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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Appellant, v. Raul C. RETAMOZA, et al., Defendants and Respondents.

No. E008806.

Decided: February 25, 1992

Grover C. Trask, II, Dist. Atty., Riverside, and Thomas K. Eckhardt, Deputy Dist. Atty., for plaintiff and appellant. Michael J. Kennedy, Palm Springs, for defendant and respondent Raul C. Retamoza. Joseph Taylor, Public Defender, Riverside, and Jeffrey D. Schwartz, Deputy Public Defender, for defendant and respondent Eduardo Enrique Diaz. Appellate Defenders, Inc., and Joyce P. Meisner, under appointment by the Court of Appeal, for defendant and respondent Fernando Ozuna Quintero. Gary M. Mandinach, on behalf of the California Public Defenders' Ass'n, as amicus curiae, for defendant and respondent Retamoza.



The defendants in this matter (hereinafter referred to by their last names—Retamoza, Diaz and Quintero) were originally charged in an information with one count of selling and transporting cocaine (Health and Saf.Code, § 11352), which count was attended by the enhancement allegations that:  (a) a principal in the commission of the offense was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1);  and (b) that in the commission of the offense the defendants had sold and possessed for sale more than three pounds of a substance containing cocaine within the meaning of section 11370.4, subdivision (a)(1) of the Health and Safety Code.

This information was set aside by the trial court pursuant to motions brought by the three defendants under section 995 of the Penal Code.1  The underlying basis of the defendants' section 995 motion(s) was their contention that they had been improperly held over for trial following a “preliminary/probable cause hearing” which had produced almost nothing but inadmissible hearsay evidence.   The People have appealed from the setting aside of the information.   The People argue here, as they did in the court below, that provisions of “Proposition 115” (the “Crime Victims Justice Reform Act”) expressly permit the use of evidence such as that which is here in question in “preliminary/probable cause hearings.”

We shall conclude (with the insight provided by California Supreme Court decisions which had not yet been filed when the appellate briefs in this case were filed) that neither the People's position nor the defendants' position regarding the impact of Proposition 115 on the use of hearsay evidence in “preliminary/probable cause hearings” is entirely correct.2  We shall reverse the trial court's section 995 order(s) and remand the matter to the trial court.


On July 12, 1990, Retamoza, Diaz and Quintero were charged by a criminal complaint with the offenses/enhancements set forth above in the prefatory paragraphs of this opinion.   On July 26–27, 1990, a preliminary hearing was conducted in the matter, at the conclusion of which the defendants were bound over for trial in the Superior Court.

The primary witness for the People at the preliminary hearing was Officer David Pike of the Riverside County Sheriff's Department (hereinafter, Pike).   At that hearing, Pike testified (over continuous objections by all three defendants on hearsay and constitutional “right to confrontation” grounds) to the following effect:

(1) He had been a law enforcement officer with the Riverside County Sheriff's Department for over ten years, and in that time had acquired extensive experience and training in dealing with drug-related criminal activities.

(2) On or about July 9, 1990, Pike had been assigned by the sheriff's department to work as a narcotics cross-agent with the local Drug Enforcement Administration (DEA) Task Force.   On that date, he received an assignment from DEA special agent Clayton to participate in an investigation into a matter of narcotics distribution in the Palm Springs area.

(3) On that same day, in connection with his assignment, Pike received a telephone call from DEA special agent McConnell.   During the ensuing telephone conversation, McConnell told Pike “that he had an informant who was [sic] orchestrated a deal to occur in Palm Springs for the purchase of four kilos of cocaine.”   McConnell further informed Pike that the informant had mentioned one “Edwardo [sic] Diaz” as a person with whom he (the informant) had had contact in negotiating the narcotics transaction.

(4) Pike had no knowledge of McConnell's experience as a law enforcement officer, including how long he had been a law enforcement officer or his law enforcement training [nor was any such information otherwise adduced during the preliminary hearing].

