WOODMAN v. PEOPLE (1988)

In this consolidated proceeding,¹ petitioners, Neil Woodman, Stewart Woodman, Steven Homick, Anthony Majoy, and Robert Homick, seek a writ of prohibition to prevent the respondent court from taking further proceedings on an information, charging them with two counts of having conspired to murder (Pen. Code, §§ 182 & 187) and two counts of having murdered (Pen. Code, § 187) Gerald and Vera Woodman, the parents of petitioners, Neil and Stewart Woodman.²  As to each murder count, there were enhancement allegations (principal armed with a firearm;  § 12022, subd. (a)) and special circumstances allegations (murder for financial gain, multiple murders, murder while lying in wait;  § 190.2, subd. (a)).  They challenge the respondent court's order denying their motion to set aside the information pursuant to section 995.³

Because the commitment of petitioners was illegal in that they were denied certain substantial rights at their preliminary hearing, we conclude that prohibition should issue.

FACTS & PROCEDURAL BACKGROUND

A. Introduction

The following factual and procedural history will primarily focus on the witness, Stewart Siegel, and his testimony at an in camera, ex parte hearing and petitioners' preliminary hearing, in addition to the conduct of the committing magistrate and the prosecution at those hearings.   Those matters formed the centerpiece of most of petitioners' contentions, especially the contention which we feel will necessitate the issuance of a writ of prohibition.

On September 25, 1985, Gerald and Vera Woodman were found shot to death in their Mercedes Benz automobile in the subterranean garage of their Brentwood condominium complex after returning from dinner breaking the Yom Kippur fast.   In connection with these killings, petitioners were charged by complaint with the crimes of conspiracy to commit murder and murder with special circumstances.   The theory of the real party in interest (People) was that the Homick brothers and Majoy allegedly did the killings and were hired by the Woodman brothers.⁴

B. Discovery Motion

On April 22, 1986, the committing magistrate heard the discovery motion of petitioner, Neil Woodman, which included a number of discovery requests to the People.   The other petitioners were allowed by the committing magistrate to join the discovery motion of Neil Woodman.

At this hearing, the committing magistrate granted some of the discovery requests, denied others, and reserved decision on others pending the holding of an in camera hearing requested by the prosecutor.   One such matter to be dealt with in an in camera hearing was request number 8, calling for information about all cases in which informer witnesses, including Stewart Siegel, had testified or could be expected to testify.

Some of petitioners' counsel expressed concern about the ex parte nature of such a hearing.   Counsel for petitioner, Neil Woodman, in addressing the committing magistrate on this matter, stated:

“Now that we're finished with most of the items relating to the informants, I would like one thing placed on the record about the in camera hearing.

“As usual, in the in camera hearing, we are obviously not going to be there to tell you why we think these things are necessary.   I would request, if the court has any doubts about whether or not the item is ․ discoverable—based on its relationship to this case, that we be entitled to—some chance to state to the court our theories as to why that person's information is relevant as to this case.”

Counsel for petitioner, Stewart Woodman, expressed the same concern, stating that he hoped “the court is not put into a position where the court is determining relevance based upon the People's theory of the case.”   At the conclusion of the hearing, the committing magistrate continued the discovery motion to April 29, 1986, for a discovery compliance hearing.

C. In Camera, Ex Parte Hearing

On April 28, 1986, the committing magistrate conducted the in camera hearing ex parte.   In addition to the magistrate, the prosecutor and Detective Jack Holder were present.   Part of the proceedings were not recorded.   During the reported portion of the hearing, sworn testimony was given by two witnesses, namely, Stewart Siegel, a purported informant, and Marcel G. Nadeau, a special agent of the California Department of Justice.   The pertinent portion of each witness' testimony is as follows:

Siegel testified that he was cooperating with law enforcement agencies in the instant case, in a triple homicide case in Las Vegas, Nevada, called the Tipton murder case, and in an ongoing investigation of a former Federal Bureau Investigation agent in connection with a bingo parlor in San Diego.   His cooperation was part of a written agreement with the office of the California State Attorney General whereby he would get more lenient treatment in a pending grand theft case in San Diego in which he had pled guilty to four counts of a six count indictment.   He further testified that, starting in the late 1970's until 1983, he had an ongoing relationship with the FBI as a paid secret informant, and provided information in organized crime cases.   He testified that the disclosure of his career as a paid informant for the FBI would place him at great personal risk because Gaetano Vastola, a mob boss, under indictment in New Jersey, would blame him for the indictment.   Siegel's claim of jeopardy was merely supported by unsworn statements from the prosecutor and Detective Holder.   The testimony of Agent Nadeau described the plea bargain out of which Siegel's cooperation in the instant case arose.

At the conclusion of the in camera hearing, the committing magistrate determined on the record that the prosecution must disclose to the petitioners the full extent of Siegel's agreement of cooperation reached in the San Diego case with the Attorney General's office.   But in connection with Siegel's activity as an informant in other cases, the committing magistrate determined on the record to deny petitioners' request for discovery.   He stated the following reasons for his decision.   First, he concluded that Siegel's career as a paid informant was irrelevant to his credibility in the instant case because, in addition to his cooperation in the other cases occurring prior to the time the instant case came into existence, “the court is aware that Mr. Siegel is working off a case in San Diego and his credibility is somewhat suspect before the court in this matter.”   Second, he concluded that “the need to maintain confidentiality of [Siegel's] status as an informant in the past for various law enforcement agencies far outweighs the need for disclosure of his status as an informant in those prior cases.”   Finally, he concluded that “inquiry into the details of Mr. Siegel's prior activity as an informant would be unduly prejudicial under Evidence Code Section 352 and take up an inordinate amount of court time.”

Next, the committing magistrate ordered the court reporter to prepare a transcript of the reported portion of the in camera proceedings, which was to be kept under seal, together with the reporter's notes, until the court reporter received an order from a court of higher jurisdiction than the municipal court to release the transcript.   In the event the reporter received an order from another municipal court judge, either to turn over the transcript of the proceedings or to make her notes public in any way, the committing magistrate ordered the reporter to immediately communicate to him the existence of such an order.

D. Discovery Compliance Hearing

At the discovery compliance hearing on April 29, 1986, the committing magistrate, among other things, announced his rulings on petitioners' discovery requests to the defendants and their counsel.   As to request number 8, the committing magistrate stated merely that “the court has conducted an in camera hearing, and the evidence that is being provided by the District Attorney will be the extent of the evidence that is received by the defense regarding request number 8.”   Neither the petitioners nor their counsel were informed by the committing magistrate or the prosecution that Siegel had testified at the in camera hearing, or the basis, nature, or scope of the court's ruling regarding the in camera proceeding.

E. Preliminary Hearing

On May 12, 1986, the preliminary hearing began.   Siegel was called by the prosecution on the fourth day of the hearing and testified both on direct and cross-examination on the following pertinent matters: ⁵

Siegel testified that he and Steve Homick became friends in Atlantic City, New Jersey, in 1982 and developed an ongoing relationship.   He met Robert Homick and Anthony Majoy through Steve Homick.   When he and Steve Homick moved to Las Vegas, Nevada, they rekindled their friendship and he saw him often between May 1984 and March 1986.   In the summer of 1984, he had a short meeting with the Woodman brothers and Steve Homick in Las Vegas about leasing a hotel and casino.

Siegel further testified that in August 1985 Steve Homick borrowed walkie talkies and a lapel microphone from him, saying they were to be used for surveillance.   Steve Homick told Siegel that the Woodman brothers were having financial difficulties and that he had been employed to kill two people.⁶  A couple of days later, Steve Homick asked Siegel about the Jewish high holidays, such as when they fell, their significance, what time people would fast and break the fast after the Yom Kippur holiday, and what time they get home after their meal.   Later, he told Siegel that he was to receive $20,000 for the job.

With respect to his relationship with law enforcement authorities, Siegel testified that he had only three brief contacts with FBI agents before December 1985, and that he had no conversations other than those with law enforcement about Steve Homick until December 1985.   In early 1984, he was first contacted by FBI agent Dwyer, regarding his and Steve Homick's involvement with American International Airlines.   At the time, he had nothing to tell Dwyer about any criminal activity on Homick's part.   In April 1984, Dwyer retired from the FBI and was hired by Siegel as assistant manager of the bingo parlor located in San Diego.   Later, Siegel was fired as manager of the bingo parlor because of mismanagement, the basis on which the grand theft charges were brought against him in San Diego.

Siegel testified that he was next contacted by another FBI agent, from Las Vegas, some time between October 1984 and September 1985, about an arson which Steve Homick was suspected of having committed in Hawaii.   The agent told him that he was being asked about that because of telephone calls about the arson received in Hawaii by a beeper registered to him.   He informed the agent that Homick was with him in San Diego at the time of the arson.   Asked later whether he gave any law enforcement agency any information pertaining to Steve Homick's possible involvement or planning of any criminal activity, Siegel testified that he had not.   However, after he was recalled by the prosecution, Siegel admitted that he had lied, saying that he had in fact given that information in April of 1985.

Finally, in January or February of 1985, he was contacted by FBI agent James Livingston about a $10,000 check issued by American International Airlines to Siegel's brother.

Siegel testified that he learned in December 1985 he was the target of a criminal investigation after several search warrants were served on his home and other locations.   Because he felt that he had a serious problem and needed help, he personally contacted agent Livingston, saying that he had information about a triple murder in Las Vegas that he wanted to trade.   His information implicated Steve Homick in the triple homicide.   Asked whether the deal with the FBI would include money to hire a lawyer, Siegel testified that he thought they might do this because he had seen “too much television.”

