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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Ellis Bayles MYERS, Defendant and Appellant.


Decided: March 29, 1983

Judith R. Cohen, Bushnell, Caplan, Fielding & Rudy, San Francisco, for defendant and appellant. George Deukemjian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., W. Eric Collins, Laurence K. Sullivan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Ellis Bayles Myers appeals from a judgment of imprisonment rendered after a jury found him guilty of receiving stolen property.  (Pen.Code, § 496.)

William Traxler sold at flea markets in the Richmond area clothing and other household goods which he acquired for cash at bankruptcy and other distress sales and stored in a warehouse at 1701 Barrett Avenue.   He kept no written inventories of his goods.   From January through April 1980, Traxler's warehouse was burglarized 27 times.   Many of the individual burglaries Traxler did not report to the police.   He did, however, report those that occurred February 13, February 29, and April 15, 1980.   Traxler stated that over 50 Perrier and Glad Rag t-shirts, a large quantity of Adidas and Earth shoes, and miscellaneous other items, were stolen in the February burglaries.   Nylon ski jackets and other ski clothing were stolen during the April 15 burglary.

Appellant Ellis Myers lived about two blocks from Traxler's warehouse.   During the early part of 1980, Traxler frequently saw appellant walking along the side of the warehouse on his way home.   Appellant spoke with Traxler briefly one morning while the merchant was repairing a broken window in the front of the building.   Traxler never sold appellant anything or otherwise gave him permission to possess any of his merchandise.

At approximately 6:00 p.m. on March 24, 1980, Sergeants Duncan and Becker and Officer Silva of the Richmond Police Department investigated a report of a disturbance at appellant's house.   They knocked loudly on the door and window, identifying themselves as police officers, but received no response from within.   They entered the house through an open back door.   In the living room they found appellant crouching behind a chair holding a dog.   Stacked within a few feet of appellant were 20 to 25 unwrapped, tagged shirts.   Also found in the living room were 13 dresses and 29 pairs of sports shoes tied together in a canvass bag.   All the articles of clothing appeared new.   The officers arrested appellant for possession of stolen property and seized the items.   Traxler subsequently identified the clothing seized from Myers' residence as property stolen from his warehouse.

The court permitted the prosecutor to introduce evidence of a subsequent, similar offense for the limited purpose of showing common scheme or plan.   Less than a month after his arrest on the instant charge, Oakland police detained appellant and two companions and conducted a search of their car.   They discovered a substantial quantity of new sports clothing which Traxler identified as the merchandise stolen from his warehouse in the April 15 burglary.


Upon learning that the prosecutor intended to introduce evidence concerning Myers' detention by the Oakland police officers, defense counsel noticed a motion under Penal Code section 1538.5.   Appellant's principal argument is that, as a magistrate of the Alameda County Municipal Court had declared the detention of appellant illegal and dismissed charges during the preliminary examination, the Contra Costa County Superior Court had no choice, under section 1538.5, but to bar introduction of evidence obtained through that detention.   Three portions of the statute are pertinent to this analysis:  Subdivision (f) permits a defendant to move for the return of property or the suppression of evidence at the preliminary hearing.   Subdivision (j) provides:  “If the property or evidence relates to a felony offense initiated by complaint and the defendant's motion for the return of the property or suppression of the evidence at the preliminary hearing is granted, and if the defendant is not held to answer at the preliminary hearing, the people may file a new complaint or seek an indictment after the preliminary hearing, and the ruling at the prior hearing shall not be binding in any subsequent proceeding.”   Finally, subdivision (d) defines the consequences of suppression rulings.  “If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movant at any trial or other hearing unless further proceedings authorized by this section, Section 871.5, Section 1238 or Section 1466 are utilized by the people.”

An issue similar to that raised by appellant—the effect of a grant by the superior court of a suppression motion (subd. (i)) upon a prosecution in another county—arose in People v. Gephart (1979) 93 Cal.App.3d 989, 156 Cal.Rptr. 489.   The court reasoned that the Legislature did not intend “to give the determination conclusive effect beyond the proceedings in which the defendant is involved at the time of the determination.”  (Id., at p. 999, 156 Cal.Rptr. 489.)   Application of collateral estoppel in this context, the court continued, would permit one prosecutor's discretionary decision not to pursue a matter after a preliminary adverse determination to bar any use of that evidence by a prosecutor of another county.  “After 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 and seizure.   To give binding effect to the order under Penal Code section 1538.5 could prevent prosecution in a different county on unrelated charges where entirely different policy reasons may exist for pursuing prosecution․  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, 156 Cal.Rptr. 489.)

