WOODS, J., Concurring. Introduction
I would deny the petition but for reasons entirely different from the majority. To explain, I shall synopsize the background facts; comment on [1713]petitioner’s “new trial” claim; consider the function, purpose, and effect of collateral estoppel; and demonstrate the error of Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153 [29 Cal.Rptr.2d 376].
Background: Synopsis1
On June 2, 1990, petitioner, other gang members, and friends conducted a memorial car wash for Phillip Juarez, a friend and fellow gang member recently fatally shot in front of his house. Petitioner believed Evergreen, a rival gang, had murdered him.
After the car wash, petitioner and about 30 to 40 others gathered at 1155 LeBorgne. While outside, petitioner saw a car slowly drive by. His friends yelled their gang name at the car and petitioner heard someone in the car yell “Evergreen.” Petitioner was mad at the “Evergreen” car, so when it made a U-turn and returned he threw a beer can at it.
There were four teenagers in the car: Ismael Fernandez, Veronica Zarate, her 16-year-old sister Sandra, and 14-year-old Danny Reyes.
Ismael recognized petitioner. He had known him for two or three years, knew he was called “Boxer,” had talked to him at school, Bassett High School, and said his looks were distinctive: tall, husky, large nose, and harelip.
When the beer cans struck their car Ismael sped away. A motorcycle, with a rider and passenger, pursued them. Petitioner was the passenger. After several blocks, the motorcycle got close to the car and petitioner fired a shot. The bullet struck Sandra Zarate in the head. The motorcycle fled and Ismael drove to a police station. Sandra was taken to a hospital where, in an irreversible coma, she would remain, kept alive by life support systems.
Police went to 1155 LeBorgne where Ismael identified petitioner. Petitioner was arrested and charged with the attempted murder of the still alive Sandra Zarate. At trial petitioner testified he remained at 1155 LeBorgne, did not see or get on a motorcycle, and did not shoot the victim. The jury convicted him of attempted murder, found he had personally used a firearm, and intentionally inflicted great bodily injury on Sandra Zarate.
On February 11, 1991, the trial court (Superior Court Judge William J. McVittie) conducted a sentence hearing. The prosecutor described the effects of the shooting on the Zarate family: they moved and had kept secret [1714]their new residence; Mrs. Zarate was afraid to leave the house and her two daughters did not go to school, tutors came to their home. They all feared petitioner and his gang.
Petitioner was sentenced and appealed. On November 20, 1992, we affirmed his conviction. (People v. Gutierrez, supra, 10 Cal.App.4th 1729.) On December 15, 1992, we denied his petition for rehearing and on March 11, 1993, our Supreme Court denied his petition for review.
On January 5,1993, Sandra Zarate died. The district attorney then charged petitioner with her murder and urged the trial court to collaterally estop petitioner from relitigating issues final on appeal: that petitioner shot Sandra Zarate and intentionally inflicted great bodily injury on her. The trial court granted the motion and petitioner sought a writ of prohibition. On April 15, 1994, my colleagues granted the writ and, in their words, “afford[ed] petitioner a trial de novo.” (Gutierrez v. Superior Court, supra, 24 Cal.App.4th 153, 170.)
On October 20, 1995, almost five and a half years after petitioner shot Sandra Zarate in the head, the first murder trial began. On November 16, 1995, the jury announced they were deadlocked and the trial court (Superior Court Judge David Milton) declared a mistrial.
On February 28, 1996, over five and a half years after petitioner shot Sandra Zarate in the head, the second murder trial began. On March 28, 1996, the jury announced they were deadlocked and the trial court (Superior Court Judge Candace Beeson) declared a mistrial.
On June 10, 1996, over six years after petitioner shot Sandra Zarate in the head, the third murder trial began. On July 1, 1996, the jury announced they were deadlocked, eight to four in favor of guilt. The trial court (Superior Court Judge Albert Matthews) declared a mistrial and granted the prosecutor’s motion to dismiss.
