In re Watson (1979)

In re ROSEMARY WATSON on Habeas Corpus.

(Opinion by Morris, J., with Gardner, P. J., and Kaufman, J., concurring.)

COUNSEL

Charles E. Ward, Public Defender, Littleton M. Gunn and Andrew E. Rubin, Deputy Public Defenders, for Petitioner.

Evelle J. Younger and George Deukmejian, Attorneys General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Alan S. Meth and Jay M. Bloom, Deputy Attorneys General, for Respondent.

OPINION

MORRIS, J.

Petitioner was committed to the State Department of Health under Welfare and Institutions Code section 6500.1, fn. 1 as a mentally retarded person, on January 25, 1978. Petitioner filed a petition for a writ of habeas corpus in the San Bernardino County Superior Court. It was denied. She then filed a petition for habeas corpus in this court, which was denied on September 5, 1978. Thereafter, she petitioned the California Supreme Court, and on October 25, 1978, the Supreme Court ordered respondent to show cause before this court why the relief prayed for should not be granted. [91 Cal. App. 3d 458]

The findings of fact on denial of the writ in the superior court were based upon the following stipulation by the attorneys for the parties: (1) Petitioner was committed to Patton State Hospital as a developmentally disabled person on January 25, 1978, by the Superior Court, Los Angeles County; fn. 2 (2) petitioner was not present at the commitment hearing, but was outside the hearing room with a representative from the regional center; (3) petitioner's counsel had discussed the proceedings with petitioner, petitioner knew counsel would submit the matter on the papers and reports available, and petitioner was aware that the likely outcome would be her commitment to the state hospital.

Respondent first contends that since the issues presented in the petition could have been raised on appeal, they may not properly be raised on habeas corpus. The rule relied upon by respondent was stated by the California Supreme Court in In re Walker (1974) 10 Cal. 3d 764 [112 Cal. Rptr. 177, 518 P.2d 1129], as follows: "The general rule is that 'habeas corpus cannot serve as a substitute for appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.'" (Id, at p. 773, quoting from In re Dixon (1953) 41 Cal. 2d 756, 759 [264 P.2d 513].)

That special circumstances do exist in this case will become apparent in our consideration of the merits. [1] We have concluded that the factual circumstances bring this case within the principle stated in In re Winchester (1960) 53 Cal. 2d 528 [2 Cal. Rptr. 296, 348 P.2d 904], that "Habeas corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights." (Id, at p. 531.) Although petitioner has been convicted of no crime, she is no less entitled to the protection of her fundamental constitutional rights, and a judgment obtained in violation of those rights is similarly vulnerable to collateral attack.

Commitment under Welfare and Institutions Code section 6500.1 is a commitment for placement in a state hospital, fn. 3 and no mentally retarded [91 Cal. App. 3d 459] person may be so committed without proof of dangerousness to self or others. [2] Although the commitment order expires one year after it is made, it is clear that the hearing to determine a person's mental retardation and dangerousness may result in a substantial loss of personal liberty. (See O'Brien v. Superior Court (1976) 61 Cal. App. 3d 62, 68-69 [132 Cal. Rptr. 13].) Under such circumstances, petitioner is entitled to a hearing that complies with the due process requirements of the United States and California Constitutions. Petitioner contends that her commitment violated fundamental constitutional rights. We consider the petition on its merits.

Rosemary Watson was not present at her commitment hearing on January 25, 1978. No evidence was presented to show that she was not physically able to attend, but rather the record shows that she was physically present just outside the courtroom. No evidence was presented to show that her attendance would have aggravated her propensity for dangerous conduct or that she would not have been able to understand and participate in the proceedings. To the contrary, it was stipulated that she was aware of the nature of the proceedings. She did not waive her personal presence. In fact, the record does not show that she was ever advised of her right to be present at the hearing.

To support the issuance of a writ of habeas corpus, petitioner contends that her constitutional rights were violated in the following particulars: (1) The record does not affirmatively show that petitioner knowingly and intelligently waived her rights to a jury trial, confrontation of witnesses, and the privilege against self-incrimination or was incapable of doing so, and (2) the record does not show that petitioner was given an opportunity to be present or that she was unable to be present.

