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Name: People v. Banos
Case #: B194272
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 10/19/2009

The equitable principal of forfeiture by wrongdoing permits the admission of out-of-court testimonial statements when defendant has rendered the witness unavailable to testify and did so to with the intent to prevent the witness from testifying or cooperating with authorities. Appellant and the victim had a lengthy relationship marked by numerous calls from the victim to police complaining of harassment and abuse. The victim also obtained a restraining order prohibiting appellant from contacting her. In 2004, appellant killed the victim and was eventually convicted of second degree murder. At the time of her murder, there was a pending hearing on appellant’s violation of the restraining order. In the trial, the court permitted introduction by the prosecution of prior statements the victim had made to police on the three occasions they had arrested appellant in connection with the reports of abuse. The three statements were found to be testimonial, subject to the protections of the Sixth Amendment confrontation clause, as victim was in a place of safety and there was no ongoing emergency. (Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177]; People v. Cage (2007) 40 Cal.4th 965.) However, in that substantial evidence supported the trial court’s finding that appellant killed the victim to prevent her from cooperating with the authorities and testifying, under equitable principals, appellant forfeited his challenge to the violation of his rights under the confrontation clause. (Giles v. California (2008) 554 U.S. __ [128 S.Ct. 2678, 171 L.Ed.2d 488] [Giles II].)