PEOPLE v. SANTAMARIA

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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Appellant, v. Jose Napoleon SANTAMARIA, Defendant and Respondent.

No. A057431.

Decided: August 09, 1993

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Senior Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Joan Killeen, Deputy Atty. Gen., San Francisco, for plaintiff and appellant. Lawrence A. Gibbs, Grossman & Gibbs, under appointment by the Court of Appeal, Berkeley, for defendant and respondent.

INTRODUCTION

 Once a jury has convicted a defendant of murder but found he did not personally use a knife in the commission of the crime for purposes of a sentence enhancement under Penal Code section 12022, subdivision (b), may the defendant, following his successful appeal, be retried for murder on the theory he personally stabbed the victim to death? 1  The answer requires us to resolve whether the collateral estoppel component of the double jeopardy clause applies to jury determinations of facts alleged for the purpose of a sentence enhancement.   The issue has been the subject of conflicting opinions;  as we shall explain, we believe United States Supreme Court precedent compels the conclusion that a negative enhancement finding may have collateral estoppel effect upon retrial for the underlying offense.   On the facts presented here, the negative enhancement finding precludes the People from retrying defendant on the theory he personally killed the victim with a knife.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Murder

On September 5, 1985, the body of Victor Guadron was found in Moss Beach.   The body had several stab wounds as well as strangulation injuries and had been run over by a car.   Jewelry had apparently been removed from the body.  (People v. Santamaria (1991) 229 Cal.App.3d 269, 272, 280 Cal.Rptr. 43.)

The circumstances of Guadron's death were related at trial by Anthony Nubla, who had previously pleaded guilty to being an accessory to the murder and had agreed to cooperate with the prosecution.   Nubla testified that on the morning of September 5, defendant Jose Napoleon Santamaria called him and offered to pay a $200 debt if Nubla would give him and Guadron a ride.   When Nubla picked up the two men, Guadron sat in the front passenger seat;  defendant sat behind him.   After running an errand, they drove to Dolores Park, where Nubla got out to buy marijuana.   Hearing a call for help, Nubla turned around, saw defendant stabbing Guadron and ran back toward the car.   Defendant told him to drive toward Pacifica.   As they drove, defendant took Guadron's jewelry and his money.   At Moss Beach, defendant and Nubla pulled Guadron out of the car.   Defendant then took the wheel and twice drove over Guadron's body.   The two men returned to defendant's house and cleaned the car.   About a week later, with the help of a friend of Nubla's, they pawned the jewelry.  (People v. Santamaria, supra, 229 Cal.App.3d at p. 273, 280 Cal.Rptr. 43.)

In May 1987, police had Nubla arrange to meet defendant.   They told Nubla what to say and equipped him with a transmitter.   Nubla had two conversations with defendant, both recorded.   Defendant did not explicitly admit his involvement in the murder during these conversations, but they were nonetheless incriminating.  (People v. Santamaria, supra, 229 Cal.App.3d at p. 274, 280 Cal.Rptr. 43.)

II. The Trial and Post-trial Proceedings

Defendant was convicted by jury of first degree murder and robbery.  (§§ 187, 211.)   The jury also found true a robbery-murder special-circumstance allegation.  (§ 190.2, subd. (a)(17)(i).)   The jury found not true, however, an allegation defendant personally used a knife in committing the murder.   (§ 12022, subd. (b).)  In a published opinion, this court reversed defendant's conviction on the ground an 11–day continuance during jury deliberations constituted prejudicial error.  (People v. Santamaria, supra, 229 Cal.App.3d 269, 280 Cal.Rptr. 43.)

Following remand, the People filed a new information that mirrored the preceding one, except it did not allege a violation of section 12022, subdivision (b), for personal use of a deadly weapon.   The same day, defendant filed a motion in limine to prohibit retrial on the enhancement that he personally used a knife and to preclude the presentation of evidence and argument by the prosecution in support of the theory he personally used the knife or was the direct perpetrator of the killing.   The trial court granted the motion in substantial part.   The court's ruling precluded the prosecution from retrying defendant on the enhancement of personal use of a knife or on the theory he personally used the knife during the killing.   The court further ordered the jury be instructed at appropriate intervals throughout the trial that defendant did not personally use a knife during the killing.   The court denied without prejudice, however, defendant's motion to preclude the introduction of evidence of defendant's use of the knife, including Nubla's testimony that he saw defendant stab the victim and recordings of defendant's conversations with Nubla;  the court stated defendant could renew his objections as to relevance of the evidence during the course of the trial.2

 The prosecutor subsequently informed the trial court the People were unable to proceed in light of the ruling.   The court ordered the case dismissed due to lack of evidence and in the interest of justice.  (§ 1385.)   The People appeal the dismissal, seeking review of the ruling precluding the prosecution from trying defendant on the theory he personally stabbed the victim.3

