Peterson v. California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NEIL C. PETERSON, 

Plaintiff-Appellant,

No. 09-15633

v.

STATE OF CALIFORNIA; COUNTY OF  DC No.

CV 08-0442 GEB

NEVADA; ATTORNEY GENERAL OF THE

OPINION

STATE OF CALIFORNIA,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Submitted April 16, 2010*

San Francisco, California

Filed May 17, 2010

Before: A. Wallace Tashima and Sidney R. Thomas,

Circuit Judges, and William Stafford,

Senior District Judge.**

Opinion by Judge Tashima

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2)(C).

**The Honorable William Stafford, Senior United States District Judge

for the Northern District of Florida, sitting by designation.

7033

PETERSON v. STATE OF CALIFORNIA 7035

COUNSEL

Cyrus Zal, Folsom, California, for the plaintiff-appellant.

Michael S. Jamison, Office of the Nevada County Counsel,

Nevada City, California, for defendant-appellee County of

Nevada.

OPINION

TASHIMA, Circuit Judge:

Neil Peterson appeals the district court’s grant of judgment

on the pleadings to the County of Nevada in his 42 U.S.C.

§ 1983 action. Peterson alleged that California Proposition

115 (“Prop. 115”), the Crime Victims Justice Reform Act,

violates his constitutional rights under the Fourth, Sixth, and

Fourteenth Amendments to the United States Constitution.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

7036 PETERSON v. STATE OF CALIFORNIA

I

Prop. 115, which was adopted by California voters in 1990,

added both constitutional and statutory language to permit a

probable cause determination at a preliminary hearing to be

based on hearsay evidence presented by a qualified investiga-

tive officer. See Whitman v. Superior Court, 820 P.2d 262,

265 (Cal. 1991). Prop. 115 amended the California Constitu-

tion to provide:

In order to protect victims and witnesses in criminal

cases, hearsay evidence shall be admissible at pre-

liminary hearings, as prescribed by the Legislature or

by the people through the initiative process.

Cal. Const. art. I, § 30(b). It also amended the California

Penal Code to provide:

Notwithstanding [the hearsay rule], the finding of

probable cause may be based in whole or in part

upon the sworn testimony of a law enforcement offi-

cer . . . relating the statements of declarants made out

of court offered for the truth of the matter asserted

. . . . Any law enforcement officer . . . testifying as

to hearsay statements shall either have five years of

law enforcement experience or have completed a

training course certified by the Commission on

Peace Officer Standards and Training that includes

training in the investigation and reporting of cases

and testifying at preliminary hearings.

Cal. Penal Code § 872(b). Prop. 115 further amended the Cal-

ifornia Evidence Code to provide a preliminary hearing

exception to the general requirement that hearsay declarants

be made available for cross-examination. Cal. Evid. Code

§ 1203.1.

PETERSON v. STATE OF CALIFORNIA 7037

II

Peterson was charged in 2005 with two felonies and several

misdemeanors for health and safety violations arising out of

his ownership and operation of an automobile dismantling

site. Pursuant to Prop. 115, at the preliminary hearing, the

prosecution called only one witness, the investigating officer,

who testified to the hearsay statements of other witnesses. The

magistrate found probable cause to hold Peterson for trial.

After a pre-trial hearing, the superior court excluded certain

evidence for which the State failed to establish a proper chain

of custody and, on that basis, granted a pre-trial motion to dis-

miss the two felony counts. A jury convicted Peterson on cer-

tain of the remaining misdemeanor counts.

Peterson thereafter filed this action under 42 U.S.C. § 1983

against the County of Nevada (the “County”), State of Cali-

fornia (the “State”), and Attorney General Edmund G. Brown

Jr. contending that Prop. 115 violates the Fourth, Sixth, and

Fourteenth Amendments. He seeks damages and injunctive

and declaratory relief. The district court dismissed the State

and the Attorney General, a decision Peterson does not chal-

lenge on appeal. The district court also granted the County’s

motion for judgment on the pleadings. Fed. R. Civ. P. 12(c).

It held that the admission of hearsay statements at a prelimi-

nary hearing did not violate the Fourth, Sixth, or Fourteenth

Amendments.1 Peterson timely appeals from that judgment.

We review de novo the grant of a motion for judgment on

the pleadings, see Dunlap v. Credit Prot. Ass’n, 419 F.3d

1011, 1012 n.1 (9th Cir. 2005) (per curiam), as well as a dis-

trict court’s determination of federal constitutional law,

United States v. Cook, 859 F.2d 777, 778 (9th Cir. 1988). We

hold that each of Peterson’s constitutional challenges fails.

