PEOPLE v. MIRANDA

Reset A A Font size: Print

Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Appellant, v. Luis MIRANDA, Defendant and Respondent.

No. B112325.

Decided: March 11, 1999

Gil Garcetti, District Attorney, Diana L. Summerhayes and Shirley S.N. Sun, Deputy District Attorneys, for Plaintiff and Appellant. Victoria H. Stafford, under appointment by the Court of Appeal, Oakland, for Defendant and Respondent.

The People appeal from an order denying a motion to reinstate a felony complaint against the respondent Luis Miranda.1  We hold that the testimony of a qualified law enforcement officer relating a nontestifying codefendant's extrajudicial confession which incriminates the defendant is not, at their joint preliminary hearing conducted pursuant to Proposition 115 (as judicially construed), made inadmissible as to the defendant by the hearsay rule, or by the confrontation or due process clauses.   The Bruton/Aranda rule (see Bruton v. U.S. (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 [Bruton ] and People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265 [Aranda ] ) did not apply at Miranda's preliminary hearing, does not apply at preliminary hearings generally, and did not render inadmissible such testimony.   The testimony did not have to be corroborated in order to provide probable cause to hold Miranda to answer and, even if corroboration was necessary, a portion of the testimony was adequately corroborated and provided such probable cause.

FACTUAL SUMMARY

1. The Substantive Offenses.

On October 9, 1996, Josafat Terraza and Urbano Mendoza were shot and killed in their Maywood apartment.   Jose Canela, Daniel Morales, and Luis Miranda were charged with the crimes, and were codefendants at a joint preliminary hearing.   We view the preliminary hearing evidence in accordance with the usual rules on appeal, upholding factual findings of the magistrate but exercising our independent judgment on questions of law.   (People v. Slaughter (1984) 35 Cal.3d 629, 633, 636-640, 200 Cal.Rptr. 448, 677 P.2d 854;  People v. Salzman (1982) 131 Cal.App.3d 676, 683-684, 182 Cal.Rptr. 748;  Vlick v. Superior Court (1982) 128 Cal.App.3d 992, 998, 180 Cal.Rptr. 742.)

The evidence at the preliminary hearing established that Michael Moreno was a witness to events concerning the shooting, but did not identify anyone as a shooter.   Moreno testified that at about 12:49 a.m. on the above date, he was in his Maywood apartment.   Moreno heard a scream and a gunshot coming from apartment 18, which was directly across from his apartment.   He looked out his front door and observed a scuffle occurring in apartment 18, where Terraza and Mendoza lived.

Moreno later observed two men engaged in a scuffle in apartment 18.   The first man was standing over a second man who was on the floor, and the first man was searching the pockets of the second man.   After the first man stopped searching, something “raised up” and Moreno heard shots.   The first man extended his arm at a right angle from his body.   Moreno did not observe a gun in the first man's hand, but Moreno heard two additional gunshots.

During the first man's search of the second man, a third person had been running up and down the stairs and in and out of apartment 18.   The third person was neither Terraza nor Mendoza.   After Moreno heard the two additional gunshots, the first man and the third person fled toward the street.   Moreno later observed a small truck leave the scene with its tires screeching.   Moreno was subsequently taken to the truck by police officers, and he identified it.

After Moreno observed the truck leave, he went to apartment 18.   Terraza, who had been shot, was on the floor;  his face was covered with facial cream.   Mendoza also had been shot.   Moreno knew that Terraza and Mendoza sold drugs from their apartment and he had seen handguns in apartment 18 on prior occasions.   Moreno did not see handguns that night.   He identified no one in court.

Los Angeles County Sheriff's Detective Mark Lillienfeld testified that he went to the crime scene and found, in apartment 18, two .380-caliber bullets, one 9-millimeter bullet, two .380-caliber casings, one 9-millimeter casing, and another bullet.   Lillienfeld also observed a bullet mark on a refrigerator, a bullet hole in a window, and blood.   Lillienfeld found narcotics and evidence of narcotics sales, and he found a wallet which held a California driver's license issued to a Luis Miranda.   The wallet was on the sidewalk directly outside the bedroom window of apartment 18.

Lillienfeld also testified that he had been employed in law enforcement for 16 years;  he was assigned as a detective in the homicide bureau;  and he had been one of the investigating officers in the present case.   Pursuant to Proposition 115, Lillienfeld testified to statements made to him by Maywood Police Sergeant Gosnell.   According to Lillienfeld, Gosnell told him that while Gosnell was en route to the crime scene, Gosnell heard a broadcast of a suspect description.   He subsequently observed a man matching the description running down the street about a block from the crime scene, and detained him.   The suspect had a loaded .380-caliber pistol.   Gosnell identified the suspect to Lillienfeld as Canela.

