PEOPLE v. FLETCHER

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Brian Ray FLETCHER et al., Defendants and Appellants.

Nos. D018243, D018244.

Decided: November 30, 1994

George L. Schraer, under appointment by the Court of Appeal, San Diego, and Eric S. Multhaup, San Francisco, for appellants. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Esteban Hernandez and Warren P. Robinson, Deputy Attys. Gen., for plaintiff and respondent.

Appellants Brian Ray Fletcher and Terrance Kent Moord were convicted of first degree murder, attempted second degree robbery and other joined offenses.   As to the murder and attempted robbery convictions, the jury found firearm use and armed allegations true.   As to Fletcher, a felony murder special circumstance allegation was found true.   No special circumstance allegation was made as to Moord.   Fletcher was sentenced to a term of life without the possibility of parole made consecutive with a determinate term imposed as to the joined offenses and allegations.   Moord was sentenced to a term of 25 years to life made consecutive with a determinate term based on the joined offenses and allegations.

FACTS

A. Prosecution Case 1

1. Crime

In the early morning hours of June 20, 1991, a taxi driven by Lorenzo Garcia stalled on the ramp from Market Street to southbound Interstate 15 in the City of San Diego.   Unable to restart the vehicle, Garcia parked the taxi on the ramp, off the roadway, about 12 inches from the guardrail with the vehicle's wheels pointing straight.   Garcia placed the car's automatic transmission in park, locked the vehicle and walked home to call for help.   When Garcia departed, the taxi's radio antenna was in place on the cab.

In the moments before 2:45 a.m. on June 20, 1991, Maria Estrada drove her car onto the ramp where earlier in the morning Garcia left his cab.   In the car with Maria were her sons, nine-year-old Jesus and seven-year-old Ruben, her daughter, four-year-old Cynthia, her brother, fourteen-year-old Antonio Huizar, and her mother Teresa Huizar.   Garcia's taxi was no longer parked close to the guardrail but was now angled into the roadway.   Believing there had been an accident, Maria stopped behind the cab.

There were two men at the scene.   Maria asked the men if there was a problem.   The men approached and one of them asked Maria if she had jumper cables.   Maria stated she did not.   At first the man was polite, but his tone became harsh and he repeated his request.   As Maria began to drive forward, one of the men tried to open her door.   As the car moved, one of the men fired a shot which entered Maria's left cheek and exited behind her right ear.

As the shot was fired, Ruben and Teresa heard one of the men state “Oh, no.”   Jesus and Antonio heard the same words but believed they were uttered before the shot was fired.   Teresa testified the words were spoken as an exclamation.

The two men went down the ramp toward Market Street.   Though mortally wounded, Maria was able to drive around the cab and onto the freeway.   Jesus jumped from the back seat, took his mother's foot from the accelerator and brought the car to a stop.

At about 2:50 that same morning, taxi driver Philip Gonder noticed Garcia's cab parked on the ramp.   Concerned the driver might need assistance, he stopped to investigate.   Gonder found the cab unlocked.   Unable to locate the driver, he departed.

2. Flight

Shirley Forest lived in an apartment located very near the on-ramp where Maria was shot.   At about 2:45 a.m. on the morning of the shooting, Forest was awakened by Fletcher, a friend of her nephew, banging on her door and then on her window.   Forest admitted Fletcher and a companion, Moord, to the apartment.   Fletcher asked if he could spend the night and offered Forest money if she would allow him to do so.   Forest refused but called a cab to pick up the men.   Fletcher was acting in a strange manner.

As Fletcher arose from a sofa to put on his jacket, a revolver fell to the floor and he picked it up.   When Fletcher and Moord departed for the cab, Fletcher was carrying a bag containing a pair of shoes.   The next day Forest found a 9mm bullet in the sofa where Moord had been sitting and about two weeks later she found a set of keys in the same sofa.   Forest turned the bullet over to the police but threw the keys away.

In March or April 1992, Fletcher called Forest and told her when she went to court she should testify it was not him and Moord who came to her apartment the night of the shooting but other persons.   Fletcher told her to say she had lied when she implicated him because he owed her money and she was mad at him.

Taxi driver Joey King picked up two men at Forest's apartment at approximately 3:12 on the morning of Maria's shooting.   King later identified one of the men as Fletcher.   During the ride Fletcher rolled his head back and forth on the seat and mumbled words King could not make out.   King drove the men to the corner of Trojan and Orange in East San Diego.   Fletcher's companion got out of the cab and departed.   Fletcher walked away, telling King he would return with money for the fare.   King departed without getting his money.   As King turned the corner, he heard two gunshots.

In the early morning hours of June 20, 1991, Fletcher and Moord arrived at the Winona Street apartment of Fletcher's former girlfriend Tambushia Hewitt.   Fletcher got into bed with Hewitt.   He told her something had happened and he hoped no one was dead.   Fletcher gave Hewitt a duffel bag containing a pair of shoes.   She later gave the shoes to the police.

3. Investigation and Additional Evidence

When the police inspected Garcia's taxi, it was missing its radio antenna.   A radio antenna was found on the ramp approximately 30 feet in front of the cab.

A California Highway Patrol vehicle theft investigator testified a radio antenna like that found at the crime scene could be used to open a locked car and that a vehicle's engine can be started without a key.

Four shoeprints were found at the crime scene.   A criminalist compared the prints with the sole pattern of the shoes Moord was wearing when arrested and the shoes Fletcher left with Hewitt the morning of the crime.   One print was consistent with Moord's shoes in terms of size and sole pattern.   Two prints were consistent in terms of size, design and pattern wear with the shoes left by Fletcher with Hewitt.

