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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Appellant, v. Jesus Manuel GANDARA, Defendant and Respondent.


Decided: August 29, 1991

Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., J. Robert Jibson, William G. Prahl and Louis Vasquez, Deputy Attys. Gen., Sacramento, for plaintiff and appellant. Richard L. Phillips and Mark L. Christiansen, Sacramento, under appointment by the Court of Appeal, for defendant and respondent.


The People appeal after the trial court granted defendant's Penal Code 1 section 995 motion and dismissed the information.


On July 17, 1990, following preliminary examination, defendant was charged by information with one count of violation of Health and Safety Code section 11352, transportation of heroin;  and one count of violation of Health and Safety Code section 11351, possession for sale of a controlled substance, to wit, heroin.   It was further alleged that defendant had suffered prior convictions for a violation of Health and Safety Code section 11351 on or about June 16, 1989, and a violation of Health and Safety Code section 11359 on or about March 21, 1986.

On August 6, 1990, defendant filed his notice of motion to set aside the information pursuant to section 995.   The motion was heard on August 17, 1990.   At the end of the hearing, the trial court granted the section 995 motion and dismissed the case.   The People's notice of appeal was filed on August 22, 1990.


At the preliminary examination, Detective Richard Yorke testified that he is a deputy sheriff with the Kern County Sheriff's Department in the narcotics task force.   In the early morning hours of June 20, 1990, he stopped a gray 1983 Blazer in the 1800 block of South M Street in Bakersfield.   Yorke recognized the driver of the car as Jesus Gandara.   Yorke testified that after he stopped the vehicle he conducted a search and found a brown paper sack with a substance wrapped in clear plastic wrap.   He opened it, looked at it, and recognized it.   Over objection, the court admitted Yorke's testimony that the substance was “consistent with what tar heroin looks like.”   At that point defendant was arrested and his person was searched, at which time Detective Yorke found $715 in United States currency.   Yorke testified that, assuming there were 50.60 grams of tar heroin seized, in his opinion it would be “possession of sales.”   This amount would have an approximate street value of $25,000.

The only other witness called at the preliminary examination was Michael Mara, an investigator with the Kern County District Attorney's office who had been in law enforcement for more than five years.   He testified that before coming to court he went to the Kern Regional Crime Laboratory and spoke to Jeanne Spencer, a criminalist, regarding another criminalist by the name of Joe Fagundes.   From Spencer, Mara obtained a copy “of the qualifications for Joe Fagundes” and a copy of a laboratory report prepared by Joe Fagundes.2  Mara said that Spencer said the copy of the report she gave to Mara was a true copy of the report prepared by Joe Fagundes.   The following colloquy then occurred.

“MR. KATHKA [defense counsel]:  I'm going to object at this point, hearsay, your Honor.

“THE COURT:  Offered under Proposition 115?

“MS. SKABELUND [deputy district attorney]:  That's correct.

“THE COURT:  I'll admit it for that purpose subject to a motion to strike if it's not tied up to this defendant.”

The People then introduced as exhibit 3 the brown tar-like substance that was taken from defendant's car, at which time the following colloquy occurred:

“Q. [BY MS. SKABELUND:]  And what does People's Exhibit [2] indicate ․ insofar as the lab analysis by Joe Fagundes of the contents of People's 3 is concerned?

“MR. KATHKA:  Objection, your Honor, hearsay, due process and ex post facto confrontation of witness, foundation as to expertise.

“And I don't think that, from the testimony I've heard, 115 included reports of witnesses that the officer has not spoken to directly.   Evidently what we have is hearsay on hearsay.

“THE COURT:  Overrule all objections based on 115 except the foundation one.

“And I'm reviewing the People's Exhibit 1 that has been submitted, physically been admitted to determine whether there is a sufficient foundation to admit the hearsay statement of the lab results performed by Joe Fagundes.

“Based on my review of this document, People's 1, indicating his qualifications, I find there is sufficient foundation and the evidence will be admitted.”

A portion of the report of Fagundes was then read by Mr. Mara as follows:  “ ‘Evidence opened by J.A. Fagundes date 6/21/90, time 1530, results confirmed date 6/29/90.’   And then it has written, ‘55—50.60 grams of a brown chunky substance contained heroin, Schedule 1,’ then written is, ‘This in my opinion is a usable amount.’ ”

Defendant did not put on a defense and reiterated his objection to the admission of the laboratory report.   The court then stated, “It appears to me the offense[s] alleged in the first [sic ] counts of the complaint [have] been committed, there is sufficient cause to believe the within named defendant is guilty thereof, order he be held to answer the same.”


