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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Lance Christopher BADGETT, et al., Defendants and Appellants.

No. H008300.

Decided: May 12, 1994

David D. Carico, Carmel (Under Appointment by the Court of Appeal), Lynda A. Romero, San Diego (Under Appointment by the Court of Appeal), for defendants and appellants. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias and Herbert F. Wilkinson, Deputy Attys. Gen., for plaintiff and respondent.

Appellants are brothers who were found guilty of first degree murder (Pen.Code, § 187) and conspiracy to commit murder (Pen.Code, § 182).   Both were sentenced to 25 years to life in state prison.   On appeal they contend that the trial court committed prejudicial error when it refused to allow a hearing on the question of the voluntariness of the main prosecution witness's statements to the police, and that the confidential marital communications privilege applied to this witness's testimony concerning statements made by appellant Christopher Badgett.   They further contend that the court should have granted a motion to strike this witness's testimony due to a coercive immunity agreement;  that the court erred in refusing to read an instruction that her testimony must be viewed with caution because she was granted immunity;  that the prosecution's intimidating conduct toward this witness violated appellants' right to a fair trial;  that the court erred in denying appellants' motion to suppress;  that the court committed various instructional errors;  that the court erred in admitting “other crimes” evidence;  that the court committed Aranda–Bruton error in allowing the admission of out-of-court statements by a non-testifying co-defendant implicating the other;  and that the trial court failed to instruct the jury to start deliberations anew when a juror was substituted after deliberations had commenced.   We reverse.1

One afternoon in February 1989, a human head was found on a beach in Santa Cruz County.   The head had a bullet wound near the right temple.   The following day a foot was found and the next day a second foot and both hands were recovered.   A few days later the body was found down a steep incline near a dirt turnout from Highway 9.

In late May of 1989, the dead man was identified from fingerprints.   Using his application for a security guard position and Department of Motor Vehicles information, the police learned that the man's driver's license was issued sequentially with three others.   One of these people was his reference for the security guard position.   All four lived at the same address.   Soon, the police identified the dead man as Michael Palmer from Devine, Texas.   Palmer's reference was identified as appellant John Badgett and the other two in the household as John's brother, appellant Christopher Badgett, and Henrietta (Retta) Jasik, all also from Devine.   All three were arrested.2

Retta Jasik was fourteen years old when she met appellant Chris Badgett.   She was a freshman in high school and he was a sophomore.   They dated one another exclusively.   When she started dating appellant, she was a cheerleader and a good student.   Her parents disapproved of the relationship.   Chris had a reputation for getting into trouble and having a bad temper.   Despite her parents' disapproval, Jasik continued her relationship with Chris to the detriment of her cheerleading and studies.   When Chris moved to California late in 1987, Jasik stole her parents' car and met him.   Eventually, the two were arrested and sent back to Texas.

During this time, the Badgett brothers were on probation and required to take blood tests.   Chris smoked marijuana before one such test and then told Jasik that they needed to go to California because he would fail his drug test.   Chris warned his brother John not to bother taking his test, because he, too, would fail.   When they told their friend Michael Palmer they were going to California, he came along.   He was having marital and tax problems.   Before leaving, they all agreed that once they went to California, nobody could return to Texas.   Jasik called her parents and told them she would call them from Sunnyvale.

John, Chris, Jasik and Palmer moved in with Chris and John's sister Theresa Badgett and her boyfriend Joe Albano.   They all lived in Albano's small one bedroom, one bath condominium in Santa Clara.   The four then selected names from obituary notices, obtained birth certificates in those names, and applied for California driver's licenses.   Jasik secured a job cashiering at McDonald's and the three men began work as security guards at American Protective Services.

One Saturday night in February, Jasik went out on the balcony of the condominium with Chris and had the first in a series of conversations which were to become the subject of substantial litigation during this prosecution.   Chris brought up the subject of Palmer wanting to return home.   Palmer had not said anything that evening about wanting to go home but had mentioned a few times before that he missed his wife and wanted to return to Texas.   Chris told Jasik that he wasn't sure if he “should off him or not” or “if his brother would go along with it.”   Jasik thought Chris was just in one of his moods.

