People v. Merchant ( 2019 )

Filed 10/9/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075388
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1406238)
JECARR FRANSWA MERCHANT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Bernard J. Schwartz, Judge. Affirmed.
Law Office of Corey Evan Parker and Corey Evan Parker for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Genevieve
Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jecarr Franswa Merchant of kidnapping, battery, and dissuading
a witness after he careened down the freeway refusing girlfriend Lisa R.'s pleas to stop or
let her out, pulled Lisa's hair, and flung her cell phone out the window as she tried to call
911. Lisa did not appear at trial. Applying the forfeiture-by-wrongdoing exception to the
Sixth Amendment right to confrontation, the court admitted her statements to law
enforcement on the day of the incident. It further allowed the prosecution to introduce
evidence of Merchant's prior acts of domestic violence against Lisa and his former
girlfriend, J.C. Merchant challenges the admission of both categories of evidence.
Finding no error, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Merchant and Lisa started dating in January 2014. On December 22, Lisa agreed
to accompany him on a drive from Lancaster to a point near the junction with the
Interstate 210 (I-210) freeway. When Merchant continued going south past I-210, Lisa
asked to be dropped off, saying she had things to do. Merchant became angry and began
driving recklessly. Concerned, Lisa asked to be dropped off at the shoulder. She tried to
make eye contact with other drivers in hopes that someone might call for help. She
managed to call 911 herself, further enraging Merchant.
As Lisa spoke to the emergency dispatcher, Merchant grabbed her by the hair and
jacket. He swerved and sped at 90 to 100 miles per hour down the freeway, going on the
shoulder and nearly hitting several cars. Lisa felt something bad was going to happen to
her; she feared Merchant would drive to a deserted spot and beat her. Caltrans live feed
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cameras captured Merchant's vehicle "going crazy" on the right shoulder of the freeway
while a woman passenger screamed for help and tried to get out of the moving vehicle.
Lisa told the dispatcher, "my boyfriend − he is kidnapping me. He's in my Ford
Excursion. And he won't pull over. He's on [Interstate] 15 headed to San Diego, please
somebody help me." She tried to convey their location and direction of travel. Furious,
Merchant told her, "You're makin' me go to jail bitch. Whatever, I already got a charge
like this and shit . . . I don't need this. I'll go to jail for life." At some point the 911 call
dropped. When Lisa tried to call back, Merchant ripped the phone out of her hand and
threw it out the window.
Merchant exited the highway and drove over a center island. Lisa tried to open the
door to escape. Law enforcement caught up just as Lisa managed to shift the gear into
park. Merchant's vehicle was low on gas and would not restart. A California Highway
Patrol officer interviewed Lisa at the scene. She described what happened in detail and
estimated Merchant drove for 10 or 12 minutes as she begged to be let out.
The Riverside County District Attorney (D.A.) filed an amended information
charging Merchant with kidnapping (Pen. Code, § 207, subd. (a), count 1), willful
infliction of corporal injury (Pen. Code, § 273.5, subd. (a), count 2), dissuading a witness
(Pen. Code, § 136.1, subd. (c)(1), count 3), and robbery (Pen. Code, § 211, count 4). The
information alleged Merchant had served three prior prison terms (Pen. Code, § 667.5,
subd. (b)), was previously convicted of a serious felony (Pen. Code, § 667, subd. (a)), and
had a prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd.
(c)(1)).
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The case proceeded to trial in May 2017. The court allowed the prosecution to
introduce Merchant's past acts of domestic violence—two directed at Lisa and six
directed at his former girlfriend, J.C.—to show his propensity for domestic violence and
his intent and common plan. (Evid. Code, §§ 1109, 1101, subd. (b).)1 Lisa never
appeared for trial, and the parties stipulated she was unavailable (§ 240). Over defense
objection, the court relied on a series of jail calls between Merchant and Lisa to apply the
forfeiture-by-wrongdoing exception to the Sixth Amendment right to confrontation.
Based on this ruling, the prosecution introduced Lisa's statements to the highway patrol
officer on December 22.
