Petition for Writ of Certiorari — California v. Gutierrez

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FILED

No. 94 246 OCT 24 j99

IN TH@FFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1994

THE PEOPLE OF THE STATE OF CALIFORNIA,

PETITIONER,

ABRAHAM GUTIERREZ,

RESPONDENT.

On Petition for a Writ of Certiorari to the

California Court of Appeal, Second District, Division Seven

PETITION FOR WRIT OF CERTIORARI

GIL GARCETTI

District Attorney

County of Los Angeles, California

GEORGE M. PALMER

Acting Head Deputy

Appellate Division

GEORGE G. SIZE

BRENT RIGGS (Counsel of Record)

Deputy District Attorneys

849 South Broadway, Suite 1100

Los Angeles, California 90014-3570

Telephone: (213) 974-1615

—_ —— SST

QUESTION PRESENTED

A California jury convicted the defendant of crimes of

violence, and the state appellate courts affirmed the convictions.

After the affirmance, the victim of the crimes died, allegedly

from the injuries the defendant inflicted upon her in the crimes

of which he had been convicted. As a result, the state has now

charged the defendant with the victim’s murder.

Does the Due Process Clause of the Fourteenth Amendment

require the state trial court in the pending murder trial to allow

the defendant to religate the issues resolved by these prior

convictions?

_ me 4

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. The Facts Surrounding the Crime

and the First Prosecution and Trial

B. How the Federal Question was Presented

Below and Resolved by the Court of Appeal

REASONS FOR ALLOWANCE OF THE WRIT

I. Itis Appropriate to Allow the Writ Before Trial

II. The Decision Below Underscores the Growing

Split in both Federal and State Courts

Inspired by Dicta in Opinions from this Court

III. The Decision Below is Wrong and Involves a

Matter of Public Importance

CONCLUSION

lil

APPENDIX —

Opinions below A-1l

Majority opinion A-2

Dissenting opinion A-24 )

Order denying rehearing A-35 |

Order denying review A-36 |

Stay order A-37 |

California statutes and rules involved in the issues A-39 |

» ¢

oe et ee

TABLE OF AUTHORITIES

Cases

Ashe v. Swenson

397 U.S. 436 (1970)

Auto Equity Sales, Inc. v. Superior Court

57 Cal.2d 450 (1962)

Brittain v. Kinnaird

1 Brod. & B. (1819)

Carella v. California

491 U.S. 263 (1989)

Carmody v. Seventh Judicial District Court

81 Nev. 83 (1965)

Commonwealth v. Ellis

160 Mass. 165 (1893)

Commonwealth v. Evans

101 Mass. 25 (1869)

Commonwealth v. Feldman

131 Mass. 588 (1881)

Diaz v. United States

223 U.S. 442 (1912)

F.HA. v. The Darlington

358 U.S. 84 (1958)

Frank v. Mangum

237 U.S. 309 (1915)

Pages

7, 8, 12, 16

16, 17

13, 18

20, 21

Gutierrez v. Superior Court

24 Cal.App.4th 153 (1994)

Hernandez-Unribe v. United States

515 F.2d 20 (CA8 1975)

Hopkins v. Lee

6 Wheat. 109 (1821)

In re Winship

397 U.S. 358 (1970)

Kirby v. United States

174 U.S. 47 (1899)

Kowts v. Howard

3 Cal.4th 888 (1992)

Pena-Cabanillas v. United States

394 F.2d 785 (CA9 1968)

Pennsylvania v. Ritchie

480 U.S. 39 (1987)

People v. Bivens

231 Cal.App.3d 653 (1991)

People v. Ford

65 Cal.2d 41 (1966)

People v. Goss

200 Mich.App. $ (1993)

People v. Gutierrez

10 Cal.App.4th 1720 (1992)

12, 13

3, 5, 23

People v. Majado

22 Cal.App.2d 323 (1937) 19

Sealfon v. United States

332 U.S. 575 (1948) 14, 16

Simpson v. Florida

403 U.S. 384 (1971) 7,8

Southern Pacific Railroad Co. v. United States é

168 U.S. 1 (1897) 20

State v. Braskett

10 Ohio Ops. 947 (Ct. Common Pleas 1959) 20

State v. Ingenito

87 N.J. 204 (1981) 7, 9, 12, 13

State v. Johnson

134 N.H. 498 (1991) 7,8

United States v. Bruno

333 F.Supp. 570 (E.D.Pa. 1971) 12

United States v. Carlisi

32 F.Supp. 479 (E.D.N.Y. 1940) 12

United States v. Colacurcto

514 F.2d 1 (CA9 1975) ll

United States v. De Angelo

138 F.2d 466 (CA3 1943) 12

United States v. Dixon

509 U:S. (1993) 7, 22

United States v. Kirby

7 Wall 482 (1868)

United States v. Oppenheimer

242 U.S. 85 (1916)

United States v. Pelullo

14 F.3d 881 (CA3 1994)

United States v. Pryba

680 F.Supp. 790 (E.D.Va. 1988)

United States v. Rangel-Perez

179 F.Supp. 619 (S.D.Cal. 1959)

Constitutions, Statutes and Rules

United States Constitution

Article III, section 2

Amendment V

Amendment VI

Amendment VII

Amendment XIV

California Evidence Code section 402

California Penal Code

Section 187

Section 189

Section 190, subdivision (a)

viii

16, 17

12, 13, 18, 21

11, 12

3, 23

Section 246

Section 664, subdivision 1

Section 12022.5, subdivisions (a), (b)

Section 12022.7

California Rules of Court, Rule 24(a)

New Jersey Constitution, Article I, section 9

Other Authorities

Vestal, Issue Preclusion and Criminal Prosecutions

65 Iowa Law Review 281

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

THE PEOPLE OF THE STATE OF CALIFORNIA,

PETITIONER,

ABRAHAM GUTIERREZ,

RESPONDENT.

On Petition for a Writ of Certiorari to the

California Court of Appeal,

Second District, Division Seven

PETITION FOR WRIT OF CERTIORARI

The People of the State of California respectfully petition for

a writ of certiorari to review the judgment of the Court of

Appeal for the State of California, Second Appellate District,

Division Seven, in this case.

OPINION BELOW

The opinion of the Court of Appeal (App., post, A-1 to A-34)

is reported as Gutierrez v. Superior Court, 24 Cal.App.4th 153,

29 Cal.Rptr.2d 376 (1994).

JURISDICTION

The Court of Appeal entered its judgment on April 15, 1994,

and denied a rehearing on May 10, 1994. On August 11, 1994,

the California Supreme Court denied a timely petition for review.

Title 28, United States Code, section 1257(a), confers jurisdic-

tion on the Court.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

"The Trial of all Crimes, except in Cases of Impeachment,

shall be by Jury; ...." U.S. Const., Art. III, § 2.

"No person . . . shall be compelled in any criminal case to be

a witness against himself, nor deprived of life, liberty, or

property, without due process of law;...." U.S. CONST.,

Amend. V.

"In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, . . . and to

be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; . . . .". U.S. CONST.,

Amend. VI.

"In suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be preserved,

and no fact tried by a jury, shall be otherwise re-examined in any

Court of the United States, than according to the rules of the

common law." U.S. CONST., Amend. VII.

"[N]or shall any State deprive any person of life, liberty, or

property, without due process of law... ." U.S. CONST.,

Amend. XIV, § 1.

The appendix, post, contains the text of California statutes

involved in the issues in this case.

STATEMENT OF THE CASE

The Los Angeles County District Attorney, representing the

People of the State of California, filed an information in the Los

Angeles County Superior Court charging Abraham Gutierrez

with the murder of Sandra Zarate. The People of the state are

the petitioner here, and Gutierrez is the respondent. The District

Attorney asked the superior court for an order barring Gutierrez

from relitigating the issues resolved by his previous convictions

for shooting at the car in which Zarate rode,’ attempting to

murder her (without premeditation and deliberation),” and

personally and intentionally inflicting great bodily injury upon

her by shooting at the car.* The superior court ruled that

Gutierrez could not litigate those issues at his murder trial.

Gutierrez petitioned the California Court of Appeal, Second

District, for a writ of prohibition challenging the trial court’s

ruling. The Court of Appeal summarily denied the petition, but

the California Supreme Court granted Gutierrez’s petition for

review and ordered the matter transferred to the Court of Appeal

with instructions to that court to issue an alternative writ. The

Court of Appeal issued the alternative writ and, after receiving a

return and answer from the People and a reply from Gutierrez

and hearing oral argument, issued its published opinion and

order for issuance of a peremptory writ directing the trial court

to vacate its ruling and to deny the District Attorney’s motion.

One justice dissented. The Court of Appeal summarily denied

1. See CALIFORNIA PENAL CODE section 246. App., post,A-39 to A-40.

2. See CALIFORNIA PENAL CODE, sections 187, 189, and 664. App., post,

A-39, A-40.

3. The jury found three allegations true under CALIFORNIA PENAL CODE

sections 12022.5, subdivisions (a), (b), and 12022.7, respectively, App., post,

A-40 to A-41, as they read at the time of Gutierrez's crimes. See Peoplev.

Gutierrez, 10 Cal.App.4th at 1737, 13 Cal.Rptr.2d 464 (1992).

the People’s petition for rehearing, App., post, A-35, and the

California Supreme Court summarily denied further review,

although one justice would have granted review. Id. at A-36.

The Court of Appeal has granted the People’s request for a stay

of the issuance of its remittitur, effectively staying Gutierrez’s

murder trial until such time as proceedings are concluded in this

Court. Id. at A-37 to A-38.

A. The Facts Surrounding the Crime and the First

Prosecution and Trial

In the pending murder case, the District Attorney has asserted,

the trial court has agreed, and neither Gutierrez nor the opinion

of the Court of Appeal below has ever disputed this fact: The

jury necessarily determined Gutierrez had committed the same

criminal acts alleged to have caused Zarate’s death in the instant

case when the jury found him guilty of attempting to murder

Zarate, etc., in the previous prosecution.* The opinion of the

Court of Appeal states facts surrounding those acts, which

occurred on June 2, 1990:

[Gutierrez] was at a friend’s house drinking beer with 30 to

40 of his acquaintances when Zarate and three others drove

by; [Gutierrez] and his friends threw beer cans and

shouted gang slogans as the car passed; [Gutierrez] pursued

the car on a motorcycle; while a second person drove the

motorcycle, [Gutierrez] sat on the back with a gun and

shot Zarate in the head.

App., post, A-2; see Ret. and Answer, App. E therein, Informa-

tion KA004789. "At the time of the trial, Ms. Zarate remained

hospitalized in a coma, suffering brain damage from the gunshot

4. Jeopardy does not bar Gutierrez's murder trial. Diaz v. United States,

223 U.S. 442, 448-449, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Peoplev. Bivens,

231 Cal.App.3d 653, 282 Cal.Rptr. 438 (1991). See App., post,A-6, fn. 2.

wound to the head." People v. Gutierrez, supra, 10 Cal.App.4th

at 1733.

Concerning the prosecution and trial for the attempted

murder, the Court of Appeal said:

{ Gutierrez’s] defense was mistaken identity, two defense

witnesses testified that [Gutierrez] was not the shooter.

The jury found [Gutierrez] guilty of discharging a gun into

an occupied motor vehicle (count 2) and attempted murder

(count 1), but found the attempt to commit murder was

not willful, deliberate, and premeditated; the jury also

found true the allegations that [Gutierrez] personally used

a firearm and intentionally and personally inflicted great

bodily injury on Zarate. [Gutierrez] was sentenced to state

| prison for a total term of 18 years and 8 months. The

judgment was affirmed on appeal in [People v. Gutierrez,

supra, 10 Cal.App.4th 1729 (1992)].

App., post, A-2 to A-3.

The opinion of the Court of Appeal summarizes the proceed-

ings in the Superior Court in this case, as follows:

After Zarate’s death in January 1993, the People filed in

July 1993 an information charging [Gutierrez] with

murder. At a pretrial conference on August 4, 1993, the

prosecutor informed the court that the People would be

seeking a jury instruction that the only issue to be decided

is whether Zarate’s death was caused by a gunshot wound

to her head, as the issue of the identity of the shooter had

been established by the prior judgment and the doctrine of

collateral estoppel barred [Gutierrez] from relitigating that

issue. On August 16, 1993, the People filed a written

Motion re Collateral Estoppel, seeking to preclude [Gutier-

rez] from litigating the issues of his identity as the shooter

and his intent to kill. The motion argued that the principle

of collateral estoppel justified the court "in instructing the

jury that [Gutierrez] was found guilty in a prior proceeding

of inflicting great bodily harm upon Ms. Zarate as a result

of discharging a firearm into an occupied motor vehicle,

with the intent to kill her, and that said criminal conviction

is an element of the present charge of second degree

murder, which need not be relitigated." [Gutierrez] filed

written opposition to the motion, which was orally argued

on August 20, 1993.

In granting the prosecution’s motion, the court stated

that it read the verdict forms of the prior attempted murder

case, and "I’ve seen the findings that [the jury] made, and

... the jury has decided these issues, that the defendant had

express malice aforethought, that he did the shooting. The

only issue is whether or not what he did caused the death.

That’s the way I see it.... [9%]... I’m ruling that the

defendant is collaterally estopped from relitigating the issue

of whether he caused great bodily harm to Miss Zarate as

a result of discharging a firearm at an occupied motor

vehicle with the intent to kill Miss Zarate.”

App., post, A-4.