(5) Pike was only “very vaguely” familiar with the informant to whom McConnell was referring, and had never verified for himself the credibility of that informant.   However, McConnell told Pike that he (McConnell) had had previous dealings with the informant and that he (the informant) was “reliable.”

(6) The agents arranged a surveillance/“buy-bust” to take place at the Cedar Creek Inn in Palm Springs during the early evening hours of the next day, July 10, 1990.   McConnell was to participate together with the informant in making the “buy” inside the restaurant, while Pike was to supervise the surveillance and “cover” outside the restaurant (consisting of several officers).

(7) McConnell later told Pike that the following conversations/events occurred inside the restaurant during the “buy-bust”:

(a) He and the informant met Diaz and Retamoza.   He spoke primarily with Diaz, who appeared to be translating for Retamoza.

(b) Diaz indicated that if the initial purchase went well, he wanted to establish a cocaine distribution network in the Las Vegas area and sell at least ten kilos of cocaine to McConnell on a weekly or biweekly basis.

(c) McConnell displayed (“flashed”) $100,000 in cash to Diaz and Retamoza.   Thereafter, Retamoza removed a sample of “a white powdery substance” from his pocket, handed it to Diaz, who handed it to the informant, who then handed it to McConnell.

(8) Pike observed Retamoza and Diaz leave the restaurant and return “a couple of times” following the meeting with McConnell and the informant.   The two defendants were traveling in an orange van.   At approximately 8 o'clock in the evening, Diaz returned to the restaurant in the orange van, and Retamoza and Quintero arrived back at the restaurant shortly thereafter in a Chevrolet.   Pike observed Retamoza enter the restaurant while Quintero remained outside along the side of the parking lot where he walked back and forth next to a bank of public telephones.

(9) McConnell later told Pike that Diaz had joined him in the restaurant when he had returned in the orange van and that Retamoza approached the two of them as soon as he entered the restaurant and asked McConnell “Listo?”—which is Spanish for “Ready?”—to which McConnell responded in the affirmative.

(10) McConnell later told Pike that the following events occurred next:

(a) He and Retamoza left the restaurant and went to the Chevrolet in the parking lot.

(b) Retamoza then opened the trunk of the Chevrolet and showed McConnell a bag containing four kilos of suspected cocaine.

(11) Pike then heard on the communications radio that McConnell had given the signal for surrounding officers to detain and arrest the three defendants.   By the time Pike actually reached the arrest scene from his surveillance point, all three defendants had been arrested by other officers.

All counsel at the preliminary hearing stipulated to the technical analysis testimony which could have been adduced by the People at that hearing to the effect that the suspected narcotic substances involved in the events here in issue contained cocaine.

The magistrate ordered the three defendants held to answer on the charges set forth in the complaint.

Thereafter, all three defendants moved the Superior Court pursuant to section 995 to set aside the information brought against them on the ground that insufficient admissible evidence had been adduced at the preliminary hearing to establish probable cause to hold them to answer to the People's charges.

Following extensive briefing and oral argument on the matter, the trial court granted the defendants' section 995 motions.   The gist of the trial court's ruling was summarized by that court as follows:

“In summary, it's the ruling of the Court that Proposition 115 created an additional hearsay exception at probable cause hearings for qualified police officer testimony and that Evidence Code section 1201, multiple hearsay section, is still good law, and a police officer otherwise qualified to testify to hearsay under the auspices of Proposition 115 may not testify to multiple hearsay unless it qualified under section 1201 of the Evidence Code.”

The People have appealed from the trial court's section 995 orders setting aside the information as to the three defendants—arguing, as they did below, that Proposition 115 created a “wide open” preliminary hearing process in which virtually any sort of hearsay evidence can be introduced, subject to the magistrate's inherent power to weigh the credibility and trustworthiness of that evidence.   As we discuss below, our understanding of Proposition 115 and its impact on the admissibility of hearsay evidence in preliminary hearings falls somewhere in between that of the trial court and that of the People.   Additional facts will be referred to, as needed, in the discussion which follows.





