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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Lee GRIFFIN, Defendant and Respondent.

No. E011496.

Decided: February 16, 1994

Dennis Kottmeier, Dist. Atty., and Joseph A. Burns, Deputy Dist. Atty., for plaintiff and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., and Joan Killeen, Deputy Atty. Gen., as amici curiae for plaintiff and appellant. Mark L. Christiansen, Granite Bay, under appointment by the Court of Appeal, for defendant and respondent.


The People appeal from an order dated April 24, 1992, by which the court, on its own motion, dismissed the action against Robert Lee Griffin (defendant) after the People announced that they were unable to proceed because an earlier court order prevented them from “showing the full extent of defendant's culpability” for the commission of the charged offense of first degree murder of Steven Ray Gibson.1  The People's conclusion that they were unable to proceed came after Judge Kayashima did not rule on the People's motion that he reconsider Judge Ziebarth's earlier order restricting the People's proffering certain evidence that defendant was the actual perpetrator of the murder, i.e., evidence that defendant stabbed or cut Gibson's throat.   A jury in an earlier trial had found untrue the sentence enhancement allegation that defendant had used a knife in the commission of the murder within the meaning of Penal Code section 12022, subdivision (b).2  Judge Ziebarth excluded such evidence pursuant to the principle of collateral estoppel.


In 1982, defendant was charged by information with the murder of Steven Ray Gibson (Gibson), and it was further alleged that in the commission of the murder defendant “used a deadly weapon, to wit, a cutting and stabbing instrument commonly called a shank, within the meaning of Penal Code section 12022b.” 3  The evidence presented at the first trial indicated that Gibson, an inmate of the California Institute for Men at Chino, died of multiple stab wounds to the back and windpipe, that the neck wounds were caused by a sharpened instrument, such as a knife, and that the back wounds were caused by a blunter instrument, such as a prison-made knife or shank, and that defendant, who was also an inmate, and another inmate, Junior Snyder (Snyder), used a knife and a blade fashioned from a light fixture to stab Gibson.   There also was evidence that defendant stabbed Gibson in the throat while Snyder stabbed him in the back several times.   Further, there was conflicting evidence that the murder was committed by two other inmates rather than by defendant and Snyder.

Defendant testified at the first trial that he was in the prison exercise yard at the time of the murder, but that he was not close to the location of the murder, and that he was not involved in the assault on the victim.

The majority of witnesses were fellow inmates of the victim and defendant, and there was evidence that the witnesses' gang affiliations had affected their testimony.   The jury was given an instruction on aiding and abetting under the 1979 versions of CALJIC Nos. 3.00 and 3.01.

The jury returned a verdict finding defendant guilty of first degree murder, and found, as to the use allegation, that it was not true that defendant used a deadly weapon, to wit, a knife, in the commission of the murder.   Defendant was sentenced to 25 years to life.

Defendant appealed, and his conviction was reversed, in an opinion in appeal No. E000068, for instructional error related to the aiding and abetting instructions.   We noted in the opinion that the fact that the jury found not true the allegation that defendant had personally used a knife made it inferable that the jury had, in fact, convicted defendant under the theory of aiding and abetting.

In an amended information filed in 1986, defendant was charged in count 1 with conspiracy to murder Gibson and in count 2 with the first degree murder of Gibson.   The information did not include a sentence enhancement allegation that defendant used a deadly weapon, to wit, a knife, in the commission of the murder (use of a knife).

In a second amended information filed in 1987, it was solely alleged that defendant murdered Gibson in the first degree, and in a third amended information filed shortly thereafter, it was solely alleged that defendant “did unlawfully aid and abet the killing” of Gibson, “with malice aforethought.”   No use of a knife allegation was made.

At the second trial, evidence that defendant had personally used a knife in the commission of the murder was introduced over defendant's objection.   The evidence showed that defendant and the victim were both inmates at the California Institution for Men at Chino, that both were members of the Aryan Brotherhood, that the victim had made derogatory comments about another prison gang, the Mexican Mafia, that members of the Brotherhood were approached by Mexican Mafia members about the victim's comments, that the Brotherhood agreed that the victim would be killed to appease the Mexican Mafia, and that defendant was involved in soliciting the agreement for the victim's murder.

