Gutierrez v. Superior Court

• Decision Date: 15 April 1994
• Docket Number: No. B078255,B078255
• Citation: 29 Cal.Rptr.2d 376,24 Cal.App.4th 153
• Court: California Court of Appeals Court of Appeals
• Parties: Abraham GUTIERREZ, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The PEOPLE of the State of California, Real Party in Interest.

Page 376

29 Cal.Rptr.2d 376

24 Cal.App.4th 153

Abraham GUTIERREZ, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent;

The PEOPLE of the State of California, Real Party in Interest.

No. B078255.

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

April 15, 1994.

Review Denied Aug. 11, 1994.

[24 Cal.App.4th 155] H. Russell Halpern, North Hollywood, for petitioner.

No appearance, for respondent.

Gil Garcetti, Dist. Atty., Patrick D. Moran and Brent Riggs, Deputy Dist. Attys., for real party in interest.

LILLIE, Presiding Justice.

Petitioner, defendant in a criminal prosecution for murder of Sandra Zarate, challenges an order of the trial court barring him from litigating the issues of identity and intent on the ground that a prior final judgment of conviction for attempted murder of Zarate ¹ collaterally estops him from doing so, leaving for the jury only the issue of whether petitioner's shooting of Zarate caused her death.

Petitioner contends that the prosecution's assertion of the doctrine of collateral estoppel denies him his constitutional right to jury trial and to due process of law as guaranteed by both the federal and state constitutions.

FACTUAL AND PROCEDURAL BACKGROUND

According to our opinion on petitioner's prior appeal of his attempted murder conviction, petitioner was at a friend's house drinking beer with 30 to 40 of his acquaintances when Zarate and three others drove by; petitioner and his friends threw beer cans and shouted gang slogans as the car passed; petitioner pursued the car on a motorcycle; while a second person drove the motorcycle, petitioner sat on the back with a gun and shot Zarate in the head.

Petitioner's defense was mistaken identity; two defense witnesses testified that petitioner was not the shooter. The jury found petitioner guilty of discharging a gun into an occupied motor vehicle (count 2) and attempted murder (count 1), but found the attempt to commit murder was not willful, deliberate, and premeditated; the jury also found true the allegations that petitioner personally used a firearm and intentionally and personally inflicted great bodily injury on Zarate. Petitioner was sentenced 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.

After Zarate's death in January 1993, the People filed in July 1993 an information charging petitioner with murder. At a pretrial conference on August 4, 1993, the prosecutor informed the court that the People would be seeking a jury instruction that the only issue to be decided is whether Zarate's death was caused by a gunshot wound to her head, as the issue of the identity of the shooter had been established by the prior judgment and the doctrine of collateral estoppel barred petitioner from relitigating that issue. On August 16, 1993, the People filed a written Motion re Collateral Estoppel, seeking to preclude petitioner from litigating the issues of his identity as the shooter and his intent to kill. The motion argued that the principle of collateral estoppel justified the court "in instructing the jury that [petitioner] was found guilty in a prior proceeding of inflicting great bodily harm upon Ms. Zarate as a result of discharging a firearm into an occupied motor vehicle, with the intent to kill her, and that said criminal conviction is an element of the present charge of second degree murder, which need not be relitigated."

Petitioner filed written opposition to the motion, which was orally argued on August 20, 1993.

In granting the prosecution's motion, the court stated that it read the verdict forms of the prior attempted murder case, and "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. That's the way I see it.... [p] ... I'm ruling that the defendant is collaterally estopped from relitigating the issue of whether he caused great bodily harm to Miss Zarate as a result of discharging a firearm at an occupied motor vehicle with the intent to kill Miss Zarate."

Petitioner filed timely petition for writ of prohibition challenging the August 20, 1993 order. After we denied the petition, petitioner sought review in the Supreme Court, which granted review and transferred the matter to us with directions to vacate our order denying prohibition and to issue an alternative writ. We vacated our prior order and issued alternative writ of prohibition; real party in interest filed a return and answer; petitioner filed a reply to return; oral argument has been had thereon.

