PEOPLE v. VOGEL

Filed 2/28/07

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

APPEAL from a judgment of the Superior Court of Placer County, Sandra Faithfull McKeith, Judge. (Retired Judge of Santa Clara Sup. Court, assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Rosenfeld & Saria, Robert J. Saria and Kenneth L. Rosenfeld, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez, Supervising Deputy Attorney General, Virna L. Depaul, Deputy Attorney General, for Plaintiff and Respondent.

After he was arrested in Red Bluff in 1999 for annoying or molesting a minor (Pen. Code,^[1] 647.6), defendant William Michael Vogel was prosecuted on different charges in Siskiyou and Placer Counties based on evidence obtained as a result of that arrest. In each case, the trial courts denied his motion to suppress evidence. In the Siskiyou County case, we affirmed that ruling on appeal. (People v. Vogel (July 11, 2001, C036488) [nonpub. opn.].)Defendant now challenges the ruling in the Placer County case.

As will be seen, we conclude defendant is barred by the doctrine of collateral estoppel from relitigating in this case the issue decided in the prior case -- whether probable cause existed for defendants arrest. As for the remaining arguments defendant raises here, we find no merit in them. Accordingly, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of July 20, 1999, Patrol Sergeant Ted Wiley of the Red Bluff Police Department arrested defendant for annoying or molesting a minor after investigating a report that defendant was trying to take pictures of children at Red Bluff High School.^[2] Based on evidence obtained as a result of the arrest, defendant was charged with offenses in two separate cases, one in Siskiyou County and one in Placer County. The Placer County case (case No. 62-009665) was commenced in August 1999 with the filing of a complaint against defendant for having committed seven different crimes against two different victims (ages seven and eight) on or about July 4, 1999.

Meanwhile, defendant was also charged with various crimes in Siskiyou County (case No. 99-1455). After the trial court in Siskiyou County denied a motion to suppress evidence, ruling the arresting officer had probable cause to arrest defendant for annoying or molesting a minor, defendant pled guilty to two counts of committing a lewd or lascivious act on a child under age 14 and was sentenced to 15 years to life in prison. In July 2001, this court rejected defendants challenge on appeal to the denial of his motion to suppress, concluding there was ample evidence to establish probable cause to arrest defendant. The California Supreme Court denied defendants petition for review. (People v. Vogel, review den. Sept. 19, 2001, S099940.)

In March 2003, following a preliminary hearing in this case, defendant was charged by information with eight crimes in connection with the incidents in Placer County in July 1999. In May 2003, defendant filed a motion to set aside the information. He asserted all of the evidence against him, both in this case and in the Siskiyou County case, stemmed from his arrest in Red Bluff in July 1999, and that that arrest was illegal because section 647.6 is unconstitutional and void. As a result, defendant argued, the court should set aside the information in this case and set aside and expunge the judgment against him in the Siskiyou County case. The trial court (Judge Couzens) denied his motion.

In September 2003, defendant moved to suppress all evidence obtained as a result of his arrest on July 20, 1999, on the grounds he was subjected to a prolonged detention that violated the Fourth Amendment, his arrest was not supported by probable cause, and his arrest violated his First Amendment rights. Defendant also asserted again that his arrest was invalid because section 647.6 is unconstitutionally vague.

In opposing the motion to suppress, the prosecutor called the trial courts attention to this courts ruling on defendants appeal in the Siskiyou County case and argued that the motion to suppress should be denied on collateral estoppel grounds. The prosecutor also opposed the motion on the merits.

In April 2004, the trial court (Judge McKeith) denied the motion. In doing so, the trial court noted this courts opinion in the Siskiyou County case and concur[red] with the facts and findings in that opinion, but did not mention collateral estoppel or indicate that the court felt itself bound by the prior decision on appeal.

In May 2004, a new complaint was filed against defendant in Placer County (case No. 62-43670) charging him with nine offenses. At the preliminary hearing, the parties stipulated, and the court ordered, that the previous motion to suppress evidence, and the resulting denial of that motion, would be deemed to apply to the new case against defendant.