B. How the Federal Question was Presented Below and

Resolved by the Court of Appeal

Gutierrez’s written opposition in the trial court had argued in

support of the proposition that "A review of the direction by the

United States Supreme Court leads to the conclusion that . . . the

doctrine [of collateral estoppel] is not available to the prosecution

in that employment by the government would deny the defen-

dant Due Process of Law.” Ret. and Answer, App. D, Notice of

Motion and Motion to Exclude Proffered Evidence Pursuant to

§ 402 of the Evidence Code, 4.

Gutierrez’s petition to the Court of Appeal argued in support

of the proposition that the use of collateral estoppel "would be

in violation of the Due Process Clause of the Fifth Amendment

and in conflict with United States and California Supreme Court

decisions interpreting the Due Process Clause." Pet. for Writ of

Prohibition and Mem. of Pts. and Authorities, 3. The People’s

return and answer to the alternative writ argued in favor of the

constitutionality of the use of collateral estoppel. Ret. and

Answer, 14-17. In his reply, Gutierrez argued that the use of

collateral estoppel against him would violate "his right to a jury

trial as envisioned by the Sixth Amendment," Reply to Ret., 2,

and also violate "Due Process as envisioned by both the United

States and California Constitutions,” tid.

In its majority opinion, the Court of Appeal said, "The

principles articulated in federal courts concerning the doctrine of

collateral estoppel are equally pertinent to state court matters.”

App., post, A-6. The Court of Appeal quoted portions of the

majority and dissenting opinions in Ashe v. Swenson, 397 U.S.

436, 443, 464-465, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); the

lead per curiam opinion in Simpson v. Florida, 403 U.S. 384, 91

S.C. 1801, 29 L.Ed.2d 549 (1971); and the plurality opinion in

United States v. Dixon, 509 U.S. _, 113 S.Ct. 2849, 2863, 125

L.Ed.2d 556, 577, fn. 15 (1993). App., post, A-8 to A-9. The

Court of Appeal commented on the passages it quoted from this

Court, as follows: "Despite this seemingly absolute language

barring the prosecution from asserting the collateral estoppel

doctrine against the defendant on a subsequent prosecution, the

language remains dictum." Id. at A-10.

The majority opinion of the Court of Appeal then reviewed

pertinent case law from the federal courts and from state courts

both in and out of California. Id. at A-10 to A-21. The Court

of Appeal noted that "the federal courts are not unanimous on

the issue." Id. at A-12. The state cases from outside of Califor-

nia the Court of Appeal majority relied most upon were State v.

Ingenito, 87 N.J. 204, 432 A.2d 912 (1981) and State v. Johnson,

134 N.H. 498, 594 A.2d 1288 (1991). In Ingenito, as the

majority opinion below noted, App., post, A-14, the New Jersey

Supreme Court held that the use of collateral estoppel against a

criminal defendant at his trial "impinged upon his constitutional

right of trial by jury, U.S. Const., Amend. VI, N.7. Const. (1947),

Art. I, 9." 432 A.2d at 915. (In Johnson, the New Hampshire

Supreme Court held in the case before it "that the justifications

supporting the State’s motion [to apply collateral estoppel against

the defendant at trial] are simply outweighed by the defendant’s

right to require the State to prove, beyond a reasonable doubt,

every element of the charge against him." 594 A.2d at 1293.)

The California Supreme Court in People v. Ford, 65 Cal.2d 41,

50-51, 52 Cal.Rptr. 228, 416 P.2d 132 (1966), had approved

application of the doctrine of collateral estoppel against Ford at

a jury trial in a criminal prosecution. App., post, A-19 to A-20.

The majority opinion of the Court of Appeal in this case distin-

guished the decision in People v. Ford on three grounds. The first

was that "there is no indication in Ford that the jury instruction

prevented defendant from presenting his defense of diminished

capacity or impaired his right to a fair trial on the homicide

charge," App., post, A-20, whereas Gutierrez "here asserted a

mistaken identity defense at his attempted murder trial and

would be precluded from presenting this defense under the

challenged court order. Idd. Second, said the Court of Appeal,

Gutierrez vis-a-vis Ford "is not only asserting the claim that the

court order constitutes instructional error, but that it impairs his

right to jury trial and to the presumption of innocence." - Id.,

A-20 to A-21. The third ground was stated, "It must also be

remembered that Ford was decided before Ashe and Simpson

questioned the ability of the prosecution to invoke collateral es-

toppel against a criminal defendant." App., post, A-21.

After its review of the cases, the Court of Appeal held:

In this case, although the threshold requirements for

application of the doctrine of collateral estoppel were met

[citation], the prosecution failed to establish that its asser-

tion of the doctrine of collateral estoppel is consistent with

principles of due process and sound judicial policy. "Quite

simply, the pursuit of judicial economy and efficiency may

never be used to deny a defendant his right to a fair trial.”

[Citation. Fn. omitted.] [1] In this case, the assertion of

collateral estoppel by the prosecution deprives [Gutierrez]

of the right to present his defense to the jury. To the

extent he did not testify at his attempted murder trial and

wishes to do so in the instant trial, the court’s ruling would

also preclude him from presenting evidence and defenses

which, for whatever reason, may not have been. presented

at the prior trial. Thus, the interests of petitioner far out-

weigh any interest in judicial economy.

App., post, A-21 to A-22.

The Court of Appeal majority also said:

We also question whether, as a practical matter, the

murder trial can be limited to the issue of causation and the

jury instructed in the manner requested by the prosecution

without causing prejudice to [Gutierrez] as to the issue

actually to be decided by the jury in such a limited trial.

This is so because a jury so instructed could not help but

infer that the defendant had either admitted the other issues

or another jury had already decided them against him.

Either inference creates "a strong, perhaps irresistible,

gravitational pull towards a guilty verdict, which is utterly

inconsistent with the requirement that a jury remain free

and untrammelled in its deliberations." (State v. Ingenito,

supra, 432 A.2d 912, 918-919.)

(App., post, A-23.)

The dissenting opinion from the Court of Appeal noted that

the question raised by Gutierrez’s petition "has divided both

federal courts [citations] and state courts [citations],” Jd. at A-24,

and went on to discuss the California cases. The dissent said, "A

criminal defendant may be estopped from presenting a defense."

Id. at A-26.

REASONS FOR ALLOWANCE OF THE WRIT

This petition focuses on the use of collateral estoppel to

prevent a criminal defendant at trial from relitigating issues

already resolved against the defendant in a previous prosecution;

state and federal courts have endorsed its actual use. But

language in opinions of this Court, where the issue was not even

before the Court, have cast doubt on the endorsements given by

these other courts and have led some courts to entirely invalidate

this use of collateral estoppel. Given the number of recent

opinions dealing with the issue which are at odds with the ma-

jority of federal court and earlier state court decisions that allow

its use, this case presents the Court with a timely opportunity to

explain whether, and, if so, why, the federal Constitution con-

strains the use c* ol ateral estoppel in criminal trials. Review of

the issue will sho .hat the Court’s dicta on this issue, and the

opinion below, misjudge the extent of constitutional constraint

and that collateral estoppel can be used in this case, as requested

by the prosecution, consistent with the defendant's jury trial and

due process rights.

I. It is Appropriate to Allow the Writ Before Trial

The circumstances here demonstrate the need in this case for

review before trial. The decision below of the Court of Appeal

is final, Cal. Rules of Court, Rule 24(a), and constitutes the law

of the case, see Kowis v. Howard, 3 Cal.4th 888, 894, 12

Cal.Rptr.2d 728, 383 P.2d 250 (1992), on the federal issue.

However, though Gutierrez awaits his trial for murder, once the

trial commences, the federal issue "will not survive for this Court

to review, regardless of the outcome of the proceedings on

remand.” Pennsylvania v. Ritchie, 480 U.S. 39, 48, 94 L.Ed.2d

40, 107 S.Ct. 989 (1987). If the Court denies review at this

point and the prosecution then secures Gutierrez’s conviction, the

People "will have prevailed and will have no basis to seek review."

480 U.S. at 48. If, on the other hand, Gutierrez wins an

acquittal, the People "will be barred from seeking review by the

Double Jeopardy Clause. [Citations.] Therefore, if this Court

does not consider the constitutional claims now, there may well

be no opportunity to do so in the future." Idd. Nor can the

People in anyway resist the order of the Court of Appeal to pre-

serve the issue on the hearing of a contempt citation for its

prosecutor. 480 U.S. at 50, fn. 8. The Court of Appeal directed

its order to the trial court, not the prosecution. App., post, A-24.

II. The Decision Below Underscores the Growing Split

in both Federal and State Courts Inspired by Dicta

in Opinions from this Court

Federal appellate courts have split regarding the use of

collateral estoppel by the prosecution in criminal cases. Foremost

among the decisions of federal courts encouraging the prosecu-

tion’s use of collateral estoppel is that of the Court of Appeals

for the Ninth Circuit in United States v. Colacurcio, 514 F.2d 1

(CA9 1975). Other federal cases had applied collateral estoppel

in situations where the defendant's status as an illegal alien had

been adjudicated and was relevant to new immigration charges.

Hernandez-Uribe v. United States, 515 F.2d 20 (CA8 1975);

Pena-Cabanillas v. United States, 394 F.2d 785, 786 (CA9

1968); United States v. Rangel-Perez, 179 F.Supp. 619, 623

(S.D.Cal. 1959). Although the court in Colacurcio ruled the trial

court improperly applied collateral estoppel in the peculiar

circumstances of the case, see also United States v. Bejar-Matre-

cios, 618 F.2d 81, 83-84 (CA9 1980), the Court of Appeals dis-

agreed with the defendant’s claim that its use in a criminal trial

"would ignore the defendant’s constitutional right to be confront-

ed with the witnesses against him and his right to have all of the

facts decided by the jury," Colacurcio, 514 F.2d at 6. The Court

of Appeals noted that the defendant had "had the opportunity to

cross-examine all witnesses against him and was accorded his

constitutional right to trial by jury,” shid., and said:

While Rangel-Perez and Pena-Cabanillas are limited to the

question of defendant's status, we conclude that the

rationale of those cases is equally applicable to those facts

actually decided which were essential to the judgment in the

prior case.

Ibid. Such 1s the situation in the instant case where the jury

necessarily decided facts essential to Gutierrez’s guilt of the

charges contained in the verdicts against him at his trial for

attempted murder that should not have to be relitigated in his

murder trial.

But recently, in a racketeering case, a federal court flatly

rejected the use of collateral estoppel against the defendant at

trial, and in the process, expressly rejected the rationales upon

which it viewed the above Eighth and Ninth Circuit cases as

having been decided. See United States v. Pelullo, 14 F.3d 881,

891, 892-893 (CA3 1994). To do so, the court considered three

factors. First, the court quoted some language in Chief Justice

Burger’s dissenting opinion in Ashe v. Swenson, supra, 397 U.S.

436, 465. In the quoted language from the dissent in Ashe, the

Chief Justice said, “[If the defendant] had been convicted at the

first trial, presumably no court would then hold that he was

thereby foreclosed from litigating the identification issue at. the

second trial.," Pelullo, 14 F.3d at 891. Second, the Third

Circuit noted its own previous dicta in United States v. De

Angelo, 138 F.2d 466, 468 (CA3 1943), and dicta from other

lower federal courts in United States v. Bruno, 333 F.Supp. 570,

576 (E.D.Pa. 1971), and United States v. Carlisi, 32 F.Supp.

479, 482 (E.D.N.Y. 1940). Finally, the Third Circuit relied

upon state court decisions in State v. Ingenito, supra, 432 A.2d

at 915-919, and People v. Goss, 200 Mich.App. 9, 503 N.W.2d

682, 686-688 (1993), appeal granted, __ Mich. __, 511 N.W.2d

675 (1993). Pelullo, 14 F.3d at 891-892.

In Pelullo, on a retrial, the trial court had precluded the

defendant from contesting his guilt of the predicate act for the

racketeering count based upon the defendant's conviction of the

predicate act as a charged crime in the first trial, which conviction

had been affirmed on appeal. 14 F.3d at 887. The Third Circuit

read the Sixth and Seventh Amendments and Article ITI, section

2, of the Constitution, id. at 894-896, as necessitating "that every

jury empaneled for a prosecution considers evidence of guilt

afresh and without the judicial direction attending collateral

estoppel,” 1d. at 896.

However, in attempting to avoid the absurd consequences of

its holding, the Court of Appeals said, as to the conviction for

the predicate act, "On remand the district court should conduct

a balancing analysis, and state its reasons on the record for

admitting or excluding the judgment of conviction," 1d. at 889,

without giving it preclusive effect and as "an ordinary piece of

evidence," id. at 888. But cf. United States v. Pryba, 680 F.Supp.

790, 792 (E.D.Va. 1988),° affirmed, 900 F.2d 748, 758 (CA4

1990), cert. denied, 498 U.S. 924, 111 S.Ct. 305, 112 L.Ed.2d

258 (1990); Diaz v. United States, supra, 223 U.S. at 450 (dicta

that right to confront witnesses requires defense consent to

admission of record of proceedings in conviction for assault and

battery before justice of the peace in trial for resulting man-

slaughter; no discussion of possible collateral estoppel effect).

Thus, the jury on Pelullo’s federal retrial may learn of his prior

conviction, but will be free to treat it as a nullity.

