The crimes involved separate acts of
violence or threats of violence; or [¶] (3) The crimes were committed at different times
or separate places, rather than being committed so closely in time and place as to indicate
a single period of aberrant behavior.” (Cal. Rules of Court, rule 4.425(a).)
       Here, the trial court considered the probation report, the arguments of counsel, the
victim’s statements, statements from defendant’s family members, defendant’s age, and
the extent of the injuries involved. The court was aware of the full evidentiary record and
facts of the case. The court stated the criteria it was using in choosing consecutive terms,
finding the acts were distinct acts. This conclusion is both supported by the evidence at
trial and comports with the California Rules of Court, quoted earlier.
       Each violent crime may be punished separately in an appropriate case. (See
People v. Harrison (1989) 48 Cal.3d 321, 338 [“defendant should . . . not be rewarded
where, instead of taking advantage of an opportunity to walk away from the victim, he
voluntarily resumed his sexually assaultive behavior”]; People v. Gaio (2000)
81 Cal.App.4th 919, 935 [multiple punishment permitted “where the offenses are
temporally separated in such a way as to afford the defendant opportunity to reflect and
to renew his or her intent before committing the next one, thereby aggravating the
violation of public security or policy already undertaken”].)
       The trial court could rationally find that defendant’s act of grabbing and throwing
E. around the apartment constituted inflicting personal injury on a cohabitant; thereafter,
as she was lying in bed, he held her by the jaw and put his hand over her mouth to keep
her from responding to law enforcement and dissuade her from speaking to them and
reporting the assault; and then damaging the doors to prevent her from leaving the
apartment thus, false imprisonment. Each was a separate act meriting separate
punishment. On the record before us, this decision was not an abuse of discretion.




                                             24
                                             III

                                        Resentencing

       A. Senate Bill 1393

       Defendant argues in a supplemental brief that the passage of SB 1393 requires
remand so that the trial court may exercise its discretion regarding the imposition of
sentence for the prior serious felony conviction enhancement (§§ 667, subd. (a)), which
was previously mandatory. The People concur that remand is necessary “for the limited
purpose of giving the trial court the opportunity to consider striking the prior serious
felony enhancement pursuant to section 667[, subdivision (a).]” We accept this
concession and find SB 1393 retroactive as explained in People v. Garcia (2018)
28 Cal.App.5th 961.
       “On September 30, 2018, the Governor signed Senate Bill 1393 which, effective
January 1, 2019, amends sections 667(a) and 1385(b) to allow a court to exercise its
discretion to strike or dismiss a prior serious felony conviction for sentencing purposes.
(Stats. 2018, ch. 1013, §§ 1-2.)” (Garcia, supra, 28 Cal.App.5th at p. 971.)
       Under In re Estrada (1965) 63 Cal.2d 740 (Estrada), “[w]hen the Legislature has
amended a statute to reduce the punishment for a particular criminal offense, we will
assume, absent evidence to the contrary, that the Legislature intended the amended statute
to apply to all defendants whose judgments are not yet final on the statute’s operative
date.” (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) Nothing in SB 1393
suggests any legislative intent that the amendments apply prospectively only, thus “it is
appropriate to infer, as a matter of statutory construction, that the Legislature intended
Senate Bill 1393 to apply to all cases to which it could constitutionally be applied, that is,
to all cases not yet final when Senate Bill 1393 [became] effective on January 1, 2019.”
(Garcia, supra, 28 Cal.App.5th at p. 973.)




                                             25
       “ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant’s record.’ [Citation.] In such circumstances, [our
Supreme Court has] held that the appropriate remedy is to remand for resentencing unless
the record ‘clearly indicate[s]’ that the trial court would have reached the same
conclusion ‘even if it had been aware that it had such discretion.’ [Citations.]” (People
v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) The record before us does not clearly
indicate that the trial court would have declined to strike one or more of defendant’s prior
serious felony convictions for sentencing purposes if it had the discretion to do so.
Accordingly, we agree with the parties that remand is appropriate in this case to allow the
trial court to exercise its discretion as to whether to strike one or more of his prior serious
felony convictions for sentencing purposes.

