Opposition Brief — California v. Gutierrez

9) :

No. 94-746 MAR 7 ~ 1996

In The

Supreme Court of the United States

October Term, 1994

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THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

ABRAHAM GUTIERREZ,

Respondent.

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On Petition For A Writ Of Certiorari

To The California Court Of Appeal,

Second District, Division Seven

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BRIEF IN OPPOSITION

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H. Russet. HALPERN

HaAvrPerN & HALPERN

Attorneys at Law

The Laurel Plaza Office Building

6180 Laurel Canyon Blvd., Suite 172

North Hollywood, California 91606

(213) 872-2355 — (818) 508-0063

Fax (818) 508-6045

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

The Respondent was convicted of attempted murder.

Subsequent to his conviction the victim died. The District

Attorney of Los Angeles, California, then filed a charge of

murder in the second degree against the Respondent. The

Petitioner now seeks to bar the Respondent by way of

collateral estoppel, from litigating the issues of identity

and malice.

The issue presented before this Court is whether

collateral estoppel can be used by the Prosecution to

obtain a jury instruction that, as a matter of law, some

element of the crime charged has already been proved,

without violating the Respondent’s Sixth Amendment

right to a jury trial, and his right to a fair trial pursuant to

the Due Process Clause.

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TABLE OF CONTENTS

Page

CRUBSININ PREGEINSMO. ...cccessccawgsusnetasnarn i

RESPONSE TO PETITION FOR WRIT OF

ek: rr rer rrr oe ree) eee 1

CE RS oon nck isk ens canes shaseganee ee 1

A BE 6 000 F 0 s6h sc dccte nendpednaeeeeneeeen 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 1

STATE ORs CP THRs CAG. sos ccdeccheesssscsess 2

REASON WHY WRIT SHOULD NOT ISSUE....... 2

(I) THE DECISION BELOW WAS CORRECT.... 2

CAPR AAEIED 2 cvvecdvensiu ces pvoubvesaneeeabuned 9

ili

TABLE OF AUTHORITIES

Page

Cases

Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25

EE ean 6 Ob des my dein koko soe vende tse ee 3, 4

Carella v. California, 491 U.S. 263, 109 S.Ct. 2419,

BE ee ne 4

Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514,

PE Keb b ose sce corse iscscccteses 8

Hernandez-Uribe v. United States, 515 F.2d 20 (8th

ENE EEE SSE ee 5, 6

In re Susi et al., 38 Ohio App.2d 73, 313 N.E.2d 422

EE Ee er 7

ee ee, oe BP. Se (E970) wn cece cece 4

Pena-Cabanillas v. United States, 394 F.2d 785 (9th

EL ee 5

People v. Goss, 446 Mich. 5871 (1993)................. Ff

People v. Goss, 200 Mich.App.9, 503 N.W.2d 682

Cee CEC GEG baie eee ewe gs s cds cccvecces 7

People v. Majado, 22 Cal.App.2d 323 (1937) ........... 6

State v. Ingenito, 87 N.J. 204, 432 A.2d 912 (1981) ...3, 7

State v. Johnson, 594 A.2d 1288 (N.H. 1991)........... 7

gente G@ Ghieel, 256 So. S61 (Fla. 1972)................ 7

United States v. Bruno, 333 F. Supp. 470 (E.D.Pa.

SELENE SESE EELS SOI 3

iv

TABLE OF AUTHORITIES - Continued

Page

United States v. Colacurcio, 514 F.2d 1 (9th Cir.

SO is bees 0 ee dn ea bee ee ee 5

United States v. DeAngelo, 138 F.2d 466 (3d Cir.

| , Sree Taree Bet wi UN “on Omer or aly a Ve pres J 4

United States v. Dixon, 509 U.S. __, 133 S.Ct. 2849,

se ee oS BR Fee Rees ere err h ere rr 4

Linited States v. Hernandez, 572 F.2d 218 (9th Cir.

SO 66.95 ak Ei doe ei eee sere 3

United States v. Kramer, 289 F.2d 909 (2d Cir. 1961)..... 3

United States v. Pelullo, 14 F.3d 881 (3d Cir. 1994) ...4, 7

United States v. Rangel-Perrez, 179 F. Supp. 619

(S.D.Cal. 1959)... cette tenet eee ene 5, 6

United States v. Richard, 892 F.2d 761 (9th Cir. 1990) ..... 3

OTHER

“The Use of Collateral Estoppel Against the

Accused,” 69 Colum. L.Rev. 515 (1969)............. 3

United States Constitution Article III § 2............. 1

United States Constitution Amendment VI......... pe

United States Constitution Amendment XIV § 1...... 2

RESPONSE TO PETITION FOR WRIT

OF CERTIORARI

Abraham Gutierrez respectfully proposes that a writ

of certiorari to review the judgment of the Court of

Appeal for the State of California, Second Appellate Dis-

trict, Division Seven not be granted.

o

OPINION BELOW

The opinion of the Court of Appeal (Pet. App.) is

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

153, 29 Cal.Rptr.2d 376 (1994).