Merchant did not testify. His primary defense was that there was no kidnapping—
"What kidnapper allows his victim to call 911 and talk for ten minutes?" Counsel labeled
her recorded statements a "hysterical, unbelievable version of what happened" and argued
Lisa invented the kidnapping allegation because she was angry at Merchant.
The jury found Merchant guilty as charged on counts 1 and 3. On count 2, it
convicted him of the lesser included offense of misdemeanor battery against a spouse or
cohabitant (Pen. Code, § 243, subd. (e)); on count 4 it acquitted him of robbery.
Merchant admitted his prior conviction allegations. In November 2017, the court
sentenced him to a total term of 29 years, consisting of the eight-year upper term for
count 1, doubled for the strike; a consecutive three-year middle term on count 3, doubled
1 Further statutory references are to the Evidence Code unless otherwise indicated.
4
for the strike; two years for two of the prison priors; and a five-year enhancement for the
prior serious felony conviction.
DISCUSSION
Merchant raises two claims of evidentiary error. First, he argues Lisa's hearsay
statements to law enforcement were admitted in violation of his constitutional right to
confront adverse witnesses. Second, he challenges the admission of prior domestic
violence evidence. We find no error as to either claim.
1. Lisa's Hearsay Statements Were Properly Admitted.
With Lisa unavailable, her hearsay statements to the responding highway patrol
officer were central to the prosecution's case. In addition, the prosecution relied on law
enforcement witnesses to describe Lisa's past domestic violence reports. This evidence
was admitted under the forfeiture-by-wrongdoing exception to Merchant's Sixth
Amendment right to confrontation.
Merchant argues the court erred in applying the forfeiture-by-wrongdoing
doctrine. He claims his actions in exhorting Lisa not to come to court fell short of the
"wrongdoing" required to trigger the exception. Although he may have attempted to
make Lisa feel guilty about attending trial, Merchant contends he did not threaten her in
any of the jail calls. He further maintains that jail calls to Lisa made 16 months before
trial were too remote in time to permit a nonspeculative inference that those calls secured
Lisa's unavailability. We disagree. Because substantial evidence supports the court's
finding that Merchant engaged in wrongdoing designed to prevent Lisa from testifying at
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trial, admitting Lisa's statements to law enforcement did not violate Merchant's
constitutional right to confront her.
a. Legal Principles
A criminal defendant has a Sixth Amendment right "to be confronted with the
witnesses against him." (U.S. Const., 6th Amend.) A court may not admit a witness's
testimonial hearsay statements against a defendant unless the witness is unavailable and
the defendant had a prior opportunity for cross-examination. (Crawford v. Washington
(2004) 541 U.S. 36, 53−54.) Nonetheless, in narrow circumstances a defendant may
forfeit his right to confrontation by his own wrongdoing. (Id. at p. 62; Davis v.
Washington (2006) 547 U.S. 813, 833 (Davis).) "[W]hen defendants seek to undermine
the judicial process by procuring or coercing silence from witnesses and victims, the
Sixth Amendment does not require courts to acquiesce. While defendants have no duty
to assist the State in proving their guilt, they do have the duty to refrain from acting in
ways that destroy the integrity of the criminal-trial system." (Davis, at p. 833.) For the
forfeiture-by-wrongdoing exception to apply, a defendant must have engaged in wrongful
conduct designed to prevent a witness from testifying. (Giles v. California (2008) 554
U.S. 353, 359−361, 368, 377 (Giles II).) Said differently, a defendant must "engag[e] in
wrongdoing that renders the declarant unavailable with an intent to prevent that
declarant's in-court testimony." (People v. Perez (2018) 4 Cal.5th 421, 455, fn. 3.)
"Wrongdoing" need not rise to the level of murder. (People v. Jones (2012) 207
Cal.App.4th 1392, 1399 (Jones).) "The common-law forfeiture rule was aimed at
removing the otherwise powerful incentive for defendants to intimidate, bribe, and kill
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the witnesses against them—in other words, it is grounded in 'the ability of courts to
protect the integrity of their proceedings.' " (Giles II, supra, 554 U.S. at p. 374.) Thus in
Jones, the defendant forfeited his right to confrontation when during phone calls from jail
he dissuaded his ex-girlfriend from testifying by implying he had friends on the outside
available to do "whatever [was] necessary." (Jones, at pp. 1398−1399.)