Petitioner contends that the procedural rights established in Boykin v. Alabama (1969) 395 U.S. 238 [23 L. Ed. 2d 274, 89 S. Ct. 1709] and In re Tahl (1969) 1 Cal. 3d 122, 135 [81 Cal. Rptr. 577, 460 P.2d 449], should apply to the developmentally disabled, and that the absence of a valid on-the-record waiver deprived her of these rights. [3] Petitioner's assertion that she is entitled to a jury trial in the commitment proceeding [91 Cal. App. 3d 460] is correct. (O'Brien v. Superior Court, supra, 61 Cal. App. 3d 62, 68-69.) She has no privilege not to testify in a commitment proceeding. (Cramer v. Tyars (1979) 23 Cal. 3d 131 [151 Cal. Rptr. 653, 588 P.2d 793].) This is not a criminal proceeding (id, at pp. 137-138), and the extent to which the procedural rights of Boykin v. Alabama and In re Tahl apply in commitment proceedings need not be determined in this proceeding.

[4a] We have concluded that the denial of petitioner's right to be present during the presentation of evidence against her which could and did result in a substantial loss of personal liberty, absent an on-the-record showing that she waived that right or was incapable of doing so by reason of either physical or mental incapacity, deprived her of her fundamental constitutional right to due process of law.

Petitioner argues that because the proceeding may result in the loss of freedom she should be afforded "criminal" due process (In re Gault (1967) 387 U.S. 1, 49-50 [18 L. Ed. 2d 527, 558-559, 87 S. Ct. 1428]; In re Winship (1970) 397 U.S. 358, 365-366 [25 L. Ed. 2d 368, 375-377, 90 S.Ct. 1068]), and that the record must affirmatively reflect the application of the due process standards. (See In re Arthur N. (1976) 16 Cal. 3d 226, 240 [127 Cal. Rptr. 641, 545 P.2d 1345], reasonable doubt must appear in the record in a juvenile hearing on a supplementary petition.)

Although we agree that the hearing at which petitioner was committed failed to comport with due process standards, we find it unnecessary to determine whether all of the requirements of criminal procedure should be applicable to commitment proceedings. The fact that constitutional rights are most frequently vindicated in criminal cases should not blind us to the truth that certain fundamental constitutional rights are guaranteed to every person, not solely to those who are accused of criminal activity. Due process is one such fundamental right. Both the Fourteenth Amendment to the United States Constitution and now article I, section 7 of the California Constitution prevent the state from depriving any person of life, liberty or property without due process.

[5] The right of a defendant's personal presence at trial is a condition of due process to the extent that a fair and just hearing would be thwarted by the absence of the accused. (Snyder v. Massachusetts (1934) 291 U.S. 97 [78 L. Ed. 674, 54 S. Ct. 330, 90 A.L.R. 575].) While it is true that this right, as others previously noted, has been generally vindicated in criminal cases, the right to be present should not be confused with the [91 Cal. App. 3d 461] privilege of confrontation which is the right of an accused to confront his accusers. fn. 4 [4b] The right to a fair hearing is an essential of due process whether life, liberty or property is being taken by criminal or civil process. Therefore, our inquiry is simply into the relationship between petitioner's presence at her commitment hearing and the fundamental justice assured her by the Constitutions of the United States and of the State of California.

We are mindful that what constitutes due process depends upon the circumstances and may vary to some extent with the subject matter and the necessities of the situation. (Sokol v. Public Utilities Commission (1966) 65 Cal. 2d 247, 254 [53 Cal. Rptr. 673, 418 P.2d 265].) Moreover, it is recognized that treatment of persons suffering from mental problems may require special considerations in some respects different from those accused of criminal activity. (See Cramer v. Tyars, supra, 23 Cal. 3d 131.) Because of these differences, it may well be that the showing necessary to constitute a waiver of the right of personal presence in a commitment proceeding may differ in degree and form from that required in a criminal case. However, we are well satisfied that the procedure followed in this case does not satisfy the fundamental requirements of due process.

