People v. Torres

KLINE, P. J., Concurring and Dissenting.

I dissent only from part I of the majority opinion, which concludes that the doctrine of collateral estoppel does not require the San Mateo Superior Court to honor the suppression ruling in Los Angeles even though the traditional prerequisites for the application of the doctrine have all been met.

The facts of the instant case are, in my view, easily distinguishable from those of People v. Gephart (1979) 93 Cal.App.3d 989 [156 Cal.Rptr. 489] and other cases the majority opinion relies upon. In my view, the majority has unjustifiably expanded the holding in Gephart. This not only conflicts with the observation of another division of this court that Gephart “is patently limited by its highly unusual facts” (Derrick J. v. Superior Court (1983) 146 Cal.App.3d 748, 753 [194 Cal.Rptr. 348]), but significantly undermines the statutory bar on the use of suppressed evidence. (Pen. Code, § 1538.5, subd. (d).)¹

The Gephart court refused to give binding effect in Siskiyou County to the earlier suppression ruling in Stanislaus County because to do so “could prevent prosecution in a different county on unrelated charges where entirely different policy reasons may exist for pursuing prosecution.” (93 Cal.App.3d at p. 1000, italics added.) The court made it clear that the earlier charges in Gephart were “distinct from the charges against the defendants in Stanislaus County.” {Ibid.)

The charges in Los Angeles and San Mateo Counties with which we are here concerned are not “unrelated” or “distinct,” within the meaning of Gephart, and the policy reasons for pursuing the subsequent charges are no different from those pertaining to the earlier charges.

First, we do not in this case have two independent criminal investigations leading to the same evidence. A single criminal investigation led to the various offenses charged in both counties, and the investigation was headed by Detective Jose Duran of the Burbank Police Department, who was “involved in multi-jurisdictional narcotics investigations.” At all material times Detective Duran was “participating in an investigation involving individuals whom [he] . . . believe[d] obtained cocaine in multi-kilogram quantities in the Los Angeles area for purposes of transporting it to the northern California area.”

The search warrant authorizing the search of the premises in San Mateo County was issued by a Los Angeles County magistrate. The magistrate could not have issued the warrant for an out-of-county search unless he believed it will pertain to a present or future prosecution in the County of Los Angeles. Detective Duran’s affidavit asserted that the evidence he desired to seize in San Mateo County “[w]ill tend to prove that the suspects in custody [i.e., appellants] were aware of the items in the vehicle they were driving [in Los Angeles], Said evidence would therefore be useful in prosecution in Los Angeles County of the suspects.”

The San Mateo County prosecution was the direct consequence of the failed proceeding in Los Angeles County. Burbank law enforcement authorities returned the evidence to San Mateo and caused a prosecution to be initiated in that county only after the District Attorney of Los Angeles County apparently concluded it would be futile to appeal the adverse suppression ruling or refile the charges in the same trial court that had suppressed the evidence.

It would not be unfair to the San Mateo County District Attorney to prevent him from prosecuting an offense that did not result from a San Mateo criminal investigation. The record is bereft of any suggestion that the San Mateo authorities were independently aware of appellants’ criminal activities or that they independently initiated the San Mateo prosecution. So far as the record shows neither Daly City police nor any other law enforcement officials in San Mateo County ever conducted a criminal investigation implicating appellants. The San Mateo prosecution derived entirely from the investigation of the Burbank police officers, who not only obtained the Los Angeles warrant for the San Mateo search, but came to Northern California to lead the search.

The evidence seized in the search, which was immediately taken to Los Angeles County, was returned to San Mateo County only after dismissal of charges by the Los Angeles Superior Court and the decision of the Los Angeles County District Attorney not to appeal suppression of the evidence seized in Daly City.

Possession of cocaine for sale was charged both in Los Angeles and San Mateo Counties, although additional charges not previously made were also alleged in San Mateo. This is very different from Gephart, in which armed robbery had been charged in the first county and receiving stolen property in the second. Unlike Gephart, it certainly cannot in this case be said that “entirely different policy reasons may exist for pursuing prosecution” in the subsequent case. (93 Cal.App.3d at p. 1000.)

The majority distinguishes People v. Zimmerman (1979) 100 Cal.App.3d 673 [161 Cal.Rptr. 188], Dyson v. State Personnel Bd. (1989) 213 Cal.App.3d 711 [262 Cal.Rptr. 112], and Buttimer v. Alexis (1983) 146 Cal.App.3d 754 [194 Cal.Rptr. 603], because in those cases the subsequent proceeding involved the “precise charges” (maj. opn., ante, p. 1331) or the “same charges” (maj. opn., ante, p. 1332, italics omitted) that had earlier been dismissed or quashed. This constrictive redefinition of the concept of “related charges” virtually emasculates subdivision (d) of section 1538.5. If, as will usually be true, the charges can be slightly modified, the People can relitigate a suppression motion without the bother of appealing an adverse ruling. Thus, in what may well become a significant number of cases, the repetitive litigation that subdivision (d) of section 1538.5 was designed to prevent may become commonplace.

