Opposition — Newton v. California

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EN RP RCE RE A a TNT ERR

No. 80-1024

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1980

HUEY P. NEWTON,

Petitioner,

Vv.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

GEORGE DEUKMEJIAN

Attorney General

ROBERT H. PHILIBOSIAN

Chief Assistant Attorney

General--Criminal Division

EDWARD P. O'BRIEN

Assistant Attorney General

ROBERT R. GRANUCCI

Deputy Attorney General

CLIFFORD K, THOMPSON, JR.

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Telephone: (415) 557-2653

Attorneys for Respondent

II.

III.

wile

QUESTIONS PRESENTED

Whether, in violation of

Fourteenth Amendment Due Process, the

St2te has punished the very conduct it

bs induced by affirmative acts

veasnably relied upon by the accused.

Whether the federal constitution

demands expansion of the collateral

estoppel doctrine followed by the state

courts.

Whether petitioner's conviction

rests upon the impermissible retro-

active application of Faretta v.

California, 422 U.S. 806 (1975) and

Lewis v. United States, 100 S.Ct. 915

(1980).

TOPICAL INDEX

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED

STATEMENT OF THE CASE

ARGUMENT

If.

Ill.

PETITIONER'S CONVICTION IS

CONSISTENT WITH FOURTEENTH

AMENDMENT DUE PROCESS.

THE CONTOURS OF CALIFORNIA'S

COLLATERAL ESTOPPEL DOCTRINE

ARE NOT DICTATED BY THE

FEDERAL CONSTITUTION,

PETITIONER'S CONVICTION DOES

NOT REST UPON THE RETROACTIVE

APPLICATION OF DECISIONS OF

THIS COURT.

CONCLUSION

Page

No NO NO FEF

iii

TABLE OF AUTHORITIES

CASES

Beck v. Washington,

369 U.S.

541 (1962) .

Bouie v. City of Columbia,

378 U.S.

Cardinale v.

394 U.S.

347 (1964) .

437 (1969) .

Cox v. Louisiana,

379 U.S.

595 (1964) .

Dillard v. McKnight,

39 Cal.2d 209 (1949).

Faretta v. California,

442 U.S.

Flood v.

806 (1975) .

Riggs,

Louisiana,

80 Cal.App.3d 138 (1978).

Gonzales v. Municipal Court,

32 Cal.App.3d 706 (1973).

Hight v.

Hight,

67 Cal.App.3d 498 (1977).

Kratz v.

477 F.Supp.

Kratz,

463 (E.D.Pa.

Lewis v. United States,

100 S.Ct.

915 (1980).

1979)

