People v. Uhlemann

• Decision Date: 30 November 1972
• Docket Number: Cr. 16326
• Citation: 105 Cal.Rptr. 21,503 P.2d 277,8 Cal.3d 393
• Court: California Supreme Court
• Parties: , 503 P.2d 277 The PEOPLE, Plaintiff and Appellant, v. Stephen F. UHLEMANN, Defendant and Respondent.

Page 21

105 Cal.Rptr. 21

8 Cal.3d 393, 503 P.2d 277

The PEOPLE, Plaintiff and Appellant, v. Stephen F. UHLEMANN, Defendant and Respondent.

Cr. 16326.

Supreme Court of California, In Bank.

Nov. 30, 1972.

For Opinion on Rehearing, see 108 Cal.Rptr. 657, 511 P.2d 609.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Joseph P. Busch, Dist. Atty., Harry Wood and Eugene D. Tavris, Dequty Dist. Attys., for plaintiff and appellant.

Hollopeter & Terry and Don H. Terry, Pasadena, for defendant and respondent.

Richard S. Buckley, Public Defender, Los Angeles, James L. McCormick, Richard A. Curtis and Dennis A. Fischer, Deputy Public Defenders, and Sheldon Portman, Public Defender, Santa Clara, as amici curiae on behalf of defendant and respondent.

BURKE, Justice.

It has long been the rule in this state that a magistrate's dismissal of criminal charges following a preliminary examination does not bar the prosecution from either refiling the same charges before another magistrate, or seeking an indictment based upon those charges. (See Ex parte Fenton, 77 Cal. 183, 184, 19 P. 267; People v. Prewitt, 52 Cal.2d 330, 340, 341 P.2d 1.) The instant case, however, presents a novel situation justifying an exception to that long standing rule. As will appear we have concluded that if the magistrate's findings of fact affirmatively establish defendant's innocence, or disclose an absolute defense to the crime charged, the People should be barred, at least absent unusual circumstances not present here, from initiating further proceedings based upon the charges so dismissed.

Defendant was arrested and charged with selling marijuana (Health & Saf. Code, § 11531). Following an extensive preliminary examination, the magistrate dismissed the complaint upon defendant's motion on the ground that the evidence established that defendant had been entrapped into committing the offense charged. The People thereupon obtained a grand jury indictment which charged defendant with the same offense. A jury trial was held and defendant was found guilty of one count, and not guilty of another. Defendant moved for a new trial based upon the newly filed opinion by this court of Jones v. Superior Court, 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241. The court granted defendant's motion for a new trial and thereupon ordered the action dismissed on the basis of our Jones decision. ¹ The People appeal. (Pen.Code, § 1238, subds. (3) and (8).)

As noted above, the magistrate's ruling which dismissed the original charges against defendant followed an extensive preliminary examination, encompassing several days of testimony by both defense and prosecution witnesses. In essence, defendant's sole defense was entrapment. Defendant admitted making or arranging a sale or sales of marijuana to an undercover agent, but insisted that the idea to carry out those transaction originated with Cathrine Wolf, a friend and neighbor, who had been secretly working with police officers to expose narcotics offenders. The evidence indicated that Miss Wolf's cooperation with the officers had resulted in the arrest of several persons, including her former fiance. Miss Wolf herself had been arrested for possession of marijuana immediately prior to joining forces with the police. At the preliminary examination, Miss Wolf denied that she had urged defendant to arrange narcotics sales, admitted that she had been a prior marijuana user, and testified in essence that she chose to cooperate with police officers through a desire to perform a public service, rather than through any promise or hope of leniency.

At the conclusion of the preliminary examination, the magistrate acknowledged that a conflict in the evidence existed with respect to the issue of entrapment, and that he had resolved that conflict in defendant's favor, based upon his determination that Miss Wolf was lying, and had 'set up' defendant. The magistrate found it 'inherently incredible' and 'unbelievable' that a narcotics user such as Miss Wolf would, out of desire to perform a public service, arrange for the arrest of her friends and former fiance. The magistrate evidently believed that Miss Wolf's hope of extricating herself from pending criminal charges led her to cooperate with police officers and, as proof of her worth to them, entrap defendant and others into making unlawful narcotics transactions. ²

Rather than appeal the magistrate's dismissal of the complaint, ³ the People sought and obtained a grand jury indictment concededly based upon the same transactions as those which the dismissed complaint was based. The question arises whether the People were barred by the magistrate's dismissal from initiating such additional proceedings. We conclude they were.

