Opinion
C089464
09-10-2021
The PEOPLE, Plaintiff and Respondent, v. Michael Scott BAREFIELD, Defendant and Appellant.
John L. Staley, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Timothy L. O'Hair, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts II, III, IV, V, and VI of the Discussion.
John L. Staley, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Timothy L. O'Hair, Deputy Attorney General, for Plaintiff and Respondent.
HULL, J. Defendant Michael Scott Barefield appeals from his convictions of corporal injury, assault with a deadly weapon, and false imprisonment arising from his attack against a former girlfriend. He claims the trial court erred by: (1) admitting evidence in violation of the marital testimony privilege; (2) admitting propensity evidence; (3) admitting fresh complaint evidence; (4) not staying his sentence on the false imprisonment count; and (5) using the firearm possession to impose the upper-term sentence on the assault count and a firearm enhancement.
Although the court admitted evidence in violation of the marital privilege, the error was harmless. We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
June 9-10, 2017 attack
Hazel Doe and defendant started dating in 2013. They lived together, but she moved out multiple times, moving out for the last time in January 2016. They had a child. By June 2017, Hazel was dating another person, but she and defendant had discussed reconciling.
On June 6, 2017, Hazel and defendant had consensual sex at defendant's residence. The following day, Hazel told defendant she had feelings for someone else. On June 9, 2017, defendant invited Hazel to go out for a drink. They met at a bar, had drinks, and watched a basketball game. After the game, defendant asked her to go to dinner with him. She declined the invitation; she wanted to be home with her daughter who had not been feeling well.
Hazel arrived home around 9:00 or 10:00 p.m. As she opened the front door to her residence, defendant rushed up behind her. He told her he wanted to have dinner with her, but she reminded him that she needed to be home. Defendant followed her inside and continued to ask her to go to dinner. Defendant's demeanor had changed and it frightened Hazel, but she "begrudgingly agreed" to go to dinner to avoid a physical confrontation in her home. She and defendant had engaged in physical confrontations in the past.
Defendant drove them to a drive-through Mexican restaurant near his apartment. While in the drive-through lane, defendant got out of the car and walked to a nearby liquor store to buy alcohol. Hazel got into the driver's seat and continued through the drive-through.
Hazel drove them to defendant's apartment. They arrived at around 11:00 or 11:15 p.m. They went into his kitchen, unwrapped their food, and began eating. Hazel had not wanted to go that far from her house, so she took a few bites and then asked defendant to take her home. Defendant eventually agreed.
As Hazel gathered her belongings, defendant walked up to her and tried to kiss her. She pulled away and said she really needed to go. He continued trying to kiss her and she continued moving away and saying she needed to go. During this banter, the two shifted positions. Defendant was closer to the front door and had his back to it; Hazel was closer to the hallway with her back toward the hallway and bedrooms.
Defendant used his body to back Hazel into the bedroom. She tried to maneuver around him and said she did not want to "do this now." He backed her up to the bed, and she fell backwards onto it. He fell on top of her and grabbed her clothes. She continued telling him to stop and that she needed to leave, but he became more aggressive. He placed his forearm on her collar bone to hold her down and tried to take her clothes off with the other hand. She told him he was hurting her, and she tried to shove him off. The more she fought, the more his forearm grip tightened. She stopped resisting, as it was making things worse. Defendant had sex with her. He talked during the act and was "coercing [her] to kind of get into it[.]" She "just laid there" and "wasn't responding at all." After he finished, he started to get dressed, and he told Hazel to get dressed.
At this point, defendant's demeanor "totally changed[.]" As Hazel dressed, he started yelling at her. He called her a whore and accused her of prostituting herself with the man she was dating. Rambling, he said she embarrassed him, everyone knew what she was doing. Hazel was confused because she did not know what he was talking about. The more he yelled, the more excited he became, and the more afraid Hazel became.
