Erwin

Introduction

This appeal is taken by the District Attorney for the County of Los Angeles from an order of the superior court granting the Penal Code section 995 motion of respondent and defendant, Paul Vernon Erwin. In the context of a preliminary hearing conducted on the sworn testimony of a law enforcement officer under Penal Code section 872, subdivision (b), this case presents an issue concerning the discretion of a magistrate to permit the defense to call the prosecution’s hearsay declarants as defense witnesses upon proper showing under Penal Code section 866, subdivision (a). We affirm the order.

The Facts

Respondent was charged by felony complaint with committing a lewd act upon a child under 14 years of age in violation of Penal Code section 288, subdivision (a). In accordance with Penal Code section 872, subdivision (b), at the preliminary hearing, the prosecution presented its case through the testimony of Los Angeles County Sheriff’s Detective William Looney.

Detective Looney testified to the following facts. On December 18, 1991, the detective met seven-year-old Jessica W., her mother and stepfather at the Norwalk Sheriff’s Station. He interviewed…