Although the Court of Appeals in Pelullo discussed Ingenito

and Goss and some older Massachusetts cases, see Commonwealth

v. Feldman, 131 Mass. 588 (1881) (conviction for drunkenness

conclusive on issue against defendant in later trial of assault

charge); Commonwealth v. Evans, 101 Mass. 25 (1869) (convic-

tion for assault with a knife conclusive against defendant in later

5. The District Court's opinion in Pryba discusses the admissibility of a

state court conviction to prove an act of racketeering and states, “While it is

true that both sovereigns may not prosecute the same act or acts, this is no

reason to refrain from giving preclusive effect to a state conviction in the

RICO context. To hold otherwise would ignore settled doctrine giving

preclusive effect 10 convictions, cause a waste of judicial time and resources,

and raise the spectre of inconsistent results.” 680 F.Supp. at 792.

trial of manslaughter charge), the Third Circuit’s opinion did not

mention People v. tord, supra, 65 Cal.2d 41. In Ford, the Cali-

fornia Supreme Court held that the defendant’s prior conviction

of robbery sufficed as proof of the robbery in his subsequent

felony-murder trial. See App., post, A-19 to A-20, quoting the

pertinent language from the California Supreme Court in Ford,

65 Cal.2d at 50-51.

As the court below noted, the California Supreme Court

decided Ford before certain dicta from this Court cast doubt on

the viability of using collateral estoppel at trial against a criminal

defendant. App., post, A-21.° To the contrary, Ford cites Sealfon

v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180

(1948), where this Court said that the doctrine of res judicata

"applies to criminal as well as civil proceedings [citations] and

operates to conclude those matters in issue which the verdict

determined though the offenses be different."

6. But see Diaz v. United States, supra,223 U.S. at 450. In Diaz, which

the court below did not mention, this Court did not discuss the doctrine of

collateral estoppel, and the prosecution is not reported as having attempted

to use it against the defendant in that case. However, in ruling on the use at

a homicide trial of the record of the proceedings of Diaz's earlier trial before

a justice of the peace for assault and battery, this Court said:

True, the testimony could not have been admitted without the consent

of the accused, first, because it was within the rule against hearsay, and

second, because the accused was entitled to meet the witnesses face to

face. But it was not admitted without his consent, but at his request,

for it was he who offered it in evidence.

Ibid.

15 |

The opinion below attempts to distinguish Ford,” App., post,

A-21, but obviously only makes the attempt because of the

majority’s reliance upon the dicta the majority opinion drew from

the opinions emanating from this Court post-dating Ford, thid.

As the dissenting justice below notes, the majority opinion fails

to rationalize any meaningful basis for differentiating the holding

in Ford from the holding below. Id., at A-29.

III. The Decision Below is Wrong and Involves a Matter

of Public Importance

In Kirby v. United States, 174 U.S. 47, 43 L.Ed. 890 (1899),

this Court held that the convictions of three thieves for stealing

government property could not serve as conclusive evidence of

the stolen nature of that property in a case where the government

had charged Kirby with criminal receipt of the property. In so

saying, however, the Court made a statement that implicitly

recognizes the viability of using the defendant’s own conviction

against him where the facts the conviction establishes are relevant

in a later trial:

Instead of confronting Kirby with witnesses to establish the

vital fact that the property alleged to have been received by

him had been stolen from the United States, he was

confronted only with the record of another criminal

prosecution, with which he had 10 connection and the

evidence in which was not given in his presence. The

record showing the result of the trial of the principal felons

7. California courts are bound by the pronouncements of the California

Supreme Court in earlier cases until overruled by the Supreme Court or

higher authority. Auto Equity Sales,Inc. v. SuperiorCourt, 57 Cal.2d 450, 455,

20 Cal.Rptr. 321, 369 P.2d 937 (1962). In Ford, the California Supreme

Court said, "The doctrine of res judicata applies to criminal as well as civil

proceedings and operates to conclude those matters in issue which the verdict

determined though the offenses be different." Peoplev. Ford,supra,65 Cal.2d

at 50, 52 Cal.Rptr. at 233, 415 P.2d at 137.

was undoubtedly evidence, as against them, in respect of

every fact essential to show their guilt.

174 U.S. at 55. In other words, there would have been no

objection to using against Kirby the record of his own criminal

prosecution.

In Ashe v. Swenson, supra, the Court described as "an extremely

important principle in our adversary system of justice" 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." 397 U.S. at 443. This is

"collateral estoppel.” Ibid.

In Sealfon v. United States, supra, 332 U.S. 575, 578, this

Court approvingly cited its opinion by Justice Holmes in United

States v. Oppenhewmer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161

(1916). The following passage appears in the latter opinion:

We may adopt in its application to this case the state-

ment of a judge of great experience in the criminal law:

"Where a criminal charge has been adjudicated upon by a

court having jurisdiction to hear and determine it, that

adjudication, whether it takes the form of an acquittal or

conviction, is final as to the matter so adjudicated upon,

and may be pleaded in bar to any subsequent prosecution

for the same offence. ... In this respect the criminal law

is in unison with that which prevails in civil proceedings."

Hawkins, J., in The Queen v. Miles, 24 Q. B. D. 423, 431.

The finality of a previous adjudication as to the matters

determined by it, is the ground of decision in Common-

wealth v. Evans, 101 Massachusetts, 25, the criminal and

the civil law agreeing, as Mr. Justice Hawkins says.

Commonwealth v. Ellis, 160 Massachusetts, 165, Brittain

v. Kinnaird, 1 Brod. & B. 432.

242 USS. at 88.

In the case last-cited in the above-quotation, an English court

wrote, just 30 years after our own Constitution took effect:

The general principle applicable to cases of this descrip-

tion, is perfectly clear; it is established by all the ancient,

and recognised by all the modern decisions; and the

principle is, that a conviction by a magistrate, who has

jurisdiction of the subject matter, is, if no defects appear on

the face of it, conclusive evidence of the facts stated in it.

Brittain v. Kinnaird, | Brod. & B. 432, 437, 129 Eng. Rep. 789,

791 (1819).

In Commonwealth v. Evans, also obviously approved of in the

foregoing passage, the trial court had instructed the jury in

Evans’s trial for the manslaughter of McKenzie that Evans’s

conviction for assaulting McKenzie with a knife was “conclusive

evidence that the use of the knife upon McKenzie was unjustifi-

able; and that the question whether the knife had been lawfully

used by the defendant in self-defence had been determined by

that judgment, and was not now open to him." Commonwealth

v. Evans, supra, 101 Mass. at 26. The Massachusetts Supreme

Court held:

Upon general principles, the parties being the same, the

former judgment must be held to have established all facts

which were involved in the issue then tried, and essential to

the judgment rendered upon it. The conviction for assault

and battery therefore necessarily excludes all justification

which could have been set up under the general issue of

not guilty.

101 Mass. at 27.

In Commonwealth v. Ellis, 160 Mass. 165, 35 N.E. 773

(1893), also cited approvingly in the foregoing passage from

Opperneimer, the issue was paternity in a child neglect prosecu-

non.

[T]he defense was that the child was not the child of the

defendant, but was a bastard child of the defendant's wife.

To meet this defense, the government put in evidence a

record of the second district court of Bristol, showing a

prior conviction and sentence of the defendant, under the

same statute, for unreasonably neglecting to support the

same child. The presiding justice ruled, as matter of law,

that the record of the conviction and sentence was conclu-

sive evidence that the paternity of the child was determined,

and that the defendant was estopped to set up the illegiti-

macy of the child as a defense.

35 N.E. at 773. The Massachusetts Supreme Court analyzed the

issue as follows:

The question of the paternity of the child was necessarily

involved in the prior conviction of the defendant. That fact

having been determined, it cannot again be litigated

between the same parties, unless a different rule applies to

criminal proceedings from that which obtains in civil

proceedings. [Citation.] It is well settled that the rule ts

the same in both classes of cases.

Ibid. The Massachusetts courts opinion continues with a

discussion of its previous opinions in Evans and Commonwealih

v. Feldman, supra, 131 Mass. 588.

"Certainly there is no constitutional right to use the time of

the courts in repetitive litigation of the same issues." Vestal,

Issue Preclusion and Criminal Prosecutions, 65 Iowa Law

Review 281, 321. However, decisions such as Evams and

Feldman possess an underlying justification worthier even than

the "concerns for efficient judicial administration and judicial

perceptions of expeditious public policy," United States v. Pelullo,

supra, 14 F.3d at 891, thought insufficient by the Third Circuit

to justify estopping a criminal defendant from litigating his guilt

of charges of which he has already been duly convicted. The fear

of contradictory verdicts and discrediting our system of justice

embodies more than regard for efficiency and expedience.

Collateral estoppel balances the respect given the judgments of

the courts by a society that depends upon them for final resolu-

tion of its disputes, both civil and criminal.

When consistent with the intent with which they were

framed, "All laws should receive a sensible construction." United

States v. Kirby, 7 Wall (74 U.S.) 482, 486, 19 L.Ed. 278 (1868).

The Constitution could not sensibly enforce a rule that a

defendant’s alienage can be determined against the defendant in

an immigration prosecution without binding effect in later cases;

that one can be declared the parent in one criminal proceeding

and not the parent in a later one in the same court; that a

defendant in a racketeering case must be permitted to litigate

"predicate acts" of which he has already been convicted; or that

a person can be convicted of a felonious assault or attempted

murder, only to be acquitted of a homicide charge by contesting

guilt on the same assault. Such a rule should rightly be held up

to ridicule. "The former conviction means nothing if it does not

mean that the requisite facts were established in the prior pro-

ceedings. If the former conviction is to be accepted at all it must

be taken as importing its own verity." People v. Majado, 22

Cal.App.2d 323, 326 (1937).

In Mayado, the California District Court of Appeal approved

application of collateral estoppel against a criminal defendant

where the question presented included the same issue before the

Massachusetts court in Ellis "whether a conviction and judgment

on a charge of failing to provide for an illegitimate child is

conclusive on the issue of parentage and prevents the defendant

from having the same issue retried in a subsequent prosecution

on a similar charge in the same court and between the same

parties,...." 22 Cal.App.2d at 324. The California appellate

court noted that "Eventually, [the defendant] might secure a jury

which would find that he was not the father of the child and,

since that judgment could not be set aside, we would then have

the same fact judicially determined both ways," 1d. at 327, an

unsatisfactory situation. State v. Braskett, 10 Ohio Ops. 2d 497,

82 Ohio L.Abs. 161, 162 N.E.2d 922 (Ct. Common Pleas

1959).8

It is a fundamental principle of jurisprudence, arising from

the very nature of courts of justice and the objects for

which they are established, that a question of fact or of law

distinctly put in issue and directly determined by a court of

competent jurisdiction cannot afterwards be disputed

between the same parties. Southern Pacific Raslroad Co. v.

United States, 168 U.S. 1, 48. The principle is as applicable

to the decisions of criminal courts as to those of civil juris-

diction.

Frank v. Mangum, 237 U.S. 309, 333-334, 35 S.Ct. 582,

59 L.Ed. 969 (1915).

This general rule is demanded by the very object for which

civil courts have been established, which is to secure the

peace and repose of society by the settlement of matters

capable of judicial determination. Its enforcement is

essential to the maintenance of social order; for, the aid of

judicial tribunals would not be invoked for the vindication

of rights of person and property, if, as between parties and

their privies, conclusiveness did not attend the judgments

of such tribunals in respect of all matters properly put in

issue and actually determined by them.

Southern Pactfic Railroad Co. v. United States, supra, 168 U.S. at

49, 42 L.Ed. 355, 18 S.Ct. 18 (1897).

The same concerns historically applied to the criminal courts.

"The principle is as applicable to the decisions of criminal courts

8. In precluding acriminal defendant from relitigating paternity, the court

concluded that “ina case such as this it will not do for the paternity of minor

children to be put in issue more than once.” 162 N.E.2d at 924.

as to those of civil jurisdiction." Frank v. Mangum, supra, 237

U.S. at 334. The principle applied at both common law and

equity, Hopkins v. Lee, 6 Wheat. (19 U.S.) 109, 113-114,

5 L.Ed. 218, 219-220 (1821), is one of "obvious fitness and

propriety,” 6 Wheat. at 114, and was early said to have "found its

way into every system of jurisprudence,” ibid. It was said to

apply "to sentences of Courts of Admiralty; to ecclesiastical

tribunals; and, in short, to every Court which has proper cogni-

sance of the subject-matter, so far as thev profess to decide the

particular matter in dispute." Ibid.

The view of the Third Circuit in Pelullo, that the Constitution,

by guaranteeing the right to a jury trial, undermines the use of

collateral estoppel or res judicata in criminal trials, lacks basis

either in the words of the Constitution or in any intent manifest

in its enactment. "The Constitution is concerned with practical,

substantial rights, not with those that are unclear and gain hold

by subtle and involved reasoning.” F.H.A. v. The Darlington,

358 U.S. 84, 91, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958).

As authority for its decision, the Third Circuit’s opinion in

Pelullo contains a citation to In re Winship, 397 U.S. 358, 364,

90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). United States v. Pelullo,

supra, 14 F.3d at 896. Winsmp holds that due process requires

a certain burden of proof, proof beyond a reasonable doubt, in

cases with criminal-type penalties. 397 U.S. at 364, 368. To

thus state a more stringent burden of proof in criminal cases than

for civil cases, however, does not establish that the Framers

intended for collateral estoppel to have some lesser effect in

criminal cases than in civil cases. The principle of collateral

estoppel was a part of every established legal system at the time

of the adoption of the Constitution. See Hopkins v. Lee, supra,

6 Wheat. at 113-114 Nothing inherent in the standard of proof

beyond a reasonable doubt establishes that the Framers intended

collateral estoppel to operate only in civil trials.

In cases like Carella v. California, 491 U.S. 263, 109 S.Ct.

