What is the test for excluded statements in a criminal case relating to kidnapping, kidnapping special circumstance and felony murder?

"As a general matter, the claimant of the confidential marital communication privilege has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the claim. [Citation.] He is aided by a presumption that a marital communication was made in confidence. [Citation.] The opponent has the burden to prove otherwise [citation] by a preponderance of the evidence [citation]." (People v. Mickey (1991) 54 Cal.3d 612, 655.) "[A] ruling on a motion . . . [to exclude evidence under Evidence Code section 980], which concerns the admissibility of evidence, is subject to review for abuse of discretion. [Citation.] The underlying determinations, of course, are scrutinized in accordance with their character as purely legal, purely factual, or mixed." (Id. at p. 654.)

The relevance of the excluded statements related to the kidnapping charge, kidnapping special circumstance, and felony murder theory of murder, which was predicated on kidnapping. In order to establish a kidnapping under section 207, subdivision (a), the prosecution must prove " '(1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was for a substantial distance.' [Citation.]" (People v. Bell (2009) 179 Cal.App.4th 428, 435.) " '[W]here the victim has at first willingly accompanied the accused, the latter may nevertheless be guilty of kidnaping if he subsequently restrains his victim's liberty by force and compels the victim to accompany him further.' " (People v. Camden (1976) 16 Cal.3d 808, 814.)

3. Discussion