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Court of Appeal, Second District, Division 5, California.

Javier CASTRO, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, The PEOPLE, Real Party in Interest.

No. B063835.

Decided: March 05, 1992

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Patrick Thomason and Henry J. Hall, Deputy Public Defenders, for petitioner. No appearance for respondent. Ira Reiner, Dist. Atty., Donald J. Kaplan and Eugene D. Tavris, Deputy Dist. Attys., for real party in interest.


Defendant seeks a writ of prohibition directing the respondent court to grant his motion to set aside the information charging him with murder with special circumstances and robbery (Pen.Code, § 995),1 claiming inadmissible hearsay testimony was erroneously admitted at his preliminary hearing.   Because the superior court judge correctly denied the dismissal motion, the petition is summarily denied.


At defendant's preliminary hearing, which was held on October 17, 1991, after a pathologist testified as to the cause of the decedent's death, Officer Vince Sierra of the Southern California Rapid Transit District Police testified concerning his investigation of the robbery homicide.   On October 16, 1991, the day before the preliminary hearing, he took and completed a course certified by the Commission on Peace Officer Standards and Training (POST) on Proposition 115.   The class consisted of a videotape presentation and Officer Sierra also completed a “workbook.”   A test was administered and Officer Sierra successfully passed the examination.   At the preliminary examination, the magistrate examined the officer's workbook and a notice of successful completion of the course.

Officer Sierra then testified about his investigation which commenced on August 18, 1991, at 7:15 a.m.   He was driving on Olive Street near 7th Street in Downtown Los Angeles when he was flagged down by Darryl Quinn.   According to Mr. Quinn, he saw defendant quickly approach the decedent from behind.   Defendant pushed and knocked the decedent to the ground.   The decedent, according to Mr. Quinn, was pushed “hard.”   The decedent fell forward.   Mr. Quinn saw defendant reach into the right rear pants pocket of the decedent and remove a wallet.   Mr. Quinn used the word “rob” to describe defendant's conduct.   Mr. Quinn then observed a man named Anthony Isaiah “detain” defendant.   Mr. Isaiah was holding defendant by the left wrist.   Mr. Quinn said he joined Mr. Isaiah in restraining defendant.

After the foregoing was related by Mr. Quinn, Officer Sierra then took defendant into custody.   The decedent, who appeared to be “very much in pain” and was making “a lot of noise as if he was in pain,” said, “ ‘The guy tried to rob me.’ ”   Officer Sierra did not place the decedent's spontaneous declaration in his police report because, when the report was prepared, Officer Sierra “didn't think much of it at the time.”   Additionally, defendant made two spontaneous statements in the Spanish language which were not included in the officer's arrest report.   Officer Sierra described the statements in the following manner:  “ ‘I don't know why I did it,’ and, ‘Is he okay,’ meaning am I subject to the effect, am I going to be in trouble for what happened to him.”   At another point, Officer Sierra described the statements as follows:  “Something to that—more to the effect, he was more concerned about the degree of injury that the victim sustained, not too much as to—he just kept on asking me what his condition was and if he was going to be in any trouble for what happened to the victim.”   Officer Sierra did not ask defendant any questions.   When asked why he did not include defendant's spontaneous declarations in his report, Officer Sierra said:  “Again, I didn't ask him anything.   It was something that I don't come across.”

The magistrate overruled defense counsel's timely and specific objection which was articulated as follows:  “Your honor, I would object to Officer Sierra testifying to a hearsay statement.   I think the intent of Prop. 115 is that a person [having] taken a course prior to doing interviewing.   After-the-fact taking of the test doesn't help the officer in his expertise as to how to interview witnesses, et cetera, which is the intent behind the 115, so I don't think this officer was pre-qualified before the date of the interview, and I don't think he qualifies as a hearsay relator.”   The magistrate overruled the objection noting that there was no requirement that the POST-certified class be completed prior to conducting an investigation.   Additionally, the magistrate noted that the failure of the officer to have completed the course until the day prior to the preliminary examination was a matter which would go to the weight of the testimony rather than a fact which would act as a complete bar to its admissibility.   Defendant's dismissal motion (§ 995) was denied in superior court and defendant then filed the present prohibition petition.   We issued an order to show cause and held oral argument so as to rule on the merits of the petition.  (Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024–1025, 269 Cal.Rptr. 720, 791 P.2d 290.)


Section 872, subdivision (b), which was enacted as part of Proposition 115, the “Crime Victims Justice Reform Act,” provided in pertinent part, “[T]he 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 [POST] which includes training in the investigation and reporting of cases and testifying at preliminary hearings.” 2  Since Officer Sierra had only two years of law enforcement experience, he could not testify to any hearsay statements without having completed the required POST-approved training course.