2419, 105 L.Ed.2d 218 (1989), applying Winship to the use of

conclusive presumptions in criminal cases, the constitutional

problem is that if the presumption is used, then the defendant

will never have had the benefit of a jury’s evaluation of the

evidence against him. In contrast, in Gutierrez’s case:

The defendant has had a day in court on the matter; there

was an incentive to litigate, and the issue was determined

against the defendant. The defendant is not deprived of

anything.

Vestal, op. cit. supra, at 317; see Carmody v. Seventh Judicial

District Court, 81 Nev. 83, 398 P.2d 706 (1965).?

Gutierrez has had a jury fairly evaluate the evidence that he

attempted to murder Sandra Zarate, shooting into her car and

personally and intentionally inflicting great bodily injury upon

her. The jury found this evidence persuasive of his guilt beyond

a reasonable doubt.

For the crime of attempted murder that he defended against

in that first trial, he faced a sentence at least equal to the sentence

he now faces for murder of the second degree.’ In addition,

9. In Carmody, shortly before their victim died, the Carmodys pled guilty

to robbery and received state prison sentences. The Nevada Supreme Court

denied the Carmodys' petition to prohibit a subsequent prosecution for

murder. In ruling, the court said the Carmodys would not suffer any

"fundamental unfairness” in a trial for murder if the robbery convictions

precluded them from contending they did not commit the robbery. 398 P.2d

at 707.

10. Under the charges at Gutierrez's trial, the jury could have convicted

him of attempted premeditated murder. Gutierrez would then have been

liable for a sentence of life in prison. CAL. PENAL CODE, § 664, subd. 1;

App., post,A-40.

However, the jury only convicted Gutierrez of attempted unpremeditated

murder. Jeopardy limits the prosecution in this case to now seeking a

conviction only of unpremeditated murder, because the People have already

once tried and failed to convince a jury that Gutierrez premeditated Zarate's

murder. See United States v. Dixon, supra,509 U.S. at __, 113 S.Ct. at 2861,

125 L.Ed.2d at 574, fn. 10.

(continued...)

Sandra Zarate slept in a coma at the time of the trial for

attempted murder. See People v. Gutierrez, supra, 10 Cal.App.4th

at 1733. Obviously, the likelihood that she might die from her

injuries was more than a remote possibility. Because Gutierrez

thus had the incentive to fully litigate the charges against him

and did so, his conviction of attempted murder serves in the

present murder prosecution as proof beyond a reasonable doubt

of that attempt and commands respect alike from court and jury.

10. (...continued)

The California Penal Code makes unpremeditated murder (murder of the

second degree), see CAL. PENAL CODE, § 189; ante, at 2-3, punishable by a

sentence of 15 years to life in prison, CAL. PENAL CODE, § 190, subd. (a);

App., post,A-39. Thus, Gutierrez's potential sentence in his trial for attempted

murder was roughly equivalent to the maximum sentence he can now receive

if a jury convicts him of the murder.

CONCLUSION

The state Court of Appeal erred on a matter of federal law

that has divided both federal and state courts. This Court should

grant certiorari to review the important constitutional question

presented in Gutierrez’s case.

Respectfully submitted,

GIL GARCETTI

District Attorney

County of Los Angeles, California

GEORGE M. PALMER

Acting Head Deputy

Appellate Division

GEORGE G. SIZE

Deputy District Attorney

BRENT RIGGS (Counsel of Record)

Deputy District Attorney

849 South Broadway, Suite 1100

Los Angeles, California 90014-3570

(213) 974-1615

Counsel for Petitioner

APPENDIX

A-1

CERTIFIED FOR PUBLICATION

IN THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ABRAHAM GUTIERREZ, ) BO78255

)

Petitioner, ) (Super.Ct.No.

) KA016953)

v. )

) COURT OF APPEAL

THE SUPERIOR COURT OF ) -SECOND DIST.

LOS ANGELES COUNTY, ) FILED

) APR 15 1994

Respondent; ) Joseph A. Lane Clerk

)

THE PEOPLE OF THE STATE ) Deputy Clerk

OF CALIFORNIA, ) [stamp]

)

Real Party in Interest. )

)

PETITION for writ of prohibition. Alfonso M. Bazan,

Judge. Petition granted.

H. Russell Halpern for Petitioner.

No appearance for Respondent.

Gil Garcetti, District Attorney, Patrick D. Moran and Brent

Riggs, Deputy District Attorneys, for Real Party in Interest.

A-2

[24 Cal.App.4th 155]

Petitioner, defendant in a criminal prosecution for murder

of Sandra Zarate, challenges an order of the trial court barring

him from litigating the issues of identity and intent on the

ground that a prior final judgment of conviction for attempted

murder of Zarate’ collaterally estops him from doing so,

leaving for the jury only the issue of whether petitioner’s

shooting of Zarate caused her death.

[24 Cal.App.4th 156] Petitioner contends that the

prosecution’s assertion of the doctrine of collateral estoppel

denies him his constitutional right to jury trial and to due process

of law as guaranteed by both the federal and state constitutions.

FACTUAL AND PROCEDURAL BACKGROUND

According to our opinion on petitioner’s prior appeal of his

attempted murder conviction, petitioner was at a friend’s house

drinking beer with 30 to 40 of his acquaintances when Zarate

and three others drove by; petitioner and his friends threw beer

cans and shouted gang slogans as the car passed; petitioner

pursued the car on a motorcycle; while a second person drove

the motorcycle, petitioner sat on the back with a gun and shot

Zarate in the head.

Petitioner’s defense was mistaken identity; two defense

witnesses testified that petitioner was not the shooter. The jury

found petitioner guilty of discharging a gun into an occupied

motor vehicle (count 2) and attempted murder (count 1), but

found the attempt to commit murder was not willful, deliberate,

1/ Zarate was shot in the head in June 1990; at the time of

petitioner’s trial on various counts, including attempted murder,

Zarate was hospitalized in a coma; she died in January 1993.

Petitioner was convicted of attempted murder in January 1991,

which conviction was upheld on appeal in People v. Gutierrez

(1992) 10 Cal.App.4th 1729 [13 Cal.Rptr.2d 464].

A-3

and premeditated; the jury also found true the allegations that

petitioner personally used a firearm and intentionally and

personally inflicted great bodily injury on Zarate. Petitioner was

sentenced to state prison for a total term of 18 years and 8

months. The judgment was affirmed on appeal in People v.

Gutierrez, supra, 10 Cal.App.4th 1729.

After Zarate’s death in January 1993, the People filed in

July 1993 an information charging petitioner with murder. At

a pretrial conference on August 4, 1993, the prosecutor informed

the court that the People would be seeking a jury instruction that

the only issue to be decided is whether Zarate’s death was caused

by a gunshot wound to her head, as the issue of the identity of

the shooter had been established by the prior judgment and the

doctrine of collateral estoppel barred petitioner from relitigating

that issue. On August 16, 1993, the People filed a written

Motion re Collateral Estoppel, seeking to preclude petitioner

from litigating the issues of his identity as the shooter and his

intent to kill. The motion argued that the principle of collateral

estoppel justified the court "in instructing the jury that [petition-

er] was found guilty in a prior proceeding of inflicting great

bodily harm upon Ms. Zarate as a result of discharging a firearm

into an occupied motor vehicle, with the intent to kill her, and

that said criminal conviction is an element of the present charge

of second degree murder, which need not be relitigated.”

Petitioner filed written opposition to the motion, which was

orally argued on August 20, 1993.

In granting the prosecution’s motion, the court stated that

it read the verdict forms of the prior attempted murder case, and

"T’ve seen the findings [24 Cal.App.4th 157] that [the jury]

made, and . . . the jury has decided these issues, that the defen-

dant had express malice aforethought, that he did the shooting.

The only issue is whether or not what he did caused the death.

That’s the way I see it.... [9]... I’m ruling that the defen-

dant is collaterally estopped from relitigating the issue of whether

he caused great bodily harm to Miss Zarate as a result of

A-4

discharging a firearm at an occupied motor vehicle with the

intent to kill Miss Zarate."

Petitioner filed timely petition for writ of prohibition

challenging the August 20, 1993 order. After we denied the

petition, petitioner sought review in the Supreme Court, which

granted review and transferred the matter to us with directions

to vacate our order denying prohibition and to issue an alterna-

tive writ. We vacated our prior order and issued alternative writ

of prohibition; real party in interest filed a return and answer;

petitioner filed a reply to return; oral argument has been had

thereon.

GENERAL PRINCIPLES OF COLLATE ESTOPPEL

"Collateral estoppel precludes relitigation of issues argued

and decided in prior proceedings. [Citation.] Traditionally, we

have applied the doctrine only if several threshold requirements

are fulfilled. First, the issue sought to be precluded from

relitigation must be identical to that decided in a former proceed-

ing. Second, this issue must have been actually litigated in the

former proceeding. Third, it must have been necessarily decided

in the former proceeding. Fourth, the decision in the former

proceeding must be final and on the merits. Finally, the party

against whom preclusion is sought must be the same as, or in

privity with, the party to the former proceeding.” (Lucido v.

Superior Court (1990) 51 Cal.3d 335, 341 [272 Cal.Rptr. 767,

795 P.2d 1223, 2 A.L.R.5th 995]; fn. omitted.)

"Even assuming all the threshold requirements are satisfied,

however, our analysis is not at an end. We have repeatedly

looked to the public policies underlying the doctrine before

concluding that collateral estoppel should be applied in a

particular setting. [Citation.] As the United States Supreme

Court has stated, ’the rule of collateral estoppel in criminal cases

A-5

is not to be applied with the hypertechnical and archaic approach

of a nineteenth century pleading book, but with realism and

rationality.” (Ashe v. Swenson (1970) 397 U.S. 436, 444 [25

L.Ed.2d 469, 475, 90 S.Ct. 1189]... .)” (Lucido v. Superior

Court, supra, 51 Cal.3d at pp. 342-343.) Thus, collateral

estoppel is not an inflexible, universally applicable principle;

policy considerations may limit its use where the limitation on

[24 Cal.App.4th 158} relitigation underpinnings of the doctrine

are outweighed by other factors. (Id. at p. 343.)

"Accordingly, the public policies underlying collateral

estoppel -- preservation of the integrity of the judicial system,

promotion of judicial economy, and protection of litigants from

harassment by vexatious litigation -- strongly influence whether

its application in a particular circumstance would be fair to the

parties and constitutes sound judicial policy." (Lucido v.

Superior Court, supra, 51 Cal.3d at p. 343.)

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. (People v. Taylor (1974) 12 Cal.3d 686,

695 [117 Cal.Rptr. 70, 527 P.2d 622].)

The instant case must be distinguished from those situa-

tions in which a criminal defendant invokes collateral estoppel as

a defense or as a bar to a subsequent prosecution. Rather, the

2/ For example, in Ashe v. Swenson, supra, 397 U.S. 436,

445-446 [25 L.Ed.2d 469, 476-477, 90 S.Ct. 1189], wherein a

defendant was acquitted of robbery of one of several victims and

then charged with robbery of another victim, the Court held that

the doctrine of collateral estoppel "is embodied in the Fifth

Amendment guarantee against double jeopardy” (id. at p. 445

[25 L.Ed.2d at p. 476]), and “the State could not present the

same or different identification evidence in a second prosecution

for the robbery . . . in the hope that a different jury might find

that evidence more convincing. The situation is constitutionally

(continued...)

A-6

instant case involves the assertion of the doctrine by the prosecu-

tion to limit petitioner’s ability to contest at his trial for murder

those issues which were adjudicated against him by the jury on

his prior trial and conviction for attempted murder. Although

the parties do not bring to our attention any California case on

all fours with this one, they discuss cases in our courts and in

other jurisdictions wherein the prosecution sought to invoke the

doctrine of collateral estoppel against a criminal defendant.

Because the United States Supreme Court has adverted to the

mutuality aspect of collateral estoppel in criminal cases, even if

only in dictum, we believe a discussion of this issue is helpful in

developing a conceptual framework to address the issue presented

in this case. "The principles articulated in federal courts concern-

ing the doctrine of collateral estoppel are equally pertinent to

state court matters." (People v. Nunez (1986) 183 Cal.App.3d

214, 224 [228 Cal.Rptr. 64].)

2/ (...continued) ,

no different here, even though the second trial related to another

victim of the same robbery. For the name of the victim, in the

circumstances of this case, had no bearing whatever upon the

issue of whether the petitioner was one of the robbers." (Id. at

p. 446 [25 L.Ed.2d at p. 477].) The Court in Ashe also found

that the jury in the first trial had determined by its verdict that

the defendant was not one of the robbers. (Ibid.)

Petitioner herein does not contend the doctrine of collateral

estoppel or double jeopardy bars his prosecution for murder.

Our decision in People v. Bivens (1991) 231 Cal.App.3d 653

[282 Ca.Rptr. 438], supports the conclusion that his prosecution

for murder is not barred because the victim had not died at the

time of the prosecution for attempted murder.

A-7

[24 Cal.App.4th 159] II

MUTUALITY REQUIREMENT

In United States v. Carlisi (E.D.N.Y.1940) 32 F.Supp.