About half an hour later, Jasik, John, Theresa Badgett and Joe Albano went out on the balcony together.   John said that, since Palmer had talked so much about returning to Texas, they were going to send him back there on a bus.   Theresa called for bus departure times and gave John a Versateller card so he could borrow money for the ticket.   Chris told everyone not to tell Palmer so they could surprise him.   Someone told Palmer they were going to a party.   Palmer called his job to get the night off.   Jasik told Palmer, at Chris's request, that because she had to work the next day, she would not be going along.   Chris, John and Palmer left around 11 p.m.   Chris and John returned around 4 a.m. Chris told Jasik that Palmer was on a bus back to Texas and would call in three days.

A day or so later, Chris told Jasik that he and John had driven Palmer up into the mountains and then stopped to smoke cigarettes.   Palmer made some remarks about Retta and said he was glad she hadn't come with them.   Chris didn't care for these comments.   When Palmer bent over to pick up the lighter he dropped, Chris shot him.   Palmer rolled down the hillside and stopped at the base of a tree.   There, while Chris held a flashlight, John dismembered Palmer and put the parts in a plastic bag Chris had placed in the car before they left.   They took the bag down the road and threw the parts into the ocean.

Soon afterwards, Jasik, Chris and John moved out of the condominium into a motel.   Chris said they had to get rid of the gun used to shoot Palmer so John and Jasik drove to San Francisco and John threw it off the Golden Gate Bridge.

By May of 1989, the three were living in an apartment in Sunnyvale.   One day, when Chris failed to pick Jasik up from work, she called the apartment and was told by a police officer to return home.   When she got to the apartment, Jasik was arrested for having a false ID (a charge which later formed the basis of a juvenile court petition).   She told the investigator from the Santa Cruz District Attorney's Office that she did not believe Palmer was dead because he had been sent back to Texas on a bus.   The circumstances and admissibility of her subsequent statements to the police, and her testimony consistent with them, give rise to several issues in this appeal.

Due Process Violations

A. Standing

Appellants contend the trial court committed prejudicial error when it refused to allow a hearing on the question of the voluntariness of Retta Jasik's statements to the police.   Appellants also contend that the “prosecution's repeated threats and intimidation directed toward witness Retta Jasik so tainted her testimony as to deprive appellant[s] of [their] fundamental constitutional rights to due process and a fair trial.”   At the preliminary examination, the defense moved for the exclusion of statements made by Jasik to the police and investigators on the basis the statements were involuntarily made.   The defense also argued that her testimony should be excluded as the fruit of the coerced statements.

The court denied a defense request for a hearing on this issue and, during cross-examination of Jasik, ruled that the defense did not have standing to challenge the voluntariness of her statements to the police.   The defense complained about the court's denial of a hearing on the voluntariness issue in a Penal Code section 995 motion.   At a hearing on the motion, the defense again asked for a hearing on the issue.   The court again stated that the defense lacked standing on the voluntariness issue and denied the motion.   A Petition for a Writ of Mandate before this court and a Petition for Review in the California Supreme Court were summarily denied.

In superior court, appellants made a motion to exclude as involuntary the statements made to the police and Jasik's testimony.   The court responded, “I've already ruled on that in regard to the motions brought pursuant to Penal Code section 995, and I do not at this time intend to rule otherwise, that is, that your clients do not have standing to challenge the voluntariness of those statements in the sense of an exclusionary rule.”

The court allowed the defense to make an offer of proof.   Although counsel's response is lengthy, it is compelling as presented and we will quote it almost in its entirety rather than diluting it by paraphrasing.   To support his request for a hearing on the voluntariness of the witness's statements to police, counsel stated the following offer of proof:

