People v. Shuey

• Citation: 120 Cal.Rptr. 83,13 Cal.3d 835,533 P.2d 211
• Decision Date: 31 March 1975
• Docket Number: Cr. 18252
• Court: United States State Supreme Court (California)
• Parties: , 533 P.2d 211 The PEOPLE, Plaintiff and Appellant, v. Paul Thomas SHUEY et al., Defendants and Respondents.

Page 83

120 Cal.Rptr. 83

13 Cal.3d 835, 533 P.2d 211

The PEOPLE, Plaintiff and Appellant, v. Paul Thomas SHUEY et al., Defendants and Respondents.

Cr. 18252.

Supreme Court of California,

In Bank.

March 31, 1975.

Marshall K. Gordon, Woodland Hills, under appointment by the Supreme Court, for defendants and respondents.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim and Daniel L. Bershin, Deputy Dist. Attys., for plaintiff and appellant.

MOSK, Justice.

Defendants Paul Shuey (Paul) and Vicki Shuey (Vicki) were charged in a three-count information with possession of marijuana (Health & Saf. Code, § 11530), possession of marijuana for sale (Health & Saf. Code, § 11530.5) and possession of amphetamines (Health & Saf. Code, § 11910).

On December 27, 1971, Officer Fisk of the Los Angeles Police Department and two fellow officers went to defendants' home to investigate suspected narcotics activity. Five days earlier Fisk had been told by an unnamed informant that an individual named Paul had five 'lids' of marijuana at the Shuey address. The officer identified himself to Paul, revealed the purpose of his visit, and asked to be allowed to search the premises. Paul refused, and Fisk informed him the police would obtain a search warrant. Paul continued to withhold consent, and Fisk told him that until the warrant was obtained officers would enter the Shuey apartment and 'secure' the premises. Paul offered no physical resistance, and the officers immediately occupied the premises.

The occupation lasted some three hours, a large part of which Paul spent playing chess with his attorney under the gaze of the police. Thereafter another officer arrived with a warrant, a search was conducted, and contraband seized. ¹

Defendants' motion to suppress the evidence on the ground of illegal search and seizure (Pen.Code, § 1538.5) was denied. The trial was continued to allow defendants an opportunity to seek a writ of mandate in the Court of Appeal. They did so, and in Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 106 Cal.Rptr. 452 (Shuey I) the foregoing police conduct was held to be an illegal seizure of the entire contents of the apartment. The writ was granted, but with directions to the trial court to determine the limited question whether the evidence sought to be suppressed was factually the fruit of the illegality. (Id. at pp. 544--545, 106 Cal.Rptr. 452.) We denied a hearing.

The matter was returned to the trial court, and the hearing on the motion to suppress was reopened. The People requested permission to propose an additional theory not raised at the original hearing, i.e., whether there was probable cause to arrest and whether a valid arrest had in fact occurred. In its opinion the Court of Appeal had declared, 'At the time of the motion to suppress, the People expressly disavowed any claim that there was a right to make an arrest of Paul before the contraband was actually found. The same principle which forbids us to reexamine the validity of the warrant (which defendants had not contested) keeps us from basing our decision on a theory which the People expressly discarded. (Citation.)' (Id. at p. 539, 106 Cal.Rptr. at p. 454.) Because of this holding the trial court denied the People's motion and confined the hearing to the question whether 'but for' the illegality the contraband would have been destroyed prior to its discovery. The court found this would have been the case, and accordingly granted the motion to suppress and dismissed the information. (Pen.Code, § 1385.)

The People appealed from the dismissal (Pen.Code, § 1238, subd. (a)(7)), and the case was heard by a different division of the Court of Appeal. In People v. Shuey (1974), 42 Cal.App.3d 18, 115 Cal.Rptr. 447 (Shuey II) that division held that the trial court erroneously interpreted Shuey I as foreclosing the People from relying on an arrest theory. The court said 'the statement in the opinion that 'the People expressly disavowed any claim that there was a right to make an arrest of Paul before the contraband was actually found' and the reference to such a claim as 'a theory which the People expressly discarded' . . . Are without support in the record. The People's imprecise factual and procedural presentation in the trial court and perpetuated upon the application for the writ undoubtedly led the appellate court to assume that the People had abandoned any effort to justify the search on a lawful arrest and the existence of probable cause therefor.' (Italics added.) The court then reversed and remanded with directions to the trial court to vacate its order, reopen the hearing, and 'consider the issue of whether there existed probable cause to arrest the defendants or either of them at the time of the entry into defendants' home . . ..' ²

We granted a hearing in order to consider two distinct questions: (1) whether the purported redetermination of the waiver issue by the Court of Appeal in Shuey II was valid, and (2) if not, whether the search and seizure in question can be justified without recourse to theories based on probable cause to arrest.