       B. Senate Bill 136

       In a later supplemental brief, defendant contends the one-year prior prison term
enhancement imposed pursuant to section 667.5, subdivision (b), must be stricken
pursuant to the amendment to section 667.5, subdivision (b) by Senate Bill No. 136
effective January 1, 2020 (SB 136). The people concede the issue. We agree and modify
the judgment accordingly.
       Signed by the Governor on October 8, 2019, and effective January 1, 2020, SB
136 amends section 667.5, subdivision (b), to eliminate the one-year prior prison term
enhancement for most prior convictions. (Sen. Bill No. 136, 2019-2020 Reg. Sess. § 1.)
An exception, not applicable here, is made for a qualifying prior conviction on a sexually
violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b).




                                              26
       Because SB 136 became effective before defendant’s judgment became final, we
agree with the parties that the amended law applies to him retroactively. (See In re
Estrada, supra, 63 Cal.2d at pp. 744-745 [absent evidence of contrary legislative intent,
ameliorative criminal statutes apply to all cases not final when statute takes effect].)
Accordingly, both of defendant’s 667.5 subdivision (b) enhancements must be stricken.

                                       DISPOSITION
       The judgment of conviction is affirmed. The matter is remanded to the trial court
with directions to resentence defendant pursuant to sections 667 subdivision (a) and 1385
subdivision (b), as amended by SB 1393.
       Further, we modify the judgment to strike defendant’s 667.5 subdivision (b)
enhancements. The superior court is directed to prepare an amended abstract of judgment
and forward a certified copy of the same to the Department of Corrections and
Rehabilitation.




                                                  HULL, Acting P. J.



I concur:




RENNER, J.




                                             27
DUARTE, J., Dissenting
       I respectfully disagree with the majority’s apparent conclusion that supported
findings of intent and causation are the only ingredients necessary for proper application
of the forfeiture by wrongdoing doctrine. Although I agree that the doctrine at issue is
valid, I cannot agree that the doctrine contemplates forfeiture of the right to confront
witnesses without regard to the seriousness of a defendant’s underlying conduct. Simply
put, there must be wrongdoing that is not derived solely from findings of intent and
causation before the doctrine may be properly applied. Here there was not. Because the
error was not harmless, defendant’s conviction should be reversed.
       As the United States Supreme Court made clear in Crawford and as our own high
court has recently reminded us in People v. Sanchez (2016) 63 Cal.4th 665 at pages 679
to 680, the right of the accused to confront witnesses against them is a “bedrock
procedural guarantee” and should not be lightly disregarded (Crawford v. Washington
(2004) 541 U.S. 36, 42 (Crawford)). In my view, “wrongfulness” resulting in forfeiture
of a critical constitutional right requires more than the facts seen here, even assuming
intent and causation were properly found. No reported case has found the doctrine
applicable to the minimally invasive and indisputably nonthreatening conduct in this
case. Although my colleagues appear to assume that a finding of wrongdoing necessarily
follows where intent and causation are properly found, I disagree.
       Evidence Code section 1390 provides in relevant part that:
       “(a) Evidence of a statement is not made inadmissible by the hearsay rule if the
statement is offered against a party that has engaged, or aided and abetted, in the
wrongdoing that was intended to, and did, procure the unavailability of the declarant as a
witness.
       “(b)(1) The party seeking to introduce a statement pursuant to subdivision (a) shall
establish, by a preponderance of the evidence, that the elements of subdivision (a) have
been met at a foundational hearing.”