While in custody awaiting trial, Fletcher told fellow inmate Roland Kramer he shot a woman on a freeway ramp as she tried to drive away.   Fletcher explained he and a friend planned to rob persons.   They stood by a cab and asked passing motorists if they had jumper cables.   Fletcher told Kramer:  “I shot the bitch, and bitch done went and died and now they're gonna try to stick me with murder.”   Fletcher stated after the shooting he went to the home of an ex-girlfriend where he dropped the gun out of his jacket and she saw it.   Kramer, a state prison inmate at the time of his testimony, stated he sought no consideration for his testimony and did not expect any.

4. Other Crimes

In the early morning hours of June 23, 1991, Rumaldo Alcarez was sitting in a car in an alley.   Using the ruse he wished to sell Alcarez a stereo he had in a bag, Moord instead drew a gun from the bag, ordered Alcarez out of the car and then drove off in the vehicle.   Three days later Moord was seen driving Alcarez's car and after a chase was arrested.

B. Appellant Moord's Defense

A criminalist testified there was an inconsistency in the shoe size between that of the boots Moord was wearing at the time of his arrest and the shoe print from the crime scene which the prosecution's expert concluded was similar to Moord's boots in terms of sole pattern and size.   The defense expert, however, could not conclusively rule out Moord's boot as the one which made the bootprint at the crime scene.

C. Appellant Fletcher's Defense

Gregory Adams, a car agency service manager, concluded Garcia's taxi could not be moved without a key after its transmission was placed in park.

David Brangman, an inmate in county jail with Fletcher and Kramer, overheard Kramer tell another inmate he should do what Kramer had done.   Kramer explained he had taken Fletcher's paperwork, found details about his case and contacted the district attorney to arrange an exchange of testimony for favorable treatment.

Timothy Moore also was an inmate with Kramer in the county jail.   Kramer told Moore he did not like Fletcher and that he knew a lot about Fletcher since he had gone through his paperwork.

Frederick Small, a deputy public defender, testified he represented Fletcher at the preliminary hearing in the present case.   Small stated he provided Fletcher a copy of the preliminary hearing transcript sometime after the date of Fletcher's arraignment on October 2, 1991.

D. Prosecution Rebuttal

A second prosecution criminalist testified any apparent inconsistency between the size of the bootprint found at the crime scene and that of Moord's boot could be accounted for by shifting of body weight when the print was made or by factors related to the photograph and not the print.

DISCUSSION

A. Aranda–Bruton Error

Moord argues the trial court committed Aranda/Bruton error when it admitted extrajudicial statements by Fletcher, implicating Moord in the murder of Maria.

1. Background

a. First Trial

Before the start of the first trial, Moord moved for severance on the basis the People intended to offer a confession by Fletcher which implicated Moord in the crime.   Moord argued such statement inadmissible against him under the decisions in People v. Aranda (1965) 63 Cal.2d 518, 528–530, 47 Cal.Rptr. 353, 407 P.2d 265 (Aranda ), and Bruton v. United States (1968) 391 U.S. 123, 126–137, 88 S.Ct. 1620, 1622–29, 20 L.Ed.2d 476 (Bruton ).

During argument on the motion, the prosecutor noted Fletcher did not mention Moord by name in his confession to Kramer but did indicate a second person was involved in the crime.   The prosecutor argued the use of such a statement did not require severance since the statement did not refer to Moord as the other person.   Defense counsel disagreed, arguing that given other evidence in the case the jury would conclude Fletcher was referring to Moord as the other individual.   The trial court denied the severance motion but indicated it would leave a final decision on how Fletcher's statement would be used until later in the trial.

Immediately before Kramer's testimony, counsel asked the statement be redacted and the jury be admonished Fletcher's statement was not being offered against Moord.   The prosecutor argued there was no need for redaction since the statement did not specifically refer to Moord as the person who was with Fletcher at the time of the crime.   Counsel replied redaction was not a meaningful remedy since, given the other evidence in the case, the jury was bound to assume Fletcher was referring to Moord as the other person involved in the shooting.   The court ordered that Kramer refer to the other individual only by pronoun or as “another person.”

After the court admonished the jury that any statements by Fletcher could not be used in any way against Moord, Kramer testified.   Kramer testified Fletcher told him “they were using the ruse of needing a jump ․ to get people to stop.”   Fletcher stated he had shot a woman who stopped her car.

b. Second Trial

Before the start of the second trial, Moord again sought severance based on his Aranda argument.   The trial court incorporated the arguments made at the first trial and denied the motion.

Counsel renewed the motion immediately before Kramer's testimony.   The trial court denied the motion.   Kramer testified “[Fletcher] told me that he and a friend were on a freeway ramp and had a cab or a vehicle—like there was a cab or something there, and they were using jumper cables or some kind of ruse to get people to stop;  and this woman had slowed down and stopped, and what transpired there I'm not clear, but as she drove away he shot at her;  and he told me, ‘I shot the bitch, and the bitch done went and died and now they're gonna try to stick me with murder.’ ”

Kramer testified “they” were using the ruse to get people to stop so “they could rob them, take their money.”

The jury was twice instructed Kramer's testimony was admissible against Fletcher but not against Moord.