[6] "'While no exact definition of due process may be formulated, it is established that due process is absent if a party is denied the right to have his cause tried and determined in accordance with the procedures that are applied in other cases of like character. [Citations.] It implies the right not to be deprived of one's property or liberty without evidence having been offered against him in accordance with the established rules, and an opportunity to cross-examine those whose evidence is given against him, and the opportunity to present evidence in his own behalf. [Citations.]'" (Collins v. Superior Court (1957) 150 Cal. App. 2d 354, 363-364 [310 P.2d 103].) In Ex parte Wall (1883) 107 U.S. 265 [27 L. Ed. 552, 2 S. Ct. 569], the Supreme Court said: "In all cases, that kind of procedure is due process of law, which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts." (Id, at p. 289 [27 L.Ed. at p. 562]; see also San Jose Ranch Co. v. San Jose etc. Co. (1899) 126 Cal. 322, 326 [58 P. 824].)

[4c] A person who may be subjected to a substantial loss of liberty for being dangerously mentally retarded has as much stake in appearing before the committing judge as one who may lose that liberty through [91 Cal. App. 3d 462] criminal process. Indeed, the nature of the proceeding is such that the personal conduct of the alleged mentally retarded person may more surely affect the reliability of the judgment and thus, the fairness of the proceeding, than does the courtroom conduct of one accused of crime in a criminal proceeding.

It seems to us that the practice of dispensing with the presence of the alleged dangerously mentally retarded person suggests a predetermination of the mental condition. Such practice is unacceptable, for it effectively denies the person the independent judgment of the judge at the commitment hearing. If the person is so mentally retarded as to be unable to comprehend the advisal of the right to be present and other rights incident to a fair hearing, the record should affirmatively reflect that fact. The determination of the person's ability to attend the hearing and/or of the ability to give an intelligent waiver of constitutional rights, including the right to be present, must be made by the trial judge based upon competent evidence.

In the absence of an affirmative showing that a patient is physically unable to attend or has waived personal attendance, due process requires the physical presence of the alleged mentally retarded person at the commitment hearing under section 6500.1. In the case of a normal probate conservatorship, Probate Code section 1754 requires proof of medical inability by a duly licensed medical practitioner before proceeding in the absence of the proposed conservatee. Where personal liberty is at stake nothing less can be tolerated.

The record in this case reveals that not only was petitioner physically able to attend, she was actually present outside the courtroom, yet the record fails to reveal that she was advised of any of her rights, waived any of her rights, or was incapable of understanding her rights.

The writ is granted.

Gardner, P. J., and Kaufman, J., concurred.

FN 1. Section 6500.1 was renumbered section 6500 and amended by Statutes 1978, chapter 1319, section 2 (No. 11 West's Cal. Legis. Service, pp. 4589-4590, No. 8 Deering's Adv. Legis. Service, pp. 97-100).

All statutory references are to the Welfare and Institutions Code unless otherwise specified.

FN 2. The attorneys stipulated that petitioner was committed as a developmentally disabled person on January 25, 1978. Actually section 6500.1 provided for commitment of "mentally retarded" persons upon proof of dangerousness. Although the statutory definition of developmental disability includes mental retardation (§ 4512), no mentally retarded person may be committed under this section without proof of dangerousness to self or others.

FN 3. At the time of petitioner's commitment, section 6509 provided for commitment to the State Department of Health for hospitalization. Section 6509, as it became operative July 1, 1978, provided for commitment to the State Department of Developmental Services for hospitalization. The section was again amended in 1978 to provide for commitment to the State Department of Developmental Services for "suitable treatment and habilitation services," which may include placement in a state hospital. (Stats. 1971, ch. 1593, § 424, p. 3364; Stats. 1977, ch. 1252, § 643, pp. 4603-4604; Stats. 1978, ch. 1319, § 7.)

FN 4. Since dangerousness is a condition for commitment under section 6500.1, the factual allegation is not without analogy to a criminal accusation.

People v. Superior Court (Bingham) [91 Cal. App. 3d 463]

[Civ. No. 45392. First Dist., Div. One April 3, 1979.[

THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; WARD ALLEN BINGHAM, Real Party in Interest.

(Opinion by Elkington. J., with Racanelli, P. J., and Newsom, J., concurring.)

COUNSEL

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Robert R. Granucci and Richard G. Tullis, Deputy Attorneys General, for Petitioner.

No appearance for Respondent.

Steven R. Manchester for Real Party in Interest.

OPINION

ELKINGTON, J.