                                              1
       I read Evidence Code section 1390, subdivision (a) to require something beyond
intent and causation; the elements that must be met per subdivision (b) are three: first is
identifiable wrongdoing; second is intent to procure a witness’s unavailability through
that same wrongdoing; and third is achievement of unavailability through that same
wrongdoing. Application of the doctrine requires “that the defendant by a wrongful act
made the witness unavailable with the intent of preventing the witness from testifying.”
(People v. Kerley (2018) 23 Cal.App.5th 513, 549, italics added.) “One thing seems
clear: causing a person not to testify at trial cannot be considered the ‘wrongdoing’ itself,
otherwise the word would be redundant. So we must focus on the actions procuring the
unavailability.” (United States v. Scott (7th Cir. 2002) 284 F.3d 758, 763 [interpreting
Federal Rules of Evidence, rule 804(b)(6) to require that: (1) the defendant engaged or
acquiesced in wrongdoing; (2) the wrongdoing was intended to procure declarant’s
unavailability; and (3) the wrongdoing did procure the unavailability].)
       Accordingly, I am compelled to dissent from the majority’s conclusion that
defendant’s conduct during two telephone calls made four months apart resulted in
forfeiture of his critical constitutional right to confront his girlfriend as she bore witness
against him. (See Crawford, supra, 541 U.S. at p. 54 [“The text of the Sixth Amendment
does not suggest any open-ended exceptions from the confrontation requirement to be
developed by the courts”].)
                                               I
   Defendant’s Conduct Does Not Rise To The Level Warranted To Forfeit A Critical
                                     Constitutional Right
       In making its ruling, the trial court here considered two brief excerpts of phone
calls, separated by four months. One cajoled a witness to tell the police she “made
another false report” about an unwitnessed assault and that “this was all just a [expletive]
lie” (to which she seemed to willingly assent), and the other discussed the trial dates and
referenced a subpoena. Defendant told the witness he loved her, wanted to marry her,

                                               2
and wanted to be with her. He urged her to stop lying and to reveal false reports
previously given. This conduct--two instances of nonthreatening cajoling and urging
separated by four months, in the absence of a no-contact order--does not compare to the
conduct other courts have found to constitute forfeiture of a bedrock constitutional right.
       For the limited purpose of this dissent, I am willing to assume that the trial court’s
findings of defendant’s intent and the subsequent causation are supported by substantial
evidence. My dispute with the majority centers on its conclusion that the trial court
correctly concluded defendant’s conduct during the recordings was “wrongdoing” in the
legally recognized sense, such that it invoked the doctrine of forfeiture by wrongdoing. I
agree with the majority that this question merits de novo review. (Maj. opn., p. 10.)
       In the all-too-typical case involving forfeiture by wrongdoing, the defendant
prevents a witness from testifying or cooperating with law enforcement by killing the
witness before trial. (See, e.g., Giles v. California (2008) 554 U.S. 353, 356; People v.
Kerley, supra, 23 Cal.App.5th at pp. 556-557; People v. Banos (2009) 178 Cal.App.4th
483, 485; United States v. Cazares (9th Cir. 2015) 788 F.3d 956, 975; United States v.
Jackson (4th Cir. 2013) 706 F.3d 264, 265; United States v. Dhinsa (2d. Cir. 2001)
243 F.3d 635, 652; United States v. Cherry (10th Cir. 2000) 217 F.3d 811, 814-815;
United States v. Emery (8th Cir. 1999) 186 F.3d 921, 926; United States v. Houlihan (1st
Cir. 1996) 92 F.3d 1271, 1279; United States v. White (D.C. Cir. 1997) 116 F.3d 903,
911.) But on occasion the definition of wrongful conduct has been expanded to include
threats, intimidation, and bribery. (See, e.g., United States v. Johnson (9th Cir. 2014)
767 F.3d 815, 818 [death threats]; People v. Jones (2012) 207 Cal.App.4th 1392, 1399
[threat of violence] (Jones); United States v. Jackson, supra, 706 F.3d at p. 267, citing
United States v. Carlson (8th Cir. 1976) 547 F.2d 1346, 1358-1359 [intimidation];
State v. Mechling (2006) 633 S.E.2d 311, 326 [physical violence]; People v. Geraci
(1995) 649 N.E.2d 817, 823-824 [bribery].) Where there is a history of domestic
violence, repeated violations of court orders during jail visits and phone calls may also

