NOLLINS v. PEOPLE (1990)

PETITION FOR WRIT OF PROHIBITION

I. INTRODUCTION

 Petitioner Gary Lynn Nollins (defendant) was charged in an information with assault with a deadly weapon (Pen.Code, § 245, subd. (a)) which also alleged that the victim suffered great bodily injury.  (Pen.Code, § 12022.7.)   Defendant challenges the correctness of the respondent court's order denying his motion to dismiss pursuant to Penal Code section 995.   The motion to dismiss in part raised the issue of whether the use of hearsay testimony at a preliminary hearing as permitted by Proposition 115 (the initiative), an initiative adopted by the voters on June 5, 1990, violated his federal constitutional right to confrontation of adverse witnesses.¹  Because the magistrate correctly overruled defendant's objections at the preliminary hearing and the superior court judge properly denied the dismissal motion, the petition is summarily denied.

II. PROCEEDINGS AT THE PRELIMINARY EXAMINATION

Detective Yvonne Parker of the Los Angeles Police Department, the sole witness to testify at the preliminary examination, stated that she had seven years' experience in law enforcement.   At the preliminary examination, she had before her an investigation report prepared by an Officer Taylor which was marked at the commencement of the preliminary examination as People's exhibit one.   Detective Parker had not spoken to Officer Taylor about the report.   According to the written investigation report, on June 11, 1990, at approximately 11:00 p.m. Officer Taylor and his partner, Officer Wylan, “were monitoring their police radio when a deadly weapon call had just come out in front of 5143 West Washington Boulevard.”   The radio call gave a description of a “male [B]lack, approximately 5–11, thin build, wearing a black jacket.”   The two officers approached defendant and ordered him “into a felony prone position.”   A knife fell from his belt.   On defendant's right hand and on the knife “[t]here was fresh red blood.”   The two officers spoke to a Mr. Eden who stated that he saw “the defendant produce a four-inch buck knife and to stab the victim once in the stomach area.”   Two other witnesses named Mr. Sweat and Mr. McClay also told the officers that they saw defendant stab the victim Dora Marks, in the stomach.   Detective Parker had not spoken to Mr. Eden, Mr. Sweat, or Mr. McClay;  rather, she testified based upon the contents of the investigation report.   Detective Parker did speak directly to a Dr. Fenilla who stated that the victim “had received internal injuries to her liver, bowel ducts, and to her intestines.”   Defendant was booked under the name Gary Nollins.   A photograph taken of him while he was booked was received in evidence as People's exhibit two.   It was stipulated between the parties that the booking number on the photograph was the same number appearing on the investigation report relied upon by Detective Parker while testifying.

The following facts were elicited in response to the 82 questions asked and answered during the cross-examination of Detective Parker.   The detective admitted that she did not know where Mr. Eden was when he saw defendant stab Ms. Marks.   The report did indicate that Mr. Sweat and Mr. McClay had been in a nearby doughnut shop and had exited the shop when the stabbing occurred in front of a motel.   Prior to the stabbing, defendant and the victim had been arguing according to Mr. Sweat and Mr. McClay.   Detective Parker conceded that the police report failed to specifically state that Mr. Sweat and Mr. McClay exited the shop.   Detective Parker testified based on her own personal knowledge of the area that a person sitting in the doughnut shop could not see the motel where the stabbing occurred.   Defendant was arrested one block from the scene of the stabbing.   Detective Parker testified based on her own personal recollection as to the lighting in the area where the incident occurred.

After defendant's arrest by Officer Wylan and Officer Taylor, the report indicated that “a field identification [was] conducted.”   Mr. Eden, Mr. McClay, and Mr. Sweat “made the identification.”   Detective Parker testified that she did not know anything about the circumstances surrounding the identification process.   The report indicated that defendant and Ms. Marks, the victim, were “ex-boyfriend and girlfriend.”   At the conclusion of the period of cross-examination, the deputy district attorney withdrew People's exhibit one, the investigation report.   However, People's exhibit two, a booking photograph of defendant, was received in evidence.

At the conclusion of the presentation of evidence, defense counsel moved to strike all of Detective Parker's testimony because “it's a complete denial of Mr. Nollins' right to confront and cross-examine the witnesses against him․”   The magistrate denied the motion finding that section 24 of the California Constitution granted a defendant the same right to cross-examine and confront adverse witnesses as was present under the United States Constitution;  there was no federal constitutional right to a preliminary hearing;  the United States Constitution did not require “that probable cause be established through and by the testimony of witnesses”;  and there was no denial of defendant's federally guaranteed constitutional rights to cross-examine and confront adverse witnesses.   Defense counsel made no effort to call any witnesses nor was a continuance sought to locate any witnesses.

III. DISCUSSION

THE PROSECUTION'S RELIANCE ON HEARSAY EVIDENCE AT DEFENDANT'S PRELIMINARY HEARING AS AUTHORIZED BY CERTAIN PROVISIONS OF THE INITIATIVE DID NOT VIOLATE HIS RIGHTS TO CROSS–EXAMINE AND CONFRONT ADVERSE WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.A. An Overview

The issue presented for resolution is whether the use of hearsay evidence at defendant's preliminary hearing as authorized by the initiative violated his rights under the Sixth Amendment of the United States Constitution to “confron[t] the witnesses against him.”   In answering this question, we will first review the provisions of the initiative.   Then, we will discuss the manner in which preliminary hearings have been changed by the initiative.   Thereupon, we will review the decisions of the United States Supreme Court as they interpreted the right of confrontation as well as other provisions of the United States Constitution which relate to the right to use hearsay evidence at preliminary examinations.   Finally, we will determine whether California Supreme Court opinions construing a defendant's right to cross-examine witnesses preclude us from upholding the use of hearsay testimony at preliminary examinations in the present case.

B. The Initiative

The Crime Victims Justice Reform Act, otherwise known as Proposition 115, was adopted by the California voters on June 5, 1990.   The initiative effects significant changes in California criminal law and procedure.   In terms of the issues raised by the parties, there are three relevant changes in California law resulting from the initiative's adoption:  the initiative's stated purposes, constitutional amendments, and statutory modifications.   We will set forth each of these three changes.