S

JURISDICTION

The Court issued an opinion granting Respondents

petition for writ of prohibition on April 15, 1994, and

denied a rehearing on May 10, 1994. The California

Supreme Court, on August 11, 1994, denied the Peti-

tioner’s petition for review. Title 28, United States Code,

section 1257 (a), confers jurisdiction on the Court.

¢

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution Article III § 2

“The trial of all crimes, except in cases of impeachment,

shall be by jury: ... ”

United States Constitution Amendment VI

“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 wit-

”

nesses against him; .

United States Constitution Amendment XIV § 1

“{NJor shall any state deprive any person of life, liberty,

or property, without due process of law... ”

¢

STATEMENT OF THE CASE

The Respondent has read and considered the state-

ment of the case contained in the Petitioner’s Petition For

Writ of Certiorari, found at pages 3 through 9 and adopts

the same haec verba.

¢

REASON WHY WRIT SHOULD NOT ISSUE

(I

THE DECISION BELOW WAS CORRECT

The Court of Appeal in holding that collateral estop-

pel cannot be used affirmatively by the prosecution

rested its decision on two grounds. The first being that

“(t]he assertion of collateral estoppel by the prosecution

deprives petitioner of the right to present his defense to

the jury.” (24 Cal.App.4th 169) Secondly, the Court ques-

tioned whether a murder trial, where the only issue pre-

sented to the jury was that of causation, and a jury so

instructed in that manner, would not unduly prejudice

the jury as to that issue. The Court stated, “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.)” (24

Cal.App.4th 170).

Collateral estoppel, although first developed in civil

litigation, has been applied in criminal cases. Ashe v.

Swenson, 397 U.S. 436, 443-444, 90 S.Ct. 1189, 1194, 25

L.Ed.2d 469, 475-475 (1970). However, the doctrine has

been employed in criminal prosecutions primarily by for-

merly acquitted defendants; and, in that context, has been

viewed as derivative of the Fifth Amendment's guarantee

against double jeopardy for the same offense. Ashe v.

Swenson, (supra), United States.v. Kramer, 289 F.2d 909, 913

(2d Cir. 1961); United States v. Richard, 892 F.2d 761 (9th

Cir. 1990); United States v. Hernandez, 572 F.2d 218, 220

(9th Cir. 1978). “The Use of Collateral Estoppel Against

the Accused,” 69 Colum. L.Rev. 515 (1969). The affirma-

tive use of collateral estoppel against a defendant in a

criminal prosecution is not predicated upon any constitu-

tional mandate. Quite the opposite, the use of this evi-

dentiary tool, would deny the Respondent his Due

Process right “against conviction except upon proof

beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” In re

Winship, 397 U.S. 258, 264 (1970). This Court in Carella v.

California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218

(1989) found that jury instructions that would relieve the

state of its burden to prove every element of the charged

offense violated the Due Process Clause. The Court

“{S]uch directions subvert the presumption of innocence

accorded to accused persons, and also invade the truth-

finding task assigned solely to juries in criminal cases”

(109 S.Ct. 2419, 2420).

Although this Court has not separately addressed the

question whether a criminal defendant may be estopped

from contesting an essential element of a charged offense,

the direction that the Court has taken in other cases

indicates that affirmative use of collateral estoppel by the

prosecution would not be tolerated by the Court.

In United States v. Dixon, 509 U.S. __, __, n.15, 133

S.Ct. 2849, 2863-2864 n.14, 125 L.Ed.2d 556, 577, n.15

(1993), Justice Scalia, writing for four justices, observed

that “Under Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189,

25 L.Ed.2d 459 (1970), an acquittal in the first prosecution

might well bar litigation of certain facts essential to a

second one — though a conviction in the first prosecution

would not excuse the Government from proving the same

facts the second time.”

Aside from cases involving alienage, the majority of

Federal courts have not allowed the doctrine of collateral

estoppel to be used by the Prosecution. United States v.

Pelullo, 14 F.3d 881 (3d Cir. 1994); United States v. DeAn-

gelo, 138 F.2d 466 (3d Cir. 1943); United States v. Bruno, 333

F. Supp. 470, 476 (E.D.Pa. 1971); United States v. Carlisi, 32

F. Supp. 479, 482 (1940) c.f.; United States v. Colacurcio, 514

F.2d 1 (9th Cir. 1975).

There have been federal cases that have been willing

to allow the prosecution to use collateral estoppel affir-

matively when the issue was one of status. One of those

cases is Hernandez-Uribe v. United States, 515 F.2d 20 (8th

Cir. 1975). In Hernandez-Uribe (supra) the defendant was

convicted in the United States District Court for the

Southern District of Iowa, of being an alien who, having

previously been arrested and deported from the United

States, unlawfully reentered the country. The Court of

Appeal held that where the defendant had previously

pled guilty to the same charge he was precluded by

collateral estoppel from relitigating the issue of whether

he was an alien. The court spoke of collateral estoppel in

terms of establishing the defendant status as an alien

stating:

“The instruction given was based on the appli-

cation of collateral estoppel to an alien in Pena-

Cabanillas v. United States, 394 F.2d 785 (9th Cir.