“The first piece of evidence would be that on May 26, Henrietta Jasik was arrested in her apartment in Santa Clara County by Inspector Pogue, that pursuant to Penal Code Section 830.1 and Welfare and Institutions Code Sections 626 and 626.5 that her arrest and subsequent incarceration in Santa Cruz County for the charges on which she was, in fact, arrested, was illegal in that they had no connection to Santa Cruz County.   So that her arrest by Inspector Pogue was illegal and her subsequent incarceration in Santa Cruz County was illegal, that then she was interviewed subsequently by Inspector Pogue at the scene where she gave a statement to the police which did not directly incriminate my client, Chris Badgett, or John Badgett, directly in the homicide charge connected with Michael Palmer's death;  that, again after she was incarcerated in juvenile hall in Santa Cruz County she was interviewed on the ․ next day, by two Santa Cruz County sheriff deputies and at that time she gave statements that did not directly implicate Chris and John Badgett in the Palmer homicide;  that on May 30, Sharon Jasik, her mother [having arrived from Texas], had conversations with Sergeant Terry Moore of the Santa Cruz County Sheriff's Department and at that time he represented to her that if her daughter told the truth, she would be released from custody;  that Sharon Jasik and Terry Moore proceeded to juvenile hall;  Mrs. Jasik spoke alone with her daughter, transmitted that representation to her daughter, her daughter heard that and based on that, spoke to Sergeant Terry Moore where for the first time she implicated Chris and John Badgett directly in the homicide of Michael Palmer;  that she was then transported from juvenile hall to the Santa Cruz County Sheriff's Department office where she was interviewed for five ․ hours by Douglas Mansfield of the state department of justice and during that interview, she continued to implicate both Chris and John Badgett in the Palmer homicide;  that following that on June 2, she was brought before the juvenile court and at that time there was a hearing, detention hearing held․ that during the detention hearing there was a discussion of her release and immunity that she might receive in the future, and that at that hearing both Judge Kelsay, ․ the assistant District Attorney ․ and Stuart Rich, the defense attorney who had been appointed to represent the witness at that time, that all three of those people made reference to the conditional nature of immunity based on consistent testimony with her previous statements alluding to the statements to Moore and Mansfield;  that she was then released on the condition that she maintain weekly contact with the District Attorney's office and that she testify at the preliminary hearing in this matter that was going to be held for John and Chris Badgett;  that prior to [October of 1989], the District Attorney was contacted by her attorney, Stuart Rich, regarding additional information that she had to give regarding the case and implicating John and Chris Badgett;  that there were negotiations regarding immunity;  that ․ negotiations took place between [District Attorney] Danner and Mr. Rich and Judge Kelsay and that, in fact, the agreement was reduced to writing․ that that letter indicates that she would be granted immunity under conditions that the evidence that she gave was—when she testified would be consistent with the statement that she would be given and that it would be verified also․  [T]his was the second reference that the consistency of her testimony in order to get immunity, that subsequently she was called to testify ․ at a preliminary hearing ․ she testified at a preliminary hearing called as a witness by the District Attorney.   At that time she was represented by counsel, appointed counsel, still Stuart Rich.   During the course of that preliminary hearing, the witness and her attorney agreed to speak to the defense counsel previously and under circumstances where it would be taped, copy of the tape would be given to Mr. Danner and the interview would be restricted simply to the subject of the October 17 interview in Texas and one other interview she had had with Mr. Danner and Mr. Pogue prior to commencement of the preliminary hearing.

“At that time, Mr. Danner asked that the witness be brought to court with her lawyer, that she be voir dired by the magistrate, Judge Atack at that time, as to whether or not she would agree to testify to the defense.   He requested that the judge interview her separately from her attorney, and when Judge Atack ruled that she might speak, she was free to speak to defense counsel for these limited purposes․  [I]n the witness's presence Mr. Danner asked the magistrate stay, actually order a stay on whether or not she talk to defense counsel while he sought a writ from a higher court which was denied, subsequent to that, Mr. Danner asked that the magistrate remove Mr. Rich as her attorney from the proceedings because he was no longer necessary.   The magistrate declined to do that.

“At that point, Mr. [Danner] brought the witness and her attorney before Judge Kelsay, presiding judge, juvenile court at that time, ․ and had the pending juvenile case dismissed [and Mr. Rich relieved as her attorney]․

“Subsequent to this action ․ the witness has made a request of this Court ․ to have counsel appointed.   And that was at the same time that Mr. Rich who subsequently was retained for one dollar in exchange between the witness and himself, after he was relieved by the Court in the juvenile matter and the juvenile proceedings dismissed, he agreed to represent the witness for the sum of one dollar.

“He then withdrew and filed a notice with this Court in the juvenile proceedings․  The Court allowed him to withdraw as her attorney.   That took place in August.

“Again, in August she requested that an attorney be appointed to represent her in August and this Court did not appoint counsel․  [¶]  The legal theory, illegal arrest, improper inducement based on conditional immunity offers, based on consistency and continual duress as to the representation of the witness in contacts by the prosecution, that's the theory.   The cases, Your Honor, I think are clear that we do have standing to raise due process and that this constitutes a due process violation.   And I think Justice Lucas in his opinion in the People versus Douglas case raises a scenario almost exactly on point to this one.

“So I'm asking the Court to reconsider and allow us to have a hearing as to voluntariness.”

