Filed 1/3/20 P. v. Weems CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ZIR ION WEEMS,

Defendant and Appellant.

C082142

(Super. Ct. No. CM042159)

Defendant Zir Ion Weems abused his wife Angelica over a long period of time and eventually killed her. Convicted of first degree murder and sentenced to 25 years to life in state prison, defendant appeals.

Defendant now contends (1) evidence relating to his prior abuse of Angelica, including evidence of her unexplained bruising and scratches, was not admissible under Evidence Code section 1109 because the evidence was “too vague to show any criminal agency for such bruises and scratches”; (2) Heather Doe’s hearsay statements in a 911 call were improperly admitted under Evidence Code section 1240; (3) the trial court erred by admitting hearsay testimony of Angelica’s statements concerning prior abuse under Evidence Code section 1390, the hearsay exception for forfeiture by wrongdoing, because there was no legal proceeding pending when Angelica made the statements; (4) admission of Angelica’s and Heather Doe’s statements violated his federal due process rights; and (5) the cumulative effect of errors in the trial court caused prejudice requiring reversal.

We conclude (1) there is no prerequisite of a “criminal agency” for evidence admitted under Evidence Code section 1109; (2) there is no “Heather Doe” involved in this case; (3) there is no prerequisite under Evidence Code section 1390 that the statements be made when a legal proceeding is pending; (4) admission of Angelica’s statements did not violate defendant’s due process rights and, as noted before, there is no Heather Doe involved in this case; and (5) there was no accumulated prejudice.

In addition to those conclusions, we also note that (6) the abstract of judgment reflects a sentence of life with the possibility of parole but does not designate the minimum parole eligibility of 25 years.

Accordingly, we will affirm the judgment and direct the trial court to prepare a corrected abstract of judgment.

BACKGROUND

Defendant married Angelica after she got pregnant when she was 16 years old. Angelica’s mother had been hesitant to consent to the marriage but finally relented. Shortly after the marriage, defendant whispered to Angelica’s mother, “Now she’s mine.” Defendant and Angelica eventually had four children.

During the marriage, defendant frequently yelled at Angelica, commanded her to do things, and called her demeaning names in front of other family members. Angelica also frequently had black eyes and bruises on her arms and legs. Defendant treated Angelica in a controlling manner and said that, if Angelica ran away, “heads would roll,” referring to family members. Family members and friends noted that defendant isolated Angelica during the year or more before her death.

When Angelica went missing, she and defendant, with their children, had been staying at the home of defendant’s grandmother. Defendant and his father were replacing the kitchen floor. In the evening, defendant and Angelica left the house for a walk. Defendant returned without Angelica and said she had gone for a walk by herself. Angelica did not return that night. In the morning, defendant was also gone.

During the evening of the next day, defendant was found near a shed on his grandmother’s property. He was bleeding from large lacerations on his arms. A bloody razor-blade tool was in the shed. Defendant was dirty and had dirt under his fingernails. When defendant later spoke to his mother, she asked about Angelica, and defendant told her that Angelica did not want him anymore.

Angelica’s body was found less than a month later, buried in sand near the Sacramento River. It was a place defendant had visited frequently with family members. Angelica was wearing what she wore on the day she went missing, and an empty can of the kind of soda defendant drank was found nearby.

Several witnesses testified concerning injuries they observed on Angelica during her marriage to defendant and statements Angelica made about defendant’s abuse and threats. For example, one of Angelica’s coworkers testified Angelica told her defendant threatened to kill Angelica and Angelica’s mother. Defendant’s brother testified Angelica told him defendant kicked her in the back or bottom. Defendant’s sister testified she saw Angelica hide from defendant, and that Angelica was fearful, shaky, and crying. Angelica had scratches on her face and arm and said defendant had attacked her. Another one of Angelica’s coworkers testified that Angelica came to work with black eyes and scratches on her face and neck. Additional witnesses testified about Angelica’s statements, but defendant’s contentions on appeal do not require that we recount each one.

DISCUSSION

I

Defendant contends evidence relating to his prior abuse of Angelica, including evidence of her unexplained bruising and scratches, was not admissible under Evidence Code section 1109 because the evidence was “too vague to show any criminal agency for such bruises and scratches.”

“[I]n 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 [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1109, subd. (a).)

In support of his argument that there must be proof of a criminal agency before evidence may be admitted under Evidence Code section 1109, defendant cites five cases. However, those cases discuss the sufficiency of evidence; they do not discuss the type of prerequisite asserted by defendant for admitting evidence under Evidence Code section 1109. (See, e.g., Hall v. Superior Court (1953) 120 Cal.App.2d 844, 849 [corpus delicti requires evidence of criminal agency].) Failure to provide relevant authority for the point asserted forfeits the point. (People ex. rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 38.) Moreover, whether Angelica’s bruises and scratches were inflicted by defendant in acts of domestic violence was simply a question of fact for the jury to determine. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1096 [whether domestic violence occurred for purposes of Evid. Code, § 1109 is a question of fact for jury].)

II

Defendant contends Heather Doe’s hearsay statements in a 911 call were improperly admitted under Evidence Code section 1240. But there is no “Heather Doe” involved in this case, and defendant’s citations to the record for this argument do not resolve the mystery of the nonexistent witness. Noting these problems, the Attorney General does not make a substantive argument on this issue in the respondent’s brief. In a sentence attached to the end of a footnote in his reply brief, defendant states the contention concerning Heather Doe in the opening brief was meant to be applied to certain statements made by Angelica to a person named E.G., and those statements were not made in a 911 call.

Defendant forfeited the contention concerning specified statements made by Angelica to E.G. because he did not make it clearly enough in the opening brief to allow the Attorney General to respond. For obvious reasons of fairness, issues raised for the first time in the reply brief are forfeited when there is no good cause for having failed to raise them in the opening brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 (Neighbours).)

