People v. Uhlemann

Decision Date02 July 1973
Docket NumberCr. 16326
Citation9 Cal.3d 662,108 Cal.Rptr. 657,511 P.2d 609
CourtCalifornia Supreme Court
Parties, 511 P.2d 609 The PEOPLE, Plaintiff and Appellant, v. Stephen F. UHLEMANN, Defendant and Respondent.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Joseph P. Busch, Dist. Atty., Harry Wood and Eugene D. Tavris, Deputy Dist. Attys., Harry B. Sondheim, Los Angeles, 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 People 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.) In this case, defendant urges us to adopt an exception to that long-standing rule in cases wherein the magistrate's dismissal was based upon his factual finding that the defendant was innocent of all charges. As will appear, however, we have concluded that the magistrate lacks the power to make a finding regarding the guilt or innocence of the accused, for the magistrate's authority is limited to determining whether sufficient or probable cause exists to hold the defendant for trial. Accordingly, as the magistrate has no power to make a determination on the merits of the case before him, there is no room for the application of the doctrines of res judicata or collateral estoppel.

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(a), 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 transactions 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 hereself 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

Following the magistrate's dismissal of the complaint, the People sought and obtained a grand jury indictment concededly based upon the same transactions as those upon 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 not so barred.

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; Ex parte Fenton, Supra, 77 Cal. 183, 19 P.2d 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, 104, 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 § 1387.)

It appears, however, that none of the foregoing cases involved a dismissal based 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 (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 express 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 a preliminary examination, disbelieved a key prosecution witness, and on the basis of that disbelief (coupled with his evident belief of defendant's testimony) determined that defendant had been entrapped. Thus, according to defendant, that determination should be distinguished from the ordinary finding 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 assertedly should bar a subsequent prosecution for the same offense.

Defendant's assumption, that the magistrate's dismissal constituted a valid determination on the merits of the charges against him, is based upon the premise that the magistrate had authority or jurisdiction to make such a determination. To the contrary, the magistrate's role is limited by statute to determining whether or not there is 'sufficient cause' to believe defendant guilty of a public offense. (See Pen.Code, §§ 871, 872.) The term 'sufficient cause' is generally equivalent to 'reasonable and probable cause,' that is, such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (Williams v. Superior Court, 71 Cal.2d 1144, 1147, 80 Cal.Rptr. 747, 458 P.2d 987.) As we recently pointed out in Taylor v. Superior Court, 3 Cal.3d 578, 582, 91 Cal.Rptr. 275, 277, 477 P.2d 131, 133, 'Of course, the probable cause test is not identical with the test which controls a jury . . .. The jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime. But a magistrate conducting a preliminary examination must be convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. (Citations.) In other words, 'Evidence that will justify a prosecution need not be sufficient to support a conviction. . . . An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. (Citations.)"

Within the framework of his limited role, 3 however, the magistrate may weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses (Jones v. Superior Court, Supra, 4 Cal.3d 660, 667, 94 Cal.Rptr. 289, 483 P.2d 1241). In other words, in assisting him in his determination of 'sufficient cause,' the magistrate is entitled to perform adjudicatory functions akin to the functions of a trial. Judge. Yet the proceeding is not a trial, and if the magistrate forms a personal opinion...

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