A magistrate issued a warrant authorizing search of the premises of the real party in interest of these proceedings, Ward Allen Bingham, for specified, insured, personal property claimed by him to have been destroyed by fire. Upon execution of the search warrant the property was found in the possession of Bingham, undamaged. He was charged with several insurance-related felonies in the superior court. That court granted his Penal Code section 1538.5 motion to suppress evidence of the subject property. The court, concluding that the search warrant was grounded on "hearsay upon hearsay" had held, for that reason and as a [91 Cal. App. 3d 468] matter of law, that the fire marshal's affidavit did not establish probable cause according to Fourth Amendment requirements.

Upon the People's petition we issued an alternative writ of mandate for the purpose of inquiring into the validity of the superior court's ruling.

The affidavit before the magistrate was that of Deputy Fire Marshal John R. Stafford of Santa Clara County. It related the following.

The affiant had earned an academic degree in "fire science," and in the course of his duties as fire marshal had investigated the origin of more than 350 fires. He had investigated a fire of a suspicious nature which occurred June 30, 1976, on the premises occupied by Bingham Aviation & Electronics, Inc. which was owned, principally or entirely, by Bingham. During the course of his investigation he learned that, about two weeks before the fire, Bingham had purchased a $250,000 fire insurance policy for coverage of the personal property of his business. He described at length and in detail, his initial 13-day investigation as a result of which (we think reasonably) he formed an "opinion that the fire ... was intentionally set by human hands."

Bingham made claim under the insurance policy for the value of personal property purportedly destroyed in the fire, in the amount of $168,373.90. Among the items claimed to have been so destroyed were three valuable devices described as a "vello-bind system," a "blue ray machine," and a "faces [or phases] 3 editing system" of the claimed value of $15,000. Referring to the "faces 3 editing system," in a sworn statement accompanying his claim (which was incorporated in the affidavit), Bingham had declared that it was built in part by one John Mason, an engineer, and the rest of it "was handled through a firm called Johnston Associates. ... They went out and acquired six engineers to do the job."

Also investigating the fire in collaboration with the fire marshal was a Mr. McPherson of the Insurance Crime Prevention Institute. That private corporation, in cooperation with law enforcement officers, "investigates for its members [including Bingham's insurance carrier] suspicious insurance claims." McPherson had reported to the fire marshal, the following information.

McPherson had discussed the case with the engineer, John Mason, who according to Bingham had initially worked on the "faces 3 editing system." Mason told McPherson that he had seen the same device in [91 Cal. App. 3d 469] Bingham's possession after the fire. Additionally, McPherson informed the fire marshal of the following: He "learned from Mr. Mason that on or about the month of February, 1977 [eight months after the fire], Mr. Mason personally observed Mr. Ward Bingham remove the serial numbers from a velo-bind [sic] system. Mr. Mason said that he observed this occur at 374 West Washington, Sunnyvale. Mr. Mason also told Mr. McPherson that on December 29, 1977, he observed in the place where Mr. Ward Bingham now works, Industrial Telephone System Company, the faces 3 editing system that he constructed for Mr. Bingham, the blue ray machine and the velo-bind, ... Mr. Mason personally knows that the faces 3 editing system that he observed at ITS was the same faces 3 editing system that Johnston Associates ... also partially constructed." McPherson had also interviewed three of the six Johnston Associates engineers mentioned by Bingham. They told him that the faces 3 editing system was being worked on in the Johnston Associates premises at the time of the fire, and that Bingham had "personally picked the Faces 3 editing system [upon which they had worked] up from Johnston Associates approximately four months after the fire at Bingham Aviation and Electronics."

It will be seen that the information imparted by the four engineers to McPherson was the primary hearsay of the fire marshal's affidavit. And the relaying of that information by McPherson to the fire marshal affiant constituted the "hearsay upon hearsay" found by the superior court to have invalidated the search warrant.

[1] We have concluded that such hearsay upon hearsay does not necessarily, or as a matter of law, impose a Fourth Amendment taint upon a search warrant based, in whole or in part, upon it. The error of this case was that of the superior court, not of the magistrate whose determination that the fire marshal's affidavit was reasonably supportive of the search warrant, we affirm. Our reasons follow.

