Gutierrez, In re

• Decision Date: 15 January 1997
• Docket Number: No. B103860,B103860
• Citation: 60 Cal.Rptr.2d 332,51 Cal.App.4th 1704
• Parties: , 97 Cal. Daily Op. Serv. 404, 97 Daily Journal D.A.R. 597 In re Abraham GUTIERREZ on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

Page 332

60 Cal.Rptr.2d 332

51 Cal.App.4th 1704, 97 Cal. Daily Op. Serv. 404,

97 Daily Journal D.A.R. 597

In re Abraham GUTIERREZ on Habeas Corpus.

No. B103860.

Court of Appeal, Second District, Division 7, California.

Jan. 15, 1997.

Review Denied April 30, 1997.

[51 Cal.App.4th 1706] H. Russell Halpern, under appointment by the Court of Appeal, N. Hollywood, for Petitioner Abraham Maltide Gutierrez.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendlin Pollack, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Alene M. Games, Deputy Attorney General, for Respondent.

JOHNSON, Associate Justice.

In this habeas corpus proceeding petitioner asks this court to vacate his conviction for attempted murder after his subsequent prosecution for murder of the same victim and arising out of the same event resulted in three mistrials and a dismissal of all homicide charges. The prosecution filed the murder charges because the victim had died after petitioner's conviction for attempted murder. In an earlier opinion, this court ruled collateral estoppel did not bar petitioner from relitigating in the murder trial several issues the jury had decided in the attempted murder case. In this proceeding, we conclude the order allowing relitigation of those issues in the murder trial did not constitute a "new trial" of the attempted murder case and thus deny the writ.

FACTS AND PROCEEDINGS BELOW

In 1990, the People charged petitioner with discharging a gun into an occupied motor vehicle (count 2) and the attempted first degree murder of Sandra Zarate (count 1). Petitioner's defense was mistaken identity. The jury found petitioner guilty of both counts but found the attempt to commit murder was not willful, deliberate and premeditated; the jury also found petitioner personally used a firearm and intentionally and personally inflicted great bodily injury on Zarate. The trial court sentenced petitioner to state prison for a total term of 18 years and 8 months. The judgment was affirmed on appeal in People v. Gutierrez (1992) 10 Cal.App.4th 1729, 13 Cal.Rptr.2d 464.

Zarate died in January 1993, apparently from the wounds sustained in petitioner's attack. The People then filed an information charging petitioner with murder. On August 16, 1993, the People filed a written motion re collateral estoppel, seeking to preclude petitioner from litigating again the issues of his identity as the shooter and his intent to kill. The superior court, in finding in favor of the prosecution, stated: "I've seen the findings that [the jury] made, and ... the jury has decided these issues, that the defendant had express malice aforethought, that he did the shooting. The only issue is whether or not what he did caused the death."

Petitioner sought a writ of prohibition with this court challenging the August 20, 1993, order. After we denied the order, petitioner sought review with the Supreme Court. On November 10, 1993, the Supreme Court granted review and transferred the matter to us with instructions to vacate our prior order and to issue an alternative writ. On April 15, 1994, in a published opinion titled Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153, 29 Cal.Rptr.2d 376, we granted the writ of prohibition, directing the superior court to vacate its August 20, 1993, ruling, and to enter an order denying the prosecution's motion re collateral estoppel.

In the months that followed, petitioner was tried on second degree murder charges for the murder of Sandra Zarate at three separate trials. Each trial ended in a mistrial due to the jury's failure to reach a unanimous verdict. Following the third trial, the People moved for dismissal in the interest of justice. The trial court granted the motion.

Petitioner is presently in custody pursuant to a judgment and conviction in Los Angeles Superior Court Case No. KA004789. He first sought relief by habeas corpus on July 9, 1996, filing a writ of habeas corpus with the superior court. The writ was denied. Petitioner filed this petition on July 22, 1996, challenging the validity of his prior conviction on grounds the subsequent trial for murder acted as a new trial on his prior conviction for attempted murder. Petitioner contends the subsequent proceedings operated to set aside the earlier conviction as a matter of law and therefore he should be released.

