McGraw

Appellant stands convicted, after a jury trial, of the second degree murder of his stepson Terry Roe, age 22 (Pen. Code, §§ 187, 189). The jury also found appellant used a gun in the commission of the crime within the meaning of Penal Code section 12022.5. Appellant was sentenced to state prison for a term of 17 years to life.

Appellant contends the trial court made two prejudicial rulings: (1) the marital communication privilege did not preclude appellant’s wife from testifying against him; and (2) the prosecutor could present evidence that appellant had assaulted the victim seven years earlier with a gun.

As we shall explain, the trial court was correct in both rulings.

The Facts

Discussion

I

The Trial Court Properly Ruled the Marital Communications Privilege Did Not Apply

Patricia McGraw, wife of appellant, voluntarily provided highly prejudicial testimony against her husband at trial. The testimony related to inculpatory statements made by appellant to Patricia after Terry was shot. Appellant contends the trial court erroneously failed to apply the confidential marital communications privilege set forth in Evidence Code section 980, which provides: “Subject to…