FAUBEL v. PEOPLE

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Court of Appeal, Fifth District, California.

Victor Ray FAUBEL, Petitioner, v. THE SUPERIOR COURT of Tulare County, Respondent; The PEOPLE, Real Party in Interest.

No. F014648.

Decided: April 02, 1991

Neal Pereira, Public Defender, Tim Bazar, Asst. Public Defender, Hugo Loza, Supervising Atty., and Michael Sheltzer, Deputy Public Defender, Visalia, for petitioner. No appearance, for respondent Tulare County. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., J. Robert Jibson, Supervising Deputy Atty. Gen., William G. Prahl, Deputy Atty. Gen., for respondent.

OPINION

After a preliminary hearing, petitioner Victor Ray Faubel was charged by information with two counts of forcible rape (Pen.Code, § 261, subd. (b)), and two counts of forcible oral copulation (Pen.Code, § 288a, subd. (c)).  A weapon use enhancement was alleged as to each of these counts.  (Pen.Code, § 12022.3.)   Petitioner was also charged with assault with a deadly weapon.  (Pen.Code, § 245, subd. (a)(1).)

The superior court rejected petitioner's constitutional challenges to Proposition 115 and denied his motion to set aside the information.

FACTS

Detective Hilger, who had eight and a half years experience in law enforcement, was the sole witness at the preliminary hearing.   He testified he interviewed Ms. P. at the sheriff's department.   Ms. P. related the following account of the events in question.

On June 15, 1990, Ms. P. attended a surprise party at a friend's home.   As she was preparing to leave, she was told that a man who had been at the party, later identified as petitioner, needed a ride home.   Ms. P. agreed to give him a ride and let him drive her car.

Petitioner drove through Visalia and out into a rural area of Woodlake.   Petitioner eventually stopped the car, displayed a knife and asked Ms. P., “why are you doing this to me?”   Ms. P. tried to grab the knife and cut her hand.   She tried to pull away from him and was cut on her right forearm.   He ordered her to take her clothes off and to get in the back seat.   After she complied, petitioner forced Ms. P. to orally copulate him.   Petitioner then raped Ms. P.   He again forced her to orally copulate him and then raped her again.

Petitioner ordered her to orally copulate him.   Ms. P. said she would continue to have sex with petitioner if he would take her to his home.   Petitioner drove back to his apartment in Visalia.   Petitioner got out of the car and Ms. P asked him for the keys so she would not lose them.   When she got the keys, she got back in the car, locked the door and drove away.

After interviewing Ms. P, Detective Hilger went to the apartment building Ms. P. described and learned that a man matching petitioner's description lived in the building.   Petitioner's brother answered the door to the apartment and said petitioner was not there.   Detective Hilger found petitioner locked in the bathroom.

Detective Hilger questioned petitioner after petitioner waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).   Detective Hilger showed petitioner a picture of Ms. P. and petitioner denied having seen her at the party.   He also denied having had sexual relations with her on the night in question.

Detective Hilger also interviewed two people who had been at the same party as Ms. P.   Both of these people said they saw petitioner leave the party with Ms. P.

INTRODUCTION

In the present case, we must consider several challenges to the validity of Proposition 115.   This initiative measure was adopted by the voters on June 5, 1990, and is entitled the “Crime Victims Justice Reform Act.”   The stated purpose of the initiative is to adopt “comprehensive reforms ․ needed in order to restore balance and fairness to our criminal justice system.”   The initiative adopts a number of constitutional and statutory changes.   The relevant changes are set forth below.

Under article I, section 14 of the California Constitution, “[f]elonies shall be prosecuted ․ either by indictment, or after examination and commitment by a magistrate, by information.”   The initiative added section 14.1 to article I of the state Constitution to provide:  “If a felony is prosecuted by indictment, there shall be no postindictment preliminary hearing.”

Section 5 of the initiative added section 30 to article I of the state Constitution.   Subdivision (b) of section 30 provides:  “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 3 of the initiative attempted to amend section 24 of article I to “provide that certain enumerated criminal law rights shall be construed consistently with the United States Constitution, and shall not be construed to afford greater rights to criminal or juvenile defendants than afforded by the federal Constitution.”  (Raven v. Deukmejian (1990) 52 Cal.3d 336, 342–343, 276 Cal.Rptr. 326, 801 P.2d 1077.)