2. Discussion

“The essential holding of Bruton ․ is that a defendant is deprived of his Sixth Amendment right to confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the defendant who made it.  [Citation.]  This interpretation of the Sixth Amendment corresponds to the holding in People v. Aranda ․ and to the extent that Aranda corresponds with Bruton, it was not abrogated by Proposition 8 as embodied in section 28, subdivision (d) of article I of the California Constitution.  [Citation.]”  (People v. Orozco (1993) 20 Cal.App.4th 1554, 1564, 25 Cal.Rptr.2d 659.)

Given the decisions in Aranda, Bruton and Richardson v. Marsh 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (Richardson ), we must determine if the trial court erred in allowing a jury trying Moord to hear Fletcher's confession implicating a partner in the crime, a partner that other evidence strongly indicated was Moord.

In this case Fletcher's confession to Kramer did not “facially incriminate” Moord, that is, Fletcher did not mention Moord by name.   Fletcher's confession, however, did use a plural pronoun that indicated he did not act alone in attempting to rob Maria.   Witnesses testified two men were on the on-ramp at the time of the crime.   Fletcher and Moord appeared moments after the crime at the apartment of Forest.   A reasonable conclusion based on those facts would be that Moord was with Fletcher on the freeway ramp and he was the person to whom the pronoun in Fletcher's confession referred.

The crucial case in this inquiry is Richardson.   In Richardson a victim testified that Marsh, Williams and Martin were involved in a robbery at her home that resulted in the murder of three members of her family, including Ollie Scott.   The testimony left little doubt Marsh was involved in the crimes.   Marsh and Williams were jointly tried.  (Martin had not been apprehended.)  (Richardson, supra, 481 U.S. at p. 202, 107 S.Ct. at p. 1704–05.)

The prosecution offered against Williams a confession he made at the time of his arrest.   The confession was redacted to omit any reference to Marsh and indeed omitted any indication anyone other than Williams and Martin participated in the crime.   With the exception of omitting any reference to Marsh, the confession corroborated the account of the crime given by the victim.   Williams also stated a conversation occurred in the car on the way to the crime scene in which Martin stated they would have to kill the victims after the robbery.  (Richardson, supra, 481 U.S. at p. 204, 107 S.Ct. at p. 1705–06.)

The jury was admonished not to use the confession in any way against Marsh.   Williams did not testify.  (Richardson, supra, 481 U.S. at p. 204, 107 S.Ct. at p. 1705–06.)

During the defense case Marsh testified.   She stated on the day of the robbery she owed Martin money and he suggested she borrow it from Scott.   Marsh, Williams and Martin drove to the crime scene.   Marsh, sitting in the back seat, knew Williams and Martin were talking but could not make out what they said.   When Marsh asked one of the victims for a loan, Williams pulled a gun.   Marsh stated she was not involved in the robbery and too frightened to flee.  (Richardson, supra, 481 U.S. at p. 204, 107 S.Ct. at p. 1705–06.)

In deciding whether it was Bruton error to introduce Williams's confession in a joint trial, the Supreme Court noted as a general matter an instruction limiting the use to which evidence could be put was considered sufficient to protect the rights of a defendant.   The court gave, among other examples, the instruction to a jury that it could use a defendant's statement taken in violation of Miranda to impeach him but not as evidence of guilt.   (Richardson, supra, 481 U.S. at pp. 206–207, 107 S.Ct. at pp. 1706–07.)

The court stated, however:  “In Bruton, ․ we recognized a narrow exception to this principle:  We held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.”   (Richardson, supra, 481 U.S. at p. 207, 107 S.Ct. at p. 1707.)

The court explained there are some situations in which the risk of the jury being misled is so great and the consequences of failure so severe that a limiting instruction is insufficient to protect the interests involved.  (Richardson, supra, 481 U.S. at p. 207, 107 S.Ct. at p. 1707.)

The court stated the Richardson case fell outside the “narrow” Bruton exception since in Bruton, unlike Richardson, the confession “expressly implicate[ed]” the defendant as his accomplice.   The court stated under such circumstances there was “not the slightest doubt” that the confession would prove powerfully incriminating.   The court noted by contrast the confession in Richardson only became incriminating in light of other evidence in the case.  (Richardson, supra, 481 U.S. at p. 208, 107 S.Ct. at p. 1707–08.)

The court stated that when such an evidentiary “linkage” is required, the generalization is less valid that the jury will be unable to follow the limiting instruction.   The court stated:  “Specific testimony that ‘the defendant helped me commit the crime’ is more vivid than inferential incrimination, and hence more difficult to thrust out of mind.   Moreover, with regard to such an explicit statement the only issue is, plain and simple, whether the jury can possibly be expected to forget it in assessing the defendant's guilt;  whereas with regard to inferential incrimination, the judge's instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so there is no incrimination to forget.”  (Richardson, supra, 481 U.S. at p. 208, 107 S.Ct. at p. 1708.)

The court concluded by noting that while it might not always be easy for the jury to obey the limiting instruction, there does not exist the overwhelming probability of its inability to do so “that is the foundation of Bruton's exception.”  (Richardson, supra, 481 U.S. at p. 208, 107 S.Ct. at p. 1708.)

 The court noted the practical effect of applying Bruton to situations where evidentiary linkage was required was also an important consideration.   When Bruton is applied to facially incriminating confessions, it is possible to deal with the problem by redaction.   However, when the rule is extended to confessions that are incriminating only with connection to other evidence, redaction is not only impossible, it may not even be possible before trial to determine if a Bruton problem will arise from the confession of a codefendant.  (Richardson, supra, 481 U.S. at pp. 208–209, 107 S.Ct. at pp. 1707–08.)

