Nienhouse

Petitioner Todd Ernest Nienhouse is charged with several possessory drug and firearm offenses. He moved to dismiss the information (Pen. Code, § 995) on the ground that he had been denied a substantial right at his preliminary hearing. The magistrate refused to allow petitioner to elicit exculpatory hearsay evidence on cross-examination of the sole prosecution witness, a police officer, on the ground that Proposition 115, the Crime Victims Justice Reform Act, permits the use of hearsay only by the prosecution. The superior court denied the motion, apparently agreeing with the magistrate. Petitioner seeks a writ of prohibition (§ 999a) to restrain further prosecution on the information. We stayed trial, issued an order to show cause in lieu of an alternative writ, and heard oral argument. We conclude that a defendant has the right to introduce exculpatory evidence under certain circumstances at a preliminary hearing, but that this defendant is not entitled to relief. Accordingly, we discharge the order to show cause and deny the writ.

Background

The sole witness at the preliminary hearing was Walnut Creek Police Officer Tim Schultz, an officer of seven years’ experience…