PEOPLE v. RAMSEY (1995)

A jury convicted defendant Leonard James Ramsey of first degree felony murder (Pen.Code, § 187) and robbery (Pen.Code, § 211).   The jury further found he personally used a firearm in the commission of these crimes (Pen.Code, § 12022.5) and had been convicted of a prior serious felony (Pen.Code, § 667).   As a special circumstance, the jury found defendant committed the murder in the commission of the robbery.  (Pen.Code, § 190.2, subd. (a)(17)(i).)   The court sentenced defendant to life in prison without possibility of parole.

Defendant appealed in case No. C010238, and we reversed the robbery special circumstance finding due to instructional error, granted three additional days of presentence credit, but otherwise affirmed the judgment.

On remand, the prosecution elected to retry the robbery special circumstance allegation.   During a pretrial hearing, the prosecutor requested the court instruct the jury that defendant was previously convicted of the robbery and the felony murder on which the robbery special circumstance was predicated.   The defense objected, arguing such instruction would prejudice his client because the jury would immediately infer from the earlier robbery conviction that the special circumstance was true without contemplating whether the murder was committed to facilitate the robbery.   Noting this court affirmed the convictions in question on appeal, the trial court found collateral estoppel precluded relitigation of the robbery and felony murder.

The trial court subsequently instructed the jury it could not redetermine whether defendant was guilty of the robbery and felony murder underlying the special circumstance because he had been convicted of these offenses, but must determine whether he committed the murder to facilitate the robbery.¹  The jury found the special circumstance true, and defendant was again sentenced to life in prison without possibility of parole.

On appeal, defendant asserts the court in effect directed the verdict and denied him his constitutional rights to present a defense, to a fair trial by an impartial jury, to the presumption of innocence, to due process, and to proof beyond a reasonable doubt when the court found he was collaterally estopped from relitigating the robbery and felony-murder convictions.²  We disagree and shall affirm.

In People v. Ford (1966) 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132, a jury convicted the defendant of first degree burglary, possession of a concealable weapon, first degree robbery, two counts of kidnapping, assault with a dangerous weapon, and first degree murder.  (Id. at pp. 44–45, 52 Cal.Rptr. 228, 416 P.2d 132.)   On appeal, the murder conviction was reversed due to instructional error, the burglary conviction was modified, and the remaining convictions were affirmed.  (Id. at p. 45, 52 Cal.Rptr. 228, 416 P.2d 132.)   On appeal after he was retried and convicted of felony murder, the defendant asserted the court erred in instructing the jury that he was previously “convicted of robbery, kidnaping and possession of a concealable weapon by an ex-felon.”  (Id. at pp. 50–51, 52 Cal.Rptr. 228, 416 P.2d 132.)

The California Supreme Court responded:  “The doctrine of res judicata applies to criminal as well as civil proceedings and operates to conclude those matters in issue which the verdict determined though the offenses be different.   Thus where a defendant is tried on multiple counts of a single information, each count being considered as a separate and distinct offense, the doctrine of res judicata operates to preclude the relitigation of issues finally determined upon retrial of only one count.   It follows that the doctrine of res judicata justifies instructions, where relevant, that a defendant has been found guilty of crimes finally adjudicated which are charged as elements in another charge or charges then in the process of being retried.   Accordingly, it was not error for the trial court to give appropriate instructions that defendant had been convicted of the various felonies.”   (Id. at pp. 50–51, 52 Cal.Rptr. 228, 416 P.2d 132, citations omitted.)

Although the law in this area remains somewhat unsettled, neither defendant nor independent research suggests Ford has been clearly superseded by a decision of the United States or California Supreme Courts.   In the absence of superseding authority, we are bound by Ford for the propositions considered by that court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937;  People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 702–703, 10 Cal.Rptr.2d 873.) ³

While defendant correctly asserts the Ford court did not specifically address the issue of the defendant's right to a fair trial by an impartial jury, to the presumption of innocence, to present a defense, and to proof beyond a reasonable doubt, those considerations are implicit in the court's acknowledgment that the prosecution's burden will be lightened and that the jury could be instructed concerning the defendant's convictions of the predicate felonies.  (Ford, supra, 65 Cal.2d at p. 50, 52 Cal.Rptr. 228, 416 P.2d 132.)

