Sims

Penal Code section 872, subdivision (b), enacted as part of the “Crime Victims Justice Reform Act” (Proposition 115) in 1990, permits hearsay testimony at a preliminary hearing by a “law enforcement officer.” At issue in this case is whether an investigator for the Franchise Tax Board qualifies as a “law enforcement officer” for purposes of section 872, subdivision (b).

We find that section 872, subdivision (b), is not restricted in its application to “traditional” law enforcement officers authorized to carry weapons and make arrests, but rather is intended to encompass officers and agents with knowledge of the pertinent laws underlying the charged crime who can provide meaningful testimony at preliminary hearings. For that reason, we conclude section 872, subdivision (b), applies to officers and agents employed by a federal, state or local government agency: 1) who meet the threshold training and experience requirements set forth in that provision; and 2) whose primary responsibility is to investigate and prepare for prosecution cases involving violations of laws.

In this case, the Franchise Tax Board investigator who offered hearsay testimony at petitioner’s…