1968). In that case the Ninth Circuit held that

the Government could invoke the doctrine of

collateral estoppel against the defendant and

establish his alien status up to the date of the

earlier conviction. The court adopted the rea-

soning of an earlier district court case, United

States v. Rangel-Perrez, 179 F. Supp. 619 (S.D.Cal.

1959) when it said: [i]f 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. Even though the present risk of

prosecution for illegal entry would remain

under 8 U.S.C. 22 § 1326, 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 occasion, result in a favor-

able verdict and accomplishment of the objec-

tives of the immigration laws to discourage and

effectively control the already difficult problem

of illegal entries into this country would be

weakened”. (515 F.2d. 21)

The underlying rationale justifying the application of

collateral estoppel Hernandez-Uribe v. United States,

(supra), U.S. v. Rangel-Perez, (supra) and the California

case People v. Majado, 22 Cal.App.2d 323 (1937), appears

to be the need to preserve judicial resources when an

unchanging issue has been determined by a prior convic-

tion. For instance, in People v. Majado, supra, the court

characterized the crime as a “continuing one,” which

could result in “the expense of many trials before

this . . . child reaches it majority, in each of which the fact

of parentage must again be established,” if collateral

estoppel is not applied. Similarly, the Rangel-Perez Court

reasoned that, if a defendant was not bound by an earlier

determination of alienage, he or she “would have an

added incentive to enter again and again, knowing that a

trial de novo on the issue of alienage would be forthcom-

ing and that such trial might, on one occasion, result in a

favorable verdict” Rangel-Perez, supra at 626. The policy

considerations that prompted the courts to allow the

implication of collateral estoppel, as an offensive tool of

the prosecution in the foregoing mentioned cases, is ot

present in the case at bar.

Cases involving alienage can be further distinguished

from the case at bar. In the alienage cases, the conduct

that led to the second or subsequent prosecution occurred

after the judicial determination that was held to have

barred relitigation. In this case, as in the cases of People v.

Goss, 446 Mich. 5871 (1993); United States v. Pelullo, 14

F.3d 881 (3d Cir. 1994), the conduct preceded the judicial

determination sought to be raised as a bar.

The majority of the states which have dealt collateral

estoppel in criminal cases have held that it is not avail-

able to the prosecution. People v. Coss, 200 Mich.App.9,

503 N.W.2d 682 (1993); State v. Ingenito, 87 N.J. 204, 432

A.2d 912 (1981); In re Susi et al., 38 Ohio App.2d 73, 313

N.E.2d 422 (1973); State v. Johnson, 594 A.2d 1288 (N.H.

1991); State v. Stiefel, 256 So. 581 (Fla. 1972).

The Court of Appeal found that use of collateral

estoppel by the prosecution would deny the Respondent

his right to a fair and impartial jury trial. The Respondent

finds that Court’s decision could be supported on

grounds other than those stated in their opinion. If the

Petitioner were allowed to include in the present trial,

findings of fact stemming from his first trial for

attempted murder, then his first trial would in effect have

been transformed ipso facto into a trial for murder. Such

a procedure would violate the Sixth Amendment guaran-

tee given to an accused “to be informed of the nature and

cause of the accusation”.

The idea of having two different juries, each deciding

a different portion of the elements of the crime charged,

would be, in effect, a bifurcation of the trial. Although

bifurcated trials are employed in various cases such as

prior convictions, penalty phase of a murder trial, or, in

some instances, having two juries in multi-defendant

cases, the bifurcation is always with the consent of the

defendant. Of more importance is that the first portion of

this bifurcated trial, which the Petitioner has proposed,

would take place without the Respondent having been

arraigned on the charge of murder. At the Respondent’s

trial for attempted murder, he was not informed that the

evidence to be presented would, at some later date, be

incorporated in a trial for murder. Notice of the specific

charge against a defendant is a fundamental Constitu-

tional right. Justice Black, delivering the opinion of the

Court in Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct.

514, 92 L.Ed. 644 (1948), wrote:

“No principle of procedural due process is more

clearly established than that notice of the speci-

fic charge, and a chance to be heard in a trial of

the issues raised by that charge, if desired, are

among the constitutional rights of every accused

in a criminal proceeding in all courts, state or

federal. . . . It is as much a violation of due

process to send an accused to prison following

conviction of a charge on which he was never

tried as it would be to convict him upon a

charge that was never made”. (333 U.S. 201, 68

S.Ct. 517)

9

CONCLUSION

The decision of the State Court of Appeal was cor-

rect. A grant of certiorari would not serve any useful

purpose, and therefore should be denied.

Respectfully submitted,

H. Russet HALPERN

Attorney for the Respondent