In Raven, supra, the California Supreme Court held section 3 invalid concluding it “contemplates such a far-reaching change in our governmental framework as to amount to qualitative constitutional revision, an undertaking beyond the reach of the initiative process.”  (Id., at p. 341, 276 Cal.Rptr. 326, 801 P.2d 1077.)   Under Raven, California courts retain the right in criminal cases to “interpret the state Constitution in a manner more protective of defendants' rights than extended by the federal Constitution, as construed by the United States Supreme Court.”  (Id., at p. 352, 276 Cal.Rptr. 326, 801 P.2d 1077.) 1

The manner in which the preliminary hearing is to be conducted is set forth in various provisions of the Penal Code.   Pursuant to section 16 of the initiative, Penal Code section 866 was amended to provide:

“(a) When the examination of witnesses on the part of the people is closed, any witness the defendant may produce shall be sworn and examined.

“Upon the request of the prosecuting attorney, the magistrate shall require an offer of proof from the defense as to the testimony expected from the witness.   The 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.

“(b) It 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.

“(c) This section shall not be construed to compel or authorize the taking of depositions of witnesses.

Section 18 of the initiative amended Penal Code section 872 to provide in relevant part:

“(b) Notwithstanding Section 1200 of the Evidence Code [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.”

In addition to permitting the probable cause finding to rest on hearsay testimony, the initiative creates an exception to the provisions in Evidence Code section 1203 regarding cross-examination of hearsay declarants.2  New Evidence Code section 1203.1 provides:

“Section 1203 is not applicable if the hearsay statement is offered at a preliminary examination, as provided in Section 872 of the Penal Code.”

The express purpose of Proposition 115, as set forth in subdivisions (c) and (d) of section 1 is as follows:

“(c) 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.

“(d) With these goals in mind, we the people do hereby enact the Crime Victims Justice Reform Act.”

Proposition 115 significantly has changed California's preliminary hearing procedure.   The relevant statutory and constitutional provisions permit the prosecution to meet the requirements of establishing probable cause through the admission of hearsay evidence.   The provisions limit the defendant's opportunity to cross-examine the hearsay declarant and provide specified procedures for the presentation of defense witnesses.   In effect, Proposition 115 has established a new procedure for the determination of probable cause.

Before addressing petitioner's specific challenges to these new procedures, we will discuss the manner in which Proposition 115 has changed the preliminary hearing procedure.

The combined constitutional and statutory provisions of Proposition 115 seek to create a procedure that narrowly limits the purpose of the preliminary hearing.   The sole purpose of the preliminary hearing under Proposition 115 is to determine whether there exists sufficient evidence to support a probable cause determination that the defendant has committed a crime.   Accordingly, the procedure provides for restriction of defense witnesses to those whose testimony will impact the probable cause determination.

As in the past, the prosecution bears the burden simply of providing sufficient evidence to support a probable cause finding.   Under Proposition 115, this burden may be met through hearsay evidence.   At the close of the prosecution's case, the defendant may present witnesses.   However, under the amended version of Penal Code section 866, on the prosecution's objection, a defense witness may not be called unless the defense's offer of proof demonstrates the witness's testimony would be significant to the narrow probable cause function of the hearing.   The defense must make an offer of proof that the testimony would be “reasonably likely to establish an affirmative defense, negate an element of the crime charged, or impeach the testimony of a prosecution witness.”  (Pen.Code, § 866, subd. (a).)  The statute, in effect, requires that in order for a defense witness's testimony to be admissible, the testimony must be reasonably likely to impact the probable cause determination.

Petitioner does not question whether the state may, through the initiative process, change the nature of a probable cause determination.   He does, however, provide extensive argument as to the constitutional right to confrontation, equal protection and due process which we shall address infra.   Much of his argument rests on the assumption that pre-Proposition 115 procedures are ingrained in the state and federal Constitutions.   However, the issue is not what could or could not be done in preliminary hearings prior to the passage of Proposition 115.   The question before us is whether the new procedure implemented by the constitutional and statutory provisions of Proposition 115 is constitutional under the federal and the state Constitutions.

We conclude petitioner's constitutional challenges to Proposition 115 are not well founded.   For the reasons stated, we deny the petition.

DISCUSSION

IFederal Constitutional Challenges

Petitioner raises numerous federal and state constitutional challenges to the statutory provisions changing the nature of the preliminary hearing.   The threshold inquiry in addressing petitioner's contentions is whether there exists a federal constitutional right to a judicial determination of probable cause prior to prosecution.

In Hurtado v. California (1884) 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, the Supreme Court rejected the argument that due process under the Fourteenth Amendment requires state criminal prosecutions be initiated by grand jury indictment.   In Lem Woon v. Oregon (1913) 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340, the Court rejected a due process challenge to a procedure that “did not require any examination, or commitment by a magistrate, as a condition precedent to the institution of a prosecution by information filed by the district attorney, nor require any verification other than his official oath.  [Citations.]”  (Id. at p. 587, 33 S.Ct. at p. 783.)