                                              3
constitute wrongful conduct. (See United States v. Montague (10th Cir. 2005) 421 F.3d
1099, 1102-1104.) Prior to Crawford, wrongful conduct had “also been held to include
persuasion and control by a defendant, the wrongful nondisclosure of information, and a
defendant’s direction to a witness to exercise the fifth amendment privilege.” (Steele v.
Taylor (6th Cir. 1982) 684 F.2d 1193, 1201, disapproved on another point in Burns v.
Estelle (5th Cir. 1983) 695 F.2d 847.)
       Here, defendant displayed none of these tactics. As the majority agrees,
defendant’s conduct was neither threatening nor in violation of a court order. (Maj. opn.,
p. 21.) And although Crawford accepted the doctrine of forfeiture by wrongdoing as an
equitable doctrine (see Crawford, supra, 541 U.S. at p. 62), the Court also reaffirmed
therein the importance of the constitutional right to confront one’s accuser by severely
limiting those circumstances under which that right could be circumvented.1 Regardless
of the effect of Crawford on the doctrine at issue here, the majority has not cited (and I
have not found) any case that has applied the doctrine to the type of conduct seen here,
including Steele.2




1Courts have typically extended equitable relief only sparingly. (See Irwin v.
Department of Veterans Affairs (1990) 498 U.S. 89, 96 [equitable tolling].)
2  The Attorney General’s briefing relies on language from Jones, Giles, Banos, and
Davis v. Washington (2006) 547 U.S. 813. In Jones, the trial court listened to 10 hours of
conversations recorded over 12 phone calls between defendant and the victim and applied
the doctrine because defendant had implicitly threatened the victim. (Jones, supra,
207 Cal.App.4th at p. 1398.) In Giles and Banos, defendant murdered the victim.
(Giles v. California, supra, 554 U.S. at p. 356; People v. Banos, supra, 178 Cal.App.4th
at p. 485.) In Davis, the issue was whether the statements given by the victim to law
enforcement at a crime scene were testimonial subject to the requirements of the
Confrontation Clause. (Davis, at p. 817.) Davis took “no position on the standards
necessary to demonstrate [forfeiture by wrongdoing]” and did not analyze or apply the
doctrine, but merely noted at its conclusion that the state court could consider its
application on remand if asked to do so. (Id. at pp. 833, 834.)

                                             4
         The majority discusses Steele at length, using language from the case to describe
the “broad standard” it applies (maj. opn., p. 19) to extend the category of “wrongful
conduct” beyond force and threats to persuasion and control (maj. opn., p. 20), and
suggests we should do the same here. But the facts in Steele constituting the requisite
“persuasion and control” are nothing like the facts of the case before us. In the case at
hand, defendant participated in two short telephone calls four months apart. In Steele the
defendant lived with and impregnated the witness while awaiting trial, secured and paid
for her attorney, installed his own attorney as her cocounsel, and made numerous
manipulative pretrial maneuvers over a period of many months to ensure she did not
testify. (Maj. opn., pp. 19-21; see Steele v. Taylor, supra, 684 F.2d at pp. 1197-1199,
1203.)
         In Carlson v. Attorney General of California (9th Cir. 2015) 791 F.3d 1003,
quoted at length by the majority, the evidence of the defendant’s interference with his
child (the victim/witness) and his wife (a witness) extended to the defendant’s secreting
the two away from home and away from any influences, staying with them at the hiding
place, and telling the other children not to call their mother while she was away. (Id. at p.
1012.) Finding that the “circumstances demonstrate both concealment of the witnesses’
whereabouts and insulation of the witnesses from the reach of either compulsion or
persuasion regarding showing up at trial,” the Carlson court concluded the trial judge’s
application of the doctrine was not unreasonable. (Id. at p. 1013.) That conduct is not at
all comparable to defendant’s actions here.
         The majority turns next to three opinions from two out-of-state courts in purported
support of its holding. In the first, Commonwealth v. Szerlong (Mass. 2010) 933 N.E.2d
633 at page 641, the defendant (while a fugitive) married the witness to enable her to
claim the spousal privilege. A marriage demonstrates a much more committed course of
action than do the two telephone calls here. In the second case, also from Massachusetts,
the court held that colluding with a witness to secure the witness’s unavailability for trial