[2] Probable cause is, of course, reasonable cause. "'There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances ...'" (People v. Superior Court (Kiefer) (1970) 3 Cal. 3d 807, 827 [91 Cal. Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559]; People v. Ingle (1960) 53 Cal. 2d 407, 412 [2 Cal. Rptr. 14, 348 P.2d 577] [cert. den., 364 U.S. 841 (5 L. Ed. 2d 65, 81 S.Ct. 79)].) In respect of affidavits for search warrants, whether they reasonably justify a search "must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. ... Technical requirements of [91 Cal. App. 3d 470] elaborate specificity once exacted under common law pleadings have no proper place in this area." (United States v. Ventresca (1965) 380 U.S. 102, 108 [13 L. Ed. 2d 684, 689, 85 S. Ct. 741]; People v. Mesa (1975) 14 Cal. 3d 466, 469 [121 Cal. Rptr. 473, 535 P.2d 337].)

The guiding authority on the requirements of a search warrant's probable cause is found in Aguilar v. Texas (1964) 378 U.S. 108 [12 L. Ed. 2d 723, 84 S. Ct. 1509], and Spinelli v. United States (1969) 393 U.S. 410 [21 L. Ed. 2d 637, 89 S. Ct. 584]. California's courts have stated the rule of those cases in this manner: [3] "(1) the affidavit must allege the informant's statement in language that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in such statement; and (2) the affidavit must contain some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his information reliable." (Price v. Superior Court (1970) 1 Cal. 3d 836, 840 [83 Cal. Rptr. 369, 463 P.2d 721]; People v. Hamilton (1969) 71 Cal. 2d 176, 179-180 [77 Cal. Rptr. 785, 454 P.2d 681].)

In the application of these criteria a magistrate will first determine from the affidavit whether the informant himself may reasonably be deemed reliable. If not, his information will not, at least alone, support a search warrant. When, and if, from the affidavit the informant is reasonably found reliable, the magistrate will then look to the information itself. If it is stated as a matter of the informant's personal knowledge, "in language that is factual rather than conclusionary," it may reasonably be accepted by the magistrate as supportive of the requested search warrant.

[4] In passing upon such a determination of the magistrate, a reviewing court (here the superior court and this court) will be bound by this well-known rule that: "[T]he warrant can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony." (Skelton v. Superior Court (1969) 1 Cal. 3d 144, 150 [81 Cal. Rptr. 613, 460 P.2d 485]; italics added.)

The law has long recognized a rational and practical distinction between informants upon whose information search warrants are sought. [91 Cal. App. 3d 471] Roughly they may be classed on the one hand as "citizen-informants" acting openly in aid of law enforcement and, on the other, criminally involved or disposed "police-informers," or "mere informers," or "stool pigeons," who for compensation, or revenge, or other reasons of personal advantage, surreptitiously give tips to law enforcement agents about real or imagined criminal activity.

"A 'citizen-informant' is a citizen who purports to be the victim of or to have been the witness of a crime who is motivated by good citizenship and acts openly in aid of law enforcement. ... It is reasonable for police officers to act upon the reports of such an observer of criminal activity. ... [¶] A 'citizen-informant' is distinguished from a mere informer who gives a tip to law enforcement officers that a person is engaged in the course of criminal conduct. ... Thus, experienced stool pigeons or persons criminally involved or disposed are not regarded as 'citizen-informants' because they are generally motivated by something other than good citizenship. ... [5] Accordingly, in view of this distinction the courts have recognized that the tests of reliability that must be applied to experienced stool pigeons or to persons criminally involved or disposed do not necessarily apply to every private citizen who aids the police." (People v. Schulle (1975) 51 Cal. App. 3d 809, 814-815 [124 Cal. Rptr. 585], and see authority there collected.) "[A] citizen who [observes] the commission of a crime [is] more than a mere informer. '[T]ests of reliability that must be applied to experienced stool pigeons do not necessarily apply to every private citizen who aids the police.'" (Krauss v. Superior Court (1971) 5 Cal. 3d 418, 421-422 [96 Cal. Rptr. 455, 487 P.2d 1023] [overruled on other grounds, People v. Cook (1978) 22 Cal. 3d 67, 98-99 (148 Cal. Rptr. 605, 583 P.2d 130)].)

