Petrilli

Late one night, defendant Steven Petrilli drove a stolen minivan around San Francisco with his wife and two acquaintances. The acquaintances periodically left the van, committed a robbery, and returned to the van. Once they were back inside, defendant drove away. After the fourth such robbery, police spotted the van, and defendant drove off at a high speed. The subsequent pursuit ended when defendant rammed the van into a police car, killing a police officer in the car. Defendant was convicted of felony murder with special circumstances, as well as four counts of robbery and other crimes.

Defendant contends, and the Attorney General concedes, that the felony-murder conviction must be reversed because of instructional error. We agree.

Defendant also contends the trial court erred in admitting the testimony of his wife. She had earlier testified under subpoena before a grand jury investigating the incident, and when she sought to invoke the spousal testimonial privilege to avoid testifying at trial, the trial court ruled she had waived the privilege by appearing before the grand jury. Applying the plain language of Evidence Code section 973, which governs waiver of the…