The Supreme Court declined in Davis to decide what procedure courts must
follow to find forfeiture by wrongdoing. (Davis, supra, 547 U.S. at p. 833.) But it
observed that federal courts generally utilize a preponderance-of-the-evidence standard
when applying a parallel hearsay exception. (Ibid.) California courts have since adopted
a preponderance standard for evaluating forfeiture by wrongdoing. (People v. Giles
(2007) 40 Cal.4th 833, 853 (Giles I), overruled on other grounds in Giles II, supra, 554
U.S. 353, 365; People v. Banos (2009) 178 Cal.App.4th 483, 503, fn. 12.)2 We evaluate
whether there is sufficient evidence from which the trial court could make its finding on a
preponderance standard. (See People v. Kerley (2018) 23 Cal.App.5th 513, 559
(Kerley).)
2 Apart from the Confrontation Clause, normal restrictions on hearsay evidence
apply. (Giles I, supra, 40 Cal.4th at p. 854.) Section 1370, subdivision (a) provides a
hearsay exception for an unavailable domestic violence victim's reliable out-of-court
statements to law enforcement describing the infliction of physical injury. Since 2011
(Stats. 2010, ch. 537, § 2), section 1390, subdivision (a) additionally provides a hearsay
exception for forfeiture by wrongdoing: "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 party seeking to admit evidence
under this exception must establish its elements by a preponderance of the evidence at a
foundational hearing. (§ 1390, subd. (b).)
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b. Application
Before trial, the prosecution filed a motion seeking to admit Lisa's out-of-court
statements to law enforcement. It proffered her statements to officers on December 22,
2014 describing the charged offense as well as her statements to officers earlier that year
describing domestic violence incidents on March 8 and November 21. According to the
prosecution, Merchant's statements to Lisa during recorded jail calls supported
application of the forfeiture-by-wrongdoing doctrine.
The court determined Lisa's statements were testimonial in nature, implicating
Merchant's right to confrontation.3 Nevertheless, reviewing Merchant's recorded jail
calls, it determined he intentionally secured Lisa's unavailability at trial and thereby
forfeited his confrontation right. The judge acknowledged the case was "a lot weaker"
than the usual forfeiture by wrongdoing case because Lisa was not killed or expressly
threatened with harm to make her stay away. Merchant instead engaged in "more of a
passive coercion." Yet there was enough evidence from the jail calls and Merchant's
pattern of abuse to find by a preponderance that his actions intended to and succeeded in
keeping Lisa away.
Sufficient evidence supports the trial court's finding. A criminal protective order
was entered two days after the offense on December 24, 2014, precluding Merchant from
any contact with Lisa. On January 6, Merchant called his friends "Groove," "Buck," and
3 The People do not dispute that finding, and we accept without deciding that Lisa's
statements to law enforcement on March 8, November 21, and December 22 were
testimonial.
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"Snake." Groove said the D.A. was in the area searching for Lisa. Buck told Merchant,
"As long as she don't come in to court you could be all right." Merchant asked Groove or
Snake to check in on Lisa and "keep her away for six months." Groove agreed.
On January 7, Merchant called Lisa. He told her the D.A. had offered him 15
years, but if he proceeded to trial he faced 28. He claimed his counsel recommended that
Lisa "stay away for six months." Merchant said he was "scared to fuckin' go to trial
'cause if you pop up, I'm gone, like no ifs, ands, and buts - my life is gone." He told her
he had asked Buck to "[g]o over there and tell my girl what's up." Although Buck had
purportedly told him that Lisa would not show up, Merchant said he needed to hear it
from her directly. He pressed Lisa, "you know I didn't kidnap[] you babe. You know
what I'm sayin'? You know that, babe. You hear me?" and told her how stressed he was
that someone could find her. Merchant told Lisa not to write him letters because she
might be located. Finally, Lisa acquiesced: "Okay. I'm not." [¶] . . . [¶] "I'm not goin'
over, babe. I'm with you." "Don't worry about it," she assured him, "I'm [sticking] by
your side." Merchant expressed relief and thanked her. He asked, "so you want me to go
through with the trial?" Lisa replied, "Yeah. 'Cause I'm not going to babe." The couple
exchanged "I love you['s]" and ended the call.