It is, of course, the rule in this state that the magistrate's order dismissing a felony complaint is not a bar to another prosecution for the same offense, either by filing a subsequent complaint (People v. Godlewski, 22 Cal.2d 677, 682-683, 140 P.2d 381; Exparte Fention, supra, 77 Cal. 183, 19 P. 267; People v. Nooner, 205 Cal.App.2d 723, 726, 23 Cal.Rptr. 355; People v. Brown, 200 Cal.App.2d 111, 117, 19 Cal.Rptr. 36; People v. White, 180 Cal.App.2d 99, 103, 4 Cal.Rptr. 261; People v. Ferrera, 149 Cal.App.2d 850, 852-853, 309 P.2d 533), or by seeking a grand jury indictment (People v. Combes, 56 Cal.2d 135, 145, 14 Cal.Rptr. 4, 363 P.2d 4; People v. Prewitt, supra, 52 Cal.2d 330, 340, 341 P.2d 1; People v. Joseph, 153 Cal.App.2d 548, 551-552, 314 P.2d 1004; People v. MacCagnan, 129 Cal.App.2d 100, 112-113, 276 P.2d 679). Even a dismissal in the superior court following an order setting aside an information or indictment is no bar to a future prosecution for the same offense. (People v. Van Eyk, 56 Cal.2d 471, 477, 15 Cal.Rptr. 150, 364 P.2d 326; Pen.Code, § 999; see also Pen.Code, § 1387.)

None of the foregoing cases, however, involved a dismissal upon the magistrate's factual determination that defendant did not commit an offense. Instead, the cases have upheld subsequent prosecutions following dismissals ordered for such reasons as insufficiency of the evidence ⁴ (People v. Hrjak, 85 Cal.App. 301, 303-304, 259 P. 353), lack of probable cause to commit (People v. Joseph, supra, 153 Cal.App.2d 548, 551-552, 314 P.2d 1004), delay in prosecution (People v. Godlewski, supra, 22 Cal.2d 677, 682-683, 140 P.2d 381), failure to exclude unauthorized persons from the courtroom (People v. Brown, supra, 200 Cal.App.2d 111, 117, 19 Cal.Rptr. 36), and furtherance of justice (People v. MacCagnan, supra, 129 Cal.App.2d 100, 112-113, 276 P.2d 679). In none of the cases did the dismissing magistrate act upon the determination, based upon the evidence presented to him, that defendant did not commit the crime charged or had proved an absolute defense thereto.

In the instant case, on the other hand, the magistrate held an extensive preliminary examination, disbelieved a key prosecution witness, and on the basis of that disbelief (coupled with his evident belief of defendant's testimony) determine that defendant had been entrapped. That determination must be distinguished from the ordinary of insufficiency of the evidence or lack of probable cause, for it constituted a decision on the merits of the People's case, a decision which should, under fundamental principles of justice and fair play, bar a subsequent prosecution for the same offense.

'The doctrine of res judicata prevents the relitigation of issues determined by a final judgment on a prior between the same parties or those in privity with the original parties.' (In re Crow, 4 Cal.3d 613, 623, 94 Cal.Rptr. 254, 262, 483 P.2d 1206, 1214, fn. omitted.) The doctrine of collateral estoppel bars relitigation of previously decided issues sought to be raised in a new proceeding on a different cause of action. (In re Crow, supra, at p. 622, 94 Cal.Rptr. 254, 483 P.2d 1206; 1 Witkin, Cal.Crimes, § 221 et seq., and cases cited; see Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469.) In criminal cases, these doctrines have thus far been limited to situations wherein jeopardy has attached at the prior proceeding. As stated in Crow, supra, 'In criminal cases in which an individual has once been haled before a jury and found innocent, res judicata, including collateral estoppel rests upon the double jeopardy clause of the Fifth Amendment and prevents a second prosecution for the same conduct or subject matter. (Ashe v. Swenson (1970) [supra] 397 U.S. 436, 445, 90 S.Ct. 1189 . . ..)' (4 Cal.3d at p. 623, 94 Cal.Rptr. at p. 262, 483 P.2d at p. 1214.) Since a defendant is not placed in jeopardy at the preliminary hearing (United States v. Levy, 268 U.S. 390, 393, 45 S.Ct. 516, 69 L.Ed. 1010; Ex parte Fenton, supra, 77 Cal. 183, 184, 19 P. 267; 1 Witkin, supra, § 189, p. 182), the Fifth Amendment does not serve as a proper basis for barring further prosecution in this case.

Yet assuming that the preliminary examination constitutes a full adversary hearing which can, under certain circumstances, culminate in a judicial determination that a defendant is innocent of the charges against him, we see no reason why the doctrines of res judicata or collateral estoppel should not apply. True, prior cases have stated that these doctrines are inapplicable to orders dismissing criminal proceedings following preliminary hearings. (See People v. Prewitt, supra, 52 Cal.2d 330, 339-340, 341 P.2d 1; In re Begerow, 136 Cal. 293, 297, 68 P. 773; Ex parte Clarke, 54 Cal. 412; People v. Hernandez, 250 Cal.App.2d 842, 848, 58 Cal.Rptr. 835; People v. Joseph, supra, 153 Cal.App.2d 548, 550-551, 314 P.2d 1004; People v. Ferrera, supra, 149 Cal.App.2d 850, 853, 309 P.2d 533; 1 Witkin, supra, §§ 224, 225, pp. 214-215.) Yet none of these cases involved a magistrate's factual determination on the merits in favor of defendant. In fact, the prior cases reason that a dismissal following the preliminary hearing...