Appendix — Plummer v. Pettaway

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JAMES PETTAWAY, ) No. C 89 2601 SC

)

Petitioner, .) ORDER RE

) PETITIONER’S WRIT

v. ) OF HABEAS CORPUS

)

CHARLES PLUMMER, )

Sheriff of )

Alameda County, )

)

Respondent. )

)

I. Introduction

Petitioner currently is awaiting retrial for the

murder of Karen Taylor. He was convicted of her murder

in the first degree in an earlier trial, but the state court of

appeals reversed the conviction and remanded it for

retrial. Petitioner now brings a writ of habeas corpus,

claiming that his retrial would violate the fifth

amendment’s proscription against double jeopardy.

Il. Facts

It was established at Petitioner’s trial that on May

1, 1981 Petitioner and his girlfriend Lowana Walker were

at the home of the deceased Karen Taylor. Another

person, Michael Seals, was also present. Sometime later,

Ms. Walker handed Petitioner a gun with which he shot

Mr. Seals in the back of the neck. Mr. Seals then fainted,

but when he regained consciousness he saw Petitioner and

Ms. Walker leaving through the front door. Ms. Taylor

subsequently was found dead in the bathroom with two

bullet holes in her head. People v. Pettaway, 206

Cal.App.3d 1312 (1988).

Petitioner was charged and convicted of one count

of murder and one count of attempted murder. At trial

the prosecution tried the case on the theory that

Petitioner had personally shot Mr. Seals and Ms. Taylor.

The jury initially was not given an instruction on aiding

and abetting. During the third day of deliberations,

however, the jury requested and received an instruction

from the court regarding aiding and abetting.

With respect to both charges, the jury was also

given sentence enhancement instructions to determine if

Petitioner had personally shot the gun or inflicted great

bodily injury, or both. Cal. Pen. Code $§ 12022.5, 12022.7.

With respect to the attempted murder charge the jury

found them both to be true; with respect to the murder

charge, however, the jury found them to be untrue.

On appeal, the court of appeals reversed

Petitioner’s murder conviction because it determined that

the aiding and abetting instruction given to the jury

constituted reversible error.

2,

On remand, Petitioner moved to preclude the

prosecution from proceeding on a theory that Petitioner

shot Ms. Tayior and from referring to Petitioner as the

actual killer. Petitioner argued that because the jury had

found the sentence enhancements to be untrue with

respect to the murder charge, the doctrines of collateral

estoppel and double jeopardy barred the prosecution from

advancing a theory that Petitioner shot Ms. Taylor. The

trial court agreed with Petitioner and because the

prosecution said it had insufficient evidence to proceed to

trial solely on an aiding and abetting <*heory, the trial

judge dismissed the murder count against Petitioner.

On appeal, however, the court reversed the trial

court, holding

that where a defendant has been convicted

of first degree murder at his first trial and

that conviction is reversed on appeal because

of instructional error, the defendant may be

retried as the murder perpetrator despite

negative jury findings, at the first trial, on

the personal use of handguns and personal

infliction of great bodily injury enhancement

allegations.

Pettaway, 206 Cal.App.3d at 1315. The California

Supreme Court denied review of the case.

Petitioner now petitions this Court for a writ of

habeas corpus, claiming that a retrial on the theory that

he shot Ms. Taylor would violate the Fifth Amendment’s

proscription against double jeopardy.

Prey am

Il. Analysis

A. Timeliness of the Petition

Although normally federal courts may not interfere

with pending state criminal proceedings, Younger v. Harris,

401 U.S. 37 (1971), a writ of habeas corpus may issue to

prevent a retrial that would violate the Double Jeopardy

Clause. Justices of Boston Municipal Court v. Lydon, 466

U.S. 294, 300-302 (1984). In this case, Petitioner claims

that a retrial under the legal theory that he shot

Ms. Taylor would violate the Double Jeopardy Clause.

Although it is theoretically possible that Petitioner could

be tried solely on an aiding and abetting theory, thus

avoiding any double jeopardy concerns, because the

prosecution has made it clear that it only will go to trial

if it can proceed on the theory that Petitioner may have

shot Ms. Taylor, it is appropriate for this Court to rule on

Petitioner’s request for a writ.

B. Double Jeopardy and Collateral Estoppel

The Fifth Amendment’s Double Jeopardy Clause

states that no person shall “be subject for the same

offense to be put in jeopardy of life or limb." U.S. Const.

amend. V.

The underlying idea, one that is deeply

ingrained in at least the anglo-American

system of jurisprudence, is that the state with

all its resources and power should not be

allowed to make repeated attempts to

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convict an individual for an alleged offense,

thereby subjecting him to embarrassment,

expense and ordeal and compelling him to

live in a continuing state of anxiety and

insecurity, as well as enhancing the

possibility that even though innocent he may

be found guilty.

Green v. United States, 355 U.S. 184 (1957).

In Ashe v. Swenson, 397 U.S. 436 (1970), the

Supreme Court opined that the constitutional guarantee

against double jeopardy comprises the doctrine of

collateral estoppel. “Collateral estoppel’ . . . 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. . . ."

397 US. at 443.

When considering a collateral estoppel claim it is

necessary for a court to determine if a prior rational jury

could have "grounded its verdict on an issue other than

that which the defendant seeks to foreclose from

consideration. This inquiry ‘must be set in a practical

frame and viewed with an eye to all the circumstances of

the proceedings.” 397 US. at 444.

C. Discussion

With the foregoing principles in mind, the court

turns to the circumstances of this case. Under California

law, the direct perpetrator of a crime and an aider and

abettor are equally guilty. People v. Beeman, 35 Cal.3d

547, 554-55 (1984). Accordingly, Petitioner argues that

g

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the jury must have returned its guilty verdict on the

murder charge against him either because it believed he

personally shot Ms. Taylor or because it believed he only

aided and abetted in her killing. Because the jury

determined that the sentence enhancements were untrue,

however, Petitioner concludes that the jury must have

convicted him on an aiding and abetting theory.

The state argues that the jury’s verdict does not

mean necessarily that the jury decided definitely that

Petitioner did not shoot Ms. Taylor. Rather, according to

the state, the "jury must have had an unresolved doubt or

a reasonable doubt as to whether petitioner was the

actual killer or an aider and abettor, but found beyond a

reasonable doubt that he was one or the other."

Memorandum of Points and Authorities in Support of

Answer to Petition for Writ of Habeas Corpus, 14-15. If

this were the case, according to the state, then the jury’s

enhancement finding would not imply that it decided

definitively that Petitioner did not personally shoot

Ms. Taylor.

The fact that the jury requested an aiding and

abetting instruction after three days of deliberation

certainly buttresses Petitioner’s position. That fact

coupled with the fact that the jury found the sentence

enhancements to be untrue could cause a reasonable

person to conclude that the jury believed the Petitioner

did not shoot Ms. Taylor, but only aided and abetted in

her murder. Double jeopardy and collateral estoppel,

however, are not domains for speculation.

As noted earlier, this Court’s inquiry must be done

in a "practical frame with an eye to all the circumstances

of the proceedings." 397 U.S. at 444. A "practical frame"

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implies eschewing formalism when common sense dictates

otherwise. “[T]he rule of collateral estoppel in criminal

cases is not to be applied with the hypertechnical and

archaic approach of a 19th century pleading book, but

with realism and rationality." 397 U.S. at 444.

The inquiry this court must make is whether there

is another issue upon which the jury could have grounded

its verdict other than the one petitioner is attempting to

foreclose. If another issue possibly could have been

considered, then Petitioner’s collateral estoppel claim fails.

Petitioner argues that the jury grounded its verdict

on the finding that he did not use the gun, i.e., that he

only aided and abetted in Ms. Taylor’s killing. The

determination that Petitioner did not personally shoot

Ms. Taylor is the "issue" which Petitioner seeks to

foreclose at trial. Thus, if the court finds that the jury’s

verdict did not rely necessarily on this determination,

collateral estoppel does not foreclose the adjudication of

that determination anew at retrial.

As the state articulates in its memorandum, the

jury was presented with an either/or situation where it was

not necessary to choose between the alternatives to bring

back a guilty verdict. To find Petitioner guilty of first

degree murder the jurors merely had to find beyond a

reasonable doubt that Petitioner either killed Ms. Taylor

or aided and abetted in her killing; it did not have to

decide which of the two alternatives was fact. It only had

to determine as a fact that one of the two alternatives

occurred, without choosing between the two.

Consequently, when the jury found the sentence

enhancement to be untrue, it did not determine

necessarily that Petitioner did not kill Ms. Taylor; it could

ahaa beat Maer lh aaa

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have decided that it was not sure of that fact beyond a

reasonable doubt, but concomitantly not have intended to

limit the verdict’s basis solely to the aiding and abetting

theory. That is, in concluding only that Petitioner either

killed Ms. Taylor or aided and abetted in her murder, the

jury was not obligated to find beyond a reasonable doubt

that he personally used the gun. Thus, it is possible that

the verdict, when considered as a whole, did not rely on

the determination that Petitioner did not personally kill

Ms. Taylor, but was grounded on a determination that

Petitioner either personally shot Ms. Taylor or aided and

abetted in her killing, without deciding between the two

alternatives./ |

If the court were to accept Petitioner’s argument it

would be abandoning its responsibility to decide this case

in a “practical frame." The court must look beyond the

isolated sentence enhancement findings, and consider all

the circumstances of the verdict. When this is done, it is

clear to the court that the sentence enhancement findings

should not invoke collateral estoppel and prevent

Petitioner from being retried on the theory that he

personally shot Ms. Taylor.

1. Using simpler terms, the jury’s reasoning could have been as

follows: If (A or B) the Defendant is guilty. We know (A or B)

occurred. Therefore, Defendant is guilty. We do not know, however,

that A alone occurred; we also do not know that B alone occurred.

Therefore, we cannot conclude that A alone is true or that B alone

is true.

Ill. Conclusion

In accordance with the foregoing, Petitioner’s writ

of habeas corpus is hereby DENIED.

IT IS SO ORDERED.

Dated: December 27, 1989.

/s/ SAMUEL CONTI

United States District Judge

APPENDIX C

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-29-

PEOPLE v. PETTAWAY

206 Cal.App.3d 1312; 254 Cal.Rptr. 436 [Dec. 1988]

[No. A037224, First Dist., Div. Two. Dec. 29, 1988.]

THE PEOPLE, Plaintiff and Appellant, v.

JAMES PETTAWAY, Defendant and Respondent.

SUMMARY

Defendant was charged with one count of murder

and a second count of attempted murder in an

information alleging as enhancements personal use of a

handgun (Pen. Code, § 12022.5) and personal infliction of

great bodily injury (Pen. Code, § 12922.7) during the

commission of both offenses. The case was tried on the

theory that defendant was the perpetrator of both

shootings. The jury returned verdicts of guilty for both

the first degree murder and the attempted murder, but

found the enhancement allegations not true as to the

murder. Defendant’s conviction was reversed on appeal

on account of instructional error, and, at retrial, defendant

moved to preclude the prosecutor from proceeding to trial

on a theory that defendant shot the murder victim and

from referring to defendant as the actual killer. The trial

court agreed, on double jeopardy and collateral estoppel

principles, and dismissed the information when the People

declined to proceed against defendant on an aider and

abettor theory. The People appealed. (Superior Court of

Alameda County, No. 73299, Martin N. Pulich, Judge.)

The Court of Appeal reversed the judgment of

dismissal and remanded for trial in accordance with its

-30-

views. The court held that where a defendant has been

convicted of first degree murder at his first trial and that

conviction is reversed on appeal because of instructional

error, the defendant may be retried as the murder

perpetrator despite negative jury findings, at the first trial,

on the personal use of a handgun and personal infliction

of great bodily injury enhancement allegations. The court

further held that double jeopardy principles precluded

defendant’s retrial on the enhancement allegations which

the jury determined in his favor at the first trial. (Opinion

by Benson, J., with Rouse, J." concurring. Separate

concurring and dissenting opinion by Kline, P. J.)

HEADNOTES

Classified to California Digest of Official Reports, 3d

Series

(la-1d) Criminal Lew § 29--Former Jeopardy--Effect

of Reversal on Appeal--Retrial--Murder--

Negative Firearm Use Finding at First Trial.-

-A defendant whose conviction of first degree

murder was reversed on appeal because of

instructional error could properly be retried

as the murder perpetrator, despite negative

jury findings at the first trial on enhancement

allegations that defendant personally used a

handgun and personally inflicted great bodily

injury during the murder. The negative

finding on the enhancements was not

essential to the judgment of conviction of

* Retired Associate Justice of the Court of Appeal sitting

under assignment by the Chairperson of the Judicial Council.

ee ee ee ee ee ee ees a

.

first degree murder at the first trial, did not

impose any finality on the merits, and thus

did not collaterally estop the prosecution

3 from retrying defendant as the perpetrator

i nor preclude the presentation of admissible

evidence to prove that theory of guilt. The

use enhancement was relevant only to

punishment and was superfluous to

determination of the defendant’s guilt or

innocence of murder at the second trial.

{Limitations under double jeopardy

clause of Fifth Amendment upon state

criminal prosecutions--Supreme Court Cases,

note, 67 L.Ed.2d 831. See also Cal.Jur3d

(Rev), Criminal Law, § 2320; Am.Jur.2d,

Criminal Law, § 266.]

(2) Criminal Law § 25--Former Jeopardy--What

Constitutes Jeopardy--Collateral Estoppel.--The

doctrine of res judicata applies to criminal as well

as civil proceedings, and collateral estoppel is not

only a requirement of due process, but included

within the constitutional guaranty against double

jeopardy.

(3) Criminal Law § 480--Judgment--Effect--Collateral

Estoppel.--The doctrine of collateral estoppel is

applicable in criminal cases, and means 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. It bars relitigation of an issue

decided at a previous proceeding if the issue

(4)

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necessarily decided at the previous proceeding is

identical to the one which is sought to be

relitigated, the previous proceeding resulted in a

final judgment on the merits, and the party against

whom collateral estoppel is asserted was a party or

in privity with a party at the prior proceeding.

Criminal Law § 480--Judgment--Effect--Collateral

Estoppel--Purposes.--The purposes justifying

appLcation of the doctrine of collateral estoppel

are: promoting judicial economy by minimizing

repetitive litigations, preventing inconsistent

judgments which undermine the integrity of the

judicial system, and providing repose by preventing

a person from being harassed by vexatious

litigation. In deciding whether the doctrine is

applicable in a particular situation a court must

balance the need to limit litigation against the right

of a fair adversary proceeding in which a party may

fully present his case.

(Sa,b) Criminal Law § 29--Former Jeopardy--Effect of

(6)

Reversal on Appeal-Retrial.--Double jeopardy will

not bar retrial of a defendant who has succeeded

in overturning his conviction. An exception to the

general rule lies where a defendant has been

impliedly acquitted of an offense at the first trial.

The protection of the double jeopardy clause by

its terms applies only if there has been some event,

such as an acquittal, which terminates the original

jeopardy.

Criminal Law § 480--Judgment--Effect--Collateral

Estoppel.--Collateral estoppel is an equitable

concept based on fundamental principles of fairness,

-33-

and means that a party ordinarily may not relitigate

an issue that was fully and fairly litigated on a

previous occasion. It is only applicable where the

issue necessarily decided at the previous trial is

identical to the one sought to be relitigated.