Asked later about the bargain he had struck with law enforcement and whether it was sufficient to get him the disposition he wanted, Siegel testified that it was not, but that he “had opened up a can of worms.”   In explaining the meaning of the phrase “a can of worms,” Siegel was asked and answered the following questions:

Steve Homick's counsel:  “Well, what can of worms had you opened up?

“A. The can of worms that I'm sitting here.

“Q. As far as being an informant?

“A. In this instance, yes.

“Q. So this was a new can of worms that you had not been in before, is that correct?

“A. That's correct.”

Near the conclusion of the prosecution's direct examination of Siegel, it was revealed that Siegel had testified at an in camera hearing when Siegel was asked, and he answered, the following question:

“Prosecutor:  Also, one of the interviews I conducted with you—we did conduct hearings in court, in camera hearings where you testified;  is that correct?

“A. That's correct.”

After this revelation, but before cross-examination of Siegel began, petitioners' counsel made inquiry to the committing magistrate whether they would be allowed to examine any of the in camera proceedings that the court conducted with Siegel.   The committing magistrate informed them that they would not.

The testimony adduced from Siegel during his direct examination by the prosecution, bearing on his credibility, dealt only with his plea bargain reached in the San Diego case with the Attorney General's office.   His testimony revealed that, as part of his plea bargain, Siegel pled guilty to four counts of grand theft of a six-count indictment and agreed in writing with the Attorney General's office to cooperate in the following matters:  the FBI's ongoing investigation of one specific person, the instant case, the Tipton murder case in Las Vegas, and a junket fraud scheme in the east limited to the year of 1985.

From its beginning, the cross-examination of Siegel was restricted by the committing magistrate with regard to his background.   This left unchallenged the distinct impression created on direct examination that his career as an informant started in 1985.   The first defense counsel to cross-examine Siegel engaged in the following exchange at the beginning of his examination of Siegel:

Stewart Woodman's counsel:  “Q.   When you were working in Atlantic City, Mr. Siegel, did you ever work as an FBI informant?

“Prosecutor:  Objection.   Also irrelevant.

“The Court:  Based upon the court's prior ruling, the objection is sustained on both relevancy grounds and specifically under Evidence Code, section 352.

“In that regard, the court wants to put on the record that it's relying in part on People versus Burgener, B-u-r-g-n-e-r, a very recent decision of the California Supreme Court, 41 Cal.3d 505, specifically at pages 524 to 525, 224 Cal.Rptr. 112, 714 P.2d 1251.   That case discusses the permissible scope of cross-examination and specifically holds that a trial court has discretion 352 to limit cross-examination on matters which would be cumulative on the issue of credibility.   And since I believe we're talking strictly about credibility here rather than the guilt or innocence per se of the defendants, that Burgener applies, and for reasons I've previously cited, both in open court.

“And in addition to that, I'm going to advise there was questioning by [the prosecutor] indicating there was an in camera hearing involving Mr. Siegel, for all the reasons on the record, both in open court and in camera, such questioning in my view is cumulative on the issue of credibility and the objection is sustained on that ground.”

Thereafter, further cross-examination of Siegel with regard to his prior connections with law enforcement was restricted at a number of points.

At the conclusion of the preliminary hearing, petitioners were held to answer the complaint.

F. Section 995 Motion

On September 15, 1986, petitioners filed a written motion to dismiss the information pursuant to section 995, which was set for hearing on October 17, 1986, before a superior court judge.   However, prior to the hearing, the judge ordered ex parte the release of the transcript of the ex parte, in camera hearing of April 28, 1986, to the defense.   Apparently, the judge realized, in preparing for the 995 hearing, that a violation of section 190.9 ⁷ had occurred, which might implicate due process rights, and felt, after reading the transcript of the in camera proceedings and inquiring about the other investigations, “that after the passage of time that there was no need to protect Mr. Siegel in a death penalty case.”   Thereafter, petitioners filed another 995 motion raising the issue of illegal commitment based on due process violations.

The 995 motion was heard by the judge on November 14, 1986.   The judge found that Siegel had given fabricated testimony at the preliminary hearing, that the defense could have impeached Siegel with his in camera testimony in addition to the extent he had already been impeached at the preliminary hearing, and that the holding of part of the in camera hearing off-the-record was a violation of section 190.9.   However, the judge determined that these findings provided no basis to set aside the information.   He reasoned that due process rights were not violated because (1) the magistrate properly held that the in camera testimony could be concealed to protect the witness and ongoing criminal investigations, (2) the magistrate knew that parts of Siegel's testimony at the preliminary hearing were fabricated, but was able to take the truth into account in making his decision, (3) Siegel's testimony against the petitioners was corroborated, (4) while the knowing use of perjured testimony at trial requires reversal, such action is not necessary with regard to the knowing use of perjury at the preliminary hearing because of the lower standard of proof, and (5) the petitioners would now be able to use the in camera testimony to prepare for trial.

CONTENTIONS

Petitioners claim that the information should be dismissed because, having been denied certain substantial rights at their preliminary hearing, they were unlawfully committed by the magistrate.   In support of this claim, they assert the following contentions:

(1) They were denied due process of law when the committing magistrate considered and decided, during an ex parte, in camera hearing, the prosecution's claim that certain information requested in petitioners' discovery motion was protected by the official information privilege, without holding an additional hearing to give the petitioners and their attorneys an opportunity to be heard on the matter.

(2) They were denied their rights of due process, counsel and cross-examination, when the committing magistrate, without notice to petitioners or their attorneys, considered and determined during in camera hearing to restrict the petitioners' right to cross-examine one of the prosecution principal witnesses at the preliminary hearing regarding his career as a paid informer and, thereafter, enforced such order during the preliminary hearing under the charade of Evidence Code section 352 without informing the petitioners, or their counsel, of the basis, nature, or scope of the prior ex parte order.

(3) They were denied their right to a reviewable record as required by section 190.9, because the committing magistrate failed to make a complete record of the in camera hearing.

(4) They were denied their right of due process by the failure of the prosecution to disclose material evidence affecting the credibility of a principal prosecution witness at the preliminary hearing.

(5) They were denied their right of due process when both the magistrate and the prosecutor knowingly allowed a prosecution witness either to perjure himself or to create a misleading and false impression by his testimony.

In addition, petitioners, Neil Woodman and Stewart Woodman, contend that they were committed without probable cause on the special circumstances allegation of lying in wait because there was no evidence at the preliminary hearing, showing either that the murders were committed while lying in wait or that the petitioners intended the murders be committed by lying in wait.⁸

We issued an alternative writ of prohibition and order to show cause, and hearing has been had thereon.

DISCUSSION

In the instant case, both the petitioners and the People agree that the ex parte, in camera hearing was conducted under Evidence Code section 915, subdivision (b),⁹ and was concerned with the People's claim of privilege against disclosure of official information under Evidence Code section 1040.¹⁰  They also agree that the magistrate made two principal rulings at the in camera hearing.   One sustained the People's claim of privilege against disclosure of official information under Evidence Code section 1040.   The other restricted the cross-examination of Siegel regarding his career as a paid informer for the F.B.I. and was used for this purpose during the preliminary hearing.

Although petitioners attack both rulings, our major focus will be on petitioners' contention that their right to counsel was denied when the magistrate made its ruling restricting the cross-examination of Siegel.   Specifically, petitioners contend that this ruling, made on the magistrate's own motion, without notice or an opportunity to be heard, and which was kept secret and used at the preliminary hearing, primarily denied them their right to the assistance of counsel.   They also contend that such denial necessarily infringed upon their rights of due process and confrontation.   They argue that, although the magistrate appeared to base his rulings, made at the preliminary hearing, restricting the cross-examination of Siegel about his career as a paid informer, on specific evidentiary objections, this was merely a charade to enforce the secret ex parte ruling of the magistrate, which allowed the knowing use of perjured testimony.

I.

SCOPE AND STANDARD OF REVIEW

 Section 995 requires that a criminal information be set aside whenever a defendant has not been legally committed by a magistrate.   It is settled that denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion.  (People v. Pompa–Ortiz (1980) 27 Cal.3d 519, 523, 165 Cal.Rptr. 851, 612 P.2d 941.)   An information, of course, will not be set aside merely because there has been some irregularity or minor error in procedure in the preliminary examination.   (People v. Elliot (1960) 54 Cal.2d 498, 502–503, 6 Cal.Rptr. 753, 354 P.2d 225.)

While case authority has not provided an easy formula to determine whether a right is substantial within the meaning of the Pompa–Ortiz principle, the cases do give adequate guidance.  (People v. Stone (1983) 139 Cal.App.3d 216, 222, 188 Cal.Rptr. 493.)

This principle has had its fullest application in connection with the right of counsel.   Where a defendant, for example, is denied his right of counsel at the preliminary examination, the courts have consistently held that such a fundamental deprivation made the ensuing commitment illegal.  (See, e.g., Bogart v. Superior Court (1963) 60 Cal.2d 436, 440, 34 Cal.Rptr. 850, 386 P.2d 474;  People v. Napthaly (1895) 105 Cal. 641, 644–645, 39 P. 29;  People v. Hellum (1962) 205 Cal.App.2d 150, 154, 22 Cal.Rptr. 724;  McCarthy v. Superior Court (1958) 162 Cal.App.2d 755, 758–759, 328 P.2d 819.)

On the other hand, in the case of erroneous rulings of the magistrate on the admissibility of evidence, the courts have used a more selective test to apply this principle.   In determining whether an erroneous ruling amounted to a denial of “substantial rights” in the preliminary hearing, the courts have primarily focused on whether such error deprived a defendant of the right to present and cross-examine witnesses to overcome the prosecution's case or establish an affirmative defense at the preliminary hearing.  (See, e.g., Jennings v. Superior Court (1967) 66 Cal.2d 867, 879–880, 59 Cal.Rptr. 440, 428 P.2d 324;  Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 673, 162 Cal.Rptr. 389.)

