Stanford Law School - Robert Crown Law Library

Filed 3/5/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S129852
v.
Ct.App. 2/6 B166937
DWAYNE GILES,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. TA066706

In this case, defendant admitted that he killed his ex-girlfriend, but claimed
that the killing was committed in self-defense. Over defendant’s objection, the
trial court admitted the victim’s prior statements to a police officer who had been
investigating a report of domestic violence involving defendant and the victim.
The prior incident had occurred a few weeks before the killing. The victim related
that, during that incident, defendant had held a knife to her and threatened to kill
her.
Did defendant forfeit his right to confront his ex-girlfriend about the prior
incident of domestic violence by killing her and thus making it impossible for her
to be at the murder trial? Does the doctrine of “forfeiture by wrongdoing” apply
where the alleged “wrongdoing” is the same as the offense for which defendant
was on trial? Under that equitable doctrine, a defendant is deemed to have lost the
right to object on confrontation grounds to the admission of out-of-court
statements of a witness whose unavailability the defendant caused.
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As explained below, we conclude that defendant forfeited his right to
confront his ex-girlfriend when he killed her.
FACTS1
A. The shooting.
Defendant dated Brenda Avie for several years. On the night of September
29, 2002, he was staying at his grandmother’s house along with several other
family members. Defendant was in the garage socializing with his niece Veronica
Smith, his friend Marie Banks, and his new girlfriend, Tameta Munks, when
defendant’s grandmother called him into the house to take a telephone call from
Avie. He returned to the garage and spoke to Munks, who then left.
Avie arrived at the house about 15 minutes later, after Munks had already
left. She spoke with Smith and Banks in the garage for about half an hour. Smith
went into the house to lie down and heard Avie and Banks leaving the garage
together. A few minutes later, Smith heard defendant and Avie speaking to one
another outside in a normal conversational tone. Avie then yelled “Granny”
several times, and Smith heard a series of gunshots.
Smith and defendant’s grandmother ran outside and discovered defendant
holding a nine-millimeter handgun and standing about 11 feet from Avie, who was
bleeding and lying on the ground. Defendant’s grandmother took the gun from
him and called 911. Smith drove defendant away from the house at his request,
but he jumped out of her car and ran away after they had traveled several blocks.
Defendant did not turn himself in to the police and was eventually arrested on
October 15, 2002.
1
As the relevant facts are undisputed, they are taken directly from the
Court of Appeal’s opinion.
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Avie had been shot six times in the area of her torso. Two of the wounds
were fatal; one was consistent with her holding up her hand at the time she was
shot; one was consistent with her having turned to her side when she was shot; and
one was consistent with her being shot while she was lying on the ground. Avie
was not carrying a weapon when she was shot.
Defendant testified at trial and admitted shooting Avie, but claimed he had
acted in self-defense. He explained that he had a tumultuous relationship with
Avie and was trying unsuccessfully to end it. Avie would get very jealous of other
women, including Tameta Munks, whom he had been dating. Defendant knew
that Avie had shot a man before she met him, and he had seen her threaten people
with a knife. He claimed that Avie had vandalized his home and car on two
separate occasions.
According to defendant, he had a “typical” argument with Avie when she
called him on the telephone on the day of the shooting. He told her Munks was at
the house and Avie said, “Oh, that bitch is over there. Tell her I’m on my way
over there to kill her.” Defendant told Munks to leave because he was worried
about the situation, and Avie arrived soon afterwards. Defendant told everyone to
leave and began closing up the garage where they had congregated. Avie walked
away with Marie Banks, but she returned a few minutes later. Avie told defendant
she knew Munks was returning and she was going to kill them both. Defendant
stepped into the garage and retrieved a gun stowed under the couch. He
disengaged the safety and started walking toward the back door of the house.
Avie “charged” him, and defendant, afraid she had something in her hand, fired
several shots. Defendant testified that it was dark and his eyes were closed as he
was firing the gun. He claimed that he did not intend to kill her.
Marie Banks testified that she had seen defendant and Avie get into
arguments before. Avie seemed angry when she came to defendant’s
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grandmother’s house on the day of the shooting, and she talked to defendant for
about half an hour until defendant told everyone to leave. Avie and Banks left
together, but as they were walking away they saw Munks. Avie said, “Fuck that
bitch. I’m fixin’ to go back.” She walked back toward defendant’s grandmother’s
house and Banks went home. Banks did not see the shooting.
B. The prior incident of domestic violence.
On September 5, 2002, a few weeks before the shooting, Officer Stephen
Kotsinadelis and his partner investigated a report of domestic violence involving
defendant and Avie. Defendant answered the door, apparently agitated, and
allowed them to enter. Avie was sitting on the bed, crying. Officer Kotsinadelis
interviewed Avie while his partner spoke to defendant in a different room. Avie
said she had been talking to a female friend on the telephone when defendant
became angry and accused her of having an affair with that friend. Avie ended the
call and began to argue with defendant, who grabbed her by the shirt, lifted her off
the floor, and began to choke her with his hand. She broke free and fell to the
floor, but defendant climbed on top of her and punched her in the face and head.
After Avie broke free again, defendant opened a folding knife, held it about three
feet away from her, and said, “If I catch you fucking around I’ll kill you.” Officer
Kotsinadelis saw no marks on Avie, but felt a bump on her head.
RELEVANT PROCEDURAL HISTORY
The trial court admitted Avie’s hearsay statements to Officer Kotsinadelis
over defense counsel’s objection. The court ruled that the statements were
admissible under Evidence Code section 1370, which establishes a hearsay
exception for out-of-court statements describing the infliction of physical injury
on the declarant when the declarant is unavailable to testify at trial and the
statements are trustworthy.
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The jury convicted defendant of first degree murder (Pen. Code, §§ 187,
subd. (a), 189) and found that he had personally discharged a firearm causing great
bodily injury or death.2 (§ 12022.53, subd. (d).)
The Court of Appeal upheld admission of Avie’s statements to the police.
Applying the doctrine of forfeiture by wrongdoing, the Court of Appeal held that
defendant “cannot be heard to complain that he was unable to cross-examine Avie
about her prior, trustworthy statements to law enforcement when it was his own
criminal violence that made her unavailable for cross-examination.” It noted that,
although the issue of forfeiture by wrongdoing was not litigated below, evidence
of Avie’s hearsay statements was admitted under a statutory hearsay exception
that appeared to be valid at the time of defendant’s pre-Crawford (Crawford v.
Washington (2004) 541 U.S. 36) trial. Nevertheless, the court addressed the
forfeiture issue because it was undisputed that Avie was unavailable to testify
because of her death and that her death was the result of defendant’s actions.
We granted defendant’s petition for review to decide whether the Court of
Appeal properly applied the forfeiture by wrongdoing doctrine.
DISCUSSION
The confrontation clause of the Sixth Amendment to the United States
Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.”
In Crawford v. Washington, supra, 541 U.S. 36 (Crawford), the United
States Supreme Court held that the confrontation clause (as envisioned by the
Framers of the Constitution) bars the admission of out-of-court “testimonial”
statements except when the declarant is unavailable and the defendant had a prior

