Creutz

Petitioner Dennis Creutz, the defendant in a criminal matter pending before the superior court, seeks a writ of prohibition compelling the trial court to grant his motion to dismiss or set aside one count of the information charging him with lewd and lascivious conduct with a child. (Pen. Code, § 288, subd. (a).) We hold that the evidence properly admitted at the preliminary hearing was insufficient to support the challenged count; in so holding, we construe Evidence Code section 1228 and find it inapplicable to the case at bar.

It will be helpful to an understanding of the evidence presented if we quote the relevant provisions of Evidence Code section 1228 before setting out the evidence. That statute creates a narrow exception to the hearsay rule in certain cases involving specified sex crimes against children, including violations of Penal Code section 288, subdivision (a). In pertinent part, the statute reads “Notwithstanding any other provision of law, for the purpose of establishing the elements of the crime in order to admit as evidence the confession of a person ... a court, in its discretion, may determine that a statement of the complaining witness is not made…