2 Judges Make Opposite Rulings on Prop. 115 : Law: They disagree over the constitutionality of a provision permitting police hearsay testimony at preliminary hearings.

Two Orange County judges on Friday made exactly opposite rulings on a provision in the newly passed California court reform initiative that permits police officers to testify for victims and other witnesses at preliminary hearings.

Superior Court Judge Leonard H. McBride declared unconstitutional the provision of Proposition 115 that permits such hearsay or indirect testimony. He dismissed charges against a defendant accused of joy riding and another accused of burglary because a police officer had been permitted by Municipal Court judges in their cases to provide all the key evidence at their preliminary hearings.

But just half an hour later, Superior Court Judge William W. Bedsworth, listening to the same arguments from the same lawyers who had appeared before McBride, upheld the constitutionality of the provision. He refused to dismiss, on those grounds, auto theft and burglary charges against a separate set of defendants.

“Clearly, it’s going to have to be the state Supreme Court that resolves this issue,” said James Barnett, the defense lawyer who appeared before both judges.

Chief Assistant Dist. Atty. Maury Evans agreed.

“Until we get a definitive answer, we’ll have to decide on a case-by-case basis whether to seek the use of hearsay testimony,” Evans said.

The purpose of a preliminary hearing in California is for a magistrate to determine whether there is sufficient reason to hold a defendant to answer for charges against him or her at a trial.

Arguments over police hearsay testimony at such hearings was one of the more volatile issues argued before Proposition 115 was passed by the voters in June.

Opponents claim that it denies a defendant the chance to have any meaningful cross-examination of witnesses, which often provides a judge the information needed to decide whether a defendant should be bound over for trial.

But prosecutors and other supporters of the provision claim it’s a way to cut down on needless hours of court time at preliminary hearings. Also, it spares victims and other witnesses an extra court appearance, since they already have to testify at the trial.

But McBride said he does not believe that sparing the victims and witnesses a trip to court should be a priority.

A defendant should have the right to confront witnesses against him or her, “the sooner the better,” McBride said.

The judge added: “We’re presuming guilt (under Proposition 115) without any real judicial process. If we didn’t have judicial process, we wouldn’t have much left in this country.”

But Bedsworth did not have the same problem with the law. He told defense lawyers that he disagrees that the hearsay provision of Proposition 115 “guts” the defendant’s guarantee of a fair hearing.

“If the people of this state want to have a preliminary hearing of this type, they are allowed to do so,” Bedsworth ruled. “They couldn’t do it under the California Constitution, so they amended it. It’s as simple as that.”

He added: “I can’t find it written in stone that progress means an expansion of someone’s rights.”

Bedsworth is a former prosecutor who was a strong opponent of former Chief Justice Rose Elizabeth Bird. McBride is considered by most prosecutors to be one of the most liberal judges on the bench.

In the two cases before McBride, prosecutors must now either re-file the charges and hope the cases are sent to a different judge or appeal McBride’s decision to the 4th District Court of Appeal.

“Fortunately, Judge McBride’s decision is not binding on other judges,” said Dist. Atty. Michael R. Capizzi.