People v. Santamaria

MOSK, J., Concurring and Dissenting.

I concur in the judgment insofar as it would allow retrial. The “collateral estoppel" component of the double jeopardy clause of the Fifth Amendment to the United States Constitution does not immunize defendant from further proceedings. The majority are right to so hold.

But I dissent from the judgment insofar as it would allow retrial unaffected by collateral estoppel. The constitutional doctrine grants defendant protection. The majority are wrong to take it away. Or to try to take it away. They will not have the last word. The courts of the United States will speak when—and not if—defendant invokes their jurisdiction over state prisoners in habeas corpus. They “have the power,” as the majority themselves recognize, “to effectively overrule our decision.” (Maj. opn., ante, at p. 923.) That they are likely to do so seems apparent from Pettaway v. Plummer (9th Cir. 1991) 943 F.2d 1041 , which “involved virtually the same issue and procedural posture as this case” (maj. opn., ante, at p. 923), and granted relief to the petitioner.

I

In the superior court, the People charged that defendant murdered and robbed Victor Guadron. They alleged for purposes of enhancement of sentence that he personally used a knife in the murder. In addition, they alleged for purposes of death-eligibility that he committed the murder under the special circumstance of felony-murder robbery. (They also made other allegations not pertinent here.)

Later, the People moved to dismiss the action on the ground of insufficient evidence. The superior court so ordered.

The People then recharged defendant with murder and robbery. They realleged the personal use of a knife in the murder and also the felony-murder-robbery special circumstance.

At trial, the People attempted to prove, beyond a reasonable doubt, that defendant was guilty of the murder of Guadron (via willful, deliberate, and *928 premeditated murder and/or felony murder) as a principal therein, under the theory that he was a direct and active perpetrator or under the theory that he was an aider and abetter. They also attempted to prove, beyond a reasonable doubt, that he personally used a knife in the crime. Their main witness was Anthony Nubia. He gave testimony that demonstrated that both defendant and he participated in the events in question. In so testifying, he attempted to shift as much responsibility as he could from his own shoulders onto those of defendant. To this end, he identified defendant as the stabber. Other evidence, however, suggested otherwise. Expert testimony established that Nubia’s automobile, which was involved in the incident, was stained with the blood of two persons: apparently, one was Nubla and the other was Guadron; neither could have been defendant.

In its charge to the jury, the superior court defined, inter alia, murder, including willful, deliberate, and premeditated murder and felony murder; robbery, both as a predicate of felony murder and as a separate and independent crime; and the felony-murder-robbery special circumstance. It also set out the requirements for liability as a principal, either as a direct and active perpetrator or as an aider and abetter. And it declared that the People bore the burden to prove the charges and allegations beyond a reasonable doubt.

The jury returned verdicts finding defendant guilty of murder and robbery. It found it true that he committed the murder under the special circumstance of felony-murder robbery. But it found it not true that he personally used a knife in the crime. That means, among other things, that it necessarily determined that he was guilty of murder under a theory of felony-murder robbery (see, e.g., People v. Berryman (1993) 6 Cal.4th 1048, 1086 [ 25 Cal.Rptr.2d 867 , 864 P.2d 40 ]), but had at least a reasonable doubt that he was the stabber.

The superior court rendered judgment accordingly.

The Court of Appeal reversed. (People v. Santamaría (1991) 229 Cal.App.3d 269 [ 280 Cal.Rptr. 43 ].) It concluded that the superior court committed prejudicial error by adjourning jury deliberations for 11 days without good cause. (Id. at pp. 274-283.)

After remand to the superior court, the People recharged defendant with murder and robbery. They realleged the felony-murder-robbery special circumstance. They did not reallege personal use of a knife in the murder.