The Court refused to distinguish Hurtado on the ground that the system challenged “did not require that the information be preceded by the arrest or preliminary examination of the accused․”  (Id. at p. 590, 33 S.Ct. at p. 784.)   The Court stated that because:

“[T]he ‘due process of law’ clause does not require the State to adopt the institution and procedure of a grand jury, we are unable to see upon what theory it can be held that an examination, or the opportunity for one, prior to the formal accusation by the district attorney, is obligatory upon the States.”  (Lem Woon v. Oregon, supra, 229 U.S. 586, 590, 33 S.Ct. 783, 784.)

In Beck v. Washington (1962) 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98, the court stated:

“Ever since Hurtado v. California, 110 U.S. 516 [4 S.Ct. 111, 28 L.Ed. 232] (1884), this Court has consistently held that there is no federal constitutional impediment to dispensing entirely with the grand jury in state prosecutions.   The State of Washington abandoned its mandatory grand jury practice some 50 years ago.   Since that time prosecutions have been instituted on informations filed by the prosecutor, on many occasions without even a prior judicial determination of ‘probable cause’—a procedure which has likewise had approval here in such cases as Ocampo v. United States, 234 U.S. 91 [34 S.Ct. 712, 58 L.Ed. 1231] (1914), and Lem Woon v. Oregon, 229 U.S. 586 [33 S.Ct. 783, 57 L.Ed. 1340] (1913).”  (Beck v. Washington, supra, at p. 545, 82 S.Ct. at pp. 957–958, fn. omitted.)

Subsequently, in Gerstein v. Pugh (1975) 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, the Supreme Court reaffirmed its holding that, absent arrest or other restraint, a prosecution may be maintained without any prior determination of probable cause.   After concluding that under the Fourth Amendment “a person arrested and held for trial under a prosecutor's information is ․ entitled to a judicial determination of probable cause for pretrial restraint of liberty” (Id. at p. 105, 95 S.Ct. at p. 858), the Court stated:

“In holding that the prosecutor's assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute.   Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information.  [Citations.]”   (Id. at pp. 118–119, 95 S.Ct. at p. 865.)

The Court further stated:  “Because the probable cause determination is not a constitutional prerequisite to the charging decision, it is required only for those suspects who suffer restraints on liberty other than the condition that they appear for trial.”  (Id. at p. 125, fn. 26, 95 S.Ct. at p. 869, fn. 26.)

As set forth in Gerstein v. Pugh, supra, 420 U.S. 103, 95 S.Ct. 854, a judicial determination of probable cause is only required where the state seeks to restrain an individual's liberty prior to trial.   Even where a probable cause determination is required, the determination need not be “accompanied by the full panoply of adversary safeguards—counsel, confrontation, cross-examination, and compulsory process for witness.”  (Id., at p. 119, 95 S.Ct. at p. 866.)

“These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment.   The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings.   This issue can be determined reliably without an adversary hearing.   The standard is the same as that for arrest.   That standard—probable cause to believe the suspect has committed a crime—traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof.

“ ‘Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard.   These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.

“ ‘․

“ ‘In dealing with probable cause, however, as the very name implies, we deal with probabilities.   These are not technical;  they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.   The standard of proof is accordingly correlative to what must be proved.’  [Citation.]

“․

“The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself.   It does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt․   This is not to say that confrontation and cross-examination might not enhance the reliability of probable cause determinations in some cases.   In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.”  (Gerstein, supra, at pp. 120–122, 95 S.Ct. at pp. 866–867, fns. omitted.)

The court in Gerstein also distinguished Morrissey v. Brewer, (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 as follows:

“In Morrissey v. Brewer, 408 U.S. 471 [92 S.Ct. 2593, 33 L.Ed.2d 484] (1972) ․ we held that a parolee or probationer arrested prior to revocation is entitled to an informal preliminary hearing at the place of arrest, with some provision for live testimony.  408 U.S., at 487 [92 S.Ct., at 2603];  [Gagnon v. Scarpelli] 411 U.S. [778], at 786 [93 S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973) ].   That preliminary hearing, more than the probable cause determination required by the Fourth Amendment, serves the purpose of gathering and preserving live testimony, since the final revocation hearing frequently is held at some distance from the place where the violation occurred․   Moreover, revocation proceedings may offer less protection from initial error than the more formal criminal process, where violations are defined by statute and the prosecutor has a professional duty not to charge a suspect with crime unless he is satisfied of probable cause.”  (Gerstein v. Pugh, supra, 420 U.S. 103, 121–122, fn. 22, 95 S.Ct. 854, 867, fn. 22.)

