Liddicoat

James Roy Liddicoat appeals from an order committing him to the Department of Mental Health as a mentally disordered sex offender. (Pen. Code, § 1237, subd. 1.)

Appellant had been accused of several felony sex crimes committed on two young girls. At trial the court ruled that one of the victims, Emily, age four, was disqualified to be a witness because she was at that time incapable of understanding the duty of a witness to tell the truth. (Evid. Code, § 701, subd. (b).) The People then offered in evidence, under Evidence Code section 1291, a transcript of Emily’s testimony at the earlier preliminary examination of the charges. Appellant objected on the ground that Emily had been similarly disqualified at the time of the preliminary examination. At the preliminary examination the magistrate had ruled that Emily was qualified to testify. Appellant argued that the trial court should reweigh the evidence relevant to qualification in the preliminary examination transcript and should make its own independent determination of the issue. The trial court disagreed, finding that the magistrate’s ruling had been supported by “sufficient evidence” and was buttressed by the…