LUCIDO v. PEOPLE (1989)

The question presented is this:  If a trial court conducting a probation revocation hearing specifically finds that evidence of a crime allegedly committed by the probationer has not been demonstrated by the requisite quantum of proof, can that finding collaterally estop a subsequent criminal prosecution for the same offense?   Our conclusion is that People v. Sims (1982) 32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d 321 compels an affirmative answer.

BACKGROUND

The sparse record before us establishes that the relevant history of this dispute is simple.   In March of 1988 petitioner Arasimo Settemo Lucido was admitted to probation after he had been found guilty of indecent exposure, a misdemeanor violation of Penal Code section 314, subdivision 1.   By reason of a criminal complaint filed on August 1, 1988, petitioner was charged with having committed the identical offense on June 23, 1988.   The complaint included an allegation of the prior conviction, thus elevating the subsequent offense to felony status.  (See Pen.Code, § 314.)   Later in August a preliminary examination was conducted, and petitioner was ordered held to answer.

Revocation of petitioner's probation was thereafter sought on the dual grounds of the new charge and petitioner's use of marijuana.   At an unreported hearing conducted on the revocation petition, the latter ground was admitted by petitioner, and no evidence regarding it was introduced by either side.   The pertinent portions of the “Findings and Order” filed by the justice court read:  “After presentation of evidence by the prosecution and the defense, the court makes the following findings:  [¶] Clear and convincing evidence was not produced by the prosecution to establish that defendant [petitioner] committed a violation of Penal Code section 314(1) on June 23, 1988.   Accordingly, defendant's probation is not violated on this ground.  [¶] Defendant is in violation of his probation for using marijuana during the term of his probation.”

In respondent court petitioner made a nonstatutory motion to dismiss the information on the ground that the prosecution should be collaterally estopped from proceeding with the new charge by reason of the adverse finding made at the revocation hearing.   At the conclusion of a hearing conducted on this motion respondent court ruled:  “On the authority of Chamblin v. Municipal Court, 1982, 130 Cal.App.3d 115, [181 Cal.Rptr. 636] the motion to dismiss is denied.”   Petitioner then invoked the original jurisdiction of this court for extraordinary relief.   We issued an alternative writ of mandate.

DISCUSSION

 The parties' positions, and the choice they present us, could not be plainer.   The People, appearing as real party in interest, defend respondent court's ruling as the only possible one in light of Chamblin v. Municipal Court, supra, 130 Cal.App.3d 115, 181 Cal.Rptr. 636, where it was squarely held that a trial court's finding that a probationer had not committed a violation of the Penal Code would not collaterally estop a subsequent criminal prosecution because of the differing purposes, policies, and procedures attending a revocation hearing and a formal trial.   We agree with petitioner's contention that Chamblin has been nullified sub silentio by the principles enunciated in People v. Sims, supra, 32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d 321, where the Supreme Court held that an administrative decision could collaterally estop a subsequent criminal action involving the same issue.

The court in Sims specified the requirements petitioner must satisfy:  “collateral estoppel has been found to bar relitigation of an issue decided at a previous proceeding ‘if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated;  (2) the previous [proceeding] resulted in a final judgment on the merits;  and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].’ ”  (People v. Sims, supra, 32 Cal.3d 468 at p. 484, 186 Cal.Rptr. 77, 651 P.2d 321 [citing and quoting People v. Taylor (1974) 12 Cal.3d 686, 691, 117 Cal.Rptr. 70, 527 P.2d 622].)  The court further noted:  “It is implicit in this three-prong test that only issues actually litigated in the initial action may be precluded from the second proceeding under the collateral estoppel doctrine․  An issue is actually litigated ‘[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined․  A determination may be based on a failure of ․ proof․’ ”  (People v. Sims, supra, [original emphasis].)