2
Unless otherwise stated, all statutory references are to the Penal Code.
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opportunity to cross-examine the declarant. Crawford overruled Ohio v. Roberts
(1980) 448 U.S. 56 (Roberts), which for 24 years provided the framework
governing the admissibility of statements from witnesses who did not testify at
trial. (Crawford, supra, 541 U.S. at pp. 61-68) Roberts had permitted the
admission of hearsay statements of unavailable witnesses, without violating the
confrontation clause, if those statements fell within a firmly rooted hearsay
exception or contained particularized guarantees of trustworthiness. (Roberts,
supra, 448 U.S. at p. 66.) Holding that hearsay rules and judicial determinations
of reliability no longer satisfied a defendant’s confrontation right, Crawford
announced: “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, 541 U.S. at pp. 68-69.)
Although Crawford dramatically departed from prior confrontation clause
case law, it renounced only those exceptions to the confrontation clause that
purported to assess the reliability of testimony. (Crawford, supra, 541 U.S. at p.
62.) The court noted that forfeiture by wrongdoing, an equitable principle,
remains a valid exception to the confrontation clause: “[The Roberts test] 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. See Reynolds v. United States, 98 U.S. 145, 158-159, 25 L.Ed. 244
(1879).” (Crawford, supra, 541 U.S. at p. 62.)
Here, there is no dispute that the victim’s prior statements were testimonial
in nature. (See Davis v. Washington (2006) __ U.S. __ [126 S.Ct. 2266, 2273-
2274, 2278-2279] (Davis) [victim’s statements to responding police officer during
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questioning were testimonial; “primary purpose” of questioning was to establish
facts for later prosecution].)
Defendant acknowledges that the forfeiture by wrongdoing doctrine is an
exception to the confrontation clause, but argues that it is inapplicable here
because defendant did not kill the victim with the intent of preventing her
testimony at a pending or potential trial. Rather, where as in this case, defendant
killed the victim for unrelated personal reasons, the confrontation clause bars
admission of the victim’s prior testimonial statements. To answer defendant’s
claim, we first examine the development of the forfeiture by wrongdoing doctrine.
Although this court has not addressed the forfeiture by wrongdoing
doctrine, federal and other state courts have affirmed its validity. The United
States Supreme Court first applied the doctrine of forfeiture by wrongdoing in
Reynolds v. United States, supra, 98 U.S. 145, 158-159 (Reynolds). In Reynolds
(the only forfeiture case cited in Crawford), the defendant was on trial for bigamy.
When the court officer contacted Reynolds in an attempt to serve a subpoena on
his second wife (who had previously testified about the bigamy offense in an
earlier trial), Reynolds would not divulge her location and stated that his second
wife would not appear at the trial. Over the defendant’s confrontation clause
objection, the trial court allowed the second wife’s testimony from the defendant’s
earlier trial. (Id. at pp. 158-161.)
In applying the doctrine of forfeiture by wrongdoing, the court reasoned,
“The Constitution gives the accused the right to a trial at which he should be
confronted with the witnesses against him; but if a witness is absent by [the
defendant’s] own wrongful procurement, [the defendant] cannot complain if
competent evidence is admitted to supply the place of that which he has kept
away. The Constitution does not guarantee an accused person against the
legitimate consequences of his own wrongful acts. . . . [I]f [a defendant]
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voluntarily keeps the witnesses away, he cannot insist on his [confrontation]
privilege. If, therefore, when absent by his procurement, their evidence is
supplied in some lawful way, he is in no condition to assert that his constitutional
rights have been violated.” (Reynolds, supra, 98 U.S. at p. 158.) The court further
explained, “The rule has its foundation in the maxim that no one shall be permitted
to take advantage of his own wrong; and, consequently, if there has not been, in
legal contemplation, a wrong committed, the way has not been opened for the
introduction of the testimony.” (Id. at p. 159.)
Notably, in describing the rule, the court did not suggest that the rule’s
applicability hinged on Reynolds’s purpose or motivation in committing the
wrongful act.3 Applying that rule to the facts of the case, the court upheld the trial
court’s factual finding that Reynolds had kept his wife from testifying and ruled
that the prior testimony was properly admitted. (Reynolds, supra, 98 U.S. at pp.
158-161.)
The high court recently affirmed the equitable nature of the forfeiture
doctrine. In Davis, the court stated, “We reiterate what we said in Crawford: that
‘the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on
essentially equitable grounds.’ 541 U.S., at 62, 124 S.Ct. 1354, 158 L.Ed.2d 177
(citing Reynolds, 98 U.S., at 158-159, 25 L.Ed. 244). That is, one who obtains the
3
Reynolds reviewed antecedent English common law cases (Lord Morley’s
Case (1666) 6 How. St. Tr. 770, Harrison’s Case (1692) 12 How. St. Tr. 833, and
Regina v. Scaife (Q.B. 1851) 117 Eng. Rep. 1271) and early American antecedents
of the forfeiture cases (Drayton v. Wells (1819) 10 S.C.L. (1 Nott & McC.) 409;
Williams v. The State (1856) 19 Ga. 403). Although the facts therein involved
witnesses and acts occurring after the witnesses had been deposed or had testified,
those cases did not specifically address the intention of the defendants to prevent
the witnesses’ testimony at a pending trial. Instead, the focus was on whether
there was adequate proof that the defendants caused the witnesses’ absence.
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absence of a witness by wrongdoing forfeits the constitutional right to
confrontation.” (Davis, supra, 126 S.Ct. at p. 2280.)
Although the United States Supreme Court has cited Reynolds and
addressed this doctrine infrequently, the lower federal courts began applying the
forfeiture rule extensively in the context of witness tampering cases.4 Starting in
the 1960’s and 1970’s, the federal government placed greater emphasis on the
prosecution of organized crime and drug activity; as many of these prosecutions
involved reluctant witnesses who experienced great pressure not to testify,
forfeiture by wrongdoing became more central to prosecution efforts. (King-Ries,
Forfeiture by Wrongdoing: A Panacea for Victimless Domestic Violence
Prosecutions (2006) 39 Creighton L. Rev. 441, 452-453.)
United States v. Carlson (8th Cir. 1976) 547 F.2d 1346, was the first
modern federal circuit court case to use the defendant’s wrongdoing against a
witness to resolve a confrontation clause issue. There, the witness purchased
drugs from the defendant, but before trial refused to testify despite having been
granted immunity. The witness related that he feared reprisals, but only indirectly
implicated the defendant in the threats. (Id. at pp. 1352-1353.) The court held that
the defendant, by intimidating the witness into not testifying and causing the
witness’s unavailability at trial, was barred from raising a confrontation clause
objection to the admission of the witness’s grand jury testimony. (Id. at pp. 1358-
1359.)