TABLE OF AUTHORITIES

Otsuka v. Hite,

SS Cekcee See Cheeels « «6 + « oe ew we 0 eo UY

People v. Bray,

ae Seeecee See CLOTS) és 6 wee 8 8 8

People v. Bryan,

3 Cal.App. 3d 327 (1970) a ° se e 2 -— . ° 25

People v. Burke,

47 Cal.2d 45 (1956) o e © . ° . ° ° 2 ° 15

People v. Coyle,

88 Cal.App. 2d 967 (1948) ° . . e * e o ” 15

People v. Davis,

Se Geasemeecaee 242 ClSTS}s « 0 co eo ee el

People v. Holcomb,

game Metseu 393 TAich. i975) . . «22s Se

People v. Howard,

6S Cal.App.de 243 (1976). «© «© «© eo eo 6 8

People v. Jesse

159 Cai .Rptr. 654 (1979) - * e e 7 . e 7 9

People v. Loomis,

aon Geaemeeeee. aoe (1963) « «© 6+ we so se oe

People v. McDaniel,

Be Geebawe Bee SEE Ols «+ «¢ S&S eo te ee ee tle

People v. Municipal Court (White),

Se Coesmeeae fee (LOTS). « «& 6 eo we ew eo URS

People v. Norton,

S80 Cal.App.3d Supp. 14 (1978) ...«.e««. 12

TABLE OF AUTHORITIES

People v. Peters,

aa CaiesG 749 (1978). « « oo

Powell v. Texas,

oan Gams Che Skee) «& + 6 © 6 se

Raley v. Ohio,

a60°-G.8. 22 (A999) « © 6 © ©

Ramirez v. Brown,

Aa @OA.90 Ghd -(iPF4) a « « eo 8

Ramirez v. Brown,

» COnsow ape Chea) 2 @¢ 6 6 te

Richardson v. Ramirez,

416 U.S. 26 (19746). « « « co oe

Standefer v. United States,

190 @.Ct. 2999 (i960) .« « « « «

Sumner v. Mata,

BOE Gees FOG LAPekls © «& 6 8

United States v. Crow,

439 Fi. 26 1193 (Sth Cir. 1971) .

United States v. Freed,

SGn Wate OGa CAPFR « « & 6 ©

United States v. Quiroz,

449 7.24 563 (7th Cie. 1975}. .

United States v. Sneed,

353 F.Supp. 280 (D.Md. 1973). .

Wainwright v. Sykes,

Sor Uae 12 (Et the 6 6 te

CONSTITUTION, STATUTES AND REGULATIONS

Page

UNITED STATES CONSTITUTION

Amendment 14 2 .

Article I, § 10 28

UNITED STATES STATUTES

Title 18

§ 1257(3) 2

App. § 1202 (a) 7

App. § 1202(a) (1) 29

CALIFORNIA CONSTITUTION

Article II, § l 17

Article II, § 3 18

Article II, § 4 19

CALIFORNIA PENAL CODE

§ 4571 20

§ 12021 2

Witkin, 1 California Crimes (1963 ed.)

pp. 143-144 16

IN THE SUPREME COURT

OF THE

UNITED STATES

October Term, 1980

No. 80-1024

HUEY P. NEWTON,

Petitioner,

Vv.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

OPINIONS BELOW

The unpublished opinion of the Court

of Appeal of the State of California, First

Appellate District, Division Three, filed on

July 28, 1980, is Appendix C to the Petition

for Writ of Certiorari.

On August 27, 1980, the Court of

Appeal denied petitioner's application for a

rehearing.

On October 22, 1980, the California

Supreme Court denied petitioner's application

for a hearing without opinion,

JURISDICTION

The jurisdiction of this Court is

invoked under Title 28, United States Code,

section 1257(3).

STATUTES INVOLVED

United States Constitution, Article

I, section 10 (Ex Post Facto Clause);

United States Constitution,

Amendment Fourteen;

California Penal Code section 12021.

STATEMENT OF THE CASE

The District Attorney of Alameda

County accused petitioner Huey P. Newton of

assault with a deadly weapon and by means of

force likely to produce great bodily injury

and of two counts of possession of a con-

cealable firearm by one previously convicted

of a felony (CT 222-224, 527). A prior

felony conviction for assault with a deadly

weapon was alleged (CT 224-225).

Before trial petitioner moved to

strike the prior conviction from the accusa-

tory pleading as constitutionally invalid (CT

458-459; 482-508). After a hearing the

motion was denied, the trial court declaring

"Il find that the defendant effectively and

knowingly waived his right to an attorney.”

(Aug. 16, 1978 RT 27).

On the afternoon of August 16, 1974,

Preston Callins, a tailor, was found on the

sidewalk outside an Oakland apartment (RT

106-107, 111-112). He had suffered six

depressed skull fractures and about a dozen

lacerations (RT 116-119). Callins was dis-

covered by a neighbor who "couldn't tell who

it was, he was so badly beaten up." (RT

107).

The police were summoned. Callins

told the responding officer that he had gone

*-*»

to petitioner's apartment for tailoring and

angered petitioner, whereupon petitioner had

beaten him on the head with a pistol (RT

182~183, 185).

The victim's fingerprints were found

in petitioner's penthouse apartment (RT 200,

243, 256, 282-285, 288-292), as were several

carpet blood stains consistent with Callins'

blood type, A (RT 120, 237-239, 249-250,

301-302).

A warrant search of petitioner's

apartment disclosed two pistols, a loaded .45

caliber semi-automatic found in a kitchen

drawer (RT 213, 232), and a loaded .357

magnum revolver found in a drawer in the

master bedroom bath (RT 231). The revolver

bore traces of type A human blood and of hair

(RT 211, 299). The wooden grips of the

revolver appeared broken; matching wood chips

were discovered on petitioner's carpet (RT

207, 211-212, 229). Fifty-one .357 rounds,

twenty-one .38 rounds, and six shotgun shells

were found on the bedroom nightstand (RT

233).

