Bulos "Paul" Zumot, the Palo Alto man convicted of strangling his girlfriend and setting fire to their Addison Avenue cottage in 2009, lost an appeal to overturn his conviction in the California Court of Appeals in San Jose on Thursday, Dec. 12.
Zumot, 39, was sentenced to 33 years to life in prison for first-degree murder and arson after being convicted in February 2011 of killing Jennifer Schipsi, 29. His attorney, Cliff Gardner, argued before three justices on Dec. 5 that Santa Clara County Superior Court Judge David Cena violated the law by allowing prosecutors to use testimony from the victim as evidence in the form of text-message and phone records during the trial.
The court also erred by admitting evidence of prior acts of domestic violence and instructing the jury that it could use that evidence to infer Zumot's guilt, Gardner told the justices at a Dec. 5 hearing. He also argued that Cena gave the jury "one-sided and unbalanced instructions" that favored the prosecution.
But the justices did not find any errors in Cena's hearing of the case. The lower court had not violated Zumot's Sixth Amendment right to "confrontation," which prohibits "hearsay" testimony in which the person making accusations can't be cross-examined by the defense.
Zumot also failed to request any clarification of the jury instructions. There was no "reasonable likelihood that the jury misconstrued or misapplied" the instructions, wrote Justices Franklin Elia, Miguel Marquez and Patricia Bamattre-Manoukian.
Prosecutors used text messages and cell-phone records to show the couple's turbulent relationship. The records and witness testimony indicated that Zumot and Schipsi had argued the morning of Oct. 15, 2009. In her text messages to Zumot, she had threatened to go to the police and to sue him if he did not repay her more than $11,000 she claimed that he owed.
That evening, a fire broke out at their rental home at 969 Addison Ave., and Schipsi's partially charred body was found on the bed inside. Arson investigators determined the fire had been caused by an accelerant, indicating the fire had been started purposefully.
The Santa Clara County Coroner determined later that Schipsi had been strangled before the fire; the bones and cartilage in her throat were fractured and there was soft-tissue injury to the back of her throat.
Zumot's appeal argued that prosecutors had relied on an exemption to the confrontation rule. The exemption is typically reserved for witnesses in gang-related trials who are prevented by the defendant from presenting their testimony. A defendant who causes a witness to be absent through wrongdoing forfeits the constitutional right to confrontation, under the doctrine.
The court mistakenly allowed Schipsi's statements to be admitted under this "forfeiture-by-wrongdoing" exemption, the defense argued. Under common law, the exemption applied only to the unavailable witness who had made statements or given testimony at a prior proceeding, Gardner told the justices at the Dec. 5 hearing.
Schipsi had not testified or made statements against Zumot at any prior proceeding. Zumot therefore had no opportunity to confront the evidence, and admission of the evidence violated his constitutional right to confrontation, Gardner said.
But the justices ruled the "forfeiture by wrongdoing" doctrine does apply when the defendant's wrongful act is intended to stop the victim from reporting the abuse to the authorities.
"There is no requirement that there be a formal ongoing legal proceeding at the time of the defendant's wrongful acts," the justices wrote.
A 2008 U.S. Supreme Court opinion, Giles v. California, found that a forfeiture-by-wrongdoing doctrine might apply to a domestic-violence case. Domestic violence is often used to dissuade a victim from obtaining outside help, including preventing testimony to police officers or cooperation with criminal prosecutions, the appeals court wrote.
An abusive relationship culminating in murder might support that the crime intended to isolate the victim and stop her from reporting the abuse to authorities or cooperating with a criminal prosecution, and that makes the victim's prior statements admissible under the forfeiture doctrine.
"Earlier abuse or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify," the Supreme Court noted.
The appeals court also agreed with a prior 2009 appellate-court decision, the People v. Banos. In that case, prosecutors introduced out-of-court statements the victim had made to police during prior domestic-violence investigations. The court ruled the forfeiture doctrine is applicable not only when the defendant intends to prevent a witness from testifying in court, but also when the defendant's actions were designed to dissuade the witness from cooperating with the police or other law-enforcement authorities.
The Zumot justices agreed that Schipsi's statements were likewise admissible. Prosecutors showed he had killed her to keep her from being available as a witness. An ongoing legal proceeding was not necessary.
The night before her murder, Schipsi sent Zumot numerous text messages threatening to go to the police regarding financial issues and his alleged unauthorized use of her credit card. On the day she died, she sent Zumot a text message saying she would "file charges" against him.
Zumot had also already been convicted of harassing Schipsi and was on probation for the offense at the time of her killing. He was attending a required domestic-violence class on the afternoon of the murder.
The defense also argued the trial court should have held a hearing prior to sentencing Zumot. He claimed he was receiving ineffective counsel and that it had not ruled on his motion for a new trial or allowed him to appoint a new attorney.
The appeals court justices agreed with the lower court, however, that Zumot had eight months since his verdict and one month since his claim of firing superstar attorney Mark Geragos to bring in new counsel and file a motion for a new trial.
Although Zumot claimed to have fired the Geragos firm the month prior to his sentencing, this was not reflected in the court's minutes when it granted him a two-week continuance prior to his Oct. 28, 2011, sentencing.
Zumot was responsible for his attorney's unpreparedness at the sentencing hearing; although Geragos' firm had prepared motions, he had instructed the firm "not to file these documents," the court found.
Zumot's refusal to cooperate with his attorneys cannot be the basis for a claim of ineffective counsel, they ruled.
The court did sign a separate order for a writ of Habeas Corpus on Dec. 12, which was returned to the Santa Clara County Superior Court for a hearing.