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

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN BERNARDINO, Respondent; Harold Eugene JACKSON, Real Party in interest.

Civ. 13718.

Decided: October 18, 1974

Lowell E. Lathrop, Dist. Atty., Kenneth L. Kloepfer and Joseph A. Burns, Deputy Dist. Attys., for petitioner. James H. McDaniel, for real party in interest. No appearance for respondent.


This case presents the rather novel question of whether a person accused of conspiracy can lawfully be tried when his alleged co-conspirators have been acquitted of the charge.

On February 15, 1972, Harold Eugene Jackson (‘Defendant’), Michelle Jones and Benny Finch (‘Codefendants') were held to answer upon a felony complaint.

On February 18, 1972, an information was filed charging Jackson, Jones and Finch with conspiracy to commit robbery (Pen.Code, § 182), robbery (Pen.Code, § 211), and murder (Pen.Code, § 187).

On April 26, 1972, the court severed the trial of defendant from that of Jones and Finch.

In May 1972, defendant was tried and convicted on all counts of the information, including the conspiracy charge.

In June 1972, Jones and Finch were tried and acquitted of all charges, including the conspiracy count.

Defendant appealed his conviction. For reasons not pertinent to the issue raised in this review, this court reversed the judgment of conviction by virtue of an unpublished majority decision handed down in February 1974.

The People once again proceeded against defendant on the charges contained in the February 18, 1972 information. In May 1974, defendant moved to dismiss the conspiracy count of the information. On June 3, 1974, the motion was granted.

The prosecution then sought extraordinary relief for the purpose of having the order of dismissal vacated and we issued an alternative writ for the purpose of reviewing the integrity of the court's order dismissing the conspiracy count.

A criminal conspiracy is a combination for an unlawful purpose. (Pen.Code, § 182; Perkins, Criminal Law (2d ed.1969) 614; 1 Witkin, California Crimes (1963) § 105, p. 99.) By definition, a conspiracy is an agreement; the perpetration of the crime requires—indeed, consists in—the proscribed concurrence of at least two parties. (People v. Reeves, 250 Cal.App.2d 490, 58 Cal.Rptr. 517; People v. James, 189 Cal.App.2d 14, 10 Cal.Rptr. 809; Perkins, Criminal Law (2d ed.1969) 622; 1 Witkin, California Crimes (1963) § 109, p. 105; Developments in the Law—Criminal Conspiracy (1959) 72 Harv.L.Rev. 920, 949.) Thus, try as he may, ‘A’ cannot commit a conspiracy by himself—he must have a ‘B’ to go along with him.

In the instant case, the trials of the alleged conspirators were severed; Jones and Finch (‘B’ and ‘C’) were acquitted of the charged crime before the present information was filed. Defendant (‘A’) claims that the exoneration of ‘B’ and ‘C’ leaves him effectively in the position of one who is charged with accomplishing the legal impossibility of conspiring with himself alone. The court below agreed that this is so, and consequently dismissed the conspiracy count. In so doing, the court erred.

In the interest of consistency, where all of the alleged participants in a conspiracy are tried together, it is a logical and legal imperative that the jury cannot return a verdict of guilty against only one defendant. (Lubin v. United States (9th Cir. 1963) 313 F.2d 419; People v. Holzer, 25 Cal.App.3d 456, 102 Cal.Rptr. 11; People v. Reeves, supra, 250 Cal.App.2d 490, 58 Cal.Rptr. 517.) In a single trial of co-conspirators, the jury determines at one moment and on the same evidence and arguments, the culpability of all the participants. Application of the consistency rule provides the court with two checks upon the jury: First, it insures that the jury will adhere to the conspiracy requirement of the concurrence of at least two guilty minds; and second, it prevents the jury from weighing the same pieces of evidence differently in regard to each of the alleged conspirators. (See, Developments in the Law—Criminal Conspiracy, supra, 72 Harv.L.Rev. 920, 972–974.)

