Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, William C. Ryan, Judge. Los Angeles County Super. Ct. No. BA293279
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant Eduardo Espinoza contends his conviction for unauthorized use of a computer system to execute a scheme to defraud or deceive in violation of Penal Code section 502, subdivision (c)(1), should have been barred by collateral estoppal principles, based on a prior civil action in which the California Department of Consumer Affairs (the Department) for the Bureau of Automotive Repair Defendant (the Bureau) revoked defendant’s state “smog check” license for the same underlying misconduct. We reject application of the doctrine of collateral estoppal to defendant’s criminal prosecution and affirm the judgment.
PROCEDURAL AND FACTUAL BACKGROUND
The Department issued an advanced emission specialist license to defendant in 1999. In late 2003 and early 2004, the Department conducted an investigation of defendant and the “Test Only” facility where he worked. The investigation led to the discovery that defendant had violated applicable regulations under the Health and Safety Code in obtaining smog compliance certificates for five automobiles. More specifically, defendant used a fraudulent inspection method called “clean-piping” to certify compliance. In a civil action, defendant stipulated to the revocation of his license and admitted that he falsely and fraudulently obtained those certificates without performing bona fide inspections of the emission control devices on the five automobiles. In that proceeding, the Bureau was represented by the Attorney General. The stipulation was approved by the director of the Department on October 26, 2005, and became effective on December 1, 2005.
The facts and procedural history are taken from the Bureau’s accusation, dated June 30, 2004. Defendant entered into a stipulation with the Department on July 1, 2005, in which he admitted all charges and allegations alleged in the accusation.
Section 44072.10 of the Health and Safety Code mandates the revocation of the license of any smog check technician who fraudulently certifies vehicles or participates in the fraudulent inspection of vehicles. Among the enumerated fraudulent methods is “clean-piping,” which is defined by title 16, section 3340.1 of the California Code of Regulations as “the use of a sample of the exhaust emissions of one vehicle in order to cause the EIS [Emission Inspection System] to issue a certificate of compliance for another vehicle.”
In 2007, the Los Angeles District Attorney filed an information charging defendant with 10 criminal offenses arising out of the same underlying conduct—five counts of unauthorized accessing a computer system to execute a scheme or artifice to defraud or deceive, or obtain money, property, or data in violation of Penal Code section 502, subdivision (c)(1), and five counts of knowingly uttering false smog certificates in violation of Vehicle Code section 4463, subdivision (a)(2). Defendant filed a motion to dismiss on collateral estoppal grounds “due to a prior disposition with the Attorney General on the same facts.” The trial court denied the motion.
Defendant withdrew his not guilty pleas to the information and entered into a negotiated disposition whereby the first count under Penal Code section 502 was amended to allege a misdemeanor, defendant pleaded nolo contender to that count, and the remaining counts were dismissed. The trial court placed defendant on 24 months’ summary probation with various conditions, including that he not work as a smog check technician and that he perform community service. The court issued a certificate of probable cause as to defendant’s timely appeal.
DISCUSSION
As he did below, defendant contends the collateral estoppal doctrine bars his criminal prosecution for unauthorized computer access and related Vehicle Code violations, based on the Bureau’s prior civil action to revoke his smog check license for the same underlying fraudulent conduct. We agree with the Attorney General that defendant cannot invoke the doctrine because defendant fails to establish at least one of the five threshold requirements of collateral estoppal—the requirement of privity. However, there is a more fundamental impediment to defendant’s contention. Even if defendant could invoke the doctrine, it would not serve to bar the prosecution in any way. Collateral estoppal is a doctrine of issue, not claim, preclusion. The only relevant issues in the prior administrative proceeding were resolved against defendant. Accordingly, invocation of collateral estoppal would serve to establish that defendant engaged in the underlying fraudulent conduct, not to bar subsequent criminal actions.
Defendant’s argument confuses the related doctrines of collateral estoppal and res judicata. “‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents re litigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppal, or issue preclusion, ‘precludes re litigation of issues argued and decided in prior proceedings.’ (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897, fn. omitted.)
Defendant does not attempt to argue for the application of res judicata, nor could he, because the claims resolved administratively and those at issue in the criminal proceeding were not the same. Nevertheless, defendant tries to invoke the issue preclusion doctrine of collateral estoppal in a misguided attempt to bar further actions arising out of his underlying conduct. In the decisions on which defendant seeks to rely, the defendant prevailed in the prior administrative proceeding. (See, e.g., People v. Sims (1982) 32 Cal.3d 468, 489-490 [exoneration of civil welfare fraud allegation barred subsequent criminal action].) Here, however, the underlying issue of fraud was resolved against defendant and it would make no sense for him to invoke issue preclusion in the subsequent criminal prosecution.
In any event, even assuming collateral estoppel could be applied in the manner defendant suggests, he fails to establish at least one threshold requirement. “‘Traditionally, we have applied the [collateral estoppel] doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.’ [Citation.]” (Gikas v. Zolin (1993) 6 Cal.4th 841, 849.) “The party asserting collateral estoppal bears the burden of establishing these requirements.” (Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.)
We need focus only on the privity criterion. Defendant erroneously asserts that privity is established by the Bureau’s representation by the Attorney General in the administrative action and the People’s representation by the District Attorney in the criminal prosecution. It is well established, however, that privity is not established merely on the basis of the status of each party as an agent of the State of California. (People v. Sims, supra, 32 Cal.3d at pp. 487-488.) Rather, privity depends on the existence of a “‘relationship between the party to be estopped and the unsuccessful party in the prior litigation which is “sufficiently close” so as to justify application of the doctrine of collateral estoppal.’” (Id. at pp. 486-487.) Thus, in Sims, the court found such a close relationship where the governing statutory scheme mandated cooperation between the prosecuting and administrative agencies and where the District Attorney and the county agency worked together in the underlying investigation and administrative proceeding. (Id. at pp. 486-489.)
Nothing similar occurred here. The record fails to show a joint criminal and administrative investigation, much less any indication that the District Attorney knew about the administrative proceeding prior to its resolution. The exceptional circumstances supporting a finding of privity in Sims are thus absent here. (See People v. Demery (1980) 104 Cal.App.3d 548, 560-561 [administrative finding that physician did not violate Health and Safety Code in action by the State Board of Medical Quality Assurance did not collaterally estop the District Attorney from prosecuting physician at criminal trial for the same violation], overruled in part on other grounds in People v. Sims, supra, 32 Cal.3d at p. 483, fn. 13; Pawlowski v. Pierce (1988) 202 Cal.App.3d 692, 698 [distinguishing Sims and finding no privity between the Department of Motor Vehicles and the District Attorney].)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.