It is common in domestic violence cases, as well as certain theft cases and certainly gang-related cases, that the unavailability of a witness for trial can mean a dismissal or defense verdict. For example, when a wife or girlfriend is the only witness to defendant’s conduct and she cannot or will not appear at trial, the prosecution may dismiss the case. Our office has experienced this many times on first day of trial, to our client’s relief.

However, a defendant’s awareness of this can be dangerous. If the client attempts to tell his girlfriend or wife to not cooperate with the prosecution by refusing to come to court, the prosecution can invoke the doctrine of forfeiture by wrongdoing to make the wife’s testimony or girlfriend’s testimony admissible.

The Torrance Superior Court case of People v. Kevin Jermaine Jones, before the Honorable Cary Nishimoto, should serve as a warning in this regard. Mr. Jones was involved romantically with two women at the same time. After nearly choking one girlfriend (Breland) to death, he used that girlfriend’s cell phone to call the other girlfriend (Durden), saying “I just choked your homegirl out and I have her phone.”

Ms. Breland then went to police, who listened to her story and contacted Durden. Durden reported the admission that Mr. Jones had made to her about choking Breland. From jail, Mr. Jones then contacted Durden twelve times by phone. During the ten hours of phone conversation, which the jail recorded, Mr. Jones attempted to dissuade Durden from appearing in court to testify about his admission.

At trial, Durden indeed did not come to court, but the prosecution attempted to admit Durden’s statements to the police about Mr. Jones’ call. Such statements were hearsay without a doubt. However, the prosecution argued that under Evidence Code