DISCUSSION

I. Background

“ ‘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.”  (Ashe v. Swenson (1970) 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469;  see also People v. White (1986) 185 Cal.App.3d 822, 827, 231 Cal.Rptr. 569.)   The principle thus precludes relitigation of an ultimate fact issue “ ‘if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated;  if (2) the previous trial resulted in a final judgment on the merits;  and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial.  [Citations.]’  [Citation.]”  (People v. Howard (1988) 44 Cal.3d 375, 411, 243 Cal.Rptr. 842, 749 P.2d 279.)   In Ashe v. Swenson, supra, the United States Supreme Court held collateral estoppel is an element of the Fifth Amendment guarantee against double jeopardy.  (397 U.S. at pp. 442, 445, 90 S.Ct. at pp. 1193, 1195.)

As explained by our Supreme Court, the purposes underlying application of the collateral estoppel doctrine are “(1) to promote judicial economy by minimizing repetitive litigation;  (2) to prevent inconsistent judgments which undermine the integrity of the judicial system;  and (3) to provide repose by preventing a person from being harassed by vexatious litigation.   [Citation.]”  (People v. Taylor (1974) 12 Cal.3d 686, 695, 117 Cal.Rptr. 70, 527 P.2d 622.)   Although courts on occasion describe the doctrine as an equitable concept whose application depends on principles of fairness relevant to a particular case (e.g., People v. Taylor, supra, at p. 695, 117 Cal.Rptr. 70, 527 P.2d 622, citing Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 605, 25 Cal.Rptr. 559, 375 P.2d 439;  People v. Pettaway (1988) 206 Cal.App.3d 1312, 1319, 254 Cal.Rptr. 436, citing People v. Taylor, supra;  People v. Nunez (1986) 183 Cal.App.3d 214, 222, 228 Cal.Rptr. 64, quoting Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 941, 190 Cal.Rptr. 29), in a criminal case when the same defendant is involved in both trials, the bar of collateral estoppel is constitutionally compelled (People v. Taylor, supra, 12 Cal.3d at p. 692, 117 Cal.Rptr. 70, 527 P.2d 622, citing Ashe v. Swenson, supra, 397 U.S. at pp. 443–447, 90 S.Ct. at pp. 1194–96).

In this case, the trial court relied on the opinion of our colleagues in Division Five in People v. White, supra, 185 Cal.App.3d 822, 231 Cal.Rptr. 569 and on the Ninth Circuit's opinion in Pettaway v. Plummer (9th Cir.1991) 943 F.2d 1041, cert. den. (1992) 506 U.S. 904, 113 S.Ct. 296, 121 L.Ed.2d 220, in ruling the jury finding defendant did not personally use a knife in the commission of the murder estopped the People from relitigating that point on retrial.   Both decisions hold a jury's finding on an enhancement allegation may carry collateral estoppel effect upon retrial after appeal.   The trial court declined to follow the conflicting majority decision of Division Two of this district in People v. Pettaway, supra, 206 Cal.App.3d 1312, 254 Cal.Rptr. 436.

People v. White, supra, involved a fact situation indistinguishable from that before us.   The defendant was charged with a double murder and a sentence enhancement for use of a firearm in the commission of the murders.   He was found guilty of the murders, but the jury returned a not true finding on the firearm-use allegation.   After the convictions were reversed on appeal, the trial court denied the defendant's motion to bar the prosecution from proceeding on the theory he was the actual killer.  (185 Cal.App.3d at p. 826, 231 Cal.Rptr. 569.)   The defendant was again convicted on the murder counts.  (Id. at p. 824, 231 Cal.Rptr. 569.)

The Court of Appeal reversed on grounds of double jeopardy and collateral estoppel:  “Appellant's use of a gun was resolved adversely against the prosecution in the first trial, and should not have been relitigated in the second.   The prosecution is not prevented from proceeding on the theory that appellant supplied the weapons or otherwise participated as a principal.  (See Pen.Code, § 31.)   What it cannot do is relitigate the fact of appellant's use of a gun in these homicides, since that issue was decided against it in the first trial.   Principles of double jeopardy and due process which incorporate the doctrine of collateral estoppel preclude such action.”  (People v. White, supra, 185 Cal.App.3d at pp. 827–828, 231 Cal.Rptr. 569, emphasis in original.)

Two years later, a majority of Division Two of this district reached the opposite conclusion on similar facts, holding double jeopardy protection does not apply to jury findings on enhancement allegations.  (People v. Pettaway, supra, 206 Cal.App.3d 1312, 254 Cal.Rptr. 436.)   The majority's conclusion was based largely on the notion that a finding of not true on a sentence enhancement allegation is not equivalent to an acquittal of a substantive crime and therefore does not enjoy the protections of the double jeopardy clause or the preclusive effect of the collateral estoppel doctrine included within it.   (Id. at pp. 1322–1327, 254 Cal.Rptr. 436.)

