P. v. Tafolla

Filed 7/19/07 P. v. Tafolla CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

The petition for rehearing is denied. It is ordered that the opinion filed on June 22, 2007 be modified as follows:

1. The last sentence of the first paragraph on page 11 is modified to read: Josephinas statement that the bullet didnt belong to her, that it must be her husbands, is not a disclosure revealing a confidential communication between a husband and wife made during their marriage.

2. The first full paragraph on page 11 is deleted and the following is inserted: A spouse does not have a marital privilege in a proceeding resulting from a criminal act occurring prior to the marriage if she had knowledge of his arrest or charge prior to her marriage.

Evidence Code section 972, subdivision (f) provides: A married person does not have a privilege under this article in: [] . . . [] (f) A proceeding resulting from a criminal act which occurred prior to legal marriage of the spouses to each other regarding knowledge acquired prior to that marriage if prior to the legal marriage the witness spouse was aware that his or her spouse had been arrested for or had been formally charged with the crime or crimes about which the spouse is called to testify.

Defendant claims that Josefina could not have been aware that he was arrested or charged with being a felon in possession of ammunition as he was not arrested for that particular offense prior to his marriage, and that particular count (count 3) was only charged after his marriage by way of a second amended complaint.

Defendants assertion that Josefina could not have been aware of his arrest or being charged with the possession of ammunition charge until after her marriage is unavailing.

A two-count complaint charging defendant with being a felon in possession of a firearm and participating in a street gang was filed on December 18, 2003.

As defendant notes, it is possible that an arrest was technically made at the time the complaint was filed on December 18, 2003, approximately two months before the date of Josefinas and defendants marriage on February 29, 2004. Thus, on this basis, defendants arrest occurred prior to his marriage.

Defendant was charged with being a felon in possession of ammunition, count 3, on April 22, 2004, seven weeks after he was married. The fact that defendant was not charged with the possession of ammunition charge until after his marriage does not insulate Josephina from having to testify about criminal acts that occurred prior to her marriage. Josefina need not know that defendant was charged with that particular possession charge; she only need be aware of the act (the bullet was in her bedroom) and aware defendant was arrested before her marriage.

On this record, Josephina had no spousal privilege with regard to the subject matter of her testimony. (Evid. Code, 972, subd. (f).) Defense counsel was not required to make meritless objections. (People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Ochoa (1998) 19 Cal.4th 353, 432.)

3. The first sentence of the second full paragraph on page 11 is modified to read: Additionally, Josefinas statement upon viewing the bullet was an observation of what was not her property.

Except for these modifications, the opinion remains unchanged. This modification does not effect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ McKINSTER

Acting P. J.

/s/ RICHLI

J.

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