The “Petition Of The Probation Officer For Revocation Of Probation” gave the following reasons for revoking petitioner's probation:  “Mr. Lucido is presently going through Court proceedings in Superior Court on new charges.   Mr. Lucido's urine test dated August 4, 1988, shows positive results for cannabinoid.   To date, Mr. Lucido has failed to participate in a drug program or mental health counseling.”   The matter of petitioner's failure “to participate in a drug program or mental health counseling” played no part whatsoever in the revocation proceedings.   The reference to “new charges” against petitioner is misleading;  according to the record the only charge which was then pending against petitioner was the felony indecent exposure charge.   A written stipulation by petitioner's counsel and the prosecutor which was filed in the justice court after that court had revoked petitioner's probation, recites that “in the probation revocation hearing ․ the only contested issue was the new Penal Code section 314(1) charge which allegedly occurred on June 23, 1988.   All evidence presented related to this issue alone.   The allegation of marijuana usage was admitted by the defendant [petitioner].”

It thus appears that the issue of whether petitioner violated section 314 was “properly raised” and was “submitted for determination” at the revocation hearing.   The stipulation and the justice court's express finding leave no doubt that this issue was actually litigated and “determined,” and that the determination was “based on a failure of proof.”   Petitioner has established the first of the tripartite test requirements—the issue of whether he violated section 314 on June 23, 1988, was actually litigated and is “identical to the one which is sought to be relitigated” at petitioner's trial.  (People v. Sims, supra, 32 Cal.3d 468 at p. 484, 186 Cal.Rptr. 77, 651 P.2d 321.)

 At the time petitioner was admitted to probation the justice court did so after suspending imposition of sentence.   At the time it revoked his original grant of probation the justice court reinstated him to probation upon different conditions.   The latter order could have been appealed by either petitioner (Pen.Code, § 1466, subds. (b)(1) & (b)(2);  People v. Woods (1978) 84 Cal.App.3d 149, 154, 148 Cal.Rptr. 312) or by the People (Pen.Code, § 1466, subd. (a)(6);  see People v. Warner (1978) 20 Cal.3d 678, 682, fn. 1, 143 Cal.Rptr. 885, 574 P.2d 1237).   The merits of the revocation order could thus have been subject to appellate review.  (See People v. Avery (1986) 179 Cal.App.3d 1198, 1201, fn. 5, 225 Cal.Rptr. 319.)   There is nothing in the record to indicate that either party appealed.   The revocation order being final, petitioner has met the second requirement for collateral estoppel.  (See People v. Sims, supra, 32 Cal.3d 468 at p. 486, 186 Cal.Rptr. 77, 651 P.2d 321;  cf.  In re Crow (1971) 4 Cal.3d 613, 622–623, 94 Cal.Rptr. 254, 483 P.2d 1206 [People bound by final judgment granting relief in habeas corpus from which no appeal was taken].)

There has never been any dispute that the People, represented by the District Attorney, were a party to all pertinent proceedings involving petitioner.   The third and final prerequisite for invoking collateral estoppel is therefore satisfied.

In addition to these technical prerequisites for collateral estoppel, Sims identified certain “traditional public policies underlying application of the doctrine” (People v. Sims, supra, 32 Cal.3d 468 at p. 488, 186 Cal.Rptr. 77, 651 P.2d 321) which should also be considered.   They, too, favor petitioner's position.

