Harris

The sole issue on this appeal by the People from an order setting aside the information against defendants Leonard Harris and Gloria *1251 A. Malandaras is whether Penal Code section 872, subdivision (b) 1 , is unconstitutional on its face. We conclude that the statute can survive this challenge and that the order must accordingly be reversed.

I.

The sole witness at the preliminary examination conducted on March 10, 1983, 2 was Timothy Carey, who testified in effect that on January 21st he observed defendants break a window of a parked automobile and remove two boxes therefrom. At the conclusion of Mr. Carey’s testimony, the prosecutor requested that the magistrate admit in evidence “pursuant to [section] 872 . . ., the statement in lieu of testimony” of John Kearney, the owner of the automobile. The attorneys for both defendants objected on the grounds that the statement was (1) hearsay; (2) failed to provide defendants with their “right of confrontation of witnesses”; and (3) because Kearney’s statement “cannot be considered that of a victim” and consequently was “not in conformity with . . . Section 872.” After their request to file a memorandum of points and…

I respectfully dissent. The right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution contemplates a face-to-face con *1269 frontation. (Ohio v. Roberts (1980) 448 U.S. 56, 63-64 [ 65 L.Ed.2d 597, 605-606 , 100 S.Ct. 2531 ]; California v. Green (1970) 399 U.S. 149, 157, 158 [ 26 L.Ed.2d 489, 496, 497 , 90 S.Ct. 1930 ]; People v. Chavez (1980) 26 Cal.3d 334, 349-351 [ 161 Cal.Rptr. 762 , 605 P.2d 401 ].) It is obvious that without this confrontation the corollary right of cross-examination would be meaningless. How does one cross-examine a document?

As the majority correctly states, the right of confrontation and cross-examination extends to the preliminary hearing. (Jones v. Superior Court (1971) 4 Cal.3d 660 [ 94 Cal.Rptr. 289 , 483 P.2d 1241 ]; Jennings v. Superior Court (1967) 66 Cal.2d 867 [ 59 Cal.Rptr. 440 , 428 P.2d 304 ].) Penal Code section 865 also provides that “[t]he witnesses [at the preliminary hearing] must be examined in the presence of the defendant, and may be cross-examined in his behalf.” Since these rights have their basis in the federal and state Constitutions, I…

The sole issue on this appeal by the People from an order setting aside the information against defendants Leonard Harris and Gloria A. Malandaras is whether Penal Code section 872, subdivision (b) [1] , is unconstitutional on its face. We conclude that the statute can survive this challenge and that the order must accordingly be reversed.

The sole witness at the preliminary examination conducted on March 10, 1983, [2] was Timothy Carey, who testified in effect that on January 21st he observed defendants break a window of a parked automobile and remove two boxes therefrom. At the conclusion of Mr. Carey's testimony, the prosecutor requested that the magistrate admit in evidence "pursuant to [section] 872..., the statement in lieu of testimony" of John Kearney, the owner of the automobile. The attorneys for both defendants objected on the grounds that the statement was (1) hearsay; (2) failed to provide defendants with their "right of confrontation of witnesses"; and (3) because Kearney's statement "cannot be considered that of a victim" and consequently was "not in conformity with ... Section 872." After their request to file a memorandum of points and…