## Facts

- Jecarr Franswa Merchant and Lisa R. dated beginning in January 2014.
- On December 22, 2014, Lisa agreed to ride with Merchant from Lancaster south on Interstate 15; when Merchant continued past an agreed junction, Lisa asked to be let out.
- Merchant became angry, drove recklessly at high speed, swerved onto the shoulder, and grabbed Lisa by the hair and jacket while she tried to get out and call for help.
- Lisa called 911 reporting she was being kidnapped; Merchant ripped the phone from her hand and threw it out the window.
- Caltrans cameras captured the vehicle driving erratically on the shoulder while a woman screamed for help and attempted to exit.
- Merchant later exited the freeway, drove over a center island, and was apprehended; he was charged with kidnapping, battery, and dissuading a witness.
- While in pretrial custody, Merchant made 167 recorded jail calls to Lisa urging her not to appear in court, stressing his “life would be over” if she testified and telling her his friends were “looking out for her.”
- Lisa did not appear at trial; the parties later stipulated she was unavailable.
- The trial court admitted Lisa’s day-of-incident statements to law enforcement under forfeiture by wrongdoing and admitted prior domestic-violence acts involving Lisa and a former girlfriend (J.C.) under Evidence Code §§ 1109 and 1101(b).
- A jury convicted Merchant on all counts.

## Issues

1. Whether the trial court properly admitted Lisa’s testimonial statements under the forfeiture-by-wrongdoing exception to the Sixth Amendment Confrontation Clause based on Merchant’s conduct causing her unavailability.
2. Whether the trial court abused its discretion by admitting prior domestic-violence evidence involving Lisa and J.C. under Evidence Code §§ 1109 and 1101(b), considering Evidence Code § 352.

## Decision

- The Court of Appeal affirmed the judgment.
- The court held Merchant forfeited his confrontation right because, by a preponderance of the evidence, he engaged in wrongful conduct intended to prevent Lisa from testifying and that conduct caused or contributed to her unavailability.
- The court held the trial court did not abuse its discretion in admitting prior domestic-violence acts as propensity evidence under § 1109 and as evidence of intent and common plan under § 1101(b), and in finding the evidence not unduly prejudicial under § 352.

## Legal Principles

- Testimonial hearsay is inadmissible under the Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine, subject to forfeiture by wrongdoing.
- Forfeiture by wrongdoing applies where the prosecution proves by a preponderance of the evidence that the defendant wrongfully acted with the intent to prevent testimony and that the wrongdoing caused the witness’s absence; explicit threats are not required.
- Persistent coercive efforts to dissuade a witness, including jail calls implying consequences and third-party monitoring, can constitute “wrongdoing” supporting forfeiture.
- Evidence Code § 1109 permits prior domestic-violence acts to prove propensity in a domestic-violence prosecution, subject to Evidence Code § 352 balancing.
- Evidence Code § 1101(b) permits admission of prior acts to prove matters such as intent and common plan where similarity supports a non-character inference.
- Appellate review of Evidence Code § 352 determinations is for abuse of discretion.

## Conclusion

The Court of Appeal affirmed Merchant’s convictions, holding that his coercive conduct aimed at preventing Lisa from testifying forfeited his confrontation rights and that the trial court permissibly admitted prior domestic-violence evidence under both the statutory propensity exception and non-character theories, subject to appropriate prejudice balancing.


People v. Merchant, 40 Cal. App. 5th 1179 (Cal. Ct. App. 2019)