 Petitioner contends that Officer Sierra's hearsay testimony should have been excluded because even though he completed the required course before testifying at the preliminary hearing, section 872, subdivision (b) requires that the class be completed prior to conducting an investigation.   We decline to adopt petitioner's interpretation of the statute, for several reasons.

First, because the express language of section 872, subdivision (b) does not require that the POST-approved course be completed before conducting an investigation or making observations, defendant's argument is without merit.   In Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934, our Supreme Court held:  “We begin with the fundamental rule that our primary task is to determine the lawmakers' intent.  [Citation.]  In the case of a constitutional provision adopted by the voters, their intent governs.  [Citations.]  To determine intent, ‘ “[t]he court turns first to the words themselves for the answer.” ’  [Citations.]  ‘If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).’  [Citation.]”   In applying a statute, the “[w]ords used in a statute ․ should be given the meaning they bear in ordinary use.  [Citations.]”  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)   The language of section 872, subdivision (b) requires as a precondition to the admissibility of hearsay evidence, that the “officer testifying as to hearsay statements ․ have completed a training course certified by [POST]․”  The statutory language merely requires the “testifying” officer have completed the course, it does not require that the course be completed before a particular police report is prepared, an investigation is commenced, or an officer makes observations which are relevant to the charge offense.3

Second, because the literal application of the language in section 872, subdivision (b) is not contrary to the apparent intent of the voters in approving Proposition 115, the magistrate's exercise of discretion must be upheld.   In Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299, our Supreme Court held:  “Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute.   The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.  [Citations.]  An interpretation that renders related provisions nugatory must be avoided [citation];  each sentence must be read not in isolation but in light of the statutory scheme [citation];  and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation].”   Utilizing this general statement of law, we conclude that an interpretation which allows Officer Sierra to present hearsay testimony is not contrary to the intent apparent in the statute.   There are several sources of evidence concerning the apparent intent of the voters as it relates to preliminary examination.   First, section 1 of the initiative constituted a statement of the drafters' intent in formulating the initiative.   Section 1 of the initiative contained a finding by the “people of the State of California” ․ “that comprehensive reforms are needed in order to restore balance and fairness to our criminal justice system” and further findings that certain California Supreme Court decisions and statutes “have unnecessarily expanded the rights of accused criminals far beyond that which is required by the United States Constitution, thereby unnecessarily adding to the costs of criminal cases, and diverting the judicial process from its function as a quest for truth.”   Moreover, section 1 of the initiative stated that the goals to be pursued in enacting the initiative were “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.”  (Crime Victims Justice Reform Act, Prop. 115, § 1, subds. (a), (b), (c).)   Additionally, our Supreme Court has noted that a principal purpose of Proposition in 115 was to set aside its own prior rulings in the criminal justice field in general (Raven v. Deukmejian (1990) 52 Cal.3d 336, 348, 276 Cal.Rptr. 326, 801 P.2d 1077) and its impact was to vitiate its prior ruling concerning the inadmissibility of hearsay evidence at preliminary examinations in Mills v. Superior Court (1986) 42 Cal.3d 951, 956–960, 232 Cal.Rptr. 141, 728 P.2d 211.  (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1076–1077, 2 Cal.Rptr.2d 160, 820 P.2d 262.)   Moreover, article I, section 30, subdivision (b) of the State Constitution, the constitutional provision enacted as section 5 of Proposition 115, which allows the Legislature or the voters to permit the use of hearsay evidence at preliminary examinations states:  “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.”

Given these purposes, we conclude under the authority of Lungren, that the literal words utilized in the statute do not contravene the purposes underlying the hearsay provisions of the initiative.   The literal words of section 872, subdivision (b) which permit an investigating officer to make observations and then later both complete the POST-certified course and offer hearsay evidence concerning her or his observations as well as those of other witnesses contravenes none of the purposes of the statute.   The words read literally are not contrary to the provisions of section 1 of the initiative as set forth above.   The use of hearsay testimony as occurred in the present case does not violate our Supreme Court's statement of Legislative purpose declared in Raven, i.e., the proposition was designed to “nullify” particular California Supreme Court decisions.  (Raven v. Deukmejian, supra, 52 Cal.3d at p. 348, 276 Cal.Rptr. 326, 801 P.2d 1077.)   Finally, as to the stated purpose of the Proposition 115 hearsay rule, “to protect victims and witnesses in criminal cases” (Cal. Const., art. I, § 30, subd. (b).)  Officer Sierra's hearsay testimony in the present case did not violate this purpose.   Accordingly, no sound justification existed to depart from the “plain meaning” of the words in section 872, subdivision (b) and in essence, add language which requires that the POST-course be completed by the testifying officer prior to his or her investigation of the crime.