On appeal, the People argue that the trial court improperly granted defendant's section 995 motion, specifically arguing that the magistrate's admission of hearsay evidence to prove that the substance seized was heroin is not contrary to the intent and purpose of Proposition 115 (the Crime Victims Justice Reform Act, enacted by the voters of the State of California at the Primary Election on June 6, 1990) and that the use of multiple hearsay is admissible under section 872, subdivision (b).

Defendant does not attempt specifically to justify the trial court's action, but makes a wholesale attack on Proposition 115.   Defendant argues that the use of hearsay in the present situation would be incorrect (and the trial court correct in dismissing the information) for the following reasons:

(1) The intent and purpose of Proposition 115 was to protect the rights of crime victims, not to provide a convenience for public officials;

(2) The provisions of Proposition 115 enacting the so-called “hearsay preliminary examination” are unconstitutional, particularly that portion set forth in section 18 of Proposition 115 amending section 872 and section 8 adding Evidence Code section 1203.1;

(3) The use of multiple hearsay is not permitted even under the provisions of Proposition 115;

(4) Proposition 115 was rendered without effect by the passage of Proposition 114 (Primary Elec. (June 5, 1990)) by a greater margin since the two provisions overlap;  and

(5) The provisions of Proposition 115 which purport to permit a preliminary hearing on hearsay evidence at the discretion of the prosecutor violate the separation of powers and equal protection principles of the state and federal Constitutions.


 The function of an appellate court is to review errors of law and not to pass on questions of fact.  (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 241, p. 246, and cases cited.)

On review by appeal or writ from a Penal Code section 995 motion, “the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate.”  (People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278.)

 Herein the dispute at the preliminary hearing focused not on the facts but only on the reach of the provisions of Proposition 115.   Where there is no issue of weighing the evidence but where there is only a question of law, the appellate court makes an independent evaluation.  (People v. Handley (1970) 11 Cal.App.3d 277, 281, 89 Cal.Rptr. 656, disapproved on another point in People v. Diaz (1978) 22 Cal.3d 712, 717, 150 Cal.Rptr. 471, 586 P.2d 952.)   Interpretation and applicability of a statute or ordinance is clearly a question of law.  (Sutco Construction Co. v. Modesto High School Dist. (1989) 208 Cal.App.3d 1220, 1228, 256 Cal.Rptr. 671.)

Defendant recognizes that a judgment correct on any ground will be affirmed regardless of the correctness of the grounds upon which the court's conclusion was based:  “ ‘The fact that the action of the court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety.   No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.   If right upon any theory of law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’  [Citations.]”  (See People v. Gibson (1987) 195 Cal.App.3d 841, 853, 241 Cal.Rptr. 126.)

 It is true that if a trial court's decision is correct, even though not on the basis the trial court gave for its decision, the judgment will be affirmed.   However, if the reason given by the trial court is a sufficient reason, there is no occasion to wander far afield and discuss any issue that might have even peripheral relevance to the trial court's ruling.   That is to say, if the trial court was correct in its conclusion that Proposition 115 does not permit multiple hearsay of the kind admitted below, then this court need go no further to find a reason to affirm that court's decision.


While an exhaustive determination of the constitutional questions surrounding Proposition 115 is not in order in this case, some background is appropriate.

Proposition 115 adopted a variety of changes and additions to the state Constitution and statutes, including those relating to postindictment preliminary hearings (Cal. Const., art. I, § 14.1);  independent construction of state constitutional criminal rights (Cal. Const., art. I, § 24);  entitlement of the people to due process and a speedy, public trial (Cal. Const., art. I, § 29);  joinder and severance of cases (Cal. Const., art. I, § 30, subd. (a));  hearsay testimony at preliminary hearings (Cal. Const., art. I, § 30, subd. (b);  Pen.Code, § 872, subd. (b), and Evid.Code, § 1203.1);  discovery procedures (Cal. Const., art. I, § 30, subd. (c));  voir dire examination (Code Civ.Proc., § 223);  felony murder (amended Pen.Code, § 189);  and other changes.

The only Supreme Court case construing Proposition 115 is Raven v. Deukmejian (1990) 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077.   Therein the court focused on only two aspects of the measure:  (1) whether the measure violated the “single subject rule” contained in California Constitution, article II, section 8, subdivision (d);  and (2) whether section 3 of the initiative, which attempted to amend California Constitution, article I, section 24, constituted an impermissible constitutional revision rather than a permissible amendment.  (Raven, supra, at p. 340, 276 Cal.Rptr. 326, 801 P.2d 1077.)