It has been suggested that the consistency rule also applies to the situation in which the trials of co-conspirators are severed. (See Developments in the Law—Criminal Conspiracy, supra, 72 Harv.L.Rev. 920, 972.) Some federal cases have held that when one of two alleged co-conspirators has been acquitted in a severed trial, the reversal of the first_tried co-conspirator's conviction is required. (Romontio v. United States (10th Cir. 1968) 400 F.2d 618, cert. dism., 402 U.S. 903, 91 S.Ct. 1384, 28 L.Ed.2d 644; Lubin v. United States, supra (9th Cir. 1963) 313 F.2d 419.) However, the consistency rule has not been adhered to in federal tribunals where the disposition of the conspiracy count regarding the second-tried of two co-conspirators has amounted to something less than an acquittal. Where the second co-conspirator has remained uncharged or his case has been dismissed nolle prosequi, the conviction of the first-tried co-conspirator has been allowed to stand. (United States v. Fox (3d Cir. 1942) 130 F.2d 56, cert. den., 317 U.S. 666, 63 S.Ct. 74, 87 L.Ed. 535.) Similarly, the consistency rule has not been applied in federal forums when one conspirator has pled guilty and subsequently, in a severed trial, his alleged co-conspirators have been acquitted. (United States v. Strother (5th Cir. 1972) 458 F.2d 424, cert. den., 409 U.S. 1011, 93 S.Ct. 456, 34 L.Ed.2d 305; Rosecrans v. United States (5th Cir. 1967) 378 F.2d 561.)

But the federal courts have extended the consistency rule to the severed trial situation summarily, with little regard for its logical application. In doing so, these courts have—at least implicitly—assumed that the same evidence would be presented at both trials (an unwarranted assumption) and that when the same evidence is presented to two different juries, that both must evaluate and weigh that body of evidence in like ways so as to reach identical judgments. Consequently, several state courts, including California, and some federal tribunals have agreed that the consistency rule just does not apply to the severed trial situation. (Platt v. State (1943) 143 Neb. 131, 8 N.W.2d 849; United States v. Musgrave (5th Cir. 1973) 483 F.2d 327, 333, cert. den., 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315; People v. Holzer, supra, 25 Cal.App.3d 456, 460, 102 Cal.Rptr. 11.)

We are in full accord with the Holzer, Platt and Musgrave decisions: the consistency rule has no applicability to the situation in which co-conspirators' trials are severed. Application of the rule in this situation neither insures that the two juries understand the crime of conspiracy nor that they evaluated the facts of the case consistently in regard to each conspirator. Hence, the consistency rule is not dispositive of this case.

But Jackson argues that the doctrine of collateral estoppel precludes his prosecution on the conspiracy charge; he correctly states that the crime of conspiracy requires at least a potential plurality of conspirators; he then maintains that since the two remaining co-conspirators have been acquitted, they cannot be named in the information charging him with that crime, and the People will thus be unable to adequately charge him with conspiracy.

Though Jackson's argument is novel, it is not entirely unprecedented. Historically, criminal defendants have been protected from harassment by their accusers by the constitutional prohibition against double jeopardy—and it has been thought unnecessary to import the doctrines of res judicata and collateral estoppel from the civil field to further protect criminal defendants.1 However, some legal authors have suggested that these civil doctrines may appropriately be applied in criminal cases (i. e., where the doctrine of double jeopardy is unavailable) in order to prevent the state from pursuing multiple prosecutions regarding a single transaction in situations where the first prosecution has failed. (See Statutory Implementation of Double Jeopardy Clauses: A New Life For a Moribund Constitutional Guarantee (1956) 65 Yale L.J. 339, 349; Developments in the Law—Res Judicata (1952) 65 Harv.L.Rev. 818, 874.) Furthermore, the doctrine of res judicata has been actually applied in federal criminal cases (United States v. Oppenheimer (1916) 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161; Sealfon v. United States 1947) 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180) and has also been employed in California (People v. Ford, 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132, cert. den., 385 U.S. 1018, 87 S.Ct. 737, 17 L.Ed.2d 554).

But Jackson was not a party in his co-conspirators' trial; thus he cannot invoke the doctrine of res judicata. He must rely instead upon the doctrine of collateral estoppel, which California courts have yet to extend to the criminal field. The present case demonstrates compelling reasons for not extending the doctrine.

