BAKER v. PEOPLE (1993)

We hold in this case that the hearsay exception created by subdivision (b) of section 872 of the Penal Code ¹ applies to all qualified police officers—even if they come from Texas.

BACKGROUND

Mark Steven Baker was charged with receiving stolen property worth more than $50,000 (a diamond stolen in Texas and allegedly received by Baker in California).   At Baker's preliminary hearing, Detective Sergeant Edward Harrold testified that he is employed by the City of West University Place, a municipality in Houston, Texas, and that for nine years it has been his job to investigate “all criminal cases that come through [his] department.”   He then testified (over Baker's hearsay objection) that Baker's diamond was stolen in Texas and that he (Harrold) had interviewed the victim.   A Los Angeles gemologist testified that Baker sought his help in disposing of the same diamond (which Baker claimed to have received from his grandmother).   Baker was held to answer.

In the trial court, Baker moved to dismiss, claiming there was no competent evidence to show the diamond was stolen.   According to Baker, Harrold's testimony was inadmissible hearsay because (1) Harrold is not a California police officer and (2) he did not testify that he had completed any special training course.   The motion was denied and Baker filed a petition for writ of prohibition.   Although it appeared from the outset that the petition ought to be denied, it also appeared that this issue has never been addressed and that a published opinion would be appropriate.   We therefore stayed proceedings in the trial court and solicited (and received) opposition from the People.

DISCUSSION

As relevant, subdivision (b) of section 872 provides that, at a preliminary hearing, “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 [1] five years of law enforcement experience or [2] 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.”  (Emphasis added.)

By its plain terms, therefore, the statute creates an exception to the hearsay rule for statements made to “any” law enforcement officer (without any geographical limitation) with “five years of law enforcement experience,” and the officer's training and experience are relevant only if he lacks the requisite on-the-job experience.   As the Supreme Court put it in Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1073, 2 Cal.Rptr.2d 160, 820 P.2d 262, this provision was undoubtedly intended to enhance the reliability of hearsay testimony at preliminary hearings by requiring that the testifying “officer have at least five years of law enforcement experience or have completed a training course covering the ‘investigating and reporting’ of criminal cases.”  (Emphasis added.) ²

It follows necessarily that Detective Sergeant Edward Harrold, a nine-year veteran of a Texas law enforcement agency, was qualified to present hearsay testimony at Baker's preliminary hearing—and we summarily reject Baker's suggestion that we ought to read into section 872, subdivision (b), a requirement that an out-of-state officer must, regardless of the duration of his experience, present evidence about his basic training.   There is no such requirement in section 872, subdivision (b), and no good reason to even consider doing something we are not in any event empowered to do.  (Code Civ.Proc., § 1858;  Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 187, 185 Cal.Rptr. 260, 649 P.2d 902 [it is not the job of the courts to draft or edit statutes].)

DISPOSITION

The stay is dissolved and the petition is denied.

FOOTNOTES

1.   Unless otherwise stated, all section references are to the Penal Code.

2.   In every published decision considering an officer's qualifications, it is an either/or issue.  (See, e.g., Martin v. Superior Court (1991) 230 Cal.App.3d 1192, 1199, 1201, 281 Cal.Rptr. 682 [seven years' experience qualifies the officer under § 872, subd. (b), where the “experience/training requirements are stated in the alternative”];  Hollowell v. Superior Court (1992) 3 Cal.App.4th 391, 395, 4 Cal.Rptr.2d 321 [proof of POST completion required when officer has only two years' experience].)

MIRIAM A. VOGEL, Associate Justice.

ORTEGA, Acting P.J., and MASTERSON, J., concur.