People v. Banos

Decision Date19 October 2009
Docket NumberNo. B194272.,B194272.
CourtCalifornia Court of Appeals Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. MANUEL BANOS, Defendant and Appellant.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RUBIN, Acting P. J.

INTRODUCTION

In 2006, a jury convicted defendant Manuel Banos of the second degree murder of his ex-girlfriend, Mary Ann Cortez, and two counts of first degree burglary. On appeal, defendant challenges on Sixth Amendment grounds the admission into evidence of certain of Cortez's out-of-court statements to police during prior domestic violence investigations. In an earlier opinion, we affirmed the judgment after upholding the admission of those statements under the forfeiture by wrongdoing exception to the confrontation clause as articulated by our Supreme Court in People v. Giles (2007) 40 Cal.4th 833 [55 Cal.Rptr.3d 133, 152 P.3d 433], certiorari granted sub nom. Giles v. California (2008) ___ U.S. ___ [169 L.Ed.2d 800, 128 S.Ct. 976] (Giles I). Under that doctrine, a defendant may forfeit the right to confront a witness when he has killed that witness or otherwise made the witness unavailable at trial. (People v. Banos (Jan. 29, 2008, B194272) [nonpub. opn.].) The United States Supreme Court vacated our judgment and transferred the case back to us for reconsideration in light of its decision in Giles v. California (2008) 554 U.S. ___ [171 L.Ed.2d 488, 128 S.Ct. 2678] (Giles II). In Giles II, the court concluded that the forfeiture by wrongdoing exception applies only upon a showing that the defendant killed the witness for the purpose of making him or her unavailable as a witness at trial.

(1) We have now considered defendant's appeal in light of Giles II and again affirm the judgment. Certain of Cortez's statements are not testimonial and are admissible under Crawford v. Washington (2004) 541 U.S. 36, 53-54 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford) and Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224, 126 S.Ct. 2266] (Davis). The balance is admissible under the forfeiture by wrongdoing exception, as formulated in Giles II: there was substantial evidence that defendant killed Cortez to prevent her from reporting his prior conduct to police and from testifying against him. That defendant may have also had other motives for the killing (e.g., retribution for infidelity) does not preclude application of the exception.

FACTUAL AND PROCEDURAL BACKGROUND

We recite the evidence in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358 [75 Cal.Rptr.3d 289, 181 P.3d 105]). Much of the evidence was unchallenged, including testimony that victim Cortez's complaints to police had resulted in defendant's arrest three times in the 10 months before Cortez was killed. Because of the significance of these arrests on the issue remanded to us, we start our factual summary with events prior to the Cortez killing.

A. Prior Arrests of Defendant for Domestic Violence
1. June 7, 2003

When Burbank Police Officer Mark Armendariz responded to Cortez's apartment around 10:45 p.m., on June 7, 2003, Cortez was "excited" and "upset." Armendariz and Cortez spoke about defendant's physical assault on her earlier that day. Armendariz left to see if defendant was still in the vicinity, did not find him and then resumed other duties.

Minutes after Officer Armendariz left, Cortez again called 911. The admission into evidence of the recording of that telephone call is not challenged on appeal.1 Although the telephone call was to 911, most of the recorded material was an exchange between Cortez and defendant:

"CORTEZ: I'm in trouble.

"[DEFENDANT]: Do you want to speak to the police?

"CORTEZ: No.

"[DEFENDANT]: Are you going to talk?

"CORTEZ: Yes. [¶] . . . [¶]

"CORTEZ: Why are you hitting me?

"[DEFENDANT]: I am going to kill you. (Unintelligible.)

"CORTEZ: What do you want, Manuel?

"[DEFENDANT]: Sit back.

"CORTEZ: I didn't call anybody.

"[DEFENDANT]: (Unintelligible.)

"CORTEZ: Manuel, my phone don't reach. Manuel (Unintelligible.) Leave me alone. I just want to sit down. (Screams.) (Cries.)

"[DEFENDANT]: (Unintelligible.) I'll kill you, true to God. (Unintelligible.)

"CORTEZ: (Cries.)

"[DEFENDANT]: Are you going to speak to the cops? Are you going to speak?

"CORTEZ: (Unintelligible.)

"[DEFENDANT]: Are you going to shut up or am I going to kill you?

"CORTEZ: Uh-huh.