479, the court quoted at length from a "very interesting, instruc-

tive, and well-considered editorial on the subject, ‘Res Judicata

With Respect to Criminal Judgments” (id. at p. 482), written by

an attorney, Harry G. Anderson, and appearing in the New York

Law Journal in December 1939: "The courts have frequently

referred to the principle of res judicata in criminal cases. In

transplanting the doctrine, however, to criminal law the require-

ment of mutuality had to be abandoned. A prior adjudication

with respect to an element of a subsequently tried offense is not

binding upon the accused. This is so because the defendant,

charged with crime, always has the right to have the jury or the

triers of the facts determine anew every element of guilt. People

v. Kief, 126 N.Y. 661, 663, [27 N.E. 556]; People v. Walker,

198 N.Y. 329, 334, [91 N.E. 806]. For this reason doubt has

been expressed as to whether the doctrine known to the civil law

as res judicata is applicable to criminal cases. [Citation.] [1] In

a more precise sense the rule of res judicata as applied in civil law

cannot be said to have an exact counterpart in criminal law.

There is, however, a rule of estoppel in criminal law akin to res

judicata. As thus used it is a “rule of evidence" which accords to

the accused the right to claim finality with respect to a fact or

group of facts previously determined in his favor upon a previous

trial.” (32 F.Supp. 479, 482.)

Citing Carlisi, the court in United States v. De Angelo (3rd

Cir. 1943) 138 F.2d 466, concluded that although a prior

judgment of acquittal on related matters can be asserted by the

defendant in a subsequent prosecution, there was no "require-

ment of mutuality with respect to a criminal judgment’s conclu-

siveness. An accused is constitutionally entitled to a trial de novo

of the facts alleged and offered in support of each offense

A-8

charged against him and to a jury’s independent finding with

respect thereto.” (Id. at p. 468.)

The foregoing language was cited with approval by the

court in People v. Beltran (1949) 94 Cal.App.2d 197, 205 [210

P.2d 238]. In Beltran, the defendant unsuccessfully argued on

appeal that his prior acquittal on a charge of kidnapping for

purpose of robbery was res judicata on a second trial for robbery;

the court concluded that there was "nothing in the record from

which it can be said that by the verdict of acquittal of the

kidnaping charge the jury found that [the defendant] had no

knowledge of the plan to commit robbery.” (Id. at p. 207.)

Although the lead opinion in Ashe v. Swenson, supra, 397

U.S. 436 [25 L.Ed.2d 469, 90 S.Ct. 1189] (see fn. 2, ante ),

alluded in passing to the "lack [24 Cal.App.4th 160] of

‘mutuality” in the application of the collateral estoppel doctrine

in criminal cases (id., at p. 443 [25 L.Ed.2d at p. 475]), the issue

was discussed in the dissenting opinion by Chief Justice Burger:

"Very properly, in criminal cases, finality and conservation of

private, public, and judicial resources are lesser values than in civil

litigation. Also, courts that have applied the collateral-estoppel

concept to criminal actions would certainly not apply [it to] both

parties, as is true in civil cases, i.e., here, if Ashe had been

convicted at the first trial, presumably no court would then hold

that he was thereby foreclosed from litigating the identification

issue at the second trial.” (Id. at pp. 464-465 [25 L.Ed.2d at p.

487]; dis. opn. of Burger, C.J.)

A year after Ashe, a similar factual situation was before the

Court in Simpson v. Florida (1971) 403 U.S. 384 [29 L.Ed.2d

549, 91 S.Ct. 1801]. In Simpson, the defendant was convicted

of armed robbery of a store manager; after that conviction was

reversed on appeal for instructional error, the defendant was

retried and acquitted; the defendant was then charged with

robbing the store’s customer; defendant’s motion to quash the

information on double jeopardy grounds was overruled and he

was convicted by jury of armed robbery. The Supreme Court of

A-9

Florida declined review, allowing to stand an appellate court

decision that “appellant is estopped from contending without

further proof that the State failed to prove the issue of his

identity as one of the robbers on . . . the second trial inasmuch

as on the first trial a jury had found above and beyond a

reasonable doubt that appellant was a participant in the robbery.”

(Id. at p. 386 [29 L.Ed.2d at p. 552].) The court’s lead per

curiam opinion characterized the Florida appellate court’s

resolution of the issue as "plainly not tenable," and continued to

explain that "Indeed, in Ashe itself, we specifically noted that

*mutuality’ was not an ingredient of the collateral estoppel rule

imposed by the Fifth and Fourteenth Amendments upon the

states. [Citation.] It is clear that Florida could not have retried

petitioner a third time on the charge of robbing the store

manager because it had previously secured a jury verdict of guilty

as well as one of acquittal. And, had the second trial never

occurred, the prosecutor could not, while trying the case under

review, have laid the first jury verdict before the trial judge and

demanded an instruction to the jury that, as a matter of law,

petitioner was one of the armed robbers in the store that night."

(Ibid. )*

3/ More recently, in United States v. Dixon (1993) __ U.S. _

[125 L.Ed.2d 556, 113 S.Ct. 2849], the court addressed the

issue of whether the double jeopardy clause bars prosecution on

a substantive criminal charge based on the same conduct for

which the defendant had been held in criminal contempt of

court. Although the collateral estoppel issue was not raised

therein, (125 L.Ed.2d at p. 573), a footnote in the plurality

opinion (by Justice Scalia, joined by three other Justices) stated:

"Under Ashe v. Swenson .. . , an acquittal in the first prosecu-

tion might well bar litigation of certain facts essential to the

second one -- though a conviction in the first prosecution would

not excuse the Government from proving the same facts the

second time.” (125 L.Ed.2d at p. 577, fn. 15.)

A-10

[24 Cal.App.4th 161] Despite this seemingly absolute

language barring the prosecution from asserting the collateral

estoppel doctrine against the defendant on a subsequent prosecu-

tion, the language remains dictum. Apparently, the United

States Supreme Court has not yet squarely addressed the issue or

offered any theoretical underpinning for such a rule. In the

absence of a definitive resolution of the issue of mutuality by the

United States Supreme Court, some lower courts have developed

justifications for the prosecution’s assertion of the doctrine

against the defendant in cases involving issues of paternity and

citizenship status. Upon a more detailed discussion of these

cases, it will become clear why we find these cases distinguishable

from the instant case.

[IIT]

COLLATERAL ESTOPPEL ASSERTED BY

PROSECUTION, GRANTED

In a case decided well before Ashe v. Swenson, the court in

People v. Majado (1937) 22 Cal.App.2d 323 [70 P.2d 1015],

held that "a conviction and judgment on a charge of failing to

provide for an illegitimate child is conclusive on the issue of

parentage and prevents the defendant from having the same issue

retried in a subsequent prosecution on a similar charge in the

same court and between the same parties, when the information

in the first action has been dismissed after satisfactory completion

of probation.” (Id. at p. 324.) The court explained: "The crime

here is a continuing one, if the appellant continues to fail to care

for the child. If the purpose of probation fails and he continues

to repeat the offense his very failure to take advantage of the

opportunity for reformation offered him by probation would,

under his theory, place him in a much better position than if

probation was never granted. If it had not been granted in the

first place the fact of parentage would have been established for

A-11

future cases. But under his view of the statute [Penal Code

section 1203.4] this result is defeated by his failure to keep his

implied promise to reform and he can, if probation is granted in

successive cases, put the People to the expense of many trials

before this two-year-old child reaches its majority, in each of

which the fact of parentage must again be established. Eventual-

ly, he might secure a jury which would find that he was not the

father of the child and, since that judgment could not be set

aside, we would then have the same fact judicially determined

both ways." (Id. at pp. 326-327.)

In United States v. Rangel-Perez (S.D.Cal. 1959) 179

F.Supp. 619, the defendant was convicted after trial in 1943 of

illegal entry into the United [24 Cal.App.4th 162] States and

deported to Mexico; in 1957, defendant was found in California

and again charged with illegal entry; the prosecution invoked the

doctrine of collateral estoppel to obviate another trial of the

nationality-status issue, whereas the defendant moved to strike all

evidence of the 1943 adjudication of his alienage and asserted he

was entitled to a trial de novo as to each element of the charged

offense. The court acknowledged that a "brief review of the

reported cases which have come to my attention points up not

only the fact that the decisions are in conflict, but also the fact

that the majority lean toward acceptance of the view that the

doctrine of collateral estoppel, while available to the accused as

against the Government, is not available to the prosecutor in

Federal criminal cases." (179 F.Supp. at p. 625.) However, the

court, citing Majado, found the doctrine available to the govern-

ment, permitting it to assert that the 1943 proceeding conclusive-

ly established that the defendant was an alien as of the date of

that prior adjudication. The court noted that "Issues as to status,

for example, would seem most appropriate for application of the

doctrine -- especially so as to such an unchanging and indeed un-

changeable, status as that of natural parent and child, which was

involved in People v. Majado, supra, 22 Cal.App.2d 323... ."

(179 F.Supp. at p. 625.) Although the court noted that

A-12

nationality status can be and frequently is changed from that of

alien to that of American citizen through the naturalization pro-

cess, the defendant in the instant case advanced no such evidence;

rather, in his prior trial and in the case at bar defendant advanced

the claim that he was a born American citizen, a claim which he

had already fully and fairly litigated in 1943. “In this situation

it is proper to apply collateral estoppel in favor of the Govern-

ment." (179 F.Supp. at p. 626.)

The court in Rangel-Perez supported its conclusion on the

ground, similar to that advanced in Majado, that defendants

should not be provided an incentive for repeat violations of the

law. "If the issue of alienage were to be tried each time a

defendant makes an entry into the United States, after once

having been found by judicial determination to be an alien, there

would be less to deter future entries than at the present. ... [A]

defendant would have an added incentive to enter again and

again, knowing that a trial de novo on the issue of alienage

would be forthcoming and that such trial might, on one occa-

sion, result in a favorable verdict. The Government would be

estopped by any unfavorable verdict, and accomplishment of the

objectives of the immigration laws to discourage and effectively

control the already difficult problem of illegal entries into this

country would thus be weakened.” (179 F.Supp. at p. 626.)

The instant case does not implicate any public policy

involving deterrence of repeated violations of the law by peti-

tioner. Accordingly, we do not find [24 Cal.App.4th 163] the

Majado or Rangel-Perez line of cases dispositive. Moreover, the

federal circuits are not unanimous on the issue. "Because of its

potential implication for a defendant’s rights to confrontation and

jury trial, other courts have been reluctant to decide whether the

doctrine of collateral estoppel is appropriate in successive criminal

proceedings. See United States v. Day, 591 F.2d 861, 892 n. 23

(D.C.Cir. 1979) (Robinson, J., dissenting in part); United States

v. Cheung Kin Ping, 555 F.2d 1069, 1076 (2d Cir.1977).”

A-13

(United States v. Bejar-Matrecios (9th Cir. 1980) 618 F.2d 81,

83, fn. 2.)

We now turn to an examination of the cases, brought to

our attention by the parties herein, in which the courts have held,

on various theories, that the prosecution cannot invoke the

doctrine of collateral estoppel against a defendant in a criminal

case.

[IV}

COLLATERAL ESTOPPEL ASSERTED

BY PROSECUTION, DENIED

In State v. Stiefel (Fla.App. 1972) 256 So.2d 581, the state

appealed from an order dismissing an information charging

defendant with manslaughter resulting from operation of a motor

vehicle while intoxicated and with culpable negligence on double

jeopardy grounds, as the defendant had suffered a prior convic-

tion of drunk driving. The court held that the prior conviction

was not a bar to the manslaughter charge on double jeopardy

grounds, and the doctrine of collateral estoppel was simply

inapplicable: "The doctrine cannot apply, however, when as here

the issue has been resolved against the accused. This is so

because if it were to be given any effect at all in such case the

trial court in the subsequent prosecution could charge the jury,

or consider as a matter of law, that such issue had been resolved

as a true fact to the detriment of the accused. This would be

impermissible of course, under due process considerations which

assure an accused a jury trial on all issues relating to each element

of a given criminal charge." (256 So.2d at p. 585, emphasis in

original.) It is unclear whether the court in Stiefel was applying

state or federal principles of due process or relying upon the

right to jury trial.

The court clearly grounded its decision in State v. Ingenito

(N.J. 1981) [87 N.J. 204] 432 A.2d 912, on the state and

A-14

federal right to jury trial. Defendant was charged with several

weapons offenses; the charge of possession of a weapon by a

convicted felon was severed from a count charging unlicensed

transfer of a weapon. After trial of the latter charge, defendant

was found guilty and a week later another jury tried defendant on

the charge of possession of a weapon by a convicted felon. As

to the element of being a [24 Cal.App.4th 164] convicted

felon, defendant stipulated that he had been convicted in 1961

for breaking and entering and larceny; to prove possession, the

prosecution was permitted, over defense objection, to admit

evidence of defendant's conviction for unlicensed transfer of the

weapons. On appeal, defendant asserted that the prior conviction

had been used as a collateral estoppel against him and that a

criminal trial use of that doctrine against him was unconstitution-

al. The Supreme Court of New Jersey agreed with the defen-

dant, holding that "the use of defendant’s prior conviction in the

trial of this case constituted collateral estoppel against the

defendant and impinged upon his constitutional right of trial by

jury, U.S. Const., Amend. VI, N.J. Const. (1947), Art. I, 1 9."

(432 A.2d at p. 915.)

The court in Ingenito began its analysis by noting that the

affirmative use of collateral estoppel against a defendant in a

criminal prosecution is not predicated upon any constitutional

mandate, while the right to jury trial is one of the most cherished

rights of Anglo-American jurisprudence, and is a constitutional

guarantee to be scrupulously protected from encroachment or

impairment with respect to a criminal defendant. (432 A.2d at

p- 915.) It then concluded that the application of collateral

estoppel against a criminal defendant impairs the right to jury

trial in several respects: (1) it invades the factfinding and

ultimate decisional functions of the jury ("If an essential element

of a case is presented as concluded or settled, effectively with-

holding from the jury crucial underlying facts, the jury’s capacity

to discharge fully its paramount deliberative and decisional

responsibilities is irretrievably compromised" (id. at p. 916)), and

ee . .

