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)

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STORY CONTINUED FROM PART I..

The circumstances of this case, however, justify a different result. Defendant does not deny that the Siskiyou County case was a fair adversary proceeding in which he had the opportunity to fully present his case on the question of whether Sergeant Wiley had probable cause to arrest him for annoying or molesting a minor. Moreover, not only did defendant get a full and fair chance to litigate that issue before the superior court, he got a full and fair chance to litigate the issue before this court. Thus, there is no need to allow defendant to relitigate the issue in this case to vindicate his right to a fair adversary proceeding in which he can fully present his case on the probable cause issue. Defendant has had that opportunity already. Under these circumstances, the need to limit litigation must prevail. This result promotes judicial economy, prevents the possibility of an inconsistent determination that would undermine the integrity of the judicial system, and provides repose to the People.

Nothing in Torres, the other case on which defendant relies, undermines our conclusion. In Torres, a two-member majority of the appellate panel reached a similar result to that in Gephart. (People v. Torres, supra, 6 Cal.App.4th at pp. 1329-1335.) In doing so, the majority distinguished another decision -- People v. Zimmerman (1979) 100 Cal.App.3d 673 -- on the ground that Zimmerman involved the precise charges which were dismissed in the prior criminal action, while Torres involved different offenses committed in different jurisdictions and based on different evidence. (Torres, at p. 1331.)

Seizing on this language, defendant contends the collateral estoppel doctrine should not apply here because, like Torres (and unlike Zimmerman), this case involves prosecutions on different charges committed in different jurisdictions based on different evidence. A brief look at Zimmerman, however, reveals why the language from Torres on which defendant relies has no bearing on whether collateral estoppel should apply here.

In Zimmerman, the defendant, who was on probation in a case out of Contra Costa County, was charged with gun and drug offenses in Santa Clara County after a search of his person following an investigatory detention revealed a pistol and three cubes of LSD. (People v. Zimmerman, supra, 100 Cal.App.3d at pp. 674-675.) The charges were later dismissed after his motion to suppress the evidence was granted at a preliminary hearing. (Id. at p. 675.)

Meanwhile, a petition to modify or revoke the defendants probation in the Contra Costa County case was filed based on his possession of the gun and the LSD. (People v. Zimmerman, supra, 100 Cal.App.3d at p. 675.) The trial court denied the defendants motion to exclude the evidence and found him in violation of his probation. (Ibid.) On appeal, the appellate court concluded that the trial court in the probation revocation proceeding could not consider the evidence that had been suppressed at the preliminary hearing in Santa Clara County because subdivision (d) of section 1538.5 precludes the use of illegally seized evidence at any trial or other hearing.^[1] (Zimmerman, at pp. 675-676.)

For our purposes, what is most apparent from Zimmerman is that it did not involve the collateral estoppel doctrine; instead, it strictly involved the application of a statutory bar to the further use of suppressed evidence. Thus, to the extent the defendants in Torres relied on Zimmerman to support their collateral estoppel argument, the Torres majority could have distinguished Zimmerman on that basis alone.

With this understanding of the basis for the decision in Zimmerman, there is no rational basis for defendants assertion that the collateral estoppel doctrine should not apply here because, like Torres, this case involves prosecutions on different charges committed in different jurisdictions based on different evidence. Notwithstanding the contrary suggestion in Torres, these factors are simply not material in applying the collateral estoppel doctrine. As long as (1) the search and seizure issue involved in both cases is the same, (2) that issue was necessarily decided in the earlier case, (3) the earlier case was resolved by a final judgment, (4) the same person was the defendant in both cases, and (5) that person had a full and fair opportunity to litigate that issue in the earlier case, then we perceive no rational basis for refusing to give preclusive effect to the judicial determination of that issue in the earlier case.

Since this case meets the foregoing criteria, we conclude collateral estoppel bars defendant from relitigating in this case whether Sergeant Wiley had probable cause to arrest him. Accordingly, we will not consider that issue further.

II

First Amendment

Defendant next suggests that his arrest was invalid because his conduct -- which he characterizes as simply taking pictures of children -- was protected by the First Amendment. According to him, For all Sgt. Wiley knew, [defendant] was merely exercising his right to artistic freedom . . . .