The first is the promotion of judicial economy “by minimizing repetitive litigation.”  (People v. Sims, supra, 32 Cal.3d 468 at p. 488, 186 Cal.Rptr. 77, 651 P.2d 321.)   The necessity for the most sensible use of judicial resources “is even more important in criminal than in civil trials.”   (People v. Taylor, supra, 12 Cal.3d 686 at p. 695, 117 Cal.Rptr. 70, 527 P.2d 622.)   There is no logical reason why a court should be compelled to preside over two separate evidentiary presentations where the same parties try to prove and disprove the identical issue.   The old adage against multiple bites at the same apple can find no more eloquent justification.   This sort of vexation is not limited to courts.   It is even more oppressive to the defendant, who is otherwise powerless “from being harassed by repeated litigation.”  (People v. Sims, supra, 32 Cal.3d at p. 489, 186 Cal.Rptr. 77, 651 P.2d 321.)   Then there is “the possibility of inconsistent judgments which may undermine the integrity of the judicial system.”  (People v. Sims, supra, 32 Cal.3d 468 at p. 488, 186 Cal.Rptr. 77, 651 P.2d 321.)   Whatever the burden of proof necessary to revoke a grant of probation (see In re Coughlin (1976) 16 Cal.3d 52, 56, 127 Cal.Rptr. 337, 545 P.2d 249), it is less stringent than the beyond-a-reasonable-doubt standard required for conviction.   The revocation hearing is the sole method provided by the Legislature for retracting improvident grants of probation.  (See Pen.Code, § 1203.02.)   Just as with the administrative “fair hearing” in Sims, and the juvenile dependency proceeding in Lockwood v. Superior Court (1984) 160 Cal.App.3d 667, 206 Cal.Rptr. 785, public confidence in the legislative remedy administered by the courts will not be promoted by allowing the prosecution to treat the revocation hearing as a “Heads I win, tails you lose” proposition.   Regardless of whether the prosecution wins or loses at the revocation hearing, the probationer must still face trial on the identical issue already litigated.   In the latter event, the prosecution, having already failed to satisfy the lesser evidentiary standard of the revocation hearing, then has an opportunity to refine its case for the trial where the more stringent burden may or may not be satisfied.  (Cf. People v. Sims, supra, 32 Cal.3d at p. 485, 186 Cal.Rptr. 77, 651 P.2d 321.)   This diminishes the value of the revocation hearing.  (See id. at p. 488, 186 Cal.Rptr. 77, 651 P.2d 321.)

The heaviest artillery of both the People and the dissent is aimed at the adverse policy consequences they see as flowing from applying collateral estoppel.   They earnestly urge that the policies, procedures, and purposes underlying probation revocation hearings and formal trials are so different that application of the collateral estoppel doctrine would result in the revocation hearing becoming a duplication of the trial.  (See Chamblin v. Municipal Court, supra, 130 Cal.App.3d 115 at pp. 120–121, 181 Cal.Rptr. 636.)   Similar and in most instances greater differences were specifically found in Sims to have no effect on the applicability of collateral estoppel.   For example, it did not matter that the administrative hearing there—like the revocation hearing here—was not conducted according to the strict rules of evidence.  (See People v. Sims, supra, 32 Cal.3d 468 at pp. 480–481, 186 Cal.Rptr. 77, 651 P.2d 321.)   Or that any right to a jury trial possessed by the People might suffer impairment.  (See id. at pp. 483–484, fn. 13, 186 Cal.Rptr. 77, 651 P.2d 321.)   Or because the People chose not to make the complete evidentiary presentation believed necessary for demonstrating guilt beyond a reasonable doubt at trial.  (See id. at p. 481, 186 Cal.Rptr. 77, 651 P.2d 321;  Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 607, 25 Cal.Rptr. 559, 375 P.2d 439.)   Nor could the court have been more specific in its rejection of the difference between the two proceedings as a factor which would prevent application of collateral estoppel:  “The decision exonerating respondent of fraud may be given collateral estoppel effect.   This is true even where, as in this case, the successive proceedings involved are different in nature and the proceeding to be estopped is a criminal prosecution.”  (People v. Sims, supra, 32 Cal.3d at p. 482, 186 Cal.Rptr. 77, 651 P.2d 321 [emphasis added].)  As the Supreme Court saw it, the function of the administrative hearing “was virtually identical to that of the criminal trial.”  (Id. at p. 483, fn. 13, 186 Cal.Rptr. 77, 651 P.2d 321.)   We discern no logical basis why the same conclusion should not extend to the revocation hearing and trial of petitioner's situation.

Obviously, most if not all of the difficulties perceived by the People and the dissent would evaporate if the revocation hearing followed the trial.   That sequence has repeatedly been urged by our Supreme Court (see People v. Jasper (1983) 33 Cal.3d 931, 935, 191 Cal.Rptr. 648, 663 P.2d 206;  People v. Belleci (1979) 24 Cal.3d 879, 888, fn. 7, 157 Cal.Rptr. 503, 598 P.2d 473;  People v. Coleman (1975) 13 Cal.3d 867, 896, 120 Cal.Rptr. 384, 533 P.2d 1024;  cf. People v. Weaver (1985) 39 Cal.3d 654, 659, 217 Cal.Rptr. 245, 703 P.2d 1139 [by 4–3 vote court declined “to adopt a ‘supervisory’ rule which mandates staying ․ revocation proceedings as a matter of course until trial of the pending criminal charges has occurred”] ), and would not preclude revocation even if the trial resulted in the defendant's acquittal.  (See In re Coughlin, supra, 16 Cal.3d 52 at pp. 57–59, 127 Cal.Rptr. 337, 545 P.2d 249.)

