People v. Green

• Decision Date: 21 March 1969
• Docket Number: Cr. 12753
• Citation: 75 Cal.Rptr. 782,70 Cal.2d 654,451 P.2d 422
• Court: California Supreme Court
• Parties: , 451 P.2d 422 The PEOPLE, Plaintiff and Respondent, v. John Anthony GREEN, Defendant and Appellant.

Page 782

75 Cal.Rptr. 782

70 Cal.2d 654, 451 P.2d 422

The PEOPLE, Plaintiff and Respondent, v. John Anthony GREEN, Defendant and Appellant.

Cr. 12753.

Supreme Court of California In Bank.

March 21, 1969.

Cooney & Cooney and Terrence W. Cooney, Sherman Oaks, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and David B. Stanton, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant John Anthony Green was convicted of violating Health and Safety Code section 11532 (furnishing a narcotic to a minor) upon evidence consisting chiefly of the testimony and prior inconsistent statements of the minor to whom defendant allegedly furnished narcotics. Defendant challenges the constitutionality of Evidence Code section 1235, which provides for admission of prior inconsistent statements of a witness to prove the truth of the matters asserted therein, as applied to testimony elicited at a preliminary hearing. On the basis of recent decisions of this court and the United States Supreme Court, we conclude that section 1235 as so applied is unconstitutional and therefore the conviction must be reversed.

After a preliminary hearing, defendant was charged with furnishing marijuana to one Melvin Porter, a minor. He was tried and convicted by a court sitting without a jury. The chief witness for the prosecution was young Porter, who was markedly evasive and uncooperative on the stand. He testified that defendant had telephoned him in January 1967 and asked him to sell some unidentified 'stuff.' He admitted he had obtained 29 Plastic 'baggies' of marijuana, some of which he sold and the rest of which was purportedly stolen from him. He testified that he was uncertain how he obtained the marijuana, primarily because he was on 'acid' (LSD) at the time and could not then distinguish fact from fantasy. At various points Porter was impeached by the prosecution by the use of his testimony at the preliminary hearing, in which he had stated that defendant had specifically asked him to sell marijuana and that he obtained the marijuana from the yard of defendant's parents' home, at the behest and direction of defendant. This preliminary hearing testimony was admitted as a prior inconsistent statement under section 1235 of the Evidence Code. ¹

Following the deputy district attorney's reading of the preliminary transcript, Porter testified that his testimony at that hearing was the truth as he then believed it, and that his memory was now refreshed and he 'guessed' he had obtained the marijuana from defendant's parents' yard and had given the money from its sale to defendant. However, on cross-examination Porter conceded that in fact it was his memory not of the events themselves but of the preliminary testimony which was refreshed, and he was still unsure and had no present recollection of the actual episode.

Later in the trial still another version of Porter's story was offered and admitted. Officer Wade testified that Porter had told him during a conversation at Juvenile Division headquarters that defendant came to Porter's house and personally delivered the marijuana to him. This statement was also admitted under Evidence Code section 1235 as a prior inconsistent statement. Like the preliminary hearing testimony, it was admitted for the purpose of proving the truth of the matter stated therein, as then sanctioned by the code.

Only one other item of evidence appeared to link defendant with Porter: the testimony of Officer Dominguez, an undercover officer, that he attempted to buy narcotics from Porter, who told him he would have a supplier named 'John' contact him. In fact, defendant contacted Dominguez and purported to be a narcotics supplier; but when defendant insisted that Dominguez take narcotics with him to show good faith, the sale fell through. Defendant admitted the incident but explained that Porter asked him and he agreed to help expose a suspected undercover officer by a bogus sale. Defendant denied ever being in possession of narcotics. No charges were ever filed in connection with this purported transaction, and the trial court carefully limited its admission to the narrow purpose of showing that 'Porter and the defendant had previous associations and were acquainted.'

