People v. Liddicoat

California Court of Appeal Jun 17, 1981 No. Crim. 21326Published

Before: Miller

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Holding. The court held that a trial court may properly defer to a magistrate's prior ruling on a witness's competency at a preliminary examination if that ruling is supported by substantial evidence.

Issues

Whether a trial court must independently reweigh evidence of a witness's competency at a preliminary examination when admitting that witness's former testimony under Evidence Code section 1291.
Whether a magistrate's ruling on witness competency is entitled to deference by the trial court when supported by substantial evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We conclude that the trial court’s deference to the magistrate’s ruling was proper.”

“The trial court properly considered, initially, only whether the magistrate’s procedurally appropriate ruling on the factual issue of Emily’s qualification was supported by substantial evidence.”

Opinion

MILLER, J.

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.)

[514]

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

People v. Liddicoat

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MILLER, J.

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