People v. Workman (1989) 209 Cal.App.3d 687 [257 Cal.Rptr. 753] and People v. Methey (1991) 227 Cal.App.3d 349 [277 Cal.Rptr. 777] do not, as the majority claims, support a strict interpretation of Gephart. (Maj. opn., ante, pp. 1332-1333.)

Workman, which involved a voluntary dismissal and refiling of felony charges by the same prosecutor in the same county, required the court to reconcile the seeming conflict between subdivisions (d) and (j) of section 1538.5. Subdivision (j) provides that “If. . . the defendant’s motion for. . . suppression of the evidence at the preliminary hearing is granted, and if the defendant is not held to answer at the preliminary hearing, the people may file a new complaint . . . and the ruling at the prior hearing shall not be binding in any subsequent proceeding. . . .” Workman simply stands for the unremarkable proposition that the specific statutory authorization for the refiling of charges is not vitiated by the doctrine of collateral estoppel.

Like Workman, People v. Methey, supra, also involved the refiling of felony charges by the same prosecutor in the same county. In Methey the court granted the defendant’s motion to suppress and thereafter dismissed the charge under section 1385. The prosecutor then refiled on the authority of section 1387, which gives the People one additional opportunity to refile charges previously dismissed. The Court of Appeal simply held that neither res judicata nor collateral estoppel interferes with the ability of the prosecution to attempt to rely on evidence previously suppressed when charges are refiled under section 1387.

Unlike the present case, application of the doctrine of collateral estoppel in Workman and Methey would have interfered with a right explicitly conferred by the Legislature upon the prosecution. Those cases would be germane if the District Attorney of Los Angeles County had refiled the charges dismissed and appellant’s objected to the proposed use of evidence earlier suppressed, as specifically authorized by subdivision (j) of section 1538.5.²

Application of the doctrine of collateral estoppel in our case would not infringe any power to refile charges conferred by statute upon the District Attorney of San Mateo County. Apart from the relatedness of the charges filed in Los Angeles and San Mateo Counties, which distinguishes this case from Gephart, all the technical prerequisites for collateral estoppel are present in our case, as the majority acknowledges. The public policies involved also favor application of the doctrine; namely, “minimizing repetitive litigation” (People v. Sims (1982) 32 Cal.3d 468, 488 [186 Cal.Rptr. 77, 651 P.2d 321]); promoting the sensible use of judicial resources, which “is even more important in criminal than in civil trials” (People v. Taylor (1974) 12 Cal.3d 686, 695 [117 Cal.Rptr.70, 527 P.2d 622]), and preserving the integrity of the criminal justice system. (People v. Sims, supra, at p. 488.) There is no reason law enforcement authorities in southern California ought to be able to compel different superior courts to preside over two separate evidentiary presentations where the same parties try to prove and disprove the identical issue.

Finally, though it is not central to my position, I do not think we need blind ourselves to the dubious nature of the findings made by the San Mateo Superior Court. The presence at the “traffic stop” of four California Highway Patrol (CHP) officers and two Burbank detectives, together with the CHP tape indicating that the arresting officers were travelling at only 55 m.p.h. at the time of the stop, strongly suggests the traffic violation was pretextual and there was no probable cause to stop the vehicle in the first place. Furthermore, on the question of the reasonableness of the search, it is hard to see the necessity for searching a locked receptacle in the back of a truck in connection with a “traffic stop” which itself provided no evidence of contraband or danger to the arresting officers. The arresting officer’s claim that there was consent to the search of a locked receptacle appellants knew contained a large quantity of contraband requires the willing suspension of disbelief, as the Los Angeles judge observed.

The inconsistency between the findings of the San Mateo Superior Court and those of the Los Angeles Superior Court, which the People were unwilling to appeal, undermines the integrity of our judicial system, which subdivision (d) of section 1538.5 was intended to prevent. (People v. Sims, supra, 32 Cal.3d at p. 488.)

For the foregoing reasons, I would reverse the judgment.

Appellants’ petition for review by the Supreme Court was denied August 13, 1992. Mosk, 1, and Kennard, J„ were of the opinion that the petition should be granted.

1 All further statutory references are to the Penal Code.

2 It also bears mentioning that the Fifth District in Workman and the Fourth District in Methey both recognized that the results they reached conflict with the opinion of our district (Div. One) in People v. Superior Court (Brotherton) (1983) 147 Cal.App.3d 281 [195 Cal.Rptr. 96], which holds that subdivision (d) of section 1538.5 precludes relitigation of suppression issues upon a subsequent filing of identical charges in the same county. (See Workman, supra, 209 Cal.App.3d at pp. 699-700 and Methey, supra, 227 Cal.App.3d at p. 356.)