(7) Criminal Law § 29--Former Jeopardy--Effect of

Reversal on Appeal--Sentence--Enhancement

Finding.--Where defendant’s conviction of first

degree murder was reversed on appeal because of

instructional error, and the jury at the first trial

made negative findings on sentence enhancement

allegations of handgun use and personal infliction

of great bodily injury, double jeopardy principles

precluded defendant’s retrial on the enhancement

allegations. A defendant should not be required

to risk being given greater punishment on a retrial

for the privilege of exercising his right to appeal.

COUNSEL

John K. Van de Kamp, Attorney General, Steve White,

Chief Assistant Attorney General, John Sugiyama,

Assistant Attorney General, David D. Salmon, Clifford K.

Thompson, Jr., and Blair W. Hoffman, Deputy Attorneys

General, for Plaintiff and Appellant.

Rene E. Torres, under appointment by the Court of

Appeal, Robert K. Calhoun, Jr., Neoma Kenwood and J.

Bradley O’Connell for Defendant and Respondent.

OPINION

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BENSON, J.--Pursuant to Penal Code section 1238,

subdivision (a)(8), the People appeal from the trial court’s

dismissal of a murder charge against defendant James

Anthony Pettaway. We will reverse the judgment. In

doing so we will disagree with People v. White (1986) 185

Cal.App.3d 822 [231 Cal.Rptr. 569], an opinion rendered

by our colleagues in Division Five of this District. (1a)

We hold that where a defendant has been convicted of

first degree murder at his first trial and that conviction is

reversed on appeal because of instructional error, the

defendant may be retried as the murder perpetrator

despite negative jury findings, at the first trial, on the

personal use of a handgun and personal infliction of great

bodily injury enhancement allegations.

Our summary of the pertinent underlying facts in

this case is taken from an earlier unpublished appellate

decision by Division One of this District following

defendant’s conviction of first degree murder and

attempted murder. On May 1, 1981, defendant and his

girlfriend Lowana Walker were at the home of Karen

Taylor. Another man, Michael Seals, was also present.

At some point, Lowana handed defendant a gun and

defendant shot Michael in the back of the neck. Michael

then fainted. When he regained consciousness, he saw

defendant and Lowana leave through the front door.

Karen’s dead body was later found in the bathroom. She

had been shot twice.

Defendant was charged with one count of murder

and a second count of attempted murder. The

information also alleged as enhancements, personal use of

a handgun (Pen. Code, § 12022.5) and personal infliction

of great bodily injury (Pen. Code, § 12022.7) during the

-35-

commission of both offenses. The prosecution tried the

case on the theory that defendant had been the

perpetrator of both shootings. Neither party requested

and the trial court initially did not give instructions on

aiding and abetting. However, during the third day of

deliberations the jury requested the following: "Please

explain the law concerning complicity, for example, in this

case may the defendant be convicted of murder or

attempted murder without having personally fired the

bullets?" The court, responding to this inquiry, then

instructed in accordance with former CALJIC Nos. 3.00

and 3.01. Thereafter, the jury returned verdicts of guilty

for both the first degree murder and the attempted

murder. With respect to the personal use of a handgun

and great bodily injury allegations, the jury found them to

be true as to the attempted murder but not true as to the

murder.

On appeal, Division One of this court reversed

defendant Pettaway’s murder conviction for Beeman error

(People v. Beeman (1984) 35 Cal.3d 547 [199 Cal.Rptr. 60,

674 P.2d 1318}), ie., that the language of CALJIC 3.01 as

it then existed "removed from the jury’s consideration the

issue of whether appellant shared in the intent to commit

murder." The attempted murder conviction remained

undisturbed.

On remand the public defender, relying principally

on People v. White, supra, 185 Cal.App.3d 822, moved to

preclude the prosecutor from proceeding to trial on a

theory that defendant shot Karen and from referring to

defendant as the actual killer. The public defender argued

that because the jury determined not true _ the

enhancement allegations with respect to the murder

-36-

charge, the principles of res judicata, collateral estoppel

and/or equitable estoppel, double jeopardy and due

process required that result. The trial court, determining

that it was bound by People v. White, supra, 185

Cal.App.3d 822, agreed with the defendant’s position and,

since the prosecution refused to proceed on an aider and

abettor theory, dismissed the murder count against

defendant.

On appeal the People concede that defendant may

not be retried on the enhancement allegations that the

jury found not true. They contend, however, that the trial

court erred in ruling that evidence demonstrating

defendant was the actual perpetrator in Karen’s killing

could not be used when retrying the murder count. They

argue that People v. White, supra, 185 Cal.App.3d 822, was

wrongly decided or at least distinguishable from the ruling

below.

During the hearing of defendant’s motion it was the

prosecutor’s position that he could not in good faith urge

any theory to the trier of fact other than that defendant

had shot and killed Karen. The prosecutor recited to the

court the substance of the evidence available to support

his position. A summary of that offer is as follows:

Michael’s testimony that he saw defendant

"secure possession of a handgun and walk

behind him almost immediately preceding

Michael being shot from behind;"

Michael’s testimony that "he saw no other

persons in the room, no other persons in the

house other than himself, Karen .. .

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[Lowana] . . . and the defendant"; that

“when he was shot . . . he was looking at

Karen Taylor who was alive and well and

[Lowana] Walker";

ballistic testimony that “the expended

cartridges found in the house were .32

caliber Winchester Western slugs. When

[defendant] was arrested . . . in the state of

Texas ... he was found in possession of .32

caliber Winchester Western ammunition,

seven cartridges to be exact";

testimony from defendant’s employer that ".

. . during the time of this particular incident

. . . [defendant] acknowledged being in

possession of [the employer’s] gun which, in

fact, was the murder weapon";

circumstantial evidence ". . . that the same

weapon [used to shoot Michael] was also the

weapon that killed Karen Taylor’;

that the "cartridges that [defendant's

employer] kept with the gun, . . . some of

that ammunition was missing. . .";

that Lowana Walker, had given a tape-

recorded statement to the Oakland police

department wherein she stated: "that she was

present, and saw [defendant] go behind

Michael Seals and shoot him from behind

L }

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... that [defendant] then chased Karen

Taylor into a back room. [Lowana]

remained in the dining room. . . she heard

approximately four shots and after

approximately 10 or 15 minutes of silence

. .. She went to the bathroom and saw the

defendant . . . standing over Miss Taylor’s

body with the . . . gun";

that while Lowana “had invoked the Fifth

Amendment privilege" at the preliminary

hearing and during the first trial, she "is

presently available and willing to testify in

accordance with the taped statement... ."

Because we have profound disagreement with the

holding reached by our colleagues in People v. White,

supra, 185 Cal.App.3d 822, a case concerning the identical

issue we are called upon to address, it is appropriate to

begin our discussion with a review of the White decision.

The case involved a drug-related double murder.

Defendant White was apprehended, tried and convicted of

two counts of first degree murder and firearm possession.

However, the jury found the firearm-use allegations not

true. An appeal followed and the murder convictions

were reversed due to the improper admission of hearsay

testimony. The case was retried and the jury convicted

White on both counts of first degree murder. White

again appealed contending that the principles of collateral

estoppel and res judicata prohibited his prosecution in the

second trial as the actual killer. He argued that the trial

court committed error in denying his motion to prohibit

-39-

the prosecution from proceeding on the theory that he

fired the fatal shots.

Division Five of this court agreed with White’s

position and, in analyzing the problem, stated: "The

doctrine of collateral estoppel prevents the relitigation of

issues decided between the parties in earlier proceedings

upon which a judgment on the merits of the issues has

become final. [Citations.] In the instant case, the issue of

appellant’s use of a gun in the commission of these

particular homicides was litigated between the parties and

decided finally in appellant’s favor in the first trial. In the

second trial the prosecution sought to relitigate the same

issue. It argued that appellant was guilty of murder if he

was ‘the actual perpetrator, that it was Mr. Willie White

out there who pulled the trigger on one of the firearms or

both of them that killed these people.’ Appellant’s use

of a gun was resolved adversely against the prosecution in

the first trial, and should not have been relitigated in the

second. The prosecution is not prevented from

proceeding on the theory that appellant supplied the

weapons or otherwise participated as a principal. (See

Pen. Code, 31.) What it cannot do is relitigate the fact

of appellant’s use of a gun in these homicides, since that

issue was decided against it in the first trial. Principles of

double jeopardy and due process which incorporate the

doctrine of collateral estoppel preclude such action."

(People v. White, supra, 185 Cal.App.3d at pp. 827-828.)

(2) As acknowledged in White, ". . . the doctrine

[of res judicata] applies to criminal as well as civil

proceedings. ... [Sealfon v. United States (1948) 332 US.

575, 578 [92 L.Ed. 180, 68 S.Ct. 237]] . . . [and] collateral

estoppel [is] not only a requirement of due process, but

-40-

included within the ‘Fifth Amendment’s guarantee against

double jeopardy.’ [Ashe v. Swenson (1970) 397 U.S. 436,

443-445.]" (People v. White, supra, 185 Cal.App.3d at pp.

826-827.)

(3) As explained in Ashe v. Swenson (1970) 397

US. 436 [25 L.Ed.2d 469, 90 S.A. 1189], “collateral

estoppel’ is an awkward phrase, but it stands for an

extremely important principle in our adversary system of

justice. 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." (Jd. at p. 443 [25

L.Ed.2d at p. 475].)

"Traditionally, collateral estoppel has been found to

bar relitigation of an issue decided at a previous

proceeding ‘if (1) the issue necessarily decided at the

previous [proceeding] is identical to the one which is

sought to be relitigated; (2) the previous [proceeding]

resulted in a final judgment on the merits; and (3) the

party against whom collateral estoppel is asserted was a

party or in privity with a party at the prior [proceeding].”"

(People v. Sims (1982) 32 Cal.3d 468, 484 [186 Cal.Rptr.

77, 651 P.2d 321], quoting People v. Taylor (1974) 12

Cal.3d 686, 691 [117 Cal. Rptr. 70, 527 P.2d 622].)

(4) The purposes justifying application of the

doctrine of collateral estoppel have been defined as: (1)

promoting judicial economy by minimizing repetitive

litigation; (2) preventing inconsistent judgments which

undermine the integrity of the judicial system; and (3)

providing repose by preventing a person from being

harassed by vexatious litigation. (People v. Taylor, supra,

12 Cal.3d at p. 695.) Taylor, citing Teitelbaum Furs, Inc.

-41-

v. Dominion Ins. Co. Lid. (1962) 58 Cal.2d 601, 605 [25

Cal.Rptr. 559, 375 P.2d 439], also observed: “In deciding

whether the doctrine is applicable in a particular situation

a court must balance the need to limit litigation against

the right of a fair adversary proceeding in which a party

may fully present his case." (Id. at p. 695.)

In reaching its conclusion that collateral estoppel

precluded retrial of the defendant as the perpetrator, the

White court placed considerable reliance on People v.

Asbury (1985) 173 Cal.App.3d 362 [218 Cal.Rptr. 902], a

case which utilized the doctrine of "collateral estoppel" to

bar the retrial of a defendant on a felony murder theory.

We believe White’s reliance on Asbury was misplaced,

although understandably so. In our judgment the proper

rationale for the conclusion reached in Asbury was the

principle of double jeopardy and not collateral estoppel.

A discussion of Asbury is required.

Asbury’s origirial trial resulted in his conviction of

first degree murder and robbery. At the same time the

jury rejected a special circumstance allegation that the

murder occurred during the course of the robbery. (Pen.

Code, § 190.2, subd. (a)(17).) The jury also concluded

that although the defendant had used a deadly weapon

during the murder (Pen. Code, § 12022, subd. (b)) he had

not done so during the robbery nor had he inflicted great

bodily injury during the robbery (Pen. Code, § 12022.7).

Asbury appealed and his conviction was reversed for

reasons relating to his self-representation at trial.

Asbury was retried. During the second trial the

court refused to instruct the jury on premeditated murder,

determining there was insufficient foundation for the

instruction. The case was submitted to the jury on felony

-42-

murder pursuant to Penal Code section 1894/ Asbury

was again convicted of first degree murder and robbery.

The Asbury court, in reversing the conviction

observed: "[In] finding the defendant guilty of first degree

murder . . . the jury necessarily . . . determined that the

murder had occurred during the course of the robbery--

a finding in apparent conflict with the verdict in the

earlier proceeding rejecting the robbery special

circumstance allegation and the allegations of deadly

weapon use and infliction of great bodily injury during the

robbery." (People v. Asbury, supra, 173 Cal.App.3d at p.

365.) The court held that because the jury had “.. .

necessarily rejected the notion that the murder occurred

during the course of the robbery" (ibid.) the doctrine of

collateral estoppel barred the felony murder conviction at

the second trial.

The Asbury holding was predicated on the "virtually

indistinguishable" language of Penal Code section 190.2,

subdivision (a)(17) and Penal Code section 189. The

former statute defines the special circumstances as

specifying that the murder occur “in the commission of"

robbery, while the latter statute defines felony murder as

murder “in the perpetration of" robbery. (People v.

Asbury, supra, 173 Cal.App.3d at p. 365.) “In light of the

1. Penal Code section 189 provides, inter alia: “All murder

which is perpetrated by means of a destructive device or explosive,

knowing use of ammunition designed primarily to penetrate metal or

armor, poison, lying in wait, torture, or by any other kind of willful,

deliberate and premeditated killing or which is committed in the

perpetration of, or attempt to perpetrate, arson, rape, robbery,

burglary, mayhem, or any act punishable under section 288, is murder

of the first degree; and all other kinds of murders are of the second

degree... .*

-43-

plain meaning of these statutes" (Jbid.) the court accepted

Asbury’s contention that "collateral estoppel" barred the

felony murder conviction.

As previously indicated, in our judgment the

principle of double jeopardy controlled the issue before

the Asbury court, not collateral estoppel. When the first

Asbury jury decided that the murder had not occurred in

the commission of the robbery, that finding wnpliedly

acquitted Asbury of the offense of first degree murder, which,

as defined in Penal Code section 189, includes murder in the

perpetration of a robbery. Using the language of Penal

Code section 1023, the jeopardy statute not referred to in

the Asbury opinion, felony murder was an offense "of

which [Asbury] might have been convicted under the

accusatory pleading" at the first trial.2/

Our dissenting colleague argues that "the theory of

implied acquittal . . . is correctly applied only in relation

to a charged or necessarily included offense" and,

therefore, "has no application . . . in Asbury ...." (Dis.

opn., post, p. 1335.) The argument is premised on Justice

Kline’s statement, ". . . felony murder is not an offense

‘necessarily included’ within the offense of first degree

murder, .... (Dis. opn., post, p. 1333.) While we

certainly agree with the general proposition that not every

2. Asbury was originally charged with murder pursuant to Penal

Code section 187, Our Supreme Court has recognized that the “usual

manner" of charging the crime of murder is “without specification of

degree." (People v. McDonald (1984) 37 Cal3d 351, 379 [208

Cal.Rptr. 236, 690 P.2d 709, 46 AL.R.4th 1011]}.) Penal Code section

187, subdivision (a), defines murder as the “unlawful killing of a

human being, or a fetus, with malice aforethought." The degrees of

murder are defined in Penal Code section 189. A murder charge

pursuant to section 187 may include first and second degree murder.