                                              5
could qualify as wrongdoing, remanding for an evidentiary hearing. (Commonwealth v.
Edwards (Mass. 2005) 830 N.E.2d 158.) “As its primary indication of collusion, the
Commonwealth relied on its representation of the contents of several recorded telephone
conversations, initiated by Edwards while he was incarcerated and made just prior to two
scheduled trial dates . . . in which Edwards allegedly conspired with Crockett and others
to procure Crockett’s unavailability for trial.” (Id. at p. 164.) Because this information
came by proffer only, we do not know the extent of the collusion between the defendant
and witness and whether it is factually similar to the case at hand; hence the remand.
       In the third case, a pre-Crawford case from Iowa, the court held the defendant had
encouraged and influenced the witness--his brother, who was a minor and 15 years
younger than the defendant--not to testify after he encouraged the witness, already
incarcerated for refusing to testify, to remain firm in his refusal by making a variety of
written statements to that effect in multiple letters. (State v. Hallum (Iowa 2000) 606
N.W.2d 351, 353, 356-357.) Although closer to comparable than any of the others, the
case is factually distinguishable.
       The majority posits that these three out-of-state cases “flesh out the broad”
substantial evidence standard that our Supreme Court has set forth for us to use when
evaluating the trial court’s factual findings (see People v. Johnson (1980) 26 Cal.3d 557,
576-578). (Maj. opn., p. 22.) But even if these out-of-state cases were not
distinguishable on their facts, they should not be relied upon to define the law here in
California.
       In Jones, supra, 207 Cal.App.4th 1392, the Second Appellate District, Division
Five noted that “ ‘wrongdoing’ has not been limited to the killing of a victim or even of a
nonvictim witness.” (Id. at p. 1399.) The reported facts of the case are sparse, but the
opinion references 12 phone calls consisting of 10 hours of conversation between the
defendant and the dissuaded witness (id. at p. 1396) and cites the trial court’s finding that
“the implication from the discussion that they had is that he has friends on the outside

                                              6
who can assist him in doing whatever is necessary” (id. at p. 1398.) Beyond the vast
disparity in the degree of contact between Jones and the witness as compared to our case,
Jones is a threats case. Our case is indisputably not.
       In People v. Merchant (2019) 40 Cal.App.5th 1179, the Fourth Appellate District,
Division One cited Jones to affirm the trial court’s finding of forfeiture by wrongdoing.
Merchant asked his friends to “ ‘keep [the witness] away for six months’ ” (id. at p.
1187), and called the witness himself, many times, reminding her that his friends were
watching her to make sure she did not testify (ibid.). He made what the appellate court
characterized as “obsessive, repeated calls,” including telling the witness that she had
“better” stick by him. (Id. at p. 1188.) There was a criminal protective (no-contact) order
in place, meaning Merchant’s conduct was lawless from the outset. “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.” (Ibid.) The trial court had noted the case for
forfeiture was “a lot weaker” than the usual forfeiture case due to defendant’s “passive
coercion.” (Ibid.) Even assuming the forfeiture findings in Jones and Merchant were
correct, such a finding in this case--where defendant made two short phone calls over a
four month period--extends far beyond the current state of California law.
       If the doctrine applies to this case solely for the reasons explained by the majority,
thus in every case where intent and causation are present, it could apply to strip
defendants of their right to confront their accusers in a wide variety of benign situations.
Consider an “eggshell” witness, to whom a defendant suggests on an isolated occasion
that the witness’s testimony may have adverse (but relatively minor) consequences of
some sort. If the witness is so influenced by the one mention of adversity that the witness
is dissuaded from testifying, intent and causation are properly found. But has the
defendant also acted “wrongfully” such that he forfeited his bedrock constitutional right
to confront his accuser?