Moreover, in applying this principle in the context of a pretrial challenge to a commitment on the ground that a defendant was denied a substantial right at his preliminary hearing, the courts have consistently taken the position that prejudice need not be shown and that, if the right is a substantial one, the information should be set aside, regardless of whether there was probable cause for the commitment.  (People v. Pompa–Ortiz, supra, 27 Cal.3d at p. 529, 165 Cal.Rptr. 851, 612 P.2d 941;  Jennings v. Superior Court, supra, 66 Cal.2d at p. 874, 59 Cal.Rptr. 440, 428 P.2d 324;  see also O'Neal v. Superior Court (1986) 185 Cal.App.3d 1086, 1097, 230 Cal.Rptr. 257.)   The rationale for such relief is that article VI, section 13, of the California Constitution does not require a showing of prejudice at the time of pretrial writ review for the obvious reason there has been no trial and hence no judgment of conviction.  (People v. Pompa–Ortiz, supra, 27 Cal.3d at p. 529, 165 Cal.Rptr. 851, 612 P.2d 941.)   Furthermore, before trial the matter can be expeditiously returned to the trial court for proceedings free from the challenged defect.  (People v. Wilson, (1963) 60 Cal.2d 139, 152, 32 Cal.Rptr. 44, 383 P.2d 452.)

II.

DENIAL OF RIGHT TO COUNSEL

We will now turn to an examination of petitioners' claim that their right to assistance of counsel was denied when the magistrate, without notice to, and in the absence of, petitioners' attorneys, ruled at the in camera hearing to restrict the petitioners' right to cross-examine Siegel at the preliminary hearing about his career as a paid informer.

 “The right to counsel is a fundamental constitutional right which has been carefully guarded by the courts of this state.”  (People v. Williams (1954) 124 Cal.App.2d 32, 38, 268 P.2d 156.)   The accused has the right, in any criminal prosecution in any court whatever, to appear and defend, in person with counsel.  (Cal. Const. art. I, § 15.)   At the preliminary examination the magistrate must inform the accused of his right to counsel, ask him if he desires counsel, and allow him a reasonable time to send for counsel.  (In re James (1952) 38 Cal.2d 302, 310, 240 P.2d 596.)   Moreover, an accused may not be examined at the preliminary examination, unless he is represented by counsel, or unless he waives his right to counsel after being advised at such examination of his right to aid of counsel.  (§ 866.5.)   More importantly, in a capital case, a criminal defendant must be represented in court by counsel “at all stages of the preliminary and trial proceedings. ”  (§ 686, subd. 2;  emphasis added.)   The due process clause of the Fourteenth Amendment furthermore requires counsel to be furnished to the accused in capital cases.  (Powell v. Alabama (1932) 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158.)

In the instant case, as we previously noted, the purpose of the ex parte, in camera hearing was to consider petitioners' request for discovery and the People's claim of privilege against disclosure of official information.   We conclude, as do the parties, that these proceedings were authorized and governed by Evidence Code section 915, subdivision (b).   Such statutory authority is provided to enable the judge to compel disclosure of the information claimed to be privileged in order to be in a position to weigh the competing interests intelligently.  (See People v. Superior Court (Biggs) (1971) 19 Cal.App.3d 522, 526, 97 Cal.Rptr. 118;  2 Jefferson, Cal.Evidence Benchbook (2d ed. 1982) § 35.5, p. 1323.)

In this context, the first question we must address is whether the official information privilege itself provided the court with authority to make a ruling restricting the petitioners' right to cross-examine Siegel about his career as a paid informer for the F.B.I.   We conclude that it does not.

Evidence Code section 1040 provides a public entity with a privilege “to refuse to divulge official information when the need to maintain its secrecy is greater than the need for disclosure in the interests of justice.”   (Pitches v. Superior Court (1974) 11 Cal.3d 531, 538, fn. omitted, 113 Cal.Rptr. 897, 522 P.2d 305.)   Official information is defined as “information acquired in confidence by a public employee in the course of his duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”  (Evid.Code, § 1040;  emphasis added.)

Historically, we note that “[t]he Legislature has declared that the Evidence Code generally ‘establishes the law of this state respecting the subject to which it relates.’  [Citation.]  The statutory scheme is regarded as the sole and authoritative arbiter of all matters which come within its purview.   With respect to the subject of privileges, the code states specifically that ‘[t]he provisions of Division 8 (commencing with Section 900) relating to privileges shall govern any claim of privilege made after December 31, 1966.’   (Citation.)  Thus, the Legislature has codified, revised, or supplanted any privilege previously available at common law:  the courts are no longer free to modify existing privileges or to create new privileges.  (Citation.)”  (Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 539–540, 113 Cal.Rptr. 897, 522 P.2d 305.)

 Hence, this statutory privilege “represents the exclusive means by which a public entity may assert a claim of governmental privilege based on the necessity for secrecy.”  (Id., at p. 540, 113 Cal.Rptr. 897, 522 P.2d 305;  Rubin v. City of Los Angeles (1987) 190 Cal.App.3d 560, 583, 235 Cal.Rptr. 516;  People v. Superior Court (Biggs), supra, 19 Cal.App.3d 522, 526, 97 Cal.Rptr. 118.)   And while this statutory privilege establishes two different privileges—an absolute privilege if disclosure is forbidden by a federal or state statute, and a conditional privilege in all other cases pursuant to which privilege attaches when the court determines, in accordance with precise statutory standards, that disclosure is against the public interest (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123, fn. omitted, 130 Cal.Rptr. 257, 550 P.2d 161;  Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 538–539, 113 Cal.Rptr. 897, 522 P.2d 305)—we conclude, and the parties agree, that the privilege, which was involved and sustained by the magistrate here, was the conditional privilege.

Moreover, where the government's claim of privilege is sustained, Evidence Code section 1042, subdivision (a), directs the court, in order to protect the interests of an accused, to make an appropriate order adverse to the prosecution “ ‘upon any issue in the proceeding to which the privileged information is material.’ ”  (People v. Superior Court (Biggs), supra, 19 Cal.App.3d 522, 526, 97 Cal.Rptr. 118.) ¹¹

 By the terms of section 1040, such a privilege belongs to the government, not Siegel.   As the petitioners correctly point out, this statutory privilege does not offer a blanket protection to anyone holding information which the government wants withheld from the public.   It simply protects “information acquired in confidence by a public employee.”   (Evid.Code, § 1040, subd. (a))  Hence, the holder of this statutory privilege is the government, not Siegel.   Nor does Siegel come within the meaning of the statute to be able to claim such a privilege.

 In sum, the protection of this statutory privilege does not extend to the knowledge of Siegel, because the information that he has does not come within the definition of official information.   Nor does the protection of Evidence Code section 915, subdivision (b), forbidding anyone from disclosing official information, extend to Siegel for the simple reason that this protection applies only to those who learned about such information during the course of the in camera proceedings.   As the comment of the Assembly Judiciary Committee on section 1040 makes clear, the “government does not acquire a privilege to prevent an informant from revealing his knowledge merely because that knowledge has been communicated to the government.”  (Assem.Com. on Judiciary, Comm. to Evid.Code, § 1040;  2 Witkin, Cal.Evidence (3d ed. 1986)  Witnesses, § 1227, p. 1169.)

Thus, it should be apparent from the foregoing discussion that, for us to extend the protection of this statutory privilege to cover the knowledge of Siegel, would require us to make a very significant modification of the privilege.   Such an extensive modification, however, is not for the courts to undertake.   Courts are no longer free “to modify existing privileges or to create new privileges.”  (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 540, 113 Cal.Rptr. 897, 522 P.2d 305.)

 We therefore conclude that, although the conditional privilege of Evidence Code section 1040 may have applied to the People in the instant case, it did not apply to Siegel.   We further conclude, more importantly, that this privilege did not authorize the magistrate in the instant case to make a ruling, during the in camera hearing, restricting petitioners' right to cross-examine Siegel about his career as a paid informer for the F.B.I.

 The next question we must answer is whether the magistrate had the statutory or inherent authority, independent of the governmental privilege, to expand the purpose of the in camera proceeding to include considering and determining the petitioners' right to cross-examine Siegel about his career as a paid informer, without notice to, and in the absence of, petitioners' attorneys.   We conclude that the magistrate did not.

 The resolution of this issue requires us to consider and reconcile two fundamental priciples of our criminal justice system.   One principle is that a magistrate conducting a preliminary hearing has broad discretion to fashion and guide the procedures to be followed in cases before him to insure the orderly administration of justice.  (See Telegram–Tribune, Inc. v. Municipal Court (1985) 166 Cal.App.3d 1072, 1078–1079, 213 Cal.Rptr. 7.)

The other principle is that the adversary process is the norm in our criminal justice system.  (See Mills v. Superior Court (1986) 42 Cal.3d 951, 957, 232 Cal.Rptr. 141, 728 P.2d 211;  Jones v. Superior Court (1971) 4 Cal.3d 660, 667, 94 Cal.Rptr. 289, 483 P.2d 1241;  see also Herring v. New York (1975) 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593, United States v. Nixon (1974) 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039.)

The parties have cited no case, nor have we found one through our own research, where a court in an in camera hearing and on an ex parte basis—that is, without notice to, and in the absence of, defense counsel—considered and determined the scope of an accused's right to cross-examine a key prosecution witness.  Evidence Code section 915 does not provide such authority.   Its sole purpose is to deal with claims of privileges.  (Telegram–Tribune, Inc. v. Municipal Court, supra, 166 Cal.App.3d at p. 1078, 213 Cal.Rptr. 7.)