Pursuant to Proposition 115, Lillienfeld also testified as to two statements made to him by Canela.   After Lillienfeld obtained a waiver of Canela's Miranda rights, Canela gave his first statement, which implicated only himself in the shootings of Terraza and Mendoza.

Thus, according to Lillienfeld, Canela stated he went alone by bus to apartment 18 to buy marijuana, and was carrying his gun for protection.   During the narcotics transaction, Terraza became upset and Canela was afraid Terraza would hurt him.   A struggle ensued for Canela's gun, and Canela shot Terraza.   Terraza had white cream on his face.   As Canela fled the apartment, he thought Mendoza had a handgun.   Canela, fearing he would be shot, fired a shot towards Mendoza.

After Canela's interview, Lillienfeld interviewed Moreno and learned there were additional suspects.   Lillienfeld obtained another waiver of Canela's Miranda rights, and Canela gave a second statement.   In it, Canela admitted lying to Lillienfeld during the first interview, and Canela provided a new version of events.   In sum, Canela stated that the three codefendants implemented a plan to rob Terraza and Mendoza, and Morales acted as the getaway driver.   After Canela and Miranda went to apartment 18 and confronted the victims, Miranda eventually shot or struck Mendoza, and Canela shot Mendoza.   Canela subsequently shot Terraza.   Canela was later outside apartment 18 when he heard a gunshot, ran to help Miranda, and observed him inside leaning over Terraza and taking his money.

Thus, according to Lillienfeld, Canela stated that Morales, Miranda, and Canela met at a house, and Morales suggested that they rob a place in Maywood where Morales previously had purchased narcotics.   The three agreed to do so.   Canela later drove Miranda to Maywood in Canela's cousin's truck;  Morales followed in his van.   They parked Morales's van down the street from the apartment building;  all three then rode in the truck to the apartment building.

Morales went alone to apartment 18, ostensibly to buy drugs, but actually to see if it was safe to commit the robbery.   After Morales left, Miranda obtained a rope which he and Canela cut into pieces.   Canela and Miranda intended to use the rope to tie up the victims and rob them, and then leave.   Miranda had what Canela believed was a Tec-9 machine pistol;  Miranda told Canela that the first 13 rounds in the pistol were hollow-point rounds.

When Morales returned, he gave drugs he had purchased to Miranda, who used them.   Morales told them there were two men upstairs, one who had white cream on his face and the other who was covered with a sheet and lying on a couch or a mattress on the floor.   Morales indicated it was safe to rob them, but to be careful because Morales did not know whether the man under the sheet was awake or had weapons.   Canela identified a photograph of Morales.

As Canela and Miranda approached the apartment building, they observed one of the two men in the apartment looking at them through what they believed to be the window of apartment 18.   They discussed this with each other as they walked towards the front door.   Morales was in the truck.   The plan was that if Canela and Miranda did not return in ten minutes, Morales would drive around the corner and wait.   Morales knew that Canela and Miranda were going up to the apartment with guns.

Canela and Miranda went upstairs, knocked on the door, and were admitted into the apartment.   Miranda gave Canela money to buy marijuana;  Canela gave the money to Terraza.   Canela observed that Terraza was holding a handgun.

Miranda pulled out his Tec-9 machine pistol and demanded money.   As he did so, the pistol's magazine fell out.   After Canela removed his .380-caliber handgun, Canela and Mendoza struggled for the handgun.   At that time, Miranda shot or struck Mendoza in the head with Miranda's pistol.   Canela got control of his weapon with Miranda's help, and intentionally shot Mendoza.   Canela and Mendoza fell, and Miranda helped Canela get away from Mendoza.   After Canela shot Mendoza, and while Miranda was struggling with Terraza and trying to put the magazine back into his pistol, Canela shot Terraza.

After the shootings, Canela ran down the stairs onto the driveway and then back again, trying to persuade Miranda to leave.   At one point, Canela heard a gunshot while he was outside apartment 18, and ran back to help Miranda.   Miranda was leaning over Terraza's body and picking up money which Terraza had removed from his pocket.   At some point, Miranda took Terraza's gun from his hand.   Canela convinced Miranda that they should leave, and they did so, but in separate directions.   Canela went toward Atlantic, and Miranda went toward the waiting truck.   Canela was arrested by Gosnell.2

Lillienfeld testified that he took the witness Moreno to the truck which was registered to Canela's cousin and that Moreno identified it.   Lillienfeld also testified that, according to Canela, the truck was the same one which had been used during the crimes.   The gunshot wounds inflicted on Terraza and Mendoza were fatal.   Miranda presented no defense evidence.