-44-

first degree murder necessarily includes a felony murder

as defined in Penal Code section 189 (the White and

instant cases for example), the patently evident fact of the

matter is that felony murder was necessarily included in

the first Asbury trial. There, the special circumstance

allegation requiring that the murder occur “in the

commission of" robbery, language which, we repeat, the

Asbury court found “virtually indistinguishable" from the

felony murder definition of murder “in the perpetration

of" robbery, provided an element that elevated the crime

from second degree murder to first degree murder.

Asbury could not have murdered in the commission of

robbery without, at the same time, subjecting himself to a

first degree murder conviction under the felony murder

rule.

(5a) It is fundamental that double jeopardy will

not bar retrial of a defendant who has succeeded in

overturning his conviction. (North Carolina v. Pearce

(1969) 395 U.S. 711, 719-720 [23 L.Ed.2d 656, 665-666, 89

S.Ct. 2072].) This rule rests on the premise that the

original conviction is nullified and “the slate wiped clean."

__(d. at p. 721 [23 L.Ed.2d at p. 667]; see Bullington v.

Missouri (1980) 451 U.S. 430, 442 [68 L.Ed.2d 270, 281,

101 S.Ct. 1852].) |

A well-established exception to the general rule”

enunciated in North Carolina v. Pearce lies where a

defendant has been impliedly acquitted of an offense at the

first trial. In Gomez v. Superior Court (1958) 50 Cal.2d

640, 652 [328 P.2d 976], our Supreme Court observed:

"Double jeopardy attaches when [defendants] are

threatened with a second trial on the charge of grand

theft of which they were impliedly acquitted at the first

trial where they were found guilty only of petty theft." In

People v. Mercer (1962) 210 Cal.App.2d 153, 161 [26

Cal.Rptr. 502], the court stated: ”... the jury returned its

verdict, finding appellant guilty of second degree murder,

thus impliedly finding that the killing did not take place

during the perpetration of a robbery by the appellant of

the decedent. The result of this implied finding was to

acquit the appellant of the charge of first degree murder,

thus precluding any subsequent trial of appellant on such

charge." Gomez and Mercer follow the lead of Green v.

United States (1957) 355 U.S. 184 [2 L.Ed.2d 199, 204, 78

S.Ct. 221, 61 A.L.R.2d 1119]. In Green, the defendant

was indicted for first degree murder. At trial the jury was

instructed that it could convict on either first or second

degree murder. The jury convicted on second degree, but

the conviction was reversed on appeal. The United States

Supreme Court held ™. . . that a retrial on the first degree

murder charge was barred by the Double Jeopardy

Clause, because the defendant was forced to run the

gantlet once on that charge and the jury refused to

convict him.’ (Jd. at p. 190; see also Price v. Georgia, 398

U.S. 323 (1970).)" (Bullington v. Missouri, supra, at p. 443

[68 L.Ed.2d at p. 281].)

The issue before the Asbury court is decidedly

different from that which confronted the White court or

which faces this court. In Asbury, the first degree felony

murder offense wes decided adversely to the People at the

first trial, resulting in an implied acquittal of that charge

of which he might have been convicted under the

accusatory pleadiig. This implied acquittal and the

resulting attachment of jeopardy gave finality on the

merits to the felony murder offense. In contrast, White,

-45-

-46-

and Pettaway here, both convicted of first degree murder

at the first trial, were not beneficiaries of a jury

determination that impliedly acquitted them of the offense

of first degree murder. There was no finality on the

merits as to the offense charged.

The court in People v. White, we respectfully

submit, merely adopted the erroneous "collateral estoppel"

label offered by Asbury without an appreciation that

finality on the merits had been realized in Asbury by the

attachment of jeopardy due to an implied acquittal of the

felony murder offense. .

As we pointed out earlier, a prerequisite to barring

litigation of an issue by collateral estoppel is that ". . . "(2)

the previous (proceeding) resulted in a final judgment on

the merits. .. ." (People v. Sims, supra, 32 Cal.3d 484.)

The Ninth Circuit in Newton v. Superior Court of

California (9th Cir. 1986) 803 F.2d 1051, 1057, quoting an

earlier decision of that court (United States v. Hernandez

(9th Cir. 1978) 572 F.2d 218), describes the collateral

estoppel doctrine in this manner: “When an issue of fact

or law is actually litigated and determined by a final and

valid judgment, and the determination is essential to the

judgment, the determination is conclusive in a subsequent

action between the parties, whether on the same or

different claim. ([Citation.]" The Newton court, citing

Ashe v. Senson, supra, 397 U.S. 444, observes that inquiry

into application of the doctrine “must be set in a practical

frame and viewed with an eye to all the circumstances of

the proceedings.”

(1b) Contrary to the holding in People v. White we

conclude that a negative finding on the enhancements was

not essential to the judgment of conviction of first degree

-47-

murder reached at the first trial, does not impose any

finality on the merits and, therefore, does not collaterally

estop the prosecution from retrying the appellant as the

perpetrator nor preclude the presentation of admissible

evidence to prove that theory of guilt.

Several California cases clearly demonstrate the

adjunctive nature of an enhancement. Our Supreme

Court in Jn re Culbreth (1976) 17 Cal.3d 330, 333 [130

Cal.Rptr. 719, 551 P.2d 23], held that a firearm-use

enhancement under Penal Code section 12022.5 ". . . does

not prescribe a new offense but merely additional

punishment for an offense in which a firearm is used.

[Citation.] [1] The legislative purpose of section 12022.5

has been described as deterrence, i.e., to deter the use of

firearms on subsequent occasions." (See also People v.

Henry (1970) 14 Cal.App.3d 89, 92 [91 Cal.Rptr. 841].)

Again acknowledging that “section 12022.5 does not

prescribe a new offense but merely additional punishment

for an offense in which a firearm is used,” our Supreme

Court, adhering to the view adopted by a majority of

Court of Appeal decisions, held that “an allegation of

firearm use for purposes of Penal Code section 12022.5 is

not to be considered in determining whether the

accusation encompasses a lesser included offense.”

(People v. Wolcott (1983) 34 Cal.3d 92, 100-101 [192

Cal.Rptr. 748, 665 P.2d 520].) The court reasoned that to

allow a use enhancement to be considered a part of the

accusatory pleading for the purpose of defining lesser

included offenses raised due process objections. It

explained: ".. . an offense not necessarily included as a

matter of law may become such because of the ‘specific

language of the accusatory pleading.’ [Citation.] That

-48-

rule rests on principles of due process--that a defendant

cannot be convicted of a charge unless he has received

notice from the accusatory pleading that he may be called

upon to defend against the charge. [Citation] The

application of those principles to an enhancement

allegation, however, is unclear since that allegation becomes

relevant only if the defendant is convicted of a substantive

crime." (Italics added.) (Id. at p. 101.) .

The question of whether a jury’s finding that

defendant did not personally use a firearm would

collaterally estop his conviction of murder was explored in

People v. Nunez (1986) 183 Cal.App.3d 214 [228 Cal.Rptr.

64]. In Nunez the defendant was convicted of conspiracy

to commit murder and first degree murder. The jury

found a firearm-use allegation not true. In separate trials

for the same crimes the alleged coconspirators were

acquitted of the murder and conspiracy charges though

found guilty of lesser offenses. On appeal defendant

Nunez contended, inter alia, that the prosecution should

have been barred from relitigating the issues of malice

and defendant’s motive of killing for financial gain. He

argued that “since the jury found he did not personally

use a firearm . . . he was not found to be the direct

perpetrator of the murder.” Further, that since it had

been determined (in the separate trial) than an alleged

coconspirator (Medina) entertained no malice, the

defendant therefore entertained no malice. (id. at p.

225.)

The appellate court rejected this contention

pointing out that it was based on the speculative

assumption that the jury necessarily found Nunez an aider

and abettor and not a direct perpetrator. The court held

-49-

that "[a] jury’s finding on an alleged enhancement that an

accused was not armed with a firearm or did not

personally use a firearm does not necessarily mean that

the accused was not a direct perpetrator of the crime."

(People v. Nunez, supra, 183 Cal.App.3d at pp. 225-226.)

The Nunez court followed similar reasoning in

People v. Lopez (1982) 131 Cal.App.3d 565 [182 Cal.Rptr.

563] where the defendant claimed that “the negative

finding on the enhancement allegation is equivalent to a

special verdict on the factual question of whether [he]

personally used a firearm.” (People v. Nunez, supra, 183

Cal.App.3d at p. 226.) For convenience we will quote

verbatim the Nunez court’s reference to the Lopez

decision:

"In People v. Lopez (1982) 131 Cal.App.3d 565,

Lopez and three other men were charged with assault

with a deadly weapon and personally using a firearm

pursuant to section 12022.5. The charges stemmed from

an incident in which the defendant and the other men

were responsible for shooting a rifle at a group of people

in the park. The majority of the evidence indicated that

Lopez fired the rifle. Lopez ultimately was convicted of

six counts of assault with a deadly weapon, but the jury

found he did not personally use a firearm in committing

the offense.

“Lopez argued the evidence was insufficient to

support findings that he aided and abetted an assault with

a deadly weapon. He contended the court could not

analyze the evidence for sufficiency under the theory that

he was the direct perpetrator because the jury found he

did not personally use a firearm. As the appellate court

phrased Lopez’s argument, ‘he claims the negative finding

-50-

on the enhancement allegation is equivalent to a special

verdict on the factual question of whether he personally

used a firearm.’ (People v. Lopez, supra, 131 Cal.App.3d

at p. 569.)

"The Lopez court determined, however, it was not

bound by Lopez’s theory in examining the sufficiency of

the evidence. The court first noted that a jury may make

inconsistent findings or verdicts as to a defendant charged

with two offenses. An acquittal on one offense will not

invalidate a verdict on a second offense, although the two

verdicts are factually inconsistent. (People v. Lopez, supra,

131 Cal.App.3d at p. 570.) This rule is based on the

realization that inconsistent findings may be caused simply

by the mercy or leniency of the jury. (Jd. at p. 571.) The

Lopez court found that this rule also should be applicable

when the inconsistency exists between a verdict on an

offense and a finding on an enhancement. It finally held

the evidence was sufficient to support a jury verdict that

defendant had fired a rile at a group of people and was

guilty of assault with a deadly weapon. (Jd. at pp. 570-

572; see also People v. Federico (1981) 127 Cal.App.3d 20,

31-33 [179 Cal.Rptr. 315].)" (People v. Nunez, supra, 183

Cal.App.3d at p. 226.)

We agree with the conclusion reached by the

Nunez and Lopez courts that a negative finding on a

personal-use enhancement does not necessarily mean the

accused was not a direct perpetrator of the crime. As

pointed out in those cases, “inconsistent findings may be

caused simply by the mercy or leniency of the jury’

(People v. Nunez, supra, 183 Cal.App.3d at p. 226), to

which we might add, or through confusion or ennui.

-51-

(6) It has been said that "[cjollaterai estoppel is an

equitable concept based on fundamental principles of

fairness. For issue preclusion purposes it means that a

party ordinarily may not relitigate an issue that was fully

and fairly litigated on a previous occasion." (Sandoval v.

Superior Court (1983) 140 Cal.App.3d 932, 941 [190

Cal.Rptr. 29], cited in People v. Nunez, supra, 183

Cal.App.3d at p. 222.) Furthermore, "[{cJollateral estoppel

is only applicable where the issue necessarily decided at

the previous trial is identical to the one sought to be

relitigated." (People v. Taylor, supra, 12 Cal.3d at p. 691,

cited in People v. Nunez, supra, 183 Cal.App.3d at p. 222.)

(lc) Here, the issue which the People seek to

relitigate is whether the defendant is guilty of murder and,

if so, to what degree. We are not concerned with the

subject of punishment following conviction. A use

enhancement is relevant only to punishment. It is not an

element of the substantive offense charged. When, as

here, the defendant’s earlier conviction of murder is

reversed on appeal and the defendant is subject to retrial,

a finding on an enhancement allegation by the first jury is

superfluous to a determination of the guilt or innocence

of the charged offense at the second trial.

Nor can it be said that the guilt issue was "fully"

litigated at the first trial. There, the People were denied

the testimony of Lowana Walker due to her invocation of

the Fifth Amendment privilege. That testimony was, and

is, significantly relevant to defendant’s role in the

homicide. The People’s offer of proof demonstrated that

evidentiary impediment would not be present on retrial.

The court in People v. Nunez, supra, 183

Cal.App.3d at page 223, referred to the observations of

-52-

the United States Supreme Court on the subject of “full

and fair opportunity to litigate’ in Standefer v. United

States (1980) 447 US. 10 [64 L.Ed.2d 689, 100 S.Ct.

1999]. While we acknowledge that the subject was

discussed in the context of whether collateral estoppel

barred the government from prosecuting the defendant as

an aider and abettor when the alleged perpetrator had

been acquitted of the underlying offense, we nevertheless

find the discussion germane to the problem before us and

quote, in part, from the Nunez analysis of Standefer.

". .. The court first noted that the government in

a criminal case, unlike a party in a civil case, is often

without the kind of ‘full and fair opportunity to litigate’

upon which collateral estoppel is based. . . . [%] The

Standefer court also reasoned that the rules of evidence

could preclude the prosecution from presenting all the

evidence it had in a particular case against a particular

defendant. ... The [Standefer] court stated, ‘In such

circumstences, where evidentiary rules prevent the

Government from presenting all its proof in the first case,

application of nonmutual estoppel would be plainly

unwarranted.’ (Standefer v. United States, supra, 447 U.S.

at p. 24.)" (183 Cal.App.3d at pp. 223-224.)

None of the purposes justifying the application of

collateral estoppel, as they have been defined by our

Supreme Court in People v. Taylor, supra, 12 Cal.3d 686,

find relevance in the case before us. Certainly, we cannot

rely on a desire to promote judicial economy to justify

collaterally estopping the retrial of defendant as a

perpetrator when there is significant evidence pointing to

his culpability in that regard. Certainly, there is no

undermining of the integrity of the judicial system by

}

OS ee

-53-

inconsistent judgments when the only judgment in the case

declared defendant guilty of first degree murder. More

likely, the integrity of the system would be undermined by

permitting enhancement findings, made irrelevant by

reversal, to control the theory and evidence of the case on

retrial. And certainly, it cannot be said that defendant is

being subjected to harassment by vexatious litigation when

he was subject to retrial for murder as an aider and

abettor in any event.

As we noted earlier, "collateral estoppel is an

equitable concept based on fundamental principles of

fairness." Here, the People insist that the evidence points

to the defendant as perpetrator, not aider and abettor,

and decline to try the case solely on the latter theory.

Based upon the offer of proof made to the trial judge at

the motion hearing, their position does not appear

unreasonable. If on retrial the prosecution were limited

to trying the defendant as an aider and abettor, and a jury

were to determine that Lowana did not personally shoot

Karen Taylor, then defendant could be acquitted despite

the existence of admissible evidence that he perpetrated

the homicide. This flies in the face of fairness and good

sense, particularly when a jury has already found sufficient

evidence ‘to convict the defendant of murder. The

principles of fairness apply to ail parties in the litigation.

If the defendant were to enjoy an acquittal, then let it be

on the merits following a fair presentation of admissible

evidence and not because of an artificial curtailment of

the People’s theory and proof predicated upon a

punishment finding which became irrelevant when the

conviction was reversed.