Nor does Evidence Code Section 765 provide such authority, as both parties concede.   That section merely provides that “(a) ․ the trial court shall exercise reasonable control over the mode of interrogation of a witness so as to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.”   There is nothing in the general language of that statute or in its history that warrants a presumption that it was meant to empower a court to promulgate a radically new procedure to consider and determine the scope of an accused's right to cross-examine a key prosecution witness, as was done here.  (See Hochheiser v. Superior Court (1984) 161 Cal.App.3d 777, 780, 208 Cal.Rptr. 273.)

 Moreover, while a trial court has inherent power to exercise its discretion and control over all proceedings before it (Johnson v. Banducci (1963) 212 Cal.App.2d 254, 260, 27 Cal.Rptr. 764), “[t]he preliminary examination must be held basically in accordance with the procedures established by law, and if the magistrate disregards substantial rights guaranteed to the defendant the resulting commitment is unlawful.”  (People v. Elliot, supra, 54 Cal.2d at p. 503, 6 Cal.Rptr. 753, 354 P.2d 225.)

In Hochheiser, we underscored the crucial distinction for determining the extent of the inherent authority of the court.  (Hochheiser, supra, 161 Cal.App.3d 777, 208 Cal.Rptr. 273.)   There, we explained that the distinction lies “between judicial rulemaking inspired or required by constitutional limitations on the power of government and judicial rulemaking which would merely grant to the government rights which it might legislatively claim for itself.”  (Id., at p. 784, 208 Cal.Rptr. 273.)   The ex parte, in camera procedure fashioned by the magistrate here to limit petitioners' right to cross-examine Siegel, a key prosecution witness, falls into the latter category.   We therefore conclude, as we did in an analogous situation in Hochheiser, that such a far-reaching innovation in a preliminary examination “ ‘is more appropriately left to the Legislature for initial consideration.’ ”  (Id., at p. 783, 208 Cal.Rptr. 273.)

Thus, we find no grounds in reason or policy to say that a court has such authority.   To hold otherwise, would impair the adversarial character of the preliminary hearing.   The right of a criminal defendant to an adversary proceeding is fundamental to our system of justice.   The openness of criminal proceedings serves to preserve both the appearance and the reality of fairness.   By preserving the adversarial character of the preliminary hearing, the committing magistrate is better able to carry out his or her responsibility “to weigh the evidence, resolve conflicts and give or withhold credence to particular witnesses.”  (Jones v. Superior Court, supra, 4 Cal.3d at p. 667, 94 Cal.Rptr. 289, 483 P.2d 1241.)   A contrary position would result in the deprivation of certain fundamental rights.

Nonetheless, the People argue that the magistrate here, after conducting the in camera hearing and holding that disclosure was unnecessary under the official information privilege, realized that such disclosure could still be made while Siegel was under cross-examination, unless restricted.   According to the People's argument, the magistrate had no recourse at the in camera hearing but to make a ruling restricting the petitioners' right to cross-examine Siegel at the preliminary hearing, especially where there was a showing that disclosure would endanger the personal safety of the witness.   The People cite People v. Rodriguez (1986) 42 Cal.3d 730, 230 Cal.Rptr. 667, 726 P.2d 113, People v. Watson (1983) 146 Cal.App.3d 12, 193 Cal.Rptr. 849, and People v. Gallo (1981) 127 Cal.App.3d 828, 179 Cal.Rptr. 662, in support of their argument.

The People's reliance on those cases is, however, misplaced for two basic reasons.   First, in each of those cases, the court considered and determined to restrict a defendant's right of cross-examination either during a trial or preliminary hearing with notice and in the presence of defense counsel, not during an ex parte, in camera proceeding, as here.   The in camera hearing here was far too constricted to permit an enlightened determination whether the disclosure would endanger the personal safety of Siegel.   Shared only by the magistrate and the People, Siegel's claim went unchallenged.   Petitioners' attorneys were not allowed to probe Siegel's assertion.   Moreover, we fail to see the overriding need for the quick action taken by the magistrate here to protect Siegel, since the People were not seeking to protect the identity of Siegel (Evid.Code, § 1041(a)) but instead planned to call him as a witness.   In fact, less than five months later, the trial judge, acting on his own initiative, ordered the transcript of the in camera proceedings released to the defense, concluding that “there was no need to protect Mr. Siegel in a death penalty case.”

Secondly, in each of those cases, unlike here, the “environmental background” of the prosecution witness included his or her career as a paid informer.   (See, e.g., People v. Watson, supra, 146 Cal.App.3d at p. 21, 193 Cal.Rptr. 849;  People v. Gallo, supra, 127 Cal.App.3d at p. 836, 179 Cal.Rptr. 662.)

 More importantly, we find that, except for the unchallenged and uncorroborated testimony of Siegel, his claim of danger, asserted at the in camera hearing, was not supported by competent evidence.   The unsworn statements of the prosecutor and a police officer merely amounted to offers of proof.   The burden of the People to establish that the safety of Siegel would be endangered by disclosure of his career as a paid informer “is not met by a mere offer of proof that evidence of danger exists;  rather it calls for competent evidence from which the magistrate can determine the existence of that preliminary fact.”  (People v. Watson, supra, 146 Cal.App.3d at p. 20, 193 Cal.Rptr. 849.)

 Yet we find that those cases cited by the People do suggest the proper procedure which should have been followed here.   The People could have during the preliminary examination, when defense counsel attempted to cross-examine Siegel about his career as a paid informer, requested a hearing to consider and determine their claim that such disclosure would endanger the personal safety of Siegel.  (See People v. Watson, supra, 146 Cal.App.3d at pp. 19–20, 193 Cal.Rptr. 849;  Evid.Code, §§ 400, 401, 405.)   The hearing to determine the preliminary fact could have been held in camera in the presence of the magistrate, the prosecutor, defense counsel and the witness.   (See, e.g., People v. Castro (1979) 99 Cal.App.3d 191, 200, fn. 6, 160 Cal.Rptr. 156.)   Once there was a showing that disclosure would endanger the personal safety of the witness, the court would then have the discretion to deny disclosure of the information, restrict the petitioners' right to cross-examine Siegel on this matter, and take appropriate steps to protect the witness by issuing a protective order preventing anyone at the in camera hearing from disclosing the information.   However, this was not done in this case.

We therefore conclude that petitioners' right of counsel was denied at the preliminary hearing, or a stage thereof, since the in camera hearing here bore such a direct and functional relationship with the preliminary hearing, in light of the fact that the magistrate at the in camera hearing considered and determined the scope of petitioners' right to cross-examine Siegel, a key witness at the preliminary hearing.  (See, e.g., Kentucky v. Stincer (1987) 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631, 643–644 [direct relationship of competency hearing of witness to trial may make it a “stage of trial.”]

Finally, we must determine the effect of this error in the present context.   As we previously noted, an information will not be set aside merely because there has been some irregularity or minor error in procedure in the preliminary examination.  (People v. Elliot, supra, 54 Cal.2d at pp. 502–503, 6 Cal.Rptr. 753, 354 P.2d 225.)

 It is well established that the defendant at a preliminary examination has the right to examine and cross-examine witnesses for the purpose of overcoming the prosecution's case or establishing an affirmative defense (Jones v. Superior Court, supra, 4 Cal.3d 660, 667, 94 Cal.Rptr. 289, 483 P.2d 1241.)   This right, at one's preliminary examination, is essential to the “due process of law” guaranteed by the Fourteenth Amendment.  (Gallaher v. Superior Court, supra, 103 Cal.App.3d 666, 671, 162 Cal.Rptr. 389, quoting from Jennings v. Superior Court, supra, 66 Cal.2d at p. 875, 59 Cal.Rptr. 440, 428 P.2d 324.)   It is as critical as the right to cross-examine witnesses at one's trial, for at the preliminary examination also, it is the judicial responsibility “ ‘to weigh the evidence, resolve conflicts and give or withhold credence to particular witnesses.’ ”  (Id., 103 Cal.App.3d at p. 671, 162 Cal.Rptr. 389, quoting from Jones v. Superior Court, supra, 4 Cal.3d at p. 667, 94 Cal.Rptr. 289, 483 P.2d 1241.)

“ ‘While the trial judge has broad discretion to control the ultimate scope of cross-examination designed to test the credibility or recollection of a witness [citation], yet wherever possible that examination “should be given wide latitude, particularly in cases involving ‘a witness against a defendant in a criminal prosecution.’ ”  [Citation.]' ”  (Jennings v. Superior Court, supra, 66 Cal.2d 867, 877, 59 Cal.Rptr. 440, 428 P.2d 324.)   This is especially true at a preliminary hearing where 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 trial.’ ”  (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 588, 150 Cal.Rptr. 435, 586 P.2d 916, quoting from Coleman v. Alabama (1970) 399 U.S. 1, 9–10, 90 S.Ct. 1999, 2003–2004, 26 L.Ed.2d 387.)

 Moreover, at a minimum, an accused should be given an opportunity at his preliminary hearing to place a key prosecution witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the committing magistrate cannot fairly appraise them.   (See Alford v. United States (1931) 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed.2d 624;  People v. Mardian (1975) 47 Cal.App.3d 16, 40–41, 121 Cal.Rptr. 269.)

Here, unlike People v. Watson, supra, 146 Cal.App.3d at p. 21, 193 Cal.Rptr. 849, and People v. Gallo, supra, 127 Cal.App.3d at page 836, 179 Cal.Rptr. 662, where the witness was placed in his proper setting as a paid informer, petitioners were not given that opportunity.   The record here gives the distinct but unchallenged impression that Siegel's career as an informant started in 1985.   Yet, if for some reason Siegel were not available to testify at the trial of this case, the People could still attempt to use a transcript of his testimony given at the preliminary hearing as prior testimony by showing, inter alia, that the petitioners had the opportunity at the preliminary hearing to cross-examine Siegel with an interest and motive similar to that existing at trial.  (See, e.g., People v. Louis (1986) 42 Cal.3d 969, 990, 232 Cal.Rptr. 110, 728 P.2d 180.)