The court rejected the solution of separate trials whenever a nontestifying codefendant's confession is to be admitted.   The court noted joint trials serve a vital role in our system of justice.   They advance not only efficiency but provide for a more even handed and consistent system.   (Richardson, supra, 481 U.S. at p. 210, 107 S.Ct. at p. 1708–09.)

The court concluded:  “The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonably practical accommodation of the interests of the state and the defendant in the criminal justice process.”  (Richardson, supra, 481 U.S. at p. 211, 107 S.Ct. at p. 1709.)

The court refused to extend Bruton to situations where the confession is redacted to eliminate not only the defendant's name but any reference to his or her existence.   The court, however, specifically expressed no opinion on the admissibility of a confession in which the defendant's name was replaced with a symbol or neutral pronoun.  (Richardson, supra, 481 U.S. at p. 212, 107 S.Ct. at p. 1709–10.)

The resolution of the neutral pronoun issue is crucial to the present case.   Fletcher did not specifically refer to Moord by name but did implicate a second individual in the shooting of Maria and did attribute to him the intent to rob.

Since the decision in Richardson, courts have split on whether the substitution of a neutral pronoun for the name of the codefendant is sufficient in light of a limiting admonition to protect the codefendant.   Some federal courts have concluded the Richardson analysis applicable to the substitution of a pronoun for a name and conclude in those circumstances the admonition provides sufficient protection.  (See e.g. U.S. v. Gio (7th Cir.1993) 7 F.3d 1279, 1286–1287;  U.S. v. Vogt (4th Cir.1990) 910 F.2d 1184, 1191, 1192;  U.S. v. Williams (2d Cir.1991) 936 F.2d 698, 700–701.)

Other courts have held a pronoun substitution may or may not provide sufficient protection depending on the evidentiary linkage between the confession and other evidence in the case pointing to the nonconfessing codefendant as subject of the pronoun.  (See e.g., U.S. v. Van Hemelryck (11th Cir.1991) 945 F.2d 1493, 1501–1503;  People v. Orozco, supra, 20 Cal.App.4th at pp. 1563–1566, 25 Cal.Rptr.2d 659.)

Although its discussion of the issue is arguably dicta, our Supreme Court in People v. Mitcham (1992) 1 Cal.4th 1027, 5 Cal.Rptr.2d 230, 824 P.2d 1277, stated:  “The process of redaction in Aranda, whereby a confession is edited so that all statements that identify or implicate the nondeclarant are deleted and replaced with neutral language, has been followed by California courts.   [Citation.]  Thus, if references, either direct or indirect, to the nondeclarant defendant are deleted, the extrajudicial statement may be admitted against the declarant.  [Citation.]  Redaction is ineffective where, for example, the confession includes a reference to ‘the other guy’ which, in context of other evidence, implicates the nondeclarant defendant.   [Citation.]”  (Id. at pp. 1045–1046, 5 Cal.Rptr.2d 230, 824 P.2d 1277;  see also this court's opinion in People v. Vasquez Diaz (1991) 229 Cal.App.3d 1310, 1313–1316, 280 Cal.Rptr. 599.)

 While we believe a strong argument can be made in support of the position that substitution by pronoun and a limiting admonition are sufficient protection for the nondeclarant codefendant, it appears the law in California is that an inquiry must be made on a case-by-case basis to determine if such redaction and instructions are sufficiently protective in a given case.  (See People v. Mitcham, supra, 1 Cal.4th at pp. 1045–1046, 5 Cal.Rptr.2d 230, 824 P.2d 1277;  see also this court's opinion in People v. Vasquez Diaz, supra, 229 Cal.App.3d at pp. 1313–1316, 280 Cal.Rptr. 599.)

 In the present case Fletcher's confession, and other evidence, made clear two men were involved in the crime.   Fletcher's confession also indicated it was the intent of both men to commit a robbery.   Only minutes after the crime Fletcher and Moord appeared together at Forest's apartment.   It would take little skill in deductive reasoning to conclude the unnamed individual mentioned by Fletcher was Moord.   The confession was important since not only did it place Fletcher at the scene, it provided the clearest statement of his and his accomplice's intent in committing the crime.   The evidentiary linkage is strong and we conclude the trial court committed Aranda/Bruton error in allowing Kramer's statement to be admitted at Moord's trial.2

 Bruton error amounts to a denial of a defendant's federal constitutional right of confrontation.   Such error can only be found harmless if this court concludes beyond a reasonable doubt that no more favorable result would have occurred in Moord's case absent the error.  (Chapman v. California (1967) 386 U.S. 18, 23–24, 87 S.Ct. 824, 827–28, 17 L.Ed.2d 705.)   We conclude the error prejudicial and reverse Moord's convictions for first degree murder and for attempted robbery.

There is little doubt Fletcher and Moord were the two men who approached Maria's car on the on-ramp.   The form of the People's case was that Fletcher was the shooter and Moord was an aider and abettor.   While the intent of the shooter to commit a robbery might be apparent from the circumstances of the crime alone, we think the state of mind of any alleged aider and abettor more problematic.   There is no evidence concerning Fletcher and Moord's relationship before the crime that illuminates Moord's state of mind at the time of the crime.   While there was intent evidence based on Moord's subsequent robbery of Alcarez, such evidence was far from conclusive.