This petition followed.2
[1715] Petitioner’s new trial claim.
Small wonder petitioner claims Gutierrez v. Superior Court effectively granted him a new trial. And small wonder the majority disclaim any such intent (maj. opn., ante, at p. 1708) while acknowledging that “exceptional cases do exist where it was determined orders by the court effectively granted a new trial without expressly doing so.” (Id. at p. 1710.)
Certainly, the trial Gutierrez v. Superior Court ordered was not a used trial. Nor a fettered trial. It was “a full trial on all issues” (Gutierrez v. Superior Court, supra, 24 Cal.App.4th at p. 169), and it was “a trial de novo.” (Id. at p. 170.)
In what way a “new trial” would have differed from the trial ordered by Gutierrez v. Superior Court—the majority do not say and I cannot detect.
A “new trial” would have put in issue every element of the murder charge, including identity and malice aforethought (issues determined by the January 2, 1991, attempted murder guilty verdict, affirmed by People v. Gutierrez, supra, 10 Cal.App.4th 1729 and final on appeal) and so did the trial ordered by Gutierrez v. Superior Court.
At a “new trial” the court would instruct the jury “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.” (CALJIC No. 2.90.) Further, the court would instruct the jury that to convict the defendant of murder each of the following elements had to be proved beyond a reasonable doubt: that a human being was killed; with malice aforethought; by the defendant. (CALJIC No. 2.90.)
At the trial ordered by Gutierrez v. Superior Court the court, under the compulsion of Gutierrez, gave these identical instructions.
Finally, by compelling “a full trial on all issues” Gutierrez v. Superior Court permitted a successor jury to find petitioner not guilty of shooting Sandra Zarate in the head. Had they so found, would the majority allow the earlier, now inconsistent, guilty verdict to stand?3 If not, then surely Gutierrez v. Superior Court did grant petitioner a “new trial.”
Nevertheless, I find it unnecessary to decide whether the effect of Gutierrez v. Superior Court was to grant petitioner a “new trial” because, in my [1716]view, that decision constituted “a manifest misapplication of existing principles”4 by permitting relitigation of collaterally estopped issues.
In sum, petitioner was not entitled to the bonus—whatever its nature or dimension—conferred by Gutierrez v. Superior Court and for that reason I would deny the petition.
Function, purpose, and effect of collateral estoppel.
“Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 [272 Cal.Rptr. 767, 795 P.2d 1223, 2 A.L.R.Sth 995].) To apply the doctrine five threshold requirements must be satisfied.
“First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.” (51 Cal.3d at p. 341.)
Four policy considerations for the doctrine have been recognized. Judicial economy is “promoted in that court time will not be wasted retrying an issue of fact which has once been litigated.” (People v. Superior Court (Jackson) (1975) 44 Cal.App.3d 494, 502 [118 Cal.Rptr. 702]; Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 606 [25 Cal.Rptr. 559, 375 P.2d 439]; People v. Taylor (1974) 12 Cal.3d 686, 695 [117 Cal.Rptr. 70, 527 P.2d 622]; Hoag v. New Jersey (1958) 356 U.S. 464, 470 [2 L.Ed.2d 913, 919, 78 S.Ct. 829]; Lucido v. Superior Court, supra, 51 Cal.3d 335, 351.) “Second, the possibility of inconsistent verdicts is averted.” (People v. Superior Court (Jackson), supra, 44 Cal.App.3d 494, 502; Lucido v. Superior Court, supra, 51 Cal.3d 335, 347; Hoag v. New Jersey, supra, 356 U.S. 464, 470 [2 L.Ed.2d 913, 919].) Third, is “the prevention of harassment through vexatious litigation.” (People v. Superior Court (Jackson), supra, 44 Cal.App.3d 494, 503; People v. Taylor, supra, 12 Cal.3d 686, 695; Lucido v. Superior Court, supra, 51 Cal.3d 335, 351; Hoag v. New Jersey, supra, 356 U.S. 464, 470 [2 L.Ed.2d 913, 919].) Fourth, the doctrine “encourage[s] reliance on adjudication.” (Allen v. McCurry (1980) 449 U.S. 90, 94 [66 [1717]L.Ed.2d 308, 313,101 S.Ct. 411]; Lucido v. Superior Court, supra, 51 Cal.3d 335, 355 (dis. opn. of Mosk, J.).)