'

7

-54-

Our dissenting colleague accuses us of "complete

indifference to the double jeopardy clause of the Fifth

Amendment." The rhetoric is unfortunate for it carries

the implication that we are somehow involved with a

double jeopardy issue in our consideration of whether

defendant may be retried as a perpetrator. That is simply

not the case. The defendant here is subject to "continuing

jeopardy." The United States Supreme Court explains the

concept of continuing jeopardy in Justices of Boston

Municipal Court v. Lydon (1984) 466 U.S. 294, 308 [80

L.Ed.2d 311, 324-325, 104 S.Ct. 1805}:

(5b) “The Double Jeopardy Clause is not an

absolute bar to successive trials. The general rule is’ that

the Clause does not bar reprosecution of a defendant

whose conviction is overturned on appeal. United States

v. Ball, supra. The justification for this rule was explained

in United States v. Tateo, 377 U.S. 463, 466 (1964), as

follows: [1] “While different theories have been advanced

to support the permissibility of retrial, of greater

importance than the conceptual abstractions employed to

explain the Ball principle are the implications of that

principle for the sound administration of justice.

Corresponding to the right of an accused to be given a

fair trial is the societal interest in punishing one whose

guilt is clear after he has obtained such a trial. It would

be a high price indeed for society to pay were every

accused granted immunity from punishment because of

any defect sufficient to constitute reversible error in the

proceedings leading to conviction.’

"In Price v. Georgia, 398 U.S. 323, 329 (1970), we

recognized that implicit in the Ball rule permitting retrial

after reversal of a conviction is the concept of ‘continuing

melas |

:

:

J

:

-55-

jeopardy.’ See also Breed v. Jones, 421 US. 519, 534

(1975). That principle ‘has application where criminal

proceedings against an accused have not run their full

course. 398 U.S. at 326. Interests supporting the

continuing jeopardy principle involve fairness to society,

lack of finality, and limited waiver. Id., at 329, n. 4... ."

Succinctly stated, ". . . the protection of the Double

Jeopardy Clause by its terms applies only if there has

been some event, such as an acquittal, which terminates

the original jeopardy. [Citation.]" (Richardson v. United

States (1984) 468 U.S. 317, 325 [82 L.Ed.2d 242, 251, 104

S.Ct. 3081].) Here, that event has not occurred and the

Original jeopardy continues.

(ld) Where neither double jeopardy nor the

principle of collateral estoppel is applicable in preventing

reprosecution, as is the case here, the parties are placed

in the "same position as if the cause had never been

tried." (People v. Murphy (1963) 59 Cal.2d 818, 833 [31

Cal.Rptr. 306, 382 P.2d 346], citing to Hall v. Superior

Court (1955) 45 Cal.2d 377, 381 [289 P.2d 431].) The

effect of a reversal of a judgment is discussed in Odlum v.

Duffy (1950) 35 Cal.2d 562, 564-565 [219 P.2d 785]: "It is

well settled that the reversal of a judgment or order

ordinarily leaves the proceeding in the same situation in

which it stood before the judgment or order was made.

[Citations.] The same rule has been stated with respect

to the reversal of orders in criminal cases. [Citation.] It

therefore appears that upon the reversal of the trial

court’s order refusing to vacate the judgment of

conviction, the parties were restored to the position that

they had before the reversed order was made and with

the same rights that they originally had, ‘with the

-56-

exception that the opinion of the court of appeal must be

followed so far as applicable.”

We must also take issue with our dissenting

colleague’s apparent reliance on Arizona v. Rumsey (1984)

467 US. 203 [81 LEd.2d 164, 104 S.Ct. 2305] and

Bullington v. Missouri, supra, 451 U.S. 430, to justify the

result reached in Asbury and White and which he would

impose in the present case. (Dis. opn., post, at pp. 1341-

1342.) In Rumsey and Bullington the Supreme Court did

accord double jeopardy protection to special verdicts

rendered by fact finders refusing to impose the death

penalty. However, in both cases jeopardy was considered

in light of detailed statutory procedures set in motion after

determination of guilt and requiring a “precisely defined,"

separate presentence hearing on the issue of death or life

imprisonment.!

What our dissenting colleague ignores in his

discussion of Rumsey and Bullington is the acknowledged

reluctance of the Supreme Court to extend the double

jeopardy principle to sentencing and the very limited

rational which supports the holding.

In Bullington the Supreme Court opened its

discussion of the issue with the following comments: "It

3. Footnote 10 in Bullington notes: “At the statutorily

prescribed presentence hearing, counsel make opening statements,

testimony is taken, evidence is introduced, the jury is instructed, and

final arguments are made. The jury deliberates and returns its formal

punishment... ." (451 U.S. at pp. 438-439 [68 L.Ed.2d at p. 279].)

In Rumsey the court, after outlining the procedure set forth in the

Arizona statute commented: “. . . these characteristics make the

Arizona capital sentencing proceeding indistinguishable for double

jeopardy purposes from the capital sentencing proceeding in

Missouri." (467 U.S. at p. 210 [81 L.Ed.2d at p. 171].)

ere

A SS A, eT

-57-

is well established that the Double Jeopardy Clause

forbids the retrial of a defendant who has been acquitted

of the crime charged. United States v. DiFrancesco, 449

US. 117, 129-130 (1980); Burks v. United States, 437 US.

1, 16 (1978); United States v. Martin Linen Supply Co., 430

US. 564, 571 (1977); Fong Foo v. United States, 369 U.S.

141, 143 (1962); Green v. United States, 355 U.S. 184

(1957). This Court, however, has resisted attempts to

extend that principle to sentencing. The imposition of a

particular sentence usually is not regarded as an ‘acquittal’

of any more severe sentence that could have been

imposed. The Court generally has concluded, therefore,

that the Double Jeopardy Clause imposes no absolute

prohibition against the imposition of a harsher sentence at

retrial after a defendant has succeeded in having his

original conviction set aside. See North Carolina v. Pearce,

395 US. 711 (1969). See also United States v.

DiFrancesco, 449 US., at 133, 137-138; Chaffin v.

Stynchcombe, 412 U.S. 17, 23-24 (1973); Stroud v. United

States, 251 U.S. 15 (1919)." (Bullington v. Missouri, supra,

at pp. 437-438 [68 L.Ed.2d at p. 278].)

The court continued: "The procedure that resulted

in the imposition of the sentence of life imprisonment

upon petitioner Bullington at his first trial, however,

differs significantly from those employed in any of the

Court’s cases where the Double Jeopardy Clause has been

held inapplicable to sentencing. . . . The presentence

hearing resembled and, indeed, in all relevant respects was

like the immediately preceding trial on the issue of guilt

Or innocence. It was itself a trial on the issue of

punishment so precisely defined by the Missouri statutes."

(451 US. at p. 438 [68 L.Ed.2d at pp. 278-279].)

-58-

The narrowly crafted holding in Bullington

concludes: "Because the sentencing proceeding at

petitioner’s first trial was like the trial on the question of

guilt or innocence, the protection afforded by the Double

Jeopardy Clause to one acquitted by a jury also is

available to him, with respect to the death penalty, at his

retrial. We therefore refrain from extending the reasoning

of Stroud v. United States, 251 U.S. 15 (1919), to this very

different situation." (451 U.S. at p. 446 [68 L.Ed.2d at p.

284], fn. omitted.)

Clearly, Bullington and Rumsey are inapposite to

White and the case before us. They involve cases where

the defendants were convicted of the crime charged and the

states’ procedures required a second trial on the issue of

punishment. However, our colleague’s discussion of

Bullington and Rumsey does serve to highlight the

analytical error which permeates his dissent. He chooses

to put the Asbury, White and Pettaway cases on the same

plane, consistently ignoring that White and Pettaway were

convicted of the first degree murder offense, while Asbury

on the other hand, was impliedly acquitted of first degree

felony murder. Thus while jeopardy had attached to

Asbury, its protection did not flow to White or Pettaway.

There is another aspect of People v. White, supra,

185 Cal.App.3d 822, which requires discussion. In White,

the respondent contended Penal Code section 954+/

permitted retrial of the gun use issue. Our colleagues in

Division Five dismissed tre argument on two grounds: "a

4. The relevant portion of section 954 provides: “An acquittal

On one or more counts shall not be deemed an acquittal of any other

count."

-59-

statutory enactment cannot override the constitutional

prohibition against double jeopardy" and "section 954 is

concerned with multicount indictments or information, and

not with the retrial of issues previously adjudicated to

finality." (185 Cal.App.3d at p. 828.) The White court

then explained that inconsistencies in unified jury verdicts

are tolerated. To allow the prosecution to retry the case

on the theory White used a firearm “implicates concerns

about the injustice of exposing a defendant to repeated

risks of conviction for the same conduct .. . that lie at

the heart of the double jeopardy clause.” The court went

on to say "the previous jury decided that issue and

acquitted him of that charge." (Id. at p. 829, italics

added.) The White court, we respectfully submit, was

wrong in the application of section 954 and

mischaracterized what the first jury did.

Both Pettaway and White were found by their first

juries to be guilty of murder; both juries also found untrue

the allegation of use of a firearm in connection with the

murder. In People v. Amick (1942) 20 Cal.2d 247 [125

P.2d 25], appellant was charged in count one with

manslaughter and in count two with negligent homicide.

Both counts grew out of the same act by appellant. The

jury found appellant guilty of negligent homicide and not

guilty of manslaughter. Appellant claimed the verdicts

were inconsistent and conflicting since the same evidence

was relied on in both counts and the verdicts were

insufficient to support the conviction. The Supreme Court

held that the 1927 amendment to Penal Code section 954

permitted inconsistent verdicts and the disposition of one

count had no bearing on the verdict with respect to other

counts; each count must stand on its own merits.

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In People v. Federico, supra, 127 Cal.App.3d 20, a

jury determined appellant guilty of murder but also found

untrue the enhancements that he was armed with a

firearm and used a firearm. Appellant argued that

reversal of the murder conviction was mandated because

of fatal inconsistency between the verdict of guilty on the

murder count and the jury’s finding that the allegation

that appellant was armed with a firearm in the

commission of the murder was not true. The Federico

court rejected this contention relying on Penal Code

section 954 and the rule that each count must stand on its

own merits. The court recognized a limited exception to

the rule that each count must stand on its own merits.

The exception comes into play where “all of the essential

elements of the crime of which the defendant was

acquitted are identical to some or all of the essential

elements of the crime of which he was convicted, and

proof of the crime of which the defendant was acquitted is

necessary to sustain a conviction of the crime of which the

defendant was found guilty.” (Id. at p. 32, italics in

original.) While acknowledging that ". . . strictly speaking

the allegation that defendant was armed in the

commission of the murder did not charge a separate

offense" the court held that ". . . the principles found in

Penal Code section 954 and the cases interpreting it are

applicable in resolving the logical inconsistency between

the not true findings of the armed allegation and the

guilty verdict on the murder charge." (Jd. at pp. 32-33;

see also People v. Brown (1985) 174 Cal.App.3d 762, 768

[220 Cal.Rptr. 264].)

Had Pettaway contended in his appeal that his

conviction for murder must be reversed on the grounds it

-61-

was inconsistent with the finding on the enhancement, he

could not have prevailed under Penal Code section 954

and the above cited cases. There is no logical reason why

the result should differ on retrial after his murder

conviction was reversed for Beeman error. The finding on

the enhancement simply has no effect on the murder

charge in the first or the second trial.

(7) Finally, we briefly address whether under

double jeopardy principles defendant here may be retried

on the enhancement allegations which the jury determined

in his favor. Earlier we noted that the People had

conceded defendant’s immunity from retrial on the

enhancement issues. Subsequent to our submission of this

matter we requested additional briefing addressed to the

propriety of this concession. We are now satisfied that

the People’s concession was sound and that retrial on an

enhancement allegation is precluded where a jury has

resolved that question, correctly or not, in defendant’s

favor.

The California Supreme Court addressed the issue

in People v. Henderson (1963) 60 Cal.2d 482, 495-497 [35

Cal.Rptr. 77, 386 P.2d 677]. Justice Traynor, writing for

the majority, stated: "Defendant contends that the

prohibition against double jeopardy precludes imposing the

death sentence after reversal of the first judgment

sentencing him to life imprisonment. Article I, section 13,

of the California Constitution provides that ‘No person

shall be twice put in jeopardy for the same offense... .’

It states a fundamental principle limiting the state’s right

repeatedly to prosecute a defendant. It is not an absolute

prohibition, for although jeopardy may have attached,

legal necessity or the real or implied consent of the

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defendant permits a retrial. ([Citation.] In the present

case, we must determine the extent to which a defendant

who attacks an erroneous conviction thereby opens the

door to being again placed in jeopardy. [%] He does not

gain immunity, for by successfully attacking the judgment

he at least subjects himself to a retrial] that may reach the

same result. [Citations.] There is a sharp conflict in the

cases, however, whether such an attack opens the door to

the imposition of a more severe sentence on retrial. . . ."

Concluding that the double jeopardy principle of

the state Constitution forbids the imposition of a greater

punishment for the same crime on retrial, Justice Traynor

concluded: "A defendant’s right of appeal from an

erroneous judgment is unreasonably impaired when he is

required to risk his life to invoke that right. Since the

state has no interest in preserving erroneous judgments, it

has no interest in foreclosing appeals therefrom by

imposing unreasonable conditions on the right to appeal."

(People v. Henderson, supra, 60 Cal.2d at p. 497.)

More recently our Supreme Court in People v.

Collins (1978) 21 Cal.3d 208, 216 [145 Cal.Rptr. 686, 577

P.2d 1026], addressing a sentencing issue observed: "We

find precedent for the foregoing result in a line of cases

based on principles of double jeopardy. Our concern

there was specifically to preclude vindictiveness and more

generally to avoid penalizing a defendant for pursuing a

successful appeal. In People v. Ali (1967) 66 Cal.2d 277,

281 [57 Cal.Rptr. 348, 424 P.2d 932], we stated that ‘a

defendant should not be required to risk being given

greater punishment on a retrial for the privilege of

exercising his right to appeal.”

-63-

For the reasons expressed in Henderson and

Collins, we agree that defendant cannot be retried on the

Penal Code sections 12022.5 and 12022.7 enhancements.

The judgment of dismissal is reversed. The case is

remanded for trial in accordance with the views expressed

herein.

Rouse, J.,” concurred.

KLINE, P.J., Concurring and Dissenting-I concur

in the majority’s conclusion that defendant may not be

retried on the enhancement allegations that the jury

decided in his favor. I dissent from the rest of the

opinion, which, with complete indifference to the double

jeopardy clause of the Fifth Amendment, concludes that

defendant may be retried as the actual perpetrator in the

killing of Karen Taylor despite a not true finding on the

gun-use allegation at his first trial.

The jury’s determination that defendant was not the

trigger man seems as inexplicable to me as it does to my

colleagues. The perceived incorrectness of a jury verdict

in favor of a criminal defendant does not, however, create

a license for appellate courts to right the wrong at all

costs. The theory my colleagues contrive to avoid the

consequences of the jury’s explicit factual finding is not

supported by the cases they rely upon, is analytically

unsound and unjust and creates a constitutional problem

that will prove far more troublesome than the

questionable’ jury determination in this case.

In People v. White (1986) 185 Cal.App.3d 822 [231

Cal.Rptr. 569] another division of this court unanimously

* Retired Associate Justice of the Court of Appeal sitting

under assignment by the Chairperson of the Judicial Council.