Before the scheduled retrial, defendant made a collateral estoppel motion “to prohibit [his] retrial ... for use of’ a knife, “to limit evidence” on his *929 employment of the weapon, and to “preclude [the] prosecution’s reliance on” the related “theory,” which had been “adjudicated in [his] favor” at the original trial. (Capitalization deleted.) The People opposed. After a hearing, the superior court: (1) granted the motion to the extent that it sought to “preclud[e]” “the prosecution . . . from retrying the defendant on the enhancement ... of personal use of a knife during the killing”; (2) granted the motion to the extent that it sought to “preclud[e]” “the prosecution” “from retrying the defendant on the theory that he personally used the knife during the killing”—“[t]o this end,” it added, “the jury is to be instructed at appropriate intervals throughout the case that the defendant did not personally use a knife during the killing of the victim”; and (3) denied the motion to the extent that it sought “to preclude the introduction of evidence,” but did so “without prejudice to objections, particularly, as to relevance during the course of the trial.”

Subsequently, the superior court dismissed the action on its own motion. It did so after the People had represented that they were “unable to proceed on the theory that is left to us as a result of . . . [the] ruling on [the] collateral estoppel issue”: “[T]he People find themselves in the situation where we have no other theory of prosecuting this murder; that is we have no evidence that the defendant was anything but the stabber . . . .” Defendant had opposed, but unsuccessfully.

The Court of Appeal affirmed. In a unanimous opinion by Justice Werdegar, then a member of that court, it concluded that the superior court did not err in ruling as it did on collateral estoppel. 1

On the People’s petition, we granted review.

II

Whether to affirm or reverse the Court of Appeal’s judgment depends, of course, on the soundness of the superior court’s collateral estoppel ruling.

The applicable law may be summarized as follows. 2

The double jeopardy clause of the Fifth Amendment to the United States Constitution declares that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb . . . .” It is made enforceable against the states through the due process clause of the Fourteenth Amendment. *930 (Benton v. Maryland (1969) 395 U.S. 784, 794 [ 23 L.Ed.2d 707, 715-716 , 89 S.Ct. 2056 ].) It extends beyond guilt or innocence to punishment, so long as the latter is determined in a manner similar to the former. (See Arizona v. Rumsey (1984) 467 U.S. 203, 209-212 [ 81 L.Ed.2d 164, 170-172 , 104 S.Ct. 2305 ]; Bullington v. Missouri (1981) 451 U.S. 430, 446 [ 68 L.Ed.2d 270, 283-284 , 101 S.Ct. 1852 ].)

The double jeopardy clause “incorporates the doctrine of collateral estoppel in criminal proceedings.” (Schiro v. Farley (1994) 510 U.S._,_[ 127 L.Ed.2d 47, 58 , 114 S.Ct. 783, 790 ]; accord, Ashe v. Swenson (1970) 397 U.S. 436, 445 [ 25 L.Ed.2d 469, 476 , 90 S.Ct. 1189 ]; Dowling v. United States (1990) 493 U.S. 342, 347 [ 107 L.Ed.2d 708, 716-717 , 110 S.Ct. 668 ].) Collateral estoppel, however, is not limited by double jeopardy strictly defined, but reaches beyond it into a separate and independent sphere. (See U.S. v. Bailin (7th Cir. 1992) 977 F.2d 270 , 275-276.) Stated most simply, it is “the principle that bars relitigation between the same parties of issues actually determined at a previous trial. . . .” (Ashe v. Swenson, supra, 397 U.S. at p. 442 [ 25 L.Ed.2d at p. 474 ].) It “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Id. at p. 443 [ 25 L.Ed.2d at p. 475 ]; accord, Schiro v. Farley, supra, 510 U.S. at p. _ [127 L.Ed.2d at pp. 57-58, 114 S.Ct. at p. 790 ]; Dowling v. United States, supra, 493 U.S. at p. 347 [107 L.Ed.2d at pp. 716-717].) Among the evils that it is designed to prevent is the situation in which a trier of fact at an earlier trial reaches one conclusion and a trier of fact at a later trial “reache[s] a directly contrary conclusion.” (Dowling v. United States, supra, 493 U.S. at p. 348 [ 107 L.Ed.2d at p. 717 ].)