Citizen-informants are sometimes said to have a "built-in" credibility. (United States v. Hunley (8th Cir. 1977) 567 F.2d 822, 825.) The strict requirement of a showing of reliability and credibility is ordinarily "'addressed to the particular problem of professional informers and should not be applied in a wooden fashion to cases where the information comes from an alleged victim of or witness to a crime.'" (United States v. Swihart (6th Cir. 1977) 554 F.2d 264, 268.) And: "'The essence of reliability may be found in an informant's statement of facts rather than an allegation of mere conclusory suspicion. An informant who alleges he is an "eyewitness" to an actual crime perpetrated demonstrates sufficient reliability of the person.'" (Cundiff v. United States (8th Cir. 1974) 501 F.2d 188, 190.) [91 Cal. App. 3d 472]

[6] Under these criteria, the four engineers who furnished information to McPherson were patently citizen-informants. They had observed, and reported, evidence of criminal activity, and the magistrate could, and did, reasonably find them reliable.

[7] The remaining informant, McPherson, was also of the nature of a citizen-informant without a conceivable purpose to falsify, and he also had acted "openly in aid of law enforcement." (See People v. Schulle, supra, 51 Cal. App. 3d 809, 814; Krauss v. Superior Court, supra, 5 Cal. 3d 418, 421-422.) Moreover, his employment as an arson investigator working in cooperation with law enforcement officers, was of a quasi-public nature. Law enforcement officers, working together on a case, are reasonably "presumed to be reliable, and their statements could properly be relied upon by the magistrate if the original source of the information otherwise satisfies the Aguilar [Spinelli] test." (People v. Hill (1974) 12 Cal. 3d 731, 761 [117 Cal. Rptr. 393, 528 P.2d 1] [overruled on other grounds, People v. DeVaughn (1977) 18 Cal. 3d 889, 896 (135 Cal. Rptr. 786, 558 P.2d 872)]; and see People v. Hogan (1969) 71 Cal. 2d 888, 891 [80 Cal. Rptr. 28, 457 P.2d 868].) This rule is reasonably applicable to informants such as McPherson.

We are brought more closely to the critical issue of the case before us.

[8] The United States Supreme Court has consistently held that hearsay information will support issuance of a search warrant. "[A]n affidavit [for a search warrant] may be based on hearsay information and need not reflect the direct personal observations of the affiant, ..." (Aguilar v. Texas, supra, 378 U.S. 108, 114 [12 L. Ed. 2d 723, 729]; see also Franks v. Delaware (1978) 438 U.S. 154, 165 [57 L. Ed. 2d 667, 678, 98 S. Ct. 2674, 2681]; McCray v. Illinois (1967) 386 U.S. 300, 304 [18 L. Ed. 2d 62, 66-67, 87 S. Ct. 1056]; United States v. Ventresca, supra, 380 U.S. 102, 110 [13 L. Ed. 2d 684, 690].) The same rule, of course, is followed in California. (See Price v. Superior Court, supra, 1 Cal. 3d 836, 840-841.) Indeed the usual search warrant, based on a reliable police informer's or a citizen-informant's information, is necessarily founded upon hearsay.

Although the nation's high court appears never to have expressly addressed itself to the question whether double hearsay will sustain a search warrant, at least twice it has impliedly done so. In United States v. Ventresca, supra, 380 U.S. 102, "investigators" reported criminal activity to other "investigators" who in turn reported it to the affiant. Without express consideration of the affidavit's double hearsay, a search warrant [91 Cal. App. 3d 473] based mainly on that information was affirmed. In Rugendorf v. United States (1964) 376 U.S. 528 [11 L. Ed. 2d 887, 84 S. Ct. 825], a federal law enforcement officer in Alabama had reported information from two Alabama police informers and a police officer, to a Chicago law enforcement officer affiant. Again, without express mention of the affidavit's double hearsay nature, a search warrant issued upon it was found valid. In each case the court determined that the critical issue was whether the affidavit met what has come to be known as the above described Aguilar-Spinelli test.

It thus appears from the high court's holdings, that whether hearsay or double hearsay information of criminal activity will support a search warrant depends not upon terminology or ritualistic formula, but upon the quality and persuasiveness of the information itself.

Lower federal courts appear to be in unanimous accord.