The court responded:  “I'm going to again rule that the defendants do not have standing, and I believe we've made a full record now․  You've made an appropriate record so that no one can challenge your sufficiency certainly, if not the length of your offer of proof.”

 Appellants lack standing to object to a violation of Jasik's privilege against self-incrimination, because that right is personal and may not be asserted by another.  (People v. Douglas (1990) 50 Cal.3d 468, 501, 268 Cal.Rptr. 126, 788 P.2d 640.)   However, “federal and California courts have consistently recognized that the ‘admission at trial of improperly obtained statements which results in a fundamentally unfair trial violates a defendant's Fifth Amendment right to a fair trial.’ ”  (Douglas, supra, at p. 499, 268 Cal.Rptr. 126, 788 P.2d 640.)   At a hearing on this issue, a defendant challenging the voluntariness of statements made by a third party bears the burden of proving that the statements were involuntarily obtained.   (Id. at p. 500, 268 Cal.Rptr. 126, 788 P.2d 640.)

 In In re J. Clyde K. (1987) 192 Cal.App.3d 710, 237 Cal.Rptr. 550, the Court of Appeal reversed a juvenile court order, holding that the due process rights of two minors required the exclusion of a third minor's coerced confession and its fruits.   The court held that California Constitution, article I, section 28, section 28, subdivision (d), providing that relevant evidence shall not be excluded in any criminal proceeding, did not nullify the law which permits a defendant to attack another's coerced confession and to exclude the confession and evidence gathered as a result.   This is because the subdivision expressly excludes from its coverage existing statutory rules relating to privilege and hearsay.   Respondent asserts that J. Clyde K. was “wrongly decided.”   We disagree.   In Douglas, the California Supreme Court found that Proposition 8 impacted the burden of proof on voluntariness.   Although it had the opportunity to do so, the court did not repeal the third party standing rule for involuntary statements.

 Respondent also argues that United States v. Payner (1980) 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 and Alderman v. United States (1969) 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 stand for the proposition that a defendant may not assert a third party's Fourth Amendment rights.   This is not an issue in appellants' case.   Appellants assert that the use of coerced testimony violates their right to a fair trial.   They do not attempt to vicariously assert another's right to be free of unreasonable searches.   Respondent argues that “if the narcotics forcibly extracted from Rochin's [Rochin v. California (1952) 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183] stomach bore the name, address and signature of the person who sold them to Rochin, that evidence would be admissible at the seller's trial.”   This is because that method of obtaining the evidence would not compromise the integrity of the evidence itself.   However, when the method of obtaining a statement to be used as evidence affects the reliability of the statement itself, it is error to preclude appellants from attacking its admissibility.   The failure to hold a hearing on appellants' motion to exclude the statements and testimony of Retta Jasik was a violation of due process.   Jasik's testimony was a crucial part of the prosecution's case.   Respondent does not attempt, nor will we, to describe this error as harmless.

Despite defense counsel's impressive offer of proof, we cannot assess what the trial court's ruling on this issue would have been had appellants been given the hearing to which they were entitled.   The court did recognize that appellants had a due process right to challenge the immunity agreement which compelled Jasik to testify in accordance with her statements to the police.   The same justification for that hearing applies to the overall circumstances of the production of her statements and testimony as well.   A hearing on the admissibility of evidence of Jasik's statements should focus on the due process concerns raised by the method of obtaining the statement, the immunity agreement, and the prosecutorial conduct involved in obtaining this evidence.

B. The Immunity Agreement

Appellants contend the court should have granted a motion to strike Retta Jasik's testimony due to the coercive immunity agreement.   At the hearing to determine the admissibility of Jasik's statements to the police and the admissibility of her testimony based on those statements, the trial court should be free to consider all of the circumstances that produced this evidence.   The immunity agreement is one aspect of this.   On remand, the trial court should be free to reexamine the immunity agreement at a hearing on the overall issue of whether a due process violation occurred.   For this reason, we provide some analysis of the immunity agreement issue.