The evidence simply does not exclude the possibility Moord had no criminal intent at the time Maria was killed.   Nor does it exclude the possibility that even if Moord intended to aid and abet Fletcher in some criminal activity, an attempted robbery was not a natural and probable consequence of the crime in which Moord intended to participate.

Fletcher's statements to Kramer suggested very strongly that it was the intent of both Fletcher and Moord to commit a robbery.   We cannot say beyond a reasonable doubt the Bruton error was harmless.

B. Collateral Estoppel

Fletcher argues the trial court erred in instructing the jury it was to accept as true, based on a prior adjudication, that Fletcher possessed a firearm in Forest's apartment on June 20, 1991.

Fletcher contends the doctrine of res judicata does not support the giving of the instruction since the judgment on which it was based was not final, and the prior judgment did not resolve the factual issue for which it was offered at the second trial.

1. Background

In the first trial Fletcher was found guilty of the possession of a firearm by one previously convicted of a felony.   The charged date of the offense was on or about June 20, 1991, the date of the murder of Maria.   Because the jury was unable to reach verdicts on the murder and robbery charges, a second trial occurred.

Before the second trial the People asked the court to take judicial notice of Fletcher's conviction for firearm possession in the first trial.   Citing People v. Ford (1966) 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132 (Ford ), the prosecutor argued the fact of Fletcher's possession of a firearm at Forest's apartment after the shooting was res judicata since it was determined to be true by the jury at the first trial.

The defense objected, arguing that permitting Forest to testify and also telling the jury it was required to accept her claim Fletcher was in possession of a firearm at her apartment the night of the shooting was unfair since it “bootstrapped” her credibility.

The trial court took the matter under submission and counsel for Fletcher filed points and authorities in opposition to the People's motion.   Counsel argued the present case was distinguishable from Ford.   In Ford a defendant was convicted in a first trial of several felonies and of felony murder based on a killing during the commission of those felonies.   On appeal the felony convictions were affirmed but the felony murder conviction was reversed.   On retrial the court instructed that the defendant had previously been convicted of stated felonies and the only questions for the jury were whether the murder occurred during the commission of the felonies and whether the defendant possessed the intent required for the felonies at the time of the homicide.

Fletcher noted in Ford res judicata affect was given to prior convictions for felonies that were charged as elements of the offense at issue at the second trial.   Counsel attempted to distinguish Ford by noting that in the present case the prior conviction was not an element of the murder and robbery charges being tried.

At an instructions conference the parties reiterated the arguments previously made on the res judicata issue.   The trial court voiced the concern that it was unclear whether Fletcher's conviction for possession of a firearm the day of the shooting was based on his possession at the time of the shooting or later at Forest's apartment.   The court asked the prosecutor to prepare the specific instruction he sought on the issue.

Later the trial court amplified its comments by noting its concern was that the prior conviction did not determine Fletcher was in possession of a firearm at the time of Maria's killing, it merely determined he possessed a firearm at Forest's apartment after the shooting.   If properly limited, the trial court believed it appropriate to instruct the jury concerning the res judicata effect of the prior conviction.

Defense counsel reiterated his position that such instruction was improper since it unfairly enhanced Forest's credibility.

The trial court instructed “You have received evidence that the defendant FLETCHER was in possession of a handgun at Shirley Forest's apartment on June 20, 1991.

“You have also received evidence that the defendant MOORD robbed Rumaldo Alcar [e]z, using a firearm, on June 23, 1991, and took his car.

“I am taking judicial notice of the fact that those matters have been adjudicated on a prior occasion and you are to accept those matters as fact.”

2. Discussion

On appeal Fletcher makes two arguments he did not specifically raise below:  first, he argues res judicata effect should not have been given the conviction for firearm possession since the judgment was not final;  second, he argues the conviction in the first trial established only that he was in possession of a firearm on June 20, 1991, and did not establish he had the weapon at Forest's apartment.

“Collateral estoppel bars relitigation of an issue decided at a previous trial if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated;  (2) the previous trial resulted in a final judgment on the merits;  (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial.   [Citation.]”  (People v. Hogue (1991) 228 Cal.App.3d 1500, 1504, 279 Cal.Rptr. 647 (Hogue ).)

 The doctrine can be asserted by the prosecution in a criminal case.  (Ford, supra, 65 Cal.2d at pp. 50–51, 52 Cal.Rptr. 228, 416 P.2d 132.)   However, given the constitutional rights guaranteed criminal defendants, the prosecutorial use of collateral estoppel is subject to limitation.   In recent cases, courts have strictly applied the requirements of the doctrine to deny its use (see People v. Hogue, supra, 228 Cal.App.3d at pp. 1504–1506, 279 Cal.Rptr. 647) or have rejected it in a particular case on general public policy grounds.  (See Guiterrez v. Superior Court (1994) 24 Cal.App.4th 153, 157–170, 29 Cal.Rptr.2d 376).

The People make only the most cursory reply to Fletcher's substantive arguments, arguing that the contentions now raised on appeal were waived since not first made below, and that, in any case, any error in requiring the jury accept that Fletcher possessed a gun at Forest's apartment the night of the shooting was harmless.

 We reject the People's claim the res judicata arguments now raised were waived.   While true that “[a]bsent a timely and specific objection on the ground defendant now asserts on appeal, his contention is deemed waived” (People v. Mitcham, supra, 1 Cal.4th at p. 1044, 5 Cal.Rptr.2d 230, 824 P.2d 1277), the rule exists primarily to encourage prompt objections and early resolution of disputed issues.  (People v. Saunders (1993) 5 Cal.4th 580, 589–590, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)

In this case Fletcher did object in general to the utilization of his prior conviction to foreclose consideration of a factual issue.   While Fletcher did not specifically assert the issues of finality or identity of litigated facts, Fletcher's general objection evoked from the trial court a specific consideration of the identity of fact issue.   We conclude that issue adequately preserved for review.