As she bent over to put on her shoes, defendant swung at her and hit her on her right cheek. She spun around, and defendant, still yelling at her, hit her again. She tried to strike back with a toy, but he blocked it. He hit her with "an onslaught of punches," punching her "repeatedly." She tried to defend herself and hit back, but he grabbed her and shoved her onto the bed. As she sat up, she saw defendant reach into the top of a closet. Hazel heard a click, and when defendant turned around, he pointed a handgun at her head.
Defendant hit her with the gun across the right side of her face. She put up her arms to protect herself, but he repeatedly hit her with the gun "over, and over, and over again." She fell to the floor, and defendant kicked her "multiple times" in her back, stomach, and ribs. About four or five times, defendant left the room and returned with a beer, hitting her each time. He stopped yelling, and at one point he said to her, "I see you looking at the gun. I'm not going to shoot yo stupid ass." He dropped the clip out of the gun, hit her with the gun again, put the gun in his pocket, and continued to hit her with his hand.
When defendant eventually went to the bathroom, Hazel grabbed her keys and phone, and she ran out of the apartment. She forgot to take her purse. She hid in some bushes on the opposite side of defendant's apartment building. She heard defendant come out the door, walk around a bit, walk back to his apartment, and close the door. Defendant had kept her at his apartment against her will from the moment she wanted to leave for an hour and 15 minutes. She called 911.
While waiting for police to arrive, around 1:30 a.m. Hazel began exchanging text messages with a friend, L.T., and asked her to call the police. L.T. called Hazel, but Hazel responded, "I can't answer." In one of her messages to L.T., Hazel stated that defendant pulled a gun on her and pistol whipped her. L.T. called 911 several times. Shortly after 2:30 a.m., L.T. and her boyfriend picked Hazel up outside defendant's apartment. She had one shoe on. She got into the back seat and slumped over. She was upset, holding her head, and crying. They drove her home.
Hazel drove herself to the hospital. When she arrived, she called her ex-husband, Maurice Wheatley, to meet her there. She told him that defendant had attacked her and struck her with a gun.
Hazel told the hospital doctor that she had been physically attacked by a gun and the assailant's hands and feet. She did not tell the doctor that she had been sexually assaulted because she was still shaken up and there were others in the room. She hoped to have a private conversation later with the doctor, but that did not occur. Later that day, she told L.T. about the sexual assault.
Hazel suffered swelling, scrapes, and bruising on her arm, face, back, shoulder, finger, head, and around her eye. Photos of her injuries were shown to the jury. At trial, she had a scar on her right arm and another across the right side of her face from the pistol whipping.
Around 9:00 a.m. June 10, M.W. called Hazel. M.W. was defendant's legal wife, and Hazel was friendly with her. M.W. told Hazel that defendant had asked her to return Hazel's purse but also to ask Hazel for his gun back. Hazel told M.W. she did not have defendant's gun; defendant had pistol whipped her, kicked her, punched her, and forced her to have sex with him. M.W. said she believed Hazel because outside of the gun, she had had the same experience.
Hazel testified of other incidents when defendant physically abused her. Sometime in 2015, defendant and she got into an argument, and he shoved her and pushed her face into a couch. Defendant had been drinking.
On one occasion, she and defendant were at a bar and had been drinking heavily. He became angry over her not noticing certain people that came into the bar. When they got home, defendant hit Hazel twice in the face with his fist. He went into the garage, and she locked the door behind him. He broke the door off its hinges.
On another occasion, defendant grabbed Hazel by her shirt and pushed her against the wall. He put his hands around her throat and said, "[Y]ou think I'm playing with you? I'll F you up."
Another incident occurred in July 2016 after defendant and Hazel had stopped dating. After attending a funeral, they went back to his family's house. Defendant left the house for three to four hours, leaving Hazel and their baby there with no transportation. When defendant returned, he was heavily intoxicated. Hazel and defendant got into a shouting match that turned into "an all out fist fight" while she was holding the baby in her arms.
Other evidence
The trial court admitted evidence of uncharged acts of violence defendant had committed against M.W. and L.W. We discuss this evidence below. The prosecution also presented expert testimony regarding domestic violence.
Defendant testified on his own behalf.