Facing the same issue on Pettaway's petition for habeas corpus, the Ninth Circuit disagreed.  (Pettaway v. Plummer, supra, 943 F.2d 1041.)   “[T]he fact that the personal use determination at issue in the present case was not formally necessary for a finding of guilt on the murder charge does not prevent the finding from having collateral estoppel effect in this case.”   (Id. at p. 1044.)   Because the proceeding on the enhancement, although not intrinsic to the question of guilt or innocence, had the “ ‘hallmarks of a trial on guilt or innocence’ ”—i.e., the state was required to prove the enhancement allegations beyond a reasonable doubt—the personal-use issue was “ ‘necessarily determined’ ” for purposes of collateral estoppel.  (Id. at pp. 1044–1045, citing Bullington v. Missouri (1981) 451 U.S. 430, 438–439, 101 S.Ct. 1852, 1858, 68 L.Ed.2d 270 [state's failure to obtain death sentence at first trial barred second attempt].)

The People now urge us to follow People v. Pettaway, supra, in holding collateral estoppel principles inapplicable.   Having carefully considered the relevant authority as well as the policies underlying collateral estoppel and double jeopardy, we agree rather with the conclusion reached in People v. White, supra, and Pettaway v. Plummer, supra, that collateral estoppel may apply to jury findings on sentence enhancement allegations.

II. The Fifth Amendment Guarantee Against Double Jeopardy Applies to Enhancement Findings

 In Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, the United States Supreme Court addressed whether double jeopardy barred the state from attempting to impose the death penalty at retrial after the defendant's original conviction on a murder charge was reversed, when the state had failed to obtain the death penalty in the sentencing phase of the first trial.   Under federal constitutional law, the imposition of a sentence generally does not have double jeopardy effect.  (See United States v. DiFrancesco (1980) 449 U.S. 117, 132–138, 101 S.Ct. 426, 434–38, 66 L.Ed.2d 328.)   In Bullington, however, the court distinguished cases holding the double jeopardy clause inapplicable to sentencing decisions on the basis that, in those cases, the sentencing proceedings at issue were characterized by the sentencing court's broad discretion in choosing an appropriate punishment from a wide range of potential penalties and by a burden of proof lower than that of beyond a reasonable doubt.  (451 U.S. at pp. 437–439, 101 S.Ct. at pp. 1857–58.)   Thus, they bore little resemblance to a trial on guilt or innocence.

Under Missouri's capital sentencing procedures, in contrast, the sentencer is required to choose between two discrete sentencing options—death or life without probation or parole for 50 years.  (Bullington v. Missouri, supra, 451 U.S. at p. 432, 101 S.Ct. at p. 1854.)   Moreover, to obtain the aggravated penalty the prosecution must prove certain facts beyond a reasonable doubt, in a proceeding that “resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence.”  (Id. at pp. 438, 444, 101 S.Ct. at pp. 1858, 1861.)   Thus, unlike with traditional sentencing decisions, under Missouri's capital sentencing scheme the state's failure to obtain the harsher sentence demonstrated it had failed to prove its case;  that being so, principles of double jeopardy precluded the state from seeking the death penalty on retrial.  (Id. at pp. 441–446, 101 S.Ct. at pp. 1859–62, citing Burks v. United States (1978) 437 U.S. 1, 15–16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1;  Green v. United States (1957) 355 U.S. 184, 187–188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199.)

In Arizona v. Rumsey (1984) 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164, the United States Supreme Court reaffirmed the principle stated in Bullington in holding double jeopardy precluded the state from seeking the death penalty after reversal of the original sentencing decision:  “The capital sentencing proceeding in Arizona shares the characteristics of the Missouri proceeding that make it resemble a trial for purposes of the Double Jeopardy Clause.   The sentencer—the trial judge in Arizona—is required to choose between two options:  death, and life imprisonment without possibility of parole for 25 years.   The sentencer must make the decision guided by detailed statutory standards defining aggravating and mitigating circumstances;  in particular, death may not be imposed unless at least one aggravating circumstance is found, whereas death must be imposed if there is one aggravating circumstance and no mitigating circumstance sufficiently substantial to call for leniency.   The sentencer must make findings with respect to each of the statutory aggravating and mitigating circumstances, and the sentencing hearing involves the submission of evidence and the presentation of argument.   The usual rules of evidence govern the admission of evidence of aggravating circumstances, and the State must prove the existence of aggravating circumstances beyond a reasonable doubt.  [Citations.]  As the Supreme Court of Arizona held, these characteristics make the Arizona capital sentencing proceeding indistinguishable for double jeopardy purposes from the capital sentencing proceeding in Missouri.  [Citation.]”  (Id. at pp. 209–210, 104 S.Ct. at p. 2309.)