A-15

(2) it conflicts with the presumption of innocence as to every ele-

ment of a crime and impermissibly shifts the burden of proof to

the defendant, in that it "constitutes a strong, perhaps irresistible,

gravitational pull towards a guilty verdict, which is utterly

inconsistent with the requirement that a jury remain free and

untrammeled in its deliberations." (Id. at pp. 918-919.)

In a footnote, the court in Ingenito cited People v. Majado,

supra, 22 Cal.App.2d 323, and United States v. Rangel-Perez,

and acknowledged that "several recent cases have permitted the

use of collateral estoppel, the jury right notwithstanding.” (432

A.2d at p. 919, fn. 7.) "Most of these cases are limited to

instances where the issue foreclosed involved status or did not go

to the core of the crime charged or where the proceeding in

which estoppel was invoked did not involve a jury trial... . To

the extent that the analyses or holdings of any of these cases are

particularly relevant to the factual posture of this case, we do not

believe they adequately or correctly treat the issue of collateral

estoppel as violative of the jury right and find them to be

unpersuasive authority.” (Ibid.)

The Supreme Court of New Hampshire reached a similar

conclusion in State v. Johnson (1991) [134 N.H. 498] 594 A.2d

1288, but instead of setting [24 Cal.App.4th 165] out a

constitutional rule of law applicable to all cases, the court in

Johnson adopted a balancing test analysis. Moreover, the New

Hampshire court did not go so far as to conclude that the

alienage or child support cases such as People v. Majado were

wrongly decided; rather the court distinguished those cases as

involving the weighing of different policies. "The underlying

rationale justifying the application of collateral estoppel in all of

these [alienage and child support] cases appears to be the need

to preserve judicial resources when an unchanging issue has been

- determined by a prior conviction.... As we have noted on

prior occasions, the question of whether collateral estoppel

applies in criminal cases is determined by weighing competing

policy considerations.” (594 A.2d 1288, 1291-1292.) "Where

A-16

a prior conviction involves a factual issue that is necessarily

determinative of a subsequent prosecution, and the policy consid-

erations justifying the application of collateral estoppel are slight,

the State must marshal its evidence and prove its case as com-

pletely as it did in the original prosecution." (Id. at p. 1293.)

In Johnson, the defendant was convicted of driving a motor

vehicle with a revoked license, the central issue in the case being

whether the defendant drove a car on the day of the offense; in

defense, defendant testified that he was not driving the car on the

day in question. In a subsequent trial for perjury, the State filed

a formal motion "requesting the invocation of collateral estoppel

to prevent the relitigation of the findings of fact made in the

operating-after-revocation proceedings.” (594 A.2d at p. 1290.)

Applying a balancing test, the court, citing Ingenito, acknow-

ledged the danger that the use of collateral estoppel may impair

the defendant's right to a fair trial. The court concluded that

"The interests that would best be served by the application of

collateral estoppel in this case--deterrence of defendants from

giving false testimony, and economy in the use of judicial

resources -- are simply outweighed by those considerations which

favor the defendant. “The public interest in the accuracy and

justice of criminal results is greater than the concern for judicial

economy.” (Id. 594 A.2d at p. 1292.)

More recently, the Court of Appeals of Michigan, in People

v. Goss (Mich.App. 1993) [200 Mich.App. 9] 503 N.W.2d 682,

after reviewing the case law of other jurisdictions, decided that "a

defendant’s constitutional right to a trial by jury precludes the

application of collateral estoppel to establish facts relating to an

essential element in a subsequent criminal prosecution. [{] In

so holding, we adopt the reasoning set forth by the Supreme

Court of New Jersey in Ingenito,” (503 N.W.2d at p. 686), and

"explicitly reject the use of a balancing test under the rubric of

due process in making this determination. [Citations.] It is

inappropriate to determine the applicability of collateral estoppel

case by case in terms of a balancing test weighing competing [24

A-17

Cal.App.4th 166] policy considerations because more is at stake

than just a defendant’s right to due process requiring the state to

prove, beyond a reasonable doubt, every element of the charge

against him. Accordingly, in the clash between the principle of

collateral estoppel and the constitutional right to trial by jury,

collateral estoppel must give way to permit a defendant’s

unfettered exercise of the constitutional right to trial by jury.”

(Id. at p. 687.)

The procedural posture of the Goss case is similar to the

posture of the instant case in that the collateral estoppel issue

came to the appellate court prior to the trial in which it was

sought to be invoked by the prosecution. In Goss, the defendant

was convicted of first degree murder, two counts of assault with

intent to commit murder, two counts of criminal sexual conduct,

kidnapping, and armed robbery. All counts, except the murder

count, were affirmed on appeal; on remand for retrial on the

charge of felony murder, the prosecution moved that the jury be

instructed that the element of armed robbery necessary to

establish felony murder had been proven and was not an issue for

the jury to decide. The trial court denied the prosecution’s

motion, and the prosecution appealed. Accordingly, in both the

instant case and Goss, the appellate courts are addressing the

issue of collateral estoppel before the trial at which the prosecu-

tion seeks to assert it. Thus, the case at bar and Goss are distin-

guishable from People v. Ford (1966) 65 Cal.2d 41 [52

Cal.Rptr. 228, 416 P.2d 132] a case relied upon by real party.

The dissenting opinion in Goss relied heavily on Ford to

support the view that the prosecution should be able to assert the

doctrine of collateral estoppel against the defendant. In the case

at bar, the prosecution’s motion in the trial court relied heavily

on Ford, and the trial court at oral argument also expressly cited

Ford before making its ruling. Accordingly, Ford merits our

detailed analysis.

A-18

[V]

RELIANCE ON PEOPLE v. FORD

In People v. Ford, supra, 65 Cal.2d 41, the defendant burglar-

ized the home of John Roope on June 2; on June 9, defendant

entered Roope’s home, robbed Roope at gunpoint, and forced

Roope to drive him to another town, where defendant kidnapped

his (defendant’s) wife, and assaulted a man with whom his wife

was living. Defendant then forced Roope to accompany him, his

wife and children, while he drove Roope’s car aimlessly about the

countryside where, several hours later, he shot and killed a

deputy sheriff. In the first trial, a jury found defendant guilty on

seven counts, including robbery, kidnapping, and murder. On

appeal, the Supreme Court reversed the [24 Cal.App.4th 167]

judgment on the murder count because of errors in the instruc-

tions, affirmed the judgments on the non-homicide counts, and

modified the judgment on the burglary count. Although

defendant testified on his own behalf at the first trial, he did not

do so on retrial; moreover, we infer from the summary of the

psychiatric evidence on the first trial (People v. Ford (1964) 60

Cal.2d 772, 787 [36 Cal.Rptr. 620, 388 P.2d 892]) and the

summary of such evidence on retrial (People v. Ford, supra, 65

Cal.2d at p. 55), that the evidence presented to the second jury

on the element of defendant's intent was different than that at

the first trial. At the second trial, defendant offered extensive

testimony of three psychiatrists to establish that at the time of

the homicide, he did not possess the mental ability to commit

first degree murder, due to emotional disturbance, intoxication

and malnourishment. (65 Cal.2d at pp. 51-52.) The jury was

instructed on both felony murder and on premeditated murder,

although the basis of the jury’s finding of first degree murder

could not be ascertained. On appeal, the Court found that

because the prosecution "presented no psychiatric testimony to

rebut the evidence introduced by the defense" (65 Cal.2d at p.

vs .

A-19

55), the evidence was insufficient to support the premeditation

requisite to a conviction of willful, deliberate and premeditated

murder. (Ibid.) The Court also held that the first degree

murder conviction could not be upheld on the basis of the felony

murder rule because as a matter of law the robbery had terminat-

ed prior to the homicide. (Id. at p. 56.) The Court then

concluded that because the kidnapping and the weapon offense

were continuing crimes "still in the process of being committed

by defendant when the killing occurred” (id. at p. 57), the

evidence establisned "the homicide as murder of the second

degree due to the operation of the felony-second-degree murder

rule.” (Ibid.) The judgment was thus modified by reducing the

degree of the crime to murder of the second degree.

One of Ford’s appellate contentions with respect to the

murder conviction was that "since he was not arraigned on a

theory of felony-murder it was error to submit instructions on

that issue to the jury. He further claims that the instructions

were improper because they told the jury that he had been

convicted of robbery, kidnaping and possession of a concealable

weapon by an ex-felon, and reserved for the jury only the

questions whether the homicide was perpetrated during the

commission of any or all of these felonies, and whether he

possessed the intent requisite to the various felonies at the time

of the commission of the homicide.” (65 Cal.2d at p. 50.)

In finding no error occurred in instructing the jury, the

Court stated: "It is obvious that the felony convictions obtained

at the first trial substantially affected the prosecution and defense

upon retrial of the murder charge. The burden upon the

prosecution was lessened to the extent that it was permitted the

benefit of the felony-murder rule without the necessity of having

to [24 Cal.App.4th 168] prove the elements of the respective

felonies. Nor was the defense permitted to dispute the fact that

the necessary elements of the felonies had been conclusively

found. These facts do not, however, compel the conclusion

urged upon us by defendant. [1] The doctrine of res judicata

A-20

applies to criminal as well as civil proceedings and operates to

conclude those matters in issue which the verdict determined

though the offenses be different. (Sealfon v. United States, 332

U.S. 575, 578 [68 S.Ct. 237, 92 L.Ed. 180]; see Teitelbaum

Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal.2d 601, 606 [25

Cal.Rptr. 559, 375 P.2d 439].) Thus where a defendant is tried

on multiple counts of a single information, each count being

considered as a separate and distinct offense, the doctrine of res

judicata operates to preclude the relitigation of issues finally

determined upon retrial of only one count. (See People v.

Beltran, 94 Cal.App.2d 197, 205 ....) It follows that the

doctrine of res judicata justifies instructions, where relevant, that

a defendant has been found guilty of crimes finally adjudicated

which are charged as elements in another charge or charges then

in the process of being retried. Accordingly, it was not error for

the trial court to give appropriate instructions that defendant had

been convicted of the various felonies, and that if they found that

defendant’s commission of such felonies was conjoined with his

commission of the homicide, they might predicate their verdict

on the felony-murder rule articulated in Penal Code section 189."

(65 Cal.2d at pp. 50-51.)

The case at bar is distinguishable from Ford factually and

procedurally. In Ford it is also significant that the defendant was

permitted to, and did, litigate on retrial the issue of whether he

had the intent requisite to the various felonies at the time of the

commission of the homicide. In fact, there is no indication in

Ford that the jury instruction prevented defendant from present-

ing his defense of diminished capacity or impaired his right to a

fair trial on the homicide charge. Thus, Ford is distinguishable

from the instant case because petitioner here asserted a mistaken

identity defense at his attempted murder trial and would be

precluded from presenting this defense under the challenged

court order. Moreover, petitioner is not only asserting the claim

that the court order constitutes instructional error, but that it

impairs his right to jury trial and to the presumption of inno-

. :

RENO READE eI PBS Me MY ERE ERG AP ONLINE SS A LIN,

;

A-21

cence. These are issues not considered in Ford. A decision is

not authority for issues not considered therein. (People v.

Lonergan (1990) 219 Cal.App.3d 82, 93 [267 Cal.Rptr. 887].)

It must also be remembered that Ford was decided before Ashe

and Simpson questioned the ability of the prosecution to invoke

collateral estoppel against a criminal defendant.

For all of the foregoing reasons, Ford is not controlling

authority for this case. We proceed to resolve this case on the

principles of collateral estoppel set out in Lucido v. Superior

Court, supra, 51 Cal.3d 335.

[24 Cal.App.4th 169] [VI]

PROSECUTION CANNOT ASSERT COLLATERAL

ESTOPPEL AGAINST PETITIONER

In this case, although the threshold requirements for

application of the doctrine of collateral estoppel were met

(Lucido v. Superior Court, supra, 51 Cal.3d 335, 339), the

prosecution failed to establish that its assertion of the doctrine of

collateral estoppel is consistent with principles of due process and

sound judicial policy. "Quite simply, the pursuit of judicial

economy and efficiency may never be used to deny a defendant

his right to a fair trial.” (People v. Hogue (1991) 228

Cal.App.3d 1500, 1506 [279 Cal.Rptr. 647].)¥

4/ Petitioner relies heavily on Hogue. Although we believe it

was correctly decided, the case is distinguishable from the one at

bar and not dispositive herein. In Hogue, the defendant was

charged and convicted of multiple sex acts on a single victim; on

appeal, the court affirmed his convictions of kidnapping for

purpose of committing a lewd and lascivious act on a child under

14, lewd and lascivious conduct by force or violence, and oral

copulation with a child under 14; a count of penetration with a

foreign object on a child under 14 and by a person more than 10

(continued...)

A-22

In this case, the assertion of collateral estoppel by the

prosecution deprives petitioner of the right to present his defense

to the jury. To the extent that he did not testify at his attempted

murder trial and wishes to do so in the instant trial, the court’s

ruling would also preclude him from presenting evidence and

defenses which, for whatever reason, may not have been present-

ed at the prior trial. Thus, the interests of petitioner far out-

weigh any interest in judicial economy.