Verdict and sentence
The jury convicted defendant of inflicting corporal injury on the parent of defendant's child, assault with a semiautomatic firearm, and false imprisonment by violence, menace, fraud, and deceit. ( Pen. Code, §§ 273.5, subd. (a) ; 245, subd. (b); 236; 237, subd. (a).) (Statutory section citations that follow are to the Penal Code.) The jury also found true personal firearm use enhancement allegations on the assault and false imprisonment counts. (§ 12022.5, subds. (a), (b).) The jury hung on a count of rape by force, and the court declared a mistrial on that count. (§ 261, subd. (a)(2).)
The trial court sentenced defendant to an aggregate prison term of 19 years, 8 months, calculated as follows: the upper term of nine years for the assault plus 10 years for the firearm enhancement, and a consecutive eight months (one-third the mid-term) for false imprisonment. The court imposed and stayed sentencing on the corporal injury count under section 654.
DISCUSSION
I
Evidence Subject to the Marital Privilege
Defendant contends the trial court erred when it denied M.W.’s assertion of the marital testimony privilege and admitted her testimony of uncharged acts of abuse defendant had committed against her. It also erred in admitting Hazel's complaint of the offense to M.W. on the phone. Although their divorce had been pending for years, defendant and M.W. were still legally married at the time of trial, and there is no exception to the marital privilege if the marriage is nonviable. We agree the trial court erred.
A. Background
Defendant and M.W. were married in 2004. They had two children together. They separated in 2007, and they reunited and separated several times after that. In 2009, defendant filed dissolution papers, but the divorce was not final by the time of trial in 2018 due to filing difficulties. The two have not lived together since 2010. The prosecution moved to admit defendant's prior uncharged acts of domestic violence against M.W. M.W. asserted the marital privilege not to testify against defendant. ( Evid. Code, § 970.) The trial court found there was no marital privilege. Relying on California family law's use of the date of separation as the demarcation for determining divorcing spouses’ community and separate property, the court determined that the right to the marital privilege ended when the parties separated, even though they were still legally married. (See Fam. Code, §§ 771, 70.)
As a result, M.W. testified to four incidents of physical abuse by defendant against her. On February 26, 2009, defendant questioned M.W. in his car about one of her male friends. He hit M.W. in the face. M.W. swung back and kicked him. She tried to get out of the car, but he locked the doors and drove off. She repeatedly asked to get out of the car, but he drove her to his house and made her talk with him there.
On March 17, 2009, defendant slapped M.W., and she grabbed him by the hair and pulled him to the ground. They let each other get up, but defendant took her phone and her purse. As she walked home, defendant turned around and pulled up in his car. When he got out, he started hitting her. She again pulled him by his hair to the ground as he continued hitting her. They let each other up and went to his home. Defendant let her leave around 7:00 a.m.
On the evening of June 26, 2010, defendant and M.W. were at a club celebrating her birthday with her sister, her sister's husband, and others. After becoming agitated with someone at the club, defendant drove the group to M.W.’s sister's house. He drove erratically, almost crashing into a wall and other cars. At her sister's house, M.W. tried to open her door to get out of the car, but defendant pulled it shut. Once she got out, defendant grabbed her by her arms so hard they both fell to the ground. She kicked him hard enough that he fell off of her. He got into his car and drove off. M.W. got into her sister's car, and as they drove off, defendant pulled up and cut them off. Her sister put the car in reverse, but defendant ran up, grabbed the mirror, and yelled at M.W. to get out. Her sister slowed down, and defendant got off the car. M.W. called 911.