It was stipulated that "on or about

the 8th day of October, 1964 in the Superior

Court of California, in and for the County of

Alameda, the defendant Huey Percy Newton was

convicted of a felony." (RT 838).

At trial, victim Preston Callins

claimed his Fifth Amendment privilege against

self-incrimination, was granted immunity, but

persisted in his refusal to testify although

jailed for contempt during petitioner's trial

(RT 324-338, 341-361, 855).

A jury found petitioner guilty of

two counts of possession of a concealable

firearm by a person previously convicted of a

felony but not guilty of the charged assault

(CT 649-653).

Thereafter, the trial court concluded

that petitioner was ineligible for probation

as a matter of law (RT 1246-1247), and sen-

tenced him to state prison for two years (CT

923). On appeal, the State conceded that

petitioner was eligible for probation. The

Court of Appeal agreed and remanded the case

to the trial court for resentencing.

Petition, lla-1l2a.

ARGUMENT

PETITIONER'S CONVICTION IS

CONSISTENT WITH FOURTEENTH

AMENDMENT DUE PROCESS.

Shuttling between procedural and

substantive due process, petitioner insists

that his conviction offends the Fourteenth

Amendment because it was “obtained with no

notice to him that his conduct was

proscribed, affirmative acts by the State to

lead him to believe that his conduct would be

permitted, and finally with no requirement of

proof of intent despite California's require~

ment of such." Petition, 8.

Recognizing that "this Court has

never articulated a general constitutional

doctrine of mens rea," Powell v. Texas, 392

U.S. 514, 535 (1968) (plurality opinion),

petitioner maintains that although "it has

been specifically held that [California Penal

Code] § 12021 requires proof of wrongful

intent," he was convicted "without proof of

any knowledge or wrongful intent." Petition,

7-8. His argument says the same thing three

different ways; it is premised upon a

misapprehension of federal and state law.

Federal cases interpreting 18 U.S.C.

App. § 1202(a) establish that possession of

firearms generally may be punished without

regard to mens rea. "(W]hen a statute prohi-

bits possession, mens rea or scienter is not

necessary." United States v. Crow, 439 F.2d

1193, 1195 (9th Cir. 1971), vacated on other

grounds, 404 U.S. 1009 (1972). Accord,

United States v. Quiroz, 449 F.2d 583, 585

(7th Cir. 1975). Cf. United States v. Freed,

401 U.S. 601, 607-610 (1971). “It has been

consistently held that, while a felon must

knowingly possess the gun to be convicted, he

need not be aware that such possession is

illegal [Citations], nor even be aware he is

a felon... ." United States v. Sneed, 353

F.Supp. 280, 284 (D.Md. 1973). From these

decisions we infer that a state may, constitu-

tionally, penalize possession of concealable

firearms by convicted felons without proving

unlawful intent. Broadly speaking,

California does so: "'The only knowledge

required is knowledge of the character of the

object possessed; knowledge that the

possession is illegal is unnecessary.'"

People v. Howard, 63 Cal.App.3d 249, 256, 133

Cal.Rptr. 689, 693 (1976).

However, petitioner claims that he

was denied the benefit of an earlier deci-

sion, People v. Bray, 52 Cal.App.3d 494, 124

Cal.Rptr. 913 (1975), which demands proof of

wrongful intent. Petition, 8. He does not

Claim invidious discrimination in the appli-

cation of state law. On the contrary, he

urged the California Supreme Court to grant

his petition for hearing because another

court in another case had committed the same

state law error.2/ Good faith misapplication

of state law does not, at course, state a

Fourteenth Amendment claim. Beck v.

Washington, 369 U.S. 541, 554-555 (1962).

The basis of petitioner's mens rea

argument is his misunderstanding of the scope

of Bray. While section 12021 does not so

nearly impose strict liability as does

—_— — —_——

1. "However, the fact that the [People

v.] Jesse [159 Cal.Rptr. 654 (1979)] court

and the Court of Appeal in this case pursued

an identical approach within a short period

of time with reference to the same problem

indicates that the issue is a recurring one

productive of great confusion and in need of

resolution by this Court." Petition for

Hearing, 9.

