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Name: People v. Wheeler
Case #: F038303
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 02/05/2003
Subsequent History: Order mod. opinion 3/6/03 (no change in judgment). Rev. denied 4/23/03.

A wife’s statement to her husband regarding her adultery is admissible as a statement against her social interest. Appellant/husband shot the wife’s lover after the wife told him about her affair. During trial, the People anticipated the wife’s invocation of her spousal privilege not to testify against her husband. They argued it was admissible as nonhearsay under the social interest exception. (Evid. Code, sec. 1230.) This statement meets all the requirements for admissibility and trustworthiness under that exception: 1) the declarant has sufficient knowledge of the subject, 2) the declarant is unavailable as a witness, 3) the statement “created a risk of making [her] an object of hatred, ridicule, or social disgrace in the community, that a reasonable [woman] in [her] position would not have made the statement unless [she] believed it to be true.” This exception to the hearsay evidence rule was adopted to admit previously inadmissible statements about illegitimacy, pregnancy out of wedlock, and impotency. A statement to one’s spouse about adultery falls within these types of acts of social disgrace, i.e., it could not possibly have improved her social standing with anyone thus meeting the third element. In addition, as to the trustworthiness element necessary to pass the confrontation clause, the court cites Shakespeare: “‘The purest treasure mortal times afford, Is spotless reputations, that way, Men are but guilded loam or painted clay.’” (Richard II, act I, scene I.) The human hesitancy to blemish one’s “‘treasure that mortal times afford’” creates the circumstantial guarantee of trustworthiness. The court awarded appellant presentence conduct credits since his two other convictions were for offenses other than murder. This court holds that Penal Code section 2933.2 applies to the offender not to the offense and so limits the murderer’s conduct credits as to all counts.