1

The district court also denied Peterson leave to amend his complaint.

That ruling is not challenged on appeal.

7038 PETERSON v. STATE OF CALIFORNIA

III

[1] Peterson’s primary contention is that Prop. 115

deprives him of his Sixth Amendment right to confront the

witnesses against him at a preliminary hearing. This challenge

raises an issue we have not yet confronted in this circuit:

whether the admission of hearsay evidence at a preliminary

hearing violates the Confrontation Clause. Although it is a

novel question, persuasive case law guides our resolution of

the issue. Shortly after Prop. 115 was passed, the California

Supreme Court held that Prop. 115 does not violate the fed-

eral Constitution’s Confrontation Clause. See Whitman, 820

P.2d at 269-71. We agree.

[2] First, as Whitman reasoned, the preliminary hearing

itself is not constitutionally mandated. Id. at 271 (“[O]ther

than the probable cause hearing held to justify continued

detention of the accused [analyzed under the Fourth Amend-

ment], there exists no federal constitutional right to a prelimi-

nary hearing to determine whether a case should proceed to

trial.” (emphasis in original)); see also Ramirez v. Arizona,

437 F.2d 119, 119-20 (9th Cir. 1971) (“The Federal Constitu-

tion does not secure to a state court defendant a right to a pre-

liminary hearing.”). In fact, in the federal system, all felonies

are prosecuted by indictment, see U.S. Const. amend. V, and

hearsay is admissible in proceedings before the grand jury

which result in the return of indictments. See Costello v.

United States, 350 U.S. 359, 363-64 (1956); Whitman, 820

P.2d at 271. As the preliminary hearing itself is not constitu-

tionally required, it follows that there are no constitutionally-

required procedures governing the admissibility of hearsay at

preliminary hearings.

[3] Second, the United States Supreme Court has repeat-

edly stated that the right to confrontation is basically a trial

right.

The right to confrontation is basically a trial right. It

includes both the opportunity to cross-examine and

PETERSON v. STATE OF CALIFORNIA 7039

the occasion for the jury to weigh the demeanor of

the witness. A preliminary hearing is ordinarily a

much less searching exploration into the merits of a

case than a trial, simply because its function is the

more limited one of determining whether probable

cause exists to hold the accused for trial.

Barber v. Page, 390 U.S. 719, 725 (1968); see also Pennsyl-

vania v. Ritchie, 480 U.S. 39, 52 (1987) (holding that “the

right to confrontation is a trial right” and “[n]ormally the right

to confront one’s accusers is satisfied if defense counsel

receives wide latitude at trial to question witnesses” (empha-

sis in original)); California v. Green, 399 U.S. 149, 157

(1970) (“[I]t is th[e] literal right to ‘confront’ the witness at

the time of trial that forms the core of the values furthered by

the Confrontation Clause[.]”).

[4] Similarly, in Kentucky v. Stincer, 482 U.S. 730 (1987),

the Supreme Court held that the defendant’s exclusion from

a hearing to determine the competency of two child witnesses

did not violate his confrontation right. Id. at 735, 744. The

Court reasoned that exclusion from the hearing did not inter-

fere with the defendant’s opportunity for effective cross-

examination because he was able to examine the witnesses at

trial. Id. at 740. Thus, under the Supreme Court’s Confronta-

tion Clause jurisprudence, Peterson was entitled to confront

witnesses against him at trial, which he did. He was not con-

stitutionally entitled to confront them at his preliminary hear-

ing.

[5] We also note that both the Fifth and Seventh Circuits

have held that there is no right to confront witnesses at a pre-

liminary hearing before being required to stand trial. See

United States v. Andrus, 775 F.2d 825, 836 (7th Cir. 1985)

(“[T]he sixth amendment does not provide a confrontation

right at a preliminary hearing.”); United States v. Harris, 458

F.2d 670, 677-78 (5th Cir. 1972) (“There is no Sixth Amend-

ment requirement that [defendants] also be allowed to con-

7040 PETERSON v. STATE OF CALIFORNIA

front [the witness] at a preliminary hearing prior to trial.”).

The Andrus court reasoned that the Sixth Amendment does

not provide a right to confrontation at a preliminary hearing

because “[t]he right to confrontation applies when the ability

to confront witnesses is most important — when the trier of

fact determines the ultimate issue of fact.” 775 F.2d at 836.