                                              7
       Next consider an accused brother, where the only witness to his crime is his sister.
Imagine the brother tells his sister over the telephone that the pair’s grandmother will
stop loving the sister if she testifies against the brother, and, based on that one mention of
the prospect of her grandmother’s lost love, the sister recants or fails to appear. If a trial
court finds that those facts show both intent to dissuade and causation, does the brother
forfeit the right to confront the only eyewitness against him, merely for mentioning the
grandmother’s distress to his sensitive sibling? Will we be reviewing for substantial
evidence the trial court’s determination that the defendant intended to dissuade her
through his stray remark about their grandmother’s love and that the stray remark in fact
dissuaded her? And if we find the determination supported, does that conclusion lead to
forfeiture as a matter of law, without regard to the severity or duration of the defendant’s
actions?
       Under the majority opinion as I understand it, my hypothetical defendants’
conduct would result in the doctrine’s application, and they would be summarily stripped
of their right to confront the only witness to their crimes. I am not willing to join the
majority in so holding.
                                               II
                                The Error Was Not Harmless
       Violations of the right to confrontation are subject to federal harmless error
analysis under Chapman v. California (1967) 386 U.S. 18, 24. (Delaware v. Van Arsdall
(1986) 475 U.S. 673, 681.) “Since Chapman, we have repeatedly reaffirmed the
principle that an otherwise valid conviction should not be set aside if the reviewing court
may confidently say, on the whole record, that the constitutional error was harmless
beyond a reasonable doubt.” (Ibid.)
       This court has described the test for the Chapman standard as follows: “To find
the error harmless we must find beyond a reasonable doubt that it did not contribute to
the verdict, that it was unimportant in relation to everything else the jury considered on

                                               8
the issue in question.” (People v. Song (2004) 124 Cal.App.4th 973, 984; see Yates v.
Evatt (1991) 500 U.S. 391, 403-404.)
       The evidence of Lupe’s statements to the responding police officers was by far the
strongest evidence against defendant. Her statements detailed her claims of violence,
fear, or, for that matter, any of the conduct needed to support the false imprisonment and
corporal injury convictions. Without Lupe’s statements, the evidence against defendant
only consisted of the landlord’s observations of disturbances at the apartment and a
bruise on Lupe’s arm, Officer Hatcher’s observation of bruising and Lupe’s apparently
discomfited demeanor, Officer Gonzalez’s observation of Lupe’s emotional distress when
he responded to a vandalism call (and the jury hung on the charges resulting from that
incident), and Sergeant Ramos’s report from Lupe that she and defendant argued when he
tried to make peace with her. Even the recorded call that formed the basis for the
dissuading charge made no sense and proved nothing if not considered within the context
of Lupe’s previous statements to the officers.
       Further, even if I were to consider the People’s case as fairly strong, “there is no
way to ever define just what quantum of evidence is necessary to convince a jury beyond
a reasonable doubt of a defendant’s guilt.” (People v. Accardy (1960) 184 Cal.App.2d 1,
4.) After all, defendant had a low burden to satisfy, namely, raising a reasonable doubt in
the mind of even one juror, to obtain at least a mistrial. (See People v. Soojian (2010)
190 Cal.App.4th 491, 518-521 [new trial motion case, concluding a hung jury is a more
favorable result, and therefore a defendant need not show an acquittal was reasonably
probable].) Here, the jury hung on the August 13 counts despite hearing the evidence of
Lupe’s statements to Gonzalez. Further, the harm caused by denial of defendant’s right
to confront Lupe about the unwitnessed crimes was exacerbated by her potential
credibility issues (prior convictions and drug use), as defense counsel pointed out at the
hearing.



                                              9
       For all of these reasons, I cannot say with any confidence that the error in
admitting Lupe’s hearsay statements was harmless beyond a reasonable doubt. It is not at
all clear that the statements “did not contribute to the verdict” and were “unimportant in
relation to everything else the jury considered on the issue.” (People v. Song, supra, 124
Cal.App.4th at p. 984.) To the contrary, the statements provided the only solid bases for
conviction for the three counts on which the jury managed to reach verdicts as well as the
two counts on which it deadlocked.
       I recognize that “this particular type of crime is notoriously susceptible to
intimidation or coercion of the victim to ensure that she does not testify at trial. When
this occurs, the Confrontation Clause gives the criminal a windfall. We may not,
however, vitiate constitutional guarantees when they have the effect of allowing the
guilty to go free.” (Davis v. Washington, supra, 547 U.S. at pp. 832-833.)
       The majority proceeds down a slippery slope that could easily result in the
doctrine’s application to minimal and fairly benign conduct if consistently applied, a path
that is not supported, much less compelled, by the authority on which the majority relies.
I cannot follow my colleagues down this path absent guidance from our high court.
       The statements’ admission was prejudicial error. Accordingly, I would reverse the
judgment.




                                                  DUARTE, J.




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