This argument is little more than a variation on defendants argument that Sergeant Wiley lacked probable cause to believe he was engaged in criminal conduct -- an argument this court rejected six years ago in the Siskiyou County case and that we have concluded defendant is collaterally estopped from relitigating here. In essence, defendants assertion is that not only was his conduct consistent with innocent activity,^[2]it was constitutionally protected. In the prior appeal, however, this court expressly reject[ed] defendants assertion that his conduct was as consistent with innocent activity as with criminal activity. Thus, defendants First Amendment argument is based on a premise that has already been determined to be invalid. For that reason, the argument is without merit. (See People v. Kongs (1994) 30 Cal.App.4th 1741, 1749-1752 [enforcement of section 647.6 does not offend the First Amendments guarantee of free expression].)

III

Vagueness

Defendant next contends his arrest was invalid because section 647.6 is unconstitutionally vague and therefore void. We disagree.

The constitutional guarantees of due process of law (U.S. Const., 14th Amend.; Cal. Const., art. I, 7) require a reasonable degree of certainty in legislation, especially in the criminal law . . . . [Citation.] [A] penal statute [must] define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. (People v. Ewing (1999) 76 Cal.App.4th 199, 206.)

A similar challenge to section 647.6 was rejected more than 50 years ago in People v. Pallares (1952) 112 Cal.App.2d Supp. 895.^[3] There, in addressing an argument that the statute was not sufficiently clear and definite to state a public offense,

the court concluded that the meaning of the words to annoy or molest, as employed in the code section, are sufficiently definite and certain to advise the public generally what acts and conduct are prohibited. (Id. at pp. 901, 902.) The court went on to explain that [w]hen the words annoy or molest are used in reference to offenses against children, there is a connotation of abnormal sexual motivation on the part of the offender. Although no specific intent is prescribed as an element of this particular offense, a reading of the section as a whole in the light of the evident purpose of this and similar legislation enacted in this state indicates that the acts forbidden are those motivated by an unnatural or abnormal sexual interest or intent with respect to children. It should be noted further that the section must be construed reasonably as setting up an objective test for annoyance or molestation; a childish and wholly unreasonable subjective annoyance, arising, for example, from a child's dislike for proper correction by a teacher, is not covered by the section. The annoyance or molestation which is forbidden is in no sense a purely subjective state on the part of the child. The objectionable acts of a defendant constitute the annoyance or molestation contemplated by the statute. (Id. at pp. 901-902.)

Eighteen years later, in In re Gladys R. (1970) 1 Cal.3d 855, the California Supreme Court expressly reaffirm[ed] the construction given [the statute] in Pallares and subsequent cases. (In re Gladys R., at p. 868.)

Defendant suggests that in analyzing the statute for vagueness, we must disregard the judicial construction of the statute [o]ver the years and focus instead solely on the words of the statute as originally written because it is the job of the Legislature, not the courts, to rewrite statutes. The primary authority he offers in support of this argument is a decision by the Nevada Supreme Court in which that court apparently declined to apply a limiting construction to a statute similar to section 647.6 to save it from being unconstitutionally vague. (City of Las Vegas v. Dist. Ct.(Nev. 2002) 59 P.3d 477.)

That the Nevada Supreme Court chose not to give a similar statute a limiting construction does not mean we are required to, or that we even can, ignore the judicial construction that has been given to section 647.6 for more than half a century. Because the Legislature has amended the statute numerous times in the years that have passed since Pallares and Gladys R. and has never repudiated the construction the courts have given the statute, the Legislature has presumably adopted the judicial construction of the statute as its own. (See In re Gladys R., supra, 1 Cal.3d at pp. 868-869 [noting that because the Legislature had amended the statute in other respects on three occasions since Pallares but had not amended [the statute] to exclude motivation by an abnormal sexual interest or intent as an element of the offense, the court had to presume the Legislature has acquiesced in the judicial construction].) In any event, we are bound by the construction of the statute adopted by our Supreme Court in In re Gladys R. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, we are bound to conclude that defendants challenge to section 647.6 for vagueness fails.

IV

Investigative Stop

Defendants final argument appears to be that regardless of whether Sergeant Wiley ultimately had probable cause to arrest him, Sergeant Wileys detention of him prior to that arrest exceeded the permissible limits and scope of an investigatory stop in various respects. We disagree.

At the hearing on the motion to suppress evidence in this case, Sergeant Wiley testified that after he contacted defendant, and dispatch could not find a drivers license or ID match on the name and birth date defendant had given him, he told defendant that defendant was not going to leave until [Wiley] was able to identify him.

