Jurcoane v. Superior Court

• Decision Date: 07 November 2001
• Docket Number: No. B152000.,B152000.
• Citation: 113 Cal.Rptr.2d 483,93 Cal.App.4th 886
• Court: California Court of Appeals Court of Appeals
• Parties: Susan JURCOANE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. The People, Real Party in Interest.

113 Cal.Rptr.2d 483

93 Cal.App.4th 886

Susan JURCOANE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent.

The People, Real Party in Interest.

No. B152000.

Court of Appeal, Second District, Division 1.

November 7, 2001.

Law Offices of Robert Berke, Joseph A. Pertel and Robert Berke, Santa Monica, for Petitioner.

No appearance for Respondent.

Steve Cooley, District Attorney, Patrick D. Moran and Patricia Martinez, Deputy District Attorneys, for Real Party in Interest.

ORTEGA, Acting P.J.

Susan Jurcoane sought review of an order denying her marital privilege claim (Evid.Code, §§ 970-973)¹ and requiring her to testify at a preliminary hearing to be conducted to determine whether her husband, Josif Jurcoane, committed two 1984 murders. We stayed Susan's participation in any preliminary hearing and issued an order to show cause.

The issue is whether Susan may claim the marital testimonial privilege so that she need not testify against Josif. Josif fled California immediately after the killings and was charged a few days later. Susan and Josif never divorced and remain legally married. Susan had no contact with Josif for the 17 years since the killings. The magistrate overruled Susan's privilege claim. Relying primarily on federal cases interpreting the Federal Rules of Evidence, the magistrate determined the marital privilege does not apply where a viable marital relationship no longer exists.

We conclude the California marital privilege contains no such limitation, which cannot be created by judicial interpretation. Only the Legislature could choose to add such an exception to the existing express statutory marital privilege exceptions listed in section 972. Thus, we grant Susan's petition and issue a writ ordering the magistrate to issue a new order upholding Susan's exercise of the marital privilege and preventing the People from calling her as a witness at any criminal proceedings against Josif so long as she continues to exercise the privilege and the couple remains married.

FACTS

Susan and Josif were married on August 28, 1976, in New Jersey. They never divorced. The couple later moved to California. On July 4, 1984 Lloyd Bryden and Alice McCannel were killed. On July 12, 1984, a felony complaint was issued charging Josif with murdering Bryden and McCannel. (Pen.Code, § 187, subd. (a).)

According to Josif's statement at an April 2001, Mexican deportation proceeding, Josif fled to Mexico shortly after the killings and before any proceedings occurred. In the statement, Josif admitted working for Bryden. Josif claimed another man stole Josif's firearms and killed the victims with one of them. Josif heard the shots, confronted the shooter, took his gun back, and ran from the scene. Josif feared he would be implicated because his gun was the murder weapon, so he told Susan what had happened and left for Mexico. In Mexico, he assumed a false name, claimed Mexican citizenship, resumed his auto mechanic work, and lived with a Mexican woman. Josif was arrested on drug charges in Mexico shortly before the Mexican hearing, and was returned to California when the Los Angeles County District Attorney told Mexican authorities he would not seek the death penalty.²

On May 17, 2001, the prosecution subpoenaed Susan to appear as a witness at Josif's preliminary hearing. After several continuances the preliminary hearing was set for July 20, 2001.

At the July 20 hearing, the magistrate ordered an in-camera hearing when apprised that Susan was a principal witness against Josif and would assert the marital privilege. The parties agreed that Susan and Josif had been married August 28, 1976, had never been divorced, and had had no contact since shortly after the July 4, 1984, killings. The prosecutor also made an unchallenged offer of proof that Josif fled the country the day of the shooting and had not seen Susan from that date until the pending court proceedings. The prosecutor continued, again without objection: "There w[ere] some phone calls that were attempted by [Josif] early on after he left, but there's been no conversation other than those early on phone calls. And also there has been absolutely no economic help by [Josif]."³

Susan, represented by counsel, asserted the privilege not to be called as a witness. Susan argued the California marital privilege contained express statutory exceptions (§ 972), which did not include whether the marital relationship was intact when one spouse asserted the privilege. Susan argued any additional exception could be created only by the Legislature and not by judicial interpretation of the Evidence Code.