We are unable to discern any principled difference between the capital sentencing procedures at issue in Bullington and Rumsey and the procedures for trying the enhancement allegation in the instant case.4  The personal-use enhancement had to be “pleaded and proven as provided by law” (§ 1170.1, subd. (f));  the jury was required to decide the enhancement allegation if it found defendant guilty on the underlying charge (§ 1158a);  and the prosecution had the burden of proving the allegation to the jury beyond a reasonable doubt (cf. People v. Morton (1953) 41 Cal.2d 536, 539, 261 P.2d 523;  People v. Allen (1985) 165 Cal.App.3d 616, 626, 211 Cal.Rptr. 837).   Mindful of Bullington 's focus, for double jeopardy purposes, on whether the proceeding at issue bears “the hallmarks of [a] trial on guilt or innocence” (Bullington v. Missouri, supra, 451 U.S. at p. 439, 101 S.Ct. at p. 1858), we find defendant's previous trial on the knife-use enhancement clearly meets that test;  consequently, pursuant to the authorities previously discussed, the jury's negative finding on the enhancement would appear to bar the People from retrying defendant for murder on the theory he personally killed Guadron with a knife.

III. The Jury's Negative Finding on the Personal-use Allegation Was a “Final Judgment” for Collateral Estoppel Purposes

The People argue collateral estoppel does not apply because the negative finding on the sentence enhancement was not a “final judgment.”  (See People v. Howard, supra, 44 Cal.3d at p. 411, 243 Cal.Rptr. 842, 749 P.2d 279.)   Echoing the reasoning of the majority in People v. Pettaway, supra, they contend this is so because the enhancement has “no independent viability” apart from the underlying offense.  (See 206 Cal.App.3d at pp. 1322–1325, 254 Cal.Rptr. 436.)

We disagree.   For purposes of collateral estoppel, a “final judgment” is defined as one that is “free from direct attack.”  (People v. Sims (1982) 32 Cal.3d 468, 486, 186 Cal.Rptr. 77, 651 P.2d 321.)   Stated differently, “To be ‘final’ for purposes of collateral estoppel the decision need only be immune, as a practical matter, to reversal or amendment.”  (Miller Brewing Co. v. Jos. Schlitz Brewing Co. (7th Cir.1979) 605 F.2d 990, 996, cert. den. 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787, and cases cited therein.)   Here, while a weapons enhancement is not, as the People observe, a criminal offense, and no final judgment has been entered on the charged murder offense, the jury's negative finding on the enhancement allegation is indisputably immune from appeal or direct attack, reversal or amendment.  (See United States v. Scott (1978) 437 U.S. 82, 91, 98 S.Ct. 2187, 2193, 57 L.Ed.2d 65.) 5  Consequently, the ultimate fact that defendant did not personally use a knife in the killing has for collateral estoppel purposes been finally determined.

That the jury's negative finding is final also disposes of the People's contention the policies underlying collateral estoppel and double jeopardy would not be served by applying the doctrine in this case.   The People raised the same argument in Pettaway v. Plummer, supra, and the Ninth Circuit squarely rejected it.   The Ninth Circuit correctly saw that because the issue of ultimate fact expressed in the jury's verdict had been finally determined, permitting the People to retry the defendant on the same factual theory would raise the specter of successive inconsistent verdicts:  “If the state is allowed to proceed on the theory that Pettaway pulled the trigger himself, it is possible that the second jury would convict Pettaway by reaching a conclusion directly contrary to that reached by the jury in the first trial.   This possibility is abhorrent to the principles underlying the Double Jeopardy Clause.”  (943 F.2d at p. 1047, citing Dowling v. United States (1990) 493 U.S. 342, 347–349, 110 S.Ct. 668, 671–673, 107 L.Ed.2d 708.)

Moreover, as the United States Supreme Court explained in Green v. United States, supra, the idea underlying the prohibition against double jeopardy, “one that is deeply ingrained in at least the Anglo–American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”  (355 U.S. at pp. 187–188, 78 S.Ct. at p. 223.)  “Having received ‘one fair opportunity to offer whatever proof it could assemble,’ [citation], the State is not entitled to another.”  (Bullington v. Missouri, supra, 451 U.S. at p. 446, 101 S.Ct. at p. 1862;  see also Pettaway v. Plummer, supra, 943 F.2d at p. 1048.)