-64-

held that an accused may not be retried as the actual

perpetrator after a prior jury has indicated, by way of its

not true findings on gun use allegations, that he did not

fire the fatal shots.

The majority rejects White and reaches a contrary

conclusion based on (1) its belief that the court in White

failed to take into account relevant case law and

improperly relied on People v. Asbury (1985) 173

Cal.App.3d 362 [218 Cal.Rptr. 902], which my colleagues

think distinguishable; (2) the theory that the jury’s

rejection of the gun use allegation is not legally equivalent

to a determination that the accused did not personally

commit the homicide because it relates solely to

sentencing; and (3) the claim that the procedural

requirements for the invocation of collateral estoppel have

not been met since the gun use finding was not "essential"

to the first conviction and the prosecution was denied an

opportunity to "fully and fairly" litigate the issue of

defendant’s gun use during the first trial. I will discuss

each of these points in turn.

4

In White the defendant appealed from a conviction

of two counts of first degree murder. He maintained the

trial court erred in permitting the prosecution to try the

case on the theory that he personally shot the victims

after the jury in a previous trial had determined he had

no. used a firearm in connection with the killings. The

court apreed and reversed the judgment.

The majority strains to discredit White by

questioning the relevance of People v. Asbury, supra, upon

which White relies. In Asbury the jury at the first trial

found the defendant guilty of first degree murder and

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robbery but rejected the special circumstances that the

murder had occurred in the course of robbery. The Court

of Appeal held that the subsequent felony-murder

conviction was barred by the doctrine of collateral

estoppel--which is included within the Fifth Amendment’s

guaranty against double jeopardy (Ashe v. Swenson (1970)

397 US. 436, 443 [25 LEd.2d 469, 475, 90 S.Ct.

1189])--because "the original jury, in finding the special

circumstance not true, necessarily rejected the notion that

the murder occurred during the course of robbery."

(People v. Asbury, supra, 173 Cal.App.3d at p. 365.) The

majority claims that Asbury is inapposite because, despite

the court’s clear statement to the contrary, the case did

not genuinely raise an issue of collateral estoppel.

According to the majority, the finding of the first Asbury

jury that the murder had not occurred during the

commission of the robbery "impliedly acquitted Asbury of

the offense of first degree murder . . . in the perpetration of

a robbery." (Maj. opn., ante, p. 1320, original italics.)

Relying upon language in Penal Code section 1023, a

Statute never mentioned in the Asbury opinion, the

majority concludes that "felony murder was an offense ‘of

which [Asbury] might have been convicted under the

accusatory pleading’ at the first trial." (Jbid.) My

colleagues’ rationale for the result in Asbury does not hold

up to analysis.

As our Supreme Court has pointed out, Penal

Code section 1023 relates to the doctrine of included

offenses, which is a part of the constitutional guaranty

against double jeopardy. (People v. Kehoe (1949) 33

Cal.2d 711, 713 [204 P.2d 321], cert den. Kehoe v.

California (1949) 338 U.S. 834 [94 L.Ed. 509, 70 S.Ct.

-66-

39}.) The statute provides as follows: "When the

defendant is convicted or acquitted or has been once

placed in jeopardy upon an accusatory pleading, the

conviction, acquittal or jeopardy is a bar to another

prosecution for the offense charged in such accusatory

pleading, or for an attempt to commit the same, or for an

offense necessarily included therein, of which he might

have been convicted under that accusatory pleading." This

language does not apply to the situation that existed in

Asbury.

First of all, felony murder is not an offense

“necessarily included" within the offense of first degree

murder; indeed, what the majority refers to as the

"offense" of "first degree felony murder" (maj. opn., ante,

p. 132) does not exist; felony-murder is merely one of

several definitions of murder in the first degree. (Pen.

Code, § 189.) Ordinarily, a jury is not required to

determine whether a defendant charged with first degree

murder committed the offense in the course of committing

any of the felonies enumerated in Penal Code section 189

unless the People prosecute the case on such a theory, in

which case the jury receives CALJIC No. 8.21, which

instructs that "[t]he unlawful killing of a human being. .

. as a result of the commission of [a specified felony] . .

. is murder of the first degree." Because a felony-murder

theory was not originally advanced in Asbury this

instruction was not given. The factual question whether

the homicide was committed in the course of another

felony was presented to the jury only because of the

special circumstances allegation. If, contrary to the

doctrine of included offenses set forth in Penal Code

section 1023, conviction of first degree murder can result

-67-

in an "implied acquittal" of that same offense on a

prosecution theory which, though it was not actually

advanced, can be shown to have been rejected by the jury

due to a finding made in connection with a penalty

enhancement, then the defendants in White and this case

were also impliedly acquitted of first degree murder on

the theory that they directly committed the act constituting

the offense and were therefore perpetrators within the

meaning of the Penal Code. (Pen. Code, § 31.) For

purposes of the theory of implied acquittal conjured by

the majority, the facts of Asbury, White and the present

case are materially indistinguishable.

Moreover, if the majority’s novel theory were

accepted, the instant case would present an even stronger

case than Asbury for implied acquittal. As indicated, the

prosecution did not initially advance a felony-murder

theory in Asbury and the jury addressed the factual

question only because of allegations made in order to

enhance penalty. In this case, on the other hand, the

prosecution did advance an aiding and abetting theory

that necessitated the giving of instructions (CALJIC Nos.

3.00 and 3.01) describing the difference between a

perpetrator and an aider and abettor in connection with

the charged homicide. Therefore, while the Asbury jury

almost certainly did not understand the relationship

between the facts set forth in the enhancement allegation

and those relating to the murder charge (because it was

never told about the felony-murder rule), the jury in this

case almost certainly did understand that relationship,

making it easier here to imply acquittal on the theory

defendant directly committed the homicide than it was in

Asbury to imply acquittal on a felony-murder theory.

-68-

Looking at it from the point of view of the majority’s

distorted notion of the doctrine of included offenses, the

prosecution’s theory that the defendant in this case

directly committed the homicide was much more clearly

"included" in the charges against him than was felony-

murder "included" in the charges against Asbury.

Though the majority’s concept of included offenses

and the collateral theory of implied acquittal, if

consistently applied, would justify the result in this case

that I think is constitutionally compelled, the majority’s

analysis is fundamentally flawed. The theory of implied

acquittal embraced in Penal Code section 1023 is correctly

applied only in relation to a charged or necessarily

included offense; it therefore has no application either in

Asbury or in this case.

Asbury was correctly decided for the reason stated

in that opinion--collateral estoppel, not because of an

implied acquittal. The situation in that case, like the

situation in White and that here, satisfied all three

requirements of collateral estoppel. The party against

whom the estoppel was asserted was a party at the earlier

trial, that proceeding resulted in a final judgment on the

merits with respect to the ultimate fact in issue,’ and,

1. Rejection of the special circumstances allegation in Asbury,

like the findings of no gun use in White and the present case, could

not have been appealed and therefore constituted a judgment which,

for purposes of collateral estoppel, was both valid and final. As has

authoritatively been stated, "[f]or purposes of issue preclusion ... .

‘final judgment’ includes any prior adjudication of an issue in another

action that is determined to be sufficiently firm to be accorded

conclusive effect." (Rest.2d Judgments, § 13.) "To be ‘final’ for

purposes of collateral estoppel the decision need only be immune,

as a practical matter, to reversal or amendment." (Miller Brewing Co.

Bi altoid ic nih .

-69-

most important for present purposes, the issue necessarily

decided at the previous trial was identical to the one

sought to be relitigated. The Asbury court found that

when the first jury refused to find that the defendant

committed the murder "in the commission of" the robbery

(the phrase used in the special circumstance instruction),

it was effectively declaring that he did not commit the

murder “as a result of" the robbery (the language of the

felony-murder instruction). The court was in effect saying

that the finding of the jury at the previous trial was not

simply an evidentiary determination but an "ultimate fact"

(i.e., a finding involving the application of law to fact)

with respect to both the special circumstances allegation

and the question of felony murder. Asbury was thus a

classic case for application of the rule of collateral

estoppel because, as the Supreme Court has stated, "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."

(Ashe v. Swenson, supra, 397 U.S. 443 [25 L.Ed.2d at p.

475); People v. Taylor (1974) 12 Cal.3d 686, 693 [117

Cal.Rptr. 70, 527 P.2d 622]; Rest.2d Judgments, § 27.)

Similarly, when the jury in the present case rejected

the allegation that Pettaway "personally used a firearm

during the commission of [the alleged homicide]" (the

phrase used in the gun use instruction, CALJIC No.

17.19), it was effectively declaring that he did not "directly

v. Jos. Schlitz Brewing Co. (7th Cir. 1979) 605 F.2d 990, 996, cert.

den., 444 U.S. 1102 [62 L.Ed.2d 787, 100 S.Ct. 1067]; see Lurmmus

Company v. Commonwealth Oil Refining Company (2d Cir. 1961) 297

F.2d 80, 89, cert. den., 368 U.S. 986 [7 L-Ed.2d 524, 82 S.Ct. 601].)

-70-

and actively commit the act constituting the crimes" (the

language of CALJIC No. 3.00, given as part of the aiding

and abetting instruction), thereby negating an ultimate fact

necessary to convict him on the ground that he actually

perpetrated the homicide. Jeopardy therefore attached in

this case in precisely the same manner it did in Asbury.

Just as Asbury might have been convicted on a felony-

murder theory under the accusatory pleading at the first

trial, so too at his first trial might Pettaway have been

convicted of murder as a perpetrator, as the district

attorney vigorously urged.

The special circumstances allegation in Asbury, like

the gun-use allegation in White and in this case, was not

included in the charges in order to establish an element of

any offense, but simply to enhance the penalty. (Pen.

Code, § 190.2.) The Asbury court recognized, however,

that this was not crucial. With “realism and rationality,"

the court simply inquired "whether a rational jury could

have grounded its verdict upon an issue other than that

which the defendant seeks to foreclose from consideration"

(Ashe v. Swenson, supra, 397 U.S. 436, 444 [25 L.Ed.2d at

pp. 475-476], fn. omitted) and found that it could not.

This is what we should do, rather than employ "the

hypertechnical and archaic approach of a 19th century

pleading book." (Jbid. [25 L.Ed.2d at p. 475]}.)

In a later part of its opinion the majority also takes

issue with the White court’s refusal to accept the argument

that Penal Code section 954 (which, as pertinent, provides

that "An acquittal on one or more counts shall not be

deemed an acquittal of any other count") permitted retrial

of the gun use issue. (Maj. opn, ante, p. 1329.) The

majority’s point is summed up in the following three

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sentences: “Had Pettaway contended in his [initial] appeal

that his conviction for murder must be reversed on the

grounds it was inconsistent with the finding on the

enhancement, he could not have prevailed under section

954 and [People v. Amick (1942) 20 Cal.2d 247 [125 P.2d

25] and People v. Federico (1981) 127 Cal.App.3d 20 [179

Cal.Rptr. 315]]. There is no logical reason why the result

should differ on retrial after his murder conviction was

reversed for Beeman error. The finding on the

enhancement simply has no effect on the murder charge

in the first or the second trial." (Maj. opn., ante, p. 1330.)

This reasoning reveals the majority’s failure to

understand the difference between an inconsistent verdict

at a single trial and multiple trials of the same person for

the same offense. In People v. Tideman (1962) 57 Cal.2d

574 [21 Cal.Rptr. 207, 370 P.2d 1007], the Supreme Court

described the statutory history of 954, stating that the

legislative purpose of the language here relevant was to

make it “altogether clear that under current criminal

procedure . .. ‘[t]he doctrine of double jeopardy has no

application [in a single criminal action] to a defendant

who is tried but once on several counts. [Fn. omitted.]”"

(id, at p. 581, quoting People v. Chessman (1951) 38

Cal.2d 166, 193 [238 P.2d 1001], cert den. Chessman v.

California (1952) 343 U.S. 915 [96 L.Ed. 1330, 72 S.Ct.

650].) The reasons the law tolerates inconsistent verdicts,

which were set forth in White,2’ are entirely unrelated to

2. The White opinion includes the following quote from United

States v. Mespoulede (2d Cir. 1979) 597 F.2d 329, 336-337: “We

tolerate inconsistencies in unified jury verdicts in criminal cases, not

because of any singular virtue we attribute to inconsistency, but rather

out of deference to the nature of the jury and the role it plays in our

7.

the fundamentally different considerations that come into

play when an accused person is subjected to more than

one trial for the same offense.

My colleagues say they can think of no "logical

reason" why the rationale of Penal Code section 954

should not apply where an individual is subjected to a

second trial for the same offense. The “logical reason"

they cannot fathom is the very principle that informs the

prohibition against double jeopardy. "The underlying idea,

one that is deeply ingrained in at least the Anglo-

American system of jurisprudence, is that the State with

jurisprudence. There is no question but that a jury in a criminal trial

has the power to render a verdict of acquittal that is wholly at odds

with the law and the facts. As we pointed out in United States v.

Maybury, 274 F.2d 899, 902 (2d Cir. 1960), this notion has its roots

in the fact that the jury was originally conceived of as “inscrutable."

Although we no longer believe that a jury’s pronouncements must be

accepted as unquestioningly as the results of an ordeal by cold water

or an oath of compurgation, see T. Plunkett, A Concise History of

the Common Law 115-16 (5th ed. 1956), an “arbitral” element of jury

decision-making survives. We recognize that the jury is in a sense the

conscience of the community and can, for example, render a verdict

to mitigate an overly severe punishment. United States v. Maybury,

supra, 274 F.2d at 902. Similarly, in compromising in order to reach

a unanimous verdict, a jury is often fulfilling its role as a cross-

section of the community that it is supposed to represent. Occasional

anomalies are the price of unanimity. Jd, at 903. [¥] Internal

inconsistency, then, is not an end in itself, and it would be irrational

to expand gratuitously the judicial tolerance of inconsistent verdicts

to permit different juries in successive triais to reach contradictory

results. Allowing a second jury to reconsider the very issue upon

which the defendant has prevailed serves no valuable function. To

the contrary, it implicates concerns about the injustice of exposing a

defendant to repeated risks of conviction for the same conduct, and

to the ordeal of multiple trials, that lie at the heart of the double

jeopardy clause.’ (Fn. omitted.)" (People v. White, supra, 185

Cal.App.3d at pp. 828-829.)

73

all its resources and power should not be allowed to make

repeated attempts to convict an individual for an alleged

offense, thereby subjecting him to embarrassment, expense

and ordeal and compelling him to live in a continuing

state of anxiety and insecurity, as well as enhancing the

possibility that even though innocent he may be found

guilty." (Green v. United States (1957) 355 U.S. 184, 187-

188 [2 L.Ed.2d 199, 204, 78 S.Ct. 221, 61 A.L.R.2d 1119].)

This ancient idea, whose origins can be traced to Greek

and Roman times and which became established in the

common law of England long before our Nation declared

its independence (Benton v. Maryland (1969) 395 U.S. 784,

795 [23 L.Ed.2d 707, 716, 89 S.Ct. 2056]), is too firmly

rooted in our criminal jurisprudence to permit question.

As Chief Justice Burger once observed, “where the

Double Jeopardy Clause is applicable, its sweep is

absolute. There are no ‘equities’ to be balanced, for the

Clause has declared a constitutional policy, based on

grounds which are not open to judicial examination."