1. The Initiative's Purposes

The findings and the purposes of the initiative are set forth in section 1 as follows:  “(a) We the people of the State of California hereby find that the rights of crime victims are too often ignored by our courts and by our State Legislature, that the death penalty is a deterrent to murder, and that comprehensive reforms are needed in order to restore balance and fairness to our criminal justice system.  [¶] (b) In order to address these concerns and to accomplish these goals, we the people further find that it is necessary to reform the law as developed in numerous California Supreme Court decisions and as set forth in the statutes of this state.   These 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 guest for truth.  [¶] (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.”  (Emphasis added.)

2. State Constitutional Amendments

The most sweeping change effected by the initiative was the elimination of the California Constitution as an independent basis for construing the fundamental rights of criminal defendants, including the right of confrontation.   Pursuant to section 3 of the initiative, article I, section 24 of the California Constitution was amended in relevant part to read:  “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.  [¶]  In criminal cases the rights of a defendant ․ to confront the witnesses against him or her, to be free from unreasonable searches and seizures, ․ shall be construed by the courts of this state in a manner consistent with the Constitution of the United States.   This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States.  [¶]  This declaration of rights may not be construed to impair or deny others retained by the people.”

A second constitutional amendment effected by the initiative dealt directly with the use of hearsay evidence at preliminary hearings, the issue which is now before us.   Pursuant to section 5 of the initiative, section 30 was added to article I of the California Constitution.   Subdivision (b) of section 30 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.”

3. Statutory Amendments

In addition, two sections of the Penal Code directly relevant to preliminary hearings were added by the initiative.   Pursuant to section 16 of the initiative, Penal Code section 866 was amended to redefine in subdivision (b) the purpose of a preliminary hearing as follows:  “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.”   Section 18 of the initiative amended Penal Code section 872 to provide in relevant part:  “(b) Notwithstanding Section 1200 of the Evidence Code [the 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.”

 Additionally, the Evidence Code was amended to limit the right to call a hearsay declarant as a witness.  Evidence Code section 1203.1 was added by section 8 of the initiative and it provides:  “Section 1203 ² is not applicable if the hearsay statement is offered at a preliminary examination, as provided in Section 872 of the Penal Code.”   Under the terms of the initiative, therefore, hearsay statements may be introduced for the truth of the matter asserted through the testimony of a law enforcement officer qualified as previously described in the new Penal Code section 872, subdivision (b) and there is no unqualified right to call the hearsay declarant pursuant to Evidence Code section 1203.   The defendant may cross-examine prosecution witnesses.  (Pen.Code, § 865.) ³  Under the terms of the initiative, a defendant may call any witness including the declarant of a hearsay statement offered by the People as a witness provided that, upon the request of the prosecutor, the defendant can make an offer of proof to the satisfaction of the magistrate “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.”  (Pen.Code, § 866, subd. (a).) ⁴

C. The Effect of the Initiative On Preliminary Hearings

The foregoing constitutional and statutory changes have profoundly changed the nature and format of California preliminary hearings.   Without exhaustively listing all of the changes, the following are the most significant modifications effected by the initiative which relate to the issues presented in this case.   First, prior to the initiative's adoption, all of the rules of evidence including the hearsay rule were applicable to preliminary hearings.  (Mills v. Superior Court (1986) 42 Cal.3d 951, 957–959, 232 Cal.Rptr. 141, 728 P.2d 211.)   Now, hearsay evidence is admissible pursuant to the amended provisions of Penal Code section 872, subdivision (b) when a properly qualified law enforcement officer testifies concerning “statements of declarants made out of court offered for the truth of the matter asserted.”

Second, prior to the initiative's adoption, the use of hearsay at a preliminary hearing which was not contained within an exception to the hearsay rule was impermissible.  (Mills v. Superior Court, supra, 42 Cal.3d at pp. 957–959, 232 Cal.Rptr. 141, 728 P.2d 211.)   The new provisions of article I, section 30, subdivision (b) of the California Constitution states that “hearsay shall be admissible at preliminary hearings․”   The stated purpose of this amendment to the Constitution was to “protect victims and witnesses in criminal cases.”  (Ibid.)

Third, prior to the adoption of the initiative, the provisions of article I, section 16 of the state Constitution protecting a defendant's right to confront adverse witnesses were applicable to a preliminary examination and this constitutional provision could be construed so as to accord a criminal defendant rights greater than those guaranteed by the United States Constitution.   Now, new article I, section 24 of the California Constitution requires that the right to confront adverse witnesses only be applied in “a manner consistent with the Constitution of the United States” and the California Constitution can “not be construed by the courts to afford greater rights to criminal defendants ․” than guaranteed by the federal Constitution.

 Fourth, the purposes of the preliminary hearing have been materially narrowed.   Prior to the adoption of the initiative, there were a number of broadly stated purposes served by the preliminary examination.   For example, in Jones v. Superior Court (1971) 4 Cal.3d 660, 668, 94 Cal.Rptr. 289, 483 P.2d 1241, the Supreme Court held:  “ ‘ “The preliminary examination is not merely a pretrial hearing.  ‘The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and expense of a criminal trial.   Many an unjustifiable prosecution is stopped at that point where the lack of probable cause is clearly disclosed.’  [Citation.]”   Accord, Mitchell v. Superior Court (1958) ․ 50 Cal.2d 827, 829 [330 P.2d 48].  To effectuate this constitutional and statutory purpose the defendant must be permitted, if he [or she] chooses, to elicit testimony or introduce evidence tending to overcome the prosecution's case or establish an affirmative defense.' ”   In Hawkins v. Superior Court (1978) 22 Cal.3d 584, 588, 150 Cal.Rptr. 435, 586 P.2d 916, the California Supreme Court held:  “It assumes first that the only benefit derived by defendant from an adversarial preliminary hearing lies in obtaining a judicial determination of probable cause.   Yet whatever may be the Legislature's intent in establishing such a hearing, it serves a number of pragmatic functions for the accused.   The United States Supreme Court catalogued some of them in Coleman v. Alabama (1970) 399 U.S. 1, 9–10 [90 S.Ct. 1999, 2003–2004, 26 L.Ed.2d 387] [citations] [ ] [plur. opn. of Brennan, J.], holding the Alabama preliminary hearing at issue therein to be ‘a “critical stage” of the State's criminal process' at which the defendant had a right to ‘the guiding hand of counsel.’   The court observed that a ‘skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial.’   It went on to recognize the important discovery functions served by an adversarial preliminary hearing;  such a hearing would assuredly provide the defense with valuable information about the case against the accused, enhancing its ability to evaluate the desirability of entering a plea or to prepare for trial.”  (Fn. omitted.)   Although the initiative does not eliminate some of these practical roles, it does limit the stated function of the preliminary examination to a single purpose.   The amended provisions of Penal Code section 866, subdivision (b) state that the purpose of the examination is “to establish whether there exists probable cause to believe that the defendant has committed a felony.”