Despite this, the People argue this case is controlled by Rogers v. Superior Court (1955) 46 Cal.2d 3, 291 P.2d 929 and Mills v. Superior Court, supra, 42 Cal.3d 951, 232 Cal.Rptr. 141, 728 P.2d 211, where the court held that a writ of prohibition will not lie to review rulings of the magistrate on the admissibility of evidence at the preliminary hearing, unless the commitment is based entirely on incompetent evidence.   We disagree.   In each of those cases, unlike here, the magistrate ruled on the admissibility of evidence during the preliminary examination, in the presence of defense counsel, and only after each side had been given ample opportunity to argue the matter.   Instead, we find that this case is analogous to People v. Hellum, supra, 205 Cal.App.2d 150, 22 Cal.Rptr. 724, where the court focused on the denial of the night to counsel rather than the admissibility of the evidence.

In Hellum, defense counsel objected to the introduction of certain evidence at the preliminary hearing.   The hearing was continued for seven days by the magistrate to allow each side to file points and authorities on the question of admissibility.   The magistrate continued the matter another week, without notifying defense counsel.   When the case was finally called, the defendant, who was in custody, was present, but his counsel, who had not been notified, was not.   Despite the absence of defense counsel, the magistrate permitted the prosecutor to orally argue the admissibility of the evidence, ruled on the matter, and then held defendant to answer.   On appeal, the appellate court held that defendant was denied a substantial right-that is, the right of counsel, during the preliminary hearing, making his ensuing commitment illegal.  (Id., at pp. 153–154, 22 Cal.Rptr. 724.)   The Hellum court explained:  “To go forward with an essential proceeding in the absence of counsel and without a waiver of his presence, deprived [defendant] of his right to counsel as effectively as though that right had been specifically denied.”   (Id., at p. 154, 22 Cal.Rptr. 724.)

Still, according to the view of the People, the magistrate had the benefit of Siegel's testimony, adduced at the in camera hearing, about his long career as a paid informer to place him in his proper setting.   Also, the magistrate could, with such testimony, properly exercise his discretion under Evidence Code section 352 to restrict the petitioners' right to cross-examine Siegel on such matters on the ground that it would be cumulative.

If this view were correct, section 865 would be erased from the books and the preliminary hearing would be reduced “to an ex parte proceeding at which the defendant's presence would be a meaningless gesture.”  (Jennings v. Superior Court, supra, 66 Cal.2d at p. 880, 59 Cal.Rptr. 440, 428 P.2d 324.)   That section provides that “The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf.”  (§ 865.)

Morever, the record here does not affirmatively show that the magistrate “weigh[ed] prejudice against probative value” in making his decision to restrict the petitioners' right to cross-examine Siegel regarding his career as a paid informer with the FBI under Evidence Code section 352, especially since the magistrate based his ruling on the ground that the matter would be cumulative on the issue of credibility.  (People v. Green (1980) 27 Cal.3d 1, 25, 164 Cal.Rptr. 1, 609 P.2d 468.)   Rather, the record pointedly reveals that the magistrate's decision was clearly based on the ruling made at the in camera hearing to restrict petitioners' right to cross-examine Siegel on his career as a paid informer.   We therefore conclude that the magistrate's decision was a mere echo of his “prior ruling,” occurring as it did at the very beginning of the cross-examination of Siegel by defense counsel, yet depending for its basis, as it apparently did, on Siegel's undisclosed testimony adduced at the in camera hearing.

Gross error was committed by the magistrate here when he made the critical decision to rely on steps taken at the in camera hearing to protect the witness Siegel without informing the petitioners and their counsel.   Such error set the stage for the deprivation of petitioners' right of counsel as well as their rights of due process and cross-examination.   In addition, it permitted the knowing use of false, or at least, misleading testimony by Siegel at the preliminary hearing, when he went unchallenged by the magistrate or the prosecution, after testifying on cross-examination that his role as an informer in the instant case was a new experience for him.

These deprivations seriously placed in jeopardy the fact-finding process of the preliminary hearing “ ‘ “ ‘to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and expense of a criminal trial.’ ” ' ”  (Jones v. Superior Court, supra, 4 Cal.3d at p. 668, 94 Cal.Rptr. 289, 483 P.2d 1241.)

Nothing we say here is to be taken as impairing the power of the magistrate to exercise reasonable control over the preliminary hearing to insure the orderly administration of justice.   On the other hand, the record in this proceeding shows a state of affairs which the committing magistrate should not have allowed to occur.

A committing magistrate should always appreciate that in presiding over a preliminary hearing the court is not composed of himself or herself alone.   Our law contemplates that the principal officers at a preliminary hearing will consist of the magistrate, the state's attorney, and the counsel for the defendant.  (See Koski v. James (1975) 47 Cal.App.3d 349, 354, 120 Cal.Rptr. 754;  People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, 206, 103 Cal.Rptr. 645.)

“Each of such officers has his role and each in our scheme of things is equally essential to the concept of due process.   The [magistrate's] function as presiding officer is preeminently to act impartially.   It includes the duty to see that each party (always of course within the law) has equal opportunity to advance his claims and to protect his interests.   On every issue before the [magistrate] and at every stage of the [preliminary hearing] the services of counsel are available to aid the [magistrate] in reaching an informed conclusion.”  (Cooper v. Superior Court (1961) 55 Cal.2d 291, 301, 10 Cal.Rptr. 842, 359 P.2d 274.)   Each of the principal officers of the court is representing the cause of justice.   Moreover, a “fair [preliminary hearing] is the product of the contributions of the [committing magistrate] and of all participating attorneys.”  (Ibid.)

We realize the pressures placed on judicial officers charged with the administration of the criminal law are great, especially, as here, when the crime is murder, the victims were the parents of two of the petitioners, and the motive appears to be financial gain.   But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees given to an accused at a preliminary hearing.

For the above reasons, we conclude that petitioners were denied substantial rights at their preliminary hearing, which rendered their ensuing commitment illegal.   Thus the appropriate remedy is to set aside the information.   The People will be entitled, by action with deliberate speed within the constraints of section 1387, to bring the same charges against the petitioners to a second preliminary examination.   Since we have concluded that petitioners' commitment is illegal, we see no reason to discuss the remaining separate and independent contentions of petitioners.

DISPOSITION

Let a peremptory writ issue commanding the respondent court to take no other action herein other than to vacate its order denying petitioners' motion to dismiss the information, and enter a new order granting said motion as to case number A779943.   The alternative writ is hereby discharged.

I reluctantly concur in Justice Thompson's opinion in this case.   I say reluctantly not because of any doubts about the soundness of his conclusion the trial judge committed error in the conduct of this preliminary hearing.   No, I was dragged slowly and almost unwillingly to this same conclusion by logic, the statutory framework and prior decisions despite my strong personal preference the prosecution of this heinous crime go forward without the temporary interruption our judgment will require.

I am quite familiar with the importance of protecting those informants whose testimony is so critical to the investigation and prosecution of organized crime.¹  So I sympathize fully with the trial judge's attempts to accomplish that objective.   However, as Justice Thompson establishes conclusively, the trial judge chose the wrong way to do so—an approach which trampled on the defendants' legal and constitutional rights.

I struggled for many months—as did Justice Thompson—seeking to fashion a remedy for this and the other errors in this preliminary hearing which would not derail, even temporarily, the prosecution of this crime.   However, neither Justice Thompson nor myself was able to come up with an alternative sanction.   Indeed, as is amply demonstrated in Justice Thompson's majority opinion, the only lawful and effective remedy for constitutional error at the preliminary hearing stage is dismissal of the pleading.   Of course, the People are free to file a new pleading charging the same offenses against the same defendants and thus commence the prosecution anew.   Accordingly, this remedy is not as final or as costly as the reversal of a conviction after a full scale trial.

Justice Antonin Scalia, when compelled to invoke the far more drastic measure of reversing a conviction because of constitutional error, observed:  “[T]here is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the [rights] of us all.”  (Arizona v. Hicks (1987) 480 U.S. 321, ––––, 107 S.Ct. 1149, 1155, 94 L.Ed.2d 347.)   Here, petitioners, if guilty, will not be “insulated” from their “criminality” by our decision.   But we still must pay a lesser though admittedly significant price in order to protect the rights of us all to a fair preliminary hearing and to adequate cross-examination of the witnesses against us.

I respectfully dissent.

I view the magistrate's ruling limiting cross-examination of Siegel, made in the in camera hearing at the time discovery was denied, in a light different from that of my colleagues.   The principles articulated by our Supreme Court in Jennings v. Superior Court, 66 Cal.2d 867, 874–879, 59 Cal.Rptr. 440, 428 P.2d 304, indeed, are vital to due process but I do not agree that they compel a finding that petitioners here were deprived of a substantial right.   Given the entire record, I am persuaded that no due process deprivation occurred, and I support the order denying petitioners' motions under section 995, Penal Code.

I

IN CAMERA PROCEEDINGS

The in camera hearing took place several weeks prior to the preliminary examination and arose out of petitioners' discovery motion in which they made various requests.   The motion was heard before the committing magistrate who granted some and denied others.   Item number 8 in the motion called for information about all cases in which informer witnesses, including Seigel, had testified or would be expected to testify.   Because the prosecution claimed a privilege as to the cases in which Siegel had testified or could be expected to testify (§§ 1040, 1042, Evid.Code) based on the necessity for secrecy (Pitchess v. Superior Court, 11 Cal.3d 531, 539–540, 113 Cal.Rptr. 897, 522 P.2d 305), the claim was heard in an in camera proceeding (§ 915, subd. (b), Evid.Code) out of the presence of petitioners and their counsel (§ 1042, Evid.Code).   The hearing was conducted on the record with an official court reporter present who, at the conclusion of the hearing, was ordered by the magistrate to report the proceedings;  the magistrate also ordered the reporter's transcript to be sealed until ordered otherwise by a court of jurisdiction higher than the municipal court.   On the 995 motions, the superior court judge released the reporter's transcript to petitioners.