The immunity agreement was read into the record during the trial by quoting the transcript of the juvenile court proceedings involving Retta Jasik.   The prosecutor at that proceeding said that “according to the petition, the minor has been charged with a 32 [accessory after the fact] as well as a 148.9 [false information to a police officer].   It is my intention at this time to recommend to the Court that the minor sign a waiver of extradition and that a condition of her release be that she or her mother contact my office ․ to let us know how things are going and where they are․  [¶] It is my intent that when Retta returns to California for the purpose of testifying for the preliminary hearing that I would be granting her whatever immunity she needs to be protected to testify in this case regarding the facts that she stated in her interview.   At that time, of course, the petition would be dismissed and that is all I can say at this point.”   Clarifying the distinction between use immunity and transactional immunity the judge observed “I think that ultimately, obviously, if she's telling the truth, you would be comfortable with transactional as well as use immunity without any hesitation.”

The immunity agreement was reduced to writing as follows:  “The purpose of this letter is to convey to you and your client that any statements concerning this additional evidence made to the District Attorney's Office, representatives, including attorneys and inspectors, will not be used against her in the prosecution of 32 PC or in the prosecution of any other crime, with the exception of perjury, should she testify under oath to these same statements.”

 At trial, the defense moved to strike Jasik's testimony because the immunity agreement compelled her to testify in accordance with her statements to the police.   Summarizing the law on immunity agreements, the California Supreme Court stated in People v. Morris (1991) 53 Cal.3d 152, 191, 279 Cal.Rptr. 720, 807 P.2d 949 “As we observed in People v. Allen (1986) 42 Cal.3d 1222, 1251–1252, 232 Cal.Rptr. 849, 729 P.2d 115:  ‘ “[A] defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.”  (People v. Medina (1974) 41 Cal.App.3d 438, 455, 116 Cal.Rptr. 133.)   Thus, when the accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police (id., at p. 450, 116 Cal.Rptr. 133), or that his testimony result in the defendant's conviction (People v. Green (1951) 102 Cal.App.2d 831, 837–839, 228 P.2d 867, the accomplice's testimony is “tainted beyond redemption” (Rex v. Robinson (1921) 30 B.C.R. 369) and its admission denies the defendant a fair trial.   On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid.  (People v. Fields [ (1983) ] 35 Cal.3d 329, 361, 197 Cal.Rptr. 803, 673 P.2d 680;  People v. Lyons (1958) 50 Cal.2d 245, 266, 324 P.2d 556.)’ ”  (Parallel citations and emphasis omitted.)

Appellants contend that the trial court should have granted their motion to strike Jasik's testimony because the written immunity agreement was predicated on her testimony “being consistent with her statements to the police which was also announced to her in open court while she was still in custody.”   Respondent counters that every reference in the record to “consistent” testimony is accompanied by a reference to the requirement to testify truthfully.

In Medina, supra, 41 Cal.App.3d 438, 116 Cal.Rptr. 133, three witnesses testified under a grant of immunity subject to the condition that their testimony not materially or substantially differ from their tape-recorded statements to the police.   The court found that this stipulation fostered tainted testimony and denied the defendants due process.   The testimony of these witnesses showed them to be accomplices liable to prosecution for the murders for which the defendants were on trial.   The Court of Appeal observed “The effect of the condition appended to the immunity orders of each of the principal prosecution witnesses, therefore, was that each of said witnesses was thereby placed by the court in a position of dire peril.   If his testimony ‘materially or substantially’ differed from the prior recorded statement he became liable to prosecution for first degree murder and, having disclosed his participation, stood little chance of escaping conviction.”  (41 Cal.App.3d at p. 452, 116 Cal.Rptr. 133)  Here, it appears that Jasik's exposure to criminal liability was far more limited than that of the witnesses in Medina.

In People v. Sully (1991) 53 Cal.3d 1195, 283 Cal.Rptr. 144, 812 P.2d 163, the California Supreme Court held that the trial court properly admitted the testimony of an accomplice who was testifying pursuant to a plea bargain.   The witness was permitted to plead guilty as an accessory to one of the six counts of murder with which the defendant was charged.   The basic condition of the plea was that the witness provide “ ‘truthful and complete’ statements and testify ‘truthfully and completely in all criminal proceedings.’ ”  (53 Cal.3d at p. 1216, 283 Cal.Rptr. 144, 812 P.2d 163.)   She was also required to pass a polygraph examination stating she had no physical involvement in the deaths.   The defendant in Sully argued that “the plea condition requiring [the witness] to pass a polygraph examination with respect to her noninvolvement in the murders effectively compelled her to deny in her testimony that she was the perpetrator or an accomplice in any of the murders in violation of Medina.”  (53 Cal.3d at p. 1216, 283 Cal.Rptr. 144, 812 P.2d 163.)   The court held that the defendant had failed to show that the plea condition was impermissibly coercive because the polygraph condition did not dictate the witness's testimony.  “She remained free to testify as she desired, without having to subscribe to any particular version of events.”  (Id. at p. 1217, 283 Cal.Rptr. 144, 812 P.2d 163, emphasis omitted.)   Here, the immunity agreement was conditioned on Jasik's testimony remaining consistent with the statement she made implicating appellants in the homicide.

