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State v. Brunet5/10/2002
earings," 795 P.2d at 1224, but should be preserved for a full criminal trial. I agree, but I emphasize again that whether the determination of criminal charges is made at the probation revocation hearing or at a criminal trial is a matter of the State's exercise of prosecutorial discretion. Although it is entirely possible to reserve the trial of criminal charges for full criminal trials by requiring the State to proceed with the criminal trial first, I doubt that the State would have us adopt a rule that removes that choice from its discretion.
The State could have waited until the conclusion of the criminal trial before trying the probation revocation - it chose not to. We should not allow the State to toss aside unfavorable judicial determinations as a result. As Justice Mosk stated in Lucido, "the People control the sequence of proceedings. They alone determine what appears to be in the best interest of society and public safety. They should be bound by the procedural choice they make." 795 P.2d at 1239 (Mosk, J., dissenting). Therefore, I would hold that when the trial court in a revocation hearing makes a specific factual finding, that finding is entitled to collateral estoppel, assuming all other elements of the doctrine are met. Accordingly, I respectfully dissent.
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