DISCUSSION

In Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153, 169-170, 29 Cal.Rptr.2d 376, we held the preservation of the petitioner's right to a jury trial outweighed policy considerations favoring application of the doctrine of collateral estoppel. We found inherent in petitioner's constitutional right to jury trial, the right to present evidence and defenses he may not have presented at this prior trial. Therefore, the prosecution could not apply the doctrine to limit petitioner's ability to relitigate issues the jury adjudicated against him at his prior trial for attempted murder. (24 Cal.App.4th at pp. 169-170, 29 Cal.Rptr.2d 376.) Petitioner maintains the necessary effect of our holding was to grant him a new trial on his prior conviction for attempted murder. We disagree.

I. THIS COURT DID NOT ORDER A NEW TRIAL BY ALLOWING PETITIONER TO RELITIGATE ISSUES DETERMINED AT HIS PRIOR TRIAL

"A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given." ( Pen.Code, § 1179.) Petitioner maintains that each time the charge for second degree murder was tried, the same issues of identity and intent were reexamined within the contemplation We find it unnecessary to reach the issue of whether it was within this court's discretion to grant a new trial of the attempted murder at the time it considered the prior writ. What is clear is that we did not do so. By providing petitioner the opportunity to relitigate in his murder trial issues decided at his trial for attempted murder, it was neither our intent nor within the terms of the writ we issued to order a new trial for the prior conviction. In Gutierrez v. Superior Court, supra, 24 Cal.App.4th at p. 163, 29 Cal.Rptr.2d 376, we recognized some of the issues decided by the prior judgment may be identical to those sought to be relitigated at petitioner's subsequent trial for murder. We further acknowledged the risk posed to the integrity of the prior judgment by the possibility of an inconsistent verdict. However, we concluded the need for consistency in criminal trials is outweighed by petitioner's right to a full determination of the factual issues in the second trial. (24 Cal.App.4th at pp. 169-170, 29 Cal.Rptr.2d 376, citing Lucido v. Superior Court (1990) 51 Cal.3d 335, 347, 272 Cal.Rptr. 767, 795 P.2d 1223.) We also pointed out a contrary decision would undermine public confidence in the judicial system. (Gutierrez v. Superior Court, supra, 24 Cal.App.4th at pp. 169-170, 29 Cal.Rptr.2d 376.)

                of section 1179 1.  In doing so, petitioner overlooks section 1181 which sets forth the necessary prerequisites to an order for new trial providing, "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial."  ( Pen.Code, § 1181, italics added.)   With limited exceptions, the court may not grant a new trial on its own motion.  (See  People v. Skoff (1933) 131 Cal.App. 235, 240, 21 P.2d 118;  cf., People v. Knutte (1896) 111 Cal. 453, 44 P. 166 [court may set aside a verdict for insufficiency of the evidence and grant the defendant a new trial].)  In any event, this court did not expressly order a new trial of the attempted murder case in its prior decision
                

After reviewing the issues presented for our consideration and a careful reading of our prior opinion, we find no support for the proposition a subsequent mistrial on the murder charge disturbs the prior conviction for attempted murder. Our prior ruling only held the first trial for attempted murder did not have collateral estoppel effect in the second trial for murder. Our research has not uncovered any case which holds a decision denying collateral estoppel in a second proceeding somehow invalidates or opens up for relitigation the judgment in the first proceeding. It is axiomatic the decision about whether issues resolved in the first case also determine issues in the second case only affects the litigation of the second case, not the integrity of the judgment in the first. Thus, in our prior opinion, we neither held nor intended our denial of collateral estoppel in the murder prosecution to influence in any way the validity of the attempted murder judgment.

We further observe we need not decide the more difficult issue in this case. The jury in petitioner's subsequent trial for murder did not acquit him of murder. Nor did the they find the elements of murder or the issues previously decided to be untrue. None of the three juries could reach unanimous verdicts of guilt. There are many possible explanations for these three hung juries that having nothing to do with petitioner's guilt of the attempted murder. The state prosecuted a murder where the shooting occurred nearly five years earlier. Witnesses' faulty memories may have appeared less credible to the jury. Or the jurors might have believed petitioner was the gunman, but an intervening factor caused the death. Thus, in this case, a mistrial on the murder charge is not necessarily inconsistent with a conviction for attempted murder. As respondent aptly notes, verdicts should not be upset by speculative inquiry. (Dunn v. United States (1932) 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356.)

Petitioner directs our attention to In re Crow (1971) 4 Cal.3d 613, 94 Cal.Rptr. 254, 483 P.2d 1206, in support of the proposition our order granting his writ of prohibition was an order for new trial for attempted murder. In Crow, the petitioner filed a petition for writ of...