Fortes

Sharon C. Fortes (Sharon) seeks inter alia a writ of mandate directing the municipal court to vacate its order overruling her claim of spousal privilege (Evid. Code, §§ 970, 971) and requiring her to testify against her husband at his preliminary hearing. We grant the relief.

Facts

Paul A. Fortes (Paul), petitioner’s husband, was charged in a criminal complaint with commission of murder (Pen. Code, § 187) and burglary (Pen. Code, § 459). The prosecution sought to show at the preliminary hearing that in the early morning of December 13, 1979, he entered petitioner’s residence, which he had shared with her until about three weeks before, and there shot and killed a male visitor.

Petitioner was subpoenaed by the prosecution to testify against her husband. She appeared at the hearing, but declined to testify, invoking the statutory privilege not to be called as a witness against a spouse. (Evid. Code, § 971. ) The People claimed a statutory exception to the privilege under Evidence Code section 972, subdivision (e)(2), which excepts from the claim of privilege a “criminal proceeding in which [the defendant] spouse is charged with” a crime against a third person “committed…