People v. Liddicoat

• Decision Date: 17 June 1981
• Docket Number: Cr. 21326
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Roy LIDDICOAT, Defendant and Appellant.

Page 649

174 Cal.Rptr. 649

120 Cal.App.3d 512

The PEOPLE, Plaintiff and Respondent, v. James Roy LIDDICOAT, Defendant and Appellant.

Cr. 21326.

Court of Appeal, First District, Division 2, California.

June 17, 1981.

John W. Ewing & Associates, Inc., Sacramento, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Morris Lenk, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MILLER, Associate Justice.

James Roy Liddicoat appeals from an order committing him to the Department of Mental Health as a mentally disordered sex offender. (Pen.Code, § 1237, subd. 1.)

Appellant had been accused of several felony sex crimes committed on two young girls. At trial the court ruled that one of the victims, Emily, age four, was disqualified to be a witness because she was at that time incapable of understanding the duty of a witness to tell the truth. (Evid.Code, § 701, subd. (b).) The People then offered in evidence, under Evidence Code section 1291, a transcript of Emily's testimony at the earlier preliminary examination of the charges. Appellant objected on the ground that Emily had been similarly disqualified at the time of the preliminary examination. At the preliminary examination the magistrate had ruled that Emily was qualified to testify. Appellant argued that the trial court should reweigh the evidence relevant to qualification in the preliminary examination transcript and should make its own independent determination of the issue. The trial court disagreed, finding that the magistrate's ruling had been supported by "sufficient evidence" and was buttressed by the presumption that official duty has been regularly performed (Evid.Code, § 664) and concluding that the issue had been determined by the magistrate's ruling. The transcript was read to the jury, which subsequently convicted appellant as charged.

In this court appellant contends that the trial court erred to his prejudice by accepting the magistrate's ruling as dispositive. We conclude that there was no error. Accordingly we affirm.

If Emily was "unavailable as a witness" at trial her testimony at the preliminary examination in this action would come within the former-testimony exception to the hearsay rule. (Evid.Code, § 1291, subd. (a)(2).) We are satisfied that the trial court's ruling that Emily was disqualified at the time of trial rendered her unavailable as a witness (cf. Evid. Code, § 240, subd. (a)(2)); appellant does not contend otherwise.

Nevertheless Emily's former testimony remained subject at trial to the same limitations and objections as though she were testifying there (Evid.Code, § 1291, subd. (b) ), including an objection that at the time she gave the testimony she was not qualified to be a witness (cf. Evid.Code, § 1291, subd. (b)(2); Tent. Recommendation and Study Relating to the Uniform Rules of Evidence, art. VIII, Hearsay Evidence (Aug. 1962) 6 Cal. Law Revision Com. Rep. (1964) Appendix, pp. 581-585; Witkin, Cal. Evidence (2d ed. 1966) The Hearsay Rule, § 603, p. 573; 2 Wigmore, Evidence (3d ed. 1940) § 483, p. 521).

Appellant interposed the qualification objection; it invoked the trial court's duty to determine as a preliminary fact (Evid.Code, § 405) whether at the preliminary examination Emily had been competent as a witness. (Cf. e. g., People v. Farley (1979) 90 Cal.App.3d 851, 868-869, 153 Cal.Rptr. 695; People v. Blagg (1970) 10 Cal.App.3d 1035, 1039, 89 Cal.Rptr. 446.) The court's ruling that Emily was not qualified at the time of trial did not resolve the factual question whether she was qualified at the preliminary examination two months earlier. (Cf., e. g., People v. Crandall (1941) 43 Cal.App.2d 238, 241-243, 110 P.2d 682.) The burden was on appellant to prove, by a preponderance of the evidence, that Emily had not been qualified. (People v. Farley, supra, 90 Cal.App.3d 851, 869, 153 Cal.Rptr. 695.) Aside Emily's testimony at the time of trial (taken for the purpose of assessing her qualification at that time), the only evidence before the trial court relevant to her qualification at the time of preliminary examination was the preliminary examination transcript itself.

From the trial court's remarks in the record it appears that the court would have disqualified Emily on the basis of the preliminary examination transcript had the court deemed itself free to do so. But the transcript also reflected the magistrate's ruling to the contrary; having determined that the magistrate's ruling was supported by "sufficient evidence" the trial court acquiesced in that ruling.

Appellant argues that the trial court in the proper performance of its duty under Evidence Code section 405 should have ruled in accordance with its own perception of the...