Fortes v. Municipal Court

• Decision Date: 19 December 1980
• Citation: 113 Cal.App.3d 704,170 Cal.Rptr. 292
• Court: California Court of Appeals Court of Appeals
• Parties: Sharon C. FORTES, Petitioner, v. SACRAMENTO MUNICIPAL COURT DISTRICT, Respondent, The PEOPLE of the State of California, Real Party in Interest. Civ. 19563.

Page 292

170 Cal.Rptr. 292

113 Cal.App.3d 704

Sharon C. FORTES, Petitioner, v. SACRAMENTO MUNICIPAL COURT DISTRICT, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 19563.

Court of Appeal, Third District, California.

Dec. 19, 1980.

Blackmon, Wasserman & Blicker, Clyde M. Blackmon, Sacramento, for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher and James Ching, Deputy Attys. Gen., for real party in interest.

BLEASE, Associate Justice.

Sharon C. Fortes (Sharon) seeks inter alia a writ of mandate directing the municipal court to vacate its order overruling her claim of spousal privilege (Evid.Code, §§ 970, 971) and requiring her to testify against her husband at his preliminary hearing. We grant the relief.

FACTS

Paul A. Fortes (Paul), petitioner's husband, was charged in a criminal complaint with commission of murder (Pen.Code, § 187) and burglary (Pen.Code, § 459). The prosecution sought to show at the preliminary hearing that in the early morning of December 13, 1979, he entered petitioner's residence, which he had shared with her until about three weeks before, and there shot and killed a male visitor.

Petitioner was subpoenaed by the prosecution to testify against her husband. She appeared at the hearing, but declined to testify, invoking the statutory privilege not to be called as a witness against a spouse. (Evid.Code, § 971. ¹ ) The People claimed a statutory exception to the privilege under Evidence Code section 972, subdivision (e)(2), ² which excepts from the claim of privilege a "criminal proceeding in which (the defendant) spouse is charged with" a crime against a third person "committed in the course of committing a crime against the ... other spouse, ..." The apparent theory was that Paul committed the murder "in the course of" committing a property offense (burglary) against Sharon.

The parties stipulated that Paul and Sharon were married and resided together in the dwelling which he was charged with burglarizing, until he left it voluntarily on November 20, 1979; that Sharon filed for dissolution of their marriage on November 27, obtaining a temporary restraining order barring Paul from the residence; and that the order expired by its terms on December 11, 1979, two days before the alleged offenses took place.

The magistrate held that, notwithstanding that he would not hold Paul to answer for the burglary of his own family dwelling (see People v. Gauze (1975) 15 Cal.3d 709, 125 Cal.Rptr. 773, 542 P.2d 1365), the exception to the privilege applied, on the "concededly ... literal" ground that the defendant was "charged " with burglary. The superior court denied relief holding that, under the rationale of People v. Sears (1965) 62 Cal.2d 737, 44 Cal.Rptr. 330, 401 P.2d 938, a "valid charge" of burglary could be made upon the stipulated facts.

We hold that where the factual or legal basis of an exception to a claim of privilege has been put in issue (Evid.Code, § 405) the People must make at least a prima facie showing of a violation of the offense or offenses which give rise to an exception. We conclude that no such showing has been made on this record. (People v. Gauze, supra, 15 Cal.3d 709, 125 Cal.Rptr. 773, 542 P.2d 1365.)

DISCUSSION

I

We face a threshold question concerning the meaning of Evidence Code section 972, subdivision (e)(2). It provides that a married person does not have a privilege not to testify (Evid.Code, § 971) in "a criminal proceeding in which one spouse is charged with: (P) (2) A crime against the person ... of a third person committed in the course of committing the crime against the ... property of the other spouse, ..." (Emphasis added.)

The section excepts from the claim of privilege a criminal proceeding measured by the offenses at issue in the proceeding. The magistrate, focusing on the term "charged," made the charges in the accusatory pleading the exclusive measure of the offenses, without regard to their legal or factual merit. But, while the accusatory pleading is necessary to initiate a trial of a criminal offense of the kind specified in section 972, subdivision (e) (and to that extent is a test of the exception ³), it is not a sufficient measure of a proceeding excepted from the claim of privilege. The charging document marks one end of "the criminal proceeding ... in which is charged" the offense excepting the proceeding from the privilege; the substance of the charge marks the other. As we shall show, section 972 must be read in the light of the Evidence Code procedures for testing the sufficiency of the claim of exception. We first look to the legislative history of relevant Evidence Code sections.

The exceptions contained in Evidence Code section 972 derive from former Code of Civil Procedure section 1881, subdivision 1, and Penal Code section 1322, which were superseded by the Evidence Code. (Stats.1965, ch. 299, p. 1297; Cal.Law Revision Com. com. to Evid.Code, § 972, 29B West's Ann.Evid.Code (1966 ed.) p. 570 (hereafter West's Ann.Evid.Code); Rep., Rec. & Studies, 7 Cal.Law Revision Com. (1965) pp. 318, 366 (hereafter 7 Law Revision Rep.).)

