In People v. Hewitt (1970) 5 Cal. App. 3d 923, the prosecution sought to meet its burden at a suppression hearing by offering into evidence the transcript of an earlier hearing on the defendants' motion to set aside the information (§ 995); that transcript included the transcript of one of the defendant's preliminary hearing, at which an officer testified to the circumstances of the arrest and search at issue.
It was conceded that if suppression motions are governed by the rules of evidence applicable at trial, the former testimony would have been inadmissible because the officer was available at the hearing. (Evid. Code, § 1291.)
Hewitt rejected the argument that the Evidence Code did not apply to suppression hearings because section 1538.5 was enacted after the Evidence Code and therefore could not have been within the contemplation of the Legislature in enacting the Evidence Code. ( Hewitt, supra, 5 Cal. App. 3d at p. 927.)
Hewitt also rejected the argument that a trial judge should be able to consider former testimony in the interest of efficiency and avoidance of unnecessary repetition of testimony. In this connection, the Hewitt court looked to language in section 1538.5, subdivision (i), stating, "'The defendant shall have the right to litigate the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing.'" ( Hewitt, supra, 5 Cal. App. 3d at p. 927.)
Hewitt additionally refused to find the error in admitting the former testimony harmless. The prosecution's argument that any such error was not prejudicial because the officer was available at the hearing for questioning, according to Hewitt, "failed to recognize that the burden was on the prosecution, not the defense, to show that the search was lawful; that showing must be based on competent evidence. Evidence that is inadmissible does not become admissible because the objecting party has an opportunity to rebut it. Moreover, one of the reasons for requiring a witness to testify in person is to enable the trier of fact to consider the demeanor of the witness in weighing his testimony and judging his credibility." ( Hewitt, supra, 5 Cal. App. 3d at p. 928.)
"The term 'evidence' means in this context admissible evidence. If the Legislature had intended that the superior court merely review the preliminary hearing transcript in determining the reasonableness of a search, there was no need for section 1538.5 ; review upon the transcript was already authorized by Penal Code section 995. The difference between a motion to set aside information under section 995 and a hearing under section 1538.5 was described in People v. Heard (1968) 266 Cal. App. 2d 747, 749: 'A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact. In considering a motion to dismiss under Penal Code section 995, the superior court is sitting as a reviewing court....' One legislative purpose in enacting section 1538.5 was to enable a defendant to raise a search and seizure issue at the earliest stage so as to save the inconvenience and expense of determining the issue at trial. ( Moran v. St John (1968) 267 Cal. App. 2d 474, 477.) This purpose would be defeated if a search could be justified, at the special hearing, on testimony which later would be inadmissible to support the search if the evidence seized is challenged at trial." ( Hewitt, supra, at p. 928.)