holding that in light of strong evidence that a homicide occurred, it is “entirely understandable that trial counsel ... made no sweeping declarations of his client’s innocence but instead adopted a more realistic approach .... ” arguing that “intoxication negated the mental elements necessary for ... premeditated murder”
How later courts described this case
- holding that in light of strong evidence that a homicide occurred, it is “entirely understandable that trial counsel ... made no sweeping declarations of his client’s innocence but instead adopted a more realistic approach .... ” arguing that “intoxication negated the mental elements necessary for ... premeditated murder”
- stating that “[r]eviewing 23 courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the 24 record on appeal affirmatively discloses that counsel had no rational tactical purpose for (his or 25 her) act or omission.”
- rejecting defendant’s claim that he needed a new penalty jury to avoid potential prejudice caused by court’s voir dire statements that defense would present evidence in mitigation at penalty trial
- rejecting ineffectiveness claim based on the failure to exhaust peremptory challenges because "the decision whether to accept a jury as constituted is obviously tactical"
Written by the judges who cited it.
Later courts went against this
Criticized on other grounds by People v. Bolin, 75 Cal. Rptr. 2d 412 (1998)
12 Cal.4th 415, 436-437 , criticized on other grounds in People v. Bolin (1998) 18 Cal.4th 297, 315
The opinion
KENNARD, J.
I concur in the judgment and in the majority opinion. I write separately to explain why the trial court erred in sustaining the assertion of the marital testimonial privilege by defendant’s wife when defendant attempted to call her as a witness at the penalty phase.
The marital testimonial privilege is codified in Evidence Code section 970, which provides: “Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.” (Italics added.) 1
Evidence Code section 970 replaced other code provisions that had conferred a broader privilege. Under former section 1881 of the Code of Civil Procedure and former section 1322 of the Penal Code, a party to an action could prevent his or her spouse from testifying either for or against the spouse who was a party, and in criminal prosecutions a defendant’s spouse could decline to testify for or against the defendant. Evidence Code section 970 gives the testimonial privilege exclusively to the nonparty spouse and limits the privilege to testimony “against” the spouse who is a party. A Law Revision Commission comment explains the rationale for eliminating the testimonial privilege entirely as to testimony “for” a party spouse, as follows: “The Commission has concluded that the marital testimonial privilege provided by existing law as to testimony by one spouse for the other should be abolished in both civil and criminal actions. There would appear to be no need for this privilege, now given to a party to an action, not to call his spouse to testify in his favor. If a case can be imagined in which a party would wish to avail himself of this privilege, he could achieve the same result by simply not calling his spouse to the stand. Nor does it seem *501 desirable to continue the present privilege of the nonparty spouse not to testify in favor of the party spouse in a criminal action. It is difficult to imagine a case in which this privilege would be claimed for other than mercenary or spiteful motives, and it precludes access to evidence which might save an innocent person from conviction.” (Cal. Law Revision Com. com., 20 West’s Ann. Code Civ. Proc. (1983 ed.) former § 1881, p. 322.)
Here, defendant called his wife as a witness to testify for him at the penalty phase of his capital trial. Because the proposed testimony was to be “for” rather than “against” the party spouse, defendant’s wife could not claim the testimonial privilege of Evidence Code section 970, and the trial court erred in sustaining her claim of privilege.
The majority states that the trial court “may have concluded” that defendant’s wife invoked the privilege to avoid “potentially damaging questions on cross-examination.” (Maj. opn., ante, at p. 490.) This may be true (although it is speculative on the present record), but it is irrelevant. When a defendant in a criminal proceeding calls his or her own spouse as a witness, the spouse is not testifying “against” the defendant within the meaning of Evidence Code section 970. Therefore, the testimonial privilege of that section is not available, regardless of the spouse’s reason for asserting the privilege and regardless of the opinion of the spouse or of the trial court that the testimony on both direct and cross-examination would, on balance, be unfavorable to the defendant. As a respected commentator on California law explains: “Our former law allowed a witness spouse to refuse to testify even though the party spouse sought the testimony for his own benefit. This aspect of the privilege was abolished by the Code for both civil and criminal actions.” (2 Witkin, Cal. Evidence (3d ed. 1986) Witnesses, § 1171, p. 1119.)
Although the trial court erred in sustaining defendant’s wife’s assertion of the marital testimonial privilege, the record fails to establish that defendant was prejudiced by the trial court’s error because defendant made no offer of proof as to his wife’s proposed testimony. (See maj. opn., ante, at p. 491.) Therefore, with the understanding that the majority is not holding that the marital testimony privilege may apply when one spouse calls the other spouse as a witness, I join the majority in affirming the judgment.
A companion provision, Evidence Code section 971, states: “Except as otherwise provided by statute, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship.”
A third provision, Evidence Code section 972, lists situations in which the testimonial privileges of Evidence Code sections 970 and 971 are not available.