In particular, the exceptions relating to criminal proceedings (Evid.Code, § 972, subd. (e)) "(restate) with minor variations ... exception(s) that (are) recognized under existing law." ⁴ (Cal.Law Revision Com. com. to Evid.Code, § 985, West's Ann.Evid.Code, supra, p. 590.)

We first note that former Code of Civil Procedure section 1881, subdivision 1, and Penal Code 1322 did not use the term "charged," but more broadly characterized the excepted proceeding as "a criminal ... proceeding for a crime" of specified kind. Cases interpreting the earlier provisions did not use the accusatory pleading as the exclusive measure of a proceeding excepted from the privilege (see People v. Curiale (1902) 137 Cal. 534, 536, 70 P. 468; People v. Ford (1964) 60 Cal.2d 772, 785, 36 Cal.Rptr. 620, 388 P.2d 892); In re Kellogg (1940) 41 Cal.App.2d 833, 838, 107 P.2d 964; People v. Green (1965) 236 Cal.App.2d 1, 19-20, 45 Cal.Rptr. 744) unless the case arose on direct review of the accusatory pleading (People v. Marshall (1954) 126 Cal.App.2d 357, 272 P.2d 816 (writ to review plea of guilty); Young v. Superior Court (1961) 190 Cal.App.2d 759, 12 Cal.Rptr. 331 (writ to review information)) and, even where the accusatory pleading facially "charged" an offense coming within an exception, the factual sufficiency of the claim was reviewed on appeal. (People v. Schlette (1956) 139 Cal.App.2d 165, 293 P.2d 79; People v. Pittullo (1953) 116 Cal.App.2d 373, 253 P.2d 705; People v. Tidwell (1943) 61 Cal.App.2d 58, 141 P.2d 969.)

Evidence Code section 918 preserves the right of review of "a ruling disallowing a claim of privilege ... under Section 970 or 971." Although the section, unlike previous law, extends the review to a spouse who is not the holder of the privilege, the section sanctions a review of the factual sufficiency of the claim of exception. (Cal.Law Revision Com. com. to Evid.Code, § 918, West's Ann.Evid.Code, supra, p. 505, citing to a discussion of the cases in Rep., Rec. & Studies, 6 Cal.Law Revision Com. (1964) p. 525 n. 5 (hereafter 6 Law Revision Rep.), which includes inter alia People v. Mullings (1890) 83 Cal. 138, 23 P. 229 and People v. Warner (1897) 117 Cal. 637, 49 P. 841.)

Evidence Code section 405 ⁵ provides the procedural mechanism by which the sufficiency of a claim of privilege or an exception thereto may be litigated. The comment of the Assembly Committee on Judiciary to section 405, taken from the Law Revision Commission commentary (7 Law Revision Rep. at pp. 65-69) notes that "(s)ection 405 is generally consistent with existing law. Code Civ.Proc. § 2102 ...." and specifically embraces "Sections 900-1070-Privileges."

The Evidence Code treats the claim of marital privilege as tendering a question of preliminary fact for resolution by the trial court even where the same factual question is at issue in the trial itself. "The rules of admissibility being applied by the judge under Section 405 are designed to withhold evidence from the jury because it is too unreliable to be evaluated properly or because public policy requires its exclusion. The policies underlying these rules are served only by the exclusion of the evidence. No valid public or evidentiary purpose is served by submitting the admissibility question again to the jury. For example, the interspousal testimonial privilege ... exists to preclude a spouse from being involuntarily compelled to testify against the other spouse. The privilege serves its purpose only if the spouse does not testify. The harm the privilege is designed to prevent has occurred if the spouse testified." (Assem.Com. on Judiciary com. to Evid.Code, § 405, West's Ann.Evid.Code, supra, p. 280.)

The comment to section 405 relies on People v. MacDonald (1938) 24 Cal.App.2d 702, 76 P.2d 121, in which the court analogized the function of the trial court in privilege cases to confession cases. "In those (confession) cases, as in the one before us, a mixed question of law and fact is presented which the trial judge must rule upon before the trial can proceed. The sufficiency of the evidence ... is necessarily involved in a ruling on the objection to the admissibility of evidence." (Id., at p. 705, 76 P.2d 121.)

Section 405 places the burden of proof of an exception to the spousal privilege not to testify upon the prosecution. ⁶ Whether that burden is met by a prima facie showing of a violation of the offense giving rise to the exception is not clear.

In People v. Ford, supra, 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892, the court reviewed the propriety of a Penal Code section 1322 exception in which the trial court "overruled the (claim of privilege) on the ground that defendant was charged with 'a crime committed ... against the...