Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC542500. John D. Molloy, Judge.
Law Office of Jim Husen and Jim Husen for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Arthur Cunningham; Arias & Lockwood and Christopher D. Lockwood for Defendant and Respondent.
OPINION
RICHLI J.
In a criminal case, Omar Deoca was charged with furnishing a controlled substance and child endangerment. At the preliminary hearing, the charge of furnishing a controlled substance was dismissed, but Deoca was held to answer on the charge of child endangerment. The prosecution eventually dismissed the case.
In this action, Deoca alleges that defendant Brandi Swan, an officer with the Riverside County Sheriff’s Department, violated his federal constitutional right to due process by instigating the criminal proceeding against him without probable cause. The trial court sustained Swan’s demurrer, without leave to amend, ruling that the holding order in the criminal case conclusively established probable cause, as a matter of collateral estoppel.
Deoca appeals. However, under this court’s opinion in McCutchen v. City of Montclair (1999) 73 Cal.App.4th 1138 [Fourth Dist., Div. Two] (McCutchen), the trial court was correct. Admittedly, as Deoca points out, in Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728 (Schmidlin), the Sixth District disagreed with McCutchen. This discussion in Schmidlin, however, was dictum — and unpersuasive dictum, to boot. We adhere to our opinion in McCutchen. Hence, we will affirm.
I
FACTUAL BACKGROUND
The following facts are taken from the allegations of the operative complaint, supplemented by matters of which the trial court took judicial notice.
To gain an advantage in a custody dispute, M.C. (the mother) falsely accused Deoca of injecting her son, C.H. (the son), then aged 17, with anabolic steroids. At the mother’s urging, the son made additional false statements to the police.
Brandi Swan is a detective with the Riverside County Sheriff’s Department. In January 2008, she asked to interview Deoca. He agreed, but only if his attorney could be present. This made Swan angry. To retaliate against him, Swan filed a police report recommending that Deoca be charged with two felonies — furnishing a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and child endangerment (Pen. Code, § 273a, subd. (a)).
Swan’s police report falsely stated that Deoca had injected the son with anabolic steroids. It also falsely stated that the injections had left the son with “severe medical problems that could have killed him.” Swan lacked probable cause because (1) she knew that the mother’s allegations were relevant to the custody dispute; and (2) she never checked medical and other records that would have shown that the mother and the son were lying.
In April 2008, the prosecutor filed a complaint containing the same charges as Swan had recommended. At the preliminary hearing, an expert witness testified that the son’s medical records showed no evidence of steroid use and no evidence of a life-threatening condition. At the end of the hearing, the charge of furnishing a controlled substance was dismissed; however, Deoca was held to answer on the charge of child endangerment. The case went to trial, but on the third day of trial, the prosecutor dismissed the case.
II
PROCEDURAL BACKGROUND
Deoca filed this action against the mother, the son, and Swan. The operative complaint asserted only one cause of action against Swan, under 42 United States Code section 1983 (section 1983), for violation of the right to due process.
Swan filed a demurrer. In it, she argued, among other things, that the order holding Deoca to answer in the criminal case established probable cause, as a matter of collateral estoppel.
The trial court sustained the demurrer without leave to amend. It explained: “There was a judicial determination of probable cause at the conclusion of the preliminary hearing. As such, Mr. Deoca[’s] claims based upon a lack of probable cause are untrue as a matter of law.” It therefore entered judgment against Deoca and in favor of Swan.
III
DISCUSSION
Deoca does not allege that he was arrested without probable cause, or even that he was arrested at all. He merely alleges that he was prosecuted without probable cause. It is not at all clear that this is, in fact, a federal due process violation. (See Albright v. Oliver (1994) 510 U.S. 266, 271-274 [114 S.Ct. 807, 127 L.Ed.2d 114].) The parties appear to agree, however, that assuming this theory is viable at all, Deoca cannot state a claim under it unless Swan lacked probable cause.
Deoca therefore argues that a magistrate’s holding order is not collateral estoppel on the issue of probable cause, citing Schmidlin. Swan argues the contrary, citing McCutchen, as well as Haupt v. Dillard (9th Cir. 1994) 17 F.3d 285 (Haupt). We will examine each of these cases in turn.
First, in Haupt, Haupt was tried in a Nevada state court on criminal charges but acquitted. He then brought a section 1983 action, alleging, among other things, a violation of his federal constitutional rights to be free from unreasonable search and seizure and to be free from malicious prosecution. (Haupt, supra, 17 F.3d at p. 287.)