The evidence also indicated that defendant was involved in the manufacture of two knives which were used to slit the victim's throat as well as to stab him in the back and that defendant was part of the organizing effort to set up the circumstances which allowed the killing to take place.   Those circumstances involved certain inmates distracting the victim and the guards, and defendant helping to transport the knives into the exercise yard where the killing took place.   There was also evidence that defendant and another man used the knives to commit the murder, that defendant cut the victim's throat, and that defendant admitted to other inmates afterward that he killed and/or stabbed the victim.

Defendant testified at this second trial that he was not a member of the Aryan Brotherhood, that he barely knew the victim, had no reason to wish him dead, and that he was nowhere near the victim when the stabbing occurred.

Defendant was again convicted of first degree murder.   He appealed, and we reversed the conviction because of the admission of prejudicial “other crime” evidence against him.   Because of this basis for reversal, this court did not resolve other assignments of error which defendant raised in his brief, including the contention that the prosecution should have been precluded from putting on evidence of defendant's personal use of a knife in the commission of the crime because of the first jury's “not true” finding on the use of a knife allegation.   However, in our opinion in appeal No. E004690, we cautioned the prosecutor that in attempting to prove that defendant aided and abetted the murder, as charged in the third amended information, it would be wise to prove it by evidence other than that defendant had personally stabbed the victim.4

In 1990, after defendant's second conviction for the murder of Gibson was reversed, defendant made a motion to prevent the prosecution from entering evidence at the third trial to show that he was “the stabber.”   The People opposed this motion and made its own motion to be allowed to introduce such evidence.

On August 31, 1990, the trial court (specifically, Judge Ziebarth) granted defendant's motion and impliedly denied the People's motion.   On October 10, 1990, Judge Ziebarth made the following written order excluding specific evidence related to defendant's stabbing of the victim:

“Inmate Ben Langwick

“Mr. Griffin reached around and cut his throat with the knife.

“I saw Griffin take the knife out of the sack and cut Gibson's throat.   He, Griffin, reached over with his right hand, I'm not sure what he did with [the] left, started right about here (indicating) and pulled it around.   Going underneath the left ear and pulled it all the way around give or take an inch or two.   Knife Griffin used to cut Gibson's throat was the street knife.

“Inmate Roger Wiersma

“I saw Griffin cut T–Bone's (victim Gibson) throat.   I believe Griffin put his left hand on Gibson's shoulder and reaching around and cutting his throat ear to ear.

“Inmate Robert Rice

“He stabbed the victim in the neck, severing his jugular vein.

“Inmate Sam McCart

“A day or two after the killing defendant told me the knife he used was in a lunch sack.   He told me he had cut Gibson's throat.

“Inmate Rick Rose

“Griffin told me he cut Gibson's throat.

“Inmate Clifford Smith

“․ and cut his throat.   The defendant said the knife he cut Gibson's throat with was a street knife.

“IT IS ALSO ORDERED that the Court will give the following special jury instruction:  There may be evidence presented that the defendant had a knife in the vicinity of the victim just before the killing;  however, as a matter of law you are instructed you must find he is not the stabber.”

After the filing of this order, the People, in November 1990, petitioned this court by an application for writs of mandate and prohibition to review this order excluding evidence of defendant's stabbing of the victim.   The petition was denied.

In March 1992,5 the People appeared before Judge Kayashima at the outset of trial and moved that he reconsider Judge Ziebarth's 1990 order excluding evidence that defendant personally used a knife to stab or cut the victim.   The People also stated that if the court were to stand by Judge Ziebarth's earlier ruling, the People would be prevented from showing defendant's guilt as a principal, and they would be unable to proceed to trial because they would have no case.