 Fifth, the preliminary hearing no longer may be used solely as a discovery tool by either side.   Prior to the initiative's adoption, the preliminary examination was an important discovery tool which could be used by both sides.  (Hawkins v. Superior Court, supra, 22 Cal.3d at p. 588, 150 Cal.Rptr. 435, 586 P.2d 916;  McDaniel v. Superior Court (1976) 55 Cal.App.3d 803, 805, 126 Cal.Rptr. 136.)   The amendment to Penal Code section 866 enacted by the initiative states, “The examination shall not be used for purposes of discovery.”  (Pen.Code, § 866, subd. (b).)

 Sixth, the role of the preliminary hearing as a mechanism for preserving testimony by defense witnesses has been curtailed unless the witnesses' testimony is relevant to the sole statutory purpose for the preliminary examination, namely, the existence of probable cause to believe the defendant has committed a felony.   As noted previously, the preservation of testimony was a function of the preliminary examination.  (Hawkins v. Superior Court, supra, 22 Cal.3d at p. 588, 150 Cal.Rptr. 435, 586 P.2d 916.)   Now, Penal Code section 866, subdivision (a) only allows the defense to call a witness if an offer of proof discloses that the testimony, “if believed, would be reasonably likely to establish an affirmative defense, and 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.”   The impact of this change in the law is significant.   For example, when a properly qualified peace officer testifies concerning a victim's statements, the victim may not be compelled to testify unless a proper offer of proof pursuant to Penal Code section 866, subdivision (a) is presented by the defense.   Furthermore, the practice of the defendant calling a prosecution witness for purposes of discovering what that witness will testify to at the time of trial is foreclosed by the new provisions of Penal Code section 866, subdivision (a).   In McDaniel v. Superior Court, supra, 55 Cal.App.3d at p. 804–805, 126 Cal.Rptr. 136, the Court of Appeal held that the defendant could call a witness to the charged crime.   The Court of Appeal held that an objection to an inquiry on cross-examination on the ground that the question “may lead to the discovery of what the facts were ․” was not a valid objection.   In other words, in McDaniel, the defendant never articulated a reason why the testimony would establish an affirmative defense and the Court of Appeal quite correctly held, under then existing law, that such questioning was “the very purpose of examining a witness” at a preliminary hearing.   The initiative forbids such practices in the absence of a proper offer of proof.

 Finally, the initiative eliminates the preliminary hearing as a guaranteed right of a felony defendant in all cases.   In Hawkins v. Superior Court, supra, 22 Cal.3d at pp. 593–595, 150 Cal.Rptr. 435, 586 P.2d 916, the California Supreme Court held that there was a constitutional right pursuant to article I, section 7, of the California Constitution to a preliminary examination even if a grand jury had returned an indictment.   However, the initiative has resulted in the enactment of article I, section 14.1 of the California Constitution which states that if a felony is prosecuted by means of a grand jury indictment, there is no right to a post indictment preliminary hearing.   Clearly, the foregoing statutory and constitutional changes have materially altered the nature of the preliminary hearing process in California.

D. The Federal nor State Constitution Did Not Prohibit the Use of Hearsay at Defendant's Preliminary Examination

1. Introduction

Because the state Constitution and the Penal Code now specifically provide for the use of hearsay evidence at preliminary hearings, defendant contends that the federal Constitution prohibited the use of hearsay at his preliminary examination.   We shall first examine the question of whether the United States Constitution prohibited the use of hearsay at defendant's preliminary hearing and then examine whether this court is bound by prior California Supreme Court determinations that the pre-initiative preliminary hearing process barred the use of hearsay.   We will conclude that neither the federal nor state Constitutions prohibited the use of hearsay at defendant's preliminary hearing and that we are unable to apply former California Supreme Court decisions on this issue because those decisions never held that the Sixth Amendment confrontation right applied to preliminary hearings and we must follow United States Supreme Court decisions pursuant to article VI, section 2 of the United States Constitution.

2. The Federal Constitution

a. There is No Federal Constitutional Right to a Judicial Determination of Probable Cause as a Prerequisite to Prosecution by Information