The Ninth Circuit held that the determination of probable cause at the preliminary hearing barred both of these claims, as a matter of collateral estoppel. (Haupt, supra, 17 F.3d at pp. 288-290.) It reasoned that the issue of probable cause at the preliminary hearing was the same as the issue of whether the arresting officers had probable cause: “[T]he issues are different only in the sense that probable cause for his arrest involves reference to the evidence that was or should have been presented to the magistrate, while probable cause to bind Haupt over involves reference to the evidence available to the court at the preliminary hearing. This difference may be significant in some cases. For instance, if after arrest but before the preliminary hearing additional evidence of a defendant’s guilt is discovered, and that evidence is presented at the preliminary hearing, the probable cause determination at the hearing would not be conclusive as to whether there was probable cause to arrest. [¶] Here, however, Haupt adverts to no evidence adduced at his preliminary hearing that was not available to the defendant officers when they obtained his arrest warrant.” (Id. at p. 289; see also id. at p. 290.)
The court also reasoned that Haupt had had a full and fair opportunity to litigate the issue of probable cause: “We may assume that for tactical reasons a litigant may well choose not to litigate probable cause fully during a criminal prosecution, and that in such a case estoppel might be inappropriate. However, there is little evidence that this was the case here. [¶]... Haupt’s attorney in fact vigorously fought the probable cause issue.” (Haupt, supra, 17 F.3d at pp. 289-290.)
Thereafter, in McCutchen, this court followed Haupt. McCutchen was arrested and charged with a crime, but the prosecution dismissed the case before trial. (McCutchen, supra, 73 Cal.App.4th at pp. 1140-1141.) He then filed an action in state court asserting, among other things, claims under section 1983. (McCutchen, at p. 1142.)
We agreed with Haupt that a determination of probable cause at a preliminary hearing could be collateral estoppel with respect to a section 1983 claim. (McCutchen, supra, 73 Cal.App.4th at pp. 1144-1147.) Specifically, we agreed that “a ruling on sufficiency of the evidence at a preliminary hearing would, in most cases, meet the identity of the issues requirement. The quantum of evidence required to support a warrantless arrest is the same as the quantum of evidence required to hold the defendant to stand trial. [Citations.] Thus, absent a showing that evidence not available to the arresting officer was presented at the preliminary hearing, a finding of sufficiency of the evidence to require the defendant to stand trial is a finding of probable cause to arrest the defendant. [Citation.]” (Id. at p. 1146.)
Ultimately, however, we held that the finding of probable cause at the preliminary hearing was not collateral estoppel, because the evidence at the preliminary hearing had not been the same as the evidence available to the arresting officer. (McCutchen, supra, 73 Cal.App.4th at pp. 1147-1148.)
We also agreed that the preliminary hearing afforded a full and fair opportunity to litigate the issue: “[A] preliminary hearing is an adversary judicial proceeding, designed to litigate the issue of probable cause to try the accused on criminal charges, in which the accused may cross-examine witnesses pertinent to the issue of probable cause to arrest, such as the arresting officer and the complaining witness, and present evidence negating the existence of probable cause. [Citation.] Such hearing gives the accused ample opportunity to litigate the issue of probable cause to arrest. [¶]... [U]nless the plaintiff in a civil suit can demonstrate that the issue of probable cause was not litigated at the preliminary hearing for tactical reasons, we will presume that the plaintiff had a full and fair opportunity to litigate the issue of probable cause to arrest. [Citation.]” (McCutchen, supra, 73 Cal.App.4th at pp. 1146-1147.)
Third and finally, in Schmidlin, the Sixth District disagreed with both Haupt and McCutchen. Schmidlin had been arrested for public drunkenness. (Schmidlin, supra, 157 Cal.App.4th at p. 735.) His motion to suppress evidence — made on the ground that the arresting officer had unlawfully detained him — was denied. (Id. at p. 736.) The charges against him were eventually dropped. (Id. at pp. 736-737.) He then asserted section 1983 and other claims in state court, alleging that he had been unlawfully detained and arrested. (Schmidlin, at pp. 735, 737, 762.)
The court opined that a holding order would not be collateral estoppel with regard to probable cause to arrest: “[W]e do not believe a preliminary hearing either raises the issue of, or provides an adequate opportunity to litigate, the legality of an arrest.” (Schmidlin, supra, 157 Cal.App.4th at p. 767.) It explained: “The issue of ‘probable cause’ to arrest (or sufficient cause to detain) is simply not the same as — let alone identical to — that of sufficient cause to hold the defendant for trial. [Citation.] Indeed, the existence of cause to arrest or detain is irrelevant to the issues before the magistrate, and the defendant may be prohibited on that ground from inquiring into it. [Citation.]
“Moreover the magistrate presiding over a preliminary hearing is not empowered to resolve questions of credibility or conflicts in the evidence except as they bear on the existence of ‘sufficient cause to believe that the defendant is guilty....’ [Citations.] The magistrate does not decide whether the defendant is actually guilty, but only whether the evidence at the hearing establishes ‘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.’ [Citation.] His opinion of guilt or innocence ‘is of no legal significance whatever in view of the limited nature of the proceedings.’ [Citations.]