 The same aims of judicial economy and of avoiding inconsistent judgments, vexatious litigation, and the risk of erroneous judgments that inform the prohibition against double jeopardy underlie the doctrine of collateral estoppel as well.  (See People v. Taylor, supra, 12 Cal.3d at p. 695, 117 Cal.Rptr. 70, 527 P.2d 622.)   That defendant, having obtained a reversal on appeal, is in any event subject to retrial on the charged murder offense does not, as the People would have it, render these policy considerations wholly inapplicable.   Although in cases of retrial the saving of judicial resources is reduced and the defendant denied complete repose, the other compelling reasons for application of collateral estoppel—prevention of harassment and anxiety and of the risk of erroneous judgments and inconsistent verdicts—still apply.  (Cf. People v. Taylor, supra, 12 Cal.3d at pp. 695–696, 117 Cal.Rptr. 70, 527 P.2d 622.)   Because the first jury rejected the state's case that defendant personally stabbed Guadron to death, to permit the People to retry him for murder on the same theory would violate these fundamental considerations.   As the court stated in Pettaway v. Plummer, supra, 943 F.2d at page 1048, “Allowing the state to reprosecute [defendant] for murder on the theory that he was the actual perpetrator of the murder permits the state to remedy the flaws it perceives as having been fatal to its case the first time, and to attempt to convince a second jury of that which it tried and failed to prove to the first jury.” 6

The misconception that the negative use finding was not final also colors the People's related argument that the collateral estoppel component of double jeopardy applies only to new prosecutions, not to retrials.   The issue preclusion concept of collateral estoppel, the People argue, is fundamentally at odds with the process of appeal, reversal and retrial of a criminal offense.   Citing section 1180, which provides that “a new trial places the parties in the same position as if no trial had been had,” they assert a defendant who succeeds in getting his conviction reversed on appeal must accept both the benefits and the consequences of his success;  on reversal, he has a second opportunity to defend against the charge and the prosecution has a second opportunity to prove it, using all relevant evidence.

The broad notion a defendant who obtains a reversal must accept both the “benefits and the consequences” of a successful appeal was expressly rejected by our Supreme Court in People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 72, 2 Cal.Rptr.2d 389, 820 P.2d 613.   As the court there recognized, although criminal proceedings are subject to reinstatement after a defendant's successful appeal, “[t]he scope of any reprosecution may, nevertheless, be restricted.”   In a footnote, the court explained:  “ ‘[A]ny error affecting the express verdict of guilty does not affect the conclusiveness of [an] implied verdict of acquittal.  [Citations.]’  [Citation.]  ․ In this situation, the defendant is not obligated to resolve the tension generated by invoking conflicting constitutional protections, but may preserve for himself whatever double jeopardy benefits accrued in his first trial notwithstanding some fatal defect in the proceedings.  [Citations.]  To conclude otherwise would unduly impair the defendant's right of appeal.   [Citation.]”  (Id. at fn. 14;  see People v. Asbury (1985) 173 Cal.App.3d 362, 366, 218 Cal.Rptr. 902.)

Further contrary to the People's argument are the numerous federal cases in which collateral estoppel analysis was applied upon retrial following mistrial or reversal.  (See, e.g., U.S. v. Seley (9th Cir.1992) 957 F.2d 717 [retrial after jury hung];  U.S. v. Dray (1st Cir.1990) 901 F.2d 1132 [dictum;  retrial after appeal];  Pugliese v. Perrin (1st Cir.1984) 731 F.2d 85 [retrial after appeal];  United States v. Mespoulede (2d Cir.1979) 597 F.2d 329 [retrial after jury hung];  cf. Durosko v. Lewis (9th Cir.1989) 882 F.2d 357, 359–361 [distinguishing Bullington because second proceeding had lower standard of proof];  Rice v. Marshall (6th Cir.1987) 816 F.2d 1126, 1130–1132 [failure to object to evidence rape defendant was carrying firearm constituted ineffective assistance of counsel where defendant was previously acquitted of firearm charge].)   More importantly, Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852 and Arizona v. Rumsey, supra, 467 U.S. 203, 104 S.Ct. 2305 make clear that double jeopardy applies where the trier of fact, in a penalty proceeding sharing key characteristics of a trial on guilt or innocence, has previously found not true the alleged conduct of the defendant the state would seek to prove upon resentencing after retrial of the underlying offense.   We perceive no reason why the collateral estoppel element of the double jeopardy clause would not likewise apply to facts underlying a sentence enhancement found not true in the guilt phase of trial, if the criteria for its application were otherwise met.7

IV. The Viability of Inconsistent Verdicts and Nonunanimous Theories of Guilt Does Not Change the Collateral Estoppel Analysis