Apparently, it is the criminal defendant who bears the burden to demonstrate that the doctrine of collateral estoppel is applicable on the facts of any given case. Certainly, it is he who bears “the burden ... to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” (Dowling v. United States, supra, 493 U.S. at p. 350 [ 107 L.Ed.2d at p. 719 ]; accord, Schiro v. Farley, supra, 510 U.S. at p._[127 L.Ed.2d at pp. 58-59, 114 S.Ct. at p. 791 ].)

At the original trial, as noted above, the People attempted to prove, beyond a reasonable doubt, that defendant was guilty of the murder of Guadron (via willful, deliberate, and premeditated murder and/or felony murder) as a principal therein, under the theory that he was a direct and active perpetrator or under the theory that he was an aider and abetter. They also attempted to prove, beyond a reasonable doubt, that he personally used a knife in the crime.

*931 At the original trial, as also noted above, the jury determined that defendant was indeed guilty of Guadron’s murder. But it found that it was not true that he personally used a knife in the crime. That means that each and every juror, at the very least, had a reasonable doubt whether defendant personally used a knife therein.

It follows that no juror in fact determined that defendant was guilty of Guadron’s murder on a theory dependent on his personal use of a knife in this crime, for example, on a theory that he was a principal as a direct and active perpetrator solely through his personal use of a knife.

Neither could any juror have properly so determined. The due process clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364 [ 25 L.Ed.2d 368, 375 , 90 S.Ct. 1068 ].) That means not only every “elemen[t]” properly so called, but also every “fac[t] necessary to establish each of those elements . . . .” (Sullivan v. Louisiana (1993) 508 U.S. _ , _ [ 124 L.Ed.2d 182, 188 , 113 S.Ct. 2078, 2080 ].) It is true that personal use of a knife is not an element of the crime of murder. It is also true that, generally, it is not even a necessary fact for any of the elements. But it is indeed such a fact for the requisite unlawful act insofar as guilt is predicated on a theory dependent thereon—in this case, on a theory that defendant was a principal as a direct and active perpetrator solely through his personal use of a knife. Similarly, intent to steal is not an element of the crime of murder. Neither, generally, is it a necessary fact for any of the elements. But it is indeed such a fact for the requisite unlawful mental state insofar as guilt is predicated on a theory dependent thereon, for example, felony-murder robbery. Obviously, no juror can determine that a defendant is guilty of a crime beyond a reasonable doubt on a theory dependent on a necessary fact as to which each and every juror has a reasonable doubt.

Returning to my theme, I believe that defendant has carried whatever burden he may have borne to demonstrate that the doctrine of collateral estoppel is applicable on the facts of this case.

“[R]elitigation between the same parties of [any] issu[e] actually determined at a previous trial” is “bar[red].” (Ashe v. Swenson, supra, 397 U.S. at p. 442 [25 L.Ed.2d at pp. 474-475].) The parties on retrial, of course, would be the same as those at the original trial: the People and defendant. The issue that defendant sought to foreclose on retrial was the same as one of those actually determined at the original trial: whether or not he personally used a knife in the murder of Guadron. At the original trial, it was found not true. *932 On retrial, it could not be found true. Otherwise, “directly contrary conclusion[s]” could be reached. (Dowling v. United States, supra, 493 U.S. at p. 348 [ 107 L.Ed.2d at p. 717 ].) It is immaterial that the issue in question was established at the original trial through a finding on an allegation of a sentence enhancement rather than a verdict on a charge of a substantive offense. That is because, under California law, the sentence enhancement here is determined in a manner similar to a substantive offense. (See Pen. Code, §§ 969c, 1170.1, subd. (f).)