In rejecting the argument that the determination of probable cause to restrain an individual prior to trial required a full adversarial proceeding, the Gerstein court noted that those states that provided a judicial determination of probable cause for criminal prosecution had adopted various procedures for making this determination.   To the extent the probable cause determination approaches a “prima facie case of guilt,” (id. at p. 119, 95 S.Ct. at p. 866) “adversary procedures are customarily employed.”  (Id. at p. 120, 95 S.Ct. at p. 866.)   However, the court emphasized that a judicial determination of probable cause was not a prerequisite to prosecution by information.   Moreover, even where a probable cause determination is required, the court declined to set forth a particular procedure to be followed.   Rather, the court left to the states to implement their own procedures limited only by the requirement that such procedure “provide a [prompt,] fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty․”  (Id. at p. 125, 95 S.Ct. at pp. 868–869, fn. omitted.)   As the Court stated:  “[t]here is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole.”  (Id. at p. 123, 95 S.Ct. at p. 868.)

 In summary, the state is not required by federal law to afford a judicial determination of probable cause prior to a criminal prosecution.   The states are only required to afford such a determination where there is a significant pretrial restraint of liberty.   Moreover, even when a probable cause determination is required, the federal Constitution mandates no particular procedure and merely requires the procedure be prompt, fair and reliable.   For the reasons set forth below, we conclude the preliminary hearing procedures challenged by petitioner herein comply with the mandate set forth in Gerstein.   Accordingly, we reject petitioner's federal constitutional challenges.

A. Due Process

Petitioner first contends section 872, subdivision (b) denies federal due process because it creates “an unqualified and unlimited exception to the hearsay rule with no requirement that the hearsay statement have any indicia of reliability.”   He further complains section 872, subdivision (b) “permits the use of hearsay even when the hearsay declarant is available to testify.”   The gist of petitioner's claim is that due process is denied where the state is allowed to rely on hearsay evidence untested for reliability in determining whether there exists probable cause to prosecute.

 Petitioner's claim easily may be disposed of.   First, as set forth in detail above, federal law does not require the states to conduct a preliminary hearing to determine probable cause prior to prosecution by information.   Neither does federal law set forth any particular procedure to be followed should the states decide to afford a defendant the right to a preliminary hearing prior to prosecution.   To the extent a state is required to make a probable cause determination prior to restraint of liberty, the determination need only be fair and reliable.   Contrary to petitioner's implicit assertion, permitting the probable cause determination to be based on hearsay does not render the probable cause determination unfair or unreliable.   As the court stated in Gerstein, the issue of whether there is probable cause to believe the defendant committed the crime may reliably be determined by the informal means of “hearsay and written testimony.”  (Gerstein v. Pugh, supra, 420 U.S. at p. 120, 95 S.Ct. at p. 866.)

B. Confrontation and Cross-examination

 Petitioner next contends the statutory provision permitting the use of hearsay at the preliminary hearing (Pen.Code, § 872, subd. (b)) and the provision limiting a defendant's right to cross-examine hearsay declarant's (Evid.Code, § 1203.1) violates his federal constitutional right to confront and cross-examine witnesses.   The argument lacks merit.   As set forth in Gerstein, supra, there is no federal constitutional right to confront and cross-examine witnesses at a probable cause hearing.   (Gerstein, supra, at pp. 120–122, 95 S.Ct. at pp. 866–867.)

Relying on Coleman v. Alabama (1969) 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, petitioner argues that because the preliminary hearing is a critical stage of the criminal proceedings, he has a federal constitutional right to confront and cross-examine witnesses.   Petitioner's reliance on Coleman is misplaced.  Coleman does not stand for the proposition that a defendant has the right to confront and cross-examine witnesses at the preliminary hearing.   Rather, that the state provided the defendant the right to cross-examine witnesses was one of the factors the court relied on in concluding the Alabama preliminary hearing constituted a critical stage of the proceeding such that the defendant had the right to representation of counsel.  (Id. at pp. 9–10, 90 S.Ct. at pp. 2003–2004.)   As the Court explained in Gerstein v. Pugh, supra, 420 U.S. at pp. 122–123, 95 S.Ct. at pp. 867–868, two critical factors were relied on by the court in concluding the Alabama preliminary hearing constituted a critical stage of the proceeding.

“First, under Alabama law the function of the preliminary hearing was to determine whether the evidence justified charging the suspect with an offense.   A finding of no probable cause could mean that he would not be tried at all․   Second, Alabama allowed the suspect to confront and cross-examine prosecution witnesses at the preliminary hearing.   The Court noted that the suspect's defense on the merits could be compromised if he had no legal assistance for exploring or preserving the witnesses' testimony.   This consideration does not apply when the prosecution is not required to produce witnesses for cross-examination.”  (Id. at pp. 122–123, 95 S.Ct. at pp. 867–868, italics added.)