"[DEFENDANT]: Are you going to shut up or am I going to kill you? I am going to kill you. Are you going to shut up? Are you going to shut up?

"CORTEZ: Hum.

"[DEFENDANT]: Um?

"CORTEZ: Uh-huh.

"[DEFENDANT]: Are you going to shut up?

"CORTEZ: (Unintelligible.)

"[DEFENDANT]: What?

"CORTEZ: Yeah.

"[DEFENDANT]: I am going to kill you. (Unintelligible.)"

The sound of Officer Armendariz entering the apartment a second time then can be heard on the tape.

Officer Armendariz testified that, about 10 minutes after first leaving Cortez, he was dispatched back to her apartment "code three," which means with lights and siren activated. When Armendariz arrived back at the apartment, defendant was sitting on the couch next to Cortez. Defendant was arrested. On July 23, 2003, a protective order was issued which restrained defendant from annoying, harassing, striking, threatening or disturbing Cortez for a period of three years.

2. December 30, 2003

Some six months later, Officer Armendariz and his partner, Officer Mark Neufeld, were dispatched to Cortez's apartment to investigate a possible violation of the restraining order. When they arrived, Neufeld saw defendant walking out of Cortez's apartment. Defendant told Neufeld that he had arrived about an hour earlier; defendant said he was aware of the restraining order but wanted to reunite with Cortez. The officers also spoke to Cortez, whom Neufeld described as "frightened, very nervous." Defendant was arrested a second time.

3. March 27, 2004

Three months later, Burbank Police Officer Fernando Rojas was dispatched to a 7-Eleven in response to a 911 call regarding violation of a restraining order. At the 7-Eleven, Rojas spoke to Cortez. After verifying the existence of the court order, Rojas went to Cortez's apartment where he found defendant inside. Defendant was arrested a third time.

A hearing on defendant's alleged violation of the July 23, 2003 protective order was scheduled for April 19, 2004.

B. The Killing

By April 2004, Cortez had begun dating defendant's friend, Javier Garcia. On April 10, 2004, nine days before the scheduled hearing on the restraining order violation, Garcia and Cortez spent the evening together before returning to Cortez's apartment. Defendant made three phone calls to the apartment around 3:00 a.m. Each time, Garcia answered the phone. On the first two occasions, 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 short while 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 a knife sharpener but got scared and ran out of the apartment. As he was leaving, Garcia saw defendant running toward Cortez with his right arm raised. 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 Burbank Police Officer Edmundo Zepeda and his partner heard the moaning sounds of a woman from Cortez's apartment. Through the open front door, Zepeda saw defendant, whom he recognized from a 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 toward Zepeda. When he reached the front door, defendant slammed it shut. As Zepeda tried to kick the door open, he heard someone running toward the back of the apartment. As he ran down the walkway between buildings in pursuit, Zepeda heard the back door slam. Arriving at the back of the building, Zepeda did not see defendant, but heard rustling in the bushes. Because there was a victim inside the apartment, Zepeda abandoned the search for defendant and returned to the residence.

Back inside the apartment, Officer Zepeda found Cortez lying on the floor covered in blood. He asked her where she was hurt, but Cortez's response was incoherent. 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 and transported to the vicinity of 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. The recording was introduced into evidence; on it defendant is heard saying to his friend: "I got even with that whore, like I wanted to. I'm very happy." Defendant said he used a hammer to "smash[] her . . . so she'll learn, that fucking whore." When interviewed by the police, defendant admitted threatening Cortez, climbing through the bedroom window and hitting Cortez with a piece of wood.

C. Defense Case

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 having headaches, which he believed Cortez was causing. Even after Cortez caused him to be arrested several times, defendant reunited with her because he was bewitched and completely under her control.

Defen...

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    ...is to seek police protection rather than to establish facts for use in a prosecution is not testimonial. People v. Banos (2009) 178 Cal. App. 4th 483, 497, 100 Cal. Rptr. 3d 476 (declarant called 911 from a phone booth because she was afraid to return home); People v. Saracoglu (2007) 152 C......
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    ...to testify, she refused and he became enraged; defendant had murdered the only witness to one of his irst killings. People v. Banos , 100 Cal.Rptr.3d 476 (Cal. App. 2009). The Giles limitation is implicated not only when the defendant intends to prevent a witness from testifying in court, b......
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