On March 17, 2012, M.W. met defendant at a bar he owned. While she was there, defendant told someone she was his wife and she was cheating on him. This made her feel uncomfortable because they had been separated for years, so she left. Defendant chased after her and pushed her. She pushed back and they both began punching each other. She ran off to get away from him, but he found her and told her to get into his car. She was lost, so she got in. She wanted to go home, but he took her to his house. They argued, but eventually they had sex. She did not want to have sex with him, but she did not object because she just wanted the night to be over. In addition to relating defendant's prior acts, M.W. testified under the fresh complaint doctrine, over defendant's objection, about Hazel's statement to her during their phone call. M.W. stated that defendant contacted her on June 10, 2017. He asked her to return Hazel's purse. He also asked her to ask Hazel for his gun back. He said Hazel had taken his gun the night prior. Defendant came by M.W.’s home and gave her the purse. M.W. then called Hazel to let her know she was on her way to Hazel's house. Hazel said she was not home, but M.W. could still drop the purse off. Hazel also told her what had happened. She and defendant had a physical alteration, and she fled the house without her bag. She said defendant held her against her will, hit her several times, forced her to have sex with him, and that a gun was involved. M.W. said that Hazel sounded upset. It did not sound to M.W. that Hazel was making it up.
B. Analysis
Defendant contends the trial court erred when it ruled that the marital testimony privilege did not apply to M.W. and ordered her to testify. The privilege is given to "married person[s]," and defendant and M.W., though separated, were still legally married. ( Evid. Code, § 970.) Defendant argues that the trial court's use of family law to hold that the marriage privilege did not apply because they were separated violated the clear and express terms of the statutory privilege and wrongfully created an exception to the privilege.
In California, no person has a privilege to refuse to be a witness except as otherwise provided by statute. ( Evid. Code, § 911, subd. (a).) All evidentiary privileges are statutory. ( People v. Sinohui (2002) 28 Cal.4th 205, 211, 120 Cal.Rptr.2d 783, 47 P.3d 629 ( Sinohui ).) We thus interpret them by applying the rules of statutory construction. ( Id . at pp. 211-212, 120 Cal.Rptr.2d 783, 47 P.3d 629.)
" ‘When we interpret a statute, "[o]ur fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy." [Citation.] "Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose." ’ ( Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165-166, 158 Cal.Rptr.3d 639, 302 P.3d 1026.)" ( City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616-617, 214 Cal.Rptr.3d 274, 389 P.3d 848.)
In addition to the rules of statutory construction, we are guided by rules governing evidentiary privileges. ( Sinohui, supra , 28 Cal.4th at p. 212, 120 Cal.Rptr.2d 783, 47 P.3d 629.) "Because privileges ‘prevent the admission of relevant and otherwise admissible evidence,’ they ‘should be narrowly construed.’ ( People v. McGraw (1983) 141 Cal.App.3d 618, 622, 190 Cal.Rptr. 461 [ ].) Applying this maxim in the marital privileges context, our courts have broadly construed the exceptions to these privileges." ( Sinohui, supra , 28 Cal.4th at p. 212, 120 Cal.Rptr.2d 783, 47 P.3d 629.)
However, judicial construction of evidentiary privileges is nonetheless restricted. "The privileges set out in the Evidence Code are legislative creations; the courts of this state have no power to expand them or to recognize implied exceptions ." ( Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 206, 91 Cal.Rptr.2d 716, 990 P.2d 591, italics added.) An evidentiary privilege "is a legislative creation, which courts have no power to limit by recognizing implied exceptions." ( Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 739, 101 Cal.Rptr.3d 758, 219 P.3d 736.) The area of privileges "is one of the few instances where the Evidence Code precludes the courts from elaborating upon the statutory scheme." (Cal. Law Revision Com. com., West's Ann. Cal. Evid. Code, foll. § 911.)
Evidence Code section 970 codifies the marital testimony privilege. It states, "Except as otherwise provided by statute, a married person has a privilege not to testify against his [or her] spouse in any proceeding." A married person also has a privilege not to be called as a witness in any proceeding to which his or her spouse is a party. ( Evid. Code, § 971.) The Legislature codified exceptions to the privilege in Evidence Code section 972. For example, an exception to the privilege exists for a criminal proceeding in which one spouse is charged with a crime against the person or property of another spouse or a crime against the person or property of a third person committed in the course of committing a crime against the person or property of the other spouse. ( Evid. Code, § 972, subd. (e).) That exception does not apply in this matter. However, statutory exceptions to the privilege do not include the spouses’ separation prior to dissolution or for the marriage becoming nonviable. "The purpose of the spousal testimony privilege is to preserve marital harmony." ( People v. Sinohui, supra , 28 Cal.4th at p. 213, 120 Cal.Rptr.2d 783, 47 P.3d 629.) Jurisdictions that recognize some form of this privilege "do so because the privilege allegedly ‘ "preserve[s] marital harmony," ’ ‘ "protect[s] marital privacy," ’ and ‘ "promote[s] the socially beneficial institution of marriage." ’ [Citation.]" ( Id . at p. 211, 120 Cal.Rptr.2d 783, 47 P.3d 629.) "The rationale of the privilege provided by Section 970 not to testify against one's spouse is that such testimony would seriously disturb or disrupt the marital relationship. Society stands to lose more from such disruption than it stands to gain from the testimony which would be available if the privilege did not exist." (Cal. Law Revision Com. com., West's Ann. Cal. Evid. Code, foll. § 970.)
