Opinion
Rehearing Granted Jan. 26, 1961.
For Opinion on Rehearing see 11 Cal.Rptr. 685.
Cary G. Branch, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty, Gen., Philip C. Griffin, Deputy Atty. Gen., for respondent.
FOX, Presiding Justice.
Defendant Van Eyk appeals from a conviction of conspiracy to violate §§ 11500 and 11530 of the Health and Safety Code. A Grand Jury indictment charged him with conspiring with the other named defendants and with others unknown to the Grand Jury to commit the following felonies: Possession of heroin, possession of amidone, possession of percodan, possession of demerol, and possession of marijuana. Ten overt acts in furtherance of this conspiracy were alleged in the indictment.
Appellant Van Eyk and defendant Christensen were arrested at Van Eyk's apartment in South Pasadena at about 11:40 p. m., on September 13, 1959. On September 15, both were ordered released from custody and then were immediately re-arrested. On September 16, 1959, at about 1:45 p. m., Van Eyk and Christensen were first taken before a magistrate and arraigned on Municipal Complaint No. 154949 charging them with five counts of possession of narcotics. On September 28, a preliminary In view of the questions raised by appellant, a somewhat extensive review of the evidence is necessary. The principal witness for the prosecution, Officer Sanchez of the Los Angeles Police Department, testified to having seen and heard the following from a stake-out which he had established on Apartment No. 207 at 3445 South La Brea Avenue, which was occupied by Robert C. Hernandez and Marie Helen Lavario: On September 2, Officer Sanchez saw appellant arriving at the above address and heard him ask Lavario if Robert was there. He stated to Lavario that he had to pick up some stuff (heroin) because the guys were on his back and he had to connect; that he had to get ahold of Robert. He then gave Lavario his phone number and asked her to have Hernandez call him. On September 3, the officer saw appellant and Hernandez leave the apartment and followed them to a phone booth where Hernandez appeared to place a phone call. Later, on the same day, Officer Sanchez observed Jose Escobedo arrive at the apartment and heard him say to Hernandez that he had to pick up four ounces. Hernandez said, 'Give me the money and I'll make the call'. The two men then left the apartment and the officer observed Escobedo hand currency to Hernandez. He then observed Hernandez and Escobedo go to a phone booth and Hernandez appeared to make a phone call. In the afternoon of September 6, Escobedo went to the apartment and then he and Hernandez emerged together. Officer Sanchez observed Escobedo hand Hernandez some currency. Escobedo asked Hernandez for six ounces of stuff that he had to pick up right away. Hernandez said, 'Have you got the money?' Escobedo replied, 'Yes, I have.' Hernandez said, 'That's good. We'll go make the phone call.' On September 7, Lavario was alone in the apartment and Escobedo put in an appearance. The officer heard him state that he was 'putting down [selling] 10 ounces a week.' He further stated that a man named Chente, who was never identified, was not doing anything and he (Escobedo) couldn't see why he should be paying Chente $300 a week. Hernandez then arrived and Escobedo told him he had to pick up six ounces, and Hernandez told him to hand over the money and he would then make the phone call. The two men then went to the phone booth and Hernandez appeared to call. On September 8, Officer Sanchez over-heard Lavario and Hernandez arguing. Lavario told Hernandez that she needed some stuff to fix and Hernandez told her to take some methadon. Lavario said she didn't want methadon and asked Hernandez to call a person named Glen
At no time did the officers have a warrant for appellant's arrest, nor did they have a search warrant for appellant's apartment or for room 316 in the Watkins Arms Hotel; nor did they have a warrant to search the suitcase. The had no permission to take the rent receipt or the keys, nor did they have permission of appellant to enter the hotel room or unlock the suitcase.
We come now to appellant's first contention which we consider dispositive of the appeal. He argues that the court erred in denying his motion to exclude the evidence which was admitted against him at the first preliminary hearing on the grounds that there had been a prior determination that this evidence was the product of an illegal search and seizure. This prior determination, defendant says, was made when the court granted appellant's motion under Penal Code, § 995 and dismissed the first information. Appellant claims that this prior determination makes the question of admissibility of this evidence res judicata and that it was therefore error for the trial court to admit it. The evidence thus challenged consists principally of the narcotics found in room 316 of the Watkins Arms Hotel, the keys taken from appellant's possession and the rent receipt recovered at his apartment. It was stipulated that the court's granting of the § 995 motion and the dismissal of the prior information was made on the ground that the evidence introduced by the People at the preliminary examination had been obtained in violation of appellant's constitutional rights as set forth in Art. I, Sec. 19 of the California Constitution. Thus, appellant argues, this court must reverse the judgment of conviction herein because the erroneous admission of this evidence seriously prejudiced his rights to a fair trial.