Two subsequent decisions cast doubt upon the continued vitality of the Gephart analysis.   In People v. Belleci (1979) 24 Cal.3d 879, 157 Cal.Rptr. 503, 598 P.2d 473, the California Supreme Court held that evidence suppressed by a superior court in a section 1538.5 proceeding could not be considered by the court in subsequent sentencing proceedings on related charges.   The proceedings between which Belleci applied against the prosecution the bar of subdivision (d)—suppression and sentencing hearings related to the same charges—are, of course, more closely connected than those between which Gephart found collateral estoppel inapplicable.  Belleci, however, rests not merely upon a consideration of the relationship between the two hearings but upon the court's conclusion that the reference in subdivision (d) to “any trial or other hearing” is unambiguous and must be given literal effect.  “[I]t would effectively nullify the statutory intent if, after the defendant secured a court order suppressing such evidence and the People failed to seek appellate review, the prosecution were nevertheless allowed to use that same evidence against him in subsequent proceedings:  although the legislation is procedural in nature, its elaborate mechanism would obviously be superfluous if the result of invoking it were such a Pyrrhic victory.”  (People v. Belleci, supra, 24 Cal.3d 879, 885, 157 Cal.Rptr. 503, 598 P.2d 473;  emphasis in original.)

 Relying upon Belleci, People v. Zimmerman (1979) 100 Cal.App.3d 673, 161 Cal.Rptr. 188, held that the suppression of evidence at the preliminary hearing under section 1538.5 barred the admission of that evidence at a probation revocation hearing in another county.  “When subdivision (j) is read with subdivision (d), it is clear that subdivision (j) means that the People may relitigate the validity of a search or seizure which was the subject of a motion to suppress at the preliminary hearing if a new complaint is filed or an indictment is filed.   However, if the People do not follow either of these procedures, the People are bound by the ruling at the preliminary hearing and may not introduce the evidence at any other hearing or trial.”  (Id., at p. 676, 161 Cal.Rptr. 188.)  Zimmerman is consistent with more recent authority not involving section 1538.5, in its treatment of the People as a single party for collateral estoppel and res judicata purposes.  (See People v. Sims (1982) 32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d 321.)   Thus, Zimmerman's application of subdivision (d) across county lines appears proper.   Its assumption that a suppression during a preliminary hearing, like a suppression by the superior court, is a disposition triggering subdivision (d) is more problematic.   Generally, collateral estoppel is inapplicable to matters resolved against the prosecution in a preliminary hearing.  (People v. Patrick (1981) 126 Cal.App.3d 952, 969, 179 Cal.Rptr. 276.)  Section 1538.5 does not necessarily alter this rule with respect to all search and seizure determinations.   Subdivision (d) is applicable to motions granted “pursuant to the proceedings authorized by this section.”   Through section 1538.5, the Legislature has established a new proceeding—the pretrial suppression hearing in superior court.   The statute thereby permits trial level consideration of search and seizure issues before jeopardy attaches.  (See People v. Gephart, supra.)   It also permits an accused to move for suppression in two preexisting forums—the preliminary hearing and the trial itself.   Therefore, it is unclear whether “proceedings authorized by this section” encompasses all search and seizure motions described in the statute or refers only to the special superior court hearings established therein.