2. The Penal Code Section 871.5 Motion.

On January 9, 1997, a joint preliminary hearing was conducted for Miranda, Morales, and Canela.   Lillienfeld testified that at about 6 a.m., on October 9, 1996, he conducted his first interview with Canela.   The prosecutor asked Lillienfeld what Canela told Lillienfeld.   However, before Lillienfeld responded, the following occurred:  “[Miranda's defense counsel]:  I'm going to object:  hearsay as to my client.   Ask that it be limited.  [¶] [Morales's defense counsel]:  Join. [¶] The Court:  Very well.   The statements will be limited to declarant only.”

The prosecutor stated she was proffering Canela's statement under Proposition 115, and she wanted to use it against Miranda and Morales.   The magistrate stated the prosecutor had an “Aranda/Bruton problem,” the prosecutor disagreed, and the magistrate later stated, “․ I'll take the motion subject to strike [sic], and we'll proceed.”   Lillienfeld subsequently testified as to Canela's first statement as outlined above.

Lillienfeld then testified that at about 12:10 a.m., on October 10, 1996, he conducted his second interview with Canela.   The prosecutor asked Lillienfeld what Canela told Lillienfeld during the second interview.   Lillienfeld testified that Canela stated that Canela had lied during the first interview, and had not been alone but had been with two other men when the incident occurred.

Miranda and Morales objected “to this statement” as hearsay.   The magistrate noted the objection but did not then expressly rule on it.   The magistrate indicated there was an issue as to whether the Bruton/Aranda rule applied, and later stated, “․ I'm taking it subject to a motion to strike.”   The magistrate directed the prosecutor to proceed.   Lillienfeld then testified as to Canela's second statement as outlined above.   The People later rested “subject to the motion to strike the testimony,” and the preliminary hearing was continued to January 10, 1997, to permit the magistrate to research the admissibility issues.   Neither Miranda, Morales, nor Canela offered defense evidence.

On January 10, 1997, the prosecutor urged that Canela's statements were admissible against Miranda and Morales under Proposition 115.   The prosecutor also urged that Proposition 115 and Whitman v. Superior Court (1991) 54 Cal.3d 1063, 2 Cal.Rptr.2d 160, 820 P.2d 262 (Whitman ) rendered the right to confrontation inapplicable at preliminary hearings, with the result that the Bruton /Aranda rule did not apply at preliminary hearings.   The prosecutor also argued that the case of Ruiz v. Superior Court (1994) 26 Cal.App.4th 935, 31 Cal.Rptr.2d 741, (Ruiz ) supported the People's position.3

The magistrate discussed the Bruton/Aranda rule and Ruiz, and commented that the latter had nothing to do with the former.   The magistrate also commented, “․ in Ruiz, what we're dealing with here is whether or not the corroboration needs to be established with an accomplice, and certainly it does.[ 4 ]  [¶] The sole issue that the Court is dealing with is, once again, whether the Aranda/Bruton rule applies to preliminary hearings.”

The magistrate subsequently discussed a then recent case in which, according to the magistrate, a judgment had been reversed because of confrontation clause error at a joint trial.5  The magistrate then stated, “[i]n short, with respect to the statements that are being presented in court, the reason why, to my understanding, that the statement of one defendant cannot be used necessarily against another defendant, unless there is corroboration of the same, is because of the fact that the indicia reliability is not there, and there's also a great issue as to whether or not the defendant making the statement is actually trying to reduce his culpability.”

The magistrate continued, “[i]n this case we know that Mr. Canela indicated he was actually the trigger man.   He was the shooter.   So we know that he is not attempting to reduce his culpability, per se, but there is still an issue of whether or not this rule would allow the use of evidence against one defendant towards the others and whether or not there is a denial-effective cross-examination.”

The magistrate then stated, “I want my rulings to be very, very specific, that way the People can take this on appeal, and hopefully we would have case law which would clear up this issue.  [¶] I'm going to hold that the Aranda/ Bruton rule does apply at the preliminary hearing stage;  furthermore, that the statements made by Mr. Canela cannot be used against the defendant, Miranda, and it cannot be used against the defendant, Morales.”

The magistrate then said, “[h]aving stated that, with respect to the evidence presented and the motions to dismiss by, I would take it, Mr. Canela, that motion will be denied on all counts.   As to the defendant, Miranda, and as to Defendant Morales, People, do you wish to be heard?  [¶] [The Prosecutor]:  In light of the Court's ruling, I'll submit it.   There was evidence linking both gentlemen independently to this incident.   However, it's certainly not extremely strong, so I'll leave it up to the Court.  [¶] The Court:  Very well.   The motion to dismiss by Defendant Miranda and by Defendant Morales are granted.” 6

The People moved in superior court to reinstate the complaint and Miranda's custodial status pursuant to Penal Code section 871.5.   The court denied the motion and the People have filed this timely appeal.