Judge Kayashima did not rule on the People's motion to reconsider and, based on the People's statement that they therefore could not proceed to trial, the lower court dismissed the matter on its own motion.   The People now appeal from the order of dismissal.


 The Fifth Amendment guarantees a defendant's right to be free of the risk of double jeopardy, i.e. the risk of being subjected to a second prosecution after being tried and acquitted of a given offense.  (Bullington v. Missouri (1981) 451 U.S. 430, 437, 101 S.Ct. 1852, 1857, 68 L.Ed.2d 270, 278.)   The scope of what may not be retried in a subsequent prosecution was defined in Ashe v. Swenson (1970) 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, when the United States Supreme Court held that the rule of collateral estoppel is embodied in this constitutional guarantee against double jeopardy (397 U.S. at p. 445, 90 S.Ct. at p. 1195, 25 L.Ed.2d at p. 476):

 “ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice.   It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”  (397 U.S. at p. 443, 90 S.Ct. at p. 1194, 25 L.Ed.2d at p. 475.)

Defendant here successfully contended below that the jury's “not true” finding on the allegation that in the commission of Gibson's murder he used a deadly weapon, to wit, a knife, not only precluded the People from relitigating the issue of whether he used a knife in the commission of the murder, but also precluded the People from putting on any evidence “that he was the stabber” in connection with relitigating the issue of whether he was guilty of Gibson's murder (presumably as a principal in the form of being the perpetrator).

The People contend that the trial court erred by excluding evidence that defendant personally stabbed the victim, based on the following reasoning:

(1) The factual issue presented by a weapon use sentence enhancement allegation attached to a felony charge has no meaning in the absence of a guilty verdict on the felony charge.   Therefore, to accord “binding” effect to a finding on a sentence enhancement allegation after the predicate guilty verdict on the felony charges has been reversed is illogical and highly inimical to the Legislature's scheme of criminal laws.

(2) A not true finding on a weapon use sentence enhancement allegation does not qualify as the final judgment needed for the application of the doctrine of collateral estoppel, and

(3) Defendant's successful appeal after his first trial nullified the murder conviction, removed double jeopardy considerations pertaining to his reprosecution for that offense, so that all facts in dispute regarding the murder charge are in issue de novo at a retrial, including whether defendant was a principal in the murder either as a perpetrator or as an aider and abettor.   The People, therefore, are free to use all the evidence they have relevant to those issues, including testimony that defendant perpetrated the murder by using a knife to cut and stab the victim.   The People argue that the first jury's not true finding on the use of a knife allegation established only that defendant would not receive a sentence enhancement if he were convicted of some form of homicide, but that is all it did.

There are a number of problems with these contentions.   The People's first contention ignores the fact that the present status of this case does not involve merely “a weapon use penalty enhancement allegation” and “the absence of a guilty verdict on the felony charge.”   Instead, this case in its present posture involves a jury's not true finding on the use of a knife allegation at the first trial and a guilty verdict at the second trial on the charged offense, which the People prosecuted against defendant on an aider and abettor theory but which verdict later was overturned on appeal.   The true meaning of this situation is that a jury has found that defendant did not personally use a knife in the commission of the murder, but that he was guilty of the murder, implicitly under an aider and abettor theory.

 The People's second contention that the not true finding on the use enhancement is not a final judgment for purposes of collateral estoppel is simply wrong.   For purposes of collateral estoppel, as an aspect of double jeopardy and due process, a decision is final if it is immune to direct attack (People v. Sims (1982) 32 Cal.3d 468, 486, 186 Cal.Rptr. 77, 651 P.2d 321), i.e., if it is immune as a practical matter to reversal or amendment.   (Miller Brewing Co. v. Jos. Schlitz Brewing Co. (7th Cir.1979) 605 F.2d 990, 996.)   As the People themselves admit, defendant here can no longer be subjected to retrial on the use of the knife enhancement allegation, and, as not admitted by the People, but as is patently the case, the not true finding on the use enhancement was and is immune to attack by the People on a direct appeal.  (§ 1238;  6 Witkin & Epstein, California Criminal Law (2d ed. 1989) §§ 3137, 3176.)   Thus, the not true finding on the use enhancement was a final decision for purposes of collateral estoppel.