The prosecutor, Detective Holder, Stewart Siegel and special agent Nadeau, California Department of Justice, appeared, and Siegal and Nadeau gave the following testimony.   Siegel has a criminal record;  he suffered a felony conviction in Pennsylvania in 1971, and one in 1972 in Las Vegas for fraud by wire.   In early 1986, he was charged in San Diego with six counts of grand theft;  pursuant to a plea bargain made with the State Attorney General's Office, Siegel entered a plea of guilty to each of four counts;  the sentence hearing was set for July 1, 1986.   For consideration of leniency and pursuant to the plea bargain, Siegel agreed to cooperate with law enforcement in its on-going investigation in his own fraud (San Diego) case which involves the bingo parlor activities of a retired Federal Bureau of Investigation (FBI) agent, in the investigation in the instant case (Woodman homicides), and with Las Vegas authorities in the investigation of the Tipton triple murder case.   He cooperated as requested.   To obtain a gaming license, denied him because of his 1971 conviction, he agreed to and did cooperate with the New Jersey State Police and New Jersey Gaming Commission's Intelligence Division in a criminal investigation.   From the late 70's through 1983, Siegel was a paid informant for the FBI in various cases involving organized crime figures;  if his cooperation with the FBI in these cases is divulged it will jeopardize his life because of the violent character of those on whom he has informed, one of whom, a mob boss, was then under indictment.   Siegel's paid informant activities for the FBI occurred prior to his plea bargain (1986) and prior to the commission of the Woodman homicides (1985), and have no connection with either case.

The magistrate granted discovery to “the full extent” of Siegel's plea bargain in his San Diego case and his subsequent cooperation in the on-going investigation thereof involving a retired FBI agent, in the instant case (Woodman homicides) and in the Tipton triple murders in Las Vegas.   He denied discovery of Siegel's prior unrelated activities as a paid informant for the FBI (from the late 70's through 1983) in all matters occurring prior to the time the Woodman case came into existence (1985), and denied inquiry into these matters for the reason that the prior FBI cases, which are unrelated to the Woodman homicides, are irrelevant to Siegel's credibility in this case because,

(1) they bear no relationship to Woodman, Siegel's activities in the FBI cases having occurred prior to the time the Woodman case came into existence;

(2) aware that Siegel is “working off a beef” in his own case as an informant, the magistrate viewed Siegel's credibility as suspect and his testimony with caution, and stated that details of Siegel's prior FBI activities as an informant would not add materially to his assessment of Siegel's credibility, and before he finds him credible he will need corroboration of Siegel's testimony in the Woodman case;  and

(3) going into details of his activities for the FBI would constitute a “clear danger to Mr. Siegel's well-being,” “the need to maintain confidentiality of his [informer] status ․ far outweighs the need for disclosure of his status as an informant in those cases” because of the background and character of those on whom he has informed, the charges in Woodman involve murder for hire and some of those involved in Woodman are suspects in the Tipton murder case;  and for the same reasons inquiry into the details of Siegel's prior paid informant activities for the FBI would be “unduly prejudicial under Evidence Code Section 352, and take up an inordinate amount of court time.”   Thus, as to item number 8, the magistrate ruled that “the evidence that is being provided by the District Attorney will be the extent of the evidence that is received by the defense.”

II

NO SUBSTANTIAL RIGHT DENIED

The majority holds that the magistrate's ruling curtailing cross-examination of Siegel made in the in camera hearing amounted to a deprivation of a “substantial right” in their preliminary hearing in that there was a denial of right to counsel, denial of right of confrontation, and denial of right of cross-examination.   Reliance is placed primarily on Jennings v. Superior Court, 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304, holding that denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and the information subject to dismissal.  (See also People v. Pompa–Ortiz, 27 Cal.3d 519, 523, 165 Cal.Rptr. 851, 612 P.2d 941)  “Substantial right” has not been defined with any precision, and “no easy formula for ‘substantial right’ was promulgated by Jennings ” (People v. Stone, 139 Cal.App.3d 216, 222, 188 Cal.Rptr. 493).   However, it is apparent from the authorities that whether there has been a deprivation of a “substantial right” depends upon the context of the denial and the circumstances.  Jennings did give several clear examples of a “substantial right,” among them, the right to assistance of counsel at the preliminary examination (66 Cal.2d at pp. 874–875, 59 Cal.Rptr. 440, 428 P.2d 304) and the right to present and cross-examine witnesses to overcome the prosecution's case or establish an affirmative defense at the preliminary hearing.  (Pp. 879–880, 59 Cal.Rptr. 440, 428 P.2d 304.)   I can only conclude on the record before me that none of these rights was abridged.

A. Right to Assistance of Counsel

Of great concern to the majority is that neither petitioners nor their counsel were present when the ruling as to discovery of item number 8 and the ruling limiting cross-examination of Siegel were made in the in camera hearing, to which the majority rightly refers as an ex parte in camera hearing;  and that petitioners were deprived of counsel when the magistrate made the evidentiary ruling.   The majority holds that he had no authority to make such ruling in camera.   It is also suggested that the in camera hearing, though held two weeks prior to the preliminary examination, was an integral part of the preliminary hearing thus, petitioners were deprived of counsel at the preliminary hearing.   Under the circumstances here I cannot agree that the magistrate lacked authority to make the ruling in camera at the same time he denied discovery, for I think it only reasonable to construe the ruling denying inquiry into the informant activities of Siegel in the FBI cases, as an integral part of the order denying discovery of that same information, and for the same reasons.   Were it otherwise, to make such a ruling with counsel present, disclosure would have to be made of the very information of which the magistrate had already denied discovery.

Because the prosecution claimed to be privileged the cases in which Siegel had testified or could be expected to testify (§§ 1040, 1042, Evid.Code), the magistrate held a hearing outside the presence of the defendant and his counsel as authorized by section 915 subdivision (b), Evidence Code, to determine if discovery should be granted.  Sections 1040 and 1042 in concert “create an orderly and fair procedure designed to safeguard the legitimate interests of both the government and the criminal defendants.”   (Pitchess v. Superior Court, 11 Cal.3d 531, 540, 113 Cal.Rptr. 897, 522 P.2d 305.)  Section 915, subdivision (b) enables the judge to require the disclosure of the information as to which the claim of privilege is asserted, to permit him to weigh the competing interests and determine whether nondisclosure would deprive defendant of a fair trial.

Accordingly the information was disclosed to the magistrate in camera.   Having evaluated the potential benefits of disclosure to petitioners in order to determine whether, despite the risks involved, the interests of justice require making the materials available (see People v. Alexander, 140 Cal.App.3d 647, 658, 189 Cal.Rptr. 906), having found that the need to maintain confidentiality of his status as an informant in the past for various law enforcement agencies (FBI) far outweighs the need for disclosure of his status as an informant in those prior cases (§§ 1040, 1042, Evid.Code;  see also Holman v. Superior Court, 29 Cal.3d 480, 485–486, 174 Cal.Rptr. 506, 629 P.2d 14) because they were irrelevant to Siegel's credibility in the Woodman case, having determined nondisclosure would not deprive petitioners of a fair trial and having denied discovery of the information, the magistrate at the same time, for the same reasons and consistent with denial of discovery, denied inquiry into those same activities.   It makes no sense to me on the one hand, to permit the People to invoke the privilege and the protection of secrecy of evidence adduced in camera afforded by sections 1042 and 915, subdivision (b) Evidence Code, then on the other hand to permit the destruction of the effectiveness of the order denying discovery by requiring a hearing in the presence of petitioners and their counsel for a ruling whether or not inquiry into that evidence should be permitted, which hearing would call for disclosure of the very matters of which discovery was denied.   Plainly, the purpose of the in camera hearing and the subsequent order denying discovery would be defeated.   My position is that the ruling denying inquiry into these matters made at the same time as the magistrate made his order denying disclosure thereof and for the same reasons, was an integral part of the order without which the order would have been ineffective and useless.   In the absence of any case to the contrary, it would seem to me in the circumstances here where such a ruling is part and parcel of the order preventing disclosure, in effect implementing it, that the authority given to the magistrate to conduct the in camera proceedings in the first place (§ 915, subd. (b), Evid.Code) includes the authority to conclude the matter by making a ruling denying inquiry into the same information.   It is my view that having made an order preventing disclosure and, confronted with disclosure by way of cross-examination of the very information he held to be privileged, the magistrate had no recourse but to restrict cross-examination to eliminate inquiry into the protected information.

Inasmuch as I have concluded that the magistrate in the in camera hearing did not lack the authority to make the ruling preventing inquiry into the protected material, there is no merit to any suggestion that the ruling somehow converted that portion of the in camera hearing into a part of the preliminary hearing in which petitioners were denied representation by counsel.   I fail to see how this situation fits into any of the cases holding that denial of assistance of counsel in the preliminary examination is denial of a “substantial right.”