4
Between Reynolds and Crawford, the United States Supreme Court cited
Reynolds infrequently and generally in the context of the admission of an
unavailable witness’s prior sworn testimony at a proceeding which the defendant
had attended. (See Diaz v. United States (1912) 223 U.S. 442, 452; West v.
Louisiana (1904) 194 U.S. 258, 265; Motes v. United States (1900) 178 U.S. 458,
471-472; Mattox v. United States (1895) 156 U.S. 237, 242.)
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Other federal cases involved witness tampering where a defendant
murdered or participated in the murders of a witness (see, e.g., United States v.
Dhinsa (2d Cir. 2001) 243 F.3d 635, 650-654; United States v. Cherry (10th Cir.
2000) 217 F.3d 811, 813, 820; United States v. Emery (8th Cir. 1999) 186 F.3d
921, 925; United States v. White (D.C. Cir. 1997) 116 F.3d 903, 911-912; United
States v. Mastrangelo (2d Cir. 1982) 693 F.2d 269, 271-273; United States v.
Thevis (5th Cir. 1982) 665 F.2d 616, 630) or threatened a witness. (See, e.g.,
United States v. Balano (10th Cir. 1979) 618 F.2d 624, 628-629; United States v.
Carlson, supra, 547 F.2d at p. 1353.) In the federal cases, the courts applied the
forfeiture by wrongdoing doctrine where the defendant, by a wrongful act, was
involved in or responsible for procuring the unavailability of a hearsay declarant,
and did so, at least in part, with the intention of making the declarant unavailable
as an actual or potential witness against the defendant. (United States v. Dhinsa,
supra, 243 F.3d at pp. 653-654; United States v. Emery, supra, 186 F.3d at pp.
925-927; United States v. Houlihan (1st Cir. 1996) 92 F.3d 1271, 1279-1280;
Steele v. Taylor (6th Cir. 1982) 684 F.2d 1193, 1198-1199, 1202; United States v.
Thevis, supra, 665 F.2d at p. 630; United States v. Balano, supra, 618 F.2d at pp.
628-629.) In many of these cases, it was held that the defendants were barred
from objecting under both the rule against hearsay and the confrontation clause.
(See, e.g., United States v. Carlson, supra, 547 F.2d at pp. 1353-1355; United
States v. White, supra, 116 F.3d at pp. 912-913; United States v. Mastrangelo,
supra, 693 F.2d at p. 272.)
The forfeiture by wrongdoing doctrine, as articulated by the lower federal
courts, was codified with regard to federal hearsay rules in 1997 with the adoption
of Federal Rules of Evidence, rule 804(b)(6) (28 U.S.C.). (United States v. Scott
(7th Cir. 2002) 284 F.3d 758, 762.) That rule states, “Hearsay exceptions. The
following are not excluded by the hearsay rule if the declarant is unavailable as a
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witness: [¶] . . . [¶] (6) Forfeiture by wrongdoing. A statement offered against a
party that has engaged or acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a witness.” (Fed. Rules Evid., rule
804(b)(6), 28 U.S.C.) The text of the rule was based on United States v. Thevis,
which identified two elements: “(1) the defendant caused the witness’s
unavailability (2) for the purpose of preventing that witness from testifying at
trial.” (United States v. Thevis, supra, 665 F.2d at p. 633, fn. 17; see Flanagan,
Forfeiture by Wrongdoing and Those Who Acquiesce in Witness Intimidation: A
Reach Exceeding Its Grasp and Other Problems with Federal Rule of Evidence
804(b)(6) (2003) 51 Drake L.Rev. 459, 477.) The adoption of a specific intent
requirement limited the federal hearsay rule to witness tampering cases. (Ibid.)
A similar pre-Crawford development of the forfeiture by wrongdoing rule
occurred in the states. As with the federal courts, the state courts generally applied
the rule when the defendant intended to, and did, tamper with an actual or
potential witness to prevent the witness from cooperating with the authorities or
testifying at trial. (See, e.g., State v. Valencia (Ariz. Ct. App. 1996) 924 P.2d 497,
499-503; State v. Henry (Conn.App.Ct. 2003) 820 A.2d 1076, 1087-1088;
Devonshire v. United States (D.C. 1997) 691 A.2d 165, 166; State v. Hallum
(Iowa 2000) 606 N.W.2d 351, 358; State v. Gettings (Kan. 1989) 769 P.2d 25, 27-
29; State v. Magouirk (La. Ct. App. 1988) 539 So.2d 50, 64-66; State v. Black
(Minn. 1980) 291 N.W.2d 208, 213-214; State v. Sheppard (N.J. Super. Ct. Law
Div. 1984) 484 A.2d 1330, 1345-1348; Holtzman v. Hellenbrand (N.Y.App.Div.
1983) 460 N.Y.S.2d 591, 597.)
Crawford reshaped the confrontation landscape: testimonial evidence that
previously had been admitted under “firmly rooted” hearsay exceptions, or that
met comparable reliability standards, became inadmissible unless the defendant
had the opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at
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pp. 60-61, 68.) Previously, the primary purpose of the confrontation clause was
only to prevent the introduction of unreliable hearsay that fell outside a firmly
rooted hearsay exception and that did not otherwise satisfy comparable reliability
standards. (Roberts, supra, 448 U.S. at p. 66.) After Crawford, the response of
many courts (including the Court of Appeal in this case) was to focus on the
equitable forfeiture rationale which could eliminate the need for evidence of
witness tampering and broaden the scope of the rule to all homicide cases.
State v. Meeks (Kan. 2004) 88 P.3d 789 (Meeks) was the first post-
Crawford case. There, the defendant shot James Green, the victim, during an
argument and fistfight. About 10 minutes after the shooting, Green identified the
defendant as the shooter to an officer at the scene, but died soon thereafter.
During trial, the prosecution introduced Green’s statement identifying the
defendant to the police. Although the court noted that the victim’s response to the
officer’s question was arguably testimonial, Meeks found it unnecessary to decide
that issue. Instead, it held that the defendant “forfeited his right to confrontation
by killing the witness, Green.” (Meeks, supra, 88 P.3d at pp. 793-794.) Noting
that the high court in Crawford “continued to accept the [Reynolds] rule of
forfeiture by wrongdoing which ‘extinguishes confrontation claims on essentially
equitable grounds,’ ” Meeks relied on the reasoning set forth in Reynolds that “ ‘if
a witness is absent by his own [the accused’s] wrongful procurement, he cannot
complain if competent evidence is admitted to supply the place of that which he
has kept away.’ ” (Meeks, supra, 88 P.3d at p. 794.)
In United States v. Mayhew (S.D. Ohio 2005) 380 F.Supp.2d 961
(Mayhew), the court applied the forfeiture by wrongdoing doctrine to facts similar
to those in Meeks. In Mayhew, the defendant kidnapped and shot the victim.
While the victim was in the ambulance, a police officer interviewed her. The
victim related that the defendant had earlier killed her mother and her mother’s
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fiancé, and identified the defendant as her kidnapper and shooter. The victim died
soon thereafter at the hospital. (Id. at pp. 963, 965.) The federal district court in
Mayhew ruled that the victim’s statements were testimonial in nature, but
admissible. (Id. at pp. 965-966.) Relying on Crawford’s discussion of the
equitable principles underlying the forfeiture doctrine, it reasoned that,
“Defendant, in making the witness unavailable for testimony, forfeited his rights
under the confrontation clause by his own wrongdoing. As the Sixth Circuit Court
of Appeals has held, ‘a defendant only forfeits his confrontation right if his own
wrongful conduct is responsible for his inability to confront the witness.’ [United
States v.] Cromer [(6th Cir. 2004)] 389 F.3d [662,] 679 (citing Richard D.
Friedman, Confrontation: The Search for Basic Principles, 86 Geo.L.J. 1011,
1031 (1998)).” (Mayhew, supra, 380 F.Supp.2d at p. 966.)
In United States v. Garcia-Meza (6th Cir. 2005) 403 F.3d 364 (Garcia-
Meza), a case very similar to this one, the defendant admitted that he was
responsible for his wife’s death, but claimed that he was not guilty of first degree
murder because he was too intoxicated to have premeditated the killing. (Id. at pp.
367-368.) The prosecution introduced evidence of a prior incident during which
police officers responded to a call about an assault. When the officers arrived,
they found the defendant’s wife very upset and in pain with numerous cuts and
bruises on her body. The wife told the officers that the defendant had repeatedly
punched her and threatened to kill her because she had talked to a former
boyfriend earlier in the day. The district court admitted the assault evidence to
establish motive, intent, and capacity to commit murder. (Ibid.)
Although not deciding whether the wife’s statements to the officers were
testimonial, the Sixth Circuit Court of Appeals upheld the admission of the
statements. Relying on the equitable principles outlined in Crawford and
Reynolds, the court reasoned, “[D]efendant admitted that he killed [his wife],
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thereby procuring her unavailability to testify. The dispute at trial concerned not
whether he was the one to stab her, but whether he acted with premeditation to
support a conviction of first degree murder. Under these circumstances, there is
no doubt that the Defendant is responsible for Kathleen’s unavailability.
Accordingly, he has forfeited his right to confront her.” (Garcia-Meza, supra, 403
F.3d at p. 370.)
Similarly, in People v. Moore (Colo.Ct. App. 2004) 117 P.3d 1 (Moore), a
murder case, the Colorado Court of Appeals upheld the admission of the
defendant’s wife’s out-of-court statement implicating the defendant in a prior
instance of domestic violence. Citing to Crawford’s approval of forfeiture by
wrongdoing, the court reasoned that, because there was no dispute that the victim
was unavailable to testify because of her death and that her death was the result of
the defendant’s actions, the defendant should not benefit from his wrongdoing.
(Moore, supra, 117 P.3d at p. 5.) Thus, he forfeited his right to claim a
confrontation violation in connection with the admission of the victim’s
statements into evidence. (Ibid.)
In short, Meeks and Mayhew involved out-of-court statements relating to
the charged offense itself. Garcia-Meza and Moore involved extrajudicial
statements relating to a prior incident, similar to this case. Significantly, the courts
in these cases applied the forfeiture by wrongdoing doctrine although there was no
indication the defendants killed the victims with the intent of preventing testimony
at a future trial. (See also People v. Bauder (Bauder) (Mich.Ct.App. 2005) 712
N.W.2d 506, 514-515.)
Defendant contends that courts have traditionally applied the forfeiture
doctrine only in the context of witness tampering cases, and that the federal rules
have codified this approach. Thus, according to defendant, the Court of Appeal in
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this case and the above post-Crawford cases improperly expanded the doctrine by
eliminating an intent-to-prevent-testimony requirement.
In fact, courts have disagreed over this requirement. Some state and federal
courts have stated that the intent-to-silence requirement is only mandated by the
federal rules and not by the Constitution. (See, e.g., Garcia-Meza, supra, 403
F.3d at p. 370 [“Though the Federal Rules of Evidence may contain [the intent-to-
silence] requirement, see Fed. R. Evid. 804(b)(6), the right secured by the Sixth
Amendment does not . . . .”]; United States v. Miller (1997) 116 F.3d 641, 668
[“Although a ‘finding that [defendants’] purpose was to prevent [a declarant from]
testifying,’ [citation], is relevant, such a finding is not required”]; Bauder, supra,
712 N.W.2d at pp. 514-515 [agreeing with Garcia-Meza]; Gonzalez v. State
(Tex.Crim.App. 2004) 155 S.W.3d 603, 611 [stating that while some courts have
adopted the intent-to-silence requirement, “we see no reason why the [forfeiture]
doctrine should be limited to such cases”].) The Sixth Circuit Court of Appeals
explained: “There is no requirement that a defendant who prevents a witness from
testifying against him through his own wrongdoing only forfeits his right to
confront the witness where, in procuring the witness’s unavailability, he intended
to prevent the witness from testifying. . . . The Supreme Court’s recent
affirmation of the ‘essentially equitable grounds’ for the rule of forfeiture strongly
suggests that the rule’s applicability does not hinge on the wrongdoer’s motive.
The Defendant, regardless of whether he intended to prevent the witness from
testifying against him or not, would benefit through his own wrongdoing if such a
witness’s statements could not be used against him, which the rule of forfeiture,
based on principles of equity, does not permit.” (Garcia-Meza, supra, 403 F.3d at
pp. 370-371.) Similarly, the Court of Appeal here stated, “we see no reason why
the [forfeiture] doctrine should be limited to [intent-to-silence] cases.”
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Other courts have stated that the intent-to-silence requirement is an element
of their forfeiture by wrongdoing doctrines, although stopping short of holding
that the intent requirement is constitutionally compelled. (See, e.g., United States
v. Houlihan, supra, 92 F.3d at p. 1280; United States v. Thevis, supra, 665 F.2d at
p. 633, fn. 17; State v. Romero (N.M. 2006) 133 P.3d 842, 850-855;
Commonwealth v. Edwards (Mass. 2005) 830 N.E.2d 158, 170; People v. Maher
(N.Y. 1997) 677 N.E.2d 728, 730-731; but see State v. Alvarez-Lopez (N.M. 2004)
98 P.3d 699, 704-705.)
Defendant’s argument relating to the intent requirement rests on the
premise that the forfeiture by wrongdoing doctrine is, in essence, not based on
broad forfeiture principles, but instead on waiver principles. Defendant points out
that some cases have referred to the rule as the waiver by wrongdoing doctrine.
(See, e.g., United States v. Cherry, supra, 217 F.3d at p. 815; United States v.
Houlihan, supra, 92 F.3d at pp. 1278-1279; United States v. Aguiar (2nd Cir.
1992) 975 F.2d 45, 47; United States v. Thevis, supra, 665 F.2d at p. 630; but see
Steele v. Taylor, supra, 684 F.2d at p. 1201, fn. 8 [waiver concept is legal fiction;
defendant “simply does a wrongful act that has legal consequences that he may or
may not foresee”].) The underlying premise of those cases is that a defendant who
intentionally prevents an actual or potential witness from testifying at a trial knows
that the witness is no longer available and cannot be cross-examined, and thus, has
impliedly, if not expressly, waived his confrontation rights by his misconduct.
(Thevis, supra, 665 F.2d at p. 630.)
However, the United States Supreme Court has characterized the rule in
question as a “forfeiture” that “extinguishes confrontation claims on essentially
equitable grounds,” not a waiver. (Crawford, supra, 541 U.S. at p. 62.) Although
applied to the facts of a witness tampering case, Reynolds described the rule
without reference to a defendant’s motivation. (Reynolds, supra, 98 U.S. at p. 158
16