The prosecutor argued that the privilege was designed to preserve intact marriages, which the Jurcoanes no longer had, and that federal cases held the privilege should be narrowly construed and did not apply in similar situations.

The magistrate overruled Susan's assertion of the privilege and held she should testify, explaining: "[W]ith respect to [Susan's] being called as a witness, it appears to the court that there is no marriage in the sense of a real marriage between these parties; and that the privilege should not stand as a bar in this particular case. And therefore, the assertion of the privilege will be denied in this case[, w]ith respect to [Susan] being called as a witness." Later the magistrate elaborated: "[T]here essentially is no marriage. I mean, the word `marriage,' we always have to interpret and the evidence seems clear there is not a marriage here except in name only." The magistrate continued the hearing before Susan was sworn to permit her to seek review.

DISCUSSION

The magistrate found that, despite their never having been divorced, the Jurcoanes no longer had a viable, extant marital relationship. As a result, the magistrate concluded Susan could not claim the marital testimonial privilege, although the couple legally remained married. Although she does not dispute the magistrate's factual findings, Susan contends the trial court erred in overruling her marital privilege claim. She argues the privilege and its exceptions were enacted by the Legislature as part of our comprehensive Evidence Code. Standard statutory construction rules, undisputed by the People, compel courts to follow express and unambiguous statutory language in interpreting the marital privilege and its exceptions, and prevent California courts from engaging in common-law development of additional definitions and exceptions. Susan argues that, because the Legislature did not include a "marital viability" exception to the express marital privilege exceptions listed in section 972, the magistrate erred in creating it. While federal courts, interpreting federal rules, are expressly permitted to engage in common-law development of privileges and exceptions, Susan argues our statutory scheme does not so permit.

Susan's contention has merit.

"The interpretation of a statute ... is a question of law...." (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856.) "`Interpretation and applicability of a statute or ordinance is clearly a question of law.' [Citation.] It is the duty of an appellate court to make the final determination from the undisputed facts and the applicable principles of law. [Citation.]" (Sutco Construction Co. v. Modesto High School Dist. (1989) 208 Cal.App.3d 1220, 1228, 256 Cal. Rptr. 671.) Thus, we interpret sections 970-973 de novo as a matter of law.

In interpreting statutes, our primary goal is to give effect to the Legislature's intent in enacting the law. "`To determine intent, "`The court turns first to the words themselves for the answer.'"' [Citation.]" (In re Littlefield (1993) 5 Cal.4th 122, 130, 19 Cal.Rptr.2d 248, 851 P.2d 42.) "If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citations.]" (People v. Knowles (1950) 35 Cal.2d 175, 183, 217 P.2d 1.)

Statutory interpretation involves a three-step analysis. "First, a court should examine the actual language of the statute. [Citations.] Judges, lawyers and laypeople all have far readier access to the actual laws enacted by the Legislature than the various and sometimes fragmentary documents shedding light on legislative intent. More significantly, it is the language of the statute itself that has successfully braved the legislative gauntlet. It is that language which has been lobbied for, lobbied against, studied, proposed, drafted, restudied, redrafted, voted on in committee, amended, reamended, analyzed, reanalyzed, voted on by two houses of the Legislature, sent to a conference committee, and, after perhaps more lobbying, debate and analysis, finally signed `into law' by the Governor. The same care and scrutiny does not befall the committee reports, caucus analyses, authors' statements, legislative counsel digests and other documents which make up a statute's `legislative history.'

"In examining the language, the courts should give to the words of the statute their ordinary, everyday meaning [citations] unless, of course, the statute itself specifically defines those words to give them a special meaning [citations].

"If the meaning is without ambiguity, doubt, or uncertainty, then the language controls. [Citations.]

"But if the meaning of the words is not clear, courts must take the second step and refer to the legislative history. [Citations.]

"The final step—and one which we believe should only be taken when the first two steps have failed to reveal clear meaning—is to apply reason, practicality, and common sense to the language at hand. If possible, the words should be interpreted to make them workable and reasonable [citations]." (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238-1240, 8 Cal.Rptr.2d 298.)

We apply these undisputed rules to...