Montez v. Superior Court (People)

• Citation: 285 Cal.Rptr. 279,233 Cal.App.3d 917
• Decision Date: 27 August 1991
• Docket Number: No. B052892,B052892
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 233 Cal.App.3d 917 233 Cal.App.3d 917 Alfredo MONTEZ, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent. The PEOPLE of the State of California, Real Party in Interest.

Page 279

285 Cal.Rptr. 279

Previously published at 233 Cal.App.3d 917

233 Cal.App.3d 917

Alfredo MONTEZ, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent The PEOPLE of the State of California, Real Party in Interest.

No. B052892.

Court of Appeal, Second District, Division 5, California.

Aug. 27, 1991.

As Modified Sept. 3, 1991.

Review Granted Oct. 17, 1991.

Review Transferred to Court of

Appeal Jan. 30, 1992.

Gary M. Mandinach for petitioner.

No appearance for respondent.

Office of the District Attorney, Robert W. Carney, Deputy Dist. Atty., for real party in interest.

TURNER, Associate Justice.

I. INTRODUCTION

Petitioner Alfredo Montez (defendant) seeks a writ of prohibition directing the respondent court to set aside an order denying a motion to dismiss pursuant to Penal Code section 995. ¹ The motion raised several issues concerning the application of Proposition 115 which was adopted by the voters on June 5, 1990, and which went into effect on June 6, 1990. ² Because the respondent court correctly denied the dismissal motion, the petition is summarily denied.

II. PROCEDURAL AND FACTUAL MATTERS

Defendant is charged in an information with residential burglary in violation of sections 459 and 462, subdivision (a). The sole witness who testified at the preliminary examination was Detective Eugene Akesson of the Los Angeles Police Department. Detective Akesson was a burglary investigator and had been a police officer for 22 years. When he testified, Detective Akesson read from an arrest report prepared by an Officer Reems, who had been a police officer for two years, with the assistance of an Officer Granillo. The arrest report, which was marked People's exhibit one, contained the circumstances concerning defendant's arrest along with that of the codefendant Ernesto Rosales on June 17, 1990, shortly after the commission of a burglary on that date.

The report indicated that an eyewitness, Martha Turchious, saw defendant and the codefendant Rosales knocking on doors of an apartment building where she resided at 1634 6/8 Arapho Street in Los Angeles. Defendant and his accomplice attempted to open doors to the apartments. When either defendant or the codefendant Rosales knocked on her door, one of them asked "for a fictitious person." Ms. Turchious refused to open the front door and saw that the front door of a neighbor, Erma Dubon, was closed. Approximately two to five minutes after defendant and the codefendant Rosales left her front door, she saw that the door to the apartment belonging to Ms. Dubon was open. Ms. Turchious then telephoned the police and gave a description of the two burglars. A police helicopter arrived near Ms. Dubon's apartment and defendant and the codefendant were observed "immediately outside of the apartment." Defendant was observed by the occupants of the police helicopter to be holding a radio while the codefendant was holding a bag which later was discovered to contain a VCR. The officers in the police helicopter saw defendant and the codefendant drop "the property" in the rear of the apartment complex.

The occupant of the apartment that was broken into, Ms. Dubon, telephoned Officer Reems two hours after defendant's arrest. She told Officer Reems that she had locked the door to her apartment when she left for work on the morning of the incident. When she returned later in the day on June 17, 1990, a Sanyo radio and a Fischer VCR were gone. The two items dropped by the defendant and the codefendant outside the apartment complex, which were observed by the officers in the helicopter, were a Sanyo radio and a Fischer VCR. Officer Reems and Officer Granillo looked at Ms. Dubon's door and saw "pry marks." Ms. Turchious was asked by police officers to identify defendant and the codefendant. She stated that they were the persons who had broken into the apartment.

When cross-examined, Detective Akesson stated that he had never interviewed the victim, Ms. Dubon, or the eyewitness, Ms. Turchious, nor had he "gone" to the scene of the incident. His testimony on direct examination was based entirely upon the arrest report and his interviews with defendant and the codefendant. Also, he testified that the officers in the helicopter were "never asked to make an identification of any suspects in custody" and no fingerprints were discovered in Ms. Dubon's apartment. Also, Detective Akesson had not "checked" to determine if Ms. Dubon had "any type of felony convictions." Also, the report did not indicate the circumstances under which Ms. Turchious identified defendant and the codefendant.