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[“If, therefore, when absent by [a defendant’s wrongful] procurement, their
evidence is supplied in some lawful way, he is in no condition to assert that his
constitutional rights have been violated”].) The rule, as enunciated by the high
court, is based on two broad equitable principles: (1) “[t]he rule has its foundation
in the maxim that no one shall be permitted to take advantage of his own wrong”;
and (2) “but if a witness is absent by his own wrongful procurement, he cannot
complain if competent evidence is admitted to supply the place of that which he
has kept away.” (Reynolds, supra, 98 U.S. at pp. 159, 158.) Thus, wrongfully
causing one’s own inability to cross-examine is what lies at the core of the
forfeiture rule.
As in Reynolds, many courts applying the rule (even in the context of
witness tampering cases), emphasize the equitable aspects of the rule rather than
the defendant’s underlying motives in procuring the witness’s absence. (See, e.g.,
United States v. Thompson (7th Cir. 2002) 286 F.3d 950, 962, quoting United
States v. White, supra, 116 F.3d at p. 911 [“ ‘defendant who has removed an
adverse witness is in a weak position to complain about losing the chance to cross-
examine him’ ”]; United States v. Emery, supra, 186 F.3d at p. 926 [“defendant
may not benefit from his or her wrongful prevention of future testimony from a
witness or potential witness”]; United States v. Rouco (11th Cir. 1985) 765 F.2d
983, 995 [defendant “waived his right to cross-examine [the victim] by killing
him. ‘The Sixth Amendment does not stand as a shield to protect the accused
from his own misconduct or chicanery’ ”]; United States v. Mayes (6th Cir. 1975)
512 F.2d 637, 651 [defendant “cannot now be heard to complain that he was
denied the right of cross-examination and confrontation when he himself was the
instrument of the denial”]; Steele v. Taylor, supra, 684 F.2d at p. 1202 [“defendant
cannot prefer the law’s preference [for live testimony over hearsay] and profit
17

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from it . . . while repudiating that preference by creating the condition that
prevents it”].)
Thus, it appears that the intent-to-silence element required by some cases
evolved from the erroneous characterization of the forfeiture doctrine as the
waiver by misconduct doctrine. Because a waiver is an intelligent relinquishment
of a known right, the intent-to-silence element was added to establish the
defendant was on notice that the declarant was a potential witness and therefore
knowingly relinquished the right to cross-examine that witness. (See United
States v. Houlihan, supra, 92 F.3d at pp. 1279-1280.) But, “[t]he Supreme Court’s
recent affirmation of the ‘essentially equitable grounds’ for the rule of forfeiture
strongly suggests that the rule’s applicability does not hinge on the wrongdoer’s
motive.” (Garcia-Meza, supra, 403 F.3d at p. 370.)
Although some courts have used the terms “waiver” and “forfeiture”
interchangeably, the high court, in a pre-Crawford case, has explained that they
are quite different. (United States v. Olano (1993) 507 U.S. 725, 733, citing
Freytag v. Commissioner (1991) 501 U.S. 868, 894-895, fn. 2 (conc. opn. of
Scalia, J.) [“[t]he two are really not the same.”].) “Waiver, the ‘intentional
relinquishment or abandonment of a known right or privilege,’ [citation], is merely
one means by which a forfeiture may occur. Some rights may be forfeited by
means short of waiver, [citations].” (Freytag v. Commissioner, supra, 501 U.S. at
pp. 894-895, fn. 2 (conc. opn. of Scalia, J.), italics added.) Although courts have
traditionally applied the forfeiture rule to witness tampering cases, forfeiture
principles can and should logically and equitably be extended to other types of
cases in which an intent-to-silence element is missing. As the Court of Appeal
here stated, “Forfeiture is a logical extension of the equitable principle that no
person should benefit from his own wrongful acts. A defendant whose intentional
criminal act renders a witness unavailable for trial benefits from his crime if he
18

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can use the witness’s unavailability to exclude damaging hearsay statements by
the witness that would otherwise be admissible. This is so whether or not the
defendant specifically intended to prevent the witness from testifying at the time
he committed the act that rendered the witness unavailable.”5
Here, there were no eyewitnesses to the fatal shooting; defendant and the
victim were the only ones present. Defendant testified at trial and admitted
shooting the victim, but claimed he had acted in self-defense. He claimed that the
victim was very jealous of other women, and was a violent person who had
previously shot a man, threatened people with knives, and vandalized his home
and car on two separate occasions. When describing some of these prior acts,
defendant repeated statements allegedly made by the victim. Defendant testified
that the victim told him she had shot a man during an argument. He further
testified that, during two prior aggravated assaults, the victim declared that she
wanted to “check that bitch” on one occasion, while on the other she asserted that
she wanted “to kill that bitch.”
In relating his version of the fatal events in this case, defendant again
repeated statements allegedly made by the victim. He testified that they had had a

5
Defendant argues that language in Davis regarding the forfeiture by
wrongdoing doctrine—“when defendants seek to undermine the judicial process
by procuring or coercing silence from witnesses and victims”—supports his claim
that an intent-to-silence requirement is constitutionally compelled. (Davis, supra,
126 S.Ct. at p. 2280, italics added.) However, that language only describes the
traditional form of witness tampering cases—in the context of the domestic
violence cases therein where the victims did not testify at trial—without limiting
the forfeiture doctrine to witness tampering cases. More important, Davis
reaffirmed the equitable nature of the forfeiture by wrongdoing doctrine and
declared that Crawford, in overruling Roberts, supra, 448 U.S. 56, did not destroy
the ability of courts to protect the integrity of their proceedings. (Davis, supra,
126 S.Ct. at p. 2280.)
19