(Burks v. United States (1978) 437 U.S. 1, 11, fn. 6 [57

L.Ed.2d 1, 9, 98 S.Ct. 2141], italics added.)

The White court was indubitably correct in

concluding that the prohibition of double jeopardy cannot

be compromised by application of Penal Code section 954

or its rationale.

Having cavalierly disposed of White, the majority

relies on People v. Lopez (1982) 131 Cal.App.3d 565 [182

Cal.Rptr. 563] and People v. Nunez (1986) 183 Cal.App.3d

214 (228 Cal.Rptr. 64] (rev. den. Oct. 16, 1986) as support

for its position. In Lopez, the defendant was found guilty

on six counts of assault with a deadly weapon but the jury

found he did not personally use a firearm. On appeal he

-74-

claimed there was insufficient evidence to support the

verdict and asserted that in light of the jury’s findings on

the use allegation the court was bound to assume he was

convicted as an aider and abettor and not a principal.

The court found the case analogous to those involving

inconsistent verdicts’ and rejected the defendant's

argument, finding that the inconsistency between the

verdict on each of the offenses and the finding on the

enhancement did not invalidate the convictions. Lopez is

obviously different from the instant case, which does not

involve rationally inconsistent verdicts or findings*/ More

importantly, since Lopez had been tried only once his case

has nothing to do with the principles of collateral estoppel

and double jeopardy that are directly implicated in this

case, where defendant appears destined to face retrial for

the same offense on a factual theory explicitly rejected by

a prior jury.

3. Penal Code section 954, which applies to this situation,

provides that “An accusatory pleading may charge two or more

different offenses connected together in their commission, or different

statements of the same offense or two or more different offenses of

the same class of crimes or offenses, under separate counts .... An

acquittal of one or more counts shall not be deemed an acquittal of

any other count.". The Court concluded that pursuant to this

language, a verdict is valid “even though the jury’s action in returning

it was, in a legal sense, inconsistent with its action in returning

another verdict of acquittal or guilt of a different offense.” (Lopez,

supra, 131 CalApp.3d at p. 570, quoting Witkin, Cal. Criminal

Procedure, § 549, p. 560.)

4. There is, of course, nothing illogical about finding appellant

guilty of murder as an aider and abettor if, as must be presumed to

have been the case, the jury was not convinced he used a gun during

the crime.

-15-

My colleagues’ reliance upon Lopez is curious,

because the opinion in that case does not support but

repudiates their principal assertion that a factual finding

on an alleged enhancement is for double jeopardy

purposes significantly different from a factual

determination relating to an element of an offense. When

it commenced its inquiry into the legal effect of the

inconsistency between the verdict on each of the offenses

and the finding that he did not use a firearm, the court in

Lopez considered whether to ignore the finding of no use

on the ground that, technically, an enhancement may be

differentiated from an element of the offense-which is the

course my colleagues take. The court refused to take this

position because it realized that for the purposes of its

legal analysis a negative factual finding regarding an

enhancement cannot rationally be distinguished from a

factual finding regarding an element of an offense. As

stated in Lopez, “although the amended information

alleges ‘enhancement’ rather than an ‘offense’... , the

degree of factual inconsistency is no greater, or no less,

than in the cases discussed above [in which the

inconsistency was solely between offenses]." (Lopez, supra,

131 Cal.App.3d at p. 570.)

The majority also relies on People v. Nunez, supra,

183 Cal.App.3d 214, where the defendant was convicted of

conspiracy to commit murder for financial gain and first

degree murder, although the jury found he did not

personally use a firearm. Nunez maintained that since

the jury had returned a not true finding on the gun-use

allegation he had been convicted as an aider and abettor

and, therefore, should benefit from the juries’ conclusions

in his coconspirators’ cases that the killing was not

-16-

committed with malice for financial gain2/ The court

properly rejected these claims. First, it found that

Nunez’s motive for participating in the killing was not

necessarily derived from his coconspirator and that he

could be convicted of killing for financial gain despite the

contrary finding at the trial of one of his coconspirators.

The court further reasoned that the verdict in the

trial of Nunez’s coconspirator, Medina, did not necessarily

establish that Medina had been convicted as the

perpetrator or that the jury had determined he had acted

without malice. Because the record was insufficient to

determine whether Medina had been tried solely as the

perpetrator the court concluded that the requirements for

applying collateral estoppel had not been met: “we

cannot say the previous jury necessarily determined the

only principal between the two men did not harbor

malice. This issue not being decided adversely to the

prosecution, collateral estoppel would nct bar defendant's

conviction of the crime of murder on the theory that he

was either the direct perpetrator or guilty as an aider and

abettor." (Nunez, supra, 183 Cal.App.3d at p. 227.) Thus,

the court relied heavily on "the difficulty of identifying the

issues resolved against the People in the prior trial." (/d.,

at p. 221, relying on People v. Taylor (1974) 12 Cal.3d 686,

696 [117 Cal.Rptr. 70, 527 P.2d 622].) There is no such

5. Nunez theorized that if he participated only as an aider and

abettor he must have shared the principal's intert--which a prior jury

determined was something less than malice (since Nunez’s

coconspirator was convicted of manslaughter, not murder). Similarly,

since another jury had concluded that Nunez’s other coconspirator

had not committed the killing for financial gain, Nunez argued that

he also could not have committed the crime for that purpose.

0 has a oe

Fi

difficulty in the present case, where we know exactly what

issue was resolved against the People at the first trial.

I have no quarrel with the reasoning in Nunez.

However, in reaching its conclusion the court considered

the effect of a negative finding on a gun-use allegation

and made the bewildering statement-seized upon by the

majority here--that "[a] jury’s finding on an alleged

enhancement that an accused was not armed with a

firearm or did not personally use a firearm does not

necessarily mean that the accused was not a direct

perpetrator of the crime." (People v. Nunez, supra, 183

Cal.App.3d at pp. 225-226.) Taken out of context, this

Statement is irrational. A jury which finds that a

defendant did not personally use a handgun in a case in

which the victim died from gunshot wounds is clearly

Stating its belief that the defendant was not the

perpetrator.

This is not what the Nunez court either needed or

could have meant to say. The statement appears in

Nunez in the context of a discussion of People v. Lopez,

supra, 131 Cal.App.3d 565, in which, as I have described,

the court held that inconsistencies between a verdict on

an Offense and a finding on an enhancement did not

invalidate the verdict on the offense. Therefore, the idea

the Nunez court almost certainly intended to convey by

the statement in question is that a jury’s finding on an

alleged enhancement that an accused did not personally

use a firearm does not necessarily mean that the accused

could not be convicted as a perpetrator pursuant to an

inconsistent verdict on the offense in the same case.

It also bears pointing out that the Nunez court

accepted the conclusion in Lopez that an inconsistent jury

-78-

finding cannot be ignored simply because it relates to an

enhancement rather than an offense. (Nunez, supra, 183

Cal.App.3d at p. 226.) Thus, to the dubious extent that

Nunez and Lopez, which did not involve multiple trials of

the same person for the same offense, are at all germane

to the issues before us here, they reject rather than

support the basic idea upon which my colleagues construct

their house of cards.

2.

The second theory advanced by the majority

attempts to distinguish the jury’s negative finding on the

gun use allegation from a determination that the accused

was not the actual killer. The majority argues that the

jury’s finding on the gun-use allegation ought not preclude

appellant’s retrial as the actual perpetrator because "[w]e

are not concerned with the subject of punishment

following conviction. A use enhancement is relevant only

to punishment." (Maj. opn., ante, p. 1325.) To be sure,

an affirmative personal use finding would technically affect

only the length of sentence, and not the issue of guilt on

the substantive offense (though the jury is unaware of the

limited effect of its determination). However, we do not

have an affirmative gun-use finding, but a negative finding,

which has implications that go beyond sentencing. As |

have been insisting, the plain and unassailable reality is

that when in a murder case the jury determines that a

gun-use allegation is untrue it is unmistakably declaring

that the defendant was not the perpetrator of the

homicide. That this factual determination addresses an

allegation pled separately from the offense is not only

unknown to the jury but wholly beside the legal point. As

earlier explained, the negative finding on the gun use

ah A ae LOE ae AN bee ORAS pa A oF

-79-

relates to an issue of "ultimate fact." Once such an issue

has been validly determined in favor of a defendant, as it

has in this case, it cannot be litigated between the same

parties in any future lawsuit. (Ashe v. Swenson, supra, 397

US. 436, 443 [25 L.Ed.2d 469, 475].)

The principle that the People are precluded from

relitigating the same issue against the same defendant

based on the same factual circumstances may apply even

if the original determination was sought in connection with

the issue of penalty, did not formally result in an acquittal

on a charged offense, and did not necessarily negate the

possibility of prosecution for an independent offense.

When in Arizona v. Rumsey (1984) 467 U.S. 203 [81

L.Ed.2d 164, 104 S.Ct. 2305] and Bullington v. Missouri

(1981) 451 U.S. 430 [68 L.Ed.2d 270, 101 S.Ct. 1852], the

United States Supreme Court accorded double jeopardy

protection to special verdicts rendered by fact finders

refusing to impose the death penalty, it reasoned that the

verdicts were essentially indistinguishable from acquittals

on charged offenses because (1) the prosecution had the

burden of proving statutorily defined facts beyond a

reasonable doubt; (2) the court or jury was required to

make specific findings or render a special verdict; (3) the

factfinder’s decision was based on a determination that

the prosecution either had or had not proved its case; and

(4) the determination was made following a hearing which

involved the submission of evidence and presentation of

argument. (Arizona v. Rumsey, supra, 467 U.S. at pp. 209-

211 [81 L.Ed.2d at pp. 170-171]; Bullington v. Missouri,

supra, 451 U.S. at p. 438 [68 L.Ed.2d at pp. 278-279].)

All of these requirements were met in the present case

with respect to the gun-use allegation. Thus, the fact that

-80-

the allegation related, inter alia, to sentencing does not in

and of itself permit the substance of the allegation to be

relitigated.

My colleagues take me to task for allegedly

ignoring the reluctance of the Supreme Court in Rumsey

and Bullington to extend the double jeopardy principle to

sentencing and the limited rationale which supports the

holdings in those cases. (Maj. opn., ante, p. 1328.) The

judicial reluctance to which my colleagues refer clearly

does not relate to the type of situation presented in this

case. Rumsey and Bullington both involved capital murder

charges under state laws that separated trial on the issue

of guilt from that on the issue of penalty. In both the

triers of fact found against the defendant on the question

of guilt but, at the sentencing trial, found that the penalty

of death should not be imposed. It was the latter findings

that barred the state from seeking to reimpose the death

penalty at a second trial. The Bullington court noted that

the principle of double jeopardy ordinarily does not apply

to sentencing because "[t]he imposition of a particular

sentence usually is not regarded as an ‘acquittal’ of any

more severe sentence that could have been imposed."

(Bullington v. Missouri, supra, 451 US. at p. 438 [68

L.Ed.2d at p. 278].) Double jeopardy was nevertheless

applied in Bullington and Rumsey because in those cases

the prosecution had the burden of proving certain facts ;

beyond a reasonable doubt and the sentencing hearing

"resembled and, indeed, in all relevant respects was like

the immediately preceding trial on the issue of guilt or

innocence." (Ibid. [68 L.Ed.2d at p. 279], Arizona v.

Rumsey, supra, 467 U.S. at pp. 209-210 [81 L.Ed.2d at pp.

170-171].) The doubts expressed by the Supreme Court

Sah dni dle Nate aes: > siabechiGasbia inal ” .

-81-

about the application of double jeopardy principles to

matters that ordinarily relate only to sentencing certainly

do not apply to the situation presented in this case, where

the critical fact was established at a proceeding that did

not merely resemble but was the trial on the issue of guilt

or innocence.

The majority’s suggestion that, out of mercy or a

desire for leniency, the jury might have issued a negative

finding on the gun use even if it really believed appellant

was the trigger man is not only inconceivable as a matter

of fact but highly irregular as a matter of law. The notion

that the jury may have acted out of mercy or a desire for

leniency is not based upon anything in the record, but was

presumably suggested by judicial reliance on such a

possibility in cases like People v. Nunez, supra, 183

Cal.App.3d at p. 226, involving inconsistent verdicts at a

single prosecution. (E.g., Dunn v. United States (1932) 284

U.S. 390, 393 [76 L.Ed. 356, 359, 52 S.Ct. 189, 80 A.L.R.

161], quoting Steckler v. United States (2d Cir. 1925) 7

F.2d 59, 60; People v. Amick, supra, 20 Cal.2d 247, 252,

quoting People v. Horowitz (1933) 131 Cal.App.Supp. 791,

793-794 [19 P.2d 874]; see also Standefer v. United States

(1980) 447 U.S. 10, 11 [64 L.Ed.2d 689, 692-693, 100 S.Ct.

1999].) I am aware of no authority for the proposition

that a person may be twice prosecuted for the same

offense because an ultimate fact decided adversely to the

People in the first trial may have resulted from

undeserved mercy or a desire for leniency.

Absent specific and strong reason to think

otherwise, an appellate court is required to assume that a

jury verdict in a case under review resulted from a proper

understanding and application of the trial court’s

-82-

instructions (Zuckerman v. Underwniters at Lloyd’s (1954)

42 Cal.2d 460, 478-479 [267 P.2d 777]; Palmer v. Ted

Stevens Honda, Inc. (1987) 193 Cal.App.3d 530, 536 [238

Cal.Rptr. 363]; Trapani v. Holzer (1958) 158 Cal.App.2d 1,

6 [321 P.2d 803]), which in a criminal case includes the

admonition that the subject of punishment is not to be

discussed or considered by the jury and must not in any

way affect its verdict. (CALJIC No. 17.42.) We must

presume that the jurors were intelligent persons who

understood and followed the instructions they received.

(People v. Romo (1975) 47 Cal.App.3d 976, 990 [121

Cal.Rptr. 684]; People v. Powell (1960) 186 Cal.App.2d 54,

59 [8 Cal.Rptr. 707].) If reviewing courts are permitted to

attribute an unapparent but congenial meaning to a jury

verdict with which they otherwise do not agree, they will

have freed themselves from the constraints of neutral legal

principles and made a mockery of the appellate process.

The record presents absolutely no reason to believe

that, as the majority wildly speculates, the jury rejected

the gun use allegation out of mercy or "through confusion

or ennui." (Maj. opn., ante, p. 1324.) On the contrary,

what evidence we do have of the jury’s motives indicates

exactly the opposite of that which my colleagues

conveniently imagine. As the majority acknowledges, on

the third day of deliberations the jury conveyed a note to

the court stating: "please explain the law concerning

complicity, for example, in this case may the defendant be

convicted of murder or attempted murder without having

personally fired the bullets?" (Maj. opn., ante, p. 1315,

italics added.) Shortly after receiving the requested aiding

and abetting instructions the jury returned verdicts of

guilty for both first degree murder and attempted murder.

-83-

Significantly, the jury found the gun-use allegations true as

to the attempted murder but untrue as to the murder.

The nature of the legal question the jury put to the judge

shortly before it returned its verdict and the different

findings on the two gun-use allegations plainly show the

jury was discriminating in its evaluation of the evidence

and that it did not believe defendant pulled the trigger of

the gun that killed Karen Taylor.

The record shows not only that the jury knew what

it was doing and meant what it said but that the district

attorney who prosecuted the case actually anticipated this

result.