 As noted previously, California Constitution, article I, section 24 now provides that the right of cross-examination and confrontation is to be “construed ․ in a manner consistent with the Constitution of the United States ․” and that the state Constitution may not be “construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States․”   The first step in determining whether defendant's confrontation rights under the United States Constitution have been violated by the use of hearsay is to analyze whether there is even a right to a probable cause determination prior to the filing of an information.   The United States Supreme Court has repeatedly stated that there is no federal constitutional right to a judicial determination of probable cause as a prerequisite to prosecution by information.  (Gerstein v. Pugh (1975) 420 U.S. 103, 118–119, 95 S.Ct. 854, 865–866, 43 L.Ed.2d 54;  Beck v. Washington (1962) 369 U.S. 541, 545, 82 S.Ct. 955, 957, 8 L.Ed.2d 98;  Lem Woon v. Oregon (1913) 229 U.S. 586, 590, 33 S.Ct. 783, 784, 57 L.Ed. 1340.)   No doubt, a defendant who is restrained of her or his liberty has a “Fourth Amendment right to a preliminary hearing on the issue of probable cause” (United States v. Yellow Freight System, Inc. (1980) 637 F.2d 1248, 1252, cert. den. Yellow Freight System, Inc. v. United States (1981) 454 U.S. 815, 102 S.Ct. 91, 70 L.Ed.2d 84.)   However, there is no constitutional right to a determination of probable cause as a precondition to prosecution by means of information.   In the present case, the preliminary examination was conducted not to determine whether defendant should remain incarcerated;  rather, the sole purpose of the preliminary examination as mandated by new Penal Code section 866, subdivision (b) was to determine whether “there exists probable cause to believe that the defendant has committed a felony.”   Therefore, defendant had no federal constitutional right to a preliminary judicial determination of probable cause to prosecute.

b. The Federal Constitutional Right of Confrontation does not Prohibit the Use of Hearsay Evidence at Preliminary Examinations

 Under article I, section 24 of the California Constitution, as enacted pursuant to the initiative, a defendant has a right of confrontation of witnesses at a preliminary hearing to determine probable cause to prosecute only to the extent provided by the federal Constitution.   Under established United States Supreme Court authority, the right of confrontation is essentially a trial right.   The Federal Supreme Court has repeatedly emphasized that the confrontation right is to apply in the context of trials.   In California v. Green (1970) 399 U.S. 149, 157, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489, the United States Supreme Court held:  “Our own decisions seem to have recognized at an early date that it is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause:  ‘The primary object of the constitutional provision in question was to prevent depositions on ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him [or her] to stand face to face with the jury in order that they may look at [her or] him and judge by his [or her] demeanor upon the stand and the manner in which [she or] he gives his [or her] testimony whether [she or] he is worthy of belief.’ ”  (Emphasis added.)   In other cases, either a plurality or a majority of the court have observed that the right of confrontation under the Sixth Amendment is a right that applies in the context of trials.  (Kentucky v. Stincer (1987) 482 U.S. 730, 738, fn. 9, 107 S.Ct. 2658, 2663, fn. 9, 96 L.Ed.2d 631;  Pennsylvania v. Ritchie (1987) 480 U.S. 39, 52, 107 S.Ct. 989, 999, 94 L.Ed.2d 40, [plur. opn. of Powell, J.];   Barber v. Page (1968) 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255.) ⁵  Additionally, ever since the United States Supreme Court held that the Sixth Amendment was applicable to the states in Pointer v. Texas (1965) 380 U.S. 400, 401, 85 S.Ct. 1065, 1066, 13 L.Ed.2d 923, in every case in which a violation of the right to confront or cross-examine adverse witnesses was found by that court, the violation occurred solely in the context of a trial.  (Ibid.;  Douglas v. Alabama (1965) 380 U.S. 415, 416–417, 85 S.Ct. 1074, 1075–1076, 13 L.Ed.2d 934;  Brookhart v. Janis (1966) 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314;  In re Gault (1967) 387 U.S. 1, 56–57, 87 S.Ct. 1428, 1458–1459, 18 L.Ed.2d 527;  Smith v. Illinois (1968) 390 U.S. 129, 130–131, 88 S.Ct. 748, 749–750, 19 L.Ed.2d 956;  Barber v. Page, supra, 390 U.S. at p. 720, 88 S.Ct. at p. 1319;  Bruton v. United States (1968) 391 U.S. 123, 124, 126–127, 88 S.Ct. 1620, 1621, 1622–1623, 20 L.Ed.2d 476;  Berger v. California (1969) 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508;  Davis v. Alaska (1974) 415 U.S. 308, 309, 94 S.Ct. 1105, 1107, 39 L.Ed.2d 347;  Delaware v. Van Arsdall (1986) 475 U.S. 673, 674, 106 S.Ct. 1431, 1433, 89 L.Ed.2d 674;  Lee v. Illinois (1986) 476 U.S. 530, 531, 106 S.Ct. 2056, 2057, 90 L.Ed.2d 514;  Coy v. Iowa (1988) 487 U.S. 1012, 1014, 108 S.Ct. 2798, 2800, 101 L.Ed.2d 857;  Idaho v. Wright (1990) 497 U.S. 805, 110 S.Ct. 3139, 3143, 111 L.Ed.2d 638, 660.)

The absence of any reason to believe that the Sixth Amendment right of confrontation is applicable to a preliminary hearing is further supported by several pertinent observations by the United States Supreme Court concerning what constitutes compliance with the confrontation clause.   In United States v. Owens (1988) 484 U.S. 554, 560, 108 S.Ct. 838, 843, 98 L.Ed.2d 951, the Supreme Court noted in the context of the right to cross-examine as guaranteed by the Sixth Amendment that “the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness's demeanor satisfy the constitutional requirements.” ⁶  In the present case, at the time of trial, defendant will have the right to have adverse witnesses placed under oath and to cross-examine them in the presence of the trier of fact so that the witnesses' demeanor may be considered.

 Additionally, in Kentucky v. Stincer, supra, 482 U.S. at p. 740, 107 S.Ct. at p. 2664, a competency hearing was held outside the presence of the defendant.   The question before the court was whether the exclusion of the defendant from the hearing to determine the competency of the two “child witnesses [who testified] violates the defendant's rights under the Confrontation Clause of the Sixth Amendment․”  (Id. at p. 732, 107 S.Ct. at p. 2660.)   After noting that the confrontation clause is principally identified as a trial right, (id. at p. 738, fn. 9, 107 S.Ct. at p. 2663, fn. 9), the court drew a careful distinction concerning the nature of the proceeding.   Specifically, the court noted:  “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 [the defendant] 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.   It was no Kentucky rule of law, nor any ruling of 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.   See California v. Green 399 U.S., at 159 [90 S.Ct. at p. 1935].  (‘[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 a full and effective cross-examination at the time of trial’).”  (Id. 482 U.S. at p. 740, 107 S.Ct. at p. 2665.)   In the present case, even though at the preliminary hearing defendant could not cross-examine Officers Taylor and Wylan, the witnesses to the stabbing, or Dr. Fenilla, he will have a full opportunity to conduct that examination at the time of trial.   Accordingly, under the analysis in Stincer, defendant's rights to cross-examine and confront adverse witnesses pursuant to the Sixth Amendment have not been violated by the use of hearsay testimony at his preliminary examination.