Merchant called later that day to remind Lisa to stay under the radar. He told her
he knew she would be there for him and reconfirmed whether he should "[g]o all the way
to trial with this?" Lisa again assured him that she was not going anywhere. Merchant
seemed satisfied. The call ended shortly after with an exchange of "I love you['s]."
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On January 8, Merchant called Lisa to say the D.A. would have to drop charges if
she did not appear for two months. Lisa assured Merchant that she was hiding from the
D.A., and not to worry. Seemingly placated, Merchant instructed her to stay by the
phone.
The next day, Merchant called and told Lisa not to leave the house without telling
him. He told her he felt stressed, but his "homie" told him to calm down because Lisa
wasn't going anywhere and had just been "talkin' good." Lisa told him, "calm down
'cause I ain't going nowhere"; Merchant emphasized that she needed to "lay low." Later
that day, he called Lisa again and convinced her not to leave the house, even for a job
interview. Two hours later, Merchant called to warn Lisa not to invite guests over.
On January 10, Lisa told Merchant she caught Snake staring at her when she went
to the store. Merchant explained that Snake was just worried that Lisa would show up,
and she should reassure him otherwise.
In all, Merchant called Lisa 167 times between January and May 2015. Although
he made no direct threat to harm her, Lisa's friend told the district attorney's office weeks
before trial that Lisa remained terrified of what might happen to her if she came to court.
Sufficient evidence supports the court's finding that Merchant engaged in wrongdoing
designed to prevent Lisa from testifying. Through obsessive, repeated calls, he begged
Lisa to lay low, stay at home, and not invite company, venture out, or write
correspondence. He told her charges would be dismissed if she evaded detection,
whereas his life would be over if she came forward. Lisa was made aware that though he
was incarcerated, Merchant had friends on the outside watching her. When she
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equivocated that she was trying to stick by him, Merchant immediately responded, "You
better. What the fuck you mean, you're trying to? You better." Gratitude and
expressions of love followed each time Lisa promised not to appear. In the context of an
abusive relationship with its dynamics of control, the trial court could reasonably find
that Merchant intended to, and did, secure Lisa's nonappearance.
Jones, supra, 207 Cal.App.4th 1392 is analogous. There, the defendant was on
trial for choking someone who told his ex-girlfriend that he was seeing another woman.
The ex-girlfriend told detectives that she had ended her five-year relationship with the
defendant because of physical violence, and that on the date of the charged offense, he
had called her with the victim's cell phone to say, " 'I just choked your homegirl out and I
have her phone.' " (Id. at pp. 1395−1396.) The ex-girlfriend failed to appear at trial, and
jail records showed the defendant had called her a dozen times to dissuade her from
testifying. (Id. at p. 1396.) Based on these calls, the trial court properly applied the
forfeiture-by-wrongdoing doctrine to admit the ex-girlfriend's statements to detectives.
As the court explained, applying the doctrine on these facts advanced its objective of
helping courts maintain the integrity of judicial proceedings and removing incentives for
defendants to intimidate, bribe, or kill witnesses who might appear against them. (Id. at
p. 1399.)
Merchant attempts to distinguish Jones, arguing his jail calls to Lisa were more
remote in time and did not so clearly cause her failure to appear. According to Merchant,
"[t]here is an extremely significant difference from contacting a witness and discouraging
[her] attendance at trial one week before trial, as in Jones, and in doing so nearly a year
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and a half prior to trial, as in this case." But while there may be a distinction, it is not as
stark as Merchant suggests. Merchant made 167 calls over a five-month period soon
after his arrest, locking in Lisa's nonappearance before he decided to reject the plea offer.
