Martinez v. Superior Court

[756]

FILES, J.

The issue here is whether the testimony of a police officer concerning accusations made in the presence of the defendant and defendant’s conduct in relation thereto constituted proof connecting defendant with the offense charged sufficient to support the magistrate’s- order holding him to answer.

Petitioner seeks a writ of prohibition under Penal Code, section 999a, to restrain respondent superior court from proceeding to trial on an information filed after a preliminary hearing in which petitioner and defendant Joseph Daniel Sanchez, not a party to this proceeding, were charged with burglary, in violation of Penal Code, section 459.

The record contains ample evidence that on the evening of August 8, 1963, two Santa Barbara residences were burglarized. Officer Thompson of the Santa Barbara Police Department, detective bureau, testified at the preliminary hearing that he investigated the burglaries. He said that on the morning of August 10 he had a conversation with defendant Sanchez, who was then in custody for the two burglaries ; that Sanchez listened to a tape recording in which his sister said that Sanchez, petitioner Martinez, and another man were the burglars; and that thereafter Sanchez freely and voluntarily told the witness that “the three of them had pulled the burglary, that he and Martinez and Lopez had pulled the burglary.” On behalf of Martinez an objection to this testimony as hearsay was made and sustained.

Officer Thompson then testified that on the next day he had a conversation with Martinez, which he related as follows: “Well, I told him that he was in on the two burglaries, and that Lopez and Sanchez had told the truth on the burglaries and that I wanted to hear his story. And he said he didn’t know anything about it, so I took him out of the room and we listened to the same part on the tape recorder of Mrs. Garcia’s statements naming him, Sanchez, and she didn’t know the other boy’s name, as having brought the articles to her house. We then went back into the interview room, and he refused to say anything. I brought Robert Lopez into the room, and Robert Lopez said that the three of them had pulled the burglary, that it was all three of their ideas, that he and Martinez and Sanchez all three pried the window at the house on San Clemente, that they had removed the tables, all three of them had removed the property from the house, that when they brought the property to Sanchez’s sister’s house - that is Mrs. Garcia - that Lopez said he carried up the