The magistrate conducted a brief examination of Detective Akesson. The magistrate inquired as to precisely what Ms. Turchious told Officer Reems who prepared the report and the detective responded as follows: "She reported that after--she reported that after the defendants left her door, she was preoccupied for approximately two minutes with her own duties, went out to the front door of her apartment and observed the front door of her neighbor's apartment Ms. Dubon, to be open. The door was open. Whereas prior to the visit of these two defendants, the door had been closed." Additionally, when subjected to examination by the magistrate, Detective Akesson stated that Officer Reems had two years experience as a police officer.

After a brief redirect examination, defendant's attorney conducted further cross-examination. Detective Akesson admitted that he did not know where Ms. Turchious was at the time of the preliminary examination. The report did not indicate "whether an admonishment was given prior to the identification" by Ms. Turchious. The report likewise did not state the circumstances under which Ms. Turchious made the identification. The report related that she said in reference to defendant and the codefendant: "Those were the same ones that knocked on my door and I seen the front of that house." No fingerprints were taken in an effort to verify whether defendant and the codefendant touched the radio and the VCR.

The magistrate held defendant to answer in superior court on a single charge of residential first degree burglary. (§§ 459, 460.) A timely motion to dismiss pursuant to section 995 was filed raising the issues appearing in the Discussion portion of this opinion. The motion was denied. The present petition for writ of prohibition was then filed and we issued a stay order so as to allow us to reach the merits of the petition. ³

III. DISCUSSION

A. THE PROSECUTION'S RELIANCE ON HEARSAY EVIDENCE AT DEFENDANT'S PRELIMINARY HEARING AS AUTHORIZED BY CERTAIN PROVISIONS OF THE INITIATIVE DID NOT VIOLATE HIS RIGHTS TO CROSS-EXAMINE AND CONFRONT ADVERSE WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION OR ANY PROVISION OF THE STATE CONSTITUTION.

1. An Overview

The issue presented for resolution is whether the use of hearsay evidence at defendant's preliminary hearing as authorized by the initiative violated his rights under the Sixth Amendment of the United States Constitution to "confron[t] the witnesses against him" or by related provisions of the California Constitution. In answering this question, we will first review the relevant provisions of the initiative which have changed the manner in which preliminary hearings are to be conducted. Thereupon, we will review the decisions of the United States Supreme Court as they interpreted the right of confrontation as well as other provisions of the United States Constitution which relate to the right to use hearsay evidence at preliminary examinations. Finally, we will determine whether California Supreme Court opinions construing a defendant's right to cross-examine witnesses preclude us from upholding the use of hearsay testimony at preliminary examinations in the present case both in the context of the federal and state Constitutions.

B. THE INITIATIVE

The Crime Victims Justice Reform Act, otherwise known as Proposition 115, was adopted by the California voters on June 5, 1990. The initiative effected significant changes in California criminal law and procedure. In terms of the issues raised by the parties, there are three relevant changes in California law resulting from the initiative's adoption: the initiative's stated purposes, constitutional amendments, and statutory modifications. We will set forth each of these three changes.

1. The Initiative's Purposes

The findings and the purposes of the initiative are set forth in section 1 as follows: "(a) We the people of the State of California hereby find that the rights of crime victims are too often ignored by our courts and by our State Legislature, that the death penalty is a deterrent to murder, and that comprehensive reforms are needed in order to restore balance and fairness to our criminal justice system. [p] (b) In order to address these concerns and to accomplish these goals, we the people further find that it is necessary to reform the law as developed in numerous California Supreme Court decisions and as set forth in the statutes of this state. These decisions and statutes have unnecessarily expanded the rights of accused criminals far beyond that which is required by the United States Constitution, thereby unnecessarily adding to the costs of criminal cases, and diverting the judicial process from its function as a quest for truth. [p] (c) The goals of the people in enacting this measure are to restore balance to our criminal justice system, to create a system in which justice is swift and fair, and to create a system in which violent criminals receive just punishment, in which crime victims and witnesses are treated with care and respect, and in which society as a whole can be free from the fear of crime in our homes, neighborhoods, and schools. [p] (d) With these goals in mind, we the people do hereby enact the Crime Victims Justice Reform Act." (Emphasis added.)

2. State Constitutional Amendment

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