The trial court subsequently granted a motion to consolidate the two cases, and in September 2004 defendant was charged by consolidated information with 17 offenses and various special allegations.

In October 2005, defendant agreed to plead no contest to two of the charges (two counts of committing a lewd or lascivious act on a child under age 14) and admit a special allegation of multiple victims in exchange for dismissal of the remaining 15 charges and a sentence of 30 years to life, to run concurrently with his sentence in the Siskiyou County case. Defendant filed a timely notice of appeal.

DISCUSSION

I

Collateral Estoppel

Defendants first argument on appeal is that Sergeant Wiley did not have probable cause to arrest him for annoying or molesting a minor. The People contend this argument is barred by the doctrine[] of collateral estoppel because defendant fully litigated the probable cause issue in [the] Siskiyou County case. For the reasons that follow, we agree that defendant is collaterally estopped from relitigating whether Sergeant Wiley had probable cause to arrest him.^[3]

Collateral estoppel has been held to bar relitigation of an issue decided at a previous trial if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial. (People v. Taylor (1974) 12 Cal.3d 686, 691, disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861, 867.) Application of the collateral estoppel doctrine serves: (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation. [Citation.] In deciding whether the doctrine is applicable in a particular situation a court must balance the need to limit litigation against the right of a fair adversary proceeding in which a party may fully present his case. (Taylor, at p. 695.)

All three of the requirements for applying the collateral estoppel doctrine are present here: (1) defendant, against whom the People assert the doctrine, was also the defendant in the Siskiyou County case; (2) that case resulted in a final judgment of conviction, which was affirmed on appeal; and (3) the issue defendant seeks to litigate here -- whether Sergeant Wiley had probable cause to arrest him -- is identical to the issue expressly decided both by the trial court and this court in the Siskiyou County case.

Defendant contends collateral estoppel should not apply here because the issues raised in the present case differ from those raised in the previous matter. We acknowledge that in this case defendant has raised some issues that apparently were not decided in the Siskiyou County case: specifically, whether his arrest was invalid because he was engaged in constitutionally protected conduct or because section 647.6 is unconstitutionally vague, and whether Sergeant Wileys detention of him prior to the arrest exceeded the permissible limits and scope of an investigative stop.^[4] The only issue with which we are concerned at this point, however, is whether Sergeant Wiley had probable cause to arrest him for annoying or molesting a minor, and defendant does not (and cannot) deny that that issue was decided in the Siskiyou County case.

Consequently, it is defendants position that this court should revisit the question of whether there was probable cause for his arrest and reach a different conclusion than the court reached six years ago in the Siskiyou County case. Relying on two cases in which the appellate courts declined to apply the collateral estoppel doctrine to rulings on motions to suppress evidence -- People v. Gephart (1979) 93 Cal.App.3d 989 and People v. Torres (1992) 6 Cal.App.4th 1324 -- defendant argues the doctrine should not apply here because: [t]he charges here are not the same as those in the [Siskiyou County] case and the evidence used to convict [defendant] in this case is not the same as in the Siskiyou case. As we will explain, however, those factors are irrelevant to whether we should apply the collateral estoppel doctrine, and the decisions in Gephart and Torres declining to apply that doctrine do not support a similar result here.

In Gephart, three defendants were arrested in Stanislaus County and charged with unknown offenses. (People v. Gephart, supra, 93 Cal.App.3d at pp. 991-992 & fn. 2.) After the magistrate suppressed certain evidence but held the defendants to answer on a charge of receiving stolen property, the superior court granted their motion to suppress all of the evidence seized (presumably as a result of their arrests) and thereafter dismissed the action pursuant to Penal Code section 995. (Id. at pp. 992-993.) The prosecutor did not seek appellate review of the trial courts ruling. (Id. at p. 996, fn. 3.)