United States v. DiNovo (7th Cir. 1975) 523 F.2d 197, 200 (cert. den., 423 U.S. 1016 [46 L. Ed. 2d 387, 96 S.Ct. 449]): "An affidavit for a search warrant can properly include hearsay based on hearsay provided it contains information 'relating to (1) the reliability of the informant and (2) some knowledge of the underlying facts to support the conclusion that a crime had been committed.'" United States v. Carmichael (7th Cir. 1973) 489 F.2d 983, 986: "[H]earsay upon hearsay is not inherently defective. ... [H]earsay based on hearsay is acceptable in this instance as long as the affiant has 'sufficient information so that both levels of hearsay meet the two-pronged test spelled out' in Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723, relating to (1) the reliability of the informant and (2) some knowledge of the underlying facts to support the conclusion that a crime had been committed." United States v. Wilson (7th Cir. 1973) 479 F.2d 936, 941: "If hearsay information is acceptable in arriving at probable cause, and it is, Jones v. United States, 362 U.S. 257, 269, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), then hearsay based on hearsay should be acceptable as long as the police officer has sufficient information so that both levels of hearsay meet the two-pronged test spelled out in Aguilar." United States v. Charlton (E.D. Tenn. 1975) 409 F. Supp. 1327, 1331 [affd., 565 F.2d 86; cert. den., 434 U.S. 1070 (55 L. Ed. 2d 773, 98 S.Ct. 1253)]: "'Double hearsay' is not per se ineligible to be considered in a probable cause determination. Subject to the limitations described in Aguilar and Spinelli, supra, such evidence may be considered by the Magistrate." The same rule will sometimes even be applied to "triple hearsay." (United States v. McCoy (10th Cir. 1973) 478 F.2d 176, 179 [91 Cal. App. 3d 474] [cert. den., 414 U.S. 828 (38 L. Ed. 2d 62, 94 S.Ct. 53)]; Roach v. Parratt (D.Neb. 1976) 407 F. Supp. 703, 706 [revd. on other grounds (8th Cir. 1976) 541 F.2d 772].)

And to the same general effect see United States v. Jenkins (6th Cir. 1975) 525 F.2d 819, 823; United States v. Welebir (4th Cir. 1974) 498 F.2d 346, 349, footnote 2; United States v. Fiorella (2d Cir. 1972) 468 F.2d 688, 691 (cert. den., 417 U.S. 917 [41 L. Ed. 2d 222, 94 S.Ct. 2622]); United States v. Smith (8th Cir. 1972) 462 F.2d 456, 459; United States v. Roth (7th Cir. 1967) 391 F.2d 507, 511; United States v. Ebare (N.D.N.Y. 1976) 416 F. Supp. 398, 401; United States v. Carney (D.Del. 1971) 328 F. Supp. 948, 958; United States ex rel. Crawley v. Rundle (E.D.Pa. 1969) 312 F. Supp. 15, 18.

California authority on the subject is not as clear. Twice its courts, finding it unnecessary to determine the relation of double hearsay to probable cause, declined to do so. (See Price v. Superior Court, supra, 1 Cal. 3d 836, 841; People v. Senkir (1972) 26 Cal. App. 3d 411, 419 [103 Cal. Rptr. 138].) The last cited case however, concluded (p. 419), "'assuming that a search warrant could properly be issued on the basis of such double hearsay, both "prongs" of the Aguilar test would have to be met both as to the informant's statement and as to the statement of the declarant reported by the informant.'" Other such authority has held that hearsay on hearsay was not to be disregarded, but instead should be considered as part of the total factual situation offered to show probable cause. (People v. Nadell (1972) 23 Cal. App. 3d 746, 753 [100 Cal. Rptr. 444]; People v. Scott (1968) 259 Cal. App. 2d 268, 278-279 [66 Cal. Rptr. 257].) An earlier (pre-Aguilar-Spinelli) case concluded that the hearsay information of a primary unidentified police informer should have been under oath. (People v. Harvey (1958) 156 Cal. App. 2d 516, 523 [319 P.2d 689].) And it was held that where the secondary hearsay came from "another officer identified by name, organization and duty station" who had sufficiently vouched for the primary informant, probable cause was made out. (People v. Senkir, supra, p. 419.)