Moreover, “the question whether a particular proceeding is critical to the outcome of a trial is not the proper inquiry in determining whether the Confrontation Clause has been violated.   The appropriate question is whether there has been any interference with the defendant's opportunity for effective cross-examination.”  (Kentucky v. Stincer (1987) 482 U.S. 730, 744–745, fn. 17, 107 S.Ct. 2658, 2667, fn. 17, 96 L.Ed.2d 631.  “[T]he inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial.”  (California v. Green (1969) 399 U.S. 149, 159, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489.)

In Stincer, the defendant was excluded from a competency hearing of two child witnesses.   The issue presented was whether the exclusion of the defendant from the competency hearing violated “the defendant's rights under the Confrontation Clause of the Sixth Amendment․”  (Id. 482 U.S. at p. 732, 107 S.Ct. at p. 2660.)   The court held:

“Instead of attempting to characterize a competency hearing as a trial or pretrial proceeding, it is more useful to consider whether excluding the defendant from the hearing interferes with his opportunity for effective cross-examination.   No such interference occurred when respondent was excluded from the competency hearing of the two young girls in this case.   After the trial court determined that the two children were competent to testify, they appeared and testified in open court.   At that point, the two witnesses were subject to full and complete cross-examination, and were so examined․   Respondent was present throughout this cross-examination and was available to assist his counsel as necessary.   There was no Kentucky rule of law, nor any ruling by the trial court, that restricted respondent's ability to cross-examine the witnesses at trial.   Any questions asked during the competency hearing, which respondent's counsel attended and in which he participated, could have been repeated during direct examination and cross-examination of the witnesses in respondent's presence.”  (Kentucky v. Stincer, supra, 482 U.S. at p. 740, 107 S.Ct. at pp. 2664–2665.)

The court further stated:

“We note once again that the Kentucky Supreme Court held that respondent's confrontation rights were violated because the competency hearing was a ‘crucial phase of the trial.’  [Citation.]   It is true that the hearing was crucial in the sense that respondent may not have been convicted had the two girls been found incompetent to testify.   Nevertheless, the question whether a particular proceeding is critical to the outcome of a trial is not the proper inquiry in determining whether the Confrontation Clause has been violated.   The appropriate question is whether there has been any interference with the defendant's opportunity for effective cross-examination.   No such interference occurred in this case.”  (Id. at p. 744–745, fn. 17, 107 S.Ct. at p. 2667, fn. 17, italics added.)

Moreover, Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 reflects the United States Supreme Court's view that the right to confrontation is a trial right.   In Barber the Court stated:

“The right to confrontation is basically a trial right.   It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.   A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.”  (Id. at p. 725, 88 S.Ct. at p. 1322.)

 A review of the relevant United States Supreme Court opinions demonstrates the court has concluded the requirements of the Confrontation Clause are satisfied as long as the defendant is “assured of full and effective cross-examination at the time of trial.”  (Green, supra, 399 U.S. at p. 159, 90 S.Ct. at p. 1935.) 3  Accordingly, the provisions of Proposition 115 permitting the use of hearsay testimony and limiting the defendant's right to cross-examine the hearsay declarant at the preliminary hearing do not violate the Confrontation Clause.

C. Reciprocity

Petitioner contends Penal Code sections 872, subdivision (b) and 866, and Evidence Code section 1203.1 are unconstitutional because they are non-reciprocal.   He contends these statutes afford greater procedural rights to the prosecution than to the defendant.

In support, he relies on Wardius v. Oregon (1972) 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82.   In Wardius the United States Supreme Court held unconstitutional as a violation of due process an Oregon statute that “prevented a criminal defendant from introducing any evidence to support his alibi defense as a sanction for his failure to comply with a notice-of-alibi rule which, on its face, made no provision for reciprocal discovery.”  (Id. at pp. 471–472, 93 S.Ct. at p. 2210, fn. omitted.)   The Court noted the Due Process Clause “speak[s] to the balance of forces between the accused and his accuser.  [Citation.]”  (Id. at p. 474, 93 S.Ct. at p. 2212, fn. omitted.)   Accordingly, the “Court has ․ been particularly suspicious of state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant's ability to secure a fair trial.  [Citations.]”  (Id. at p. 474, fn. 6, 93 S.Ct. at p. 2212, fn. 6.)   The court further stated “It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.”  (Id. at p. 476, 93 S.Ct. at pp. 2212–2213.)