The defendants were later charged with armed robbery in Siskiyou County. (People v. Gephart, supra, 93 Cal.App.3d at p. 993.) They moved to suppress the evidence against them (which included evidence seized as a result of the arrests in Stanislaus County), and the Siskiyou County Superior Court ruled that the determination [on the suppression motion] in the Stanislaus proceedings . . . had no effect on the Siskiyou proceedings. (Id. at p. 993.) The court then granted suppression as to evidence which was seized from [the] defendants vehicle, but denied the motion as to other evidence, including a gun seized from one of the defendants on his arrest. (Id. at p. 994.) A jury ultimately found the defendants guilty based on evidence that included the gun. (Id. at p. 993.)

On appeal to this court, the defendants contended the Siskiyou court erred in not giving preclusive effect to the ruling of the Stanislaus court because the ruling of a superior court on the admissibility of evidence in a Penal Code section 1538.5 motion acts either as res judicata or as collateral estoppel. (People v. Gephart, supra, 93 Cal.App.3d at p. 995.) Based on the facts before it, this court disagreed, holding that the determination in a special proceeding under Penal Code section 1538.5 is not binding on the prosecutor of a different county on different charges. (Id. at p. 999.) In explaining the [s]ound policy reasons support[ing its] determination, the court pointed out that [a]fter the granting of a motion under Penal Code section 1538.5, the prosecutor may decline to proceed further for reasons quite independent of the legality of the search or seizure. (People v. Gephart, supra, 93 Cal.App.3d at pp. 999, 1000.) The court explained that giving preclusive effect to the superior courts determination in such a case would . . . prevent full and fair litigation of the [search and seizure] issue by the prosecutor in [a different county] in a proceeding on charges distinct from the charges against the defendants in [the first county]. Such an effect would defeat one of the major purposes of the enactment of Penal Code section 1538.5, that of providing the prosecution with full appellate rights on the issues of the legality of the search and seizure. (Id. at p. 1000.)

Relying on Gephart, defendant contends that if the prosecution is not bound by a ruling on a suppression motion in another county, then the same rule must apply to defendants like him. We agree there is no rational basis for treating defendants differently from the prosecution in applying the doctrine of collateral estoppel to a motion to suppress in a criminal proceeding, as long as the prosecution and the defendants are similarly situated, but defendant here is not similarly situated to the prosecution in Gephart. The paramount concern of the Gephart courtwas the unfairness to the prosecutor in County A of preventing him from litigating a suppression issue simply because of a prior discretionary decision by the prosecutor in County B not to challenge an adverse ruling pertaining to a different charge, especially when the decision in County B may have had little or nothing to do with the merits of the ruling. (People v. Torres, supra, 6 Cal.App.4th at p. 1331.) In other words, the Gephart court was driven by the fact that the search and seizure issue may not have been fully and fairly litigated in the Stanislaus County proceeding because the superior courts ruling on that issue was not challenged on appeal, and there was no way of knowing whether the prosecutions decision not to challenge that ruling had anything to do with its merits.^[5] Thus, the Gephart court balanced the need to limit relitigation of the suppression issue against the right of a fair adversary proceeding in which the People could fully present their case on that issue and found the balance weighed in favor of the People.

TO BE CONTINUED AS PART II.

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^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts II, III, and IV of the Discussion.

^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Section 647.6 makes it a crime to annoy[] or molest[] any child under 18 years of age. ( 647.6, subd. (a).)

^[3] Because we conclude collateral estoppel applies, we need not reach the Peoples alternate argument that relitigation of this issue is barred by the doctrine of law of the case.

^[4] We know those issues were not resolved in this courts opinion in the Siskiyou County case, and the People have offered no evidence they were decided by the trial court in that case.

^[5] On this point, it is worth noting that the Gephart court disposed of the defendants challenge to the Siskiyou County courts denial of their motion to suppress on the merits in a single sentence in a footnote, concluding that [t]he pistol was seized during a proper pat-down search pursuant to a lawful investigative stop. (People v. Gephart, supra, 93 Cal.App.3d at p. 992, fn. 1.)