The marital privilege is available until the marriage is dissolved by a final judgment of dissolution even though the marriage became nonviable years before. ( Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 900, 113 Cal.Rptr.2d 483 ( Jurcoane ).) The privilege is not available after the marital relationship is terminated by divorce. ( People v. Dorsey (1975) 46 Cal.App.3d 706, 716-717, 120 Cal.Rptr. 508.) But if a final decree of divorce has not been obtained, the testifying spouse may claim a privilege not to be a witness. ( Id . at p. 717, 120 Cal.Rptr. 508.)
Jurcoane addressed the issue raised here. In Jurcoane , the court of appeal held that the marital privilege applied even if the couple had been separated for many years but the marriage had not been formally dissolved. There, the husband fled the country after he was charged with murder. The husband and wife never divorced, but they had no contact with each other for 17 years. During that time, the husband assumed a false name, claimed Mexican citizenship, resumed his work as an auto mechanic, and lived with a Mexican woman. He never provided economic assistance to his wife. After his extradition, the wife asserted the marital privilege not to testify at the husband's preliminary hearing. ( Id. , supra , 93 Cal.App.4th at pp. 889-891, 113 Cal.Rptr.2d 483.)
The court of appeal held that the wife's assertion of the privilege was lawful. The issue was one of statutory interpretation subject to the court's lack of authority to imply the existence of exceptions to the privilege. Evidence Code section 970 granted the privilege unambiguously to "married persons." The Legislature had defined how a legal marriage was brought into being, and it had "defined how marriages can be dissolved: ‘Marriage is dissolved only by one of the following: [¶] (a) The death of one of the parties. [¶] (b) A judgment of dissolution of marriage. [¶] (c) A judgment of nullity of marriage.’ ( Fam. Code, § 310, italics added.)" ( Jurcoane, supra , 93 Cal.App.4th at p. 896, 113 Cal.Rptr.2d 483.) "[T]he statutes defining the marital testimonial privilege facially do not include a proposed exception to the privilege where a still legally intact marriage is ‘moribund,’ ‘abandoned,’ or ‘no longer viable[,]’ " and the court had no authority to imply the existence of such an exception to the privilege. ( Id . at p. 897, 113 Cal.Rptr.2d 483.) Because the wife was a married person at the time of the hearing, her claim of marital privilege was lawful even though she had not seen her husband for 17 years. ( Id . at p. 900, 113 Cal.Rptr.2d 483.)
Jurcoane's reasoning applies here. The evidence is undisputed that defendant's marriage to M.W. is no longer viable. However, the marriage had yet to be terminated by a final judgment of dissolution. Because the statutory language of the marital privilege and its exceptions is clear, and because we have no authority to imply the existence of an additional exception to the privilege, we must hold that M.W.’s claim of marital privilege was lawful.
The Attorney General contends we should not follow Jurcoane for a number of reasons. He argues that contrary to Jurcoane's holding, the terms "married persons" or "spouses" as used in the privilege statute are not facially clear. He claims that looking at the terms, one cannot tell whether they include such relationships as bigamous or polygamous marriages, common law marriages from other states, domestic partnerships, putative spouses, or cohabitants.