The People make several other arguments in favor of reversal, none of which we find persuasive.   First, that the jury was not required to isolate one theory as the basis for its guilty verdict on the murder charge, as the People correctly observe, is not to the point.   True, the jury was not required to decide whether defendant was the perpetrator or an aider and abettor in order to find him guilty;  rather, each juror need only have found him guilty of murder beyond a reasonable doubt.  (See People v. Pride (1992) 3 Cal.4th 195, 249, 10 Cal.Rptr.2d 636, 833 P.2d 643.)   Nonetheless, the prosecution having initially failed to prove defendant personally used the knife during the killing, as the negative finding on the enhancement demonstrates, the collateral estoppel component of double jeopardy now prevents it from a second try at proving the theory the jury rejected at the first trial.   Here, as in the case of reversal for evidentiary insufficiency, “the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.”  (Burks v. United States, supra, 437 U.S. at p. 16, 98 S.Ct. at pp. 2149–2150, fn. omitted.)

Nor is the collateral estoppel problem cured by the rule that inconsistent verdicts may stand, as long as sufficient evidence supports the counts resulting in conviction.   Observing that defendant could not have challenged his murder conviction on appeal on the ground it was inconsistent with the negative use-enhancement finding (see United States v. Powell (1984) 469 U.S. 57, 64–65, 105 S.Ct. 471, 476, 83 L.Ed.2d 461 [no constitutional prohibition against inconsistent verdicts];  § 954 [“An acquittal of one or more counts shall not be deemed an acquittal of any other count.”];  People v. York (1992) 11 Cal.App.4th 1506, 1510, 15 Cal.Rptr.2d 66 [§ 954 permits inconsistent verdicts] ), the People argue defendant necessarily cannot use the finding to bar the state from subjecting him to a second trial for murder on the theory he killed Guadron with a knife.

The People's argument ignores that double jeopardy considerations, inapposite at the original trial, come into play on retrial of “issues previously adjudicated to finality.”  (People v. White, supra, 185 Cal.App.3d at p. 828, 231 Cal.Rptr. at 569;  see United States v. Scott, supra, 437 U.S. at p. 91, 98 S.Ct. at p. 2194.)   For this reason, People v. Lopez (1982) 131 Cal.App.3d 565, 182 Cal.Rptr. 563, relied on by the People to support their analogy to inconsistent verdicts, has no bearing on the prohibition against double jeopardy that governs this case.  Lopez was concerned not with successive trials, as here, but rather with the legal effect on appeal of inconsistent verdicts and findings at trial.   The jury had found the defendant guilty of six counts of assault with a deadly weapon, but that he did not personally use a firearm in commission of the offenses.   At issue was whether, in light of the jury's negative use-enhancement finding, the appellate court's examination of the verdicts for sufficiency of the evidence had to be made on the basis the defendant was convicted as an aider and abettor, not as a principal.  (Id. at p. 569, 182 Cal.Rptr. 563.)   Relying by analogy on section 954, permitting inconsistent verdicts, the court held it did not;  notwithstanding the inconsistency between the negative finding and the guilty verdicts, the only issue on appeal was whether the verdicts were supported by substantial evidence, and in making this determination, the court could consider evidence of the defendant's weapon use.  (Id. at p. 571, 182 Cal.Rptr. 563.)

We observe, moreover, the guilty verdict and negative special finding in this case were not necessarily inconsistent.   The jury was instructed on liability of an aider and abettor and on the felony-murder liability of all participants in a robbery leading to death.   They were also instructed the robbery-murder special circumstance applied to a murder “committed while the defendant was engaged in or was an accomplice in the commission of a robbery.”   On the day they reached their verdicts, the jury asked about what they perceived to be a conflict between the robbery-murder special-circumstance instruction and the special circumstance verdict form.   The verdict form referred to the murder being committed “while the defendant was engaged in the commission of a robbery,” without any reference to defendant being an accomplice in the robbery.   In answer to the question, the court stated the language of the instruction controlled and referred the jury to CALJIC No. 3.00 (stating aiders and abettors are principals in the crime).   As the prosecutor commented after the trial, the jury's question “implied reliance on aiding and abetting principles.” 8  The specific finding defendant did not personally use a knife is not inconsistent with a finding defendant aided and abetted Nubla in the robbery murder.