 Unlike Wardius, the statutes in question are not fundamentally unfair to the defendant.   As noted above, although they permit the prosecutor to meet the burden of establishing probable cause through hearsay, they in no way impact on the defendant's ability to receive a fair trial.   Although the statutes significantly impact the procedures to be followed at the preliminary hearing, they are not applicable at trial.   Accordingly, they do not operate to afford the prosecution procedural advantages that are not available to the defendant at trial.   Thus, the concerns addressed in Wardius simply do not arise under application of the statutes in question.

D. Equal Protection

Under article I, section 14 of the California Constitution, felony offenses may be prosecuted by indictment or by information.  Section 14 provides in relevant part:  “Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.”

Petitioner asserts his right to equal protection is violated where the prosecutor proceeds by information rather than indictment.  “[T]he first prerequisite to such a claim is a showing that ‘the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’  [Citation.]”  (People v. Andrews (1989) 49 Cal.3d 200, 223, 260 Cal.Rptr. 583, 776 P.2d 285.)

 Petitioner asserts greater rights are afforded at the grand jury proceedings than at a preliminary hearing.4  As petitioner correctly notes, Penal Code section 872, subdivision (b) permits the use of hearsay at the preliminary hearing.   Conversely, the grand jury, in deciding whether or not to issue an indictment, may only receive evidence that would be admissible over objection at the trial of the criminal action.  (Pen.Code, § 939.6, subd. (b).)  Petitioner asserts a person prosecuted for a felony offense by the preliminary hearing-information procedure could be forced to stand trial based solely on hearsay evidence that would be inadmissible at trial while a person prosecuted under the grand jury-indictment procedure could not be forced to stand trial based on the same evidence.

The argument lacks merit:  it rests on a distinction without a difference.   The result of the admission of hearsay under Penal Code section 872 and Evidence Code section 1203.1 is that the charged person is deprived of the opportunity to confront and cross-examine the hearsay declarant.   However, application of these two code sections at the preliminary hearing does not deprive a person of any rights he otherwise would have been afforded had the grand jury-indictment procedure been employed.   The defendant charged by the grand jury-indictment procedure has no right to appear or be represented by counsel.   Consequently, he similarly is deprived of the opportunity to confront and cross-examine any of the witnesses against him.   Further, counsel is present at the preliminary hearing to cross-examine the witnesses and to argue the context and value of the evidence that does not have to meet the admissibility requirements of trial.   Alternatively, requiring trial rules regarding admissibility of evidence at a grand jury proceeding restricts the scope of evidence in the absence of counsel.   Accordingly, proceeding by information rather than indictment does not deny equal protection.

II

State Constitutional ChallengesA. Due Process

Having concluded the new preliminary hearing procedures do not violate federal constitutional principles, under Raven v. Deukmejian, supra, the question remains whether the new preliminary hearing procedures violate state constitutional protections.   In this respect, petitioner relies primarily on Mills v. Superior Court (1986) 42 Cal.3d 951, 232 Cal.Rptr. 141, 728 P.2d 211.   In Mills the court held unconstitutional as violative of due process a statute that allowed a “finding of probable cause [to] be based in whole or in part on ․ hearsay evidence unless the accused initiate[d] ‘reasonable efforts' to secure the attendance of the witness.”  (Id. at pp. 954–955, 232 Cal.Rptr. 141, 728 P.2d 211.)

Concededly, Mills holds impairment of the defendant's right to cross-examine the hearsay declarant violated the state Constitution.   However, Mills was decided prior to passage of Proposition 115.  Mills did not consider the constitutionality of a statute permitting the use of hearsay in the context of a simultaneous constitutional amendment rendering hearsay evidence admissible at a preliminary hearing.   Accordingly, Mills does not address the issue before us and thus is not controlling.

 The California Constitution now provides:  “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.”  (Cal. Const., art. I, § 30, subd. (b).)  For the reasons set forth below, we conclude that in so amending the constitution, the drafters of Proposition 115 intended to alter the procedure for determining probable cause by allowing that determination to be based on hearsay declarations and by restricting the defendant's opportunity to cross-examine the hearsay declarant.

Hearsay evidence is defined by statute as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”  (Evid.Code, § 1200, subd. (a).)  The constitutional provision permitting hearsay evidence at the preliminary hearing places no restrictions or conditions on the admissibility of hearsay.   It does not provide, for example, that hearsay evidence is admissible at the preliminary hearing if the hearsay declarant is made available for cross-examination.   Moreover, to read such a requirement into the constitutional provision would render illusory the protections the new constitutional provision is designed to provide.   Under such a construction, the defendant could simply call the victim or witness to the stand after the hearsay declaration had been admitted.   The victim or witness would then be subject to being called to testify and to being cross-examined at both the preliminary hearing and at trial.  Article I, section 30, subdivision (b) would thus be construed out of existence because the provision permitting hearsay at the preliminary hearing would afford no protection to “victims and witnesses in criminal cases․”

Both the constitutional amendment and the statutes permitting hearsay and restricting the defendant's rights to cross-examine hearsay declarants were enacted as part of Proposition 115.   Thus, the statutes designed to implement the constitutional intent were drafted by the same individuals who drafted the constitutional amendment.   It would defy logic to conclude that the same parties that drafted the constitutional amendment would, in the same document, develop a statutory scheme that was inconsistent with the constitutional intent.