“It follows that a magistrate’s finding of probable cause to hold a defendant for trial is not a finding of probable cause to arrest (or detain), and that even if it were, the magistrate’s limited factfinding powers do not permit the defendant to ‘actually litigate’ the issue so as to give the magistrate’s ruling preclusive effect in a later civil suit.” (Schmidlin, supra, 157 Cal.App.4th at pp. 767-768.)
All of this was dictum, however, as the court went on to hold that “[t]hese objections... do not extend to an order, such as the one at issue here, denying a motion to suppress evidence on the ground that officers detained the defendant unlawfully.” (Schmidlin, supra, 157 Cal.App.4th at p. 768, italics added.) It concluded that, unlike a magistrate’s holding order, the order denying the motion to suppress did constitute a finding of probable cause to arrest, and that Schmidlin had been afforded a full and fair opportunity to litigate the issue. (Id. at pp. 768-771.)
According to Deoca’s counsel, in Schmidlin, the “Court of Appeal reversed a trial court for equating probable cause at [a] preliminary hearing with probable cause to arrest....” (Italics added.) Not so; it affirmed. (Schmidlin, supra, 157 Cal.App.4th at pp. 735, 780.)
We adhere to our decision in McCutchen, for several reasons. First, as a matter of stare decisis, we should not lightly depart from our own published opinions. (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 503.) Second, Schmidlin’s entire discussion of Haupt and McCutchen was dictum. Third, and most important, even after seriously considering Schmidlin, we remain convinced that a magistrate’s holding order does — at least under the circumstances here — determine the existence of probable cause.
“The purpose of the preliminary hearing is to determine whether there is probable cause to conclude that the defendant has committed the offense charged. [Citations.] Probable cause exists if a person ‘“‘“of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion”’”’ that the defendant committed the crime. [Citations.]” (Galindo v. Superior Court (2010) 50 Cal.4th 1, 8.) “In performing this function, the magistrate may ‘weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses.’ [Citations.]” (People v. Dawson (2009) 172 Cal.App.4th 1073, 1087.) Similarly, “[p]robable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1037.)
Admittedly, “the magistrates do not themselves decide whether the defendant is guilty. [Citations.] Rather, they simply decide whether a reasonable person could harbor a strong suspicion of the defendant’s guilt.... [T]he proceeding is not a trial: if the magistrate forms a personal opinion regarding the defendant’s guilt, it is of no legal significance. [Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 251.) For precisely this reason, however, the magistrate’s decision is essentially equivalent to a finding that, regardless of whether the magistrate would have arrested the defendant, the arresting and prosecuting authorities did have probable cause.
We recognize that, in the absence of a motion to suppress, the magistrate is not required to decide whether any arrest of the defendant was or was not lawful. (People v. Williams (1989) 213 Cal.App.3d 1186, 1197.) This is partly for procedural reasons; if it were otherwise, the defendant could essentially obtain two successive suppression hearings regarding the arrest. (People v. Barnes (1990) 219 Cal.App.3d 1468, 1472-1473.) It also follows from the fact that, at the preliminary hearing, the People could, at least in theory, present additional evidence of guilt that was not available to the arresting officer. Even so, the defendant has a full and fair opportunity to litigate the central question of whether the evidence at the hearing demonstrates probable cause.
Deoca does not claim that the People presented additional evidence of guilt at the preliminary hearing. He also does not claim that he refrained from litigating the issue of probable cause for any tactical reason. Thus, none of the possible exceptions that we recognized in McCutchen apply here.
In this case, it appears that there was, if anything, additional evidence of innocence — the expert’s testimony that the son’s medical records showed no evidence of steroid use and no evidence of any life-threatening condition. Nevertheless, the magistrate held Deoca to answer for child endangerment.
Finally, Deoca points out repeatedly that, while the magistrate did hold him to answer on the charge of child endangerment, the magistrate also dismissed the charge of furnishing a controlled substance. This is relevant if — and only if — it would be a due process violation to bring two charges against a criminal defendant, when one is based on probable cause and the other is not (even after the latter has been promptly dismissed pursuant to state law). Deoca, however, offers no reasoned argument or citation of authority in support of this contention. As we have already noted, it is not even clear that bringing a criminal prosecution that wholly lacks probable cause violates due process, much less one that lacks probable cause solely as to one of two charges. Particularly in light of this uncertainty, we deem the contention forfeited. (Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 956.)
We therefore conclude that the trial court correctly ruled that the holding order in the criminal case barred Deoca’s due process claim against Swan, as a matter of collateral estoppel.
IV
DISPOSITION
The judgment is affirmed. Swan is awarded costs on appeal against Deoca.
We concur: HOLLENHORST Acting P.J., MILLER J.