The policy of avoiding contradictory verdicts deserves elaboration. As Chief Justice Lucas observed, “Public confidence in the integrity of the judicial system is threatened whenever two tribunals render inconsistent verdicts.” (Lucido v. Superior Court, supra, 51 Cal.3d 335, 347; see People v. Sims (1982) 32 Cal.3d 468, 488 [186 Cal.Rptr. 77, 651 P.2d 321] [Inconsistent judgments “may undermine the integrity of the judicial system . . . .”]; People v. Howard (1988) 44 Cal.3d 375, 412 [243 Cal.Rptr. 842, 749 P.2d 279] [“inconsistent judgments . . . undermine the integrity of the judicial system”].) This is especially true when the first tribunal is a jury and their verdict is guilty.
As a civilized society we forgo personal vengeance and obey the law because we have faith in the criminal justice system. We look to and rely upon “the criminal trial process as the proper forum for determinations of criminal guilt and innocence.” (Lucido v. Superior Court, supra, 51 Cal.3d 335, 350, fn. 11.) The importance we place upon the criminal trial process is reflected by the rights we confer upon the defendant, the burdens we impose upon the prosecution, and our “rigorous safeguards against unjust conviction . . . .” (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., supra, 58 Cal.2d 601, 606.) “A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. . . . Other constitutional provisions also have the effect of ensuring against the risk of convicting an innocent person. See, e.g., Coy v. Iowa, 487 U.S. 1012 [101 L.Ed.2d 857, 108 S.Ct. 2798] (1988) (right to confront adverse witnesses); Taylor v. Illinois, 484 U.S. 400 [98 L.Ed.2d 798, 108 S.Ct. 646] (1988) (right to compulsory process); Strickland v. Washington, 466 U.S. 668 [80 L.Ed.2d 674, 104 S.Ct. 2052] (1984) (right to effective assistance of counsel); [In re] Winship [397 U.S. 358 (25 L.Ed.2d 368, 90 S.Ct. 1068) (1970)] (prosecution must prove guilt beyond a reasonable doubt); Duncan v. Louisiana, 391 U.S. 145 [20 L.Ed.2d 491, 88 S.Ct. 1444] (1968) (right to jury trial); Brady v. Maryland [373 U.S. 83 (10 L.Ed.2d 215, 83 S.Ct. 1194) (1963)] (prosecution must disclose exculpatory evidence); Gideon v. Wainwright, 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733] (1963) (right to assistance of counsel); In re Murchison, 349 U.S. 133, 136 [99 L.Ed. 942, 946, 75 S.Ct. 623] (1955) (right to ‘fair trial in a fair tribunal’). ... All of these constitutional safeguards, of course, make it more difficult for the State to rebut and finally overturn the presumption of innocence which attaches to every criminal defendant.” (Herrera v. Collins (1993) 506 U.S. 390, 398-399 [122 L.Ed.2d 203, 215-216, 113 S.Ct. 853]; Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., supra, [171858] Cal.2d 601, 606 [“there are rigorous safeguards against unjust conviction, including the requirements of proof beyond a reasonable doubt [citation] and of a unanimous verdict [citation], the right to counsel [citation], and a record paid for by the state on appeal."].)