I

Strictly speaking, the granting of a hearing in Shuey II automatically vacated the opinion of the Court of Appeal and deleted it from the official reports. (Cal.Rules of Court, rule 976(d).) Thus we are now presented with an appeal by the People from the dismissal of the information following the suppression of evidence at the second hearing. However, because of the importance of the issue to the judicial process we deem it appropriate to consider the conclusion of the Court of Appeal in Shuey II that the finding of waiver in the first appellate decision was erroneous.

From a policy standpoint it is not difficult to envisage the frustrating consequences that could flow from a practice allowing different panels of the Court of Appeal to redetermine issues which were disposed of on a previous appeal in the same case. For example, if the reasoning of Shuey II were to control, the matter would be remanded for yet a third hearing. The trial court, under its mandate, would then consider the arrest theory. Among the various results which might emerge from such a hearing could be a finding that the occupation of the Shuey apartment constituted a valid arrest, thus rendering moot the original question whether the discovery of the contraband was factually caused by the 'illegality.' After the denial of their motion to suppress, defendants might again seek pretrial review in another proceeding entitled 'Shuey v. Superior Court.' This third appellate panel might correctly conclude that the decision in Shuey II was erroneous, that Shuey I was controlling, and remand yet again for consideration of the issue of causation. The mind boggles at the possibilities which could arise should the People be no more successful at the fourth hearing than they were at the second: Shuey IV, followed by Shuey V? Theoretically there could be no certain termination of this sequence, and the parties potentially could find themselves in a Catch-22 position of receiving a infinite lesson in aberrations of appellate procedure.

Fortunately, fundamental rules of appellate review are specifically designed to preclude the possibility of this type of multiple litigation of the same issue. Among these is the doctrine known as the 'law of the case' or the 'law of the former decision.' In the early case of Tally v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 1049, 1050, this rule was aptly described. 'The doctrine of the law of the case is this: That where, upon an appeal, the Supreme Court, in deciding the appeal, states in its opinion a principle or rule of law, necessary to the decision, that principle or rule becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this, although in its subsequent consideration, this court may be clearly of the opinion that the former decision is erroneous in that particular.'

The principle applies to criminal as well as civil matters (People v. Durbin (1966) 64 Cal.2d 474, 477, 50 Cal.Rptr. 657, 413 P.2d 433; Castiel v. Superior Court (1958) 162 Cal.App.2d 710, 328 P.2d 476), and to decisions of intermediate appellate courts as well as courts of last resort. 'Where a decision upon appeal has been rendered by a District Court of Appeal and the case is returned upon a reversal, and a second appeal comes to this court directly or intermediately, for reasons of policy and convenience, this court generally will not inquire into the merits of said first decision, but will regard it as the law of the case.' (United Dredging Co. v. Ind. Acc. Com. (1930) 208 Cal. 705, 712, 284 P. 922, 925.) Application of the rule is now subject to the qualifications that 'the point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision.' (Pigeon Point Ranch, Inc. v. Perot (1963) 59 Cal.2d 227, 231, 28 Cal.Rptr. 865, 866, 379 P.2d 321, 322; see also People v. Medina (1972) 6 Cal.3d 484, 491, fn. 7, 99 Cal.Rptr. 630, 492 P.2d 686.)

The doctrine, as the name implies, is exclusively concerned with issues of law and not fact. (Wallace v. Sisson (1896) 114 Cal. 42, 43, 45 P. 1000; Moore v. Trott (1912) 162 Cal. 268, 273, 122 P. 462; Muktarian v. Barmby (1968) 264 Cal.App.2d 966, 968, 70 Cal.Rptr. 903.) Examples abound, and include the legal sufficiency of evidence (Estate of Baird (1924) 193 Cal. 225, 234, 223 P. 974; Stromer v. Browning (1968) 268 Cal.App.2d 513, 521, 74 Cal.Rptr. 155), the sufficiency of pleadings (McCowen v. Pew (1912) 18 Cal.App. 302, 313, 123 P. 191; Lubarsky v. Richardson (1933) 218 Cal. 27, 30, 21 P.2d 557), the nature and effect of a document (Steelduct Co. v. Henger-Seltzer...