The People's third contention that reversal of the guilty verdict on the charged offense at the first trial “nullified the murder conviction and all that went with it ” (emphasis added) is a simplistic and erroneous analysis of the effect of a defendant's successful appeal from a judgment of conviction.

As is well-illustrated in People v. Asbury (1985) 173 Cal.App.3d 362, 218 Cal.Rptr. 902, defendant has the right to retain the benefits received in a first trial despite a reversal on appeal and retrial.   In People v. Asbury, defendant was found guilty of first degree premeditated murder and robbery, but the jury rejected the special circumstance allegation that the murder had occurred in the course of the robbery.   Defendant's conviction was reversed on appeal, and, on retrial, the trial court refused to instruct the jury on premeditated murder on the ground that there was insufficient evidence to support such an instruction.   The case therefore went to the jury on a felony-murder theory, and defendant was convicted of first degree murder and robbery, thus necessarily indicating that the second jury had found, contrary to the express finding of the first jury, that the murder was committed during the course of the robbery.

Defendant appealed, and contended his felony-murder conviction was barred by the doctrine of collateral estoppel.   The reviewing court agreed, holding that the first jury's not true finding on the special circumstance allegation that the murder occurred in the commission of the robbery necessarily precluded retrying defendant on a felony-murder theory.   The reviewing court further held that upon defendant's second retrial, he could not be tried on charges of premeditated murder;  “In refusing to instruct the jury on premeditated murder on the grounds that there was insufficient evidence, the trial court impliedly acquitted defendant of that charge.   To force the defendant to stand trial again for premeditated murder would be to punish him for successfully exercising his right of appeal.   Any prosecution of the defendant for premeditated murder, therefore, is barred by double jeopardy.”   (173 Cal.App.3d at p. 366, 218 Cal.Rptr. 902.)

A defendant's right to the application of the collateral estoppel doctrine to a not true finding on a use of a deadly weapon enhancement allegation, despite reversal of his or her conviction on the charged offense to which the enhancement related, has been upheld by the First District, Division Five in People v. White (1986) 185 Cal.App.3d 822, 231 Cal.Rptr. 569, and by the Ninth Circuit Court of Appeals in Pettaway v. Plummer (9th Cir.1991) 943 F.2d 1041.6  Only the First District, Division Two, in a two to one decision, Justice Kline dissenting, has held to the contrary in People v. Pettaway (1988) 206 Cal.App.3d 1312, 254 Cal.Rptr. 436.7

The holdings of White and Pettaway that the issue determined by a not true finding on a deadly weapon use allegation may not be relitigated on retrial of the charged offense to which the allegation was attached were succinctly expressed in Pettaway v. Plummer:

“[W]e hold that it would violate double jeopardy principles if, on retrial of the second offense, the prosecution attempted to prove that [defendant] did personally use the [weapon].   We must, however, emphasize the limits of our holding.   What we hold is that when enhancement of the penalties for a substantive offense is presented to the trial jury for its determination beyond a reasonable doubt, and the jury expressly determines the enhancement issue adversely to the prosecution, the prosecution cannot seek to prove the contrary at a second trial of the substantive offense, where it is not clear that there was simply an inconsistent verdict in the first trial.   Of course, the prosecution could still seek to prove [defendant] guilty of first degree murder under an aiding and abetting theory, but, as we have pointed out, the prosecutor expressly eschews any intention to do so.   Thus, because this prosecution must be based upon personal use of a [weapon] or nothing, we are constrained to hold that it cannot proceed at all.”  (943 F.2d at p. 1048.)