Defendant contends that the admission of the prior inconsistent statements of Porter as evidence of the truth of the matters stated therein--as opposed to admission for impeachment only--was unconstitutional and contrary to our recent holding in People v. Johnson (1968) 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111, cert. denied 1969, 393 U.S. 1051, 89 S.Ct. 679, 21 L.Ed.2d 693, and that its admission constituted prejudicial error under the standards of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. The People concede that the testimony of Officer Wade was inadmissible under Johnson, but assert that this error was not prejudicial. ² As for the preliminary hearing testimony, the People urge that Johnson does not or should not preclude its evidentiary use since defendant had an opportunity to cross-examine the declarant Porter at the time the statement was made. This rationalization is not persuasive.

In Johnson we held that Evidence Code section 1235, insofar as it provides for admission of prior inconsistent statements as evidence of the truth of the matters stated therein, is unconstitutional when applied to testimony before a grand jury without the presence of the defendant, his counsel, or the ultimate trier of fact. As a consequence Johnson returned California law in this area to the general common law rule which prevailed prior to passage of the Evidence Code, limiting admission of prior inconsistent statements in criminal cases to impeachment purposes. Our decision was impelled by recent cases articulating the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution. (E.g., Pointer v. Texas (1965) 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.)

The complaining witnesses in Johnson had testified before the grand jury to acts of incest by the defendant. However, at trial these witnesses changed their stories and denied the truth of their prior testimony, claiming they had fabricated the incest charge out of spite. The grand jury testimony was admitted under Evidence Code section 1235, and on the basis of that evidence the defendant was convicted. We reversed, declaring that such evidentiary use of the grand jury testimony was in violation of the confrontation clause of the Constitution. In response to the People's contention that the witnesses could be cross-examined at trial, we stated: 'To assert that the dangers of hearsay are 'largely nonexistent' when the declarant can be cross-examined at some later date, or to urge that such a cross-examination puts the later trier of fact in 'as good a position' to judge the truth of the out-of-court statement as it is to judge contemporary trial testimony, is to disregard the critical importance of Timely cross-examination.' (Italics in original.) (People v. Johnson (1968) supra, 68 Cal.2d 646, 655, 68 Cal.Rptr. 599, 605, 441 P.2d 111, 117.) Belated cross-examination before the trial court, such as was available to defendant in the instant case, is not an adequate substitute for the right to cross-examination contemporaneous with the original testimony before a different tribunal.

We recognize that the case before us differs from Johnson in a significant respect. Here, unlike Johnson, defendant had an opportunity to cross-examine the witness an the time the prior inconsistent statements were made, i.e., at the preliminary hearing. This, assert the People, is a constitutionally adequate fulfillment of the right of confrontation. However, their contention overlooks the thrust of our opinion in Johnson and the realities of the preliminary hearing system, and directly conflicts with the recent stance of the United States Supreme Court.

Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, cited and relied upon in Johnson, involved the 'unavailable witness' exception to the hearsay rule. A key witness who had testified at a preliminary hearing was confined in prison elsewhere at the time of trial. The prosecution made little or no effort to compel his presence at the trial, and instead was allowed to read into evidence the transcript of his preliminary testimony. The defendant had not cross-examined the witness at the preliminary hearing, although a codefendant had done so. There was a close question whether the defendant had waived his right to cross-examine at the preliminary hearing, but the court found no waiver and in effect found no opportunity for cross-examination. Concluding that the prosecution had not made a sufficient effort to have the witness present, the court ruled that no unavailability--and hence no 'necessity'--was demonstrated to justify the 'prior testimony' hearsay exception and to overcome the defendant's right of confrontation.

However, the opinion in Barber v. Page did not stop at that point. Since the question of cross-examination and waiver was close, the court went on to make its position unequivocally clear regarding the value of cross-examination at a preliminary hearing in lieu of cross-examination at trial. In language we substantially quoted in Johnson (68 Cal.2d at p. 659 fn. 9, 68 Cal.Rptr. at p. 608, 441 P.2d at p. 120), the high court stated: 'Moreover, we would reach the same result * * * had petitioner's counsel actually cross-examined (the witness) as the preliminary hearing. * * * The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weight the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than...