Hollowell v. Superior Court

Opinion

BOREN, J.

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Petitioner seeks a writ of mandate directing the respondent court to grant his motion to set aside the information (Pen. Code, § 995), on the ground that improper hearsay testimony was admitted at his preliminary hearing.

Facts

In June, 1990, the voters enacted the “Crime Victims Justice Reform Act,” designated on the ballot as Proposition 115. One of the provisions of

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Proposition 115, codified as Penal Code section 872, subdivision (b), authorizes the admission of hearsay evidence at preliminary hearings in criminal cases, provided certain foundational requirements are met. Specifically, section 872, subdivision (b) provides that the magistrate’s “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.”

Petitioner is charged with robbery. At petitioner’s preliminary hearing, Officer Dougherty of the Long Beach Police Department testified that during the early morning hours of September 13, 1991, he responded to a robbery call. The victim, Jorge Sastillo, told Officer Dougherty that the suspect’s van pulled up alongside his van, then the suspect got out, approached him and demanded the victim’s money, wallet and the keys to the van. Mr. Sastillo, who thought the robber was going to pull a gun, complied and gave the robber $55, whereupon the robber got back in his van and left the scene. Since Mr. Sastillo did not speak English and Officer Dougherty did not speak Spanish, the above events were related to Officer Dougherty by Javier Alonzo, Mr. Sastillo’s bilingual companion.

Officer Dougherty transported Mr. Sastillo and Mr. Alonzo to another location where petitioner and his associates were being detained by police. Mr. Sastillo positively identified petitioner as the robber. Officer Dougherty also learned from another officer, Alvarez, that petitioner had $55 in his possession, in the same denominations as taken from Mr. Sastillo.