Peterson contends that the reasoning of Harris, Andrus, and

Whitman is no longer sound in light of Crawford v. Washing-

ton, 541 U.S. 36 (2004), which Peterson contends “clearly

applied the Sixth Amendment right to confrontation of wit-

nesses to pre-trial proceedings.” True, the hearsay challenged

in Crawford was a tape-recorded statement to police made

before trial. Id. at 38. What was at issue, however, was

whether the Confrontation Clause was violated when the

record of the statement was introduced at trial.2 Id. That the

hearsay statement was made before trial is necessarily true in

every case. See Cal. Evid. Code § 1200(a) (“’Hearsay evi-

dence’ is evidence of a statement that was made other than by

a witness while testifying at the hearing and that is offered to

prove the truth of the matter stated.” (emphasis added)).

Accordingly, Crawford does not affect the reasoning of Har-

ris, Andrus, and Whitman, or the Supreme Court cases hold-

ing that the Confrontation Clause is primarily a trial right.

[6] For these reasons, we conclude that the admission of

hearsay statements at a preliminary hearing does not violate

the Confrontation Clause.3 Accordingly, we hold that Prop.

115 does not violate the Sixth Amendment.

2

To be sure, the admission of preliminary hearing testimony at trial

raises Confrontation Clause concerns. For example, Crawford clearly held

that ex parte testimony at a preliminary hearing would qualify as “testimo-

nial” and would therefore not be allowed at trial under the Confrontation

Clause unless the witness was unavailable and the defendant had prior

opportunity to cross-examine the witness. 541 U.S. at 52. The admission

of preliminary hearing testimony at trial, however, is not the issue before

us.

3

Peterson also contends that Prop. 115 deprives a defendant of the right

to effective assistance of counsel under the Sixth Amendment because

PETERSON v. STATE OF CALIFORNIA 7041

IV

[7] We turn next to Peterson’s Fourteenth Amendment due

process challenge. In Hurtado v. California, 110 U.S. 516

(1884), the Supreme Court held that there was no due process

right to a grand jury indictment before criminal prosecution in

state court. Id. at 534-35. In so holding, the Hurtado Court

recognized that California’s substitute for the grand jury

indictment — the preliminary hearing — included the right of

cross-examination. See id. at 538 (“[W]e are unable to say

that [California’s] substitution for a presentment or indictment

by a grand jury of the proceeding by information after exami-

nation and commitment by a magistrate, certifying to the

probable guilt of the defendant, with the right on his part to

the aid of counsel, and to the cross-examination of the wit-

nesses produced for the prosecution, is not due process of

law.” (emphasis added)).

Peterson argues that Hurtado requires the preliminary hear-

ing to include the right of confrontation in order to satisfy the

requirements of due process. We disagree with this interpreta-

tion, as it would mean the substitute for the grand jury indict-

ment must contain greater procedural protections than the

grand jury procedures themselves. See Costello, 350 U.S. at

363-64 (holding that hearsay is admissible before grand jury).

If the phrase “due process of law” in the Fifth Amendment

does not prohibit the use of hearsay in grand jury proceedings,

then the same phrase in the Fourteenth Amendment cannot be

read to prohibit the use of hearsay evidence at a preliminary

hearing. Although Hurtado did observe that California’s then-

existing preliminary hearing procedures included the right to

counsel is not permitted to cross-examine the declarant of a hearsay state-

ment admitted at a preliminary hearing. Because this argument is premised

on his Confrontation Clause challenge, which fails, Peterson’s argument

that Prop. 115 violates the right to effective assistance of counsel also

fails.

7042 PETERSON v. STATE OF CALIFORNIA

cross-examination, Hurtado did not hold that such a right was

essential in order to pass due process muster.

[8] Accordingly, we conclude that Proposition 115 does

not violate the Due Process Clause of the Fourteenth Amend-

ment.4

V

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

4

Although Peterson notes in his opening brief that he asserted a Fourth

Amendment claim before the district court, he has failed to make any

argument in his brief to this court in support of such a claim; therefore,

he has waived it. See Fed. R. App. P. 28(a)(9)(A); Resorts Int’l, Inc. v.

Lowenschuss (In re Lowenschuss), 67 F.3d 1394, 1402 (9th Cir. 1995)

(holding that issue not discussed in brief, although mentioned in statement

of issues, is deemed waived).

Even if the Fourth Amendment challenge had not been waived, we

would reject it on the merits because the Fourth Amendment allows for a

determination of probable cause based on hearsay testimony. See Gerstein

v. Pugh, 420 U.S. 103, 120 (1975) (holding that a full adversarial hearing,

including confrontation and cross-examination, is not required for a deter-

mination of whether probable cause exists under the Fourth Amendment

to detain an arrestee pending trial).