10.

federal law, Bray does not go nearly so far

in recognizing lack of knowledge as an affir-

mative defense as petitioner would have this

Court believe. In Bray the defendant pre-

viously had been convicted in Kansas for a

crime the California prosecutor was uncertain

constituted a felony. Thereafter, upon full

disclosure of the circumstances of the Kansas

conviction, Bray was registered by the Bureau

of Collection and Investigative Services as a

guard or patrolman and permitted to purchase

a gun. In short, the State told Bray he

could do the very act later prosecuted:

possess a gun. Cf. Cox v. Louisiana, 379

U.S. 595, 571 (1964); Raley v. Ohio, 360 U.S.

423, 438 (1959). In permitting Bray to

assert a mistake of fact defense, the court

narrowly confined its holding:

"This decision should not be

interpreted to mean instructions on

ll.

mistake or ignorance of fact and

knowledge of the facts are required

every time a defendant claims he did

not know he was a felon. Here Bray

had been convicted in Kansas of what

for California is an unusual crime,

"accessory after the fact’ and even

the prosecutor claimed difficulty in

knowing whether it was a felony. In

addition, Bray on more than one

occasion had been led to believe by

state regulatory agencies he was not

a felon: he was allowed to vote, he

was registered in an occupation

allowing him to carry a gun, and he

was allowed to buy and register the

gun. Throughout the trial. Bray

laid the proper foundation for the

instructions and he requested them.

It is only in very unusual cir-

cumstances such as these that the

12.

giving of these instructions is

necessary." 52 Cal.App.3d at 499;

126 Cal. Bete. at Sit,

As did the court reviewing

appellant's conviction, other California

courts have perceived the narrow limits of

Bray. People v. Howard, supra; People v.

Norton, 80 Cal.App.3d Supp. 14, 146 Cal.Rptr.

343 (1978). Under California cases the

ignorance of fact or law defense, which

introduces the element of wrongful intent, is

available only when the defendant shows

justifiable reliance upon the acts of the

State. See People v. Norton, 80 Cal.App.3d

Supp. at 24; 146 Cal.Rptr. at 349.

A state may not punish the very con-

duct which it has induced by its affirmative

acts, reasonably relied upon by the accused,

See Kratz v. Kratz, 477 F.Supp. 463 (E.D.Pa.

1979) and cases collected therin. Petitioner

13.

points to several state actions which he

urges justified his belief that he was no

longer a convicted felon and, therefore, was

permitted to possess concealable weapons.

Given the reasoning of the appellate court

below, we consider each such affirmative

action. It is appropriate to note, however,

that petitioner presented the bulk of these

matters not as a defense but in mitigation of

sentence. The trial court - mistakenly -

would have permitted the detense

Petitioner claims justifiable

reliance upon two judicial orders striking

his prior conviction from indictments. The

2. At sentencing the trial judge

declared:

"I can't allow it, because, as you know,

that was a defense. He could have said

Judge Cook told me that that had been set

aside ... . I noticed during the

course of trial that Mr. Garry was in the

courtroom. I thought he was going to

talk about that. But he was not called

as a witness." RT 1226. See also RT

1227.

14,

first occurred in 1971, following two pre-

vious orders refusing to strike the prior

from the same murder indictment. On its

face, Judge Cook's 1971 order striking the

prior does no more than excise it from an

accusatory pleading.

The order declared:

"defendant may have waived

his right to counsel at that time

time without an intelligent con-

ception of the consequences of

his act."

* * *

"For this reason the charge

of prior conviction must be stric-

ken from the indictment."

California Law had long held, as it

does today, that "a court order finding a

prior conviction to be constitutionally

invalid and striking the alleged prior

conviction from the accusatory pleading ina

15.

pending criminal proceeding does not have the

effect of wiping out the prior judgment of

conviction . .." Gonzales v. Municipal

Court, 32 Cal.App.3d 706, 711, 108 Cal.Rptr.

612 (1973). Accord, People v. Coyle, 88

Cal.App.2d 967, 973-974, 700 P.2d 546, 551

(1948), quoted in People v. Burke, 47 Cal.2d

45, 51, 301 P.2d 241, 245 (1956).

In 1978, a magistrate dismissed a

charge of possession of a firearm by an ex-

felon, brought against petitioner. The

magistrate erroneously believed himself bound

by Judge Cook's 1971 order. Petition, 4.