 Finally, the People argue that even if double jeopardy applies to bar reprosecution of the enhancement allegation, the doctrine may not be used to preclude introduction of evidence relevant to the murder charge upon retrial.   Contrary, however, to the People's premise, the trial court's ruling related not to evidence per se, but to the theory of defendant's culpability;  while the court barred the prosecution from retrying defendant on the theory he personally used the knife in the commission of the murder —the theory the prosecution failed to prove at trial—it did not prohibit the prosecution from retrying defendant on the theory he was the perpetrator (as well as an aider and abettor), nor did it preclude the introduction of all evidence relating to defendant's possible knife use, so long as that evidence was relevant to a permissible theory.   In this, the court's order, we believe, was consistent with the United States Supreme Court decision in Dowling v. United States, supra, 493 U.S. 342, 110 S.Ct. 668.   There, in the context of successive prosecutions for different offenses, the court held the presentation of specific evidence in one trial, resulting in the defendant's acquittal, does not preclude the introduction of that same evidence in a subsequent prosecution to prove an issue not necessarily decided in the earlier acquittal.  (Id. at pp. 350–352, 110 S.Ct. at p. 673–674.)   Consistent with Dowling, nothing in the trial court's order here would seem to preclude the prosecution, had it elected to do so, from introducing otherwise admissible evidence relevant to a permissible theory.  (See Dowling, supra, at pp. 347–352, 110 S.Ct. at pp. 671–674.)

V. Collateral Estoppel Bars the State From Reprosecuting Defendant on the Theory He Personally Used the Knife During the Killing

As we observed above, collateral estoppel bars relitigation of an issue of ultimate fact where the issue necessarily decided at the previous trial is identical to the one the People seek to relitigate, the previous trial resulted in a final judgment on the merits, and the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial.  (People v. Howard, supra, 44 Cal.3d at p. 411, 243 Cal.Rptr. 842, 749 P.2d 279.)   Having concluded the jury's negative finding on the use enhancement constitutes a final judgment, the sole remaining controversy concerns whether the trial court erred in finding the issue of defendant's knife use in commission of the killing was “necessarily decided” at the first trial.   We find no error.

The jury returned a verdict reading:  “WE, THE JURY IN THE ABOVE ENTITLED CAUSE, find the allegation that at the time of the commission and attempted commission of the offense charged in Count I the defendant, JOSE NAPOLEON SANTAMARIA, personally used a deadly and dangerous weapon, to wit:  a knife, within the meaning of Penal Code section 12022(b) to be NOT TRUE.”   Notwithstanding this finding, the People argue the jury did not “necessarily decide” defendant did not personally use a knife in killing Guadron because evidence at trial suggested the murder weapon could have been a razor-type box opener, rather than a knife;  thus, the jury verdict could simply reflect confusion over what type of weapon had been used.

The record simply does not support the People's contention.9  A forensic pathologist testified the mortal wounds were made by a knife blade several inches long with one sharp edge and one blunt edge.   Nubla testified to seeing defendant stab Guadron with a six-inch knife and contradicted the suggestion he had earlier told investigators that a “box knife” had been used.   The transcript of that interrogation itself adds nothing to the People's argument.   Nubla initially answered affirmatively to the officer's question, “What was Victor cut with?   One of those razor blade things?”   Moments later, however, Nubla corrected the officer, stating three times defendant stabbed Guadron with a steak knife, not a box opener.   On this record, no reasonable jury would have been confused as to whether the murder weapon was or was not a knife.

Nor does it matter that the jury was given no instruction on the meaning of “dangerous and deadly weapon” or on the requirements of a finding pursuant to section 12022, subdivision (b), as the People contend.   Although the People protest the term “dangerous and deadly weapon” has a technical meaning not apparent to a jury absent specific instructions (which, apparently, neither the People nor defendant requested), here the verdict form itself specified the precise factual issue the People now seek to relitigate:  whether defendant murdered Guadron with a knife.   Given the plain wording of the verdict form, we are satisfied that question has been resolved.

VI. Conclusion

Pursuant to the foregoing, we hold the trial court correctly ruled the prosecution could not retry defendant on the theory he personally used a knife during the killing.   In so doing, we emphasize this is not a case where the special finding was logically inconsistent with the guilty verdict, in the sense of eluding rational explanation.   As in Pettaway v. Plummer, supra, 943 F.2d at page 1046, this, too, “is not a case in which there is a ‘truly inconsistent verdict.’   To the contrary, there is a rational explanation that takes into account the whole of the jury's verdict.”   Consequently, we have had no occasion to consider whether preclusive effect should be given to a negative special finding that cannot be rationally reconciled with the guilty verdict it accompanies.

DISPOSITION

The order appealed from is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

2.   In making its rulings, the court stated:  “The matter is complicated by the fact that there is evidence that, in addition to being stabbed by a knife the victim was strangled and run over by the accomplice's car.   Anyone [sic ] of these assaults could have caused death, but the most probable cause of death was manual strangulation.”   After making its rulings, the court stated further that in considering and deciding the motions, it was “well aware, that the evidence in this particular case suggests several alternate instrumentalities of death,” thus distinguishing the case from single instrumentality cases.   Correcting the court, the prosecutor then stated:  “The cause of death in this case was a knife wound.   It was not manual strangulation.”   The court then turned to defense counsel, who stated his belief that “Dr. Benson testified that the cause of death was a stab wound to the hepatic artery complicated by the other factors including those mentioned by your Honor.”