CONTENTIONS

The People argue, in pertinent part, that:  (1) the law regarding admissibility of hearsay evidence at a preliminary hearing has been changed by Proposition 115;  (2) there is no federal right to confront and cross-examine witnesses at a preliminary hearing;  (3) Canela's statement was corroborated by other evidence;  (4) Aranda and Bruton do not establish any other ground for objecting to Canela's out-of-court statements separate from hearsay, lack of confrontation, and lack of reliability.

The People also contend that Canela's confessions were not made inadmissible as to Miranda by the hearsay rule or federal confrontation clause.   Miranda disputes that and urges that Canela's confessions were made inadmissible as to him by the state confrontation clause, and the federal and state due process clauses.

DISCUSSION

1. Pursuant To Proposition 115, As Judicially Construed, Canela's Confessions Were Admissible As To Miranda As Against Hearsay, Confrontation Clause, And Due Process Objections.

In Whitman v. Superior Court (1991) 54 Cal.3d 1063, 2 Cal.Rptr.2d 160, 820 P.2d 262, the People relied on Proposition 115 to present, over the defendant's objection, certain testimony at a preliminary hearing.   The defendant's motion to set aside the information was denied;  review thereof was eventually sought in the Supreme Court.   The Supreme Court, construing Proposition 115, held that testimony by a noninvestigating officer or “reader” who related the contents of a police report prepared by an investigating officer in circumstances unknown to the noninvestigating officer could not provide probable cause to hold a defendant to answer.  (Whitman, supra, at pp. 1072-1075, 2 Cal.Rptr.2d 160, 820 P.2d 262.)   However, the court rejected all of the defendant's various constitutional challenges to Proposition 115.   Moreover, Whitman construed Proposition 115 to allow a qualified law enforcement officer to relate single level hearsay, and Whitman did so in language sufficiently broad as to include such hearsay from any declarant and, therefore, from Canela.

Whitman first recited pertinent constitutional and statutory provisions added or amended by Proposition 115.7  (Whitman v. Superior Court, supra, 54 Cal.3d at pp. 1070-1071, 2 Cal.Rptr.2d 160, 820 P.2d 262.)   Whitman next discussed the testimony of noninvestigating officers or “[r]eaders” (id. at p. 1072, 2 Cal.Rptr.2d 160, 820 P.2d 262) relating statements of declarants.  (Id. at pp. 1072-1075, 2 Cal.Rptr.2d 160, 820 P.2d 262.)  Whitman observed, “․ the term ‘declarants' [in Penal Code section 872, subdivision (b) ] ․ would include the statements or reports of any persons . ․” (Id. at p. 1073, 2 Cal.Rptr.2d 160, 820 P.2d 262, italics added.)

Whitman turned to the requirement that the testifying witness be a qualified law enforcement officer.  Whitman noted, “․ in permitting only officers with lengthy experience or special training to testify regarding out-of-court statements, Penal Code section 872, subdivision (b), plainly contemplates that the testifying officer will be capable of using his or her experience and expertise to assess the circumstances under which the statement is made and to accurately describe those circumstances to the magistrate so as to increase the reliability of the underlying evidence.”   (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1074, 2 Cal.Rptr.2d 160, 820 P.2d 262, italics added.)

Whitman observed that “․ [p]roposition 115 created an exception to the basic hearsay rule contained in Evidence Code section 1200, ․” (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1074, 2 Cal.Rptr.2d 160, 820 P.2d 262) but Whitman rejected “readers” and multiple hearsay in favor of “limiting admissible hearsay testimony to testimony by qualified investigative officers.”  (Ibid.) Whitman stated, “․ we believe that the latter, more limited, form of hearsay evidence satisfies federal requirements of reliability [citation], and thus properly may be admitted at preliminary hearings despite the defendant's inability to confront and cross-examine the declarant witness ․”  (Id. at p. 1074, 2 Cal.Rptr.2d 160, 820 P.2d 262, second italics added.)

Whitman later discussed the impact of the state and federal confrontation clauses on testimony made admissible by Proposition 115.   The court first stated, however, that “․ we construe Proposition 115 to allow an investigating officer to relate at the preliminary hearing any relevant statements of ․ witnesses, if the testifying officer has sufficient knowledge of the crime or the circumstances under which the out-of-court statement was made so as to meaningfully assist the magistrate in assessing the reliability of the statement.   The new measure would permit the magistrate to base a finding of probable cause entirely on that testimony.  [Citation.]   Petitioner asserts that such a procedure would violate his state and federal constitutional rights to confront his accusers.   We disagree.”  (Whitman v. Superior Court, supra, 54 Cal.3d at pp. 1075-1076, 2 Cal.Rptr.2d 160, 820 P.2d 262, italics added.)

The Supreme Court observed that article I, section 30, subdivision (b), adopted as part of Proposition 115, permitted the admission of hearsay at preliminary hearings, as provided by law, and amounted to a state constitutional exception to the right to confrontation enunciated in the state Constitution.  (Whitman v. Superior Court, supra, 54 Cal.3d at pp. 1076-1077, 2 Cal.Rptr.2d 160, 820 P.2d 262.)