 The defendants note that section 872, subdivision (b) permits a finding of probable cause in a preliminary hearing (that is, in functional effect, permits a criminal defendant to be held to answer in the superior court to a criminal charge set forth in an information ) on the basis of hearsay evidence which might well be inadmissible in the following trial, while criminal defendants who are charged by a criminal indictment returned by a grand jury are assured by section 939.6 that the evidence which was adduced against them before the grand jury was of “trial quality.” 3  The defendants argue that this disparate treatment deprives criminal defendants who are obliged to answer criminal informations of the equal protection of the law.

It is true that “ ‘The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’  [Citations.]”   (In re Gary W. (1971) 5 Cal.3d 296, 303, 96 Cal.Rptr. 1, 486 P.2d 1201.)   However, it is also true that like treatment is not the same thing as identical treatment.   In the preliminary hearing/information process, a criminal defendant may well be faced with having to answer charges on the basis of “lesser quality” evidence, but he is represented at the preliminary hearing by counsel who stands prepared and ready to confront by cross-examination the investigating/testifying law enforcement officer regarding the reliability of the hearsay testimony and to call witnesses to rebut such testimony.   Counsel also has the right to argue the relevance and weight of this evidence.   In the grand jury/indictment process, a criminal defendant is not faced with having to answer charges on the basis of “lesser quality” evidence, but neither is he represented by counsel (nor, indeed, does he himself have a right to appear) to challenge whatever evidence is presented to the grand jury or to argue its weight and persuasiveness.

On balance, we cannot say that the preliminary hearing/information process and the grand jury/indictment process are so disparate in their treatment of criminal defendants that there is not a rational basis for such a procedural distinction and that the difference constitutes a violation of the defendants' right to the equal protection of the law.4



 Finally, the defendants argue that the trial court was entirely correct in granting their section 995 motions because the magistrate had found probable cause to hold them to answer the charges on the basis of indiscriminately admitted multiple hearsay (statements made to Pike by McConnell of statements made to McConnell by someone else—in particular, if not especially, a confidential informant who could not be personally “vouched for” by Pike) which was inadmissible even assuming, arguendo, that section 872, subdivision (b) was perfectly valid.

Whitman v. Superior Court (1991) 54 Cal.3d 1063, 2 Cal.Rptr.2d 160, 820 P.2d 262 does not clearly address and resolve the issue of multiple hearsay under section 872, subdivision (b).   Indeed, Whitman, in dicta, contains several arguably conflicting statements on the issue:

(1) On the one hand:

“Moreover, to allow testimony by noninvestigating officers or readers would seemingly sanction a form of double or multiple hearsay beyond the contemplation of the framers of, and voters for, Proposition 115.  (See Evid.Code, § 1201 [multiple hearsay admissible only if each hearsay statement admissible under hearsay rule exception].)  Although such multiple hearsay was not present in this case, we doubt that Proposition 115 was intended to sanction a procedure whereby a noninvestigating officer, lacking any personal knowledge of the matter, nonetheless would be permitted to relate not only what the investigating officer told him, but also what the other witnesses told the investigating officer.   It is noteworthy that although Proposition 115 created an exception to the basic hearsay rule contained in Evidence Code section 1200 (see new Pen. Code, § 872, subd. (b)), the measure did not purport to create a similar exception for the multiple hearsay rule of Evidence Code section 1201.

“In addition, an interpretation of Proposition 115 that would allow ․ multiple hearsay testimony would raise constitutional questions that we can and should avoid by limiting admissible hearsay testimony to testimony by qualified investigative officers․ [S]ubstantial additional objections to the reliability of the evidence might arise if multiple hearsay were involved, and the defendant were also deprived of the opportunity to meaningfully cross-examine the testifying officer regarding the circumstances under which the out-of-court statement was made.”  (Whitman, at p. 1074, 2 Cal.Rptr.2d 160, 820 P.2d 262, emphasis added.)