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“typical” argument earlier that day. The victim knew defendant was with his new
girlfriend, and said she was on her way there to kill her. When she arrived, she
threatened to kill both defendant and “that bitch.” Afraid she had something in her
hand, defendant shot at her several times after she “charged” him. Thus, partially
through the victim’s own alleged statements, defendant portrayed her as a violent,
aggressive, foulmouthed, jealous, and volatile person.
Defendant now argues that admission of the victim’s extrajudicial
statements to the police, which conflicted with his portrayal of the victim as the
aggressor, violated his confrontation rights. Defendant should not be able to take
advantage of his own wrong by using the victim’s statements to bolster his self-
defense theory, while capitalizing on her unavailability and asserting his
confrontation rights to prevent the prosecution from using her conflicting
statements. “A defendant cannot prefer the law’s preference [for live testimony
over hearsay] and profit from it . . . while repudiating that preference by creating
the condition that prevents it.” (Steele v. Taylor, supra, 684 F.2d at p. 1202.)
“The Roberts approach to the Confrontation Clause undoubtedly made
recourse to [the forfeiture by wrongdoing] doctrine less necessary, because
prosecutors could show the ‘reliability’ of ex parte statements more easily than
they could show the defendant’s procurement of the witness’s absence. Crawford,
in overruling Roberts, did not destroy the ability of courts to protect the integrity
of their proceedings.” (Davis, supra, 126 S.Ct. at p. 2280.) Accordingly, we
conclude that, to protect the integrity of their proceedings, post-Crawford courts
(including the Court of Appeal in this case) have correctly applied the forfeiture
doctrine in a necessary, equitable manner. That is, courts should be able to further
the truth-seeking function of the adversary process when necessary, allowing fact
finders access to relevant evidence that the defendant caused not to be available
through live testimony. (See Steele v. Taylor, supra, 684 F.2d at p. 1201 [“the
20

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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”].)
We must also decide whether the doctrine of forfeiture by wrongdoing
applies where the alleged wrongdoing is the same as the offense for which
defendant was on trial. In other words, defendant was on trial for the same
wrongdoing (murder) that caused the forfeiture of his right to confront the victim.
Because the two acts are the same, the court’s forfeiture finding (as a predicate
evidentiary matter) depends on determining that defendant committed the charged
criminal act.
In the classic witness tampering cases, the defendant is not on trial for the
same wrongdoing that caused the forfeiture of his confrontation right, but rather
for a prior underlying crime about which the victim was about to testify. (See,
e.g., United States v. Balano, supra, 618 F.2d at pp. 625-626; United States v.
Carlson, supra, 547 F.2d at pp. 1352-1353.) However, even in the context of
witness tampering, courts have applied forfeiture where the defendant was charged
with the same homicide that rendered the witness unavailable. (See, e.g., United
States v. Dhinsa, supra, 243 F.3d at pp. 642-644, 650; United States v. Emery,
supra, 186 F.3d at p. 926; United States v. White, supra, 116 F.3d at pp. 909-910;
United States v. Houlihan, supra, 92 F.3d at pp. 1278-1281; United States v.
Rouco, supra, 765 F.2d at pp. 993-995; United States v. Thevis, supra, 665 F.2d at
pp. 627-633; but see United States v. Lentz (E.D. Va. 2002) 282 F.Supp.2d 399,
426-427 [rejecting application of forfeiture rule in murder trial where murder was
done to procure witness’s unavailability in divorce proceeding].)
The argument against permitting a judicial preliminary determination of
forfeiture is that in ruling on the evidentiary matter, a trial court is required, in
essence, to make the same determination of guilt of the charged crime as the jury.
21

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(United States v. Lentz, supra, 282 F.Supp. 2d at p. 426 [forfeiture rule violates
presumption of innocence and right to jury trial].) In responding to that argument,
courts have found analogous the procedures for admitting coconspirator
statements against a defendant who is charged with conspiracy; the trial court
makes a preliminary finding of conspiracy that is proven by a preponderance of
the evidence. (See, e.g., United States v. Emery, supra, 186 F.3d at pp. 926-927;
United States v. White, supra, 116 F.3d at p. 912; United States v. Houlihan,
supra, 92 F.3d at p. 1280; cf. Bourjaily v. United States (1987) 483 U.S. 171, 175-
176 [approval of trial court’s predicate finding that conspiracy existed even when
one of the underlying crimes before the jury was the existence of the same
conspiracy].) The presumption of innocence and right to jury trial will not be
infringed because the jury “will never learn of the judge’s preliminary finding”
and “will use different information and a different standard of proof to decide the
defendant’s guilt.” (Mayhew, supra, 380 F.Supp.2d at p. 968; fn. omitted.)
Recognizing that the courts have generally applied the forfeiture by wrongdoing
doctrine even where the alleged wrongdoing is the same as the charged offense,
defendant no longer disputes that the forfeiture doctrine can apply under these
circumstances. We see no reason to adopt a different rule.
Regarding the applicable standard of proof, the Court of Appeal’s initial
opinion held that the facts supporting the application of the forfeiture by
wrongdoing doctrine must be proven to a trial court by clear and convincing
evidence. After the Attorney General filed a petition for rehearing in which he
argued that the appropriate standard is proof by a preponderance of the evidence,
the court left “the issue of the appropriate burden of proof for another day” on the
ground there was sufficient evidence of forfeiture under either standard. We agree
with the Attorney General that, because the issue is “fairly included in” the issues
22

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on which we granted review (Cal. Rules of Court, rule 8.516(b)(1)), we should
decide it to provide guidance to the trial courts.
The majority of the lower federal courts have held that the applicable
standard necessary for the prosecutor to demonstrate forfeiture by wrongdoing is
by a preponderance of the evidence. (See, e.g., United States v. Cherry, supra,
217 F.3d at p. 820; United States v. Thai (2nd Cir. 1994) 29 F.3d 785, 814; United
States v. Mastrangelo, supra, 693 F.2d at p. 273; Steele v. Taylor, supra, 684 F.2d
at pp. 1202-1203; United States v. Balano, supra, 618 F.2d at p. 629; Mayhew,
supra, 380 F.Supp.2d at p. 968; but see United States v. Thevis, supra, 665 F.2d at
p. 631 [requiring clear and convincing evidence].) Many of the federal courts
have found that the forfeiture finding is the functional equivalent of the predicate
factual findings that a court must make in ruling on the admissibility of
extrajudicial statements under the coconspirator exception, which need only be
proved by a preponderance of the evidence.6 (See e.g., United States v. Emery,
supra, 186 F.3d at pp. 926-927; United States v. White, supra, 116 F.3d at p. 912;
United States v. Houlihan, supra, 92 F.3d at p. 1280; Steele v. Taylor, supra, 684
F.2d at pp. 1202-1203; see also Commonwealth v. Edwards, supra, 830 N.E.2d at
pp. 172-173; Commonwealth v. Morgan (2005) 69 Va.Cir. 228, 232.) One court

6
Bourjaily v. United States, supra, 483 U.S. at pages 175-176, held that
under the Federal Rules of Evidence, the government need only prove its
threshold burden by a preponderance of the evidence when establishing the
predicate facts relating to the admissibility of coconspirator statements. Although
Bourjaily does not expressly consider the standard of proof on a confrontation
clause claim, the discussion relies on constitutional cases in selecting the
preponderance standard (e.g., United States v. Matlock (1974) 415 U.S. 164, 177-
178 [voluntariness of consent to search must be shown by preponderance of the
evidence]; Lego v. Twomey (1972) 404 U.S. 477, 489 [voluntariness of confession
must be demonstrated by a preponderance of the evidence]). (Bourjaily v. United
States, supra, 483 U.S. at p. 176.)
23

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based its decision regarding the preponderance standard on Reynolds itself.
(Steele v. Taylor, supra, 684 F.2d at p. 1202, citing Reynolds, supra, 98 U.S. at p.
160 [“ ‘enough had been shown [by the government] to cast the burden of proof
on him [the defendant] of showing that he had not been instrumental in concealing
or keeping the witness away.’ ”]; see West v. Louisiana, supra, 194 U.S. at p. 265
[Reynolds “held that when there was some proof that an absent witness was kept
away by procurement of the defendant the burden of proof was on him to show . . .
that he was not instrumental in concealing or keeping the witness away,” italics
added].)
Some federal courts do not even require a judicial preliminary
determination of forfeiture; instead they allow the hearsay statement to be
admitted at trial contingent on proof that the defendant wrongfully procured the
unavailability of the declarant by a preponderance of the evidence. (See, e.g.,
United States v. Emery, supra, 186 F.3d at p. 926; United States v. White, supra,
116 F.3d at pp. 914-915; United States v. Houlihan, supra, 92 F.3d at p. 1281, fn.
5.) Moreover, if a hearing on forfeiture is required, federal courts generally permit
the prosecution to rely on the challenged hearsay evidence when proving
forfeiture. (See, e.g., United States v. White, supra, 116 F.3d at p. 914 [leaving
“for another day the issue of whether a forfeiture finding could rest solely on
hearsay”]; United States v. Houlihan, supra, 92 F.3d at p. 1281; United States v.
Mastrangelo, supra, 693 F.2d at p. 273; see also United States v. Emery, supra,
186 F.3d at p. 927 [“inclined to doubt” that wrongful procurement must be proven
independently of the challenged hearsay]; Commonwealth v. Edwards, supra, 830
N.E.2d at p. 174.)7 We thus agree that “[a] standard that requires the proponent to