“Our courts are . . . forums for the discovery of truth.” (People v. St. Martin (1970) 1 Cal.3d 524, 533 [83 Cal.Rptr. 166, 463 P.2d 390]) and it is the jury’s function to ascertain the truth. (People v. Barton (1995) 12 Cal.4th 186, 196 [47 Cal.Rptr.2d 569, 906 P.2d 531] [“. . . the jury’s truth-ascertainment function.”].) The culmination of their efforts—a unanimous belief beyond a reasonable doubt—is a verdict of guilty.5
Such a verdict extinguishes the presumption of innocence (Herrera v. Collins, supra, 506 U.S. 390, 399 [122 L.Ed.2d 203, 216] [“Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.”]). If the trial was fair and the verdict final then “no injustice [is] done, when criminal defendants are estopped from relitigating issues determined in conformity with these safeguards.” (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., supra, 58 Cal.2d 601, 606.)
After a fair trial and a guilty verdict final on appeal, the purpose of collateral estoppel is to insure that the defendant does not have another “fair trial.” Inherently, collateral estoppel inhibits the next proceeding. It precludes a defendant from asserting claims previously rejected.
Accordingly, guilty defendants have been collaterally estopped from contesting a parole violation (Morrissey v. Brewer (1972) 408 U.S. 471, 490 [33 L.Ed.2d 484, 499-500, 92 S.Ct. 2593]), seeking theft losses from their insurers (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., supra, 58 Cal.2d 601) contesting a car forfeiture6 (People v. One 1964 Chevrolet Corvette Convertible (1969) 274 Cal.App.2d 720 [79 Cal.Rptr. 447]), denying paternity (People v. Majado (1937) 22 Cal.App.2d 323 [70 P.2d 1015]), and denying having committed robbery, kidnapping and possession of a concealable weapon by an ex-felon when being tried for having committed murder during the commission of any or all of these felonies (People v. Ford (1966) 65 Cal.2d 41, 50 [52 Cal.Rptr. 228, 416 P.2d 132]).
As Justice Traynor said for a unanimous court, “Collateral estoppel applies to successive criminal trials” (Teitelbaum Furs, Inc. v. Dominion Ins. [1719]Co., Ltd., supra, 58 Cal.2d 601, 606) and, more recently, as Justice Kennard observed, “collateral estoppel is a two-way street.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 876 [25 Cal.Rptr.2d 500, 863 P.2d 745] (dis. opn. of Kennard, J.).)
The errors of Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153
The errors of Gutierrez are fundamental and numerous. I cite only a few.
Presumption of innocence. The threshold error of Gutierrez is its assumption petitioner is to be presumed innocent both before and after his attempted murder conviction. The law is otherwise. (Herrera v. Collins, supra, 506 U.S. at p. 399 [122 L.Ed.2d at p. 216].) 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.
Before the January 2, 1991, guilty verdict petitioner was presumed innocent of shooting Sandra Zarate with malice aforethought and intentionally inflicting great bodily injury. After, he was not. (Comment, Perjury by Defendants: The Uses of Double Jeopardy and Collateral Estoppel (1961) 74 Harv. L.Rev. 752, 763, fn. 68 [“. . . when a prosecutor seeks to use collateral estoppel a jury has already passed on the defendant’s claims. The fact that it was a different jury at a prior trial does not seem to lessen the force of the contention that the defendant’s right to trial by jury on every element of the crime has been respected.”].)
After, he was presumed innocent only of causing her death—the sole issue not decided by the January 2, 1991, guilty verdict.
Maintaining integrity and public confidence in the judicial system. Gutierrez states “maintaining integrity and public confidence in the judicial system” will be promoted by requiring the prosecutor, over five years after the fact, to again convince twelve jurors beyond a reasonable doubt it was petitioner who shot and killed Sandra Zarate. (Gutierrez v. Superior Court, supra, 24 Cal.App.4th at p. 170.)