In an amicus brief, the Attorney General contends that regardless of these holdings, “all relevant evidence is admissible on retrial of the count that resulted in conviction, just as it was admissible at the first trial,” and notes that “[i]n Dowling v. United States (1990) 493 U.S. 342 [110 S.Ct. 668, 107 L.Ed.2d 708], the High Court declined to extend the collateral estoppel component of the Double Jeopardy Clause to exclude in all circumstances ‘relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted.’  (Id., at p. 348 [110 S.Ct. at p. 672].)   Expanding upon that ruling in United States v. Felix (1992) 503 U.S. 378 [118 L.Ed.2d 25] 112 S.Ct. 1377, the High Court stated:  ‘Underlying our approval of the Henry evidence in Dowling is an endorsement of the basic, yet important, principle that the introduction of relevant evidence of particular misconduct in a case is not the same thing as prosecution for that conduct.’  (Id., [at ––––, 112 S.Ct.] at p. 1383 [footnote omitted].)”

The Attorney General's reliance on Dowling and Felix as controlling authority in this case is misplaced.   Both Dowling and Felix involved the use of “overlapping” evidence, i.e., evidence used at a first trial to establish defendant's commission of offense A, which same evidence was then used, after defendant was acquitted of offense A at the first trial, at a second trial to establish defendant's commission of offense B, a different offense.   The court in Felix pointed out that “a mere overlap in proof between two prosecutions does not establish a double jeopardy violation,” (503 U.S. ––––, ––––, 112 S.Ct. 1377, 1382, 118 L.Ed.2d 25, 34) and that the “basic, yet important, principle” underlying the admissibility of overlapping evidence in Dowling and in the case before it is “that the introduction of relevant evidence of particular misconduct in a case is not the same thing as prosecution for that conduct.”  (United States v. Felix, supra, 503 U.S. 378, ––––, 112 S.Ct. 1377, 1382, 118 L.Ed.2d 25, 34.)   Thus, in Felix and Dowling v. United States (1990) 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708, because the defendants' acquittals in their first trials did not result in the necessary determination of an ultimate issue which issue was also raised in their second trials, evidence presented at the first trials as to a particular issue could be presented at their second trials.   In other words, the double jeopardy doctrine, or more specifically the collateral estoppel feature, relates to precluding the relitigation of ultimate issues;  not preclusion of evidence.

Here, however, the not true finding on the use of a knife allegation at defendant's first trial did result in the necessary determination of an ultimate issue in his subsequent retrials—a determination that defendant had not personally used a knife in the commission of the murder, and, ipso facto, a determination that defendant's culpability as a murderer could not be based on his actions as a perpetrator.  (See People v. Pettaway, supra, 206 Cal.App.3d at p. 1341 (dis. opn. of Kline, J.).)

Thus, in this case, the evidence that defendant personally used a knife to cut or stab the victim is more than evidence which simply “relates to alleged criminal conduct for which a defendant has been acquitted” (Dowling v. United States, supra, 493 U.S. 342, 348, 110 S.Ct. 668, 672, 107 L.Ed.2d 708, 717);  it is evidence probative on an ultimate issue of fact which was necessarily determined in defendant's first trial and which the People may not relitigate upon retrial.

In conclusion, we find the analyses used by the courts in People v. White and Pettaway v. Plummer, and by Justice Kline in his dissent in People v. Pettaway to be persuasive, and accordingly conclude that the trial court's order which essentially prevented the People from retrying defendant on the theory that he was a perpetrator, rather than an aider and abettor, was not erroneous.8

In sum, the trial court correctly excluded evidence of defendant's using a knife to stab or cut the victim to accomplish the homicide because the jury in the first trial unanimously found he had not used a knife in committing the murder.   Notably, the court's order did not prohibit the People from proffering evidence that defendant supplied Snyder the knife which Snyder used to stab the victim in the back, and that defendant encouraged Snyder by defendant's possession of another knife and his using it in a threatening manner short of actually stabbing or cutting Gibson, i.e., the People were still free to tie defendant's possession of the knives to their aiding and abetting theory of culpability (see People v. White, supra, 185 Cal.App.3d at pp. 827–828, 231 Cal.Rptr. 569), something they had successfully done at the second trial.


