Mills

We granted review in this case to determine the constitutionality of Penal Code section 872, subdivisions (b) and (c), which authorize the admission at preliminary hearings of written statements in lieu of testimony of any witness who is not an eyewitness to or a victim of a crime against his person. 1 Under the statute, a finding of probable cause may be based *955 in whole or in part on such hearsay evidence unless the accused initiates “reasonable efforts” to secure the attendance of the witness.

Defendant’s efforts in this regard were limited to a telephone call to the prosecuting attorney demanding the presence of the witness at the preliminary hearing for cross-examination. He now contends his rights to confrontation and due process were infringed when the magistrate accepted as evidence the hearsay affidavit of the owner of the vehicle he allegedly burglarized, We hold that an accused cannot, consistently with his constitutional rights at the preliminary hearing, be required to produce the prosecution’s witnesses against him—in effect, his own accusers—or forfeit the opportunity to cross-examine them. Nevertheless, because there was sufficient evidence apart from…

I concur fully in the majority’s holding that Penal Code 1 section 872, subdivision (b) (hereinafter section 872(b)) violates the due process clause of the state Constitution (art. I, § 15) because it impermissibly burdens defendant’s right of cross-examination and lightens the prosecution’s task of establishing probable cause at the preliminary hearing.

I respectfully dissent, however, from the majority’s disposition of the case and application of a harmless error test in this context. 2 The majority conclude that writ relief is unavailable since there was sufficient evidence apart from the challenged affidavit to support a probable cause finding. (Ante, pp. 955, 961-962.) In my view, because defendant was denied a substantial right at the preliminary hearing, dismissal is warranted, regardless of the sufficiency of the evidence.

Section 995 provides that upon defendant’s motion, “the . . . information shall be set aside” if it appears “the defendant had not been legally committed by a magistrate.” (Italics added.) 3 As this court long ago reiterated in Jennings v. Superior Court (1967) 66 Cal.2d 867 , at page 874 [ 59 Cal.Rptr. 440 , 428 P.2d 304 ]: ‘““The phrase ‘legally…

John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Ronald E. Niver, Ann K. Jensen, Donna Chew and Herbert F. Wilkinson, Deputy Attorneys General, for Real Party in Interest.

Edwin L. Miller, Jr., District Attorney (San Diego), Peter C. Lehman and Paul M. Morley, Deputy District Attorneys, as Amici Curiae on behalf of Real Party in Interest.

OPINION

MOSK, J.

We granted review in this case to determine the constitutionality of Penal Code section 872, subdivisions (b) and (c), which authorize the admission at preliminary hearings of written statements in lieu of testimony of any witness who is not an eyewitness to or a victim of a crime against his person. [1] Under the statute, a finding of probable cause may be based in whole or in part on such hearsay evidence unless the accused initiates "reasonable efforts" to secure the attendance of the witness.

Defendant's efforts in this regard were limited to a telephone call to the prosecuting attorney demanding the presence of the witness at the preliminary hearing for cross-examination. He now contends his rights to confrontation and due process were infringed when the magistrate accepted as…