Moreover, the assertion of the doctrine by the prosecution

cannot be said to promote the public policy of protecting

litigants from harassment. To the extent that permitting

petitioner a full trial on all issues risks a verdict that may be

inconsistent with the prior verdict, we note that "Consistency,

however, is not the sole measure of the integrity of judicial

decisions. We must also consider whether eliminating potential

inconsistency (by displacing full determination of factual issues

in criminal trials) would undermine public confidence in the judi-

cial system. As has the majority of courts in [24 Cal.App.4th

170] other jurisdictions, we conclude it would." (Lucido v.

Superior Court, supra, 51 Cal.3d at p. 347.) Accordingly,

4/ (...continued)

years older was reversed because of error in instructions. On

retrial of the latter count, the court granted the prosecution

motion to preclude the defendant from litigating the issues of

identity and alibi as those issues were adjudicated by the jury in

the first trial. In holding the trial court’s ruling was error, the

appellate court stated that the issue of the identity of the defen-

dant as the person who violated Penal Code section 289,

subdivision (j) was not finally decided and affirmed on the

merits; that conviction was reversed. (228 Cal.App.3d 1500.)

Thus, Hogue is a case in which the threshold requirements for

application of collateral estoppel were not met.

There is no contention in the instant case that the issues

decided by the prior judgment for attempted murder are not

identical to the ones sought to be relitigated.

A-23

petitioner’s interest in a trial de novo is consistent with maintain-

ing integrity and public confidence in the judicial system, while

the application of collateral estoppel threatens those policies.

Thus, the policies underlying collateral estoppel are far out-

weighed by other policies which are vindicated by affording

petitioner a trial de novo.

We also question whether, as a practical matter, the murder

trial can be limited to the issue of causation and the jury

instructed in the manner requested by the prosecution without

causing prejudice to petitioner as to the issue actually to be

decided by the jury in such a limited trial. This is so because a

jury so instructed could not help but infer that the defendant had

either admitted the other issues or another jury had already

decided them against him. Either inference creates "a strong,

perhaps irresistible, gravitational pull towards a guilty verdict,

which is utterly inconsistent with the requirement that a jury

remain free and untrammeled in its deliberations." (State v.

Ingenito, supra, 432 A.2d 912, 918-919.)

We note that the decisions of sister states are persuasive

only in the absence of controlling California authority. (Bell-

flower Education Assn. v. Bellflower Unified School Dist. (1991)

228 Cal.App.3d 805, 811, fn. 2 [279 Cal.Rptr. 179].) In this

case, however, it is unnecessary for us to choose between the

approach of the Supreme Court of New Hampshire in State v.

Johnson, supra, 594 A.2d 1288, which adopted a balancing test

analysis, and the approach of the Supreme Court of New Jersey

in State v. Ingenito, supra, 432 A.2d 912, which adopted a broad

rule barring the assertion of collateral estoppel by the govern-

ment to establish facts relating to an essential element in a

subsequent criminal prosecution. Under both of the foregoing

approaches, as well as under the principles of collateral estoppel

set out in Lucido, we reach the same result: The trial court’s

order must be vacated.

DISPOSITION

A-24

Let a peremptory writ of prohibition issue directing

respondent court to vacate its August 20, 1993, order and to

enter a new and different order denying the prosecution’s Motion

re Collateral Estoppel.

CERTIFIED FOR PUBLICATION

LILLIE, P.J.

I concur:

JOHNSON, J.

CERTIFIED FOR PUBLICATION.

WOODS (Fred), J., Dissenting:

May a criminal defendant be collaterally estopped from

presenting all or part of his defense?

This question, raised by the instant petition, has divided

both federal courts (compare, e.g., United States v. Rangel-Perez

(Cent. Dist. Cal. 1959) 179 [24 Cal.App.4th 171] F.Supp.

619; Pena-Cabanillas v. United States (9th Cir. 1968) 394 F.2d

785; United States v. Colacurcio (9th Cir. 1975) 514 F.2d 1

[allowing preclusion against a criminal defendant] with United

States v. DeAngelo (3d Cir. 1943) 138 F.2d 466) and state

courts (Compare, e.g., Commonwealth v. Evans (1869) 101

Mass. 25; Commonwealth v. Ellis (1892) 160 Mass. 165, 35

N.E. 773; State v. Sargood (1907) 80 Vt. 412, 68 Adi. 51

[allowing preclusion] with People v. Goss (1993) 200 Mich.App.

9, 503 N.W.2d 682. See generally 147 ALR 991; Comment,

The Use of Collateral Estoppel Against The Accused (1969) 69

Columbia L.R. 515; 1 Witkin & Epstein, Cal. Criminal Law (2d

{

;

}

A-25

ed. 1988) § 356, pp. 411-413). With but one exception,» it

has not divided the courts of California.

Our decisions have consistently applied collateral estoppel

"by preventing a party who has had one fair trial on an issue

from again drawing it into controversy.” (Teitelbaum Furs, Inc.

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

Cal.Rptr. 559, 375 P.2d 439].) Prosecutors have been estopped

from murder prosecutions (People v. Taylor (1974) 12 Cal.3d

686 [117 Cal.Rptr. 70, 527 P.2d 622) and and criminal defendants

from presenting a defense (People v. Majado (1937) 22

5/ In People v. Hogue (1991) 228 Cal.App.3d 1500 [279

Cal.Rptr. 647] the defendant was charged with four sex crimes.

All "were . . . sex acts upon a single victim closely connected in

time." (Id. at p. 1502. Emphasis added.) At his first trial, the

defense was alibi and mistaken identity. The jury rejected the

defense and convicted defendant on all counts. On appeal, one

count was reversed because the trial court failed to instruct on its

"10 years older" element. The other three counts were affirmed.

At the second trial, defendant was collaterally estopped from

relitigating identity (and therefore alibi). Defendant then waived

jury and was found guilty by the court. On appeal, the convic-

tion was reversed on the ground it was error to apply collateral

estoppel against defendant.

People v. Hogue is wrongly decided. Irreconcilable with the

Supreme Court’s decision in People v. Ford (1966) 65 Cal.2d 41

[52 Cal.Rptr. 228, 416 P.2d 132], Hogue offers this meta-

physical distinction: "[I]n Ford the issue of defendant's guilt of

the underlying felonies had been tried on the merits and affirmed

on appeal. In other words, the issue to be decided -- whether the

defendant committed certain felonies -- merged with the judg-

ment of conviction of those felonies. By contrast, the issue to be

decided here -- the identity of appellant as the person who

violated section 289, subdivision (j) -- did not merge with the

judgment of conviction on the related counts." (Id. at p. 1504.)

A-26

Cal.App.2d 323 [70 P.2d 1015]). Our decisions have fortified

"the public interest in determining criminal guilt and innocence

at criminal trials" (Lucido v. Superior Court (1990) 51 Cal.3d

335, 352 [272 Cal.Rptr. 767, 795 P.2d 1223]), preserved the

integrity of the judicial system, promoted judicial economy,

protected litigants from harassment (ibid.), "maintain[ed] the

stability of judgments, insure[d] expeditious trials" (People v.

One 1964 Chevrolet Corvette Convertible (1969) 274

Cal.App.2d 720, 731 [79 Cal.Rptr. 447]), and spared victims

and witnesses from endless court appearances.

All of these interests--with all due respect to the majority

opinion--would be served by denying the petition.

[24 Cal.App.4th 172] In sum, my answer to the question

is yes. A criminal defendant may be estopped from presenting

a defense. Our cases, as I explain, so hold.

CALIFORNIA CASES: A SUMMARY

People v. Majado (1937) 22 Cal.App.2d 323

The defendant was found guilty of failing to provide for his

minor child (Pen.Code, § 270; statutory references, unless

otherwise noted, are to the Penal Code). He was granted

probation and ordered to pay $15 a month. When probation

expired defendant ceased payments and was again charged with

failure to provide. At this second trial defendant was collaterally

estopped from contesting paternity, that issue having been finally

decided in the first trial. The Court of Appeal approved use of

collateral estoppel against the defendant and affirmed the

conviction.

SRR ey

HAS GE QO WH oF

A-27

Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58

Cal.2d 601

Teitelbaum was convicted of conspiracy to commit grand

theft, attempted grand theft, and filing a fraudulent insurance

claim--all arising from his claimed "fur robbery." After this

criminal conviction was final, Teitelbaum filed a civil suit against

his insurance company alleging the same furs had been robbed

and thus were covered by his insurance policy. A jury found in

his favor but the trial court ruled the evidence insufficient and

granted a new trial. The insurance company moved for judg-

ment notwithstanding the verdict based upon collateral estoppel.

The motion was denied.

Justice Traynor, writing for a unanimous court, reversed the

trial court order denying the insurance company’s motion for

judgment n.o.v., holding that a criminal conviction may be

conclusive in a subsequent civil action and mutuality is not

required for collateral estoppel.

In this landmark case Justice Traynor stated, "Collateral

estoppel applies to successive criminal trials and although not

widely adopted, has been applied in the better reasoned cases that

have dealt with the problem here presented." (Id. at p. 606.

Citations omitted.) One of the criminal cases cited with apparent

approval was People v. Majado. (Ibid.) Justice Traynor further

noted that criminal trials have "rigorous safeguards against unjust

conviction, including the requirements of proof beyond a

reasonable doubt and of a unanimous verdict, the right to

counsel, and a record paid for by the State on appeal. Stability

of j ts and itious trials are served and _no injustice

done, when criminal defendants [24 Cal.App.4th 173]_are

estopped from relitigating issues determined in conformity with

these safeguards.” ((Ibid. Internal citations omitted. Emphasis

added.)

A-28

People v. Ford (1966) 65 Cal.2d 41

In his first trial, defendant was convicted of burglary,

possession of a concealable weapon, robbery, two counts of

kidnapping, assault with a deadly weapon, and first degree

murder of a police officer. He was sentenced to death. On first

appeal, the California Supreme Court reversed the murder

conviction for instructional errors but affirmed the other

convictions.

In the murder retrial, the trial court gave felony murder

instructions and applied collateral estoppel by informing the jury

defendant "had been convicted of robbery, kidnaping and

possession of a concealable weapon by an ex-felon, and reserved

for the jury only the questions whether the homicide was

perpetrated during the commission of any or all of these felonies,

and whether he possessed the intent requisite to the various

felonies at the time of the commission of the homicide." (Id. at

p. 50.)

In approving the trial court’s use of collateral estoppel

against the defendant Justice Peters, for a unanimous court,’

stated: "The doctrine of res judicata applies to criminal as well

as civil proceedings and operates to conclude those matters in

issue which the verdict determined though the offenses be

different. Thus where a defendant is tried on multiple counts of

a single information, each count being considered as a separate

and distinct offense, the doctrine of res judicata operates to

preclude the relitigation of issues finally determined upon retrial

of only one count. It follows that the doctrine of res judicata

justifies instructions, where relevant, that a defendant has been

found guilty of crimes finally adjudicated which are charged as

elements in another charge or charges then in the process of

being retried. Accordingly, it was not error for the trial court to

give appropriate instructions that defendant had been convicted

6/ Justice McComb dissented but not as to this issue.

A-29

of the various felonies, and that if they found that defendant’s

commission of such felonies was conjoined with his commission

of the homicide, they might predicate their verdict on the

felony-murder rule articulated in Penal Code section 189." (Id.

at pp. 50-51. Internal citations omitted.)

To avoid the apparent controlling effect of Ford, the

majority opinion asserts Ford is "distinguishable . . . factually and

procedurally.". (Maj. opn., p. 385.) ‘If there is a procedural

distinction the majority opinion does not specify it. A procedural

distinction is a partial reversal in Ford versus a full affirmance in

the instant case. Perhaps the majority opinion is suggesting [24

Cal.App.4th 174] that a judgment, reversed in part, has greater

collateral estoppel effect than a judgment fully affirmed.

The majority opinion’s factual distinction is no more

persuasive. Ford was permitted to raise a diminished capacity

defense to the murder charge because that charge had been

reversed and thus collateral estoppel was inapplicable. Ford was

precluded from raising all other defenses collaterally estopped by

his affirmed convictions on the other charges (robbery, kidnap-

ping, etc.). Ford’s retrial was fair--notwithstanding his being

collaterally estopped from raising potential defenses--because

application of the collateral estoppel doctrine is fair.

People v. Superior Court (Scofield) (1967) 249 Cal.App.2d 727

[57 Cal.Rptr. 818]

Defendants were charged with conspiracy and 28 counts of

submitting false insurance claims. They were temporarily

discharged when Superior Court Judge Lawler granted their

motions to suppress the evidence (seized pursuant to a search

warrant) and set aside the indictment (Sec. 995). But on appeal

by the People, Judge Lawler’s orders were reversed because

another Superior Court judge, Judge Wapner, had previously

upheld the seizure.

A-30

Justice Fourt, writing for Justices Wood and Lillie, stated:

"We are persuaded that the principles of res judicata apply in

criminal matters to bar a redetermination of identical issues

decided in a prior proceeding instituted by the same parties.

Once the prosecutor has convinced a trier of fact to find a certain

fact (and that determination becomes final), he should not have

the burden of proving again and again that same fact in court

after court.” (Id. at p. 735, 57 Cal.Rptr. 818.)

People v. One 1964 Chevrolet Corvette Convertible (1969) 274

Cal.App.2d 720

Frederick Busch borrowed his father’s Corvette and later,

when the police found marijuana in it, was convicted of marijua-

na possession. Thereafter, the police instituted forfeiture

proceedings against the Corvette and Mr. Busch (the father) filed

an answer denying that either he or his son knew there was

marijuana in the car. The People moved for summary judgment

(seeking collateral estoppel based upon Frederick Busch’s

conviction) but the motion was denied. A jury then returned a

verdict denying forfeiture. The trial court, however, granted a

new trial motion and, after some delay, summary judgment for

the People (based upon collateral estoppel).