The Attorney General's concerns are unfounded. Case authority has made clear who "married persons" are for purposes of the marital privilege. If a defendant's marriage is illegal and void, the defendant's purported spouse has no right to assert the marital privilege. (See People v. Gallego (1990) 52 Cal.3d 115, 176-177, 276 Cal.Rptr. 679, 802 P.2d 169.) For example, the privilege does not exist in a bigamous marriage, an incestuous marriage, or in a marriage entered into solely for fraudulent purposes. ( Ibid. [bigamous]; People v. MacDonald (1938) 24 Cal.App.2d 702, 704-707, 76 P.2d 121 [incestuous]; Lutwak v. United States (1953) 344 U.S. 604, 614, 73 S.Ct. 481, [sham marriage].) The marital privilege also does not extend to unmarried cohabitants. ( People v. Delph (1979) 94 Cal.App.3d 411, 415-416, 156 Cal.Rptr. 422.) And a putative spouse by definition is not a party to a valid marriage. ( Fam. Code, § 2251, subd. (a).) On the other hand, California recognizes the validity of a common law marriage contracted in another state which would be valid under the laws of that state. ( Knight v. Superior Court (2005) 128 Cal.App.4th 14, 19, 26 Cal.Rptr.3d 687.) And registered domestic partners "have the same rights, protections, and benefits," and are "subject to the same responsibilities, obligations, and duties under law," whether those rights and duties are derived from "statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." ( Fam. Code, § 297.5, subd. (a).) Arguably, common law spouses and domestic partners would be entitled to exercise the marital privilege. The Attorney General's argument does not establish that the terms "married persons" and "spouses" in Evidence Code section 970 are not clear or are ambiguous.
The Attorney General argues that even if the terms "married persons" and "spouse" are clear and unequivocal, the "plain meaning" rule does not prevent us from determining whether the literal meaning of the statute comports with its purpose. Under California School Employees Assn. v. Governing Bd. (1994) 8 Cal.4th 333, 33 Cal.Rptr.2d 109, 878 P.2d 1321 ( California School Employees Assn . ), courts will not follow the plain meaning of statutory language when to do so would frustrate the manifest purposes of the legislation as a whole or lead to absurd results. ( Id. at p. 340, 33 Cal.Rptr.2d 109, 878 P.2d 1321.) "If the [statutory] language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend." ( City of San Jose v. Superior Court, supra , 2 Cal.5th at p. 616, 214 Cal.Rptr.3d 274, 389 P.3d 848.)
The Attorney General claims that allowing the privilege here would lead to absurd results. Relying on the privilege's statutory language where a couple is all but officially divorced defeats the privilege's purpose. When the parties have factually severed the relationship, little reason exists to protect marital harmony. Privileges "are looked upon with disfavor" because "granting of a claim of privilege can serve only to ‘shut out the light[.]’ " ( People v. Delph, supra , 94 Cal.App.3d at p. 415, 156 Cal.Rptr. 422, quoting McCormick on Evidence (2nd ed. 1972), § 77, p. 156.) Applying the privilege here where there is no marital relationship to protect, unnecessarily excludes evidence where no private interest is at stake. The Attorney General contends that we should interpret the marital privilege narrowly—or more narrowly than the meaning of its clear language—so that it is limited to the Legislature's intended purposes. That is, according to the Attorney General, the marital privilege should apply only when it serves to protect marital harmony and open communication between spouses.
The Attorney General further argues that the trial court's reliance on California family law's use of the date of separation was a reasonable basis to determine when the privilege will no longer further its legislative purpose. The trial court based its ruling that the privilege did not apply on the demarcation provided by the Family Code for determining a divorcing couple's community and separate property. Family Code section 771 declares that the earnings and accumulations of a spouse after the "date of separation" are the separate property of that spouse. ( Fam. Code, § 771, subd. (a).) Family Code section 70 defines the "date of separation" as "the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: (1) The spouse has expressed to the other spouse the intent to end the marriage[; and] (2) The conduct of the spouse is consistent with the intent to end the marriage." ( Fam. Code, § 70, subd. (a).) The Attorney General argues the date of separation so defined is a reasonable basis for determining when the purposes of the marital privilege—promoting marital harmony—are no longer served.