We conclude that in adding section 30, subdivision (b) to article I of the California Constitution, the drafters intended that hearsay evidence be admissible at the preliminary hearing even in the absence of the opportunity to cross-examine the declarant.   Accordingly, we hold that the statutes implementing this intent are not violative of the state constitution.

B. Separation of Powers

 Petitioner contends section 866, subdivision (a) violates the separation of powers clause (Cal. Const. art. III, § 3) by predicating the defendant's right to introduce evidence on the prosecutor's prior approval.   The argument lacks merit.   Unlike People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993, on which petitioner relies, section 866 does not allow the prosecutor in any way to restrict the magistrate's independent exercise of discretion.   Rather, section 866 provides that on the request of the prosecutor, the magistrate shall require an offer of proof from the defense regarding the relevancy of the expected testimony.  (§ 866, subd. (a).)  Once the request has been made, the magistrate must determine whether the defendant's offer of proof establishes “to the satisfaction of the magistrate, in his or her sound discretion,” that the evidence is relevant to the probable cause determination.

C. Article I Section 28(d)

 Equally unavailing is petitioner's assertion that section 866, subdivision (a) on its face violates article I, section 28(d) of the California Constitution which provides:  “relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings․”

“The issues before a magistrate on preliminary hearing are whether a public offense has been committed and whether there is probable cause to believe the defendant is guilty thereof.  (Pen.Code, §§ 871, 872.)”  (People v. Williams (1989) 213 Cal.App.3d 1186, 1197, 262 Cal.Rptr. 303.)

We direct ourselves to a specific argument made by petitioner.   Summarily, petitioner maintains that in providing four categories of defense evidence that are admissible at the behest of the defense, section 866 precludes other “relevant” evidence from being admitted.   Therefore, the substance of his argument is that exclusion of relevant evidence that does not fall within the scope of those four categories violates article I, section 28(d) in that it is a statutory restriction on a constitutional amendment.

Assuming section 866 did exclude other relevant evidence we might be persuaded to further explore petitioner's argument.   However, our examination of the four categories of section 866:  “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” does not disclose any evidence relevant to the probable cause inquiry that falls outside the perimeters of those four categories.   Essentially, we fail to discern what relevant evidence conceivably could exist that would not be included within those four categories.   Likewise, petitioner, other than contending that the four categories would exclude other relevant evidence, fails to cite to us a single example of any evidence relevant to the probable cause inquiry that would not be included within the four categories.   We, therefore, conclude the specification of the four categories does not exclude any evidence relevant to the probable cause inquiry.   Thus, petitioner's argument does not support a conclusion that section 866 violates article I section 28(d) of the California Constitution.5

III

Request to Call Victim as a Witness

Petitioner further asserts the magistrate erred in refusing his request to call Ms. P. as a witness.   He contends his offer of proof was sufficient to satisfy the requirements of section 866 subdivision (a).

 As previously noted section 866, subdivision (a) provides that the offer of proof must be sufficient to satisfy the magistrate that the proposed witness's testimony, “if believed, would be reasonably likely to establish as 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.”   Because petitioner's offer of proof was deficient, the court did not err in refusing to call Ms. P. as a witness.

As a general rule:

“[a]n offer of proof must consist of material that is admissible, it must be specific in indicating the purpose of the testimony, the name of the witness and the content of the answer to be elicited.

“ ‘Where required, the offer of proof must consist of matter which would be admissible.   If a general offer is made to prove a number of things, without segregation, and it includes some inadmissible matter, the entire offer may be rejected․

“ ‘․

“ ‘The offer of proof must be specific in its indication of the purpose of the testimony, the name of the witness, and the content of the answer to be elicited.   The judge may properly reject a general or vague offer which does not indicate with precision the evidence to be presented and the witnesses who are to give it․’ ”  (Semsch v. Henry Mayo Newhall Memorial Hospital (1985) 171 Cal.App.3d 162, 167, 216 Cal.Rptr. 913.)

In an attempt to demonstrate Ms. P's testimony would be relevant to the probable cause determination, defense counsel stated:  “It's our contention that nothing could be more relevant than the testimony of the complaining witness ․ to the acts that are complained here in this case.”   He further stated:  “I would make an offer of proof to the Court that I believe that if the prosecution witness in this case were to testify truthfully, that it would lead to impeachment testimony of her or of the statements that she as the declarant as [sic] hearsay statements were admitted in this proceeding, could tend to impeach statements attributed to her.   Any more specific of an offer of proof at this juncture, your Honor, I'm not prepared and unable to do.”