(2) On the other hand:

“In the foregoing discussion [concerning “preliminary/probable cause hearing” testimony by noninvestigating or “reader” law enforcement officers, including the multiple hearsay implications of allowing such testimony], we construe Proposition 115 to allow an investigating officer to relate at the preliminary hearing any relevant statements of victims or 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.”  (Whitman, at p. 1075, 2 Cal.Rptr.2d 160, 820 P.2d 262, emphasis added.)

 We must attempt to understand and reconcile the various portions of Whitman so as to give the entirety of the opinion full application.   We construe Whitman to mean that an investigating officer who meets the technical qualifications of section 872, subdivision (b) (such as Pike) can testify to multiple hearsay in a preliminary hearing only if the magistrate is persuaded that that officer is sufficiently knowledgeable “of the crime or the circumstances under which the out-of-court statement was made” so as to be able to “meaningfully assist the magistrate in assessing the reliability of the statement.”   The magistrate must make this determination as to each “level” of a multiple hearsay statement as to each defendant which is before the court in the preliminary hearing.5


The trial court did not have the advantage of the Supreme Court's guidance in Whitman when it originally ruled on the defendants' section 995 motions.   The People, every bit as much as criminal defendants, are entitled to fully informed rulings on section 995 motions which involve the application of the proper rules concerning the admissibility of evidence at preliminary hearings.   In order to ensure such informed and properly guided rulings in this case, the matter must be remanded to the trial court for reconsideration in light of the analysis and conclusions herein provided.


The section 995 orders entered hereinbelow are reversed.   This matter is remanded to the trial court for a reconsideration and redetermination of defendants' section 995 motions consistent with the views set forth in this opinion concerning the admissibility of testimony by a qualifying law enforcement officer in a preliminary hearing as to any level of hearsay evidence.


1.   Unless otherwise indicated, all statutory section citations refer to the Penal Code.

2.   When we refer to “the defendants' position” or “the defendants' argument” in this opinion, we are collectively referring to the arguments made by any one or all of the defendants, as well as by the amicus who has appeared on defendant Retamoza's behalf.   No defendant has made an argument or taken a position in this matter which is fact specific to that particular defendant or which is contradictory to an argument made or a position taken by another defendant.

FOOTNOTE.   See footnote *, ante.

3.   Section 939.6 provides, in pertinent part:  “(a) Subject to subdivision (b), in the investigation of a charge, the grand jury shall receive no other evidence than such as is:  (1) Given by witnesses produced and sworn before the grand jury;  ․ (b) The grand jury shall receive none but evidence that would be admissible over objection at the trial of a criminal action, but the fact that the evidence which would have been excluded at trial was received by the grand jury does not render the indictment void where sufficient competent evidence to support the indictment was received by the grand jury.”

4.   We note that our conclusion in this regard is consistent with our Supreme Court's analysis of a related issue in Bowens v. Superior Court (1991) 1 Cal.4th 36, 2 Cal.Rptr.2d 376, 820 P.2d 600.   In that case, the Supreme Court confronted the question whether newly added section 14.1 of article I of the California Constitution (which provides:  “If a felony is prosecuted by indictment, there shall be no postindictment preliminary hearing.”) violates the equal protection of law clauses of the federal and California Constitutions.   It held there was no such violation.

5.   The fact that a hearsay declarant may be a law enforcement officer who does not meet the technical qualifications of section 872, subdivision (b) and who would not be permitted to testify in a preliminary hearing as an investigating officer does not make his or her hearsay statements inadmissible as first level or multiple level hearsay.

TIMLIN, Associate Justice.

RAMIREZ, P.J., and DABNEY, J., concur.

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