Whitman v. Superior Court

• Decision Date: 09 December 1991
• Docket Number: No. SO18847,SO18847
• Citation: 820 P.2d 262,54 Cal.3d 1063,2 Cal.Rptr.2d 160
• Court: California Supreme Court
• Parties: , 820 P.2d 262, 60 USLW 2451 Thomas Paul WHITMAN, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent. The PEOPLE, Real Party in Interest.

Page 160

2 Cal.Rptr.2d 160

54 Cal.3d 1063, 820 P.2d 262, 60 USLW 2451

Thomas Paul WHITMAN, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent The PEOPLE, Real Party in Interest.

No. SO18847.

Supreme Court of California In Bank.

Dec. 9, 1991.

Stuart Rappaport, Public Defender, Susan R. Bernardino and Barbara B. Fargo, Deputy Public Defenders, San Jose, for petitioner.

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff and Albert J. Menaster, Deputy Public Defenders, Gary M. Mandinach, Los Angeles and Madeline McDowell, Sacramento as amici curiae on behalf of petitioner.

No appearance for respondent.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Sacramento, John H. Sugiyama, Asst. Atty. Gen., Clifford K. Thompson, Jr., Laurence K. Sullivan and Joan Killeen Haller, Deputy Attys. Gen., San Francisco, for real party in interest.

Dennis Kottmeier, Dist. Atty., Joseph A. Burns, Deputy Dist. Atty., San Bernardino, Kent S. Scheidegger and Charles L. Hobson, Sacramento as amici curiae on behalf of real party in interest.

LUCAS, Chief Justice.

In this case, we resolve some issues presented by the adoption in June 1990 of an initiative measure designated on the ballot as Proposition 115 and entitled the "Crime Victims Justice Reform Act." Petitioner herein raises various challenges under the federal and state Constitutions to the provisions of the measure that authorize the admission of hearsay evidence at preliminary hearings in criminal cases. (See also Izazaga v. Superior Court (1991) 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304 [challenge to reciprocal discovery provisions of Prop. 115]; Tapia v. Superior Court (1991) 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434 [challenge to retroactive application of Prop. 115]; Raven v. Deukmejian (1990) 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077 [single-subject and revision challenges to Prop. 115].) He also contests the sufficiency and competency of the evidence presented at his preliminary hearing.

As will appear, we conclude that, properly construed and applied, the hearsay provisions of Proposition 115 are constitutionally valid. We also conclude, however, that the evidence admitted at petitioner's preliminary hearing, consisting entirely of hearsay testimony by a noninvestigating officer lacking any personal knowledge of the case, was insufficient and incompetent to constitute probable cause to bind petitioner over for trial, and that his motion to dismiss the charges should have been granted.

FACTS

Petitioner was charged with one felony count of driving under the influence of alcohol and/or drugs with three or more prior similar convictions (Veh.Code, §§ 23152, subd. (a), 23175), one felony count of driving with a blood-alcohol level of 0.08 percent or more (id., §§ 23152, subd. (b), 23175), as well as misdemeanor counts of driving with a suspended or revoked license (id., § 14601.2, subd. (a)), and being under the influence of methamphetamine (Health & Saf.Code, § 11550). These offenses were alleged to have occurred on August 8, 1990. A preliminary hearing was held on September 19, 1990, leading to the filing of an information containing these charges.

At the hearing, the People called only a single witness, Officer Bruce Alexander, who was not one of the arresting or investigating officers and who had no direct, personal knowledge of petitioner's alleged offenses. Over petitioner's continuing objection to the use of hearsay evidence, Alexander attested to his eight years of employment as a police officer, and thereupon recounted to the magistrate various entries made in the report of the investigating officer, Officer Navin. Alexander confirmed that he had never discussed Navin's report with that officer, was not personally acquainted with Navin, and first became aware of Navin's report, and of the case against petitioner, on the morning of the preliminary hearing after the district attorney handed him a copy of Navin's report.