Let a peremptory writ of mandate issue directing respondent Superior Court of Mendocino County to vacate its order in People v. Arasimo Settemo Lucido, action No. 9489C, denying petitioner's motion to dismiss and to enter a new order granting said motion.

I do not agree that we are compelled to order the superior court to dismiss the indecent exposure prosecution simply because the justice court refused to revoke probation on that ground.   Therefore, I respectfully dissent.

Petitioner had been placed on probation on March 14, 1988, following conviction for indecent exposure.   His probation revocation hearing began August 22, 1988, but was continued to September 8, 1988, for the defense case.   The day after that hearing began (on Aug. 23) he was held to answer (by a different judge) for the June 23 felony indecent exposure charge.   The only evidence produced at the preliminary hearing was the testimony of Candice May Silva, who related the details as follows: ¹  She was sitting facing her apartment with her back toward the street when she was requested by a child, “look, look at this, Candy, look look” whereupon her small son blurted out, “Mommy, he's got a big pee-pee”!!   She turned toward the street and saw the petitioner naked.   She described his genitals:  “It was just real big”;  “it was hard.”   Petitioner was smiling, and thereupon picked up a small dish towel, wrapped it around his mid-section and went into the apartment he was visiting.   Besides Mrs. Silva and her son, Ryan, Marty (10), Joshua (10), Justin (8) and Neil (6) were also present.

By the time of the continued probation revocation hearing, petitioner already had been formally charged by information with felony indecent exposure.

I. Collateral Estoppel Does Not Bar Prosecution

Petitioner contends that the district attorney is barred from trying him for felony indecent exposure because the justice court judge in revoking his prior probation (for the same offense) specifically refused to do so on the basis of this new indecent exposure charge.   However, collateral estoppel bars relitigation of issues of fact determined in prior litigation only where the determination was essential to the judgment.  (Chamblin v. Municipal Court (1982) 130 Cal.App.3d 115, 120, 181 Cal.Rptr. 636;  United States v. Miller (6th Cir.1986) 797 F.2d 336, 341;  United States v. Hernandez (9th Cir.1978) 572 F.2d 218, 220.)   As emphasized in State v. Bradley (1981) 51 Or.App. 569, 626 P.2d 403, 405:  “ ‘The doctrine of collateral estoppel grants finality to material issues or determinative facts which were actually or necessarily adjudicated in the prior action.’ ” (original emphasis;  accord Jones v. Flannigan (1974) 270 Or. 121, 526 P.2d 543.)   The concept is even more directly expressed in Restatement of Judgments which explicitly requires that the determination of the issue be essential to the judgment to render collateral estoppel applicable:  “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”  (Rest.2d Judgments, § 27, p. 250, emphasis added.)   The justification for this rule is that where the judicial determination rests on more than one issue, the issue not necessary to reach the decision constitutes mere dictum which cannot (and should not) be controlling in a later adjudication of that issue.   As summarized in comment h to section 27:  “If issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded.   Such determinations have the characteristics of dicta, and may not ordinarily be the subject of an appeal by the party against whom they were made.   In these circumstances, the interest in providing an opportunity for a considered determination, which if adverse may be the subject of an appeal, outweighs the interest in avoiding the burden of relitigation.”   (Id., at p. 258.)