B. Right to Confrontation and Cross Examination

“Not every error in procedure or erroneous evidentiary ruling by a magistrate at a preliminary hearing requires an information to be set aside.   However, the denial to the defendant of a ‘substantial right,’ such as disallowance of cross-examination on a vital issue, will invalidate the commitment.  (Jennings v. Superior Court (1967) 66 Cal.2d 867, 874, 879 [59 Cal.Rptr. 440, 428 P.2d 304];  People v. Barrett (1969) 2 Cal.App.3d 142, 148 [82 Cal.Rptr. 424].)”  (People v. Stone, 139 Cal.App.3d 216, 221, 188 Cal.Rptr. 493.)   And it clear from the authorities that not all limitations on cross-examination by the defense on preliminary examination constitute deprivation of a “substantial right.”   Any complaint of a denial of confrontation and cross-examination at the in camera hearing in the circumstances here, is not well taken for the hearing had in the absence of petitioners and their counsel was proper.  (§§ 1042, 915, subd. (b), Evid.Code.)   As to the preliminary hearing, cross-examination of Siegel was not denied, only limited as to one aspect.   Siegel was cross-examined for two and one-half days and his background (except for his previous FBI activities) was thoroughly explored.

My colleagues place heavy reliance on Jennings v. Superior Court, 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304 and Gallaher v. Superior Court, 103 Cal.App.3d 666, 162 Cal.Rptr. 389.   But our case is neither Jennings nor Gallaher.   The court found in Jennings that defendant was deprived of a substantial right—cross-examination in the preliminary hearing of arresting officers about their previous contact with a woman who ran from defendant's car just prior to his arrest on a narcotic charge.   The defense claimed that the officers with the help of the woman “set him up”.   Our Supreme Court recognized in Jennings that not in every instance in which a cross-examiner's questions are disallowed will defendant's right to a fair hearing be abridged, but held that where the subject of cross-examination concerns the matter at issue, the refusal to permit such questions results in denial of a fair hearing, and that defendant did intend to present and was deprived of an affirmative defense (entrapment) at the preliminary hearing.  (66 Cal.2d at p. 879, 59 Cal.Rptr. 440, 428 P.2d 304.)   The proposed line of cross-examination concerned events that were part of the actual criminal transaction at issue.   Likewise, in Gallaher the events about which defendant sought to cross-examine the witness were part of the criminal transaction charged.   The witness had driven a car defendant had exited to commit a shooting after which he returned to the car and said “I shot him.”   The magistrate disallowed cross-examination of the witness as to anything he heard defendant say immediately after he said “I shot him.”   Reasonably related to guilt or innocence (103 Cal.App.3d at p. 673, 162 Cal.Rptr. 389), it could have disclosed utterances material to an affirmative defense, i.e., self-defense.

People v. Stone, 139 Cal.App.3d 216, 188 Cal.Rptr. 493 puts both of these cases in proper perspective.  “Jennings and Gallaher thus demonstrate that denial of cross-examination concerning events which were part of the actual criminal transaction itself denies the defense a substantial right.   By contrast, case law also reveals that a trial judge, and a fortiori, a magistrate conducting a preliminary hearing, is within his discretion in denying cross-examination of a prosecution witness as to matters not relating to the criminal event itself and which only affect the weight of the direct testimony.”  (P. 222, 188 Cal.Rptr. 493.)   The court cited People v. Ross, 276 Cal.App.2d 729, 734, 81 Cal.Rptr. 296;  People v. Lavergne, 4 Cal.3d 735, 742, 94 Cal.Rptr. 405, 484 P.2d 77;  and People v. Moses, 24 Cal.App.3d 384, 397, 100 Cal.Rptr. 907, in which curtailment of cross-examination concerning collateral matters even though relevant to credibility of the prosecution witness, was upheld.

The instant case is like People v. Stone, 139 Cal.App.3d 216, 188 Cal.Rptr. 493 and not unlike the cases cited therein, in that the proposed line of cross-examination did not involve the criminal transaction at issue or a vital issue or the issue of guilt or innocence or tend to produce evidence material to an affirmative defense, as in Jennings and Gallaher;  and if relevant at all (the magistrate found it to be irrelevant to Siegel's credibility) the proposed cross-examination could only have been relevant to impeach Siegel or as going to the weight of his direct testimony and, unlike in Jennings or Gallaher, would not have added any more detail to the court's knowledge of the criminal transaction at issue or to its assessment of Siegel's credibility.   In that regard the magistrate noted that “the details of his prior [FBI] activities as an informant would not add materially to the court's assessment of Mr. Siegel's credibility.”   I do not perceive in what manner such exclusion could have denied petitioners a fair hearing.  (People v. Stone, 139 Cal.App.3d 216, 224, 188 Cal.Rptr. 493.)   In Stone, the officers testified they forced entry because they smelled ether;  the court found no denial of a substantial right when the magistrate refused to allow cross-examination to test the credibility of the officers concerning whether they did in fact smell ether or used it as a ruse to force entry.   It held “the proffered evidence entailed a substantial time commitment for evidence of only tenuous relevance, and that going only to general credibility.   The magistrate therefore had the discretion to exclude the evidence.”  (139 Cal.App.3d at p. 224, 188 Cal.Rptr. 493, fn. omitted.)   In addition, the court held “the proffered line of questioning in this case was collateral because it did not concern the transaction at issue, but rather other searches.”  (139 Cal.App.3d at p. 225, 188 Cal.Rptr. 493.)

I agree that a defendant at a preliminary examination has the right to examine and cross-examine witnesses for the purpose of overcoming the prosecution's case or to establish an affirmative defense;  that is a basic constitutional right.   However, the majority does not suggest that petitioners sought to establish an affirmative defense and what it might have been, or that the prosecution's case could have been overcome by cross-examining Siegel on cases entirely unrelated in both time and subject matter to the offenses charged in this case and to Siegel's plea bargain in his own case.

It is only the magistrate in a preliminary hearing who must be convinced that a witness is lying.   It is his responsibility to weigh the evidence, resolve conflicts and give or withhold credence to particular witnesses.   The credibility of witnesses at the preliminary examination is a question of fact within the province of the committing magistrate.  (Jones v. Superior Court, 4 Cal.3d 660, 667, 94 Cal.Rptr. 289, 483 P.2d 1241.)   By the time petitioners sought to cross-examine Siegel, the magistrate had already determined he could not be believed without corroborating testimony.   After hearing Siegel's testimony in camera, the magistrate said that before he would accord Siegel credibility in this case, he would need corroboration—that his testimony would be suspect and viewed with caution, and details of his prior activities as an informant would not add materially to his assessment of Siegel's credibility.   At the preliminary hearing and during cross-examination of Siegel, the magistrate reiterated this rejection of Siegel's credibility commenting—that his credibility is “suspect,” he comes into court with “negative baggage on the issue of credibility” and the protected information would add nothing to the issue of Siegel's credibility which has been “sufficiently attacked.”   The only thing petitioners could accomplish by the cross-examination of Siegel on the protected activities already was a fait accompli.

Even though he found the proposed line of cross-examination to be on unrelated and collateral matters and irrelevant to Siegel's credibility, the magistrate did engage in a weighing process under section 352, Evidence Code, in both the in camera hearing and the preliminary examination,¹ and ruled accordingly.²  “Evidence Code section 352 allows the trial court to exclude even relevant evidence if its probative value is outweighed by other factors.   Among them is the risk that admission will necessitate undue consumption of time.   Cumulative evidence is excludable on this bases.   It is within the discretion of the trial court to exclude impeachment evidence as cumulative when there is already evidence of the witness's lack of credibility.  [Citations.]”  (People v. Burgener, 41 Cal.3d 505, 525, 224 Cal.Rptr. 112, 714 P.2d 1251.)

Extensive cross-examination of Siegel took place at the preliminary hearing.   He was questioned at length about his San Diego fraud case and the plea bargain, his informant activities in that case, the Woodman case and the triple murder case in Las Vegas, and about his criminal record.   Petitioners were not deprived of a full opportunity to test the weight of his testimony and the credibility of the witness.   Cross-examination was curtailed as to only the most irrelevant unrelated matters which at most, if relevant, would go only to Siegel's credibility;  and for two and one-half days petitioners had the opportunity to and they did test Siegel's credibility, which the magistrate already distrusted.   Moreover, the witness was placed in his proper setting and petitioners had every opportunity to put the weight of his testimony and his credibility to the test before the magistrate at the preliminary hearing, thus they were not deprived of a substantial right by the limited curtailment of Siegel's cross-examination.  (People v. Rodriguez, 42 Cal.3d 730, 751–752, 230 Cal.Rptr. 667, 726 P.2d 113;  People v. Watson, 146 Cal.App.3d 12, 20–21, 193 Cal.Rptr. 849;  People v. Gallo, 127 Cal.App.3d 828, 836–837, 179 Cal.Rptr. 662.)   Despite any limitation, Siegel's testimony was placed in its proper “setting” by an extensive examination of his motives for cooperating with the prosecution, and his credibility was throughly explored and challenged.   For the purpose of enabling the magistrate to assess Siegel's credibility, evidence of his paid informant activities for the FBI could have added little or nothing to his “environmental background.”  (42 Cal.2d at p. 752, 230 Cal.Rptr. 667, 726 P.2d 113.)

