I respectfully disagree with the majority’s conclusion the trial court properly excluded Capone’s testimony at the special hearing.
At a hearing in camera, the trial court determined defense witness Capone could not reasonably have been produced at the preliminary hearing. Nevertheless, the court in camera excluded Capone’s testimony on the *1329grounds it was cumulative and surplusage, reasoning the magistrate’s decision would not have changed had it heard Capone’s testimony and further reasoning Drews should not be allowed to add one more witness “of the same sort” simply because the police officer’s credibility was being challenged.
The trial court erred because once it found Capone could not reasonably have been produced at the preliminary hearing, Drews had a right to a special hearing in open court to present this evidence.1 (Pen. Code,2 § 1538.5, subd. (i).) Because Capone’s testimony went directly to the knock-notice findings made by the magistrate, the trial court then had a duty to exercise its independent judgment when deciding whether the officer complied with the knock-notice requirements of section 1531 in light of this additional evidence.3 (See People v. Ramsey (1988) 203 Cal.App.3d 671, 679, fn. 2 [250 Cal.Rptr. 309].)
Here, defense witnesses Brown, Enriquez and Capone were physically situated in different places in the apartment building at the time Officer Heggestuen said he knocked and gave notice. Brown, Drews’s next-door neighbor, did not hear the knock and notice; Enriquez, sitting on his balcony downstairs, did not hear the knock and notice; Capone, standing underneath the stairwell, did not hear the knock and notice; Officer Bellizzi, standing halfway up the stairwell to Drews’s apartment, heard only one knock and notice. Officer Heggestuen testified he twice knocked and gave notice. In ruling Officer Heggestuen had complied with section 1531, the magistrate found this was a “close case.”
Because Drews was able to produce a witness not reasonably available at the preliminary hearing, the trial court should have permitted Capone to testify. Capone’s testimony was relevant and probative on the issue of the officer’s compliance with the knock-notice requirements of section 1531. Moreover, there was no evidence before the trial court that Capone’s testimony would consume an undue amount of time, confuse the issue or be cumulative as to its evidentiary weight. (Evid. Code § 352.)
*1330The superior court did not exercise its independent judgment in deciding the knock-notice issue, even though it determined there was additional evidence on that issue. In my view, Drews was erroneously denied the right to present evidence at the special hearing. I would reverse the judgment and remand the case to the trial court for a hearing pursuant to section 1538.5, subdivision (i).
A petition for a rehearing was denied April 11, 1989, and appellant’s petition for review by the Supreme Court was denied June 22, 1989. Broussard, J., was of the opinion that the petition should be granted.
The trial court did not find Capone’s testimony irrelevant. Instead, at the in camera hearing, the court said: “Well, but in the context of our situation, I am not saying that in a de novo proceeding in which all of these people were on and nothing had been decided, that presenting witnesses with regard to the transaction itself, who would show that the officers lied about it from beginning to end would not be relevant evidence and that if it came in, somebody deciding credibility would not consider it. I am not suggesting that at all.”
All statutory references are to the Penal Code unless otherwise specified.
“. . . The superior court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the superior court as to evidence or property not affected by evidence presented at the special hearing.” (§ 1538.5, subd. (i).)