[9] But we are of the opinion that the apposite rule of this state was established by Justice Raymond Sullivan, then presiding over this division of our court, in People v. Pease (1966) 242 Cal. App. 2d 442, 450 [51 Cal. Rptr. 448]. There it was stated: "[T]he mere fact that information acquired by an arresting officer comes from a fellow officer as a hearsay statement not based on the latter's personal observations does not justify the conclusion that reliance thereon is reasonable in the absence of [91 Cal. App. 3d 475] evidence showing that the informant originally transmitting the information to the police was reliable or that such information had its source in official police files or records. Absent the conditions indicated above, such statements of a fellow officer, being hearsay on hearsay, cannot by themselves constitute reasonable cause ..." (Italics added.) This closely follows the rationale of Aguilar-Spinelli, and conforms precisely to the widely followed federal rule.

People v. Pease, supra, has been cited with approval in People v. Madden (1970) 2 Cal. 3d 1017, 1021 [88 Cal. Rptr. 171, 471 P.2d 971], and Remers v. Superior Court (1970) 2 Cal. 3d 659, 666-667 [87 Cal. Rptr. 202, 470 P.2d 11].

Our remaining inquiry is whether the magistrate of our case might have reasonably concluded that the fire marshal's hearsay upon hearsay affidavit otherwise met the requirements of Aguilar and Spinelli.

As noted, the primary informants, the several engineers who had worked upon, and were familiar with, the allegedly destroyed "faces 3 editing system," had seen it in Bingham's possession after the fire. They spoke "in language that is factual" in respect of a matter of which they had "personal knowledge." Indeed, in Bingham's sworn claim of loss (attached to the fire marshal's affidavit) he had averred that each of those persons had such knowledge. And, engineer John Mason's demonstrated knowledge reasonably applied also, in respect of his information that the purportedly destroyed "vello-bind system" and "blue ray machine" were also in Bingham's possession. Moreover it must reasonably be said that the engineer informants' information was strongly corroborated, not only by Bingham's above noted admissions, but by the fire marshal's nonhearsay professional opinion that the fire had its origin in a criminal purpose.

Adverting to the secondary hearsay information of McPherson, it will be noted that his information concerned only what he had been told by the four engineers. Having found him reliable, the magistrate reasonably could, and did, conclude that McPherson, speaking in factual language of information personally imparted to him, had correctly reported it.

Thus, the second of the requirements of Aguilar-Spinelli was also met by the fire marshal's affidavit. [91 Cal. App. 3d 476]

[10] Obedient to the above noted requirement of Skelton v. Superior Court, supra, 1 Cal. 3d 144, 150, and observing "sufficient competent evidence supportive of the magistrate's finding of probable cause" we must, and do, honor his determination.

[11] Another reason advanced by the superior court for its suppression order was that the information of the affidavit, dated January 5, 1978, was "stale," since "the latest of which is February, 1977." (Italics added.) That conclusion is unsupported by the affidavit which, relating McPherson's information to the affiant fire marshal, stated: "Mr. Mason [one of the four engineers] also told Mr. McPherson that on December 29, 1977, he observed in the place where Mr. Ward Bingham now works, ... the faces 3 editing system that he constructed for Mr. Bingham, the blue ray machine and the velo-bind, ..." (Italics added.) Information eight days old will not ordinarily be considered stale. (See People v. Mesa, supra, 14 Cal. 3d 466, 470 (six days); People v. Superior Court (Johnson) (1972) 6 Cal. 3d 704, 713 [100 Cal. Rptr. 319, 493 P.2d 1183] (seven days); People v. Webb (1973) 36 Cal. App. 3d 460, 468-469 [111 Cal. Rptr. 524] ("a little more than two weeks"); Brown v. Superior Court (1973) 34 Cal. App. 3d 539, 544 [110 Cal. Rptr. 107] (nine days); People v. Scott, supra, 259 Cal. App. 2d 268, 277-278 (eighteen days).) Furthermore, since it appeared from the affidavit that the three items of property had been in Bingham's continuous possession or control for many months after the fire, there would be little reason to conclude that he had disposed of it during the few days before the affidavit's execution.

The peremptory writ of mandate will issue.

Racanelli, P. J., and Newsom, J., concurred.

The petition of real party in interest for a hearing by the Supreme Court was denied May 30, 1979.