What was his environmental background?   Direct and voluminous cross-examination established that Siegel had been convicted of a felony in 1971 in Pennsylvania and placed on probation, and in 1972 of fraud by wire in Las Vegas;  that as an outgrowth of his illegal activities arising out of his operation of a bingo parlor in San Diego (fixing or rigging games), he was charged with six counts of grand theft ($136,000) and, as a result of a plea bargain, pleaded guilty to four counts;  that he had information concerning a triple murder in Las Vegas (Tipton) and sought to trade that information for assistance from the prosecutor in seeking leniency in his grand theft case;  that he also was willing to and did obtain additional information implicating others in his San Diego case in order to help himself when sentence is imposed;  that he was involved in a junket fraud investigation in the east in 1985 and cooperated with the FBI as well as in the New Jersey case, and had given the FBI information about an arson in Hawaii.   Siegel's direct testimony showed that in this case, too, he had informed on the principals.   The evidence disclosed he had a history of being an informant, also that he lied under oath, a fact readily apparent to the magistrate although unknown to petitioners at the time but of which they became aware while Siegel was still on the stand.   Siegel was extensively questioned concerning his motivation for contacting the FBI, entering into the plea bargain in his own case, lying about other matters and testifying in this (Woodman) case.   His motivation is pretty clear—in his testimony concerning his plea bargain and subsequent informant activities, asked by defense counsel “would you do anything to get the hell out of jail?”  [in the fraud case in San Diego] Seigel answered, “Almost anything.”   The testimony, too lengthy to relate, placed Siegel in his proper setting and produced sufficient background information to allow the magistrate to weigh and assess his credibility.   The majority distinguishes this case from Rodriguez and People v. Watson, 146 Cal.App.3d 12, 193 Cal.Rptr. 849 and People v. Gallo, 127 Cal.App.3d 828, 179 Cal.Rptr. 662, on the ground that in each of those cases the “environmental background” of the prosecution witness included his career as a paid informer.   What else except for pay, whether it be for money (a secret witness fee) or for consideration of leniency in sentencing or to “get the hell out of jail” or to obtain a gaming license, did Siegel cooperate with the authorities in their investigation of various criminal activities?   Further, it is not as though petitioners and the magistrate did not know Siegel had served as a paid FBI informant in various criminal cases—it is just that petitioners did not know the names of the cases or of those involved.   Surely this background shows him to be as much a base hireling as further evidence he was a “paid” FBI informant in certain named cases and his activities herein;  what else would it prove but a motive to lie in this case?

FOOTNOTES

1.   We ordered five petitions, numbers B024257 (Neil Woodman v. Superior Court ), B024259 (Stewart Woodman v. Superior Court ), B026400 (Steven Homick v. Superior Court ), B026838 (Anthony J. Majoy v. Superior Court ), and B027356 (Robert Homick v. Superior Court ), consolidated for all purposes and find that each was timely (Ondarza v. Superior Court (1980) 106 Cal.App.3d 195, 200, 164 Cal.Rptr. 892.)   Moreover, these consolidated petitions seek nonstatutory review by prohibition of the denial of their motion to set aside the information.  (See Johnson v. Superior Court (1979) 97 Cal.App.3d 682, 684, fn. 1, 158 Cal.Rptr. 899.)

2.   Unless otherwise stated, all statutory references are to the Penal Code.

3.   Section 995, subdivision (a) states in relevant part that:  “․ the ․ information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases:“․“(2) If it is an information:“(A) That before the filing thereof the defendant had not been legally committed by a magistrate.“(B) That the defendant had been committed without reasonable or probable cause.”

4.   Michael Lee Dominguez was also named as a defendant in the complaint, but pled guilty to two counts of first degree murder and agreed to testify for the prosecution, which he did.

5.   In connection with the conspiracy to murder count, the testimony of Siegel played a key role in connecting and explaining the other testimony adduced at the preliminary hearing.   This testimony is summarized as follows:  (1) In early 1982 Muriel Jackson, Vera Woodman's sister, made an unsuccessful effort to cancel an insurance policy on Vera Woodman's life, from which the Woodman brothers would benefit.  (2) Three months before the murders, police, responding to a neighbor's report of suspicious activity, questioned Robert Homick who had been sitting in his car near the elder Woodmans' home for hours.  (3) In July 1984 two former police officers were paid $500 by Steve Homick and Neil Woodman to provide security at the bar mitzvah of Neil's son, and ensure the elder Woodmans did not disrupt the affair.   One of the officers heard Homick say “he would waste [the Woodmans]” if he had to.  (4) A few days before Yom Kippur in 1985, which fell on September 25, Stewart Woodman called his aunt, Sybil Michaelson, inquired whether the family would be getting together on Yom Kippur, and when they would eat, and asked his aunt to tell his mother he loved her, and to wish her a good year.  (5) Michael Dominguez testified he pled guilty to two counts of first degree murder in this case, and agreed to testify against the other defendants.   Dominguez further testified in September 1985 he drove from Las Vegas to Los Angeles to help the Homick brothers and Majoy to perpetrate a robbery;  the three drove to a three-story condominium and tested walkie talkies procured by Steve Homick;  the following day Steve Homick and Dominguez drove to the elder Woodmans' Brentwood condominium where Dominguez rang the doorbell and determined they were not at home;  Dominguez was taken to a location to be a lookout for a two-door tan Mercedes automobile, with instructions to notify Steve Homick by walkie talkie when he saw the car;  he announced the arrival of the car and two minutes later Steve Homick appeared, but not from the direction of the condominium;  Steve Homick and Dominguez then went to a restaurant and had dinner.  (6) About 10:30 p.m. on September 25, 1985, a neighbor of the elder Woodmans heard gunshots.   He ran out on his balcony and heard some rustling in the bushes when he saw someone in a hooded black garment running down the alley.   He unsuccessfully pursued this person and then went into the garage where he found the bodies of the elder Woodmans in their car.  (7) An employee of the phone company testified that on September 24 and 25 calls were made between public telephones, Robert Homick's apartment, the residence of Majoy's wife, and Manchester Products, owned by the Woodman brothers.  (8) Steven Strawn, vice-president of Manchester, testified that in February 1985 Neil Woodman instructed him to draft a $750 check to National Collection Services, operated by Robert Homick;  in March 1986, the day of the Woodman brothers' arrest, Neil Woodman telephoned and instructed him to destroy papers located underneath Neil's desk, which included Steve Homick's business card.

6.   At the conclusion of the People's case, the committing magistrate ruled that this statement of Steve Homick would be admitted only against him because it was not in furtherance of the conspiracy.

7.   Section 190.9 states in relevant part:  “In any case in which a death sentence may be imposed, all proceedings conducted after the effective date of this section in the justice, municipal, and superior courts, including proceedings in chambers, shall be conducted on the record with a court reporter present.”  (Added by Stats. 1984, c. 1422, § 2, effective Jan. 1, 1985;  emphasis added.)

8.   After the writ petitions were consolidated for all purposes, we invited the parties to file supplemental briefs, which they have done, addressing (1) the legal basis, the nature, and scope of the ex parte, in camera proceeding of April 28, 1986, (2) whether the ex parte nature of the foregoing in camera proceeding and orders emanating therefrom violated any of petitioners' due process rights and, if so, which ones, and (3) whether petitioners still retain the right to disqualify the committing magistrate pursuant to section 170.6 of the Code of Civil Procedure after the completion of discovery and of the foregoing in camera proceeding.

9.   Evidence Code section 915 states, in pertinent part:“(a) Subject to subdivision (b), the presiding officer may not require disclosure of information claimed to be privileged under this division in order to rule on the claim of privilege․“(b) When a court is ruling on a claim of privilege under Article 9 (commencing with Section 1040) of a Chapter 4 (official information and identity of informer) or under Section 1060 (trade secret) and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and such other persons as the person authorized to claim the privilege is willing to have present.   If the judge determines that the information is privileged, neither he nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.”

10.   Evidence Code section 1040 states, in pertinent part:“(a) As used in this section, ‘official information’ means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.“(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and:“(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state;  or“(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice;  but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding.   In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.”

11.   The People argue that, after sustaining the governmental privilege, the magistrate made an adverse finding to the prosecution in accordance with Evidence Code section 1042, subdivision (a), ruling that Siegel's testimony would be viewed with caution and thus require corroboration before its credibility is established.We find this argument lacks merit because the magistrate first found that the privileged information was not material and, secondly, decided to view Siegel's testimony with caution, not because of the privileged information, but because he knew “that Mr. Siegel [was] working off a case in San Diego and his credibility [was] somewhat suspect before the court in this matter.”

1.   See, e.g., Organized Crime:  Challenge to the American Legal System, Journal of Criminal Law, Criminology and Police Science, (1962) Vol. 53, pp. 399–425;  (1963) Vol. 43, pp. 1–29, 127–145.

1.   The majority complains the record does not affirmatively show that the magistrate did in fact weigh prejudice against probative value, citing People v. Green, 27 Cal.3d 1, 24–25, 164 Cal.Rptr. 1, 609 P.2d 468.   One cannot read the rulings of the magistrate at the conclusion of the in camera hearing and not know that he engaged in the weighing process under section 352, Evidence Code.   The same may be said of the numerous rulings sustaining the Peoples' objections at the preliminary hearing.   While the magistrate on each occasion did not declare he was engaged in such a process, it is clear from the arguments of counsel, statements by the magistrate and the rulings themselves that actually he did all that was required under the statute.

2.   In camera the magistrate stated Siegel's credibility was suspect and he would need corroboration to find his testimony credible;  and details of Siegel's prior activities as an informant for the FBI “would be unduly prejudicial under Evidence Code section 352 and take up an inordinate amount of time” and would not add materially to the court's assessment of Siegel's credibility.At the preliminary hearing petitioners repeatedly sought to cross-examine Siegel about those FBI contacts covered by the order denying discovery.   As many times, the magistrate ruled on the People's objection that the proposed line of cross-examination was “cumulative” repeating that Siegel's credibility is “suspect,” he comes into court with “negative baggage on the issue of credibility” and further information would “be nothing more than cumulative” and add nothing “to Siegel's credibility and discovery is not necessary to insure petitioners a fair preliminary hearing”;  and the information is neither relevant nor necessary to guarantee them a fair hearing.   Again the magistrate sustained the People's objection “on both relevancy grounds and specifically under Evidence Code section 352” and as “cumulative on the issue of credibility”;  another time he ruled, credibility of Siegel has been “sufficiently attacked” so there “is absolutely no additional probative value in pursuing the line of inquiry” finally, he said further inquiry is “not necessary and would be cumulative under Evidence Code section 352.”

THOMPSON, Associate Justice.