Bearing in mind that the primary function of the estoppel doctrine is to insure that (civil) litigants will not be unfairly harassed, it is difficult for this court to see what useful function importation of this doctrine will serve in the present case. The constitutional prohibition against double jeopardy (U.S.Const., amend. V; Cal.Const., art. I, 13) prevents the state from confronting Jackson with this charge more than once; he may never be forced to relitigate this issue. He will have to stand for this charge but one time; if this be harassment, it is of an imperceptively subtle sort.2

Estoppel simply would not serve its intended function in this case. Moreover, it would force us to indulge in some assumptions (perhaps even fictions) which are not well founded.

First, if Jackson were to prevail on the collateral estoppel argument, we would be required to indulge in some wholly unwarranted assumptions as to the meaning of the jury verdict rendered in the Jones-Finch trial. We would be required to interpret the verdict as a determination that no conspiracy involving these defendants ever, in fact, existed. But it is well settled that an acquittal in a criminal trial ‘is not necessarily a declaration of innocence by the jury, but simply adjudication of lack of proof beyond a reasonable doubt.’ (United States v. Fox, supra, 130 F.2d at p. 58.) Under the accomplice law, the prior acquittal of the principal does not bar the conviction of his subsequently-tried accomplice; the first trial determined the principal's guilt or innocence as to him alone; it does not foreclose an implied determination of his guilt in the accomplice's subsequent trial. (See United States v. Musgrave, supra, 483 F.2d at pp. 331–333.) No compelling reason exists to conclude that the jury's verdict in the first of a series of severed trials in a conspiracy case should be accorded greater breadth than that in any other severed, multi-defendant prosecution. Hence, defendant's estoppel argument loses force when viewed in light of the conclusions it would force this court to draw about the deliberations of the Jones-Finch jury.

Second, People v. Aranda, 63 Cal.2d 518, 530–531, 47 Cal.Rptr. 353, 407 P.2d 265 was not designed to permit an accused to escape a trial on the merits. Aranda simply mandates the severance of codefendants' trials whenever evidence, admissible in regard to only one of the defendants, is likely to be used by a jury to the detriment and prejudice of another defendant. What Jackson purports to do with his estoppel claim is to abrogate the Aranda rule to the extent that he be permitted to use his codefendants' severed trial for whatever advantage he can draw from it. Such an exception to the Aranda rule would yield two undesirable results: (a) it would encourage codefendants—whose trials have been severed—to stall in an effort to be the last brought to trial—in the hope that the previously tried codefendant would be acquitted; thus, the People would be estopped from bringing a charge against the second defendant; such a time-consuming process could be manifestly unfair to the defendants involved and the state, as well as result in abuse of judicial time; and (b) it would permit the second-tried defendant two trials on the same charge; if the first-tried codefendant was found guilty (hence foreclosing the second-tried defendant's estoppel claim) he could then proceed to trial himself, in a second effort to obtain an acquittal; the privilege of a two-trial determination of guilt is not one that our system of criminal justice accords defendants—they are entitled to but a single, fair trial to determine their guilt or innocence.

Whether Jackson actually conspired with the acquitted Jones and Finch we, of course, express no opinion. Our decision is simply that, as to him, the question is an open one which requires resolution in the trial forum.

Let a peremptory writ of mandate issue requiring the superior court to set aside and vacate its order dismissing the charge of conspiracy (count I) in the case of People v. Jackson, Action No. CRW–2522; it is further ordered that the alternative writ be discharged.


1.  Res judicata means that an existing final judgment is conclusive as to the rights of the parties in all subsequent actions on the matters adjudicated in the first suit. On the other hand, collateral estoppel is a doctrine of less extensive coverage than res judicata, and may be asserted in a subsequent suit on a different cause of action to prevent relitigation of a particular cause actually litigated in the prior judgment. (Busick v. Workmen's Comp. Appeals Bd., 7 Cal.3d 967, 972, 104 Cal.Rptr. 42, 500 P.2d 1386; 29 Cal.Jur.2d, Judgments, §§ 214–215, pp. 167–170.)

2.  The fact that Jackson was previously tried on the same charge does not mean that he is now being ‘twice put in jeopardy,’ since the reversal of his conviction leaves him in the same position as if he had never been tried. (See People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677; People v. Dorsey, 34 Cal.App.3d 70, 109 Cal.Rptr. 712; People v. Griffin, 15 Cal.App.3d 442, 93 Cal.Rptr. 319.)

KERRIGAN, Associate Justice.

GARDNER, P. J., and TAMURA, J., concur.

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