Viewed in context of an abusive relationship, his pleading, cajoling, and careful
monitoring of Lisa's whereabouts could reasonably be taken as a threat to induce her
nonappearance at trial a year later. According to Lisa's friend, who spoke with a D.A.
investigator just two weeks before trial, Lisa remained "terrified" to come forward.
The facts are sufficiently analogous to Jones to justify the same outcome under a
preponderance-of-the-evidence standard. There was no error in applying forfeiture by
wrongdoing, and admitting Lisa's statements to law enforcement at trial did not violate
Merchant's constitutional right to confront her.
2. The Trial Court Did Not Err in Admitting Merchant's Prior Acts of Domestic
Violence.
Merchant contends the trial court abused its discretion in admitting evidence of
prior acts of domestic violence against Lisa and former girlfriend J.C. under sections
1109 and 1101, subdivision (b). Among other claims, he argues the prior act evidence
should have been excluded under section 352.
a. Additional Background
Merchant had an on-and-off relationship with J.C. starting in 2005; their daughter
was born in November 2013. He began dating Lisa in January 2014, 11 months before
being charged in this case. Prior to trial, the prosecution filed a motion in limine to admit
Merchant's prior acts of physical violence against Lisa and J.C. According to the
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prosecution, the 11 prior acts against the women and a twelfth act against Merchant's
stepfather tended to show Merchant's propensity to commit domestic violence under
section 1109, and/or shed light on his intent or common plan as to the charged crimes
under section 1101, subdivision (b). Merchant objected to the entirety of the prior act
evidence. The court addressed each piece of evidence individually, admitting only eight
of the 12. It excluded the remaining evidence as minimally relevant or cumulative.
Specifically, the court found two prior acts involving Lisa admissible:
• On March 8, 2014, Merchant was upset that Lisa was not ready for bed and
pushed her several times in the face and chest. Charges for this incident were
separately pending at trial. The trial court found this evidence admissible under
section 1109 to show propensity and concluded that because Lisa would not
testify, its presentation would consume little time for purposes of section 352.
• On November 21, 2014, Lisa and Merchant got into an argument while she was
driving a vehicle. He punched her in the side of the head and pulled her hair.
When she stopped for gas, he drove away and left her stranded. Charges for this
incident were separately pending at trial. This evidence was found admissible
under section 1109. In addition, given the similarities to the charges, it was
admissible to show that Merchant acted pursuant to a common plan and not by
mistake or accident under section 1101, subdivision (b). Section 352 did not
require exclusion given the high probative value and minimal consumption of
time.
Likewise, the court found six events concerning J.C. admissible:
• In April or May 2008, while J.C. was driving on the freeway with Merchant in the
passenger seat, he punched her in the stomach and shoulder and threw her cell
phone in the back seat. When J.C. stopped the car, he retrieved the phone, called a
friend, and said he wanted to kill J.C. but did not want to go to jail. He then
threatened J.C. that he could kill her if he wanted and proceeded to throw her cell
phone outside the car. This court found this evidence admissible to show
propensity under section 1109 and common plan and intent under section 1101,
subdivision (b).
• On an unspecified date, Merchant asked J.C. to perform a sexual act. She refused
and wanted to go home. Merchant prevented her from leaving, pushing her onto
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the bed. As she reached across the bed for her phone to call the police, he grabbed
her hard by the hair and threatened to shoot her. The court found this evidence
admissible to show propensity under section 1109 and intent under section 1101,
subdivision (b).
• On August 11, 2008, Merchant pushed J.C. and hit her in the ear and thigh. When
she stepped outside to leave, he grabbed her belongings and took them inside. She
tried to retrieve them, but Merchant kicked her. This evidence was admissible to
show propensity under section 1109 and intent under section 1101, subdivision
(b).