One can only wonder who this “public” is. The original jurors who were led to believe their verdict decided petitioner’s guilt? Superior Court Judge Alfonso M. Bazan who granted the collateral estoppel motion? Superior Court Judges Milton, Beeson, and Matthews who, knowing better, were compelled to instruct jurors petitioner was presumed innocent of shooting [1720]Sandra Zarate? Thirty-six jurors, from whom the truth was withheld, and who unsuccessfully labored to determine if petitioner shot Sandra Zarate? The thirty-four witnesses who testified at one or two or three or four trials from 1990 to 1996? Ordinary citizens knowing petitioner could be found guilty of shooting Sandra Zarate but allowed to deny it again and again and again—and ultimately get away with murder?
Distinguishing People v. Ford, supra, 65 Cal.2d 41. Gutierrez states Ford is distinguishable because it addressed the issue of collateral estoppel after, not before, trial. (Gutierrez v. Superior Court, supra, 24 Cal.App.4th at p. 166.) This sounds more like an insult than a distinction. It implies our Supreme Court evaluates a collateral estoppel jury instruction not on its content but its timing. If not yet given—then improper. If already given, then proper. Enough said.
Gutierrez misunderstood the record. Gutierrez states: “To the extent that he did not testify at his attempted murder trial and wishes to do so in the instant trial, the court’s ruling would also preclude him from presenting evidence and defenses which, for whatever reason, may not have been presented at the prior trial.” (Gutierrez v. Superior Court, supra, 24 Cal.App.4th at p. 169.)
First, petitioner did fully testify at his attempted murder trial, did present evidence, and did offer a defense: I didn’t see or get on a motorcycle and I didn’t shoot Sandra Zarate.
Second, for collateral estoppel purposes, it is irrelevant that a defendant chose not to testify. (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., supra, 58 Cal.2d 601, 607.)
Gutierrez would never apply collateral estoppel against a criminal defendant. A fair reading of Gutierrez is it would never apply collateral estoppel against a criminal defendant. As such it is irreconcilable with Teitelbaum, People v. Majado, and People v. Ford.
Conclusion
For these reasons, quite different from the majority, I would deny the petition.
Petitioner’s application for review by the Supreme Court was denied April 30, 1997. Kennard, J., was of the opinion that the application should be granted.
See People v. Gutierrez (1992) 10 Cal.App.4th 1729 [13 Cal.Rptr.2d 464] and People v. Gutierrez (Super. Ct. L.A. County, 1990, No. KA016953) (Evid. Code, §§ 452, 455, 459).
Prompted, petitioner notes, by Chief Justice Lucas’s musing about “the numerous and formidable practical difficulties” (People v. Fields (1996) 13 Cal.4th 289, 307 [52 Cal.Rptr.2d 282, 914 P.2d 832]) if a defendant who had been convicted of a lesser included offense could thereafter be tried for the greater offense. Chief Justice Lucas wondered “what becomes of the first conviction if the second jury acquits on the greater offense without convicting on the lesser offense? A defendant would appear to have a good argument that he is entitled to the double jeopardy effect of this acquittal, notwithstanding the previous, now inconsistent, conviction on the lesser offense.” (Id. at p. 307, fn. 5.)
If so, can one imagine a more demeaning “justice” spectacle? Or perhaps, as with other spectacles, we have a tiebreaker: best out of three.
Law of the case is a procedural not jurisdictional doctrine (England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 795 [97 P.2d 813]), concerns only issues of law not fact (People v. Shuey (1975) 13 Cal.3d 835, 842 [120 Cal.Rptr. 83, 533 P.2d 211]), and does not apply when there has been “a manifest misapplication of existing principles.” (People v. Shuey, supra, 13 Cal.3d 835, 846; Jeffries v. Wood (9th Cir. 1996) 75 F.3d 491, 493.)
A not guilty verdict denotes only a reasonable doubt of guilt, not a determination of innocence.
Even when the car owner had not been charged or convicted, only his son had been convicted of marijuana possession.