Opinion
For Opinion on Rehearing, see 108 Cal.Rptr. 657, 511 P.2d 609.
Opinion on pages 393 to 404 omitted.
REHEARING GRANTED [*]
[105 Cal.Rptr. 22][503 P.2d 278] 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 [105 Cal.Rptr. 23] [503 P.2d 279] 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. The People appeal. (Pen.Code, § 1238, subds. (3) and (8).)
The People do not contend that the superior court had no jurisdiction to make the above orders, or that defendant waived his right to object to the instant proceedings by not first moving to set aside the indictment.
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.
It is well established that entrapment exists only if the criminal intent to commit the offense did not originate in the mind of the accused. (See People v. Benford, 53 Cal.2d 1, 345 P.2d 928; People v. Moran, 1 Cal.3d 755, 760, 83 Cal.Rptr, 411, 463 P.2d 763; People v. Farley, 19 Cal.App.3d 215, 224, 96 Cal.Rptr. 478.)
Rather than appeal the magistrate's dismissal of the complaint, the People sought and obtained a grand jury indictment concededly based upon the same transactions as those which the dismissed complaint [105 Cal.Rptr. 24] [503 P.2d 280] was based. The question arises whether the People were barred by the magistrate's dismissal from initiating such additional proceedings. We conclude they were.
We discuss below the availability of an appeal by the People in this situation.
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 (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.
A finding that the evidence is insufficient to establish cause to hold defendant is not, of course, a determination on the merits of the People's case. Instead, such a finding only determines that the evidence is inconclusive on the question of defendant's guilt or innocence, and is insufficient to furnish cause to hold him.
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, [105 Cal.Rptr. 25] [503 P.2d 281] 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 ordinarily only rests upon the magistrate's conclusion that, for one reason or another, the particular proceedings then before him should be terminated, and not upon any determination of the merits. (See In re Begerow, supra, 136 Cal. 293, 297, 68 P. 773.) For example, in People v. Prewitt, supra, we noted that 'This rule [permitting successive prosecutions] specifically applies when the previous dismissal was based on the magistrate's conclusion that the evidence was illegally obtained.' (52 Cal.2d at p. 340, 341 P.2d at p. 6.)
On the other hand, in cases wherein the magistrate's dismissal is based upon a factual determination disclosing that the charges against defendant are wholly groundless, the traditional elements of res judicata and collateral estoppel are satisfied. The dismissal order would appear, under these circumstances, to possess the requisite finality, since no further judicial act remains to terminate the proceedings (see Witkin, Cal.Procedure (2d ed.), Judgment, § 162, pp. 3306-3307; Restatement of Judgments, § 41 and comment (a)), and in the absence of a timely appeal by the People, the order is free from direct attack (see Witkin, supra, § 163, p. 3307). Moreover, unlike the determination that no probable cause exists to hold defendant, a dismissal order based upon the magistrate's finding of defendant's innocence constitutes a decision on the merits of the case, as required by the authorities (see Witkin, supra, § 168 et seq.; Restatement, supra, §§ 48, 49, 68). Thus, if we assume that the magistrate properly may reach the question of defendant's innocence, by resolving conflicts and weighing the evidence, it seems proper to hold that such a determination should terminate all further proceedings against defendant. Any other result would inevitably lead to unjustifiable harassment of the accused. We turn then to the question whether the committing magistrate properly may make a determination regarding the innocence of the defendant at the conclusion of the preliminary hearing.
Ordinarily, the committing magistrate will be unable or unwilling to enter any conclusive findings regarding the innocence of the accused. The magistrate's statutory role is simply to determine 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 [105 Cal.Rptr. 26] [503 P.2d 282] 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 Ca.Rptr. 747, 458 P.2d 987.) As we recently pointed out in Tatlor 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. . . . All 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.]''
Thus, the magistrate's role would not ordinarily lead him to form any definite conclusion regarding defendant's guilt or innocence. Furthermore, it appears that defense counsel rarely elect to mount a defense at the preliminary hearing and often reserve their rights of cross-examination and confrontation for trial. (See Jennings v. Superior Court, 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304; Californina Criminal Law Practice (C.E.B.) § 6.13, pp. 242-244).