In People v. Fields (1983) 35 Cal.3d 329, 197 Cal.Rptr. 803, 673 P.2d 680, the defendant's sister was permitted to plead guilty to being an accessory to murder in exchange for her testimony.   In response to defense questions about the terms of the agreement, the witness said she had agreed to testify in accord with her last statement to the police, but in response to the district attorney's questions, she said she agreed only to tell the truth.   The court observed “Contrary to defendant's contention, however, [the witness's] trial testimony is not necessarily inconsistent;  if the last statement she gave the police was the truth, then by agreeing to testify truthfully she has in fact agreed to testify in accord with that statement․  The testimony is not sufficient to demonstrate either that the plea bargain required [the witness] to testify in accord with her statement regardless of its truth, or that [the witness] so understood the agreement.  [¶] We recognize that a witness in [this] position is under some compulsion to testify in accord with statements given to the police or prosecution.   The district attorney in the present case obviously believed that [the witness's] last statement was a truthful account, and if she deviated materially from it he might take the position that she had breached the bargain, and could be prosecuted as a principal to murder.   But despite this element of compulsion, it is clear, and the cases so hold ․, that an agreement which requires only that the witness testify fully and truthfully is valid, and indeed such a requirement would seem necessary to prevent the witness from sabotaging the bargain.   We believe the requirements of due process, as explained in Medina, are met if the agreement thus permits the witness to testify freely at trial and to respond to any claim that he breached the agreement by showing that the testimony he gave was a full and truthful account.”  (Id. at pp. 360–361, 197 Cal.Rptr. 803, 673 P.2d 680.)

Here, Jasik was not free to testify to a version of the events that differed from her statements to police.   Although the consequences of giving a different version appear less severe than in Medina, the agreement does contemplate specific testimony.   Given the circumstances under which Jasik's statements were produced, the nature of the immunity agreement is part of the overall issue of whether the use of her statements and testimony would deprive appellants of a fair trial.

Confidential Marital Communications Privilege

Appellant Chris Badgett contends that the trial court should have excluded Retta Jasik's testimony about her conversations with him because the confidential marital communications privilege applied to this evidence.

 Evidence Code section 980 establishes a privilege for the exclusion of communications made in confidence between spouses while they were husband and wife.3  The essential prerequisite for the assertion of the marital communications privilege is the existence of a valid marriage.  (People v. Mabry (1969) 71 Cal.2d 430, 439, 78 Cal.Rptr. 655, 455 P.2d 759;  People v. Delph (1979) 94 Cal.App.3d 411, 415, 156 Cal.Rptr. 422.)

Civil Code former section 4100 (now, without substantive change, Family Code, § 300) provides:  “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.   Consent alone will not constitute marriage;  it must be followed by the issuance of a license and solemnization as authorized by this code, except as provided by Sections 4210 and 4213.” 4  (Stats.1992, ch. 318, § 1, p. 1049.)

 However, Civil Code former section 4104 (now, without substantive change Family Code section 308) provides that:  “All marriages contracted without this state, which would be valid by the laws of the jurisdiction in which the same were contracted, are valid in this state.”   Thus, common law marriages legally created in other states are recognized in California.  (Colbert v. Colbert (1946) 28 Cal.2d 276, 280, 169 P.2d 633.)   Although California does not recognize common law marriages entered into in this state, it does recognize validly created Texas common law marriages.  (Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 490, 186 Cal.Rptr. 321;  see also People v. Calderon (1961) 195 Cal.App.2d 576, 15 Cal.Rptr. 874.)

At the first preliminary hearing held early in 1990, appellant's counsel objected to some of Retta Jasik's testimony on the basis of the confidential marital communications privilege.   The court held a hearing on the applicability of the privilege.   The court determined there was a common law marriage under Texas law which was recognized by California and the confidential communications privilege applied.   The court excluded evidence relating to conversations between Retta Jasik and appellant on the balcony of the condominium.

At the second preliminary hearing, held in June of 1990 before a different judge, the court again ruled that the confidential marital communications privilege applied.