7
Davis, supra, 126 S.Ct. at page 2280, noted that federal and state courts
have generally held the government to the preponderance of evidence standard to
(Footnote continued on next page.)
24

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show that it is more probable than not that the defendant procured the
unavailability of the witness is constitutionally sufficient under the . . .
confrontation clause[].” (Steele v. Taylor, supra, 684 F.2d at p. 1202.)8
The application of the rule should be subject to several limitations. First,
the witness should be genuinely unavailable to testify and the unavailability for
cross-examination should be caused by the defendant’s intentional criminal act.
Second, a trial court cannot make a forfeiture finding based solely on the
unavailable witness’s unconfronted testimony; there must be independent
corroborative evidence that supports the forfeiture finding.
The forfeiture by wrongdoing doctrine, as adopted by us, only bars a
defendant’s objection under the confrontation clause of the federal Constitution

(Footnote continued from previous page.)

demonstrate forfeiture. Further, although noting that Commonwealth v. Edwards,
supra, 830 N.E.2d at page 174, permitted the trial court’s consideration of the
unavailable witness’s out-of-court statements at a hearing on forfeiture, it took “no
position on the standards necessary to demonstrate . . . forfeiture.” (Davis, supra,
126 S.Ct. p. 2280.)
8
Defendant argues that proof of forfeiture must be established by clear and
convincing evidence. He points to Evidence Code section 1350, which establishes
an independent, narrow hearsay exception in serious felony cases, based on
forfeiture by wrongdoing principles. An unavailable witness’s out-of-court
statements is admissible when there is “clear and convincing evidence that the
declarant’s unavailability was knowingly caused by, aided by, or solicited by the
party against whom the statement is offered for the purpose of preventing the
arrest or prosecution of the party and is the result of the death by homicide or the
kidnapping of the declarant.” (Evid. Code, § 1350, subd. (a)(1).) However, the
Legislature, in establishing more stringent standards, is not the final arbiter of
constitutional standards. (See Jones v. Superior Court (1970) 3 Cal.3d 734, 740.)
We further note that section 1350, setting forth a higher statutory standard of
proof, survives California Constitution article I, section 28, subdivision (d)
(Proposition 8) because it was enacted by a two-thirds vote of the membership in
each house of the Legislature. (See People v. Markham (1989) 49 Cal.3d 63.)
25

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and does not bar statutory objections under the Evidence Code. Thus, even if it is
established that a defendant has forfeited his or her right of confrontation, the
contested evidence is still governed by the rules of evidence; a trial court should
still determine whether an unavailable witness’s prior hearsay statement falls
within a recognized hearsay exception and whether the probative value of the
proffered evidence outweighs its prejudicial effect. (Evid. Code, § 352.) Finally,
the jury should not be advised of the trial court’s underlying finding that defendant
committed an intentional criminal act so that the jury will draw no inference about
the ultimate issue of guilt based on the evidentiary ruling itself.
Here, the Court of Appeal correctly found that there was clear and
convincing evidence that defendant procured the victim’s unavailability through
criminal conduct—a criminal homicide. A fortiori, the preponderance of the
evidence standard was also met. Defendant retrieved a loaded gun from inside the
garage after the victim returned to the house. Preparing to fire the gun, he
disengaged its safety and then shot her six times in her torso. Two of those
wounds were fatal; one was consistent with her holding up her hand at the time
she was shot; one was consistent with her having turned to her side when she was
shot; and one was consistent with her being shot while she was lying on the
ground. One of the investigating officers testified that a semiautomatic firearm
such as the one used by defendant fires only once each time the trigger is pulled,
supporting an inference that defendant had pulled the trigger for each shot. In
contrast, the victim was not carrying a weapon when she was shot. Immediately
after the shooting, defendant fled the scene and did not turn himself in to the
police.
The above independent evidence, considered with the victim’s prior
statements, supports the Court of Appeal’s conclusion that defendant did not shoot
in self-defense, and instead committed an unlawful homicide that caused the
26

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victim’s unavailability to testify at trial. As noted by the Court of Appeal, “the
evidence supporting this [self-defense] theory was weak and it is inconceivable
that any rational trier of fact would have concluded the shooting was excusable or
justifiable.” Thus, defendant has forfeited his confrontation clause challenge to
the victim’s prior out-of-court statements to the police.
CONCLUSION
We conclude that the Court of Appeal’s judgment should be affirmed.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CORRIGAN, J.
27

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CONCURRING OPINION BY WERDEGAR, J.
I concur in the judgment of affirmance. Like the majority, I conclude the
doctrine of forfeiture by wrongdoing is not confined exclusively to witness-
tampering cases, in which a defendant commits malfeasance in order to procure
the unavailability of a witness, but can be applied to these facts as well, where the
defendant’s actions in procuring a witness’s unavailability were the same actions
for which he stood trial.
That narrow conclusion is enough to dispose of this case. As the majority
acknowledges, the evidence available independent of victim Brenda Avie’s
statements demonstrated clearly and convincingly that defendant Dwayne Giles
shot and killed her and was not acting in self-defense. (Maj. opn., ante, at p. 26.)
Because of this intentional criminal misconduct, Giles forfeited his constitutional
confrontation clause objection to the admission of Avie’s statements at trial. As
the majority further correctly notes, this conclusion does not affect any statutory
Evidence Code objections. (Id. at p. 25.) That should be the end of the matter.
Nevertheless, the majority proceeds to address and resolve two subsidiary
questions unnecessary to this case’s disposition. First, it decides whether the
prosecution, in order to use the victim’s hearsay statements, must demonstrate the
defendant’s wrongdoing by clear and convincing evidence or only a
preponderance of the evidence, despite its implicit acknowledgement the issue is
not implicated here because either standard was satisfied. Second, it decides
1

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whether and to what extent the victim’s challenged statements may be used in
making this threshold showing of wrongdoing, despite the fact, again, the
evidence available independent of Avie’s statements makes it unnecessary to
speak to this point.
Although as a general matter I endorse the majority’s desire to offer
guidance to the trial courts, here the procedural posture of the case and the
substantive nature of the issues make reaching out to do so both unnecessary and
unwise.
Procedurally, these issues were never addressed by either court below, not
by the trial court, because Giles’s trial predated Crawford v. Washington (2004)
541 U.S. 36, which revised the standards for determining when the confrontation
clause prohibits admission of testimonial hearsay, and not by the Court of Appeal,
because it recognized, correctly, that either standard was met here. The Court of
Appeal, moreover, never discussed whether it arrived at this conclusion
exclusively based on, partially based on, or entirely without reliance on Avie’s
statements. Our grant of review limited issues and focused on whether forfeiture
by wrongdoing could be applied when the wrongdoing was identical to the offense
for which the defendant stood trial. Given that limitation, the parties in their
briefing touched only in passing on the standard of proof question and discussed
the second question not at all. Thus, even were there compelling reasons to reach
out and address issues unnecessary to this case’s disposition, this record would
provide a notably poor basis for doing so.
Were the issues at stake routine, the absence of any considered views from
the parties or lower courts, in a case where the issues are immaterial to the case’s
disposition, would mean less. Substantively, however, they are not routine. The
questions of the appropriate standard of proof and the appropriate evidentiary
basis for finding forfeiture of a constitutional right are questions of constitutional
2

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dimension. Proposition 8’s “Truth-in-Evidence” provisions require admission of
evidence except to the extent existing statutory or constitutional rules or privileges
require otherwise. (Cal. Const., art. I, § 28, subd. (d).) Thus, to decide the
subsidiary questions the majority purports to resolve, we must examine the
confrontation clause of the United States Constitution, and perhaps the due
process clause as well, and determine what they require.
In lieu of serious constitutional analysis, however, the majority simply
notes that most—but not all—lower federal courts to consider the question have
settled on a preponderance of the evidence standard, and proceeds to join in that
view. (Maj. opn., ante, at pp. 23-25.) That majority federal view might well be
right, but it might also be wrong, especially given that the federal cases the
majority relies upon uniformly antedate the United States Supreme Court’s recent
reassertion of the breadth and importance of the confrontation clause in ensuring
defendants their fair trials. (Crawford v. Washington, supra, 541 U.S. at pp. 68-69
[“Where testimonial statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the one the Constitution actually
prescribes: confrontation”];1 see also United States v. Thevis (5th Cir. 1982) 665
F.2d 616, 631 [even pre-Crawford, holding “because confrontation rights are so
integral to the accuracy of the fact-finding process and the search for truth . . . , we
conclude that the trial court was correct in requiring clear and convincing evidence
of a waiver of this right”]; People v. Geraci (N.Y. 1995) 649 N.E.2d 817, 822