Apart from the fact that the magistrate

lacked jurisdiction to act, as a matter of

state law, People v. Peters, 21 Cal.3d 749,

581 P.2d 651 (1978); People v. Municipal

Court (White), 88 Cal.App.3d 206, 151 Cal.

Rptr. 861 (1979), this “affirmative state

action" occurred some four years after the

possession charged in this case.

16.

Attributing to judicial orders sig-

nificance far beyond that attached by state

law is neither reasonable nor justifiable re-

liance. That petitioner may have been mis-

informed by his attorney, Charles Garry,

about his right to possess weapons, does not

alter the situation. It is hornbook law in

California that

"The defense of action taken in

good faith, in reliance upon the advice

of a reputable attorney that it was law-

ful, has long been rejected. The theory

is that this would place the advice of

counsel above the law, and would also

place a premium on counsel's ignorance

or indifference to the law." Witkin,

1 California Crimes, 143-144 (1963 ed.).

For due process purposes, it is important to

note that the rigor of this rule is relaxed

by the availability of two remedies, motion

to vacate and writ of habeas corpus, by which

17.

petitioner could have attacked the validity

and continued existence of his prior convic-

tion. Petitioner's statement that he “could

not have known, even after exercising the

utmost care," of his ex-felon status is sim-

ply untrue. Petition, 6.

Petitioner emphasizes that since

1971 the State has permitted him to vote.

The action of the voting registrar afforded

no basis for the belief that the State no

longer regarded petitioner as a convicted

felon. For over a century California

Constitution, Article II, Section 1 provided

", . . no person convicted of any infamous

Crime . .. shall ever exercise the privilege

of an elector in this State." Until 1966,

the disqualifying language “infamous crime"

was judicially interpreted to include convic-

tion of any felony. Flood v. Riggs, 80

Cal.App.3d 138, 145, 145 Cal.Rptr. 573, 576

(1978). In Otsuka v. Hite, 64 Cal.2d 596,

18.

414 P.2d 412 (1966), however, under the felt

compulsion of the Fourteenth Amendment Equal

Protection Clause, the California Supreme

Court construed the State constitutional pro-

vision as disenfranchising only those con-

victed of "crimes involving moral corruption

and dishonesty .. . [constituting] a threat

to the integrity of the elective process." 64

Cal.2d at 599; 414 P.2d at 414. Assault

with a deadly weapon, petitioner's prior of-

fense, hardly fell within that category. In

March, 1973, our state high court re-examined

its Otsuka interpretation of the constitu-

tional provision (substantially re-enacted as

Article II, section 3), in light of evolving

federal equal protection principles, and

invalidated the suffrage bar as to former

felons. Ramirez v. Brown, 9 Cal.3d 199, 597

P.2d 1345 (1973). In June, 1974, this court

reversed that decision. Richardson v.

Ramirez, 418 U.S. 24 (1974). The California

19.

Supreme Court found this court's remand moot

in light of an intervening amendment of the

state charter, Ramirez v. Brown, 12 Cal.3d

912, 528 P.2d 378 (1974), which now provides

in Article II, section 4:

"The Legislature shall prohibit

improper practices that affect elec-

tions and shall provide for the dis-

qualification of electors while men-~

tally incompetent or imprisoned or on

parole for conviction of a felony."

Ex-felons are enfranchised in California.

Petitioner confuses ballots and bul-

lets; the voting registrar did not tell peti-

tioner he could carry 4 gun or even that he

no longer was an ex-felon, but merely that a

conviction for assault with a deadly weapon

did not threaten the integrity of the elec-

tive process.

Petitioner alludes to the decision

of the Superintendent at the California

20.

Medical Facility at Vacaville to permit him

to visit an inmate. Since both the applic-

able state statute (California Penal Code

section 4571) and the then-effective prison

administration regulation (Director's Policy

2705) permitted ex-felons to visit at the

discretion of the warden or superintendent,

the superintendent's determination did not

reflect upon petitioner's status as a con-

victed felon.