Prior to trial, the prosecution filed a 62–page motion with a 100–page appendix asking the trial court to admit Chris Badgett's statements to Retta Jasik by finding that they were not confidential marital communications.   At a hearing on this issue, the trial court applied Texas law to determine whether a common law marriage existed.   The court found that “once the parties moved to California, had it been Houston instead of San Jose, there, indeed, would have been a common law marriage as dictated by Texas law.”   However, the trial court, stating twice that it was a “close question” determined that there was no common law marriage in Texas because there was no specific and clear agreement to be married and appellant and Retta Jasik did not hold themselves out as married to Retta Jasik's family members.

Appellant filed a motion for reconsideration of this ruling.   That motion was denied and the evidence of appellant's conversations with Retta Jasik was admitted at trial.

Appellant contends that the trial court's ruling that appellant and Retta Jasik did not have a valid common law marriage under Texas law was error.   Respondent counters that the trial court's ruling was correct and that, regardless of the legality of the marriage under Texas law, it would be against public policy to recognize its existence in this case.

 The claimant of the confidential marital communications privilege has the burden of proving, by a preponderance of the evidence, the facts necessary to sustain the claim.  (People v. Mickey (1991) 54 Cal.3d 612, 655, 286 Cal.Rptr. 801, 818 P.2d 84.)   Under Texas law, to establish a common law marriage, the following must be shown:  the existence of an agreement to become husband and wife;  the parties were living together in Texas pursuant to the agreement;  and the parties held each other out to the public as husband and wife.  (Texas Family Code Annotated, § 1.91(a)(2).)   The agreement need not be express and may be inferred if it is proved that the parties lived together as husband and wife and represented to others that they were married.   (Texas Family Code Annotated, § 1.91(b).)

 The prosecution did not contest the living together requirement and the court determined the living together element had been met.   Although there were other incidents on which the court could have relied, the court determined that a hospital document in which Retta Jasik designated herself as appellant's wife was sufficient under Texas law to satisfy the holding out requirement for a common law marriage.   However, the court determined there was never a “specific and clear agreement” between Retta Jasik and appellant to be married.   The court determined that the failure to inform the family members of the marital agreement supported the finding that there was no agreement.

The trial court found there was no common law marriage under the mistaken belief that a “specific and clear” agreement was required.   According to Texas Family Law Code section 1.91(b), however, an agreement may be inferred if it is proved that the couple lived together as husband and wife and represented to others that they were married.   The trial court found that appellant and Retta Jasik lived together in Texas and held themselves out to the public as a married couple.   These findings support the inference that the two agreed to be married.   Direct evidence points to an agreement as well.   Jasik testified that she and appellant agreed to live as husband and wife.   She indicated she was married on employment applications and W–4 tax forms, listing appellant as her husband.   She and appellant wore wedding rings.   All of the criteria for finding the existence of a Texas common law marriage were present in this case.

 Respondent argues that the marital communications privilege must be balanced against the competing interest of admitting all relevant evidence codified in article I, section 28 of the California Constitution.   However, by its terms, Article I, section 28, subdivision (d) does not “affect any existing statutory rule of evidence relating to privilege․”  (See Menendez v. Superior Court (1992) 3 Cal.4th 435, 457, fn. 18, 11 Cal.Rptr.2d 92, 834 P.2d 786.)

 Respondent argues that the privilege issue should be evaluated under California law, citing People v. Carter (1973) 34 Cal.App.3d 748, 110 Cal.Rptr. 324.   In Carter, a California probationer made statements concerning his intention to kill other California residents while in the process of beating his estranged wife at her home in Illinois.   The court observed that “While the communication was made in Chicago, the question of privilege is determined by reference to the law of California.”  (Id. at p. 752, 110 Cal.Rptr. 324.)   The court observed that the policies behind the exceptions to Evidence Code section 980 that are found in Evidence Code section 985 would not be served by “shielding as confidential and privileged threats against third persons made by one spouse in the course of criminally victimizing the other spouse.”  (Id. at p. 753, 110 Cal.Rptr. 324.)5

It is notable that Evidence Code section 985, cited in Carter, recognizes certain types of criminal proceedings at which the marital communications privilege will not apply.   This is in contrast to, for example, Evidence Code section 998, which creates an exception in all criminal proceedings for application of the physician-patient privilege.   (Evid.Code, § 994.)   Thus we must conclude that the Legislature has specifically determined under what circumstances to limit the scope of the confidential marital communications privilege in criminal prosecutions.   More importantly, nothing in Carter persuades us to ignore Civil Code former section 4104, which expressly and clearly sets forth the rule regarding the validity of marriages contracted outside of California.   It is a “well settled rule that a marriage which is contrary to the policies of the laws of one state is yet valid therein if celebrated within and according to the laws of another state.”  (McDonald v. McDonald (1936) 6 Cal.2d 457, 459, 58 P.2d 163.)