To sum up, the United States Supreme Court has not directly addressed the question of whether the Sixth Amendment is violated by the use of hearsay testimony at a preliminary hearing.   However, the court has repeatedly emphasized that the right to cross-examine is principally a trial right and has never found a violation of the Sixth Amendment outside of the context of a criminal trial or a juvenile delinquency proceeding which was the functional equivalent of a trial.   Moreover, recent decisions of the United States Supreme Court have emphasized that so long as the trier of fact has an opportunity to see the witnesses subjected to cross-examination, that the minimum requirements of the Sixth Amendment are satisfied.   Accordingly, we conclude that the use of hearsay evidence in defendant's preliminary examination did not violate defendant's right to confront the witnesses against him.⁷

c. Defendant's Rights Under Other Provisions of the Federal Constitution

Although not directly relevant, there are other decisions relating to the Fourth Amendment, the due process clause of the Fifth Amendment, and the due process clause of the Fourteenth Amendment which have some relevance to the issue of whether hearsay evidence may be used at a preliminary hearing.

(i) The Fourth Amendment

 Under the terms of the Fourth Amendment use of hearsay testimony at a preliminary hearing to determine whether a defendant should remain in custody is constitutional.   In Gerstein v. Pugh, supra, 420 U.S. at p. 111, 95 S.Ct. at p. 861, the United States Supreme Court confronted the question of whether “a person arrested and held for trial on an information is entitled to a judicial determination of probable cause for detention, and if so, whether the adversary hearing ordered by the District Court and approved by the Court of Appeals is required by the Constitution.”   The Supreme Court held “that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.”  (Id. at p. 114, 95 S.Ct. at p. 863.)   Both the District Court and the Court of Appeals concluded that the probable cause determination “must be accompanied by the full panoply of adversary safe-guards—counsel, confrontation, cross-examination, and compulsory process for witnesses.”   (Id. at p. 119, 95 S.Ct. at p. 865;  Pugh v. Rainwater (5th Cir.1973) 483 F.2d 778, 788–790;  Pugh v. Rainwater (S.D.Fla.1973) 355 F.Supp. 1286, 1287–1293;  Pugh v. Rainwater (S.D.Fla.1972) 336 F.Supp. 490, 492;  Pugh v. Rainwater (S.D.Fla.1971) 332 F.Supp. 1107, 1113–1115.)   The Supreme Court concluded that these “adversary safe-guards are not essential for the probable cause determination required by the Fourth Amendment.”  (Gerstein v. Pugh, supra, 420 U.S. at p. 120, 95 S.Ct. at p. 866.)   Because the “sole issue is whether there is probable cause for detaining the arrested person pending further proceedings ․” the court concluded that the issue of probable cause could be “decided by a magistrate in a nonadversary proceeding on hearsay and written testimony․”  (Ibid.)   We emphasize that although relevant, Gerstein is of restricted applicability to the present case because the holding was specifically limited “to the precise requirement of the Fourth Amendment․”  (Id. at p. 123, 95 S.Ct. at p. 867.)   However, it is noteworthy that under the Fourth Amendment, there is not even a right to counsel at the probable cause hearing.  (Id. at pp. 122–123, 95 S.Ct. at pp. 867–868.)

(ii) The Due Process Clause of the Fifth Amendment

 Like a preliminary hearing under the terms of the initiative, the purpose of grand jury proceedings under federal law is to determine whether there is probable cause to believe the defendant committed a crime.  (United States v. Calandra (1974) 414 U.S. 338, 343–344, 94 S.Ct. 613, 617–618, 38 L.Ed.2d 561.)   In connection with the Fifth Amendment, the United States Supreme Court has directly addressed the issue of whether a defendant may be indicted based solely upon hearsay testimony.   In Costello v. United States (1956) 350 U.S. 359, 363–364, 76 S.Ct. 406, 408–409, 100 L.Ed. 397, the Supreme Court concluded that the use of hearsay evidence as a basis for a grand jury indictment did not violate the defendant's rights to due process of law under the Fifth Amendment.  Costello is of significant consequence because the Sixth Amendment is made applicable to the states through the due process clause of the Fourteenth Amendment.  (Pointer v. Texas, supra, 380 U.S. at p. 403, 85 S.Ct. at p. 1068.)   If the words “due process of law” in the Fifth Amendment do not outlaw the use of hearsay in grand jury proceedings, and Costello so holds, it is difficult to logically argue that the same words in the Fourteenth Amendment bar the use of hearsay evidence at a preliminary hearing as a matter of constitutional law where the purpose of the preliminary hearing is to “establish whether there exists probable cause to believe that the defendant has committed a felony.”  (Pen.Code, § 866, subd. (b).)

(iii) The Due Process Clause of the Fourteenth Amendment

In Morrissey v. Brewer (1972) 408 U.S. 471, 488–489, 92 S.Ct. 2593, 2603–2604, 33 L.Ed.2d 484, the United States Supreme Court held as a matter of due process of law that a prisoner at a parole revocation hearing had a right to confront adverse witnesses.   However, the Supreme Court noted that the right of confrontation could be limited upon a showing of good cause and that affidavits and written materials would be admissible.  (Ibid.)  However, the court noted that at the pre-revocation hearing where a determination was made as to whether the prisoner was to remain in custody pending the holding of a formal revocation hearing, there was no right to confront adverse witnesses.   (Id. at pp. 485–486, 92 S.Ct. at pp. 2602–2603.)