The court determined that the measure did not violate the single subject rule.  (Raven v. Deukmejian, supra, at p. 349, 276 Cal.Rptr. 326, 801 P.2d 1077.)

Regarding the constitutional revision argument, the court noted that section 3 of the initiative attempted to amend California Constitution, article I, section 24, to provide that certain enumerated criminal defendants' rights would be construed consistently with the United States Constitution and would not be construed to afford greater rights to criminals or juvenile defendants than afforded by the federal Constitution.   The Raven court found that provision unconstitutional, concluding it “contemplates such a far-reaching change in our governmental framework as to amount to a qualitative constitutional revision, an undertaking beyond the reach of the initiative process.”  (Raven v. Deukmejian, supra, 52 Cal.3d at p. 341, 276 Cal.Rptr. 326, 801 P.2d 1077.)

The Raven court specifically did not rule on any of the other provisions of Proposition 115, noting:  “We have no occasion at this time to consider other possible attacks that may be directed at the various substantive and procedural changes accomplished by the measure․  [¶] ․ [¶] ․ we caution that our summary description and interpretation of the measure by no means preclude subsequent litigation regarding the meaning or legality of its provisions, apart from the specific issues considered herein.”  (Raven v. Deukmejian, supra, 52 Cal.3d at pp. 340–341, 276 Cal.Rptr. 326, 801 P.2d 1077.)

The instant appeal involves only the question of the application of the changes to the Constitution and statutes dealing with hearsay evidence at a preliminary hearing.

Article I, section 30, subdivision (b), was added to the California Constitution, as follows:  “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.”

Section 872, subdivision (b) was added to the Penal Code as follows:  “Notwithstanding section 1200 of the Evidence Code, 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.”

At the hearing on the section 995 motion on August 17, 1990, the trial court noted:  “The People are taking the position that multiple hearsay is permissible under Proposition 115, and I respectfully disagree with that.   [¶] I think if the officer goes out and talks to a witness, that officer can then come in and testify at the preliminary hearing as to what the witness told to him or her.  [¶] ․ [¶] This is the first case that I've had where the People are tring [sic ] to bind over based on five-plus years law enforcement officer talking with a criminalist with regard to an analysis that was done by another criminalist.”

The court went on to say that it would not have been troubled if Mara had talked directly to the criminalist who did the analysis and testified as to that conversation.   It was the “intermediary involved here” that troubled the trial court;  it was also the “intermediary” that caused the problem to be one of multiple hearsay.

A brief review of the history and purpose of the hearsay rule is helpful in this analysis.

 Hearsay is a question of admissibility for it is a matter of the reliability of evidence and the fundamental fairness of the hearing procedures.  (Idaho v. Wright (1990) 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638.)

Hearsay has been called “ ‘that most characteristic rule of Anglo–American Law of Evidence—a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world's methods of procedure.’ ”  (McCormick on Evidence (2d ed. 1972) p. 579.)

“In order to encourage witnesses to put forth their best efforts and to expose inaccuracies [in perception, recollection, and narration], the Anglo–American tradition evolved three conditions under which witnesses ordinarily will be required to testify:  oath, personal presence at trial, and cross-examination.   The rule against hearsay is designed to insure compliance with these ideal conditions, ․”  (McCormick on Evidence, supra, pp. 581–582, fn. omitted.)

“The main reasons for excluding hearsay evidence are:  ‘(a) The statements are not made under oath;  (b) the adverse party has no opportunity to cross-examine the person who made them;  and (c) the jury cannot observe his demeanor while making them.’  [Citations.]”  (People v. Williams (1990) 222 Cal.App.3d 911, 916, 272 Cal.Rptr. 212.)

As has been noted, Proposition 115 added section 30, subdivision (b) to article I of the California Constitution to provide, “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.”

Assuming that this provision is constitutional, it was clear that the intent of this new “exception” to the hearsay rule was to protect victims and witnesses.   Is that intent furthered by allowing multiple hearsay of the nature at issue herein?

Regarding the use of multiple hearsay, the People simply argue, “Evidence Code section 1201 enacted in 1965 deals with multiple hearsay and its admissibility and makes it clear that multiple hearsay is hearsay evidence and is admissible in the same manner that hearsay under section 1200 is admissible.   Since hearsay testimony is now admissible at a preliminary hearing, multiple hearsay is likewise admissible.   None of the recently enacted statutory provisions require the law enforcement officer testifying to have spoken to the original declarant of a statement.   An officer may testify to statements made by victims, witnesses, etc. which were then reported to him by someone else.   Police reports and other writings, in this case a lab report, contain statements of others and are obviously hearsay and admissible under Penal Code section 872.”