As to the federal confrontation clause, the Whitman court observed that the petitioner therein contended that Proposition 115 lacked a provision guaranteeing the reliability of the hearsay.  (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1077, 2 Cal.Rptr.2d 160, 820 P.2d 262.)   The Supreme Court rejected the defendant's reliability objections (id. at p. 1078, 2 Cal.Rptr.2d 160, 820 P.2d 262) for three reasons.   Most significant for our purposes is the court's second reason, i.e., “․ the experience and training requirements of [section 872] help assure that the hearsay testimony of the investigating officer will indeed be as reliable as appropriate in light of the limited purpose of the preliminary hearing, as discussed in greater detail below.  [Citation.]   Although the underlying reliability of the ․ witness may remain untested until trial, we think the evaluation and cross-examination of the testimony of the qualified investigating officer provides sufficient basis for a pretrial probable cause determination.”  (Ibid., italics added.) 8

However, Whitman later stated that it was “doubtful that the federal confrontation clause operates to bar hearsay evidence offered at a preliminary hearing held to determine whether probable cause exists to hold the defendant for trial.”  (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1078, 2 Cal.Rptr.2d 160, 820 P.2d 262.)  Whitman noted that the United States Supreme Court had never so held.

Whitman quoted United States Supreme Court authority that “․ ‘[t]he right to confrontation is basically a trial right.’ ”  (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1079, 2 Cal.Rptr.2d 160, 820 P.2d 262.)  Whitman discussed the probable cause hearing required under the Fourth Amendment by Gerstein v. Pugh 9 as a condition of an arrestee's continued detention pending trial.  Whitman later stated, “[w]e conclude that the new, limited form of preliminary hearing in this state sufficiently resembles the Fourth Amendment probable cause hearing examined in Gerstein, supra, ․ to meet federal confrontation clause standards despite reliance on hearsay evidence.”  (Whitman, supra, 54 Cal.3d at p. 1082, 2 Cal.Rptr.2d 160, 820 P.2d 262, italics added.) 10

 Whitman effectively concludes that, at a preliminary hearing conducted pursuant to Proposition 115, testimony by a qualified law enforcement officer relating single level hearsay, of whatever content and from whatever source, is, as to the defendant, admissible as against hearsay and confrontation clause objections.   Accordingly, we see nothing in Proposition 115 or Whitman that would permit us to exclude, as to Miranda, Canela's confessions introduced at their joint preliminary hearing.11  Therefore, apart from the issue of whether Canela's first confession was relevant, we hold Canela's confessions were not made inadmissible as to Miranda by the hearsay rule or by the confrontation or due process clauses.

Miranda's argument does not compel a conclusion contrary to ours.   He asserts that the hearsay at issue is “not ordinary hearsay but ‘presumptively unreliable’ hearsay.”   However, in light of our previous discussion of Proposition 115, as construed by Whitman, even if Canela's confessions are uniquely unreliable, that fact does not compel the conclusion that Canela's confessions are, as to Miranda, and for purposes of a preliminary hearing, inadmissible hearsay violative of the confrontation and due process clauses.

2. Canela's Confessions Were Not Made Inadmissible As To Miranda By The Bruton/Aranda Rule.

 The People also contend Canela's confessions were not made inadmissible as to Miranda by the Bruton/Aranda rule.   We agree with that argument as well.

The Bruton/Aranda rule may be stated thusly:  a nontestifying codefendant's extrajudicial confession which incriminates, and is inadmissible hearsay as to, the defendant, but which is otherwise admissible as to the codefendant, is nonetheless inadmissible as to the codefendant at their joint jury trial.  (People v. Aranda, supra, 63 Cal.2d at pp. 528-531, 47 Cal.Rptr. 353, 407 P.2d 265;  Bruton v. U.S., supra, 391 U.S. at pp. 124-128, fn. 3, 129-136, 88 S.Ct. 1620.)  Bruton's holding was predicated on the federal confrontation clause;  Aranda's holding was a judicially declared rule of practice implementing Penal Code section 1098, which governs joint trials.12

We note two things.   First, in Bruton, the Supreme Court “emphasize [d]” that the confession at issue was inadmissible hearsay as to the defendant.  (Bruton v. U.S., supra, 391 U.S. at p. 128, fn. 3, 88 S.Ct. 1620.) Similarly, Aranda's reasoning was based on the fact that the challenged confession was inadmissible hearsay as to the defendant.  (People v. Aranda, supra, 63 Cal.2d at pp. 524-529, 47 Cal.Rptr. 353, 407 P.2d 265.)   Second, in Bruton, the United States Supreme Court was concerned about jury trials.  Bruton stated, “[w]e hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of [the codefendant's] confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.   We therefore ․ reverse.”  (Bruton, supra, 391 U.S. at p. 126, 88 S.Ct. 1620, italics added.)