(iv) Conclusion

Accordingly, in closely related situations involving the Fourth, Fifth, and Fourteenth Amendments, the United States Supreme Court has allowed the use of hearsay evidence in various criminal proceedings.   Although certainly not dispositive of the issue, these decisions are highly persuasive evidence that defendant in the present case had no federally guaranteed constitutional right not to have hearsay evidence admitted against him at the preliminary hearing.

d. The Impact of Coleman v. Alabama

 Defendant contends that Justice Brennan's plurality opinion in Coleman v. Alabama (1970) 399 U.S. 1, 7–9, 90 S.Ct. 1999, 2002–2003, 26 L.Ed.2d 387, holds that defendant has a right to cross-examine adverse witnesses.   However, Coleman is not binding authority in the present case.   To begin with, the language in Coleman relative to cross-examination appears in a plurality opinion which was joined in by only four justices.   Justice Black concurred in the opinion but did so on the sole ground that the Alabama preliminary examination was a critical stage of the proceedings and that the defendant had a right to counsel.  (Id., at pp. 11–14, 90 S.Ct. at pp. 2004–2006, [conc. opn. of Black, J.].)  Because the cited language did not secure the approval of five justices, it is not controlling authority.   (Neil v. Biggers (1972) 409 U.S. 188, 192, 93 S.Ct. 375, 378, 34 L.Ed.2d 401;  Alaska v. Troy (1922) 258 U.S. 101, 111, 42 S.Ct. 241, 242, 66 L.Ed. 487.)   Furthermore, Coleman involved the question of whether the Alabama preliminary hearing which was conducted prior to grand jury proceedings was “a ‘critical stage’ of the prosecution and that Alabama's failure to provide ․ appointed counsel at the hearing ․” was a denial of the right to assistance of counsel.  (Id. 399 U.S. at p. 3, 90 S.Ct. at p. 2000.)  Coleman never held that there is a right to cross-examine guaranteed by the Sixth Amendment at a preliminary examination.   Finally, Coleman never addressed the issue raised by defendant's petition—whether hearsay evidence may be received at a preliminary examination.

4. The California Supreme Court Has Never Held That the Sixth Amendment Right of Confrontation Applies to a Preliminary Examination

 Defendant argues that the California Supreme Court has referred to the right of cross-examination at the preliminary examination on a number of occasions and that this court is bound by those decisions.   However, a careful reading of every Supreme Court decision which has applied the right to cross-examine in the context of a preliminary examination indicates that on no occasion has this state's Supreme Court held that the Sixth Amendment right of confrontation is applicable to a preliminary examination.   In Priestly v. Superior Court (1958) 50 Cal.2d 812, 819, 330 P.2d 39, and Mitchell v. Superior Court (1958) 50 Cal.2d 827, 829–830, 330 P.2d 48, the first time the California Supreme Court discussed the right of cross-examination at a preliminary examination, the court referred to Penal Code section 865 which then, as it does now, provides a statutory right “to cross-examine the prosecution's witnesses․”  (Id. at p. 829, 330 P.2d 48.)   In Jennings v. Superior Court (1967) 66 Cal.2d 867, 878–880, 59 Cal.Rptr. 440, 428 P.2d 304, the next occasion upon which the Supreme Court discussed at length the right of cross-examination, the court, citing Priestly and Mitchell, emphasized the importance of cross-examination as “ ‘substantial rights' ” at a preliminary hearing.   However, the court never explicitly referred to the Sixth Amendment.⁸  In Jones v. Superior Court, supra, 4 Cal.3d at p. 667, 94 Cal.Rptr. 289, 483 P.2d 1241, the court merely referred to its previous opinion in Jennings while discussing the right to cross-examine.   In Johnson v. Superior Court (1975) 15 Cal.3d 248, 256, 124 Cal.Rptr. 32, 539 P.2d 792 (conc. opn. of Mosk, J.), Justice Mosk, in his concurring opinion which was the precursor of the decision in Hawkins v. Superior Court, supra, 22 Cal.3d at p. 587, 150 Cal.Rptr. 435, 586 P.2d 916, made reference to the right to cross-examine witnesses;  however, Justice Mosk made no reference to a federally guaranteed constitutional right to engage in such cross-examination at a preliminary hearing.   In Hawkins v. Superior Court, supra, 22 Cal.3d at pp. 587–589, 150 Cal.Rptr. 435, 586 P.2d 916, the court held that there was a right to a post-indictment preliminary hearing under the California Constitution but never concluded that there was a right under the Sixth Amendment to cross-examine witnesses.   Additionally, in Mills v. Superior Court, supra, 42 Cal.3d at p. 957, 232 Cal.Rptr. 141, 728 P.2d 211, the Supreme Court held that it was inappropriate to use hearsay at a preliminary examination because it violated defendant's due process rights but never held that the Sixth Amendment barred the use of hearsay at a preliminary examination.   Accordingly, the California Supreme Court has never held that the Sixth Amendment guarantees a defendant the right to cross-examine adverse witnesses at a preliminary examination nor that the use of hearsay evidence at such a proceeding violates any provision of the United States Constitution.⁹

One final note is in order concerning Mills v. Superior Court, supra, 42 Cal.3d at p. 957, 232 Cal.Rptr. 141, 728 P.2d 211.   Needless to note, since Mills was decided in 1986, the initiative has altered the format of preliminary examinations.   When Mills was decided, there was a right guaranteed under the state Constitution to have a preliminary examination.   Furthermore, there was no specific state constitutional provision allowing for the use of hearsay evidence at a preliminary hearing and the preliminary examination was a full-scale adversary hearing.   Although it is still an adversary proceeding, its role has been materially diminished by the adoption of the initiative.   Because of this significant change in the law since Mills was decided, it is no longer citable authority for the proposition that it is improper to use hearsay evidence at a preliminary examination.   In Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689, the Supreme Court held, “Language used in any opinion is of course to be understood in the light of the facts and issue then before the court, and an opinion is not authority for a proposition not therein considered.”  Mills does not address the issues presented by defendant because it was decided before the amendments to the Penal and Evidence codes allowing the use of hearsay evidence, the amendment to the California Constitution permitting the use of hearsay evidence at a preliminary examination, the change in the adversarial nature of the preliminary hearing process, and the fact that the state Constitution may no longer be construed to afford rights to criminal defendants which are not also guaranteed under the United States Constitution.   Finally, the issues raised in this case relate to the United States Constitution.  Article VI, section 2 of the United States Constitution requires that “the Judges in every State shall be bound ․” by the federal Constitution.   We are bound by the United States Supreme Court decisions in construing the Bill of Rights.  (Chesapeake & Ohio Ry. Co. v. Martin (1931) 283 U.S. 209, 220–221, 51 S.Ct. 453, 457–458, 75 L.Ed. 983.)   Accordingly, none of the decisions of the California Supreme Court preclude us from reaching this decision.