Nevertheless, occasions will arise when the evidence before the magistrate points convincingly to the conclusion that the charges against defendant are totally groundless and should be dismissed with prejudice. In view of the magistrate's power to 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), we see no reason for preventing him from wielding that power in an appropriate case to preclude further prosecution of an innocent accused.
The framers of the proposed Model Penal Code acknowledge that the trial court properly may weigh the evidence in determining whether 'reasonable cause' exists to hold defendant for trial. (Model Penal Code of Prearraignment Procedure, Tent.Draft No. 5 (1972), § 330.5, subd. (3).) The commentators note that their proposal 'is designed to indicate that the judicial role in pretrial screening involves weighing and judgment rather than a wooden comparison of the testimony with the elements of the crime. Although credibility ordinarily is a matter for the jury, and it is not expected that judges will normally resolve testimonial conflicts at the preliminary hearing, cases do occasionally arise in which a witness's testimony is so weak of contradicted by sufficiently clear facts that the judge should have the power to dismiss the case.' (Id. at p. 91; see also Graham & Letwin, The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations, 18 U.C.L.A.L.Rev. 635, 702-705.) Section 330.7 of the Model Code contemplates that an order dismissing the complaint for lack of reasonable cause shall bar any further prosecution unless the People move to 'reinstate' the complaint on the basis of 'new evidence.' (Id. at pp. 46-47.) As stated by the commentators, 'While the strict limitations of double jeopardy are inappropriate to the screening stage of the process, some degree of finality should be accorded to a determination that comes with the formality of a judicial determination upon an adversary hearing.' (Id. at p. 48.)
Our conclusion in this regard is reinforced by our reasoning in Jones v. Superior Court, supra, 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241. In Jones, the committing magistrate ordered defendants held for the offense of 'statutory' rape (Pen.Code, § 261, subd. 1), but dismissed charges of rape, oral copulation and sodomy, based upon the magistrate's stated disbelief of the prosecutrix' testimony and his finding that the latter offenses never took place. Nevertheless, the district attorney filed an information which charged [105 Cal.Rptr. 27] [503 P.2d 283] the men with these offenses. We issued a peremptory writ of prohibition to restrain further proceedings, concluding that under the magistrate's findings, the offenses at issue were not shown by the evidence to have been committed (Pen.Code, § 739), and accordingly should not have been included in the information. (4 Cal.3d at p. 666, 94 Cal.Rptr. 289, 483 P.2d 1241.) Of course, Jones did not directly involve the question whether the prosecution may refile or seek an indictment regarding previously dismissed charges; our holding related to the statutory of the People to charge either the offense named in the magistrate's commitment order or any other offense shown by the evidence at the preliminary examination to have been committed. Yet the rationale underlying Jones seems equally compelling here.
In Jones, we noted that if the People were permitted to ignore the magistrate's factual findings and charge offenses which were expressly found by the magistrate not to have occurred, such a procedure would 'render the preliminary examination procedure largely meaningless, at least insofar as that procedure was designed to protect the accused from groundless or unsupported charges. It is well established that the defendant at a preliminary examination has the right to examine and cross examine witnesses for the purpose of overcoming the prosecution's case or establishing an affirmative defense. [Citaion.] Moreover, it is clear that it is the responsibility of the committing magistrate to weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses. . . . In the instant case, petitioners were able to convince the magistrate that they did not commit the offenses charged in the complaint. To permit the district attorney to include those same charges in the information would utterly defeat the purpose of the preliminary hearing to 'weed out' groundless charges, and would render nugatory the important rights [of cross-examination] which this court was so careful to preserve in Jennings [v. Superior Court, supra, 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304].' (4 Cal.3d at pp. 666-667, 668, 94 Cal.Rptr. at p. 293, 483 P.2d at p. 1245.)
It is readily apparent that the rationale underlying Jones, aimed at preserving the utility of the preliminary examination to weed out groundless charges, would be wholly undermined were the People permitted to ignore the magistrate's factual findings and simply refile the identical charges before another magistrate or, as in the instant case, seek an indictment based upon those charges. Instead, it seems evident to us that the magistrate's findings must be clothed with enough finality to insure the accused a meaningful preliminary examination and to protect him from needless harassment.