We agree. Unquestionably the doctrine of res judicata is applicable to criminal cases. People v. Beltran, 94 Cal.App.2d 197, 210 P.2d 238. The question still remains, however, whether it is applicable to a determination of the Superior Court, in dismissing an information or indictment pursuant to a § 995 motion, from which order the People have failed to appeal. This question was answered in the affirmative by People v. Mora, 120 Cal.App.2d 896, 262 P.2d 594. In that case, after a preliminary hearing, defendant was held to answer a charge of attempted murder. A § 995 motion was granted, setting aside the information, on the ground that the right to counsel had been denied defendant at the preliminary hearing. The People then filed a second complaint. A second preliminary hearing was held at which defendant was represented by counsel. He was held to answer, tried, and convicted. At the trial, evidence of statements he had made at the first preliminary hearing was admitted over his objection. On appeal the conviction was reversed. It was held (1) that statements made by a defendant who had been denied counsel at a preliminary hearing are inadmissible; and (2) After some discussion demonstrating applicability of the doctrine to criminal cases generally, the court said at page 899 of 120 Cal.App.2d, at page 595 of 262 P.2d: 'While the determination here involved was responsive to a motion, nevertheless to such determination the doctrine of res judicata is applicable where the particular proceedings admit of a full hearing on the merits and especially where, as here, the resulting order is appealable. 60 C.J.S. Motions and Orders § 65g. The text referred to declares: 'Final orders, or orders affecting substantial rights, fully litigated, and from which an appeal lies, are conclusive of the matter adjudged and, under the doctrine of res judicata, binding on the parties in all subsequent proceedings, unless reversed or modified by an appellate court.' It is clear from this record that the factual question of whether or not defendant had been unlawfully denied the services of counsel in the first preliminary was squarely put before the court by his motion to set aside the information and was decided in his favor. It follows, therefore, that when at the trial in support of his objection to the admission of his testimony in the first preliminary, he advised the court of his position that the matter was inadmissible because of the previous ruling on the motion, he sufficiently grounded his objection upon the doctrine of res judicata.' Similarly, it is clear from this record that the question of whether the physical evidence had been illegally obtained was squarely put before the court by appellant's motion to set aside the first information, and that the question was decided in his favor. The trial court was bound to accept this determination (People v. Mora, supra) and it should, therefore, have excluded the evidence when appellant made his objection. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513.
Cited with approval in Cosgrove v. United States, 9 Cir., 224 F.2d 146.
The People's reliance upon People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1, is misplaced. That case did not involve an order of dismissal under § 995, Penal Code, from which the People failed to appeal. In the instant matter the People did not appeal from the prior dismissal under § 995. Hence the questions necessarily passed upon in ordering said dismissal have been finally determined. People v. Mora, supra.
Also, it is of no significance that the second charge herein involved a different offense than the first. 'Thus whether a defendant is tried on two separate indictments or upon two counts of one indictment each count being considered as a separate and distinct offense, the doctrine of res judicata applies as to any matters in issue which the verdict determined.' People v. Beltran, 94 Cal.App.2d 197, at page 205, 210 P.2d 238, at page 243.
The question remains whether the error committed was prejudicial. It is apparent that the jury would be tremendously influenced by the presence of the illegally obtained contraband for it would strongly corroborate the testimony of Officer Sanchez relative to the allegedly conspiratorial conversations that he testified he heard. Absent the narcotics the People's evidence would have been greatly diluted for their case would then have had to rest on the uncorroborated testimony of a single person as to what he saw and heard. Thus the evidentiary picture before the jury would have been so vastly different that in our opinion there exists here "such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result,' and accordingly the error is prejudicial.' People v. Dewberry, 51 Cal.2d 548, 558, 334 P.2d 852, 858; People v. Purvis, 52 Cal.2d 871, 887, 346 P.2d 22; People v. Love, 53 Cal.2d 843, 857, 3 Cal.Rptr. 665.
The judgment and order denying a new trial are reversed.
ASHBURN and HERNDON, JJ., concur.