Revocation of probation was actually commenced upon three grounds:  the new lewd offense committed on June 23, 1988, petitioner's admitted use of marijuana and his failure to participate in counseling.²  Probation was revoked solely upon his continuing use of marijuana.   The court's “Findings and Order After Hearing” entered two months after probation was revoked, makes it clear that probation was not revoked because of the new indecent exposure charge.³  That the only issue litigated at the probation revocation hearing was the new indecent exposure charge was clarified by the stipulation of the parties filed 12 days after the “Findings and Order After Hearing,” i.e., over 2 months after the hearing.⁴  Therefore, it is clear that adjudication concerning the commission of the indecent exposure was not essential to the issue necessarily decided in the revocation proceeding—whether petitioner had violated the conditions of his probation.  (People v. Beaudrie (1983) 147 Cal.App.3d 686, 691, 195 Cal.Rptr. 289;  People v. Hayko (1970) 7 Cal.App.3d 604, 610, 86 Cal.Rptr. 726.)   Thus, the case squarely falls within the Restatement rule rendering collateral estoppel inapplicable, since the judgment of probation revocation was not dependent on a finding that commission of the new charge had not been established.   This conclusion is also fully supported by People v. Sims (1982) 32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d 321, upon which petitioner chiefly relies;  Sims recognized that collateral estoppel bars relitigation of an issue decided at a previous proceeding only “ ‘if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated․’ ”  (Id., at p. 484, 186 Cal.Rptr. 77, 651 P.2d 321, emphasis added.)   The issue is necessarily decided only when it is essential to the judgment.

Furthermore, there are cogent policy considerations for holding that the doctrine of collateral estoppel is not applicable to bar the trial of an issue incidentally litigated in a probation revocation proceeding.   There are vast differences in both purpose and procedure between a criminal trial and a probation revocation hearing.   While the purpose of a criminal trial is to decide the defendant's guilt or innocence, the primary goal of a revocation hearing is to resolve whether the conditions attached to an act of clemency have been met.   Consistent with the differing purposes of the two proceedings, the constitutional safeguards and the statutory procedures are also very dissimilar.   In probation revocation proceedings parties do not have a right to a jury trial;  confrontation of witnesses is not an absolute right;  and the rules of evidence are informal and relaxed (for example, hearsay evidence contained in the probation report may be admitted).  (People v. Dale (1973) 36 Cal.App.3d 191, 195, 112 Cal.Rptr. 93.)   Of equal importance, the government is not statutorily or constitutionally obligated to put forth all its evidence at a probation revocation hearing, nor is it requested to complete its investigation before seeking the revocation of probation.  (United States v. Miller, supra, 797 F.2d at p. 342.)   Since a probation revocation hearing cannot be equated to a trial of the defendant's guilt, and since the standard of proof is markedly different in the two proceedings, the People do not have the same motivation to gather and introduce evidence at the probation revocation hearing as they do at trial.⁵

That applying collateral estoppel in such cases does not serve the policy goals it is designed to achieve is also recognized by the Restatement.   The Restatement Second of Judgments section 28 recognizes exceptions to the general rule by providing that relitigation of an issue is not barred by reason of collateral estoppel when “a new determination of the issue is warranted by differences in the quality or extensiveness of the procedures ․” (subd. (3)) and when “there is clear and convincing need for a new determination of the issue ․ because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.”  (Subd. (5)(c), at pp. 273–274, emphasis added.)

