People v. Banos, B194272 (Cal. App. 1/29/2008)
| Decision Date | 29 January 2008 |
| Docket Number | B194272 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MANUEL C. BANOS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from a judgment of the Superior Court of Los Angeles County, No. GA056949, Zaven V. Sinanian, Judge. Affirmed.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Manuel C. Banos appeals from his conviction of second degree murder of Mary Cortez and first degree burglary. He contends the trial court erred in admitting into evidence statements Cortez made to police regarding acts of domestic violence committed by defendant against her. We affirm.
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that on June 7, 2003, defendant was arrested for hitting Cortez, his ex-girlfriend, after Cortez reported the incident to police. On July 23, 2003, a protective order was issued proscribing defendant from annoying, harassing, striking, threatening or disturbing Cortez for three years. Over the next several months, defendant was arrested several more times after Cortez reported his acts of violence against her to the police. When City of Burbank Police Officer Edmund Zepeda arrived at Cortez's apartment after one such incident on March 27, 2004, he saw defendant, who was already in handcuffs.
Meanwhile, Cortez began dating defendant's friend, Javier Garcia. On April 10, 2004, Garcia and Cortez spent the evening together before returning to Cortez's apartment. When defendant called there three times about 3:00 a.m., Garcia answered the phone each time. The first two times, Garcia simply hung up; the third time, Garcia gave the phone to Cortez. When Cortez handed the phone back to Garcia, she told him that defendant had threatened to kill her. A little later, Cortez heard noises outside. Garcia looked out the window and saw someone trying to peek in. Garcia told Cortez to call the police. As defendant came in through the window, Garcia ran into the kitchen and armed himself with a knife and knife sharpener before returning to the bedroom to confront defendant. But Garcia got scared and ran out of the apartment. As he was leaving, Garcia saw defendant running toward Cortez with his right arm raised. Once outside, Garcia threw away the knife and knife sharpener he had picked up. He was on the next street when he heard Cortez calling his name and screaming for help.
Cortez was still alive about 4:00 a.m., when Zepeda and his partner, who were investigating a report of a disturbance between a boyfriend and girlfriend, heard the sound of a woman moaning coming from Cortez's apartment. Through the open front door, Zepeda saw defendant, whom he recognized from the prior arrest, wearing black gloves and kneeling beside a female body. Still standing outside the front door, Zepeda identified himself as a police officer. Defendant stood up, said "my wife" a few times and walked towards Zepeda. When he reached the front door, defendant slammed it shut. As Zepeda tried to kick the door open he heard someone running towards the back of the apartment. As he ran down the walkway between buildings, Zepeda heard the back door slam. Arriving at the back of the building, Zepeda did not see defendant, but heard rustling in the bushes. Recalling that there was a victim inside the apartment, Zepeda abandoned the search for defendant and returned to the apartment.
Back inside the apartment, Zepeda asked Cortez, who was lying on the floor covered in blood, where she was hurt, but Cortez just moaned. Zepeda accompanied her in an ambulance to the hospital while his partner remained at the apartment to preserve the scene.
Defendant was apprehended later that morning after a foot chase through a nearby multi-level parking lot. He was transported to Cortez's apartment where he was left alone in the back of a patrol car with a friend. Unbeknownst to the two men, their conversation was recorded and the recording was introduced into evidence. Defendant said to his friend: Defendant said he used a hammer to "smash[] her . . . so she'll learn, that fucking whore." (Italics in original.) When interviewed by the police, defendant admitted threatening Cortez, climbing through the bedroom window and hitting Cortez with a piece of wood.
At trial, defendant testified that he moved in with Cortez in late 2001. She practiced witchcraft and defendant believed she had the power to cast spells. Six months after moving in with her, defendant began to get headaches, which he believed Cortez was making happen. Even after Cortez caused him to be arrested several times, defendant reunited with her because he was bewitched and completely under her control.
Defendant was once again living with Cortez, on April 10, 2004, when he called and told her that he would be spending the night with his sister because it was closer to work. But he got drunk and decided to go back to Cortez's apartment about 2:00 a.m. He did not then know that she was with Garcia and he did not intend to kill her.
Arriving at Cortez's apartment in the early morning hours of April 11, 2004, defendant used his own key to open the front door. In the bedroom, defendant found Cortez and Garcia in bed together. Defendant recalled: After hitting Cortez in the head with the hammer, defendant Defendant next went out of the front door and threw the hammer in one trash bin and his sweatshirt in a neighbor's trash bin. Returning to the apartment, he replaced his bloody shorts with a pair of Garcia's pants and then went outside again to throw the bloody shorts across the street. Returning to the apartment once again, defendant tried to "fix everything," including replacing the window screen. When the police came, defendant slammed the front door and ran out the back.
The jury found defendant guilty of second degree murder and two counts of first degree burglary.1 It found true two allegations that he personally used deadly or dangerous weapons in the murder — a piece of wood and a hammer. Defendant admitted prior convictions alleged pursuant to the "Three Strikes" law and Penal Code section 667, subdivision (a)(1). He was sentenced to a total of 36 years to life in prison.
Defendant's sole contention on appeal is that, under Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford), he was denied due process and his Sixth Amendment right to confront and cross-examine witnesses as a result of the admission into evidence of statements made by Cortez to police on June 7, 2003, December 30, 2003, and March 27, 2004, when she reported defendant's acts of domestic violence against her. We disagree.
In Crawford, the United States Supreme Court held that the confrontation clause bars the admission of out-of-court "testimonial" statements except when the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at pp. 61-68.) According to the previous rule, announced in Ohio v. Roberts (1980) 448 U.S. 56, 66, a criminal defendant's Sixth Amendment rights did not bar admission of an unavailable witness's statement if the statement bore "adequate indicia of reliability," which occurred when the evidence either fell within a firmly rooted hearsay exception or bore particular guarantees of trustworthiness. But under Crawford, hearsay rules and judicial determinations of reliability no longer satisfy a defendant's confrontation right: "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." (Crawford, supra, at pp. 68-69.)
However, the court in Crawford renounced only those exceptions to the...
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