III

Defendant contends the trial court erred in admitting hearsay testimony of Angelica’s statements concerning his prior abuse under Evidence Code section 1390, the hearsay exception for forfeiture by wrongdoing, because there was no legal proceeding pending when Angelica made the statements.

Evidence Code section 1390, subdivision (a) 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 party seeking to introduce evidence under this hearsay exception (here, the prosecution) must establish admissibility in a foundational Evidence Code section 402 hearing. The hearsay may be used in the foundational hearing, but there must also be independent corroborative evidence to support admission of the hearsay evidence at trial. (Evid. Code, § 1390, subd. (b).)

After a foundational hearing, the trial court ruled that, under the forfeiture-by-wrongdoing hearsay exception, several witnesses could testify concerning Angelica’s statements to them about defendant’s abuse. Some of the hearsay evidence is recounted in the background, above.

The forfeiture-by-wrongdoing hearsay exception sprang from the United States Supreme Court’s confrontation clause jurisprudence. A defendant forfeits his Sixth Amendment right to confront a witness against him when the defendant, by a wrongful act, makes the witness unavailable to testify at trial. (Giles v. California (2008) 554 U.S. 353, 355, 358 [171 L.Ed.2d 488] (Giles).) In Giles, the United States Supreme 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. 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 courts to protect the integrity of their proceedings.’ ” (Id. at p. 374.)

In Giles, the court addressed application of the doctrine specifically to domestic violence cases: “Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution — rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” (Giles, supra, 554 U.S. at p. 377.) Thus, the doctrine applies to evidence the defendant intended to dissuade the victim from reporting the abuse to law enforcement authorities, as well as from testifying at trial. (People v. Banos (2009) 178 Cal.App.4th 483, 502.)

There was ample evidence defendant sought to isolate Angelica and prevent her from reporting his abuse. On appeal, however, defendant argues the forfeiture-by-wrongdoing hearsay exception was unavailable to the prosecution because there was no pending legal proceeding against defendant when he isolated, abused, and finally killed Angelica. He asserts: “None of Angelica’s hearsay statements could have been properly admitted under [Evidence Code] section 1390(a) because there was no evidence that any legal proceeding at which Angelica might be a witness was pending at the time the statements were made. The closest thing to such evidence was the information that Angelica filled out a domestic violence services form with a private agency, and there was no evidence that this form ever led to any legal proceeding such as a petition for a domestic violence restraining order. As there were no proceedings at which Angelica might have been a witness at the time of her death, none of her statements could have been admissible under [Evidence Code] section 1390(a).” (Fn. omitted.)

Defendant provides no authority for his attempt to impose a prerequisite (namely, a pending legal proceeding) to invoking the forfeiture-by-wrongdoing hearsay exception. We know of no such authority and disagree that this prerequisite exists. Defendant implies that, because the forfeiture-by-wrongdoing doctrine applies to defeat a confrontation-clause challenge to admission of a testimonial statement, the declarant’s prior statement must have been testimonial to qualify for the forfeiture-by-wrongdoing hearsay exception. Although the forfeiture-by-wrongdoing doctrine may work as an exception to a confrontation-clause challenge that a statement was testimonial and therefore inadmissible, Evidence Code section 1390 is expressed as an exception to the hearsay rule and does not require that the statement be made while a legal proceeding was pending. Therefore, defendant’s attempt to impose this prerequisite to invoking the forfeiture-by-wrongdoing hearsay exception is without merit.

In his reply brief, defendant observes that the deceased witness’s statements were made to police in Giles and in People v. Kerley (2018) 23 Cal.App.5th 513, a recent case applying the forfeiture-by-wrongdoing hearsay exception. But, while those cases involved statements to police, the courts did not suggest that the forfeiture-by-wrongdoing hearsay exception would not apply to statements made to people other than police. Furthermore, a requirement that the statements be made to police is different from a requirement that there be a pending legal proceeding, which was defendant’s argument in his opening brief. Therefore, defendant’s attempt to raise a new argument in his reply brief is forfeited. (Neighbours, supra, 217 Cal.App.3d at p. 335, fn. 8.)

Defendant also asserts that Angelica’s statements to defendant’s brother were not admissible spontaneous statements under Evidence Code section 1240. Because Angelica’s statements to defendant’s brother were admitted under Evidence Code section 1390, we need not consider separately whether they were admissible under Evidence Code section 1240.

IV

Defendant argues that admission of Angelica’s statements violated his due process rights because it was fundamentally unfair. However, he does not explain how admission of the evidence was fundamentally unfair. Defendant also argues that arbitrary deprivation of a purely state law entitlement violates due process. But, he fails to explain how the trial court arbitrarily deprived defendant of a state law entitlement. An appellant bears the heavy burden of demonstrating a constitutional violation. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1095.) Simply stating that admission of evidence violated his constitutional due process rights does not carry that burden.

In addition, defendant claims the admission of Heather Doe’s statements violated his due process rights. As we have explained, however, there is no Heather Doe in this case.

Defendant’s contentions lack merit.

V

Defendant contends the cumulative effect of errors in the trial court caused prejudice requiring reversal. We have found no trial court error. Therefore, defendant’s cumulative-error contention is without merit.

VI

An abstract of judgment must reflect the judgment imposed by the trial court. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Here, the abstract of judgment reflects a sentence of life with the possibility of parole, but it does not accurately reflect the minimum parole eligibility of 25 years. We will direct the trial court to correct the abstract of judgment in this regard.

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment reflecting defendant’s minimum parole eligibility of 25 years and to send the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

/S/

MAURO, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

HULL, J.