II. California Law Does Not Compel Invocation of Collateral Estoppel

California law is consistent with these legal principles.   The case squarely on point is Chamblin v. Municipal Court, supra, 130 Cal.App.3d 115, 181 Cal.Rptr. 636.   In Chamblin, defendant's probation was revoked for several newly committed offenses, including drunk and reckless driving.   Although the judge failed to find at the revocation hearing that defendant was the driver of the vehicle, in the ensuing criminal action defendant was charged with both reckless driving and driving while under the influence of alcohol and/or drugs.   Defendant moved to dismiss the charges on grounds of collateral estoppel and, after his motion was denied, he filed a petition for a writ of prohibition in superior court.   The appellate court affirmed the denial of the writ by holding that the doctrine of collateral estoppel was inapplicable.   In persuasive reasoning Justice Reynoso, speaking for a unanimous court, stated:  “A probation revocation hearing is not a criminal prosecution and is not intended to authorize criminal punishment.  (See In re Coughlin [1976] 16 Cal.3d at p. 61, 127 Cal.Rptr. 337, 545 P.2d 249.)   It takes the form of a trial only for the probationer's own protection.  (Ibid.)  It is less formal than a criminal trial.  (People v. Coleman (1975) 13 Cal.3d 867, 873–875, 120 Cal.Rptr. 384, 533 P.2d 1024[ ];  People v. Vickers (1972) 8 Cal.3d 451, 458, 105 Cal.Rptr. 305, 503 P.2d 1313[ ].)  The rules of evidence are relaxed.  (People v. Mason (1960) 184 Cal.App.2d 182, 189, 7 Cal.Rptr. 525 [ ].)  And in such a proceeding the People are not necessarily the moving party and might not be truly adversarial.  (Pen.Code, § 1203.2, subd. (b).)  [¶] The differences between probation revocation hearings and criminal trials led the Supreme Court in In re Coughlin, supra, to hold that an acquittal in a criminal trial cannot be given collateral estoppel effect so as to bar a subsequent probation revocation proceeding.   We believe the converse of that holding must also be accepted, that is, a decision in a probation revocation hearing cannot be given collateral estoppel effect so as to bar a subsequent criminal trial.   The procedures and protections of a formal criminal trial, such as the rules of evidence and the right to a jury trial, belong to the People as well as to the defendant.   These rights are simply not available in a probation revocation hearing.   Further, the factors which a prosecutor must consider in determining whether and how to proceed in a probation revocation hearing are entirely different [than] the factors which must be considered in determining whether to prosecute criminal charges.  (Compare In re Coughlin, supra, 16 Cal.3d at pp. 59–60, 127 Cal.Rptr. 337, 545 P.2d 249, with People v. Gephart [1979] 93 Cal.App.3d 989, 999–1000, 156 Cal.Rptr. 489.)  [¶] The rule urged by appellant would have the effect of barring full and fair litigation of the question of a defendant's criminal guilt due to a less formal proceeding which involved entirely different purposes, policies, procedures and issues.   The collateral estoppel aspect of the doctrine of res judicata was not designed to preclude full and fair litigation of an issue.  (See People v. Gephart, supra, 93 Cal.App.3d at p. 1000, 156 Cal.Rptr. 489.)   Where the application of the doctrine would have such an effect it must not be applied․”  (Chamblin v. Municipal Court, supra, 130 Cal.App.3d at pp. 120–121, 181 Cal.Rptr. 636, fn. omitted, emphasis added.)

The holding and reasoning of Chamblin find support also in sister state cases, which on various theories conclude that the doctrine of collateral estoppel does not bar relitigation of an issue decided at a probation or parole revocation hearing.   The primary theories for denial of the application of the doctrine are that:  (1) the revocation hearings and criminal actions are separate proceedings having different procedures and objectives (People v. Fagan (1984) 104 A.D.2d 252, 483 N.Y.S.2d 489, 492);  (2) the state has less incentive at the revocation hearing to prove its case, than at trial to prove the defendant's guilt (People v. Fagan (1985) 66 N.Y.2d 815, 498 N.Y.S.2d 335, 489 N.E.2d 222);  (3) the issues to be decided at the revocation hearing and trial are not identical (State v. Spanbauer (App.1982) 108 Wis.2d 548, 322 N.W.2d 511, 513);  and (4) the revocation hearing constitutes only a deferred sentencing or a continuing sequence of the original conviction rather than a new criminal prosecution (Green v. State (Fla.1985) 463 So.2d 1139, 1140;  State v. Dupard (1980) 93 Wash.2d 268, 609 P.2d 961, 965).

California has long recognized that prosecution may often follow a probation revocation hearing.   Our Supreme Court precludes a probationer's testimony at his revocation hearing from being directly or derivatively used to later convict him.   In establishing such a limited exclusionary rule the court reasoned:  “[I]f a probationer does successfully fight revocation by testifying at the hearing, the People's chances of securing his conviction of a new offense will have been improved by the probationer's having been forced, in effect, to be one of the prosecution's principal witnesses in its case in chief at his trial.”  (People v. Coleman (1975) 13 Cal.3d 867, 877, 120 Cal.Rptr. 384, 533 P.2d 1024, fn. omitted.)   Certainly, had California law precluded prosecution following a successful defense of probation revocation, our Supreme Court would have told us so in 1975.  Chamblin is thus entirely consistent with our Supreme Court's teachings.