It was defense counsel--clearly fearful of a

compromise verdict--who objected to the giving of aiding

and abetting instructions at the close of trial. When the

jury later requested such instructions the district attorney

urged that they be given and stated that his failure to

earlier insist that this be done was inadvertent. The

prosecutor’s rationale for giving the aiding and abetting

instructions was as follows: "What I neglected to bring to

the Court’s attention and to the jury’s attention is because

the defense in this case was that the defendant did not

commit either offense, that if the jury in fact rejected the

defense’s version of what happened and accepted the

prosecution’s version, and the evidence I think was much

stronger on the attempted murder as point out to the

defendant [sic] than on the murder charge, that if the jury

did in fact accept the defendant as being the principal on

the attempted murder, and having rejected anyone else’s

presence, then only two people could have been involved

in the murder: The defendant or Ms. Lawanna Walker.

And the jury could still convict the defendant of murder, :

ee

-84-

they believed Lawanna Walker had in fact fired the fatal

shots ...." (Italics added.)

The result foreseen by the district attorney is the

result that came to pass. He must now live with it,

because, as apparently still needs to be said, the

constitutions of this state and nation forbid placing a

person twice in jeopardy for the same criminal act. (Cal.

Const., art. I, § 15; U.S. Const., 5th Amend.)

3.

Finally, the majority claims collateral estoppel

cannot be applied in this case since (1) the gun-use

finding was not "essential" to the judgment; and (2) the

prosecution was not permitted to fully litigate the question

of appellant’s actions at the first trial due to Ms. Walker’s

refusal to testify.

The majority focuses on language from Newton v.

Superior Court (9th Cir. 1986) 803 F.2d 1051, 1057, cert.

den. (1987) 481 U.S. 1070 [95 L.Ed.2d 873, 107 S.Ct.

2464], which indicates that collateral estoppel will only

apply to those issues that were actually litigated and

“essential to the judgment” and argues that collateral

estoppel should not apply in this case because the use

finding is "adjunctive" in nature. This is casuistry. The

principle that collateral estoppel only applies to issues

essential to the judgment ensures that parties are

precluded from relitigating only those issues actually

decided by the trier of fact. In the absence of special

findings, a later court may know that a subsidiary issue

was resolved only if it was "essential to the judgment." It

is elementary, however, that inquiry whether a particular

issue was essential to an earlier judgment is necessary only

if that judgment does not explicitly address the issue or

-85-

the question is otherwise in doubt. Such inquiry is

obviously unnecessary where, as in this case, there can be

no doubt either that the Original finder of fact specifically

addressed and decided the issue in question (because it

did so in a special verdict) or that the finding was

essential (because, as required by law, the court directed

that the finding be made and included it in the judgment).

Nor can there by any doubt that the issue originally

decided--whether appellant pulled the trigger of the gun

that killed Karen Taylor--is the precise issue that would be

presented again at the second trial. As pointed out in

the Restatement, "[w]hen an issue is properly raised, by

the pleadings or otherwise, and is submitted for

determination, and is determined, the issue is actually

litigated within the meaning of the [rule of collateral

estoppel]." (Rest.2d Judgments, supra, § 27(d), p. 255.)

It bears mentioning, in this connection, that double

jeopardy protection is regularly accorded criminal

defendants in instances in which the jury was much less

explicit than the jury here. Under the theory of implied

acquittal codified in Penal Code section 1023, "a verdict of

guilty of a lesser included offense constitutes an implied

acquittal of the greater offense of which the jury could

have convicted the defendant." (Stone v. Superior Court

(1982) 31 Cal.3d 503, 511 [183 Cal.Rptr. 647, 646 P.2d

809], fn. omitted; Green v. Superior Court, supra, 355 U.S.

184.) Further, "[iJn some circumstances, double jeopardy

bars a retrial even though no verdict has been rendered.

Once jeopardy attached, discharge of the jury without a

verdict is tantamount to an acquittal and prevents a

retrial, unless the defendant consented to the discharge or

legal necessity required it. [Citations.]" (Stone, supra, at

-86-

p. 516.) It seems to me anomalous to grant double

jeopardy protection where a jury has not resolved an issue

at all, or done so only by implication, but to deny

protection where, as in this case, the jury has explicitly

ruled in favor of the defendant regarding an ultimate fact.

Perhaps the most astonishing aspect of the majority

opinion is the notion that collateral estoppel should not

be applied in this case because the prosecution did not at

the first trial have a full and fair opportunity to litigate

the issue of defendant’s guilt. (Maj. opn., ante, pp. 1325-

1326.) The majority bases this theory on the analysis

employed by the United States Supreme Court in

Standefer v. United States, supra, 447 U.S. 10, an opinion

which has almost nothing to do with the issue before us

here. In Standefer the defendant was indicted, inter alia,

for aiding and abetting a named Internal Revenue Service

agent in accepting unlawful compensation. Prior to the

indictment, the IRS agent was acquitted of certain of the

violations the defendant was accused of aiding and

abetting. The defendant thereupon moved to dismiss his

indictment as to these violations on the ground that since

the agent had been acquitted of such violations, the

defendant could not be convicted of aiding and abetting

them. In other words, unlike the present case, the

defendant in Standefer was not subject to retrial; there

was no prior jury finding that he could not have

committed the offense in the manner charged.

In affirming the trial court’s denial of the motion to

dismiss, the Supreme Court expounded at some length

upon the doctrine of nonmutual collateral estoppel in the

context of a criminal case. In explaining that the

prosecution is often without the kind of “full and fair

-87-

Opportunity to litigate” that is a prerequisite of estoppel,

the court specified the aspects of the criminal law that

make this so: "the prosecution’s discovery rights in

Criminal cases are limited, . . .; it is prohibited from being

granted a directed verdict or from obtaining a judgment

notwithstanding the verdict no matter how clear the

evidence of guilt . . .; it cannot secure a new trial on the

ground that an acquittal was plainly contrary to the weight

of the evidence . . .; and it cannot secure appellate review

where a defendant has been acquitted." (Standefer v.

United States, supra, 447 US. at p. 22 [64 LEd.2d at p.

699].) Moreover, the court observed, "[t]he application of

nonmutual estoppel in criminal cases is also complicated

by the existence of rules of evidence and exclusion unique

to our criminal law." (Jd, at p. 23 [64 L.Ed.2d at p.

700).) Thus, "[iJt is frequently true in criminal cases that

evidence inadmissible against one defendant is admissible

against another. The exclusionary rule, for example, may

bar the government from introducing evidence against one

defendant because that evidence was obtained in violation

of his constitutional rights. . . . In such circumstances,

where evidentiary rules prevent the Government from

presenting all its proof in the first case, application of

nonmutual estoppel would be plainly unwarranted." (id.,

at pp. 23-24 [64 L.Ed.2d at p. 700], fn. omitted.)

The reason the court refused to estop the initial

prosecution of one person because of the acquittal of

another on related charges is because of the unfairness

that would result if the present defendant were permitted

to vicariously reap the benefit of rules preventing the

Prosecution from fully presenting its proof against the

person first prosecuted and from appealing the acquittal

-88-

of that other person. No such unfairness would flow from

the application of estoppel in this case. The prosecution’s

discovery rights against defendant were no different at his

first trial than they would be at another. Nor was any

rule of evidence applicable to the first trial that would not

apply at a second. Nor does the absence of any remedial

procedure at defendant’s first trial provide any equitable

justification for a second prosecution.

The reasons the majority thinks it would be "unfair"

to estop a second prosecution in this case are not among

those referred to in Standefer, nor so far as I am aware

have they ever previously been relied upon by any court

to justify the result. The majority would permit a second

prosecution of defendant as perpetrator simply because

they agree with the prosecution that he was the

perpetrator and because the district attorney at the first

trial assertedly was prevented from making a fair

presentation of admissible evidence “because of an

artificial curtailment of the People’s theory and proof. .

.." (Maj. opn., ante, p. 1326.)

The “artificial curtailment" of the People’s proof

consisted of the exercise of the Fifth Amendment right to

remain silent by Lawanna Walker, who is now willing to

waive that right, and is expected to testify that defendant

was the trigger man. This change of heart appears to be

the result of a favorable plea bargain which, though it

could have been, was apparently not offered Ms. Walker

at the first trial. The majority seems therefore to be

saying that a district attorney may withhold immunity, a

favorable plea bargain or some other advantage sought

by a witness who otherwise refuses to testify and hope

that the jury will convict without that testimony; if the

-89-

district attorney is proved wrong and the jury acquits, the

prosecutor can then simply grant the witness the desired

favor in return for the necessary testimony and retry the

defendant for the same offense without violence to the

doctrine of collateral estoppel. Such a scenario, which

permits a district attorney to profit from his own

miscalculation, should be inconceivable. Collateral

estoppel must be applied independently of a prosecutor’s

Strategy decisions. The district attorney in this case, who,

as earlier pointed out, anticipated that the jury might find

defendant guilty as an aider and abettor, could as easily

before the first trial as afterwards have made Ms. Walker

the offer that appears to have persuaded her to agree to

testify. To use the witness’s belated change of heart--or,

more likely, the district attorney’s belated exercise of his

considerable power to induce such a change of heart--as

a basis upon which to permit defendant to be retried for

the same offense, and to do this in the name of fairness,

gives a new and grotesque meaning to the word "unfair,"

which is certainly not the one the Standefer court had in

mind.

Defendant’s guilt or innocence of the offense for

which the district attorney would retry him is irrelevant.

As has been pointed out, "[w]hile the double jeopardy

doctrine is not designed to protect criminals, it must be

applied even though the result is frustration in whole or

in part of punishment for crime in a particular case, and

the fact that the result of upholding a plea of former

jeopardy will be that [an] accused will go without sentence

Or punishment for an offense to which he had pleaded

guilty does not alter his rights or change his position as to

-90-

his right to plead former jeopardy." (22 C.j.S., Criminal

Law, § 238, p. 617, citations omitted.)

The majority attempts to show that this case does

not involve a double jeopardy issue by theorizing that

defendant is subject to “continuing jeopardy," as that

concept is explained in Justices of Boston Municipal Court

v. Lydon (1984) 466 U.S. 294 [80 L.Ed.2d 311, 104 S.Ct.

1805]. My colleagues have again missed the point. The

concept of continuing jeopardy, which simply permits the

retrial of a defendant whose conviction was reversed on

appeal, clearly does not permit the retrial of an offense,

such as that involved in this case, where "there has been

some event, such as an acquittal, which terminates the

original jeopardy." (Richardson v. United States (1984) 468

US. 317, 325 [82 L.Ed.2d 242, 251, 104 S.Ct. 308], italics

added; see discussion, ante, fn. 1, p. 1335.) Not one of

the federal and state cases cited by the majority involved

an attempt to relitigate an ultimate fact previously

determined in favor of the defendant. The cases are all

inapposite.

United States v. Ball (1896) 163 U.S. 662 [41 L.Ed.

300, 16 S.Ct. 1192], one of the early cases on the subject,

illustrates very well why a person in the position of the

defendant in the present case is not subject to continuing

jeopardy. Ball involved murder charges against three

defendants who were tried together. The jury acquitted

one and convicted the other two. On the initial appeal

the two convictions were reversed because the indictment,

"by reason of failing to aver either the time or the place

of the death of [the victim], was fatally defective, and

would not support a sentence for murder... ." (Jd, at

p. 664 [41 L.Ed. at p. 301].) The trial court thereupon

-91-

dismissed the defective indictment and returned a new

indictment against all three defendants. The two

defendants who had been convicted then "filed a plea of

former jeopardy, by reason of their trial and conviction

upon the former indictment, and of the dismissal of that

indictment." (/d., at p. 665 [41 L.Ed. at p. 301].) The

remaining defendant, Millard Fillmore Ball, filed a similar

plea but relied primarily on the fact of his acquittal at the

first trial. The state appellate court denied all three pleas

on the ground that the original indictment was insufficient

to serve as an indictment for murder and that the three

defendants were therefore not initially placed in jeopardy.

All three defendants were convicted at the second trial.

The United States Supreme Court approved the

reprosecution and affirmed the convictions as to the two

defendants whose initial convictions earlier had been

reversed, holding that "a defendant, who procures a

judgment against him on an indictment to be set aside,

may be tried anew upon the same indictment, or upon

another indictment, for the same offense for which he had

been convicted. [Citations.]" (Jd, at p. 672 [41 L.Ed. at

p. 303].) In other words, the jeopardy of the two

defendants who were initially convicted never terminated

and they were subject to "continuing jeopardy."

It is in connection with the third defendant,

however, that Ball is, for present purposes, most

illuminating. The court reversed the conviction of this

defendant, concluding that "a general verdict of acquittal

upon the issue of not guilty to an indictment undertaking

to charge murder, and not objected to before the verdict

as insufficient in that respect, is a bar to a second

indictment for the same killing." (United States v. Ball,

2

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-92-

supra, at p. 669 [41 L.Ed. at p. 302].) In reaching this

result, the court essentially adopted language in the

dissenting opinion of Justice Livingston in People v. Barrett

(N.Y. 1803) 1 Johns. 66, which until Ball had been the

leading American case on application of the double

jeopardy clause. Justice Livingston’s views are particularly

relevant to the case before us. “This case,” he stated,

“presents the novel and unheard of spectacle, of a public

officer, whose business it was to frame a correct bill,

openly alleging his own inaccuracy or neglect, as a reason

for a second trial, when it is not pretended that the merits

were not fairly in issue on the first. That a party shall be

deprived of the benefit of an acquittal by a jury, on a

suggestion of this kind, coming too from the officer who

drew the indictment, seems not to comport with the

universal and humane principle of criminal law, “that no

man shall be brought into danger more than once for the

same offence." It is very like permitting a party to take

advantage of his own wrong. If this practice be tolerated,

when are trials of the accused to end? ... [T]he

prosecutor, if he be dissatisfied and bent on conviction,

has nothing to do but to tell the court that his own

indictment was good for nothing; that it has no venue, or

is deficient in other particulars, and that, therefore, he has

a right to a second chance of convicting the prisoner, and

so on, toties quoties.” (United States v. Ball, supra, at

pp. 667-668 [41 L.Ed. at p. 302], quoting People v. Barrett,

supra, 1 Johns. at p. 74, dis. opn. of Livingston, J.)

The majority would permit the previously litigated

question whether defendant directly committed the murder

of Karen Taylor to be relitigated due in part to the failure

of the prosecution at the first trial to obtain the more

aaa eeaenninneerneaceaieed

-93-

convincing testimony that it has apparently now secured.

This reasoning is constitutionally proscribed. "The Double

Jeopardy Clause forbids a second trial for the purpose of

affording the prosecution another Opportunity to supply

evidence which it failed to muster in the first proceeding.

This is central to the prohibition against successive trials."

(Burks v. United States, supra, 437 U.S. 1, 11 [57 L.Ed.2d

at p. 9], fn. omitted; see also, Greene v. Massey (1978) 437

ih US. 19 [57 LEd.2d 15, 98 S.Ct. 2151]; Hudson v.

Louisiana (1981) 450 U.S. 40 [67 LEd.2d 30, 101 S.Ct.

970}.) :

As indicated at the outset, I agree that the

evidence suggests defendant may have been the actual

killer and not merely an aider and abettor. However,

under our system it is not the appellate courts but the

jury that is the ultimate arbiter of the facts; its

determination should not be disregarded simply because

other minds would have reached a different conclusion or

to provide the losing side an opportunity to present a

stronger case.