Typically, courts use Civil Code former section 4104 in determining the status or rights of the parties inter se, and such application is less likely to implicate the public policy concerns described by respondent.   However, nothing in Civil Code section 4104 or in the cases interpreting that section attempts to limit its application to any particular purpose or type of proceeding.6

Respondent argues that the confidential marital communications privilege was prohibited by application of Evidence Code section 981.   Evidence Code section 981 provides that the marital communications privilege does not exist “if the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or fraud.”   Although essentially conceding that the pre-murder statements do not fit within the statute, respondent argues that the post-killing statements to Jasik are admissible under Evidence Code section 981 because those statements were part of the conspiracy and were intended to involve Jasik in the crime.   We need not engage in a statement-by-statement analysis in light of our ruling.   However, for guidance in the event of a retrial we refer the court to People v. Dorsey (1975) 46 Cal.App.3d 706, 120 Cal.Rptr. 508 and its discussion of the limits of the section 981 exceptions.7

The Motion To Suppress **


The judgment is reversed.


1.   We commend the parties, both here and in the trial court, for their excellent motions and briefs.

2.   As the parties did in their briefs, we will, for convenience, modify references to appellant Christopher Badgett to “Chris” and appellant John Badgett to “John.”

3.   Evidence Code section 980 provides in part:  “[A] spouse ․ whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.”

4.   These exceptions are not applicable here.

5.   Evidence Code section 985 states:  “There is no privilege under this article in a criminal proceeding in which one spouse is charged with:  [¶] (a) A crime committed at any time against the person or property of the other spouse or a child of either.  [¶] (b) A crime committed at any time 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.  [¶] (c) Bigamy.  [¶] (d) A crime defined by Section 270 or 270a of the Penal Code.”

6.   Now Family Code section 308, Civil Code former section 4104 was first enacted as Civil Code section 63 in 1872.   It has remained essentially unchanged since that time.   The Legislature is the appropriate body to address the myriad of questions presented as this section from the nineteenth century is applied in the twenty-first.   Just to name two, we foresee issues arising from the recognition of various domestic partnerships as marriages in other jurisdictions and in the criminalization of spousal rape.   Of course, the whole field of conflict of laws is implicated by deciding to use a case-by-case analysis in recognizing foreign marriages.  (See U.S. Const., Art. 4, § 1 (Full Faith and Credit).)

7.   In Dorsey, defendant's arson conviction was reversed for failure of his trial counsel to claim the confidential marital communication privilege.   The court observed “Section 981 authorizes a limited exception to section 980.   It does not appear that most of the communications which Mrs. Dorsey testified to with regard to Dorsey (which were subject to the claim of privileged marital communications) were admissible under section 981.   With reference to section 981, the Law Revision Commission comment reads in part:  [¶] ‘It is important to note that the exception provided by Section 981 is quite limited.   It does not permit disclosure of communications that merely reveal a plan to commit a crime or fraud;  it permits disclosure only of communications made to enable or aid anyone to commit or plan to commit a crime or fraud.   Thus, unless the communication is for the purpose of obtaining assistance in the commission of the crime or fraud or in furtherance thereof, it is not made admissible by the exception provided in this section․’  [¶] ․ Primarily, ․ Mrs. Dorsey testified to statements made by Dorsey before the alleged commission of an offense as to what he intended to do or why he intended to do it or how he intended to do it, or after the alleged commission of the crime as to what he had done, why he had done it or how he had done it.   Those communications were within the privilege of Evidence Code section 980 and Dorsey could have precluded testimony by Mrs. Dorsey if proper claim of privilege had been appropriately and timely made.”  (46 Cal.App.3d at pp. 717–718, 120 Cal.Rptr. 508)

FOOTNOTE.   See footnote *, ante.

ELIA, Associate Justice.

PREMO, Acting P.J., and WUNDERLICH, J., concur.