Nollins v. Superior Court (People), B052186

CourtCalifornia Court of Appeals
Writing for the CourtTURNER; LUCAS, P.J., and BOREN
Citation274 Cal.Rptr. 487,231 Cal.App.3d 1221
PartiesPreviously published at 231 Cal.App.3d 1221 231 Cal.App.3d 1221 Gary Lynn NOLLINS, Petitioner, v. The 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. Civ.
Docket NumberNo. B052186,B052186
Decision Date29 October 1990

Wilbur F. Littlefield, Los Angeles County Public Defender, Laurence M. Sarnoff, Jorge Guzman, Tracey E. Mooney, Albert J. Menaster, Deputy Public Defenders, for petitioner.

Ira Reiner, Los Angeles County Dist. Atty., Harry B. Sondheim, George G. Size, Deputy Dist. Attys., for real party in interest.


TURNER, Associate Justice.


Petitioner Gary Lynn Nollins (defendant) was charged in an information with assault with a deadly weapon (Pen.Code, § 245, subd. (a)) which also alleged that the victim suffered great bodily injury. (Pen.Code, § 12022.7.) Defendant challenges the correctness of the respondent court's order denying his motion to dismiss pursuant to Penal Code section 995. The motion to dismiss in part raised the issue of whether the use of hearsay testimony at a preliminary hearing as permitted by Proposition 115 (the initiative), an initiative adopted by the voters on June 5, 1990, violated his federal constitutional right to confrontation of adverse witnesses. 1 Because the magistrate correctly overruled defendant's objections at the preliminary hearing and the superior court judge properly denied the dismissal motion, the petition is summarily denied.


Detective Yvonne Parker of the Los Angeles Police Department, the sole witness to testify at the preliminary examination, stated that she had seven years' experience in law enforcement. At the preliminary examination, she had before her an investigation report prepared by an Officer Taylor which was marked at the commencement of the preliminary examination as People's exhibit one. Detective Parker had not spoken to Officer Taylor about the report. According to the written investigation report, on June 11, 1990, at approximately 11:00 p.m. Officer Taylor and his partner, Officer Wylan, "were monitoring their police radio when a deadly weapon call had just come out in front of 5143 West Washington Boulevard." The radio call gave a description of a "male [B]lack, approximately 5-11, thin build, wearing a black jacket." The two officers approached defendant and ordered him "into a felony prone position." A knife fell from his belt. On defendant's right hand and on the knife "[t]here was fresh red blood." The two officers spoke to a Mr. Eden who stated that he saw "the defendant produce a four-inch buck knife and to stab the victim once in the stomach area." Two other witnesses named Mr. Sweat and Mr. McClay also told the officers that they saw defendant stab the victim Dora Marks, in the stomach. Detective Parker had not spoken to Mr. Eden, Mr. Sweat, or Mr. McClay; rather, she testified based upon the contents of the investigation report. Detective Parker did speak directly to a Dr. Fenilla who stated that the victim "had received internal injuries to her liver, bowel ducts, and to her intestines." Defendant was booked under the name Gary Nollins. A photograph taken of him while he was booked was received in evidence as People's exhibit two. It was stipulated between the parties that the booking number on the photograph was the same number appearing on the investigation report relied upon by Detective Parker while testifying.

The following facts were elicited in response to the 82 questions asked and answered during the cross-examination of Detective Parker. The detective admitted that she did not know where Mr. Eden was when he saw defendant stab Ms. Marks. The report did indicate that Mr. Sweat and Mr. McClay had been in a nearby doughnut shop and had exited the shop when the stabbing occurred in front of a motel. Prior to the stabbing, defendant and the victim had been arguing according to Mr. Sweat and Mr. McClay. Detective Parker conceded that the police report failed to specifically state that Mr. Sweat and Mr. McClay exited the shop. Detective Parker testified based on her own personal knowledge of the area that a person sitting in the doughnut shop could not see the motel where the stabbing occurred. Defendant was arrested one block from the scene of the stabbing. Detective Parker testified based on her own personal recollection as to the lighting in the area where the incident occurred.

After defendant's arrest by Officer Wylan and Officer Taylor, the report indicated that "a field identification [was] conducted." Mr. Eden, Mr. McClay, and Mr. Sweat "made the identification." Detective Parker testified that she did not know anything about the circumstances surrounding the identification process. The report indicated that defendant and Ms. Marks, the victim, were "ex-boyfriend and girlfriend." At the conclusion of the period of cross-examination, the deputy district attorney withdrew People's exhibit one, the investigation report. However, People's exhibit two, a booking photograph of defendant, was received in evidence.

At the conclusion of the presentation of evidence, defense counsel moved to strike all of Detective Parker's testimony because "it's a complete denial of Mr. Nollins' right to confront and cross-examine the witnesses against him...." The magistrate denied the motion finding that section 24 of the California Constitution granted a defendant the same right to cross-examine and confront adverse witnesses as was present under the United States Constitution; there was no federal constitutional right to a preliminary hearing; the United States Constitution did not require "that probable cause be established through and by the testimony of witnesses"; and there was no denial of defendant's federally guaranteed constitutional rights to cross-examine and confront adverse witnesses. Defense counsel made no effort to call any witnesses nor was a continuance sought to locate any witnesses.



A. 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." In answering this question, we will first review the provisions of the initiative. Then, we will discuss the manner in which preliminary hearings have been changed by the initiative. 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.

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 effects 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 guest 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 Amendments

The most sweeping change effected by the initiative was the elimination of the California Constitution as an independent basis for construing the fundamental rights of criminal defendants, including the right of confrontation. Pursuant to section 3 of the initiative, article I, section 24 of the California Constitution was amended in relevant part to read: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution. [p] In criminal cases the...

To continue reading

Request your trial
3 cases
  • People v. Armstrong
    • United States
    • California Court of Appeals Court of Appeals
    • July 15, 1991
    ...(b) to article I of the California Constitution. We note this issue is pending in our Supreme Court. (See Nollins v. Superior Court (1990) 224 Cal.App.3d 1171, 274 Cal.Rptr. 487, review granted Dec. 13, 1990, S018273.)15 In Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 930, 85 Cal.Rptr.......
  • Nollins v. Superior Court (People), S018273
    • United States
    • California Supreme Court
    • January 30, 1992
    ...Respondent. PEOPLE, Real Party in Interest. No. S018273. Supreme Court of California, In Bank. Jan. 30, 1992. Prior report: Cal.App., 274 Cal.Rptr. 487. The above-entitled matter is transferred to the Court of Appeal, Second Appellate District, Division Five, with directions to vacate the p......
  • Nollins v. Superior Court (People)
    • United States
    • California Supreme Court
    • December 13, 1990
    ...Respondent; PEOPLE, Real Party in Interest. No. S018273. Supreme Court of California, In Bank. Dec. 13, 1990. Prior report: Cal.App., 274 Cal.Rptr. 487. Petition for review Submission of additional briefing, otherwise required by Rule 29.3, California Rules of Court, is deferred pending fur......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT