Burroughs

The People appeal the trial court’s ruling disallowing the People’s principal witness to testify as he previously had been hypnotized.

Respondent was convicted of kidnapping for ransom and assault with a deadly weapon. At trial, the victim, Jon Zagaris testified. The victim had been hypnotized by a police officer four days after the kidnapping. Under the rules announced in People v. Shirley (1982) 31 Cal.3d 18, 66-67 [ 181 Cal.Rptr. 243 , 641 P.2d 775 ], and People v. Guerra (1984) 37 Cal.3d 385, 390 [ 208 Cal.Rptr. 162 , 690 P.2d 635 ], on February 20, 1985, we reversed respondent’s convictions, finding he was prejudiced by the erroneous admission of the testimony of the previously hypnotized victim. (People v. Burroughs (Feb. 20, 1985) F000625 [nonpub. opn.] (hereafter Burroughs I, supra).)

On June 17, 1985, the date set for retrial, respondent moved to exclude the testimony of the victim Jon Zagaris on the ground that he previously had been hypnotized. Relying on Shirley, Guerra and this court’s opinion, the trial court granted the motion. The trial court then dismissed the case pursuant to Penal Code section 1385 after being informed by the People they were unable…