Fletcher argues the jury at the first trial, in finding appellant in possession of a firearm “on or about June 20, 1991,” did not necessarily resolve whether Fletcher was in possession of a firearm at Forest's apartment.

In civil cases the nature of the pleadings and the findings required of juries make it relatively easy to determine what issues were raised and resolved.   The task is more difficult in criminal cases where pleadings may be less precise and where verdicts are most often general.  (See 1 Witkin, Cal.Criminal Law (2d ed. 1988) § 352, pp. 406–407.)

 When collateral estoppel is invoked as a defense, courts examine all relevant portions of the record of the first trial to determine “whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”  (Ashe v. Swenson (1970) 397 U.S. 436, 444–445, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469;  People v. Belcher (1974) 11 Cal.3d 91, 96, fn. 3, 113 Cal.Rptr. 1, 520 P.2d 385).   We see no reason why the same approach should not apply to the prosecution's use of a prior jury determination and it is the approach adopted by Fletcher in making his argument there was no identity of issues.

Fletcher first noted the information charged the offense as occurring on or about June 20, 1991, and did not specify possession at Forest's apartment.

Fletcher next observes the instructions given the jury at the first trial allowed for conviction based either on actual or constructive possession and indicated that two or more persons could share possession at any given time.

Fletcher also notes that during argument in the first trial the prosecutor told the jury that the felon in possession of a firearm charge “refers to the possession of the firearm at the time that Brian Fletcher shot Mrs. Estrada.”

 Fletcher argues it is possible the jury convicted him of possession of the firearm simply because it was clear either he or Moord was in possession of a firearm at the time Maria was shot.   Given the nature of the pleadings, instructions, argument and evidence, we conclude a rational jury might have returned a verdict that Fletcher was in possession of a firearm on June 20, 1991, without necessarily determining he was in possession of the weapon at Forest's apartment.

That being the case it was error for the trial court to instruct the jury at the second trial that it was to accept as true that on June 20, 1991, Fletcher was in possession of a firearm at Forest's apartment.

 The error in this case foreclosed jury consideration of a fact relevant to the issue of guilt and was a denial of due process.   In some cases erroneous use by the prosecution of collateral estoppel to preclude consideration of factual issues relevant to guilt so aborts the basic trial process that fundamental unfairness exists and reversal is required without a harmless error analysis.  (People v. Hogue, supra, 228 Cal.App.3d at pp. 1506–1507, 279 Cal.Rptr. 647.)

In Hogue, at a first trial, the defendant was found guilty of several counts involving acts against a single child victim, all of which occurred over a relatively short period of time.   On appeal all but one of the counts was affirmed.   The case was returned for retrial on one count because of an instructional error related to the required age differential between the child and the perpetrator.  (228 Cal.App.3d at p. 1503, 279 Cal.Rptr. 647.)   At the retrial, invoking the concept of collateral estoppel, the trial court foreclosed litigation of any issues concerning identity or alibi, finding those issues had been resolved against the defendant at the first trial.  (228 Cal.App.3d at pp. 1503–1504, 279 Cal.Rptr. 647.)

The Court of Appeal in Hogue reversed, holding the issue of identity as to the count to be retried had not been resolved at the first trial and thus the doctrine of collateral estoppel had been erroneously applied.  (228 Cal.App.3d at pp. 1504–1506, 279 Cal.Rptr. 647.)

 While the issue of Fletcher's possession of a firearm at Forest's apartment moments after the shooting of Maria was relevant to guilt, it was not in and of itself an element of the charged offenses and was merely circumstantially related to the ultimate issues in the case.   We conclude the error in foreclosing litigation at the second trial on the issue of Fletcher's possession of a firearm at Forest's apartment did not fundamentally abort the trial process and thus is subject to the harmless error analysis defined in Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.   Since we find additional error, we reserve our prejudice analysis.

C. Moord's Subsequent Carjacking

Fletcher argues the trial court erred in admitting evidence of Moord's subsequent robbery of Alcarez.   The evidence was admitted to show a common plan or scheme and to prove the intent with which both Fletcher and Moord approached Maria the night of the shooting.

1. Background

In the early morning hours of June 23, 1991, Alcarez was sitting in a car in an alley.   Using the ruse he wished to sell Alcarez a stereo he had in a bag, Moord instead drew a gun from the bag, ordered Alcarez out of the car and then drove off in the vehicle.   At the first trial Moord was convicted of robbing Alcarez.

Before the start of the second trial the prosecutor stated he wished to offer evidence of the Alcarez robbery against both Fletcher and Moord to show their intent in confronting Maria.   The prosecutor also argued evidence of Moord's possession of a handgun on June 23 was circumstantial evidence Moord and Fletcher were in possession of such a gun three days before at the time of Maria's shooting.

Over objection the trial court concluded the evidence was admissible against both defendants.   Alcarez testified concerning the taking of his vehicle.   The court instructed the jury it could not consider the evidence of the Alcarez robbery to prove that Moord was of bad character or had a disposition to commit crimes.   Rather, the evidence was admitted for the limited purpose of determining whether Moord had knowledge or possessed the means necessary for the commission of the crime, that the crime charged was part of a continuing plan or scheme or that it tended to show the intent with which the charged crime was committed.