1
While Crawford accepted that forfeiture by wrongdoing could, when
proven, extinguish confrontation clause rights, neither it nor the United States
Supreme Court’s follow-up decision in Davis v. Washington have purported to
resolve what showing will suffice to establish a forfeiture. (See Davis v.
Washington (2006) ___ U.S. ___ [126 S.Ct. 2266, 2280]; Crawford v.
Washington, supra, 541 U.S. at p. 62.)
3

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[concluding clear and convincing evidence is required because forfeiture results in
“loss of the valued Sixth Amendment confrontation right” and because of “the
intimate association between the right to confrontation and the accuracy of the
fact-finding process”].)2
Constitutional analysis should not be embarked on lightly and never when a
case’s resolution does not demand it. As then Associate Justice George once
explained in like circumstances: “[T]he majority’s approach is inconsistent with
well-established principles of judicial restraint. In his celebrated concurring
opinion in Ashwander v. Valley Authority (1936) 297 U.S. 288, 347, Justice
Brandeis, in reviewing a number of settled precepts of judicial practice, observed
that ‘[t]he Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon which the
case may be disposed of. . . . Thus, if a case can be decided on either of two
grounds, one involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter. [Citations.]’
California courts have long subscribed to this principle. (See, e.g., Palermo v.
Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 66 [‘ “It is a well-established
principle that this Court will not decide constitutional questions where other
grounds are available and dispositive of the issues of the case.” ’]; People v.
Barton (1963) 216 Cal.App.2d 542, 546.)” (Rider v. County of San Diego (1991)
1 Cal.4th 1, 17 (conc. opn. of George, J.); see also Morning Star Co. v. State Bd.

2
The issue of what evidentiary basis may support a showing of forfeiture of
the constitutional right to confront and cross-examine the speaker by
wrongdoing—May the prosecution rely solely, or even in part, on the very
unconfronted statements it seeks to admit? May the trial court, without the
opportunity for confrontation, make reliability determinations concerning these
statements?—is likewise a constitutional question of uncertain resolution.
4

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of Equalization (2006) 38 Cal.4th 324, 332, 342; People v. McKay (2002) 27
Cal.4th 601, 626-627 (conc. opn. of Werdegar, J.); Santa Clara County Local
Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230; People v.
Williams (1976) 16 Cal.3d 663, 667 [“[W]e do not reach constitutional questions
unless absolutely required to do so to dispose of the matter before us”].)
These principles of judicial restraint apply with even greater force here,
where the subsidiary constitutional questions the majority addresses are not only
unnecessary to the case’s disposition but not well presented on the record before
us. Consequently, while I concur in the judgment, I do not join in those portions
of the majority’s analysis that decide the standard of proof or the permissible
evidentiary basis for showing forfeiture by wrongdoing.
WERDEGAR, J.
I CONCUR:
MORENO, J.
5

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Giles
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 123 Cal. App.4th 475
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S129852
Date Filed: March 5, 2007
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Court:

Superior
County: Los Angeles
Judge: Victoria Chavez

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Attorneys for Appellant:

Marilyn G. Burkhardt, under appointment by the Supreme Court, for Defendant and Appellant.

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Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Kristofer Jorstad, Susan D. Martynec,
Joseph P. Lee and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

Nancy K. D. Lemon and Timna A. Sites for California Partnership to End Domestic Violence as Amicus
Curiae on behalf of Plaintiff and Respondent.

Douglas Beloof, Margaret Garvin, Kim Montagriff, Joanna Tucker Davis; Porter, Scott, Weiberg &
Delehant and Laura J. Marabito for National Crime Victim Law Institute as Amicus Curiae on behalf of
Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Marilyn G. Burkhardt
11301 Wes Olympic Boulevard, #619
West Los Angeles, CA 90064
(310) 475-9823