In response to the court's inquiry regarding the content of the proposed testimony, defense counsel stated neither he nor anyone from his office had been able to contact Ms. P. and thus he was “unable to indicate to the Court ․ specifically what her testimony would be.”

In now claiming his offer of proof was sufficient, petitioner merely states “the offer of proof proffered by the defendant was sufficient to require that the magistrate grant a continuance to secure the witnesses' attendance.”   He claims his representation that “if [Ms. P] testified truthfully, [she] would contradict her earlier statements to the officer” was sufficient to satisfy the requirements of section 866.

The offer of proof lacked specificity.   Aside from failing to indicate the content of the proposed testimony, petitioner failed specifically to indicate the purpose of the testimony.   He did not assert the testimony would be relevant either to establishing a defense or to negating an element of the crime.   Petitioner's vague assertion that the victim's testimony “would contradict her earlier statements” is speculative and insufficient to constitute an offer of proof.

IV

Continuance **

Disposition

For the reasons stated, we find petitioner's challenges to the constitutionality of Proposition 115 under the federal and state Constitutions unpersuasive.   The petition is denied.

FOOTNOTES

1.   The California Supreme Court recently granted review in Nollins v. Superior Court (SO18273).   Nollins held the use of hearsay at the preliminary hearing, as provided for in Proposition 115, did not violate the defendant's federal constitutional rights.   Nollins was issued prior to the Supreme Court opinion in Raven and thus did not consider whether the state Constitution provided an independent ground for finding various provisions of Proposition 115 unconstitutional.

2.   Evidence Code section 1203 provides:  “(a) The declarant of a statement that is admitted as hearsay evidence may be called and examined by any adverse party as if under cross-examination concerning the statement.  [¶] (b) This section is not applicable if the declarant is (1) a party, (2) a person identified with a party within the meaning of subdivision (d) of Section 776, or (3) a witness who has testified in the action concerning the subject matter of the statement.  [¶] (c) This section is not applicable if the statement is one described in Article 1 (commencing with Section 1220), Article 3 (commencing with Section 1235), or Article 10 (commencing with Section 1300) of Chapter 2 of this division.  [¶] (d) A statement that is otherwise admissible as hearsay evidence is not made inadmissible by this section because the declarant who made the statement is unavailable for examination pursuant to this section.”

3.   In argument, petitioner cited Hawkins v. Superior Court (1978) 22 Cal.3d 584, 592–593, 150 Cal.Rptr. 435, 586 P.2d 916, wherein the court stated:  “The denial of a post-indictment preliminary hearing deprives the defendant of ‘such fundamental rights as counsel, confrontation, the right to personally appear, the right to a hearing before a judicial officer, and the right to be free from unwarranted prosecution.   These guarantees are expressly or impliedly grounded in both the state and federal Constitutions and must by any test be deemed “fundamental” ’ [citation].”  (Italics added.)Petitioner argues the above underscored language should be construed to mean the court held there was a federal constitutional right to confront and cross-examine witnesses any time the states require a judicial determination of probable cause prior to prosecution.   However, the same language could also be construed simply as a recognition that because the state afforded numerous rights—including the right to confrontation and cross-examination—the California preliminary hearing constituted a critical stage of the proceeding.   Although the state is not required to provide a defendant with a right to confrontation and cross-examination or other rights traditionally afforded at trial, once it does so, the preliminary hearing becomes a “critical stage” of the proceedings thus implicating the federal constitutional right to representation of counsel.  (Coleman, supra, 399 U.S. 1, 90 S.Ct. 1999.)   We conclude the second construction of the above underscored language was intended as it is consistent with federal law.

4.   In Hawkins v. Superior Court, supra, 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916, the California Supreme Court held the denial of a post-indictment preliminary hearing denied defendants in felony prosecutions equal protection under the California Constitution.   However, pursuant to Proposition 115, article I, section 14.1 of the California Constitution now provides:  “If a felony is prosecuted by indictment, there shall be no postindictment preliminary hearing.”

5.   We are not called upon to decide whether the threshold condition of admissibility that the evidence be “reasonably likely to establish an affirmative defense,” etc., sets a probative value or other condition upon the admissibility of evidence than the definition provided by Evidence Code section 210 which provides “ ‘[r]elevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”

FOOTNOTE.   See footnote *, ante.

ARDAIZ, Acting Presiding Justice.

DIBIASO and HARRIS, JJ., concur.