We realize that magistrates do not ordinarily enter formal findings of fact. Yet, as in this case and in Jones v. Superior Court, supra, 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241, magistrates often set forth in informal fashion the grounds for their decision to dismiss the charges. Including their resolution of material conflicts in the evidence. (See Graham & Letwin, supra, 18 U.C.L.A. L.Rev. 635, 732.) The rule which we propose herein should come into play only if these informal 'findings' expressly, or by necessary implication, establish the accused's innocence of the charges sought to be refiled, or disclose an absolute defense to those charges.
The People assert that our proposed rule would vest too much authority in the committing magistrate. Yet we think that sufficient precautions remain to check potential abuses of power. First of all, our ruling is restricted to those predictably infrequent cases in which the magistrate has found facts establishing to his satisfaction the innocence of the accused, or an absolute defense to the offense charged. No finality would attach to the magistrate's legal conclusion that no offense was committed, or that no probable cause exists to hold defendant for trial. (See Jones v. Superior Court, supra, 4 Cal.3d 660, 666, 94 Cal.Rptr. 289, 483 P.2d 1241; People v. [105 Cal.Rptr. 28] [503 P.2d 284] Beable, 6 Cal.3d 441, 457-458, 99 Cal.Rptr. 313, 492 P.2d 1; People v. Farley, supra, 19 Cal.App.2d 215, 96 Cal.Rptr. 478.)
Secondly, although the People deny the existence of a right to appeal an order of the magistrate dismissing charges following a preliminary examination, we think it reasonably clear that such a right does exist. Section 1466, subdivision (1), subsection (a), of the Penal Code provides that the People may appeal from a judgment or order of an inferior court in a criminal case 'dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy . . ..' It is well established that a defendant is not placed in jeopardy at the preliminary hearing; in fact, this rule is one of the reasons heretofore given for permitting the People to refile dismissed charges. As stated in Ex parte Fenton, supra, 77 Cal. 183, 184, 19 P. 267, 'A person cannot be said to have been once in jeopardy until he is put upon trial before a court of competent jurisdiction, upon indictment or information which is sufficient in from and substance to sustain a conviction, and a jury has been charged with his deliverance.' (Accord, United States v. Levy, supra, 268 U.S. 390, 393, 45 S.Ct. 516, 69 L.Ed. 1010.)
Although some authorities have assumed that the People have no appeal From the magistrate's dismissal order (see People v. Joseph, supra, 153 Cal.App.2d 548, 551, 314 P.2d 1004; Graham & Letwin, supra, 18 U.C.L.A.L.Rev. 633, 731, and fn. 327), other authorities have assumed the contrary (see California Criminal Law Practice, Vol. I (C.E.B.1964), § 6.5, p. 237; Witkin, Cal.Criminal Procedure, § 659, pp. 650-651), and at least one reported case discloses that the superior court has entertained such an appeal by the People (see People v. Lopez, 265 Cal.App.2d Supp. 980, 71 Cal.Rptr. 667). In view of the unambiguous language of section 1466, we conclude that the People may appeal the magistrate's order dismissing a criminal complaint.
Of course, as we have previously noted, the scope of review of the magistrate's factual findings is a limited one. As the magistrate properly 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), neither the superior court nor an appellate court may substitute its judgment on such matters for that of the magistrate (De Mond v. Superior Court, 57 Cal.2d 340, 345, 19 Cal.Rptr. 313, 368 P.2d 865). If the magistrate's findings are based upon subtantial evidence, they should be upheld on appeal.
It has also been suggested that the People should have the right to refile previously dismissed charges for good cause shown, such as the discovery of new evidence, fraud, perjury, unavoidable accident or surprise. Yet the People do not assert that any such grounds existed in the instant and, accordingly, we leave open the question whether extraordinary circumstances might justify a 'reopening' of previously dismissed charges.
See Graham & Letwin, supra, 18 U.C.L.A.L.Rev. 635, 731; Model Penal Code, supra, section 330.7, subdivision (2).
The orders granting defendant a new trial and dismissing the action are affirmed.
WRIGHT, C. J., and McCOMB, PETERS, TOBRINER, MOSK and SULLIVAN, JJ., concur.
[*] See 9 Cal.3d 662 for subsequent opinion.