Finally, petitioner complains that

he could have been, but was not, charged with

violating Penal Code section 12021 in 1972

and in 1974. The record does not disclose

the basis on which the prosecutor exercised

his discretion in either case. Assuming that

the charging deputy district attorney was

aware of petitioner's 1964 conviction, it may

have been thought that the circumstances of

the 1972 offense warranted only a misdemeanor

charge, as was alleged. Nor does the record

21.

illuminate the 1974 charging determination

which may have involved a tactical decision

to avoid encouraging a compromise verdict.

The reconsideration of the accusation in the

instant case is not attributable to the

intervening decision in Faretta v.

California, 442 U.S. 806 (1975), but to the

change in petitioner's fugitive status.

Given the variety of factors influencing pro-

secutional discretion in charging crimes, a

state cannot be constitutionally compelled to

choose between immediately condemning conduct

or forever condoning it. Finally, it is dif-

ficult to regard seriously petitioner's claim

of reliance on the omissions of the district

attorney. After all, the admitted 1972

possession occurred before the 1972 or 1974

charging decisions.

We find nothing in the actions of

the State of California which estop it from

penalizing petitioner's present possession.

22.

Nor do we find such estoppel constitutionally

compelled. Our view is reinforced by the

availability of judicial procedures whereby

petitioner could have contested the continued

validity of his prior conviction.

THE CONTOURS OF CALIFORNIA'S

COLLATERAL ESTOPPEL DOCTRINE

ARE NOT DICTATED BY THE

FEDERAL CONSTITUTION

For the first time petitioner urges

that his collateral estoppel theory, rejected

as a matter of state law, must be accepted as

constitutionally compelled .2/ At the outset

of petitioner's August 16, 1978, hearing on

his motion to strike the prior conviction,

the trial judge, referring to the 1971 ruling

striking the prior, inquired:

3 An examination of petitioner's Open-

ing Brief (28-33) and Reply Brief (39-53) in

the California Court of Appeal and his Peti-

tion for Hearing (20-27) in the California

Supreme Court, reveals that this argument has

only now acquired federal overtones.

23.

"Are you saying that in any way is

res judicata in this action?

Defense counsel replied:

"MR. STEEL: I am not saying that

there is res judicata applicable to a

motion to strike at all. I don't

think that it applies to the prosecu-

tion or to the defense and I think

that Gonzales versus Municipal Court

establishes that." August 16, 1978

RT 1-2.

Having lost his trial court chal-

lenge to the constitutional validity of the

1964 conviction, on appeal petitioner sought

refuge in the collateral estoppel doctrine

which, he belatedly claimed, prevented recon-

sideration of the 1971 order. Petitioner's

failure to assert the bar of res judicata in

the trial court could have been held a

waiver. Dillard v. McKnight, 39 Cal.2d 209,

209 P.2d 387 (1949), Cf. Wainwright v. Sykes,

24.

433 U.S. 72 (1977). Instead, the California

Court of Appeal rejected his claim on the

merits as a matter of state law. Petition

7a. Cf. Sumner v. Mata, 101 S.Ct. 764, 769

(1981). However, petitioner did not claim in

that or any state court that "principles of

double jeopardy and due process" Petition, 9,

prevented use of his prior conviction as an

element of the present offenses. That fail-

ure ends inquiry here. Beck v. Washington,

369 U.S. 541, 550 (1962); Cardinale v.

Louisiana, 394 U.S. 437, 438 (1969).

The notion that the federal Consti-

tution requires that states accord res judi-

cata effect to motions to strike prior con-

victions from specific pleadings is start-

ling. Convicted in 1964 of assault with a

deadly weapon, petitioner was tried three

times on felony charges under a 1967 indict-

ment. Each time petitioner moved to strike

his prior conviction; he failed twice,

25.

succeeding only in his last attempt, in 1971. |

Petition, 5a-6a. Then the court ordered that

the "prior conviction must be striken from

the indictment" because petitioner “may” have

ineffectively waived counsel. When

petitioner's third trial ended in a hung

jury, the prosecutor determined not to pro-

ceed further against petitioner.

Because under state law the order

striking the prior from the indictment had no

significance apart from the proceeding in

which it was entered, the prosecutor had no

reason to appeal. Moreover, existing state

decisional law held that by reason of the

mistrial, the striking order was unappeal-

able. People v. Bryan, 3 Cal.App.3d 327,

339, 83 Cal.Rptr. 291, 299 (1970). Had such

an appeal been pursued, petitioner with good

reason could have claimed harassment by an

unsuccessful prosecutor insisting that an

appellate court resolve a by-then moot

26.

question.