Similarly, the Aranda court stated, “[i]f it is a denial of due process to rely on a jury's presumed ability to disregard an involuntary confession, it may also be a denial of due process to rely on a jury's presumed ability to disregard a codefendant's confession implicating another defendant when it is determining that defendant's guilt or innocence.”  (People v. Aranda, supra, 63 Cal.2d at pp. 528-529, 47 Cal.Rptr. 353, 407 P.2d 265, italics added.)

Bruton overruled Delli Paoli v. United States (1957) 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278.   Referring to Delli Paoli, the Bruton court stated, “[t]he basic premise of Delli Paoli was that it is ‘reasonably possible for the jury to follow’ sufficiently clear instructions to disregard the confessor's extrajudicial statement that his codefendant participated with him in committing the crime.  [Citation.]   If it were true that the jury disregarded the reference to the codefendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor.   But since Delli Paoli was decided this Court has effectively repudiated its basic premise.”  (Bruton v. U.S., supra, 391 U.S. at p. 126, 88 S.Ct. 1620, italics added.)

Accordingly, we hold, for three reasons, that the magistrate erred by concluding that the Bruton/Aranda rule applied at Miranda's preliminary hearing.   First, the rule did not apply at the preliminary hearing because, unlike the confessions challenged in Bruton and Aranda as to the defendants in those cases, Canela's confessions were, as we have held, admissible hearsay as to Miranda under Proposition 115 as construed by Whitman.13  Second, as to Canela's first confession, the rule did not apply because that confession did not inculpate Miranda.  (See People v. Hill (1992) 3 Cal.4th 959, 994, 13 Cal.Rptr.2d 475, 839 P.2d 984.)

 Third, the Bruton/Aranda rule does not apply at any preliminary hearing.   The fact finder at a preliminary hearing is a magistrate, not a jury.   A judge, unlike a jury, is presumed to be able to avoid the risks of prejudice posed by limited admissibility.  (In re Jose M. (1994) 21 Cal.App.4th 1470, 1479-1480, 27 Cal.Rptr.2d 55;  People v. Walkkein (1993) 14 Cal.App.4th 1401, 1406-1409, 18 Cal.Rptr.2d 383.)   Thus, for purposes of the Bruton/Aranda rule, we may presume a magistrate evaluating the evidence against a defendant will disregard evidence of limited admissibility.   As Bruton makes clear, it follows that “no question ․ arise[s] under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor.” 14

3. Canela's Confessions Did Not Have To Be Corroborated To Provide Probable Cause To Hold Miranda to Answer And, In Any Event, There Was Adequate Corroboration.

 The People refer to Ruiz v. Superior Court, supra, 26 Cal.App.4th 935, 31 Cal.Rptr.2d 741, and contend Canela's confessions were adequately corroborated to provide probable cause to hold Miranda to answer at the preliminary hearing.   We hold the confessions did not have to be corroborated and, in any event, there was adequate corroboration.  Ruiz was not a case in which admissibility of evidence, the right to confrontation, or the Bruton/ Aranda rule, was at issue on appeal.   Ruiz was a sufficiency of evidence case in which the trial court denied defendant's motion to set aside an information.

In Ruiz, the defendant's preliminary hearing was conducted pursuant to Proposition 115 and a qualified investigating officer testified to statements, made by an alleged coparticipant in the subject offense, which incriminated the defendant.   The trial court denied the defendant's motion to set aside the information based on insufficiency of the evidence.  (Ruiz v. Superior Court, supra, 26 Cal.App.4th at pp. 937-939, 31 Cal.Rptr.2d 741.)   The defendant subsequently filed a petition for a writ of prohibition contending that the motion had been erroneously denied because testimony by a coparticipant was, absent corroboration, insufficient evidence of probable cause to hold the defendant to answer.   The court in Ruiz denied the petition.  (Id. at pp. 942-943, 31 Cal.Rptr.2d 741.)

The defendant relied on People v. Campa (1984) 36 Cal.3d 870, 206 Cal.Rptr. 114, 686 P.2d 634, in support of his contention.  Campa held that an arrest warrant based on uncorroborated hearsay from a known informant who admittedly had participated in the crime could not provide probable cause to arrest.  (Id. at pp. 878-885, 206 Cal.Rptr. 114, 686 P.2d 634.)  Ruiz, addressing Campa, stated, “[w]e conclude that petitioner's reliance on the search and seizure cases is misplaced because of significant differences in the purpose of determinations made in those proceedings compared with the limited purpose of the preliminary hearing.”  (Ruiz v. Superior Court, supra, 26 Cal.App.4th at p. 940, 31 Cal.Rptr.2d 741, italics added.)  Ruiz “also” (ibid.) distinguished Campa on the ground that “[u]nlike Campa, the record in this case does not establish that the declarant ․ was a coparticipant as a matter of law.”  (Ruiz, supra, at p. 941, 31 Cal.Rptr.2d 741.)