The order is affirmed.


1.   This is an appealable order.  (Pen.Code, § 1238, subd. (a)(8);  People v. Gazali (1991) 228 Cal.App.3d 1417, 1420, 279 Cal.Rptr. 547.)

2.   All further statutory references will be to the Penal Code except as otherwise noted.

3.   This allegation did not accurately track the language of section 12022, subdivision (b), which speaks in terms of “personal use” of a deadly weapon.

4.   Recently, in People v. Griffin (1991) 235 Cal.App.3d 1740, 1742, 1 Cal.Rptr.2d 620, we characterized our comment in that earlier opinion even more strongly by stating:  “In our opinion reversing the second conviction, we advised the trial court, in the event of another retrial, to avoid admitting evidence inconsistent with the first jury's negative finding on the enhancement allegation in light of the split of authority on the subject.”   Accompanying that factual statement was the following footnote:  “Compare People v. White (1986) 185 Cal.App.3d 822 [231 Cal.Rptr. 569] with People v. Pettaway (1988) 206 Cal.App.3d 1312 [254 Cal.Rptr. 436].   Recently, in Pettaway v. Plummer (9th Cir.1991) 943 F.2d 1041, the Ninth Circuit, in a well-reasoned opinion, undid the First District's opinion in People v. Pettaway, supra.   In light of Pettaway v. Plummer and People v. White, our advice was sound.”

5.   A substantial delay in beginning the third trial was caused by the trial court having granted defendant's motion to dismiss the case because his right to a speedy trial has been violated.   The People appealed this ruling and on November 20, 1991, this court reversed the order of dismissal.  (People v. Griffin, supra, 235 Cal.App.3d 1740, 1 Cal.Rptr.2d 620.)

6.   “While federal circuit court precedent on issues of federal law is certainly entitled to substantial deference, it is not binding [on state courts].  [Citations.]”  (Yee v. City of Escondido (1990) 224 Cal.App.3d 1349, 1351, 274 Cal.Rptr. 551.)

7.   We have noted but not considered the recent published case by the First District, Division Three in People v. Santamaria, 24 Cal.Rptr.2d 662, 862 P.2d 662 (1993), which was granted review by the Supreme Court on November 17, 1993.

8.   At oral argument, the People noted that in United States v. Dixon (1993) 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556, the Supreme Court overruled its holding in Grady v. Corbin (1990) 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548.   They urged that the overruling of Grady affected the viability of Pettaway v. Plummer, supra, 943 F.2d 1041 because the reasoning and holding of Pettaway relied on Grady.   While Pettaway did refer to Grady (id., at pp. 1046–1048), it is clear that Pettaway 's analysis is grounded on the concept of collateral estoppel as analyzed in Ashe v. Swenson, supra, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469.   In United States v. Dixon, the court by a plurality held that double jeopardy bars both multiple punishment and successive prosecution if the two offenses for which the defendant is sought to be punished or tried cannot pass the “same-elements” or “Blockburger ” test (see, e.g., Blockburger v. United States (1932) 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306), but the “same-conduct” test announced in Grady was overruled.   The court, however, did not overrule the Ashe v. Swenson holding that collateral estoppel precludes the relitigation of ultimate issues of fact decided earlier by a trier of fact.   It specifically commented that “Under Ashe ․ an acquittal in the first prosecution 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.”   (509 U.S. at p. ––––, fn. 15, 113 S.Ct. at p. 2863, fn. 15, 125 L.Ed.2d at p. 577, fn. 15.)   See also Schiro v. Farley (1994) 510 U.S. 222, –––– – ––––, 114 S.Ct. 783, 791–92, 127 L.Ed.2d 47, indicating that Ashe v. Swenson is still good law, and that when “the record establishes that [an] issue was actually and necessarily decided in the defendant's favor,” collateral estoppel will prevent relitigation of that issue.

TIMLIN, Associate Justice.

RAMIREZ, P.J., and HOLLENHORST, J., concur.

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