Russell A. Lehman
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2280

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Opinion Information

Date:	Docket Number:
Mon, 03/05/2007	S129852

Disposition
Mar 5 2007	Opinion: Affirmed

Dockets
Dec 7 2004	Petition for review filed   counsel for appellant, DWAYNE GILES [40K]
Dec 10 2004	Record requested
Dec 15 2004	Received Court of Appeal record   one doghouse
Dec 22 2004	Petition for review granted; issues limited (criminal case)   The issues to be briefed and argued are limited to the following: Did defendant forfeit his Confrontation Clause claim regarding admission of the victim's prior statements concerning an incident of domestic violence (see Evid. Code ? 1370) under the doctrine of "forfeiture by wrongdoing" because defendant killed the victim, thus rendering her unavailable to testify at trial? Does the doctrine apply where the alleged "wrongdoing" is the same as the offense for which defendant was on trial? Werdegar, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Chin, and Moreno, JJ.
Jan 12 2005	Counsel appointment order filed   Marilyn Burkhardt for appellant ( Giles).
Feb 10 2005	Request for extension of time filed   asking to March 14, 2005 to file appellant's opening brief on the merits.
Feb 16 2005	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 14, 2005.
Mar 14 2005	Request for extension of time filed   asking to Aprl 4, 2005 to file appellant's opening brief on the merits
Mar 16 2005	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief on the merits is hereby extended to and including April 4, 2005.
Apr 4 2005	Request for extension of time filed   by appellant Giles: asking to April. 25, 2005 to file opening brief
Apr 7 2005	Extension of time granted   To April 25, 2005 to file appellant's opening breif on the merits.
Apr 25 2005	Request for extension of time filed   to file opening brief/merits to 5-2-05>>appellant's opening brief/merits
Apr 26 2005	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including May 2, 2005.
May 3 2005	Received:   opening brief/merits--1 day late>>appellant Dwayne Giles
May 3 2005	Application filed to:   for permission to file opening brief/merits>>appellant Dwayne Giles
May 10 2005	Opening brief on the merits filed   (with permission) Appellant Giles
Jun 6 2005	Request for extension of time filed   to file answer brief/merits to July 9, 2005 The People/resp.
Jun 10 2005	Extension of time granted   On application of Respondent and good cause appearing, it is ordered that the time to serve and file the Respondent's Answer Brief on the Merits is extended to and including July 9, 2005.
Jul 7 2005	Request for extension of time filed   respondent's answer brief/merits to 8-8-05
Jul 11 2005	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is extended to and including August 8, 2005.
Aug 8 2005	Request for extension of time filed   respondent's answer brief/merits to 9-7-05
Aug 10 2005	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 7, 2005.
Aug 31 2005	Compensation awarded counsel   Atty Burkhardt
Sep 2 2005	Request for extension of time filed   respondent (People) request to October 7, 2005 to file answer brief on the merits
Sep 13 2005	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on teh merits is extended to and including October 7, 2005.
Oct 6 2005	Request for extension of time filed   by respondent The People: requesting to 11-07-05 to file answer brief on the merits
Oct 11 2005	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is hereby extended to and including November 6, 2005. No further extensions of time will be granted.
Nov 4 2005	Request for extension of time filed   by respondent The People: requesting to 11-21-05 to file answer brief on the merits
Nov 7 2005	Extension of time granted   Based on the Attorney General's representation that respondent's answer brief on the merits will be filed by November 21, 2005, an extension of fifteen (15) days is hereby granted.
Nov 21 2005	Received:   answer brief/merits submitted with app/to exceed word limit [respondent]
Nov 28 2005	Answer brief on the merits filed   Respondent ( The People). ( filed with permission).
Dec 12 2005	Received application to file Amicus Curiae Brief   by Califorhia Partnership To End Domestic Violence (CPEDV) and 14 other domestic violence agencies, in support of respondent (People)
Dec 15 2005	Permission to file amicus curiae brief granted   The application of California Partnership To End Domestic Violence (CPEDV) and 14 other domestic violence agencies for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 15 2005	Amicus curiae brief filed   California Partnership To End Domestic Violence (CPEDV) and 14 other domestic violence agencies in support of respondent.
Dec 19 2005	Request for extension of time filed   by defendant and appellant Dwyane Giles, askeing to 1-18-05 to file the reply brief on the merits
Dec 19 2005	Received application to file Amicus Curiae Brief   Amicus Curiae application and brief of The National Crime Victim Law Institute in support of respondent.
Dec 22 2005	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file apellant's reply brief on the merits is hereby extended to and including January 18, 2006.
Dec 22 2005	Permission to file amicus curiae brief granted   The application of The National Crime Victim Law Institute for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 22 2005	Amicus curiae brief filed   The National Crime Victim Law Institute in support of respondent.
Jan 4 2006	Request for extension of time filed   by defendant and appellant Dwayne Giles, asking to file response to amicus brief of California Partnership to End Domestic Violence, et al. to 2-03-06
Jan 11 2006	Extension of time granted   To February 3, 2006 to file Appellant's Reply Brief on the Merits.
Jan 18 2006	Request for extension of time filed   to file appellant's reply brief on the merits.
Jan 18 2006	Received:   (Faxed copy ) appellant's e.o.t. request to 2-17-2006 to file the reply brief on the merits
Jan 20 2006	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including February 17, 2006.
Feb 3 2006	Received:   (Faxed Copy) of appellant's request to and including 3-6-2006 to file response to amicus curiae brief of Califorina Partnership to End Domestic Violence et al..
Feb 3 2006	Request for extension of time filed   by appellant (Dwayne Giles) to extend time to file reply to the amicus curiae brief filed by California Partnership To End Domestic Violence, et al.,
Feb 7 2006	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file Appellant's Answer to the Amicus Curiae Brief of California Partnership To End Domestic Violence is extended to and including March 6, 2006.
Feb 17 2006	Request for extension of time filed   to file appellant's reply brief/merits to: March 20, 2006
Feb 22 2006	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's reply brief on the merits is hereby extended to and including March 20, 2006.
Mar 3 2006	Request for extension of time filed   to file appellant's reply to Amicus Curiae Brief of California Partnership to April 5, 2006.
Mar 6 2006	Application filed to:   Petitioners' Application for Leave to Reply to Respondent's and Real Parties' Opposition to Petitioners' Motion to Strike; Petitioners' Reply Brief
Mar 9 2006	Extension of time granted   On appilcation of appellant and good cause appearing, it is ordered that the time to serve and file Appellant's Reply Brief on the Merits is extended to and including April 5, 2006.
Mar 10 2006	Received:   From Los Angeles Superior Court, South Central District, copy of order denying writ of habeas corpus, dated and signed by Judge Paul A. Bacigalupo.
Mar 20 2006	Request for extension of time filed   Dwayne Giles, appellant to file reply brief/merits to April 5, 2006 Marilyn G. Burkhardt, appointed
Mar 28 2006	Request for extension of time filed   to 4-12-2006, to file Appellant's Reply Brief on the Merits as well as Appellant's Response to Amicus Curiae Brief by the California Partnership to End Domestic Violence et al.
Mar 29 2006	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the Appellant's Reply Brief on the Merits simultaneously with the Appellant's Response to Amicus Curiae Brief of the California Partnership to End Domestic Violence is hereby extended to and including April 12, 2006.
Apr 11 2006	Request for extension of time filed   to April 27, 2006, to file appellant's reply brief on the merits and to the amicus curiae brief filed by the California Partnership to End Domestic Violence et al. (Faxed copy - original in the mail]
Apr 13 2006	Extension of time granted   On application of appellant and good cause appeairng, it is ordered that the time to serve and file the Appellant's Reply Brief on the Merits simultaneously with the Appellant's Response to Amicus Curiae Brief of the California Partnership to End Domestic Violence is extended to and including April 27, 2006.
Apr 27 2006	Request for extension of time filed   to May 2, 2006, to file appellant's reply to the amicus curiae brief by the California Partnership to End Domestic Violence (faxed coy)
May 1 2006	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the Appellant's Reply to the Amicus Curiae Brief of the California Partnership to End Domestic Violence is extended to and including May 2, 2006.
May 3 2006	Received:   Appellant's oversized (11,520 words) Reply Brief on the Merits, over the 4,200 word limit, pusuant to CRC rule 29.1(c)(4). (40.1(b))
May 5 2006	Response to amicus curiae brief filed   Appellant's Answer to the Amicus Curiae Brief by the California Partnership to End Domestic Violence et al. (CRC 40.1(b))
May 8 2006	Order filed   The application of appellant for permission to file the reply brief on the merits containing 11,520 words that exceeds the 4,200 word limit prescribed by California Rules of Court, rule 29.1(c)(1) by 7,320 words is hereby granted.
May 8 2006	Reply brief filed (case fully briefed)   Appellant Dwayne Giles by Marilyn G. Burkhardt, Supreme Court appointed counsel
Nov 7 2006	Case ordered on calendar   Wednesday, December 6, 2006, at 1:30 p.m., in Los Angeles
Nov 27 2006	Supplemental brief filed   Appellant Dwayne Giles, by Marilyn G. Burkhardt, appointed counsel CRC 40.1(b) / FedEx
Nov 27 2006	Supplemental brief filed   Respondent People, by Russell A. Lehman, Deputy Attorney General - L.A. CRC 40.1(b) / UPS/Next Day Air
Dec 6 2006	Cause argued and submitted
Mar 2 2007	Notice of forthcoming opinion posted
Mar 5 2007	Opinion filed: Judgment affirmed in full   Court of Appeal's judgment. Opinion by Chin, J. -- joined by George, C.J., Kennard, Baxter, Corrigan, J. Concurring Opinion by Werdegar, J. -- joined by Moreno, J.
Mar 21 2007	Received:
Mar 21 2007	Received:   Letter dated 3-20-2007 from Paul L. McKaskie, Professor of Law, University of San Francisco School of Law requesting modification of the opinion.
Mar 23 2007	Rehearing petition filed   Dwayne Giles, appellant by Marilyn G. Burkhardt, Supreme Court appointed counsel CRC 8.25
Mar 26 2007	Time extended to consider modification or rehearing   to and including June 1, 2007.
May 23 2007	Rehearing denied   The request for modification of the opinion is denied.
May 23 2007	Remittitur issued (criminal case)
Jun 1 2007	Received:   Acknowledgement of receipt of remittitur from James Terry, Deputy Clerk, CA2/Div. 6 (Ventura)
Jul 11 2007	Compensation awarded counsel   Atty Burkhardt
Aug 27 2007	Received:   Letter dated 8-23-2007 from Supreme Court of the United States, Office of the Clerk, petition for writ of certiorari was filed on 8-20-2007 and placed on the docket 8-23-2007 as No. 07-6053.
Oct 24 2007	Compensation awarded counsel   Atty Burkhardt
Jan 18 2008	Received:   Supreme Court of the United States Letter dated January 11, 2008. Re: Dwayne Giles v. California No. 07-6053 (Our No. S129852) "The court entered the following order in the above-entitled case: The motion of petitioner for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The brief of petitioner is to be filed on or before Wednesday, February 20, 2008. The brief of respondent is to be filed on or before Wednesday, March 19, 2008. A reply brief, if any, is to be filed in accordance with Rule 25.3 of the Rules of tihs Court."
Feb 4 2008	Received:   Letter from the Supreme Court of the United States dated January 30, 2008, requesting the transmission of the record.
Feb 7 2008	Note:   Record sent to Elaine Baptiste, Assistant Clerk, Supreme Court of the United States via Fed Ex overnight. 2 volumes and one confidential volume.
Jun 30 2008	Received:   Letter dated June 25, 2008 from the Clerk, Supreme Court of the United States, enclosing copies of the Court's Opinion filed June 25, 2008.
Jul 30 2008	Received:   Letter from Donald E. Denicola, Deputy State Solicitor General on behalf of Edmund G. Brown, Jr., Attorney General of Calfiornia
Aug 1 2008	Remanded by U.S. Supreme Court
Sep 8 2008	Received:   record from The Supreme Court of the United States. (2 Doghouses)
Oct 1 2008	Transferred to CA 2/6 after U.S.S.C. remand   The above-entitled matter is transferred to the Court of Appeal, Second Appellate District, Division Six, to resolve any remaining issues in light of the United States Supreme Court's decision in Giles v. California (2008) __ U.S. __ [171 L.Ed.2d 488, 128 S.Ct. 2678]. Kennard, J., was absent and did not participate. Votes: George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Oct 2 2008	Returned record   to Second District, Division Six S129852 -- two doghouses

Briefs
May 10 2005	Opening brief on the merits filed
Nov 28 2005	Answer brief on the merits filed
Dec 15 2005	Amicus curiae brief filed
Dec 22 2005	Amicus curiae brief filed
May 5 2006	Response to amicus curiae brief filed
May 8 2006	Reply brief filed (case fully briefed)

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