We are also not persuaded defendant was denied any of these rights.   At the first trial, the jury rejected defendant's claims that he killed in self-defense, did not intend to rob the victim, and did not murder the victim in the commission of the robbery.   The jury determined his guilt of both robbery and felony murder beyond a reasonable doubt.   This court affirmed those convictions.  “Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.”  (Herrera v. Collins (1993) 506 U.S. 390, ––––, 113 S.Ct. 853, 860, 122 L.Ed.2d 203, 216.)

The court's ruling was not in effect a directed verdict as defendant suggests.   The People were required to carry the burden of establishing beyond a reasonable doubt that defendant committed the murder to facilitate the robbery.  (Pen.Code, § 190.2, subd. (a)(17)(i).)   Defendant could have argued the murder and robbery were committed for separate and unrelated reasons or the robbery was incidental to the murder.   Instead, defendant elected not to testify at the second trial and merely sought to challenge the prosecution's largely circumstantial case.

Defendant urges this court to follow Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153, 29 Cal.Rptr.2d 376.   In Gutierrez the defendant was found guilty of discharging a weapon into an occupied motor vehicle, attempted murder, personal use of a firearm, and intentional infliction of great bodily injury on the victim.  (Id. at p. 156, 29 Cal.Rptr.2d 376.)   After the judgment was affirmed on appeal, the victim died, and the prosecutor filed a second information charging defendant with murder.   (Ibid.)  During a pretrial conference, the court ruled the defendant was collaterally estopped from relitigating whether he had caused great bodily harm to the victim as a result of discharging a firearm at an occupied vehicle with intent to kill the victim.  (Id. at p. 157, 29 Cal.Rptr.2d 376.)   The Second District disagreed, concluding the assertion of collateral estoppel by the prosecution denied the defendant his right to trial by jury.  (Id. at p. 169, 29 Cal.Rptr.2d 376.)

Gutierrez is difficult to reconcile with Ford but readily distinguishable from the present case.⁴  In Gutierrez, the prosecution attempted to preclude the defendant from litigating any issue except causation.  (Gutierrez v. Superior Court, supra, 24 Cal.App.4th at p. 170, 29 Cal.Rptr.2d 376.)   The only defense Gutierrez could have offered at his second trial for the new and more serious offense of murder was that his act did not cause the victim's death.   The jury would have been instructed that the defendant fired the shot which struck the victim and he intended to kill her.   The Second District concluded affirmative use of collateral estoppel against the defendant in these circumstances would impair the jury's decisional function with respect to an essential element of the crime.  (Id. at p. 164, 29 Cal.Rptr.2d 376.)   By contrast, defendant in the present case remained free to contest the central and most significant issue of the retrial:  did he murder to facilitate the robbery?

Finally, defendant reiterates a concern expressed in Gutierrez that his “jury so instructed could not help but infer that the defendant had either admitted the other issues or another jury had already decided them against him.   Either inference creates ‘a strong, perhaps irresistible, gravitational pull towards a guilty verdict, which is utterly inconsistent with the requirement that a jury remain free and untrammeled in its deliberations.’ ”   (Gutierrez v. Superior Court, supra, 24 Cal.App.4th at p. 170, 29 Cal.Rptr.2d 376.)   We do not agree.

Gutierrez and similarly reasoned cases suffer from a fundamental conceptual problem:  trying to preserve the presumption of innocence in circumstances where the defendant is no longer entitled to it.   The Constitution guarantees the right to present a defense, to a fair trial by an impartial jury, to the presumption of innocence, to due process, and to proof beyond a reasonable doubt.   But, it does not guarantee a defendant the right to exploit those guarantees over and over again to determine the same issue.

The state is entitled to one fair opportunity to prosecute a defendant, and principles of double jeopardy prevent the prosecutor from trying again if the first attempt fails.  (People v. Santamaria (1994) 8 Cal.4th 903, 926, 35 Cal.Rptr.2d 624, 884 P.2d 81.)   Similarly, a defendant is entitled to the full panoply of procedural rights and protections during the initial determination of guilt or innocence but, consistent with the logic of Ford, he should not be entitled to try again to obtain a more favorable result.  “Stability of judgments and expeditious trials are served and no injustice done,” when criminal defendants are estopped from relitigating issues determined in conformity with the rigorous safeguards against unjust conviction required in criminal trials.  (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 606, 25 Cal.Rptr. 559, 375 P.2d 439.)