The prosecutor argued the Alcarez robbery was evidence that both Fletcher and Moord intended to rob Maria.

2. Admissibility of the Robbery to Show Intent

 Evidence of uncharged misconduct is inadmissible to prove the criminal disposition of a defendant.   However, such evidence is admissible to prove some relevant fact such as identity, common plan or scheme or intent.   (Evid.Code, § 1101, subds. (a), (b).)

 Admission of evidence of uncharged misconduct is within the discretion of the trial court and is based on a weighing of the probative value of the evidence against its prejudicial effect.  “When reviewing the admission of the evidence of other offenses, a court must consider:  (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant.  [Citation.]  Because this type of evidence can be so damaging, ‘[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.’  [Citation.]”  (People v. Daniels (1991) 52 Cal.3d 815, 856, 277 Cal.Rptr. 122, 802 P.2d 906.)

In this case while the court instructed the jury on three possible proper uses for the evidence of the Alcarez robbery, the parties recognize the crucial use to which the prosecutor put the evidence was to prove both Fletcher and Moord's intent in confronting Maria.   On appeal the parties narrow the issue of admissibility to whether the Alcarez robbery had sufficient similarities with Maria's shooting such that it was probative on the issue of intent.

In People v. Ewoldt (1994) 7 Cal.4th 380, 394, 27 Cal.Rptr.2d 646, 867 P.2d 757 (Ewoldt ), our Supreme Court discussed the varying degrees of similarity required when uncharged misconduct is offered to show intent, common plan or scheme and identity.   In discussing the similarity necessary to admit such evidence on the issue of intent, the court stated:  “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.  [Citation.]  ‘[T]he recurrence of a similar result ․ tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal intent accompanying such an act․’  [Citation.]   In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.”  [Citations.]’  [Citation.]”   (Id. at p. 402, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

The opinions in Ewoldt and People v. Robbins (1988) 45 Cal.3d 867, 879, 248 Cal.Rptr. 172, 755 P.2d 355, reject the suggestion in earlier Supreme Court and Court of Appeal opinions (see People v. Thompson (1980) 27 Cal.3d 303, 319, fn. 23, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Guerrero (1976) 16 Cal.3d 719, 728–729, 129 Cal.Rptr. 166, 548 P.2d 366;  People v. Harvey (1984) 163 Cal.App.3d 90, 103–105, 208 Cal.Rptr. 910) that the degree of similarity between charged and uncharged acts offered on the issue of intent is the same as that required when an uncharged act is offered to show identity.   (People v. Delgado (1992) 10 Cal.App.4th 1837, 1843–1845, 13 Cal.Rptr.2d 703;  People v. Nible (1988) 200 Cal.App.3d 838, 848–850, 247 Cal.Rptr. 396.)

 When an uncharged offense is offered on the issue of intent, it is sufficiently similar to the charged offense if there are substantial similarities such that the uncharged act “sheds great light on the defendant's intent at the time he committed that offense” (People v. Nible, supra, 200 Cal.App.3d at p. 848, 247 Cal.Rptr. 396) and leads “to a logical inference of his intent at the time he committed the charged offense” (id. at pp. 848–849, 247 Cal.Rptr. 396;  see also People v. Delgado, supra, 10 Cal.App.4th at pp. 1844–1845, 13 Cal.Rptr.2d 703).

Requisite similarity is necessarily judged on a case by case basis.   (People v. Robbins (1988) 45 Cal.3d 867, 880, fn. 5, 248 Cal.Rptr. 172, 755 P.2d 355.)

 We conclude the trial court did not abuse its discretion in finding a sufficient similarity between the Alcarez robbery and Maria's shooting such that the evidence of the robbery was admissible on the issue of intent.   The crimes were committed within days of each other.   In both, Moord armed himself with a gun and approached the victims in the early morning while they were sitting in vehicles.   In both cases Moord used a ruse to conceal the purpose for his approach.   The fact the preliminary acts in Maria's robbery where precursors to a robbery allows the reasonable inference when those same preliminary acts were used by the same perpetrator in Maria's incident, they too were the precursors to a robbery.

3. Admissibility Against Fletcher

Having found evidence of the Alcarez robbery admissible against Moord, we must still determine if that evidence was admissible against Fletcher.

While Fletcher was not involved in the Alcarez robbery, the People argue it was nonetheless relevant in determining his intent in Maria's shooting.   They argue Moord and Fletcher were obviously acting together during Maria's incident and it is reasonable to believe they shared the same intent.   Since the Alcarez robbery evidenced Moord's intent to commit a robbery when he approached Maria, it was reasonable to conclude Fletcher also intended to commit a robbery.

The parties cite no authority directly on point.   Our research has revealed one case providing some insight into the problem.   In People v. Jackson (1967) 254 Cal.App.2d 655, 62 Cal.Rptr. 208 (Jackson ), Jackson and Lee were arrested as they left a gas company substation under circumstances suggesting an intent to commit theft.   Jackson was tried separately.   At Jackson's trial the court admitted strong evidence linking Lee but not Jackson to three prior substation thefts.  (Jackson, supra, 254 Cal.App.2d at pp. 656–657, 62 Cal.Rptr. 208.)

The evidence was offered on the issue of intent.   The theory of admission was that Lee and Jackson were accomplices in the charged attempted theft, the men had the same intent in committing the charged offense and, therefore, Lee's thefts at other substations were evidence of both men's intent during the charged offense.  (Jackson, supra, 254 Cal.App.2d at p. 657, 62 Cal.Rptr. 208.)