In response to the prosecutor's questioning, Alexander indicated that, according to Navin's report, on August 8, while in a marked patrol car, Navin saw a 1969 Chevrolet traveling eastbound on Cherry Avenue. Navin heard someone shout and saw the driver of the Chevrolet lean out the window to raise his right fist. Navin watched as a white Ford quickly passed the Chevrolet. Navin paced the Chevrolet, which was traveling 50 miles per hour in a 40 miles per hour zone. Navin thereupon made a traffic stop.

Alexander further testified that, according to Navin's report, the driver of the car identified himself as Thomas Paul Whitman. Among other things, Navin noticed the strong odor of alcohol, bloodshot eyes, and dilated pupils. The driver's mood changed from passive to belligerent, leading Navin to believe that the driver might be under the influence of drugs. Alexander continued his "testimony," relating, according to Navin, that the driver successfully completed the finger-dexterity test and balanced on one foot, but swayed when asked to walk a straight line. Believing the driver was under the influence, Navin transported him to the station where a blood test was administered. Counsel stipulated that a blood test revealed a blood-alcohol level of 0.08 percent and was positive for the presence of methamphetamine.

Thereupon, Alexander was permitted to state his opinion, based solely on the information revealed in Navin's report, that petitioner had been under the influence of alcohol and "perhaps some type of stimulant."

Defense counsel moved to strike all of Alexander's direct testimony for lack of proper foundation regarding Navin's qualifications as a police officer. The magistrate denied the motion, after permitting Alexander to opine that because Navin's badge number was considerably lower than his, Navin probably had 12 years' experience as a police officer.

On cross-examination, Alexander admitted he did not know the time or circumstances of the preparation of Navin's report, or the various tests conducted to determine petitioner's sobriety. Additionally, Alexander was unable to explain certain discrepancies and omissions in the report. Counsel elicited the fact that although Navin's report indicated petitioner's eyes were brown, in fact they are green.

Despite petitioner's objections and his argument that Alexander could not personally identify him as the suspect stopped by Navin, the magistrate held petitioner to answer on the counts charged. The magistrate noted that the description of petitioner contained in Navin's report closely matched the description in the records of the Department of Motor Vehicles, which was also placed in evidence.

Thereafter, petitioner moved the superior court to dismiss the information (Pen.Code, § 995), on the ground that the evidence elicited at the preliminary hearing was incompetent and insufficient to establish probable cause. The motion was denied, and the Court of Appeal summarily denied petitioner's application for mandate. We issued an alternative writ of mandate to consider the important constitutional and interpretive questions presented.

Petitioner raises a variety of arguments regarding the admissibility, and constitutional propriety, of Officer Alexander's hearsay testimony. Before we consider these contentions, we first review the new constitutional and statutory hearsay provisions added by Proposition 115.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Proposition 115 added both constitutional and statutory language pertinent to our present inquiry. Section 30, subdivision (b), is added to article I of the state Constitution, declaring hearsay evidence admissible at preliminary hearings in criminal cases, as may be provided by law. ("In order to protect victims and witnesses in criminal cases, hearsay evidence shall be admissible at preliminary hearings, as prescribed by the Legislature or by the people through the initiative process.")

In addition, the measure amends section 872, subdivision (b), of the Penal Code to provide that a probable cause determination at a preliminary hearing may be based on hearsay statements related by a police officer with certain qualifications and experience. ("Notwithstanding Section 1200 of the Evidence Code [ (the hearsay rule) ], the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted. Any law enforcement officer testifying as to hearsay statements shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training which includes training in the investigation and reporting of cases and testifying at preliminary hearings.")

Additionally, section 1203.1 is added to the Evidence Code to provide a preliminary hearing exception to the general requirement that all hearsay declarants be made available for cross-examination. ("Section 1203 is not applicable if the hearsay statement is offered at a preliminary examination, as provided in Section 872 of the Penal Code.")

Further, Penal Code section 866, subdivision (a), is amended to give the magistrate discretion to limit the defendant's right to call witnesses on the defendant's behalf. ("The magistrate shall not permit the testimony of any defense witness unless the offer of proof discloses to the satisfaction of the magistrate, in his or her discretion, that the testimony of that witness, if believed, would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness.")

Finally, Penal Code section 866, subdivision (b), explains that "It is the purpose of a preliminary examination to establish whether there exists...