III. Sims Does Not Compel Invocation of Collateral Estoppel

People v. Sims, supra, 32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d 321, the primary authority cited by petitioner, is patently distinguishable.   First, in Sims, the criminal complaint was based upon the same and sole allegations of fraud that had been determined adversely to the county in the previous administrative hearing.   Thus, in Sims, there was only a single issue in both the administrative hearing and the ensuing criminal action.⁶  On the contrary herein, probation revocation was prosecuted upon three grounds;  given that the admitted usage of marijuana alone justified revoking probation, whether petitioner committed the new indecent exposure became ancillary—a determination which was not essential to revocation.

Furthermore, Sims involved prosecution of welfare fraud pursuant to a statutory scheme which favors resolution of such disputes by civil restitution rather than by criminal prosecution.   That the Sims holding was heavily influenced by such legislative preference for noncriminal resolution is clear:  “the uniqueness of the statutory scheme governing prosecutions for AFDC fraud and the circumstances of the individuals receiving welfare benefits make application of collateral estoppel particularly appropriate in this case.   As this court recognized in McGee, the Legislature has apparently determined that since public assistance provides recipients with only the most minimal standard of living, recipients suspected of fraudulently obtaining benefits are entitled to some protection from criminal prosecution.  (People v. McGee [1977] 19 Cal.3d 948, 963–965, 140 Cal.Rptr. 657, 568 P.2d 382.)   Accordingly, the unique statutory scheme set up by the Legislature establishes a policy in favor of resolving AFDC fraud cases outside the criminal justice system.   (Ibid.)  The state must seek restitution by request or civil action before initiating criminal proceedings in cases involving certain categories of AFDC fraud.  (Welf. & Inst.Code, § 11483.)   When a request for restitution results in a fair hearing determination by the DSS that no fraud has been committed, that decision should collaterally estop a criminal prosecution for the same charge.   To hold otherwise, this court would have to ignore the safeguards afforded welfare recipients by the Legislature.”  (People v. Sims, supra, 32 Cal.3d at p. 489, 186 Cal.Rptr. 77, 651 P.2d 321, emphasis added.)

Moreover, the majority opinion of Sims is carefully crafted to apply to fact specific alleged welfare fraud—a welfare recipient mother of three who admitted receiving $6,339 in public funds and food stamps to which she was not entitled because the children's stepfather was fully employed and living in the home.  Sims never mentions its application to probation revocating hearings and, indeed, totally ignores Chamblin, which was decided over six months earlier.   Had the Sims court thought its holding applicable to probation revocation hearings, it certainly had the opportunity to so say.   If it thought its holding inconsistent with Chamblin, it kept that thought a closely guarded secret.   That it never considered the possibility of such expansive application is demonstrated by the court's unanimous refusal to grant review in (or depublish) Chamblin four months before releasing Sims—a time when the court, especially considering the dissent, must have been deep into its deliberations on Sims.

IV. Public Policy Does Not Compel Application of Collateral Estoppel to Safeguard the Indecent Exposer

Needless to say, such compelling public policy considerations dictating application of collateral estoppel on behalf of the indecent exposer have not been advanced by either our Supreme Court or by our Legislature.   On the contrary, our Legislature has admonished courts, at least in prosecutions for lewd acts upon children under 14 (Penal Code, § 288), to consider the needs of the child victim.   Consistent therewith, it has decreed that:  “The court ․ shall do whatever is necessary and constitutionally permissible to prevent psychological harm to the child victim.”  (§ 288, subd. (c).)  That policy of consideration was invoked by the district attorney when he did not call the child victims to testify at the probation revocation hearing (and the preliminary hearing).⁷  And that policy is precisely what guided the superior court in refusing to bar criminal prosecution by application of the doctrine of collateral estoppel.   Both prosecutor and court have each done what was necessary to protect the child victim;  certainly both actions were constitutionally permissible vis-á-vis the petitioner's rights to due process;  indeed, both prosecutor and judge acted judiciously to further legislative and humane public policy goals.