IV. DISPOSITION

The petition for writ of prohibition is summarily denied.

FOOTNOTES

1.   In the motion to dismiss filed in superior court, defendant argued that the initiative was invalid because it covered multiple subjects thereby violating article II, section 8, subdivision (d) of the California Constitution which states, “An initiative measure embracing more than one subject may not be submitted to the voters or have any effect.”   At the preliminary examination, no objection to the initiative because it violated the single subject rule of article II, section 8, subdivision (d) of the state Constitution was interposed.   Therefore, this argument could not have been raised appropriately for the first time in superior court in a dismissal motion pursuant to section 995.  (Robison v. Superior Court (1957) 49 Cal.2d 186, 187, 316 P.2d 1;  People v. Schultz (1968) 263 Cal.App.2d 110, 113, 69 Cal.Rptr. 293;  People v. McFarren (1957) 155 Cal.App.2d 383, 384, 317 P.2d 998.)   Defendant raises additional claims in his petition for writ of prohibition which were not argued in the motion to dismiss filed in the superior court;  those claims cannot now be raised.  (People v. Brice (1982) 130 Cal.App.3d 201, 211, 181 Cal.Rptr. 518.)   Because of the importance of the issue, we requested that the prosecutor file a response to the petition.   Defendant filed a reply to the prosecutor's opposition.   Neither party has requested oral argument and we have received no notification that defendant has been discharged or entered a guilty or no contest plea.

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) [confessions and admissions], Article 3 (commencing with Section 1235) [prior statements of witnesses], or Article 10 (commencing with Section 1300) [judgments] 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.   The statutory right to cross-examine witnesses at the preliminary hearing conferred by Penal Code section 865 has not been foreclosed by the initiative.   Defense counsel here took full advantage of this right by securing answers to 82 questions on cross-examination of Detective Parker, the sole prosecution witness.

4.   Defendant here made no effort to call any witnesses on his own behalf.

5.   Not all of the federal circuit Courts of Appeal have addressed the question of whether the Sixth Amendment right of confrontation is strictly a trial right.   However, several of the circuits have discussed the matter and are in agreement that the right of confrontation is principally a trial right.   The Fifth Circuit, in United States v. De Los Santos (5th Cir.1987) 819 F.2d 94, 97, held that the right of confrontation did not require a defendant to be present at a pretrial hearing concerning an informant which was held outside the presence of the trier of fact.   The Seventh Circuit, in United States v. Andrus (7th Cir.1985) 775 F.2d 825, 836, held that a defendant did not have a Sixth Amendment right to be present at an in-chambers hearing to determine the reasons that a witness had refused to answer a question.   In United States v. Sunrhodes (10th Cir.1987) 831 F.2d 1537, 1543, the Court of Appeals for the Tenth Circuit concluded that the Sixth Amendment right of confrontation was not strictly applicable to the sentencing procedures.   Other circuits have generally discussed the right of confrontation solely in terms of a trial right.  (Don v. Nix (8th Cir.1989) 886 F.2d 203, 207;  United States v. Monaco (9th Cir.1984) 735 F.2d 1173, 1175.)   We have exhaustively researched the subject and have found no federal circuit court cases which hold that the right to confront and cross-examine adverse witnesses under the Sixth Amendment applies to a preliminary hearing conducted to determine whether there is probable cause to charge a defendant with a crime.The decisions of state and District of Columbia appellate courts are consistent with the conclusion that the Sixth Amendment right of confrontation is principally a trial right, both in terms of pretrial discovery (Ross v. State (Ala.Crim.App.1989) 555 So.2d 1179, 1180–1181;  Russell v. State (Ala.Crim.App.1988) 533 So.2d 725, 726;  People v. Exline (Colo.Ct.App.1988) 775 P.2d 48, 49;  Delaney v. Superior Court (1990) 50 Cal.3d 785, 805–806. fn. 18, 268 Cal.Rptr. 753, 789 P.2d 934;  Johnson v. United States (D.C.1988) 537 A.2d 555, 556–558;  Sosebee v. State (1989) 190 Ga.App. 746, 380 S.E.2d 464, 466–467;  People v. Foggy (1988) 121 Ill.2d 337, 118 Ill.Dec. 18, 19–23, 521 N.E.2d 86, 87–91;  State v. Reynolds (Mont.1990) 792 P.2d 1111, 1115;  Com. v. Carillion (1988) 380 Pa.Super. 458, 552 A.2d 279, 283;  Com. v. Byuss (1988) 372 Pa.Super. 395, 539 A.2d 852, 853–854) and the right of a defendant to confront and cross-examine witnesses at hearings outside the presence of the trier of fact (United States v. Edwards (D.C.1981) 430 A.2d 1321, 1337–1338 [pretrial detention proceeding];  Matter of R.D.S. (D.C.1976) 359 A.2d 136, 139–140 [juvenile detention hearing];  State v. Engel (1985) 99 N.J. 453, 493 A.2d 1217, 1224 [bail hearing];  State, Interest of B.T. (1976) 145 N.J.Super. 268, 367 A.2d 887, 889 [hearing to determine whether juvenile may be tried as adult];  People v. Campbell (N.Y.1978), 92 Misc.2d 732, 401 N.Y.S.2d 152, 153–155 [preliminary hearing];  People v. Vasquez (N.Y.1973) 76 Misc.2d 5, 348 N.Y.S.2d 1007, 1010–1011 [pre-arraignment procedure];  State v. Howard (1978) 57 Ohio App.2d 1, 385 N.E.2d 308, 311–312 [in-camera proceeding to determine admissibility of testimony].)

