Herbert

Following denial by the trial court of petitioner’s motion to dismiss (Pen. Code, § 995), we issued an alternative writ and stay order.

The sole issue before us is whether a criminal defendant’s right to confrontation of witnesses is violated or abridged when at the direction of the magistrate, the defendant is so seated that he can hear but not see the witness. The witness in question was a five-year-old girl, the complaining witness at the preliminary examination on a complaint charging defendant with sexual offenses against the minor.

Petitioner is charged with two counts of oral copulation of a child (Pen. Code, § 288a, subd. (c)) and one count of lewd acts upon a child (Pen. Code, § 288). The child is the daughter of petitioner’s wife, not blood-related to petitioner. The charges arose from alleged incidents at a drive-in movie in mid-October 1978 and later in the home. The child was five years old at the time of the preliminary hearing (Apr. 3, 1980).

From the magistrate’s statement read into the record, it appears the child, at the preliminary examination, was initially reluctant or unable to testify. The court thereupon adjourned to chambers with the child and…

I concur in the result and join in the opinion of the court except insofar as it declares that the right of confrontation at preliminary hearing emanates from the United States Constitution (U.S. Const., Amend. VI).

The constitutional right of confrontation is “basically a trial right” (Barber v. Page (1968) 390 U.S. 719, 725 [ 20 L.Ed.2d 255, 260 , 88 S.Ct. 115 ]; Snyder v. Massachusetts (1934) 291 U.S. 97, 107 [ 78 L.Ed. 674, 679 , 54 S.Ct. 330 , 90 A.L.R. 575 ]; see also In re Montgomery (1970) 2 Cal.3d 863, 867 [ 87 Cal.Rptr. 695 , 471 P.2d 15 ]; People v. House (1970) 12 Cal.App.3d 756, 766-767 [ 90 Cal.Rptr. 831 ]). Although the federal Constitution requires a probable cause hearing to justify significant pretrial detention of defendant, that hearing need not include traditional adversary safeguards such as the right of confrontation (Gerstein v. Pugh (1975) 420 U.S. 103, 119-125 [ 43 *672 L.Ed.2d 54, 68-72 , 95 S.Ct. 854 ]; cf. Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 671 [ 162 Cal.Rptr. 389 ]). Moreover, the federal Constitution does not require a judicial hearing at all as a prerequisite to prosecution by information (Gerstein, supra, 420 U.S. at p. 119 [ 43…

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, W. Scott Thorpe and Shirley A. Nelson, Deputy Attorneys General, for Real Party in Interest.

OPINION

CARR, J.

Following denial by the trial court of petitioner's motion to dismiss (Pen. Code, § 995), we issued an alternative writ and stay order.

The sole issue before us is whether a criminal defendant's right to confrontation of witnesses is violated or abridged when at the direction of the magistrate, the defendant is so seated that he can hear but not see the witness. The witness in question was a five-year-old girl, the complaining witness at the preliminary examination on a complaint charging defendant with sexual offenses against the minor.

Petitioner is charged with two counts of oral copulation of a child (Pen. Code, § 288a, subd. (c)) and one count of lewd acts upon a child (Pen. Code, § 288). The child is the daughter of petitioner's wife, not blood-related to petitioner. The charges arose from alleged incidents at a drive-in movie in mid-October 1978 and later in the home. The child was five years old at the time of the…