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Court of Appeal, Second District, Division 4, California.

Steven Carl GUADALUPE, Petitioner, v. The SUPERIOR COURT FOR the COUNTY OF LOS ANGELES, Respondent. The PEOPLE, Real Party in Interest.

Civ. 63646.

Decided: June 14, 1982

David A. Stephens, North Hollywood, and Paul Arthur Turner, Encino, for petitioner. John K. Van De Kamp, Dist. Atty. of Los Angeles County and Donald J. Kaplan and John W. Messer, Deputy Dist. Attys., for real party in interest. No appearance for respondent.

This is a proceeding in mandate initiated by a defendant in a murder prosecution seeking pretrial review of an order denying in part his motion to exclude from evidence identification testimony of an eyewitness on the ground the testimony is an unreliable product of hypnosis.

By information defendant was charged with, among other things, murder committed September 19, 1979 while he was engaged in the commission of robbery (Pen.Code § 190.2, subd. (a)(17)) and use of a firearm (Pen.Code § 12022.5).   Prior to trial defendant filed a motion to exclude the testimony of Steven Eggleston.   The text of the motion is not in the record, but the substance of the motion and Eggleston's connection with the case are not disputed in this proceeding.

The facts upon which the motion was decided are derived from the testimony received at the hearing in the Superior Court which commenced September 21, 1981.

On September 19, 1979 at about 10 or 11 o'clock in the evening, Eggleston drove a pickup truck to the parking lot of a liquor store.   As he arrived he saw a “male latin” carrying a brown bag run around the corner of the store and pass within three or four feet of the front of the truck and then disappear from view.   Eggleston and his companion walked into the liquor store.   There they saw a man who had been shot.

A police officer came to the scene and there took a statement from Eggleston, in which he described the male latin as “short, stubby, approximately 5′ 6″, 7″, 8″, 160, something like that,” wearing brown pants with a white t-shirt.

Eggleston was then taken to the Van Nuys police station.   Some time after midnight he was interviewed by police lieutenant Carnivale, who had been trained in the use of hypnosis.   Carnivale testified that during this interview Eggleston was in “a light to medium trance.”   The interview was recorded on an audio tape, and the tape was played as a part of the proceedings on the motion to suppress.

During the course of that interview Eggleston described the male latin only in the most general terms, as he had done during the interview at the scene.   Several times during Carnivale's interview Eggleston stated that he did not see the face of the male latin.   From time to time Carnivale told Eggleston that he was a “good subject,” that he was doing a “good job” and that “it will come back to you.”   In the latter part of the interview Carnivale said “We will do it again.   The pictures of these people will be much clearer.”

At least a half a year later Eggleston was shown a group of photographs, and from this group he selected the photograph of the defendant as that of the male latin he had seen run past his truck at the liquor store.

Following the testimony of Eggleston and Carnivale at the hearing on the motion to suppress, the prosecution and the defense each produced the testimony of an expert witness on the effect of hypnosis as an aid to memory.

At the conclusion of the hearing the court delivered from the bench an analysis of the evidence, and then announced the ruling, which was summarized in the minutes of the court as follows:

“The court rules that under 403 Evidence Code the testimony of Steven Eggleston taken while under hypnosis is ruled inadmissible in this case.   The identification of the photographic line-up is ruled admissible.”

This ruling placed the defendant in a worse position than if he had never raised the hypnosis issue.   The court not only ruled admissible Eggleston's photographic identification of the defendant, but apparently excluded Eggleston's statements to Carnivale that he never saw the face of the male latin, that he only saw the man for three or four seconds and that he was unable to give any description except in the most general terms.

 We reject the argument of the People that we should not use a proceeding in mandate to review a ruling as to the admissibility of evidence.   Before issuing the alternative writ we considered the uncertainty of the law and the gravity of the charge as calling for a stay of the trial and a prompt review of the ruling.   The absence of another adequate remedy was determined by the granting of the alternative writ.  (See Morse v. Municipal Court (1974) 13 Cal.3d 149, 155, 118 Cal.Rptr. 14, 529 P.2d 46;  Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 129, 142 Cal.Rptr. 325.)