I GENERAL PRINCIPLES OF COLLATERAL ESTOPPEL

"Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. 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." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, 272 Cal.Rptr. 767, 795 P.2d 1223; fn. omitted.)

"Even assuming all the threshold requirements are satisfied, however, our analysis is not at an end. We have repeatedly looked to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting. [Citation.] As the United States Supreme Court has stated, 'the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a nineteenth century pleading book, but with realism and rationality.' (Ashe v. Swenson (1970) 397 U.S. 436, 444, 475, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469)." (Lucido v. Superior Court, supra, 51 Cal.3d at pp. 342-343, 272 Cal.Rptr. 767, 795 P.2d 1223.) Thus, collateral estoppel is not an inflexible, universally applicable principle; policy considerations may limit its use where the limitation on relitigation underpinnings of the doctrine are outweighed by other factors. (Id. at p. 343, 272 Cal.Rptr. 767, 795 P.2d 1223.)

"Accordingly, the public policies underlying collateral estoppel--preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation--strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy." (Lucido v. Superior Court, supra, 51 Cal.3d at p. 343, 272 Cal.Rptr. 767, 795 P.2d 1223.)

In deciding whether the doctrine is applicable in a particular situation a court must balance the need to limit litigation against the right of a fair adversary proceeding in which a party may fully present his case. (People v. Taylor (1974) 12 Cal.3d 686, 695, 117 Cal.Rptr. 70, 527 P.2d 622.)

The instant case must be distinguished from those situations in which a criminal defendant invokes collateral estoppel as a defense or as a bar to a subsequent prosecution. ² Rather, the instant case involves the

assertion of the doctrine by the prosecution to limit petitioner's ability to contest at his trial for murder those issues which were adjudicated against him by the jury on his prior trial and conviction for attempted murder. Although the parties do not bring to our attention any California case on all fours with this one, they discuss cases in our courts and in other jurisdictions wherein the prosecution sought to invoke the doctrine of collateral estoppel against a criminal defendant. Because the United States Supreme Court has adverted to the mutuality aspect of collateral estoppel in criminal cases, even if only in dictum, we believe a discussion of this issue is helpful in developing a conceptual framework to address the issue presented in this case. "The principles articulated in federal courts concerning the doctrine of collateral estoppel are equally pertinent to state court matters." (People v. Nunez (1986) 183 Cal.App.3d 214, 224, 228 Cal.Rptr. 64.)

II MUTUALITY REQUIREMENT

In United States v. Carlisi (E.D.N.Y.1940) 32 F.Supp. 479, the court quoted at length from a "very interesting, instructive, and well-considered editorial on the subject, 'Res Judicata With Respect to Criminal Judgments' " (id. at p. 482), written by an attorney, Harry G. Anderson, and appearing in the New York Law Journal in December 1939: " 'The courts have frequently referred to the principle of res judicata in criminal cases. In transplanting the doctrine, however, to criminal law the requirement of mutuality had to be abandoned. A prior adjudication with respect to an element of a subsequently tried offense is not binding upon the accused. This is so because the defendant, charged with crime, always has the right to have the jury or the triers of the facts determine anew every element of guilt. People v. Kief, 126 N.Y. 661, 663, 27 N.E. 556; People v. Walker, 198 N.Y. 329, 334, 91 N.E. 806. For this reason doubt has been expressed as to whether the doctrine known to the civil law as res judicata is applicable to criminal cases. [Citation.] [p] In a more precise sense the rule of res judicata as applied in civil law cannot be said to have an exact counterpart in criminal law. There is, however, a rule of estoppel in criminal law akin to res judicata. As thus used it is a "rule of evidence" which accords to the accused the right to claim finality with respect to a fact or group of facts previously determined in his favor upon a previous trial.' " (32 F.Supp....