• On July 25, 2009, while Merchant was driving on the freeway, J.C. tried to end
their relationship. Merchant punched her and refused to take her home. He
instead drove J.C. to his house and took away her keys to prevent her from
leaving. J.C. eventually managed to grab her keys and leave. This evidence was
admissible under section 1109 and under 1101, subdivision (b) to show common
plan and intent.
• Merchant called J.C. nearly 100 times over a two-week period in November 2010,
in violation of a criminal protective order. When J.C. asked to be left alone,
Merchant threatened that they would remain together "til death." This evidence
was admissible under section 1109 and under 1101, subdivision (b) to show
common plan and intent. Section 352 narrowed how this "100 calls" evidence
could be presented. As the trial court explained: "The fact that it happened over a
hundred times is one thing. But the fact that all the calls are played would be
another."
• In May 2011, Merchant pleaded guilty to false imprisonment of J.C. in connection
with the July 25, 2009 incident. This evidence was admissible under section 1109
to show propensity and under section 1101, subdivision (b) to show common plan
and intent.
By contrast, the court excluded the following four acts as minimally probative or
cumulative:
• In early 2008, when J.C. tried to break up with Merchant, he became angry and
would not let her leave. He grabbed her necklace and broke it. When J.C. got in
her car to drive away, Merchant threw a jewelry box at the car, damaging the rear
tail light. This evidence was inadmissible under sections 1109 and 1101,
subdivision (b) because the extent of physical violence was "minimally relevant."
The court also excluded it under section 352 explaining, "there's a cumulative
nature to these," and "[a]t some point, the number of incidents becomes . . . more
prejudicial than probative."
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• In August 2009, Merchant threatened J.C., who was then on probation, that he
could make her life miserable and put her back in jail. The court found this
inadmissible under sections 1109 and 1101, subdivision (b) because "there's no
physical violence," and the evidence did not tend to show a common plan. It also
found the evidence cumulative under section 352.
• In 2011, while awaiting trial in another case, Merchant relentlessly called J.C. and
threatened to hurt her unless she sent him nude pictures. Once she did so, he
threatened to share the pictures with her family and coworkers, stating he wasn't
going to jail for no bitch. The court deemed this evidence cumulative under
section 352, since it was encompassed within the "100 calls" evidence admitted
above. And to the extent it was offered just to show that Merchant had made
threats, it was inadmissible under sections 1109 or 1101, subdivision (b).
• In January 2006, Merchant threatened his stepfather at gunpoint not to touch his
property. He was convicted for criminal threats and imprisoned for four years,
eight months. This was inadmissible under section 1109 and minimally relevant
for a noncharacter purpose under section 1101, subdivision (b) because the victim
was not in a dating relationship with Merchant.
b. Legal Principles
Character evidence is generally inadmissible to prove a defendant's conduct on a
specific occasion. (§ 1101, subd. (a).) But specific acts of prior misconduct may be
offered for a noncharacter purpose, such as to show intent, common plan, or identity.
(§ 1101, subd. (b).) When other act evidence is introduced under section 1101,
subdivision (b), the degree of similarity required with the charged offense depends on the
purpose for which it is offered. (People v. Gutierrez (2018) 20 Cal.App.5th 847, 859
(Gutierrez).) "The least degree of similarity between the uncharged act and the charged
offense is required to support a rational inference of intent; a greater degree of similarity
is required for common design or plan; the greatest degree of similarity is required for
identity." (Ibid.; see People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)
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In addition, the Legislature has carved out specific exceptions to the ban on
propensity evidence for defendants charged with sex crimes (§ 1108, subd. (a)) and
domestic violence (§ 1109, subd. (a)). Subject to conditions not relevant here, "in a
criminal action in which the defendant is accused of an offense involving domestic
violence, evidence of the defendant's commission of other domestic violence is not made
inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section
352." (§ 1109, subd. (a)(1).) The statute reflects the Legislature's determination that in
domestic violence cases, similar prior offenses are uniquely probative of a defendant's
guilt on a later occasion. (People v. Johnson (2010) 185 Cal.App.4th 520, 532
(Johnson).) "Domestic violence" includes abuse against a girlfriend or former girlfriend.