Petitioner now contends that the

county prosecutor was forced to appeal or to

bind the state forever for all purposes by

the trial court's ruling on his motion to

strike. The absurdity of this suggestion is

evident considering that a principal purpose

of the collateral estoppel doctrine is ju-

dicial economy. Standefer v. United States,

100 S.ct. 1999, 2006-2007 (1980). California

appellate courts have more urgent business

than deciding whether trial courts have cor-

rectly striken priors from discontinued prose-

cutions.— Worse, the principal goal of the

res judicata doctrine, to spare parties un-

necessary litigation, would be frustrated.

4, The substantial impact in state

courts of petitioner's proposed constitu-

tional rule is reflected in statistics re-

garding invalidated priors supplied in People

v. Davis, 94 Cal.App.3d 215, 220 n. l, 156

Cal.Rptr. 395, 399 n. 1 (1979).

27.

An essential element of the res

judicata or collateral estoppel doctrine is

identity of issues. Hight v. Hight, 67

Cal.App.3d 498, 136 Cal.Rptr. 685 (1977).

Underlying this requirement is an equal

dignities motion: conclusive effect should

not be given a judgment where the incentive

to litigate the issue was substantially less

than in the present proceeding. It is unfair

to attach consequences to a judgment far ex-

ceeding those foreseen by the litigants at

the time. A prosecutor who in 1967 alleges a

prior conviction for sentence enhancement

purposes has much less reason to challenge a

striking order than does the prosecutor who

in 1977 seeks to prove the stricken prior as

an element of the charged offense. Cer-

tainly, neither petitioner nor the state had

reason to believe in 1971 that Judge Cook's

order, contrary to two earlier rulings, would

be res judicata. Indeed, petitioner did not

28.

think that as late as August 16, 1978, when

in unequivocal terms defense counsel dis-

avowed reliance on the res judicata doctrine.

The federal Constitution does not so

far intrude into the administration of state

courts as to dictate what subsequent effect

must be given to orders striking prior con-

victions from accusatory pleadings.

III

PETITIONER'S CONVICTION DOES

NOT REST UPON THE RETROACTIVE

APPLICATION OF DECISIONS OF

THIS COURT

United States Constitution, Article

I, section 10, forbids state legislatures

from enacting ex post facto laws, which

retroactively enlarge criminal liability or

increase punishment. "If a state legislature

is barred by the Ex Post Facto Clause from

passing such a law, it must follow that a

State Supreme Court is barred by the Due

Process Clause from achieving precisely the

29.

Same result by judicial construction." Bouie

v. City of Columbia, 378 U.S. 347, 353-354

(1964). Petitioner contends that his convic-

tion rests upon the state courts’ retroactive

application of this Court's decisions in

Faretta v. California, 422 U.S. 806 (1975)

and Lewis v. United States, 100 S.Ct. 915

(1980). The claim is unabashed nonsense.

Lewis held that 18 U.S.C. App. §

1202(a) (1) "prohibits a felon from possession

a firearm despite the fact that predicate

felony may be subject to the collateral at-

tack on constitutional grounds." 100 S.Ct.

at 921. Petitioner states that in reaching

the same conclusion under California Penal

Code section 12021, "it is apparent from the

face of the District Court of Appeal decision

that it simply abandoned applicable

California state law in light of Lewis.”

Petition, 13. This misrepresentation insults

even the casual reader of the opinion below.

30.

Instead of following Lewis, the

Court of Appeal adhered to its own decision,

rendered in 1965 in People v. Loomis, 231

Cal.App.2d 594, 597, 47 Cal.Rptr. 124, 126

(1965). The Court of Appeal held as follows:

"Under appellant's argument Judge

Pulich was bound to find the 1964 con-

viction constitutionally invalid be-

Cause of the earlier rulings of Judges

Cook and Kelsay. However, this argu-

ment presupposes that a defendant

charged with a violation of Penal

Code section 12021 may raise as a

defense the validity of the under-

lying prior felony conviction. A

defendant may not raise such a de-

fense. ‘Appellant's status at the

time he possessed the gun is the

Critical issue.’ (People v. Loomis

(1965) 231 Cal.App.2d 594, 597;