“[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Ashe v. Swenson, supra, 397 U.S. at p. 443 [ 25 L.Ed.2d at p. 475 ]) Again, the issue that defendant sought to foreclose on retrial was the same as one of those actually determined at the original trial: whether or not he personally used a knife in the murder of Guadron. It is an issue of “ultimate fact.” An “ultimate fact” is one that “must be proven beyond a reasonable doubt.” (U.S. v. Bailin, supra, 977 F.2d at p. 280; see U.S. v. Seley (9th Cir. 1992) 957 F.2d 717, 723 [to similar effect].) Such is the case here. As explained above, personal use of a knife is a necessary fact for the unlawful-act element of the crime of murder insofar as guilt is predicated on a theory dependent thereon—in this case, on a theory that defendant was a principal as a direct and active perpetrator solely through his personal use of a knife. As such, it must be proved beyond a reasonable doubt under the command of the due process clause of the Fourteenth Amendment. (Sullivan v. Louisiana, supra, 508 U.S. at p__[124 L.Ed.2d at pp. 187, 188, 113 S.Ct. at p. 2080 ].)

The result of the foregoing collateral estoppel analysis is as follows.

On retrial, the People would be allowed to attempt to prove, beyond a reasonable doubt, that defendant was guilty of the murder of Guadron (via willful, deliberate, and premeditated murder and/or felony murder) as a principal therein, under the theory that he was a direct and active perpetrator or under the theory that he was an aider and abetter—with the sole exception that they would be prohibited from attempting to prove that he was guilty as a principal under the theory that he was a direct and active perpetrator solely by personally using a knife. In other words: The People could attempt to prove that defendant was guilty as a principal specifically as a direct and active perpetrator other than through his personal use of a knife. They could also attempt to prove that he was guilty as a principal specifically as an aider and abettor. In addition, they could attempt to prove that he was guilty, as it were, “unspecifically,” that is, that although his precise role could not be determined, he was either a direct and active perpetrator or an aider and *933 abettor. They would be prohibited only from attempting to prove that he was guilty as a principal as a direct and active perpetrator solely through his personal use of a knife. Otherwise, directly contrary conclusions might be reached by different triers of fact. The jury at the original trial concluded that there was at least a reasonable doubt that defendant personally used a knife. Without the indicated prohibition, a jury on retrial might conclude that there was not a reasonable doubt about the matter.

The result of the collateral estoppel analysis in this case is unremarkable.

It is undisputed (see maj. opn., ante, at p. 910) and indisputable (see People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 78, fn. 22 [ 2 Cal.Rptr.2d 389 , 820 P.2d 613 ]) that the doctrine of collateral estoppel prohibits reallegation that defendant personally used a knife in the murder of Guadron. It follows that the doctrine bars relitigation of the fact alleged. Were it not so, form would prevail over substance: the once rejected allegation could not be reconsidered, but the once rejected fact alleged could be.

To be sure, the result of the collateral estoppel analysis in this case yields little real benefit to defendant. But it is the primary benefit he sought before the superior court. In counsel’s words: “We’re not claiming that the People are precluded from retrying the defendant for murder. That’s not our position. [1 Our position is that they may not try the defendant on the theory that he used the knife because that was the theory that was decided adversely to them in the first proceeding.” Defendant has not deviated a whit before this court. To quote his brief: What he “seeks” is “to foreclose on retrial” “the issue” “whether he used the knife” in the murder. What he is entitled to may not be much, but he is entitled to it nonetheless.

Defendant, of course, did indeed receive a substantial benefit: dismissal of the action. But that was given to him by the People. True, the People had represented that they were “unable to proceed on the theory that is left to us as a result of . . . [the] ruling on [the] collateral estoppel issue.” They were wrong. For the charge of murder, they had available the theory of felony-murder robbery—under which the jury had found defendant guilty. The testimony of Nubia—with or without the identification of defendant as the stabber—would have been sufficient. There was a robbery. Defendant was a principal therein. There was also a killing. “There is no requirement of a strict ‘causal’ [citation] or ‘temporal’ [citation] relationship between the [robbery] and the [killing.] All that is demanded is that the two ‘are parts of one continuous transaction.’ ” (People v. Berryman, supra, 6 Cal.4th at p. 1085 .) Such is the case here. For the allegation of the felony-murder-robbery *934 special circumstance, which then required intent to kill (see, e.g., People v. Duncan (1991) 53 Cal.3d 955, 973 [ 281 Cal.Rptr. 273 , 810 P.2d 131 ]), the People had available the facts themselves, which established such intent for defendant, whether or not he was the stabber. For Guadron had not only been stabbed, but also strangled and run over by Nubia’s automobile.