Justice Kaus, in thoughtful dissent to his colleagues in Sims, warned of the adverse effects upon the administration of justice by applying collateral estoppel to bar prosecution of welfare fraud:  “If, however, the ‘stakes' at the fair hearing are raised so that the administrative decision may be determinative of the pending criminal prosecution—as the majority proposes—then the fair hearing will inevitably become a full dress rehearsal for the criminal trial, and resources which should be allocated to the trial of serious criminal cases will be diverted into the administrative process.”  (People v. Sims, supra, 32 Cal.3d at p. 495, 186 Cal.Rptr. 77, 651 P.2d 321 [dis. opn. of Kaus, J.].)  The diversion of those resources is magnified a thousandfold when applied to probation revocation hearings.   The Attorney General painfully alerts us to the magnitude of the potential number of “dress rehearsals”—in 1987 alone, 23,876 were removed from superior court probation following revocation hearings.

V. Conclusion

I would hold that the trial court correctly followed long-established California precedent in refusing to bar prosecution of the petitioner for felony indecent exposure.   No California case collaterally estops prosecution of felony indecent exposure because a judicial officer has previously refused to revoke probation on that ground;  indeed, the only California court to specifically face the issue has held collateral estoppel inapplicable.   Neither justice nor public policy nor common sense compel us to extend an admittedly limited decision of a divided Supreme Court to “safeguard” the accused indecent exposer.   To so expand California law inflicts upon California jurisprudence the grossest indecency of all—the perversion of precedent.

FOOTNOTES

1.   We were not furnished with a transcript of the probation revocation hearing, but the court minutes confirm that Mrs. Silva was the chief witness for the prosecution;  the defendant called two witnesses as well as himself at the continued hearing on September 8, 1988.

2.   Interestingly, the “Petition of the Probation Officer for Revocation of Probation” did not specifically identify the new indecent exposure charge:  “Mr. Lucido is presently going through Court proceedings in Superior Court on new charges.   Mr. Lucido's urine test dated August 4, 1988, shows positive results for cannabinoid.   To date, Mr. Lucido has failed to participate in a drug program or mental health counseling.”   I assume that these are the charges which triggered the revocation hearing which began on August 22 and continued on September 8, 1988, although this petition is not stamped “Amended” and was only signed on September 8, 1988.

3.   That order reads:  “Clear and convincing evidence was not produced by the prosecution to establish that defendant committed a violation of Penal Code section 314(1) on June 23, 1988.   Accordingly, defendant's probation is not violated on this ground.”

4.   That stipulation reads:  “[T]hat in the probation revocation hearing held in this Little Lake Justice Court on September 8, 1988, the only contested issue was the new Penal Code section 314(1) charge which allegedly occurred on June 23, 1988․”

5.   The instant case clearly illustrates this point.   Although the record reveals that the lewd act committed by petitioner was observed by several witnesses (including numerous children), the prosecution called only Mrs. Silva, the mother of one child, as a witness at the revocation hearing;  not calling the child as a witness could prevent further psychological harm to the child victim, and was unnecessary since presentation of a prima facie case is sufficient for the limited purpose of revoking petitioner's probation.

6.   The sister state cases cited by petitioner (Ex parte Tarver (Tex. CA 1986) 725 S.W.2d 195;  People v. Kondo (1977) 51 Ill.App.3d 874, 9 Ill.Dec. 479, 366 N.E.2d 990;  State v. Bradley, supra, 626 P.2d 403) are distinguishable upon the same ground as Sims:  in all those cases the parole or probation revocations turned on a single issue (offense) that was also the foundation of the subsequent criminal prosecution.

7.   The statute does not require that the person present at the place where petitioner exposed his person or his private parts and the one offended or annoyed thereby be of tender age;  Mrs. Silva's presence alone is sufficient to satisfy the statute as the preliminary hearing magistrate correctly found.

POCHÉ, Associate Justice.

PERLEY, J., concurs.