(§ 1109, subd. (d)(3); Pen. Code, 13700, subd. (b).)
Even if other act evidence is relevant and admissible under section 1101,
subdivision (b) or section 1109, it must be excluded under section 352 where its
probative value is substantially outweighed by the probability that its admission will
consume too much time, cause undue prejudice, confuse the issues, or mislead the jury.
(§§ 352, 1109, subd. (a)(1); People v. Foster (2010) 50 Cal.4th 1301, 1331.) The
prejudice that section 352 is designed to avoid is not the damage that naturally results
from highly probative evidence, but rather the prospect of leading the jury to prejudge a
person or focus on extraneous factors. (People v. Tran (2011) 51 Cal.4th 1040, 1048.)
We review the admission of other act evidence for abuse of discretion. (Gutierrez, supra,
20 Cal.App.5th at p. 860; Johnson, supra, 185 Cal.App.4th at p. 531.)
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c. Analysis
We readily conclude that the trial court did not err in admitting eight items of
other act evidence under sections 1109 and 1101, subdivision (b). Merchant was accused
of kidnapping Lisa, inflicting physical abuse, dissuading her from seeking assistance, and
robbing her during the chaotic car ride. Prior act evidence admitted by the court was
highly probative because it shared broad similarities with the charged conduct. Three of
the prior acts involved Merchant hitting or punching his then-girlfriend in a moving
vehicle. Two involved Merchant preventing J.C. from using her cell phone to call for
help. In three instances, Merchant prevented J.C. from leaving or grabbed her belongings
as she tried to leave. Two prior acts showed Merchant's propensity for engaging in
physical violence against Lisa, the victim in this case. That Merchant incessantly called
J.C. from jail in violation of a criminal protective order bolstered evidence at trial that he
had done the same to Lisa. None of the prior acts occurred more than 10 years before the
charged offenses. (§ 1109, subd. (e).)
Taken together, the prior act evidence demonstrated Merchant's pattern of control
in romantic relationships. He tended to convert verbal disagreements with his girlfriend
into physical abuse, inflict physical violence (including in a moving vehicle), prevent her
from leaving, and block her attempts to call for help. This pattern was highly probative
of his propensity to engage in similar conduct on December 22 as charged. (§ 1109,
subd. (a).) It was also highly probative of his intent (lack of mistake) and common plan
17
or pattern of behavior in committing the charged offenses. (§ 1101, subd. (b).)4 Given
the nature of the evidence, the court reasonably found that the probative value of
admission outweighed its prejudicial effect. (§ 352.)
It is significant that the court excluded four items of prior act evidence. In three of
the excluded incidents, Merchant merely threatened J.C. or caused property damage. The
extent of physical violence in these incidents was found minimally probative to the case.
The court further reasoned that at some point, domestic violence evidence concerning
J.C. became cumulative and more prejudicial than probative. It excluded Merchant's
criminal threat against his stepfather—the victim was not someone Merchant had dated,
and the act was minimally probative of his intent or common plan.
As we read the record, the trial court carefully weighed relevant factors to admit
acts that bore a reasonable similarity to the charged offenses and exclude those deemed
cumulative or minimally probative. The admitted domestic violence evidence was highly
probative and not unduly prejudicial, as it did not invite the jury to prejudge Merchant or
consider extraneous factors. Merchant complains of the "sheer volume of incidents
4 Merchant claims there is insufficient overlap between the prior acts and the
charged offenses to show intent or common plan under section 1101, subdivision (b).
But exact overlap is not required for these purposes. The least degree of similarity is
required to show intent; all that is needed is sufficient similarity to support the inference
that the defendant probably harbored the same intent in each instance. (Ewoldt, supra, 7
Cal.4th at p. 402.) Although a greater degree of similarity is required to show a common
design or plan, this too requires only enough common features to suggest the existence of
a general pattern or scheme rather than a series of spontaneous acts. (Id. at p. 403.) The
design or plan so revealed "need not be unusual or distinctive; it need only exist to
support the inference that the defendant employed that plan in committing the charged
offense." (Ibid.) Those standards were satisfied here as to evidence admitted under
section 1101, subdivision (b).