Defendant suggests that at this point (which we will call the original detention), Sergeant Wiley did not have the reasonable suspicion of criminal activity necessary to justify an investigative stop. His argument is not persuasive.

[A] police officer may conduct a limited investigative detention of a person he reasonably suspects is involved in criminal activity . . . . In order to justify the detention, the officer must be able to articulate specific facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. [Citation.] The officers suspicion must be subjectively entertained by him and it must be objectively reasonable for him to do so based on the reasonable beliefs of a similarly trained and experienced officer. (People v. Snyder (1992) 11 Cal.App.4th 389, 392.)

In arguing that Sergeant Wiley did not have a reasonable suspicion of criminal activity at the time of the original detention, defendant presents an incomplete picture of the facts known to Sergeant Wiley at that time. Essentially, he contends that all Sergeant Wiley knew was there had been a report of someone taking photographs of children and that Red Bluff Police Departments dispatcher was unable to match [defendants] information with anything in the Department of Motor Vehicles[] system. This courts opinion in the Siskiyou County case, however, reveals that Sergeant Wiley knew much more than that. In that opinion, the court summarized the pertinent facts as follows:

In the early evening of July 20, 1999, a parent phoned police to report that a man had been trying to take pictures of children at Red Bluff High School and their parents were chasing him away. Patrol Sergeant Ted Wiley of the Red Bluff Police Department was dispatched to investigate.

Officer Wiley found defendant, who matched a description of the suspect, standing on a bluff about 10 feet above a trail near the school. Defendant did not have a shirt on, and it appeared to Wiley that he had been changing clothes. Wiley observed a blue backpack lying nearby that was partially concealed by some dry grass placed on top of it.

Defendant identified himself and provided a date of birth, and Wiley relayed the information to dispatch. Defendant acknowledged that he had been at the school, but he told Wiley that some kids had called him a molester so he had left. Wiley told defendant there was a report of a man taking pictures of children, and defendant responded that he did not want to say anything incriminating and asked if it was illegal to take pictures of children.

Defendant does not account for any of these additional facts in his argument that the original detention was not supported by reasonable suspicion. Accordingly, his argument lacks any persuasive force.

The same is true of the remainder of defendants argument. He suggests that regardless of whether the original detention was justified, his continued detention from that time until the time of his formal arrest was not justified because the investigation that Sergeant Wiley conducted during that time turned up no criminal activity whatsoever. (Bolding omitted.) But in making that argument, defendant fails to account for all of the pertinent facts Sergeant Wiley uncovered, which are detailed in this courts prior opinion. To the extent defendant does discuss Sergeant Wileys investigation in the statement of facts in his brief, he shades all of the facts in his favor, rather than viewing them (as we must) in a manner consistent with how they reasonably could be viewed by a police officer with training and experience similar to Sergeant Wiley. (See People v. Snyder, supra, 11 Cal.App.4th at p. 392.)

In the end, defendants challenge to the detention preceding his arrest is just another version of his challenge to the arrest itself -- he was not doing anything that could vaguely be construed as criminal and therefore Sergeant Wiley had no basis for detaining him, let alone arresting him. More than six years ago, however, this court rejected defendants characterization of the facts known to Sergeant Wiley, and to the extent we are once again called upon to consider defendants view of the facts (this time in a challenge to the detention preceding his arrest), we once again reject it. Accordingly, like before, we find no error in the trial courts denial of his motion to suppress evidence.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

SCOTLAND, P.J.

HULL, J.

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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] In contrast to the Zimmerman court, the Gephart court implicitly rejected this construction of subdivision (d) of section 1538.5 when, after noting that the defendants in that case were relying on that statute in addition to the doctrines of res judicata and collateral estoppel, the court expressed its disbelief that the Legislature intended to give the determination [on a suppression motion] conclusive effect beyond the proceedings in which the defendant is involved at the time of the determination. (People v. Gephart, supra, 93 Cal.App.3d at pp. 997, 999.)

^[2] [A]n arrest and search based on events as consistent with innocent activity as with criminal activity are unlawful. (Remers v. Superior Court (1970) 2 Cal.3d 659, 664.)

^[3]Pallares actually involved former section 647a, subdivision (1), but that statute was the precursor to section 647.6 and the operative language in the two statutes is the same.