Third, defendant argues the purpose of the POST-training requirement is to insure the reliability of hearsay testimony and that interpretation which allows a law enforcement officer to testify when she or he receives the training specified in section 872, subdivision (b) after preparing a police report “is antithetical to the goals of that statute.”   This argument lacks merit for several reasons.   To begin with, because the statute is unambiguous, judicial construction of section 872, subdivision (b) is unwarranted.   (Delaney v. Superior Court, supra, 50 Cal.3d at p. 798, 268 Cal.Rptr. 753, 789 P.2d 934.)   Moreover, there is no evidence the voters intended to require the class be completed before making an observation or commencing an investigation as a precondition to the officer later presenting hearsay testimony.   Additionally, in Whitman v. Superior Court, supra, 54 Cal.3d at p. 1073, 2 Cal.Rptr.2d 160, 820 P.2d 262, our Supreme Court indicated that the purpose of the POST class requirement was to “enhance the reliability of hearsay testimony at preliminary hearings.”  (Original italics.)   The reliability of hearsay evidence is enhanced when the course is completed before the “testimony” is presented at the preliminary examination.   The purpose of the POST course requirement is furthered when the class is completed before the “hearsay testimony” is given to the magistrate.   Furthermore, statutory construction which in essence rewrites section 872, subdivision (b) to insert a requirement that the course be completed before an investigation is commenced is improper.  (Estate of Simmons (1966) 64 Cal.2d 217, 221, 49 Cal.Rptr. 369, 411 P.2d 97;  Code Civ.Proc., § 1858.)   Finally, contrary to defendant's contention, apart from the failure to have placed the extra-judicial statements in the report, there was no evidence anything Officer Sierra said was unreliable.   In fact, in the present case, the class had its desired impact—when he testified Officer Sierra corrected the omissions in the report by informing the magistrate of the extra-judicial evidence linking defendant to the charged crimes.   The problems present in the use of testimony by “mere ‘readers' ” (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1073, 2 Cal.Rptr.2d 160, 820 P.2d 262) who are non-investigating officers who have insufficient knowledge of the crime so as to meaningfully assist the magistrate in assessing the reliability of the hearsay statement are not present in this case.   Officer Sierra was very knowledgeable about the circumstances of his investigation.   Given these considerations, we conclude that the magistrate did not abuse her discretion in overruling defendant's hearsay objection.


The petition for writ of prohibition is summarily denied.


1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   The Commission on Peace Officer Standards and Training is established pursuant to section 13500, and among its duties on the establishment of minimum standards of competence and training of peace officers.  (§§ 13510, 13510.5)  Pursuant to section 13506, the commission is authorized to promulgate regulations which appear at title 11, California Code of Regulations sections 1000–1081.   On January 18, 1991, the commission adopted what had previously been an emergency rule concerning the content of the course taken by Officer Sierra.   The commission described the course as follows:  “Identifies the POST Hearsay Testimony Course as the ‘training course certified by [POST]’ referred to in Penal Code Section 872(b).   Specifies that the 1–hour course will include the new role for officers at preliminary hearings, rules of evidence, and need for accuracy and thoroughness of investigations;  reporting and documenting crimes to facilitate hearsay testimony in preliminary hearings;  and testifying to hearsay statements in a preliminary hearing.”   Effective June 29, 1991, the commission adopted the current course criteria for the training concerning Proposition 115.   The current description of the course is as follows:  “Hearsay Testimony Course—1 hour [¶] (A) The new role for officers at preliminary hearings, rules of evidence, and the need for accuracy and thoroughness of investigations;  [¶] (B) Reporting and documenting crimes to facilitate hearsay testimony in preliminary hearings;  [¶] (C) Testifying to hearsay statements in a preliminary hearing;  [¶] This course must be completed by all law enforcement officers who have less than five years of service and who wish to testify to hearsay evidence in preliminary hearings as required by 872(b) PC” (Cal.Code Regs., tit. 11, § 1081, subd. (a)(19)).

3.   Although not statutorily required, the better policy is to insure that law enforcement officers presenting hearsay testimony at preliminary examinations have received the POST-training prior to initiating an investigation.   A key to effective law enforcement is training which is solid in content, realistic, on-going, and verifiable in that it is the subject of testing.   Given the role of the preliminary hearing in the criminal justice process, the best course of action is for law enforcement officers to receive Proposition 115 training before conducting felony investigations.

TURNER, Presiding Justice.

BOREN and GRIGNON, JJ., concur.

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