Here, the jurors were required to decided a single issue:  did defendant commit the murder to facilitate the robbery?   This issue was clearly distinct from issues surrounding either the robbery or felony-murder convictions, and the jury instructions carefully delineated the jurors' task.   Murder and robbery are substantive offenses easily distinguished from the sentence enhancing special circumstances allegation.   The issue to be determined by the fact finder is significantly different.   To find the defendant guilty of felony murder, the jury only had to find the felony (robbery) and the murder were part of a continuous transaction.   To find the felony-murder special circumstances true, the jury had to find the murder was committed to advance the independent felonious purpose.  “We presume that jurors comprehend and accept the court's directions.   We can, of course, do nothing else.   The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.”   (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17, 286 Cal.Rptr. 801, 818 P.2d 84, citations omitted.)   Nothing in the record rebuts this presumption.

The judgment is affirmed.

FOOTNOTES

1.   After the court read the information, the jury in the present case was instructed:  “The defendant has been found guilty in a previous proceeding of the offense set forth in Count 1, first-degree murder under the felony murder rule and found guilty of the offense set forth in Count 2, robbery, and the special allegation of use of a firearm was found to be true.  [¶] ․ [¶] You are not to determine in this trial whether or not defendant is guilty or not guilty of first-degree murder and guilty or not guilty of robbery.   Those findings have been conclusively determined in the prior proceeding and are binding on you in this trial.   You are not to speculate as to the reason why there has been a prior proceeding and why there is this subsequent trial.   That matter shall not influence you in any way in your deliberations or in your consideration of this case.   It shall not be discussed during your deliberations in the jury room.”The court further instructed:  “To find that the special circumstance referred to in these instructions as murder in the commission of robbery is true, it must be proved the murder was committed while the defendant was engaged in the commission of a robbery or the murder was committed during the immediate flight after the commission of a robbery by the defendant, and the murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection.  [¶] In other words, the special circumstance referred to in these instructions is not established if the robbery was merely incidental to the commission of the murder.”

2.   Both parties implicitly concede the threshold requirements of collateral estoppel are met.  (See Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, 272 Cal.Rptr. 767, 795 P.2d 1223.)

3.   In Ford, the defendant asserted the court's instructions reserved for the jury only the issues of whether the homicide was committed in the commission of the predicate felonies and “whether he possessed the intent requisite to the various felonies at the time of the commission of the homicide.”  (People v. Ford, supra, 65 Cal.2d at p. 50, 52 Cal.Rptr. 228, 416 P.2d 132.)   Defendant seizes on this language to distinguish Ford from the present case arguing that, although the jury in Ford was informed of the prior convictions, the defendant was still free to introduce evidence to the contrary.   However, the court later stated that the prosecution “was permitted the benefit of the felony-murder rule without the necessity of having to prove the elements of the respective felonies.   Nor was the defense permitted to dispute the fact that the necessary elements of the felonies had been conclusively found.”  (Id. at p. 50, 52 Cal.Rptr. 228, 416 P.2d 132.)   Hence, a closer reading of the case suggests the defendant was not allowed to introduce evidence that he did not have the requisite intents for the predicate felonies.

4.   Noting the Supreme Court first directed the Second District to vacate its original order denying a writ of prohibition in Gutierrez (Gutierrez v. Superior Court, supra, 24 Cal.App.4th at p. 157, 29 Cal.Rptr.2d 376), then denied review of the resulting opinion (Aug. 11, 1994), defendant asserts, “Had the California Supreme Court found that Gutierrez conflicts with Ford, presumably a grant of review would have followed to secure uniformity of decision and settle an important question of law.   If anything, the state high court's failure to grant review or depublish Gutierrez signals its approval of that case.”   He, however, provides no authority suggesting the Supreme Court's order to issue an alternative writ effectively overrules its earlier decision in Ford, and we will not infer some predilection of the Supreme Court from its later refusal to grant review.  (See People v. Triggs (1973) 8 Cal.3d 884, 890–891, 106 Cal.Rptr. 408, 506 P.2d 232, disapproved on other grounds in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4, 150 Cal.Rptr. 910, 587 P.2d 706.)

BROWN, Associate Justice.

PUGLIA, P.J., and SCOTLAND, J., concur.