The court noted Lee was not a codefendant and did not testify at trial.   The court further noted the imputed intent presupposed Lee was guilty of the charged offense.   The court concluded it was fundamentally unfair to require Jackson defend Lee against the allegation that Lee committed the prior thefts and was committing a theft when apprehended with Jackson.   The court stated:  “We conclude that conviction of a felony cannot rest upon the tenuous evidence of other crimes of a third person, not because an essential element of the crime charged is inferred from circumstantial evidence derived from a third person's commission of other crimes, though subtle proof indeed, but because evidence of crimes committed by a third person who is not on trial saddles a defendant with the burden of proving the innocence of another.”  (Jackson, supra, 254 Cal.App.2d at p. 660, 62 Cal.Rptr. 208.)

 Jackson, at least indirectly, questions the relevance of the prior acts of a confederate in proving the intent of a defendant.   Our questioning of the concept is more direct.   Even when an actor's prior conduct is used to establish that actor's intent, we proceed with great caution.  (See Ewoldt, supra, 7 Cal.4th at p. 404, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   We conclude the connection between the prior acts and intent of one person and the present intent of a second person so tenuous as to lack meaning.   Thus the trial court erred in allowing the jury to consider Moord's prior robbery in judging Fletcher's intent at the time of Maria's shooting.3

D. Prejudice

 We have concluded the trial court erred in holding that the jury was to accept as true that Fletcher was in possession of a firearm at Forest's apartment the night of Maria's shooting and that it could use Moord's subsequent robbery as evidence of his intent during Maria's shooting.   We find these errors prejudicial.

As we have noted, there is little question Fletcher and Moord were the men on the on-ramp.   What is less clear is their intent.   That the shooter intended a robbery seems reasonably clear.   The sequence and timing of events suggests strongly the gun was out or coming out before Maria began driving away.   Thus, the shooter intended to use the gun in the confrontation and logic would suggest the intent was to commit a robbery.   While one may draw conclusions about the intent of the nonshooter, those conclusions are far less compelling.

Who was the shooter?   It was the People's theory Fletcher was the shooter and Moord was an aider and abettor.   This theory was based on several facts.   First, Fletcher was in possession of a gun at Forest's apartment moments after the shooting, suggesting he was in possession of the gun at the shooting and was the shooter.   We have concluded Fletcher was denied due process when the trial court instructed the jury it was to accept that fact as true.   We are not prepared to conclude beyond a reasonable doubt the jury at the second trial would have concluded Fletcher in possession of a firearm at Forest's apartment if allowed to independently make that determination.

Next, the People argued Fletcher's possession of a gun and its consequent effect on the ultimate question of intent was shown by the fact he may have fired two shots at the cab that dropped he and Moord off in East San Diego.   The evidence concerning those shots, who fired them and why, however, is very unclear and says little about whether Fletcher possessed a gun.

Next, the fact that Fletcher was the shooter and intended a robbery was evidenced by his confession to jailhouse informant Kramer.   Kramer's testimony was not only inherently questionable, he was impeached by the testimony of other inmates.   While Kramer's testimony was not without weight, a jury might have sought corroboration before accepting it.   That corroboration might have been found in the fact Fletcher had a gun at Forest's apartment.   Thus, the error in requiring the jury accept as true Fletcher's possession of a gun at Forest's apartment potentially also affected the jury's consideration of Kramer's testimony.

Finally, the People argued Fletcher's intent was shown by Moord's subsequent robbery of Alcarez.   We have concluded such argument improper.

We are not convinced beyond a reasonable doubt that the error in instructing the jury it was required to find Fletcher in possession of a gun at Forest's apartment was harmless, especially in light of the court's error in allowing the People to attribute to Fletcher, on the issue of intent, Moord's robbery of Alcarez.   Fletcher's convictions for murder and attempted robbery are reversed.

DISPOSITION

Moord's convictions for robbery (count four), unlawful taking of a vehicle (count five) and felon in possession of a firearm (count eight) are affirmed.   His convictions for attempted robbery (count 2) and murder (count one) are reversed.   Based on Moord's request and the People's agreement, Moord's abstract of judgment is corrected to indicate an additional 11 days of custody credit.

Fletcher's conviction for felon in possession of a firearm (count seven) is affirmed.   His convictions for attempted robbery (count two) and murder (count one) are reversed.

FOOTNOTES

1.   The information charged both appellants with offenses related and unrelated to the murder and attempted robbery discussed in the following statement of facts.   In a first trial the jury was unable to reach a verdict as to the murder and attempted robbery charges but was able to reach verdicts as to other charges.   All issues in the present appeal arise from the second trial at which appellants were convicted of murder and attempted robbery.   Since no contentions are raised with regard to the offenses resolved in the first trial, no statement of facts is included as to those charges.

2.   The People argue that at the second trial Moord did not seek redaction of Fletcher's statement and cannot, therefore, raise the issue on appeal.   Moord sought redaction of the statement at the first trial.   When the Aranda issue was raised at the second trial, the court incorporated the arguments previously made.   There was no waiver.

3.   We note the jury at the second trial was instructed it was to accept as true, based on a prior adjudication, that Moord robbed Alcarez.   Given our resolution of the issue it is unnecessary we consider any error in requiring the jury accept as to Fletcher a prior factual determination made only as to Moord.

BENKE, Associate Justice.

KREMER, P.J., and TODD, J., concur.

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