Evidence Code section 1201 provides, “A statement within the scope of an exception to the hearsay rule is not inadmissible on the ground that the evidence of such statement is hearsay evidence if such hearsay evidence consists of one or more statements each of which meets the requirements of an exception to the hearsay rule.”

 The People's reliance upon Evidence Code section 1201 is clearly misplaced.   Had Jeanne Spencer, the criminalist to whom Mara spoke, come to court and testified directly to no more and no less than she told Mara, her testimony would clearly have been insufficient to authorize the admission of “the qualifications of Joe Fagundes” and the copy of his laboratory report as either business records or public records or under any other recognized exception to the hearsay rule.   The People's argument that her statements to Mara are sufficient because presented as hearsay evidence through a peace officer with five years' experience serves to transform the provisions of Penal Code section 872, subdivision (b) from a new exception to the hearsay rule to a statutory abolition of the rule altogether in favor of the People.   Such a sweeping view of the effect and scope of Penal Code section 872 not only runs afoul of due process objections but is not justified by any rational view of the intent underlying Proposition 115.

Proposition 115 at section 1, subdivision (c), contained the following, “The goals of the people in enacting this measure are to restore balance to our criminal justice system, to create a system in which justice is swift and fair, and to create a system in which violent criminals receive just punishment, in which crime victims and witnesses are treated with care and respect, and in which society as a whole can be free from the fear of crime in our homes, neighborhoods, and schools.”

Note that none of the numerous goals of Proposition 115 were to ease the burden on criminalists so that they would not have to speak directly to the district attorney's investigator.

The justification for permitting the admission of hearsay evidence at the preliminary examination is “to protect victims and witnesses”;  a criminalist is not in the class of people who might need protection.

In addition to the stated purpose of Proposition 115, to protect victims and witnesses, Penal Code section 872 also includes a requirement that the police officer who relates the hearsay testimony to the court shall have a certain qualifying amount of experience and training.   Such a requirement would make sense and would be appropriate if the officer were recounting his own examination of a victim or a witness to a crime.   However, that requirement would make no sense whatsoever in this situation in which the only thing Mara was required to do was pick up two documents at the crime laboratory, hand them to the court clerk, and read a sentence from the criminalist's report to the court.   No specialized training or experience would conceivably be necessary to perform that service for the court.   Literally any person who could walk and read could perform the function that Mara performed at the preliminary examination.   Certainly a receptionist at the laboratory, a delivery person, or the court clerk could have given the same testimony that Mara did.   Such a result appears to be beyond the intention of Proposition 115.

Since Proposition 115 does not envision the admission of multiple hearsay such as appears in this record, Fagundes's report and his qualifications would only be admissible if they came under a recognized exception to the hearsay rule.

Herein Mara testified that Ms. Spencer told him that the copy of the qualification and the copy of the laboratory report were true copies of the reports in question.   Thus Fagundes prepared the report;  Spencer said the copy she gave to Mara was a true copy;  and Mara testified to that effect in court, reading a portion of the report in question, the people offering that testimony to prove an element of the charged offense.

Formal writings and reports are inadmissible hearsay unless made competent evidence by one of the exceptions to the rule.  (1 Witkin, Cal.Evidence (3d ed. 1986) § 579, p. 554.)   No exception to the hearsay rule was offered at the preliminary hearing nor at the Penal Code section 995 motion.   The two obvious possibilities—the public record exception (Evid.Code, § 1280) or the business record exception (Evid.Code, § 1271)—do not find support in the record.

As has been noted, defendant has made a wholesale attack on the constitutionality of Proposition 115, a determination of which is not necessary for the disposition of this appeal, since (1) if Proposition 115 is unconstitutional, the multiple hearsay would not have been admissible and probable cause to bind over was not shown;  or (2) if Proposition 115 is constitutional, the sections at issue herein do not authorize the admission of multiple hearsay such as seen in this case.   Thus in either event the magistrate erred in holding defendant to answer since probable cause was not shown;  the trial court was correct in dismissing the information.


The judgment is affirmed.



FN1. Further statutory references are to the Penal Code unless otherwise designated..  FN1. Further statutory references are to the Penal Code unless otherwise designated.

2.   Fagundes's curriculum vita was introduced as exhibit 1 and the copy of the laboratory report as exhibit 2.

REID, Associate Justice, Assigned.* FN* Retired judge of the superior court sitting under assignment by the Chairperson of the Judicial Council.

BEST, P.J., and BUCKLEY, J., concur.

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