3.   The People purport to appeal from the collateral estoppel ruling itself.   The ruling, however, is not itself appealable.   In the interests of judicial economy and decision on the merits, we construe the notice of appeal as from the order of dismissal.  (See 6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Appeal, § 3215, pp. 3975–3976.)   The People's appeal from the dismissal is statutorily authorized and permits review of the underlying ruling.  (§ 1238, subd. (a)(8);  People v. Yarbrough (1991) 227 Cal.App.3d 1650, 1653–1656, 278 Cal.Rptr. 703.)

4.   Unlike the majority in People v. Pettaway, supra, 206 Cal.App.3d at pages 1328–1329, 254 Cal.Rptr. 436, we do not find it a significant distinction that the procedures addressed in Bullington and Rumsey required a separate trial on the issue of punishment after the defendant was convicted of the crime charged, whereas here the prosecutor was required to prove guilt on the underlying offense and the truth of the enhancement allegations during the same proceeding.  “Where the original proceedings have all the characteristics of a trial on guilt or innocence, it does not matter whether the fact at issue was originally determined in the guilt/innocence phase, the sentencing phase, or, as here, as an enhancement factor tried during the guilt/innocence phase.  [Citation.]”  (Pettaway v. Plummer, supra, 943 F.2d at p. 1045, fn. 2.)   If anything, the procedure employed here for determining the truth of the enhancement allegations during the trial on the underlying charge is less distinguishable from a trial on guilt or innocence than were the separate, postconviction penalty proceedings at issue in Bullington and Rumsey.

5.   The People's reliance on cases holding the collateral estoppel component of the double jeopardy clause does not bar retrial of a criminal charge following the defendant's successful appeal from a conviction on that offense are inapposite.   Here, although defendant was originally convicted on the underlying murder charge, the jury effectively acquitted him of having used a knife in the commission of that crime.

6.   The People point out that in the recent case of United States v. Dixon (1993) 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556;  the United States Supreme Court overruled Grady v. Corbin (1990) 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 a case relied on by the court in Pettaway v. Plummer, supra, 943 F.2d at pages 1046–1048.   As the People acknowledge, however, the high court repeatedly observed that the issue of collateral estoppel was not before it in Dixon.   Indeed, the court expressly recognized that “The collateral-estoppel effect attributed to the Double Jeopardy Clause, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts” (––– U.S. at p. ––––, 113 S.Ct. at p. 2860, emphasis omitted) and, further, that “Under Ashe v. Swenson [supra ], an acquittal in the first prosecution might well bar litigation of certain facts essential to the second one․”  (id. at p. ––––, fn. 15, 113 S.Ct. at p. 2863, fn. 15.)Nevertheless, based on the foregoing quotes, the People argue the clear implication is that collateral estoppel applies to subsequent prosecutions and serves to protect verdicts of acquittal, neither present here.   We disagree these passing comments in Dixon add anything new to the controversy before us.

7.   The statement in Ohio v. Johnson (1984) 467 U.S. 493, 500, footnote 9, 104 S.Ct. 2536, 2541, footnote 9, 81 L.Ed.2d 425, that double jeopardy and collateral estoppel do not apply “where the State has made no effort to prosecute the charges seriatim ․” is not to the contrary.   The defendant there was charged in a single indictment with murder, involuntary manslaughter, aggravated robbery and grand theft.   The trial court accepted his guilty plea to involuntary manslaughter and grand theft and then dismissed the murder and robbery charges on the theory prosecution for those remaining charges would subject the defendant to double jeopardy.   The United States Supreme Court disagreed, observing “the taking of a guilty plea is not the same as an adjudication on the merits after full trial, such as took place in Ashe v. Swenson.   Moreover, in a case such as this, where the State has made no effort to prosecute the charges seriatim, the considerations of double jeopardy protection implicit in the application of collateral estoppel are inapplicable.”  (Id. at p. 500, fn. 9, 104 S.Ct. at p. 2541, fn. 9, emphasis added.)  Johnson, thus, did not involve successive trials, either on the same charge or on a different charge.   In contrast, in this case the People propose to retry defendant on a theory a jury has previously rejected—that defendant personally used a knife in the commission of the murder.

8.   Although Nubla testified defendant was the perpetrator, his testimony was not the whole of the case against defendant.   Apart from Nubla's testimony, which the jury may have discounted, independent evidence of defendant's motive and of his admission of involvement in the killing supported a rational finding he participated in the killing, even if he was not shown beyond a reasonable doubt to have personally stabbed Guadron.

9.   We take judicial notice of the records in the appeal from defendant's first trial.

WERDEGAR, Associate Justice.

WHITE, P.J., and CHIN, J., concur.

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