Metropolitan News-Enterprise


Thursday, August 7, 2014


Page 3


C.A. Says Sixth Amendment Not Violated if Witness Is Unavailable Due to Defendant’s Wrongdoing


By a MetNews Staff Writer


A defendant’s Sixth Amendment right to confront his accuser was forfeited where the reason for the witness’s unavailability was due to intimidation by him, the Court of Appeal for this district has held.

“[W]here a defendant engages in wrongdoing that was intended to, and did, procure the unavailability of the witness, the right to confrontation may be forfeited,” Acting Justice Russell Kussman, a Los Angeles Superior Court judge sitting on assignment, said in an opinion for Div. Eight.

The opinion, filed Tuesday, was not certified for publication.

It affirms the conviction of Aaron Sanchez on multiple counts of corporal injury to his wife, Laura Gonzalez. He encouraged her to not appear in court, and he then threatened her and her children if she did not lie about his abuse of her, specifically his throwing a pot of boiling water in her face causing severe burns.

He ordered her to “hide” if officials came to the home, and she obliged. She did testify at his preliminary hearing of the assault, implicating him in the assault, but stating further that she could not recall some things, and did not identify Sanchez as her assailant.

The prosecution attempted to ensure Gonzalez’s appearance at trial by subpoena, but was unable to effect service.

In light of Gonzalez’s nonappearance at trial, Los Angeles Superior Court Judge Eleanor Hunter allowed prosecutors to introduced her preliminary hearing testimony under the “former testimony” exception to the hearsay rule. She also permitted them to present evidence of the wife’s statements to the police investigators identifying Sanchez as her assailant, ruling that these were admissible as prior statements inconsistent with her testimony at the preliminary hearing.

On appeal, Sanchez argued that the Sixth Amendment’s confrontation clause, as well as California’s constitutional confrontation clause, were breached when testimony was admitted against him in the absence of an opportunity to cross-examine the witnesses.

 “The constitutional right to confront the prosecution’s witnesses does not impose an absolute requirement that a witness testify at trial against a defendant,” Kussman wrote.

He said the “forfeiture-by-wrongdoing” doctrine reflects the recognition that “one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.”

Kussman wrote that because “the preliminary hearing testimony of an unavailable witness may be admitted at trial without violating the defendant’s constitutional right of confrontation,” the prior statements by Gonzalez implicating Sanchez were properly admitted at trial.

This case is People v. Sanchez, B246573.

Santa Monica attorney Jonathan Demson represented Sanchez and Deputy Attorneys General Shawn McGahey Webb and Taylor Nguyen acted for the People.


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