We read Ruiz as holding only that denial of the motion to set aside the information was proper where two facts were true:  (1) a qualified investigating officer related the challenged statements (Ruiz v. Superior Court, supra, at pp. 940-941, 31 Cal.Rptr.2d 741), and (2) the hearsay declarant was not a coparticipant as a matter of law.  (Id. at pp. 941-942, 31 Cal.Rptr.2d 741.)   However, Ruiz did not expressly hold that both facts had to be true in order for such a motion to be properly denied.   Specifically, Ruiz did not hold that it would have been improper to deny such a motion where:  (1) a qualified investigating officer related the challenged statements and (2) the hearsay declarant was a coparticipant as a matter of law.   Indeed, such a holding presumably would have conflicted with the express provision of Penal Code section 872, subdivision (b), as construed by Whitman, that “․ 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.”  (See also Whitman v. Superior Court, supra, 54 Cal.3d at pp. 1075-1076, 2 Cal.Rptr.2d 160, 820 P.2d 262.)

Thus, Ruiz's holding does not compel the conclusion that Canela's confessions were inadmissible as to Miranda, or that a determination that there was probable cause to hold Miranda to answer could not be based on those confessions.   Miranda does not claim the contrary, and concedes Ruiz has nothing to do with admissibility of evidence.

 Finally, even if we assume that Ruiz holds that probable cause to arrest and probable cause to hold a defendant to answer are sufficiently analogous concepts with the result that, like similar statements offered to establish probable cause to arrest, Canela's statements had to be corroborated in order to provide probable cause to hold Miranda to answer, we still conclude the court reversibly erred by denying the People's Penal Code section 871.5 motion.

Moreno's detailed account of his observations concerning the scuffle leading to the shootings of Terraza and Mendoza, coupled with the recovery of Miranda's wallet on the sidewalk directly outside the bedroom window of apartment 18, adequately corroborated Canela's second confession, which recounted the crimes and implicated Miranda in their commission.  (People v. Gonzales (1989) 216 Cal.App.3d 1185, 1189, 265 Cal.Rptr. 507 [standard for probable cause to arrest];  cf.  People v. Briggs (1967) 255 Cal.App.2d 497, 498-500, 63 Cal.Rptr. 111 [wallet, containing defendant's papers, which was recovered from directly under burglarized window was insufficient evidence to convict defendant of second degree burglary, but created “strong suspicion” of his guilt].)  Accordingly, there was sufficient evidence to hold Miranda to answer (People v. Slaughter, supra, 35 Cal.3d at pp. 633, 636-640, 200 Cal.Rptr. 448, 677 P.2d 854.)

CONCLUSION

We hold the challenged testimony, proffered at a preliminary hearing conducted pursuant to Proposition 115, as construed by Whitman, was not made inadmissible as to Miranda by the hearsay rule or the confrontation or due process clauses.   We also hold the testimony was not made inadmissible as to Miranda by the Bruton/Aranda rule.   Finally, we hold the testimony did not have to be corroborated to provide a basis for a finding that there was probable cause to hold Miranda to answer but, even if corroboration was necessary, a portion of the testimony was adequately corroborated and provided such probable cause.

DISPOSITION

The order under review is reversed.

FOOTNOTES

1.   That complaint charged Miranda with two counts of murder (Pen.Code, § 187, subd. (a)), each with special circumstance allegations that Miranda was committing or attempting to commit robbery (Pen.Code, § 190.2, former subd. (a)(17)(i)) and burglary (Pen.Code, § 190.2, former subd. (a)(17)(vii)), and had been convicted of multiple murders in this proceeding (Pen.Code, § 190.2, subd. (a)(3));  two counts of first degree residential robbery (Pen.Code, § 211);  and one count of residential burglary (Pen.Code, § 459) with, as to each offense, firearm use (Pen.Code, § 12022.5, subd. (a)).

2.   Lillienfeld testified that an officer told him that Morales made statements to the officer.   As a result of Miranda's hearsay objection, the testimony as to Morales's statements was limited to Morales.