In view of the foregoing, the superior court’s collateral estoppel ruling was sound in general.

But not in its entirety.

Recall the superior court’s “instruction.” It directed that “the jury is to be instructed at appropriate intervals throughout the case that the defendant did not personally use a knife during the killing of the victim.” It erred thereby. For the reasons stated above, it should have directed that the jury be instructed only that it could not find that defendant was guilty as a principal as a direct and active perpetrator solely through his personal use of a knife.

Ill

At the outset, the majority approach, but ultimately draw back from, the conclusion that the double jeopardy clause, including its collateral estoppel component, does not apply to retrials or questions of penalty but only to new trials and matters of substantive offenses. To my mind, they do well to do so. 3

But the majority do conclude that the doctrine of collateral estoppel is not applicable on the facts of this case. Their reasoning, however, is flawed. Moreover, their extensive criticism of Pettaway v. Plummer, supra, 943 F.2d 1041 , fails to strike to that decision’s core. 4 A fortiori, it is insufficient to provoke reconsideration.

In support of their conclusion against collateral estoppel, the majority assert that the issue that defendant sought to foreclose on retrial was not the same as any of those actually determined at the original trial. Not so. At the original trial, the jury actually determined that it was not true that defendant personally used a knife in the murder of Guadron. That and that alone is the issue that defendant sought to foreclose on retrial. His “position” was simply that the People could not try him again “on the theory that he used the knife *935 . . . The majority gratuitously assert that, “[ajlthough defendant claims he merely seeks to preclude the theory that he used the knife, he necessarily is claiming more; he seeks to preclude the theory, and evidence to support the theory, that he either used the knife or aided and abetted the one who did.” (Maj. opn., ante, at p. 920, italics in original.) Defendant is doing no such thing, “necessarily” or otherwise. And even if he were, that would not matter. Surely, he does not forfeit his right to preclude a narrow issue merely by attempting to preclude a broader one and its supporting evidence.

The majority then assert that the issue that defendant sought to foreclose on retrial is not an issue of “ultimate fact.” Again not so. As explained above, personal use of a knife is an “ultimate fact” because it must be proved beyond a reasonable doubt; it must be proved beyond a reasonable doubt because it is a necessary fact for the unlawful-act element of the crime of murder insofar as guilt is predicated on a theory dependent thereon—in this case, on a theory that defendant was a principal as a direct and active perpetrator solely through his personal use of a knife.

Perhaps troubled by their conclusion against collateral estoppel, the majority may be understood to argue that any directly contrary conclusions that might be reached by different juries in violation of the doctrine, even if real, would at least not be apparent. That may be true. The jury at the original trial revealed its conclusion, through its not true finding on the personal-use-of-a-knife allegation. A jury on retrial would not do so, since it would have no allegation to determine in the first place. But ignorance of the fact that conclusions are directly contrary would not make them otherwise. Neither would it excuse the resulting violation.

IV

For the reasons stated above, I would reverse the judgment of the Court of Appeal with directions to that court to vacate the superior court’s order dismissing the action with directions to that court to set aside its “instruction” and devise a new and different instruction, to the effect that the jury could not find that defendant was guilty as a principal as a direct and active perpetrator solely through his personal use of a knife.

Justice Werdegar’s opinion, which I substantially adopt, is set out at length in the appendix.

The law is presently fully in Justice Werdegar’s opinion. (See appen., post, p. 937.)

The majority’s efforts in this regard are fully anticipated in, and soundly dispatched by, Justice Werdegar’s opinion. (See appen., post, at p. 937.)

Here too, the majority’s efforts are fully anticipated in, and soundly dispatched by, Justice Werdegar’s opinion. (See appen., post, at p. 937.)