It is unnecessary for this court to resolve the above question;  if subdivision (d) has some application to preliminary hearings, it does not abrogate the general rule that determinations in such proceedings have no collateral estoppel effect.   At most, it creates a narrow exception to that rule with respect to motions for the return of property or suppression of evidence pursuant to section 1538.5, subdivision (f).   Because the suppression of evidence is a grave remedy, courts have insisted that defendants comply strictly with the procedural requirements of section 1538.5 (e.g., Ramis v. Superior Court (1977) 74 Cal.App.3d 325, 141 Cal.Rptr. 374).   In People v. Freeman (1979) 95 Cal.App.3d 917, 157 Cal.Rptr. 454, the magistrate sustained the accused's objection at the preliminary hearing to certain prosecutorial evidence but nonetheless held the defendant to answer on the charges.   The prosecution did not seek de novo review in superior court of this exclusion.  Freeman held that, absent a clear showing on the record that the defendant had moved and the municipal court had ruled, pursuant to section 1538.5, the magistrate's ruling was not binding upon the prosecution in subsequent proceedings.  “The statutory sanction which prevents the People from introducing relevant evidence in superior court because of a ruling by a magistrate at a preliminary hearing is a severe one.   In order to invoke such severe sanction, there should be strict compliance by the defendant with subdivision (f) and an unambiguous ruling by the magistrate sufficient to put the People on notice that a de novo hearing in superior court must be sought.   [Citation.]  The record at the preliminary hearing does not satisfy this standard.   Appellant did not make a formal motion under section 1538.5, subdivision (f), at the preliminary hearing giving the People notice that there would be any issue as to the validity of the seizure․  The magistrate's ‘ruling’ was ambiguous.”  (Id., at pp. 922–923, 157 Cal.Rptr. 454.)   Here, the appellant did not produce a record of the Alameda County preliminary hearing sufficient to permit a court in a subsequent proceeding to determine whether a formal motion under section 1538.5 had been made and granted.

 Appellant submitted to the Contra Costa County Superior Court the “Clerk's Docket and Minutes” of the Alameda County Municipal Court, dated July 10, 1980.   The document identifies the accused as Ellis B. Myers, Jr., and the charge as section 496 (receiving stolen property).   Only a brief, handwritten summary describes the disposition:  “Motion to declare detention illegal is granted.   Defendant discharged insufficient evidence.”   A party asserting res judicata or collateral estoppel bears the burden of demonstrating the nature of the adjudicated issue through proof of the judgment, the record of the former proceedings, or extrinsic evidence.  (Vella v. Hudgins (1977) 20 Cal.3d 251, 257–258, 142 Cal.Rptr. 414, 572 P.2d 28;  In re Marriage of Snyder (1979) 95 Cal.App.3d 636, 638, 157 Cal.Rptr. 196;  Casad v. Qualls (1977) 70 Cal.App.3d 921, 927, 139 Cal.Rptr. 243;  Haun v. Hyman (1963) 223 Cal.App.2d 615, 619, 36 Cal.Rptr. 84.)   Although no California case law specifically addresses this subject, a recent Ninth Circuit decision explains that the requirement is equally applicable to invocation of these doctrines by criminal defendants.  “Initially we note that the criminal defendant claiming that collateral estoppel applies has the burden of proving what issues were decided in his favor at the prior trial.  [Citations.]  Since the doctrine of collateral estoppel applies only to matters actually litigated, it is imperative that the party claiming estoppel adequately show the controlling facts of the prior litigation.  [Citation.]  It is not enough that the party introduce the decision of the prior court;  rather the party must introduce a sufficient record of the prior proceeding to enable the trial court to pinpoint the exact issues previously litigated.   Unless the defendant establishes a sufficient record in the trial court as to the issues necessarily determined in the prior proceeding, he is barred from raising the issue of collateral estoppel on appeal.  [Citation.]”  (United States v. Lasky (9th Cir.1979) 600 F.2d 765, 769, cert. den. (1979) 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405.)

 The minutes submitted by appellant do not disclose even that the detention found illegal by the Alameda County magistrate is identical to that from which evidence in this prosecution was obtained.   Assuming the same detention is involved, the document is deficient in an equally important respect:  It does not show that the accused formally moved under subdivision (f) of section 1538.5 for the return of property or the suppression of evidence.   Instead, the minutes recite only that the defendant asked the municipal court to “declare” the detention unlawful.   Appellant shows neither that the previously adjudicated factual and legal controversies were identical, as required by Lasky, or that the proper procedures were invoked, as required by Freeman.   Regardless of whether a section 1538.5 determination in a preliminary hearing is binding upon a prosecutor of a different county, appellant's showing before the superior court was inadequate.   We therefore conclude that the court properly held that it was not bound by the ruling in Alameda County and independently heard evidence concerning the Oakland detention under section 1538.5.


Portions of this opinion are not published as they do not meet the standards for publication.  (Cal.Rules of Court, rules 976 and 976.1.)

CHRISTIAN, Associate Justice.

CALDECOTT, P.J., and RATTIGAN, J., concur.