3.   Miranda's counsel responded that “[b]asically, statements in violation of Aranda/Bruton have never been admitted prior to Prop 115 in a preliminary hearing against the defendant.   There's no case law allowing that, and basically there's nothing in Prop 115 to change that.   Ruiz certainly does not change that and no case does.   The Aranda/ Bruton princip[le] has been around a long time.   It limits that type of statements [sic] to the declarant.  [¶] Until there's a case saying that's not to be the situation, then I believe that the Court should limit the statements to Mr. Canela.”   Miranda also urged that Ruiz, and the cases cited therein, were applicable, but did not further argue the significance of Ruiz to the present case.Morales argued that all hearsay was not admissible and, even though Proposition 115 created a hearsay exception, the Bruton/Aranda rule provided an independent basis for excluding Canela's statements at the preliminary hearing.   Morales's counsel also stated that “[t]he sole issue in Ruiz was whether the declarant was an accomplice;” Morales did not further argue the significance of Ruiz to the present case.   Miranda did not expressly join in Morales's argument.

4.   The magistrate earlier had commented that Ruiz was adverse to the People in the present case.

5.   The case discussed was People v. Fletcher (1996) 13 Cal.4th 451, 53 Cal.Rptr.2d 572, 917 P.2d 187.

6.   We note that, based on the above, Miranda did not expressly move to strike Lillienfeld's testimony concerning Canela's statement, or move to dismiss.   And Miranda's sole confrontation clause objection was, if anything, a Bruton objection.

7.   Specifically, article I, section 30, subdivision (b), of the California Constitution was added, declaring hearsay evidence admissible at preliminary hearings in criminal cases, as may be provided by law.   Penal Code section 872, subdivision (b), was amended to provide, “[n]otwithstanding 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.”  (Italics added.)   Evidence Code section 1203.1 was added to provide a preliminary hearing exception to the general requirement that all hearsay declarants be made available for cross-examination.   Penal Code section 866, subdivision (a), was amended to provide, “[t]he 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 sound 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 “[i]t is the purpose of a preliminary examination to establish whether there exists probable cause to believe that the defendant has committed a felony.   The examination shall not be used for purposes of discovery.”   Where specificity is not required, we will refer to any or all of these added or amended provisions generically as “Proposition 115.”

8.   The court's first and third reasons were the facts that Proposition 115 did not permit hearsay testimony by unqualified noninvestigating officers, and the magistrate had authority to permit the defendant to call specified witnesses under Penal Code section 866, subdivision (a), respectively.  (Ibid.)

9.   Gerstein v. Pugh (1975) 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54.

10.   We note, notwithstanding respondent's suggestion to the contrary, Whitman did not expressly hold that the federal confrontation clause did not, to any extent, apply at preliminary hearings.   To avoid constitutional questions (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1074, 2 Cal.Rptr.2d 160, 820 P.2d 262), Whitman construed Proposition 115 to permit testimony by a qualified investigating officer relating single level hearsay, thus avoiding federal reliability and confrontation clause issues.  (Ibid.) This suggests that testimony by a noninvestigating officer relating multiple level hearsay might violate the federal confrontation clause.   Indeed, as we have observed, Whitman held that testimony by a noninvestigating officer or “reader” relating even single level hearsay was insufficient evidence of probable cause to hold a defendant to answer.

11.   Miranda contends that use of Canela's confessions to establish probable cause at the preliminary hearing violates federal and state due process.   We reject the contention.   Proposition 115 as judicially construed provides the defendant with an opportunity to evaluate and cross-examine the testimony of a qualified law enforcement officer relating single level hearsay, and to call specified defense witnesses.   These procedures adequately ensure fact-finding reliability, and provide the defendant with all the process that is due.

12.   As People v. Greenberger (1997) 58 Cal.App.4th 298, 68 Cal.Rptr.2d 61, observed, “[i]n recognition of the passage of Proposition 8 (Cal. Const., art.   I, § 28, subd. (d)), the California Supreme Court has stated that the rule of Aranda was abrogated to the extent it required exclusion of relevant evidence that need not be excluded under federal constitutional law.  [Citation.]”  (Id. at p. 331, fn. 12, 68 Cal.Rptr.2d 61.)

13.   If Canela's confessions were declarations against interest, they would be admissible hearsay as to Miranda, and this would provide an additional reason why the Bruton/Aranda rule was inapplicable.  (See People v. Greenberger, supra, 58 Cal.App.4th at pp. 331-334, 68 Cal.Rptr.2d 61.)   However, there is no need to reach or decide that issue.

14.   We note that, before Lillienfeld testified as to Canela's first confession, Miranda's counsel posed a hearsay objection “as to [Miranda]” and requested that the confession be “limited;” the magistrate granted the request.   During later argument on January 10, 1997, Miranda urged that the Bruton/Aranda rule “limits that type of statement[ ] to the declarant” and, as a result, “the Court should limit the statements to Mr. Canela.”   However, the Bruton/Aranda rule would not simply have “limited” the admissibility of Canela's confessions to him;  the rule, if applicable at a preliminary hearing, would have rendered Canela's confessions inadmissible even as to him at a joint preliminary hearing with Miranda.

CROSKEY, J.

KLEIN, P.J., and ALDRICH, J., concur.