During the pendency of this mandate proceeding the Supreme Court handed down its decision in People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775.   That opinion, based upon an exhaustive review of the decisions of the other jurisdictions and the professional literature, concluded at page 66:  “We therefore hold, in accord with the decisions discussed above (pt. II C. ante), that the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnosis forward.”

In Shirley, the victim of the alleged rape was interviewed under hypnosis subsequent to the preliminary hearing.   At the trial she testified to some matters which she had related while under hypnosis, and gave other testimony which she said she recalled subsequent to the hypnotic experience, which, she said, “cured” her recollection (31 Cal.3d 29–30, 181 Cal.Rptr. 243, 641 P.2d 775).   The Supreme Court, in stating its conclusions derived from the professional literature said, among other things:  (p. 63, 181 Cal.Rptr. 243, 641 P.2d 775.)

“Hypnosis is by its nature a process of suggestion, and one of its primary effects is that the person hypnotized becomes extremely receptive to suggestions that he perceives as emanating from the hypnotist․

“The person under hypnosis experiences a compelling desire to please the hypnotist by reacting positively to these suggestions, and hence to produce the particular responses he believes are expected of him․

“During the hypnotic session, neither the subject nor the hypnotist can distinguish between true memories and pseudomemories of various kinds in the reported recall;  and when the subject repeats that recall in the waking state (e.g., in a trial), neither an expert witness nor a lay observer (e.g., the judge or jury) can make a similar distinction.”

 In the present case the critical “recollection” of Eggleston was his identification of a photograph months after the interview by the hypnotist.   Eggleston made this identification despite his statement to the hypnotist that he had not seen the face of the “male latin” who had passed near him in the parking lot.   During the interview under hypnosis the hypnotist repeatedly complimented Eggleston as a “good subject” and, assured him that he would remember more at some time in the future.

The conclusion reached by the Shirley court, based upon its analysis of the professional literature compels our conclusion that Eggleston's testimony, insofar as it purports to identify the “male latin”, is unreliable, and his purported “memory” “may be so fixed in his mind that traditional legal techniques such as cross examination may be largely ineffective to expose its unreliability.”  (31 Cal.3d at p. 66, 181 Cal.Rptr. 243, 641 P.2d 775.)

The Shirley opinion, as filed March 11, 1982, declared in footnote 53 that its holding would “apply to all cases not yet final as of the date of this decision.”

On June 4, 1982 that opinion was modified, the original footnote 53 was deleted and the following language was substituted:  “The principles stated in this opinion will govern the admissibility of the testimony of any witness who submits to pretrial hypnosis after the date of this decision.   We take no position at this time as to the application of those principles to witnesses hypnotized before the date of this decision.”

Although the Supreme Court takes “no position” as to the application of its decision, the reasoning and holding of that opinion provide compelling authority for a decision in the case which is before us.   In Shirley, testimony was held inadmissible because its reliability could be neither proven or disproven.   The same situation exists in the case here.   The elemental concept of due process forbids admission of such evidence.

The Shirley opinion points out, at page 67, 181 Cal.Rptr. 243, 641 P.2d 775:  “If the prosecution should wish to question such a witness on a topic wholly unrelated to the events that were the subject of the hypnotic session, his testimony as to that topic would not be rendered inadmissible by the present rule.”   So far as can be determined from the record here, the prosecution is not seeking to question Eggleston on any subject unrelated to the description and identification of the male latin with the brown paper bag.   Therefore there is no need to do anything more than order the superior court to grant the defendant's motion to exclude.

Let a writ of mandate issue requiring the respondent court to vacate its order of September 24, 1981 in the proceeding numbered A 143438 entitled The People v. Steven Carl Guadalupe and make a new order granting the defendant's motion to exclude the testimony of Steven Eggleston.



FILES,** Associate Justice. FN** Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

WOODS, P. J., and KINGSLEY, J., concur. Hearing denied;  KAUS, J., dissenting.