The Attorney General's policy argument may have merit. However, as already stated, the Legislature and the California Supreme Court have restricted our authority to construct an evidentiary privilege beyond its unambiguous terms. California courts "do not enjoy the freedom to restrict California's [evidentiary privileges] based on notions of policy or ad hoc justification." ( Wells Fargo Bank v. Superior Court, supra , 22 Cal.4th at p. 209, 91 Cal.Rptr.2d 716, 990 P.2d 591.) "[W]e have no power to create such exceptions." ( Id . at p. 208, 91 Cal.Rptr.2d 716, 990 P.2d 591.) We are aware of no published opinion where a California appellate court construing an evidentiary privilege has implied the existence of an exception to the privilege by exercising its authority recognized in California School Employees Assn. not to follow the plain meaning of the privilege's statutory language where doing so would result in absurd consequences the Legislature did not intend.
The Attorney General cites People v. Gomez (1982) 134 Cal.App.3d 874, 185 Cal.Rptr. 155 to suggest that courts are amenable to the argument. The defendant there pursuant to Evidence Code section 980 sought to exclude from evidence threatening statements he made to his estranged spouse. Evidence Code section 980 privileges confidential communications between spouses. The trial court ruled the evidence was admissible, as the threats were made in the presence of others and were not confidential. The court of appeal affirmed on that basis. ( Id . at p. 879, 185 Cal.Rptr. 155.)
However, before reaching its decision, the court stated it was "leav[ing] aside the issue whether the privilege was intended to apply to communications made after a couple has separated but before the legal dissolution of the marriage is final." ( People v. Gomez, supra , 134 Cal.App.3d. at p. 879, 185 Cal.Rptr. 155.) In a footnote, the court stated, "The purpose of the privilege is to encourage free and open communication between spouses. (See Evid. Code, § 980, [C]omment, Law Revision Com[mission].) Once the parties have factually severed the relationship, little reason exists to protect the couple's communications or to extend a privilege to a confidential relationship that no longer exists." ( Id . at p. 879 fn. 1, 185 Cal.Rptr. 155.)
The court of appeal's statement is dicta and has no precedential value. The court also made no mention of the restrictions the Legislature and the Supreme Court have placed on our authority to imply an exception to an evidentiary privilege. Again, exceptions to the privilege are limited to those adopted by the Legislature. ( Wells Fargo Bank v. Superior Court, supra , 22 Cal.4th at p. 206, 91 Cal.Rptr.2d 716, 990 P.2d 591.) Given the statutory nature of privileges and their exceptions, if the Legislature had intended to terminate the marital privilege upon a married couple's separation, it could have adopted such a provision similar to Family Code section 70. The omission of such an exception indicates the Legislature did not intend for the privilege to end upon separation prior to divorce. (See id . at p. 207, 91 Cal.Rptr.2d 716, 990 P.2d 591 ["If the Legislature had intended to restrict [the attorney-client privilege], it would likely have declared that intention unmistakably, rather than leaving it to courts to find the restriction by inference ...."].) We also are not convinced that granting the privilege in this instance results in absurd consequences the Legislature did not intend. At trial, M.W. testified that she did not want to be in court testifying against defendant. She was trying to coexist with defendant in order to raise their children. The Legislature could rationally believe that protecting estranged spouses from testifying against each other as they attempt to co-parent their children ‘ "promote[s] the socially beneficial institution of marriage" ’ and protects society from the harm further disruption to their relationship may cause. ( People v. Sinohui, supra , 28 Cal.4th at p. 211, 120 Cal.Rptr.2d 783, 47 P.3d 629 ; Cal. Law Revision Com. com., West's Ann. Cal. Evid. Code, foll. § 970.)
We thus hold the trial court erred when it denied M.W.’s assertion of the marital testimonial privilege and ordered her to testify. We will determine whether the error was prejudicial after considering defendant's other evidentiary arguments.
See footnote *, ante .
DISPOSITION
The judgment is affirmed.
We concur:
RAYE, P.J.
MURRAY, J.