Defendant has been subjected to a murder trial at

which the jury’s expressly determined he did not

personally shoot Karen Taylor. As that issue has been

clearly decided adversely to the prosecution it cannot be

relitigated without offending the Constitutions of

California and the United States. Accordingly, I would

affirm the judgment.

On January 26, 1989, the concurring and dissenting

Opinion was modified to read as printed above. A

petition for a rehearing was denied January 26, 1989.

Kline P.J., was of the opinion that the petition should be

granted. Respondent's petition for review by the Supreme

-94-

j Court was denied April 20, 1989. Mosk J., and Broussard,

J., were of the opinion that the petition should be

granted.

APPENDIX D

ee ee Ne eM ee

POPE ELIT PPI LLORES POONA LOB ACN OE ,

—_—

-95-

NOT TO BE PUBLISHED

IN OFFICIAL REPORTS

FILED: May 16, 1985

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, (A016897)

(Su

Plaintiff and Respondent,

v. No. 73299)

JAMES ANTHONY PETTAWAY

)

)

)

)

)

Defendant and Appellant. )

)

This is an appeal from a judgment following

convictions of murder and attempted murder.

We affirm in part and reverse in part.

Procedural History

On October 23, 1981, an information filed in

Alameda County Superior Court charged appellant James

Pettaway with first degree murder (Pen. Code, § 187)

(count one) and attempted first degree murder (Pen.

Code, § 664/187) (count II). The information also alleged

personal use of a handgun (Pen. Code, §§ 1203.06,

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12022.5) and personal infliction of great bodily injury

during the commission of both offenses. (Pen. Code, $§

12022.7, 1203.075.) Trial by jury resulted in verdicts of

guilty on both counts and "true" findings as to both special

allegations related to the attempted murder only.

Appellant filed a timely appeal from the judgment

entered upon his convictions.

Statement of Facts

This case concerns the murder of Karen Taylor and

the attempted murder of Michael Seals at Karen’s home

on Sunday morning, March 1, 1981. On that morning,

appellant visited Karen. The two had met at the Astra

Realty and Investment Company office in Oakland where

both had been employed until Karen was terminated in

1980, and they had occasionally seen each other since.

While appellant stayed behind at the house, Karen left to

pick up Michael Seals at a bus stop. While Karen was

gone, appellant’s girlfriend, Lawana Walker, came by.

Karen returned with Michael. She joined appellant

and Lawana at the dining room table. Michael stood near

a heater between the dining room and the living room.

Appellant proceeded to offer cocaine to the two

women. Karen declined; appellant and Lawana began to

snort the cocaine while Michael watched.

Michael then heard appellant say to Lawana, "Give

me the thing." Lawana took a handgun out of her purse

and gave it to appellant. Appellant walked past Michael

into the living room, gun in hand, and looked out the

window. Appellant then turned toward Michael, who had

his back to him, faced the women seated at the table, and

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shot Michael in the back of the neck. As he fell to the

floor, Michael saw Karen get up and run into the kitchen.

He then fainted. When Michael regained consciousness,

he saw appellant and Lawana leave through the front

door. He staggered outside; neighbors called for an

ambulance.

The police arrived and entered Karen’s home.

They found her body lying in the bathtub. She had been

shot twice while kneeling in the bathtub facing her

assailant.

Appellant left the state. He was arrested in Texas

several months later, after he ran a red light and following

a long chase at high speed.

When arrested, appellant gave his name as "Willie

Joe Wilson" and produced a birth certificate. A check of

the license plates revealed they were registered to a

different vehicle. Two California license plates traced to

appellant were found in the trunk. At the police station,

"Wilson" finally gave his true name as James Pettaway, the

appellant. A search of his motel room turned up seven

bullets which matched those found in Karen’s house.

At trial, Leonard Stephens, the owner of Astra

Realty, testified that appellant had worked for him and

had known that Stephens kept a gun and ammunition in

his office desk drawer. On Friday, February 27, 1981, the

gun was in its usual place. Stephens came to the office

on Sunday morning, March 1, and noticed the gun and

some ammunition were missing. By 4 p.m. that day, the

gun had been returned. Ballistic evidence showed that

this had been the gun used to shoot Karen. The bullet

lodged in Michael was never removed, and it could not be

determined whether it had been fired from the same gun.

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Stephens further testified that he spoke with

appellant on the telephone on March 1 at about noon.

Appellant at the time was at the real estate office. The

following morning, Stephens spoke to appellant on the

phone again, telling appellant that the police had seized

his handgun and had made inquiries about appellant in

connection with Karen’s death. Appellant never again

returned to work.

Appellant gave a different version of the events.

According to him, he and Lawana were at the Astra

Realty office on Saturday evening, February 28, 1981.

They noticed that Stephens had left his gun in his desk

drawer and took it for safekeeping, intending to give it to

Stephens who lived across the street from appellant.

At 9:30 p.m., appellant and Lawana went to

Karen’s home, where a party was in progress. There they

drank liquor and snorted cocaine, and left.and came back

to get appellant’s pipe which he had left behind.

Appellant, Lawana, Karen, and another man spent the

rest of the night "[g]etting high."

At 10:00 a.m. the next morning, March 1, appellant

and Lawana went to the Astra Realty office in order to

get $300 and some cocaine appellant had left in his desk.

They returned to Karen’s house. Two men were there.

Karen left to pick up Michael, asking appellant to keep an

eye on the two men. Appellant agreed.

The two men, who had been using some cocaine,

complained about its poor quality. Appellant gave them

his own supply and the men disappeared with it into the

back of the house.

Karen at that point returned with Michael. Karen

asked appellant if she could use Stephens’ gun to protect

1 | a ; |

herself from the two men. Lawana gave the gun to

appellant, who placed it on the dining room table and

went to sit on the living room sofa. He closed his eyes,

suddenly heard a gun shot, and saw Michael fall to the

floor. Appellant heard a man say “[w]here is the other

one at," and appellant fled out the front door.

Appellant stood on a nearby corner and saw

Lawana walk out of the house with the two men. The

men drove away in their car. Lawana took appellant back

into the *ouse to find a check she had earlier written to

Karen as »ayment for cocaine. Appellant saw Michael on

the floor, bleeding. He and Lawana left and eventually

went to a motel in San Lorenzo.

Appellant later spoke with Stephens, who informed

him that the police were looking for him. Lawana

convinced him not to turn himself in. Lawana told him

first that she had killed Karen, then that one of the men

had done it because Karen had not paid him for some

cocaine. Appellant believed there was a "contract" on his

life because he had witnessed the murder. He and

Lawana left the state.

Appellant explained that he fled from the police in

Texas because, being a black man in a white section of

town, he was in fear for his safety.

Finally, appellant testified that one of the two men

at Karen’s house was named Michael; he refused to

identify the second man in order to protect his family

from retaliation.

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I , Aidi 1 Abetti

Neither party requested, and the trial court initially

did not give instructions on aiding and abetting. That

theory had not been part of the prosecution’s case-in-

chief. However, during the third day of deliberations the

jury requested the following: “Please explain the law

concerning complicity, for example, in this case may the

defendant be convicted of murder or attempted murder

without having personally fired the bullets?"

The trial court complied with the request./

1. The trial court evidently believed that there was sufficient

circumstantial evidence to support an inference that appellant had

aided and abetted Lawana Walker in the killing of Karen Taylor. It

gave, in substance, CALJIC instructions Nos. 3.00 and 3.01, as

follows:

"The persons concerned in the commission or attempted

commission of a crime who are regarded by law as principals in the

crime thus committed or attempted and equally guilty thereof include:

"1. Those who directly and actively commit or attempt to

commit the act constituting the crime; or,

"2. Those who, with knowledge of the unlawful purpose of

the one who does directly and actively commit or attempt to commit

the crime, aid and abet in its commission or attempted commission;

or,

"3. Those who, whether present or not at the commission or

attempted commission of the crime, advise and encourage its

commission or attempted commission." (CALJIC No. 3.00.)

"A person aids and abets the commission of a crime if, with

knowledge of the unlawful purpose of the perpetrator of the crime,

he aids, promotes, encourages or instigates by act or advice, the

commission of such crime.

"Mere presence at the scene of a crime which does not itself

assist the commission of the crime does not amount to aiding and

abetting.

“Mere knowledge that a crime is being committed and the

failure to prevent it does not amount to aiding and abetting."

(CALJIC No. 3.01.)

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Appellant argues that these instructions on the law

of aiding and abetting were improper. We agree and

reverse the murder conviction.2/

Under People v. Beeman (1984) 35 Cal.3d 547,

aiding and abetting instructions properly should state that

"a person aids and abets the commission of a crime when

he or she, acting with (1) knowledge of the unlawful

purpose of the perpetrator; and (2) the intent or purpose

of committing, encouraging, or facilitating the commission

of the offense, (3) by act or advice aids, promotes,

encourages or instigates, the commission of the crime."

(Id., at p. 561.)

Here, the trial court instructed on the element of

knowledge, but not that of intent. Under Beeman, this

omission was error’ It removed from the jury’s

consideration the issue of whether appellant shared in the

intent to commit murder.

Beeman did not prescribe the correct standard of

review for such an error. Language contained in a

footnote implies that the error may be of federal

constitutional dimension, requiring reversal per se. The

court stated: "While the error which flows from the giving

of CALJIC No. 3.01 is not identical to a conclusive

2. We discuss the instructions as they relate to the murder

conviction only, because they were not prejudicial as to the attempted

murder conviction. The jury did frame its question in terms of both

the murder and the attempted murder charges. However, it found

that the allegation that appellant had personally used a firearm in

the attempted murder was true. Therefore, the jury did not convict

appellant of the attempted murder on an aiding and abetting theory.

3. Beeman is applicable to this case. (People v. Minichilli

(1984) 161 Cal.App.3d 660, 670.)

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presumption or to placing the burden of persuasion on

the defendant .. . , it is just as effective--if not more

effective--in removing the issue of intent from the jury’s

consideration." (Id., at p. 561, fn. 4.)

In People v. Caldwell (1984) 36 Cal.3d 210, 224,

however, the court, relying upon the standard set forth in

People v. Sedeno (1974) 10 Cal.3d 703, concluded that the

error requires reversal unless it is possible to determine

that "the factual question posed by the omitted instruction

was necessarily resolved adversely to the defendant under

other, properly given instructions." (Id., at p. 721.)

People v. Garcia (1984) 36 Cal.3d 539 suggests that

reversal per se is warranted, unless 1) the erroneous

instruction either pertained to a crime for which appellant

was acquitted or had no bearing on the offense for which

he was convicted; 2) appellant conceded intent; 3) the jury

found that appellant had the requisite intent in connection

with other, proper instructions; 4) intent was established

as a matter of law.

We conclude that reversal is required here, under

the reasoning of either Sedeno or Garcia. In making

express findings that appellant did not personally use a

firearm and did not inflict great bodily injury on Karen,

the jury clearly convicted appellant of murder on an aiding

and abetting theory. The aiding and abetting instructions

given allowed the jury to find appellant guilty of first

degree murder without considering the first degree murder

instructions on intent’ Consequently, the jury did not

necessarily resolve the issue of appellant’s intent under

4. Under the CALJIC instructions given, an aider and abettor

is regarded as a principal and is equally guilty. See footnote 1 above.

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other, proper instructions. (People v. Sedeno, supra, 10

Cal.3d 703.) By the same token, the third Garcia

exception is inapplicable.

In addition, none of the other exceptions set forth

in Garcia applies. The erroneous instruction pertained to

an Offense of which appellant was convicted. Appellant

did not concede intent. Finally, intent was not established

as a matter of law.2/

Accordingly, in light of both Beeman and Garcia,

we reverse appellant’s conviction for murder£/

Instruction on Diminished Capacity

Appellant also contends that the trial court erred

in instructing the jury sua sponte on the principle of

diminished capacity, because the evidence did not support

that legal theory and the. theory is inconsistent with the

argument of the defense that appellant did not commit

the crime.’ He claims that the instruction may have

discredited appellant in the eyes of the jurors and, because

its impact on the jury deliberations cannot be assessed,

reversal is required.

5. The People contend that such intent was established because

“no other scenario except one involving appellant’s intentional

participation . . . is imaginable." We disagree, however. As one

example, it is entirely possible that appellant aided Lawana--assuming

she was the perpetrator--by giving her the gun, knowing of her intent

to kill Karen, without himself harboring the requisite intent.

6. Given this result, we do not discuss apellant’s remaining

contentions on the aiding and abetting issue.

7. Diminished capacity was still a valid defense at the time the

crimes occurred.

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The rule is that "the duty to give instructions, sua

sponte, on particular defenses and their relevance to the

charged offense arises only if it appears that the defendant

is relying on such a defense, or if there is substantial

evidence supportive of such a defense and the defense is

not inconsistent with the defendant’s theory of the case."

(People v. Sedeno, supra, 10 Cal.3d 703, 716.)

In the present case, the evidence supports a

diminished capacity defense. Appellant testified that

throughout the previous night and until early morning on

the date the crimes occurred, he drank liquor, used

cocaine, and was "[g]etting high." Michael testified that

appellant was snorting cocaine immediately before Michael

was shot. (See, e.g., People v. Flannel (1979) 25 Cal.3d

668, 684-686; People v. Stevenson (1978) 79 Cal.App.3d

976, 985; People v. Vasquez (1972) 29 Cal.App.3d 81, 88-

89.)

Appellant argues that it was error to instruct on

diminished capacity because that defense was inconsistent

with his theory of the case. We conclude, however, that

if there was error, it was invited. "If defense counsel

intentionally caused the trial court to err, the appellant

cannot be heard to complain on appeal. However,

because the trial court is charged with instructing the jury

correctly, it must be clear from the record that defense

counse] made an express objection to the relevant

instructions. In addition, because important rights of the

accused are at stake, it also must be clear that counsel

acted for tactical reasons and not out of ignorance or

mistake." (People v. Wickersham (1982) 32 Cal.3d 307,

330.)

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In the present case, the trial court, with great

prescience, repeatedly asked counsel to state his position

on a diminished capacity defense. It stated: "[1] Now,

if you do not want a dminished [sic] capacity instruction

given, and you make that as a tactical choice, I will not

give a diminished capacity instruction. Absent that, I will

give one on my own initiative on the basis of the evidence

I have before me." Counsel for appellant requested that

the court give the instruction on its own initiative.

Later, the court again requested that counsel state

his position: "[1] I just want to know, do you have any

objection to my giving it?" Counsel replied that he did

not, but that he wasn’t "asking for it, either." The judge

again indicated that he would give it, absent an objection.

Counsel said "Okay." Counsel subsequently clarified that

he did not request the instruction, because it was his

“understanding, that . . . it was mandatory that the Court

give it. So, it was not needed; no point in my requesting

it."

It is difficult to conceive of greater precautions that

the trial court could have taken to prevent possible

prejudice to appellant from the giving of the instruction.

Given the record of the case, we conclude that even if the

instruction was inconsistent with the defense’s theory, error

was invited and appellant may not now object.

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Conclusion

We reverse appellant’s conviction for murder.

In all other respects, the judgment is affirmed.

Holmdahl, J.

WE CONCUR:

Racanelli, P.J.

Elkington, J.