Justice Lillie, for a unanimous court, affirmed the judg-

ment. She rejected Mr. Busch’s claims that collateral estoppel

should not be applied against him [24 Cal.App.4th 175]

because he was not a party to the criminal proceeding, had no

notice of it, was not in privity with any party, and no appeal had

been taken. (Id. at p. 729.) Justice Lillie stated, "Collateral

estoppel may be invoked to conclusively resolve any issue

necessarily determined in previous litigation between the same

parties or their privies.” (Id. at p. 726.) Regarding "privies,"

Justice Lillie noted: “However, to maintain the stability of

judgments, insure expeditious trials, prevent ““vexatious litigation

with its attendant expense both to the parties and to the public”

A-31

and to serve the ends of justice, more and more our courts are

striving to give effect to judgments by extending ‘privies’ beyond

the classical description to include relationships not originally

embraced therein.” (Id. at p. 731.)

People v. Taylor (1974) 12 Cal.3d 686

Defendant Taylor was to be the getaway driver for his con-

federate robbers, Daniels and Smith. But things did not go as

planned. The intended robbery victims, Mr. & Mrs. West,

fearing that gun wielding Smith would execute them as he

threatened to do, each shot at Smith, killing him. Both Taylor

and Daniels were charged with murder (causing Smith’s death by

inciting the Wests to shoot him) and robbery. Daniels, tried

first, was convicted of robbery but acquitted of murder.

Taylor, tried second, was convicted of both robbery and

murder. The Supreme Court reversed the murder conviction on

collateral estoppel grounds. The Court stated: "Since defendant

was sitting in the getaway car outside the store at the time of the

shooting, his subsequent conviction for murder could result only

upon a finding that one of his confederates, Daniels or Smith,

harbored malice which the trier of fact then attributed to de-

fendant because of his role as an aider and abettor. (See § 31.)

At Daniels’ trial the People already have sought and have failed

to establish that either Daniels or Smith entertained the requisite

malice aforethought. Defendant thus argues that the doctrine of

collateral estoppel should have precluded the People from

relitigating this identical issue at his later trial. We agree.” (Id.

at p. 691.)

In explaining why the prosecution could not prosecute

Taylor even once for murder the Supreme Court cited strong

policy considerations. Besides judicial economy ("even more

important in criminal than in civil trials" (id. at p. 695)) and

avoiding vexatious litigation, the Court underscored the impor-

tance of avoiding contradictory verdicts. It stated, "Perhaps the

A-32

most compelling reason for an application of collateral estoppel

where vicarious liability is at issue is to prevent the compromis-

ing of the integrity of the judicial system caused by the rendering

of inconsistent verdicts. [24 Cal.App.4th 176] Criminal trials

generally receive more publicity than civil ones, and the public’s

view of the judicial system in general is often shaped by the

impression of the fairness of the criminal justice system in

particular.” (Id. at pp. 695-696.)

People _v. White (1986) 185 Cal.App.3d 822 [231 Cal Rptr.

569]

On March 28, 1979, the bullet riddled bodies of Phyllis

Lamboy and Darryl Charles were found in a vacant San Fran-

cisco housing project. Appellant was charged with their murders.

At his first trial a jury convicted appellant of both first degree

murders but found a firearm use allegation not true (there was

evidence appellant’s brother may also have been involved). On

appeal, the convictions were reversed (improper hearsay evidence

had been admitted).

At the second trial the prosecution relied on two theories:

appellant was the shooter; appellant aided the shooter. The jury

(without specifying which theory they relied on) again convicted

appellant of both first degree murders.

The Court of Appeal reversed the convictions because the

"shooter theory” had been collaterally estopped by the first jury’s

not true finding.

Although for almost all other purposes, an enhancement

allegation such as firearm use (§ 12022.5) is an appendage to a

substantive count, without independent viability, for collateral

estoppel purposes a not true finding survives the death (reversal)

A-33

of the substantive count. This result” fortifies our jury trial

system and reduces the risk of contradictory jury findings.

A finding, made at a probation revocation hearing, that

defendant did not commit a crime will not bar a prosecution

charging defendant with the commission of that crime.

Collateral estoppel is inapplicable, not because all its

threshold requirements have not been satisfied, but because ap-

plying it would "undermine the [24 Cal.App.4th 177] public

interest in determining criminal guilt and innocence at criminal

trials.” (Id. at p. 352. Emphasis added.)

This decision preserves and strengthens the vitality of our

jury trial system.

People v. Percifull (1992) 9 Cal. App.4th 1457 [12 Cal Rptr.2d

331)

Applying Lucido, Percifull holds that a finding, made at a

dependency hearing, parents had not criminally abused their child

will not bar a child abuse criminal conviction.

This holding affirms the primacy of jury trial in our

criminal justice system.

Z/ People v. Asbury (1985) 173 Cal.App.3d 362 [218 Cal. Rptr.

902], with similar facts, reaches the same result. See also People

v. Griffin (1994) 22 Cal.App.4th 801 [27 Cal. Rptr.2d 721].

The majority opinion accepts the holding of White, Asbury,

and Griffin: a jury’s reasonable doubt finding collaterally estops

the prosecution. What the majority opinion apparently does not

accept is that a jury’s finding beyond a reasonable doubt, which

is affirmed and final on appeal, may have any collateral estoppel

effect on a criminal defendant.

A-34

CONCLUSION

As California appellate decisions make clear, when the jury’s

finding -- that it was Abraham Gutierrez who shot Sandra Zarate

-- became final, Mr. Gutierrez could not again "draw| | into

controversy” (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd.,

supra, 58 Cal.2d 601, 605) that same issue.

Although Mr. Gutierrez would not benefit from this

application of the collateral estoppel doctrine, other defendants

would. Their last refuge is a jury trial. It, with all attendant

protections -- presumption of innocence, proof beyond a

reasonable doubt, unanimous verdict, right to counsel -- not only

protects the innocent but also, given a reasonable doubt, the

guilty.

But this last refuge -- expensive, time consuming, some-

times ineffectual -- perseveres only so long as it enjoys public

confidence. That confidence is undermined by the "specter of a

system" (People v. Taylor, supra, 12 Cal.3d 686, 696) which

would allow one fair jury to find Mr. Gutierrez did shoot Sandra

Zarate and another fair jury to find he did not. To permit such

a "specter" is to encourage erosion of jury trial as we know it and

to aid proposals for non-unanimous verdicts, for 10- or 8- or

6-person juries, and for further elimination of jury trial for

"minor" offenses.

Jury trial is the cornerstone of our justice system. I would

preserve not degrade it. For that reason, I respectfully dissent.

CERTIFIED FOR PUBLICATION.

WOODS, (Fred), J.

A-35

OFFICE OF THE CLERK

COURT OF APPEAL

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

JOSEPH A. LANE, CLERK

DIVISION: 7 DATE: 05/10/94

Appellate Division

Brent Riggs

849 So. Broadway

11th FI.

Los Angeles, CA. 90014

RE: Gutierrez, Abraham

vs.

S.c.La.

People of the State of California

2 Criminal BO78255

Los Angeles NO. KA016953

THE COURT:

Petition for rehearing denied.

A-36

Second Appellate District, Division Seven, No. B078255

$034957

IN THE SUPREME COURT OF

THE STATE OF CALIFORNIA

IN BANK

Supreme Court

ABRAHAM GUTIERREZ, Petitioner FILED

AUG 11 1994

v. Robert Wandruff

Clerk

LOS ANGELES COUNTY SUPERIOR

COURT, Respondent Deputy

THE PEOPLE, Real Party in Interest [stamp]

Petition for review DENIED.

Kennard, J. is of the opinion the petition should be granted.

Lucas

Chief Justice

A-37

GIL GARCETTI COURT OF APPEAL-

District Attorney SECOND DIST.

of Los Angeles County FILED

849 South Broadway, 11th Floor AUG 17 1994

Los Angeles, California 90014- Joseph A. Lane = Clerk

3570

Telephone: (213) 974-1615 Deputy Clerk

Attorney for Plaintiff and Appel- [stamp]

lant

AUG 18 IN THE COURT OF APPEAL OF

1994 THE STATE OF CALIFORNIA

[stamp] SECOND APPELLATE DISTRICT

Granted DIVISION THREE

Lillie

(PJ.]

[handwritten]

ABRAHAM GUTIERREZ, ) No. B078255

Petitioner, )

Vv ) (LASC No. KA016953,

SUPERIOR COURT OF THE ) Honorable Alfonso M.

STATE OF CALIFORNIA, ) Bazan, Judge)

COUNTY OF LOS ANGELES, ) APPLICATION FOR

Respondent, ) STAY OF ISSUANCE

PEOPLE OF THE STATE OF ) OF REMITTITUR

CALIFORNIA, ) (IMMEDIATE STAY

Real Party in Interest. ) REQUESTED)

)

[Text of request for stay, ending with the prayer: |

WHEREFORE, the People, applicant herein, respectfully

request that this honorable court stay the issuance of the

remittitur in this case for good cause until November 9, 1994,

pursuant to Rule 25(c) of the California Rules of Court, in order

to permit the filing by the People of the State of California a

A-38

petition for writ of certiorari with the Supreme Court of the

United States, or until such earlier date that the People advise

this court of any decision to not pursue certiorari, and that, upon

the timely filing of such petition, said stay and order remain in

force until final adjudication of the proceeding in the Supreme

Court of the United States.

[Declaration under penalty of perjury and signature. }

A-39

California statutes and rules

involved in the issues

"Murder is the unlawful killing of a human being, or a fetus,

with malice aforethought." CAL. PENAL CODE, § 187, subd. (a)

(1994).

"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 premedi-

tated 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."

CAL. STATUTES 1982, chap. 950, § 1 (current version at CAL.

PENAL CODE, § 189, Ist 1 (1994)).

"Except as provided in subdivision (b), every person guilty of

murder in the second degree shall suffer confinement in the state

prison for a term of 15 years to life.". CAL. STATUTES 1987,

chap. 1006, § 1 (current version at CAL. PENAL CODE, $ 1990,

subd. (a), second par. (1994)).

"To make the killing either murder or manslaughter, it is

requisite that the party die within three years and a day after the

stroke received or the cause of death administered." CAL. PENAL

CODE, § 194, first sentence (1994).

"Any person who shall maliciously and willfully discharge a

firearm at an ... occupied motor vehicle ... is guilty of a

felony, and upon conviction shall be punished by imprisonment

in the state prison for three, five, or seven years, or by imprison-

ment in the county jail for a term of not less than six months and

A-40

not exceeding one year. CAL. PENAL CODE, § 246, first par.

(1994).

"Every person who attempts to commit any crime, but fails,

or is prevented or intercepted in the perpetration thereof, is

punishable, where no provision is made by law for the punish-

ment of such attempts, as follows:

"1. Offenses punishable by imprisonment in the state

prison. ... [I]f the crime attempted is willful, deliberate, and

premeditated murder, as defined in Section 189, the person

guilty of that attempt shall be punishable by imprisonment in the

state prison for life with the possibility of parole;.... The

additional term provided in this section for attempted willful,

deliberate, and premeditated murder shall not be imposed unless

the fact that the attempted murder was willful, deliberate, and

premeditated is charged in the accusatory pleading and admitted

or found to be true by the trier of fact." CAL. PENAL CODE,

§ 664, subd. 1 (1994).

"(a) Except as provided in subdivisions (b) and (c), any person

who personally uses a firearm in the commission or attempted

commission of a felony shall, upon conviction of such felony or

attempted felony, in addition and consecutive to the punishment

prescribed for the felony or attempted felony of which he or she

has been convicted, be punished by an additional term of

imprisonment in the state prison for three, four, or five years,

unless use of a firearm is an element of the offense of which he

or she was convicted. . . .

"(b) Notwithstanding subdivision (a), any person who is

convicted of a felony or an attempt to commit a felony, including

murder or attempted murder, in which that person discharged a

firearm at an occupied motor vehicle which caused great bodily

injury or death to the person of another, ... shall, upon

conviction of that felony or attempted felony, in addition and

consecutive to the sentence prescribed for the felony or attempt-

A-41

ed felony, be punished by an additional term of imprisonment in

the state prison for five years." CAL. STATUTES 1989, chap.

1167, § 5 (current version at CAL. PENAL CODE, § 12022.5,

subds. (a), (b)(1) (1994); formerly § 12022.5, subds. (a), (b)

(1990)).

"Any person who, with the intent to inflict such injury,

personally inflicts great bodily injury on any person other than an

accomplice in the commission or attempted commission of a

felony shall, in addition and consecutive to the punishment

prescribed for the felony or attempted felony of which he has

been convicted, be punished by an additional term of three years,

unless infliction of great bodily injury is an element of the

offense of which he is convicted.

"As used in this section, great bodily injury means a significant

or substantial physical injury.

"This section shall not apply to murder or manslaughter . . . .

The additional term provided in this section shall not be imposed

unless the fact of great bodily injury is charged in the accusatory

pleading and admitted or found true by the trier of fact." CAL.

STATUTES 1979, chap. 145, § 17 (current version at CAL.

PENAL CODE, § 12022.7, subds. (a), (d), (e) (1994)).

"A decision of a Court of Appeal becomes final as to that

court 30 days after filing.". CAL. RULES OF COURT, RULE

24(a), 3rd par., 1ut sent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.