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introduced," but the court's decision to admit eight out of 12 items, rather than just five or
three fell squarely within its purview. (See, e.g., Kerley, supra, 23 Cal.App.5th at p. 536
["it is the frequency, regularity, and severity with which [the defendant] beat [the victim]
that infuses this propensity evidence with probative strength"].) Simply put, we cannot
say the court abused the discretion it so clearly exercised.
We reject each of Merchant's arguments to the contrary. He claims the incidents
involving J.C. had no probative value. But the fact that Merchant engaged in domestic
violence against two different women strengthens its probative value on propensity.
(People v. Morton (2008) 159 Cal.App.4th 239, 247.) Courts have consistently rejected
his next claim—that the admission of propensity evidence under section 1109 violates
due process. (People v. Johnson (2000) 77 Cal.App.4th 410, 419; People v. Brown
(2000) 77 Cal.App.4th 1324, 1334; People v. Escobar (2000) 82 Cal.App.4th 1085, 1096;
People v. Cabrera (2007) 152 Cal.App.4th 695, 704.) Proper application of section
1101, subdivision (b) likewise does not implicate due process. (People v. Thompson
(2016) 1 Cal.5th 1043, 1116.)5
Merchant argues the instruction on propensity evidence invited the jury to convict
him under a lower standard of proof. The jury was told to evaluate whether prior acts of
domestic violence occurred under a preponderance standard. The instruction explained
that a finding that abuse occurred was a single factor to consider and insufficient standing
5 Merchant does not explain how admitting prior act evidence under section 1101,
subdivision (b) implicated his right to equal protection, and we do not address that
unsupported claim.
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alone to prove guilt. It also made clear that even if past domestic violence occurred, the
prosecution still had to prove each charge and allegation beyond a reasonable doubt.
(Former CALCRIM No. 852, now CALCRIM No. 852A.)6 As Merchant concedes,
courts have consistently rejected the claim he makes. (People v. Reyes (2008) 160
Cal.App.4th 246, 250−253; Kerley, supra, 23 Cal.App.5th at p. 543.)
Finally, Merchant argues his 2011 conviction for false imprisonment was
inadmissible under section 1109 because it was not a qualifying act of domestic violence.
Domestic violence includes "abuse" directed against a girlfriend, which in turn "means
intentionally or recklessly causing or attempting to cause bodily injury, or placing
another person in reasonable apprehension of imminent serious bodily injury to himself
or herself, or another." (Pen. Code, § 13700, subds. (a)−(b).) The 2011 conviction
stemmed from a July 2009 incident in which Merchant punched J.C. while driving on the
freeway, refused to take her home, and prevented her from leaving when they reached his
house. This qualified as domestic violence because his acts placed J.C. in reasonable
apprehension of serious bodily injury. (See People v. James (2010) 191 Cal.App.4th 478,
483 [burglary with intent to commit domestic violence was admissible under section
1109; when defendant broke down his girlfriend's door and threatened her, he placed her
6 Defense counsel further clarified the standard during closing argument: "And as
the instruction states, just because you find by a preponderance of the evidence some
prior abuse occurred does not by itself prove that what happened here actually occurred
beyond a reasonable doubt. Because you still must find that what he's charged with,
which is what happened on December 22nd, 2014, actually occurred beyond a reasonable
doubt."
20
in reasonable apprehension of serious bodily harm].) Our conclusion does not turn on
whether there was evidence "about how J.C. felt" during the incident.
3. Sufficiency of the Evidence
Merchant makes a two-sentence argument that his convictions must be reversed
for insufficient evidence. This contention turns entirely on his two claims of evidentiary
error. Absent improperly admitted hearsay and propensity evidence, Merchant maintains
there is insufficient evidence to sustain the convictions. Because we find no error in the
admission of Lisa's unconfronted statements, or in the admission of prior domestic
violence evidence, we likewise reject his insufficiency-of-the-evidence claim.
DISPOSITION
The judgment is affirmed.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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