6.   In Owens, a prisoner assaulted a correctional counselor in a federal prison with a metal pipe.   In an interview after the attack, the victim identified the defendant as the perpetrator of the crime.   However, at the time of trial, the officer could not “remember seeing his assailant.”  (United States v. Owens, supra, 484 U.S. at p. 556, 108 S.Ct. at p. 841.)   The issue before the Supreme Court was whether the victim, consistent with the confrontation clause, could testify concerning the identification made in the interview after the assault when at the time of trial he was unable to recall seeing the defendant.   The court found no confrontation clause violation.

7.   Other jurisdictions which confronted this question in related circumstances have held that the confrontation clause does not prohibit the use of hearsay in preliminary hearings.   In United States v. Andrus, supra, 775 F.2d at p. 836, and United States v. Harris (5th Cir.1972) 458 F.2d 670, 677–678, certiorari denied 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145, the courts held that the confrontation clause did not apply to preliminary hearings in federal cases conducted pursuant to Federal Rules of Criminal Procedure, rule 5.1 (18 U.S.C.).   A similar result was reached by the court in United States v. Wilkins (E.D.Penn.1976) 422 F.Supp. 1371, 1374–1375.  (After Wilkins was decided, there was substantial appellate activity, none of which relates to the issues in this case.   That extensive subsequent history was described by the Wyoming Supreme Court in Wilson v. State (Wyo.1982) 655 P.2d 1246, 1251–1252.)   Other state courts have also held that the confrontation clause does not prohibit the use of hearsay at pre-trial hearings which are analogous to a preliminary hearing.  (State v. Sherry (1983) 233 Kan. 920, 667 P.2d 367, 376;  State, Interest of B.T., supra, 367 A.2d at p. 889.)

8.   Defendant's contention that in Jennings v. Superior Court, supra, 66 Cal.2d at p. 875, 59 Cal.Rptr. 440, 428 P.2d 304, the court held that the Sixth Amendment applies to preliminary hearings is without merit.   Defendant refers to the following language:  “Petitioner asserts he has been denied the benefit of Penal Code section 865, which provides that at preliminary hearings ‘The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf,’ and section 866, which provides that ‘When the examination of the witnesses on the part of the people is closed, any witnesses the defendant may produce must be sworn and examined.’   Doubtless these statutes are declaratory of fundamental procedural rights;  they are derived from our earliest criminal legislation (Stats. 1851, ch. 29, §§ 153, 159) and have remained unchanged since the codification of the Penal Code in 1872.   They were among the statutes relied on by the United States Supreme Court in the landmark decision of Hurtado v. California (1884) 110 U.S. 516, 538 [28 L.Ed. 232, 239, 4 S.Ct. 111, 122], holding that the proceeding by preliminary examination, commitment, and information, ‘carefully considers and guards the substantial interest of the prisoner’ and thus constitutes due process of law.   The right to present and cross-examine witnesses is, of course, as essential today as it was in 1884.  (See, e.g., Specht v. Patterson (1967) 386 U.S. 605 [18 L.Ed.2d 326, 87 S.Ct. 1209];  Pointer v. Texas, (1965) 380 U.S. 400 [13 L.Ed.2d 923, 85 S.Ct. 1065];  Douglas v. Alabama (1965) 380 U.S. 415 [13 L.Ed.2d 934, 85 S.Ct. 1074].)”  (Ibid.)Several observations are relevant.   The issue of whether the Sixth Amendment applied to a preliminary hearing was not before the Jennings court.   The defendant contended that the magistrate's actions had violated his statutory rights pursuant to Penal Code section 865 and 866.   The prosecution did not argue that there was no right to cross-examine;  rather, the People asserted that there had been a reasonable limitation on defendant's right to cross-examine.  (Ibid.)  The Jennings court engaged in a careful historical and statutory analysis of the preliminary hearing in the context of the precise issue raised by defendant.   The language relied upon by defendant is part of that historical analysis.Furthermore, none of the cases cited in Jennings held that the Sixth Amendment confrontation right applied to a preliminary hearing.  Hurtado v. California (1884) 110 U.S. 516, 538, 4 S.Ct. 111, 122, 28 L.Ed. 232, merely held that there was no due process right to an indictment.   The other cases applied the right to confront witnesses under the Sixth Amendment or the due process clause of the Fourteenth Amendment in the context of trials.   The cases cited by the Jennings court were referred to because they demonstrated the importance of the statutory right to cross-examine which was fundamental to the statutory scheme as existed until the voters approved the initiative.Finally, in Jennings, had the California Supreme Court intended to hold that the Sixth Amendment applies to preliminary examinations, the court would have said so.   Neither in Jennings nor in any case decided to date in the intervening 23 years has the Supreme Court or any of its justices in any opinion, be it a majority, plurality, concurring or dissenting opinion, forthrightly and explicitly held that the federal confrontation clause is applicable to preliminary hearings.

9.   Several divisions of the courts of appeal have held that there is a federally guaranteed constitutional right to cross-examine witnesses during a preliminary hearing.  (Herbert v. Superior Court (1981) 117 Cal.App.3d 661, 665–666, 172 Cal.Rptr. 850;  Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 671, 162 Cal.Rptr. 389.)   We respectfully disagree with the analysis appearing in these cases for the reasons set forth in this opinion.   Moreover, we are not bound by the decisions of other courts of appeal.  (Nunez v. Superior Court (1983) 143 Cal.App.3d 476, 478, 191 Cal.Rptr. 893.)

FOOTNOTE.  FN* In denying review, the Supreme Court ordered that the opinion be not officially published.

TURNER, Associate Justice.

LUCAS, P.J., and BOREN, J., concur.