People v. Beltran

• Decision Date: 17 October 1949
• Docket Number: Cr. 4330
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. BELTRAN et al.

Page 238

210 P.2d 238

94 Cal.App.2d 197

PEOPLE v. BELTRAN et al.

Cr. 4330.

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

Oct. 17, 1949.

Fred N. Howser, Attorney General, Frank Richards, Deputy Attorney General, for the People.

Ellery E. Cuff, Public Defender, Richard F. Bird, Deputy Public Defender, Los Angeles, for respondent.

WILSON, Justice.

This is an appeal by the People from an order granting a new trial to defendant Jesus Deanda Moreno. Defendant is purportedly appealing from that portion of the order granting him a new trial 'in so far as said order denies him a new trial upon the issues raised by his pleas of not guilty.'

Defendants were charged in counts I and II of the information with robbery and in count III with kidnaping for the purpose of robbery. Each defendant pleaded not guilty to all counts and their joint trial before a jury resulted in verdicts finding defendants Beltran and Louis Moreno guilty on all three counts. As to defendant Jesus Deanda Moreno the jury disagreed on counts I and II (robbery) and found him not guilty on count III (kidnaping for the purpose of robbery).

The cause as to respondent Jesus Deanda Moreno was reset for trial on counts I and II, whereupon he entered the additional pleas of former acquittal and once in jeopardy. It was stipulated that these pleas raised no issues of facts but questions of law only for determination by the court. Both pleas were overruled and the cause went to trial by a jury before the Honorable Ranse R. Sischo. Respondent was found guilty on both counts. A motion for new trial was made upon all the grounds provided in section 1181 of the Penal Code, Judge Sischo having returned to his own county the motion was heard by the Honorable Paul Nourse.

Upon the hearing of the motion respondent stated there were four grounds upon which he was entitled to a new trial: (1) that the question of respondent's knowledge necessary to make him an abettor was res judicata and it was error to relitigate it at the second trial, this being the point presented by his pleas of former acquittal and once in jeopardy which had been discussed with Judge Sischo in chambers prior to their being overruled; (2) errors in instructions given to the jury; (3) misconduct of the district attorney in his argument to the jury; (4) errors of the court in its rulings on objections to questions asked by the district attorney on cross-examination of defendant's character witnesses.

In granting the motion for a new trial Judge Nourse made it clear that the motion was granted upon only one ground, stating: 'Motion for new trial will be granted solely upon the ground that the court erred in holding that the judgment of acquittal of kidnaping in the first trial under this information did not bar the People from presenting evidence upon the issue as to this defendant's participation in those crimes. I am granting the motion on that sole ground. I am not reviewing the other grounds assigned by the defendant, and am not reviewing the evidence. I am granting this motion on the sole ground stated.'

Respondent contends that he is not appealing from the order granting him a new trial but because of the fact that the trial court did not consider all the grounds set forth in his motion for new trial he has 'filed a cross-appeal from that portion of the order wherein it might be construed as a denial of a new trial as to some issues.' Section 1237 of the Penal Code sets forth those cases in which an appeal may be taken by the defendant. He cannot appeal from an order granting a motion for a new trial and his purported appeal from a portion thereof is unauthorized and therefore will be dismissed.

The evidence and the instructions to the jury in the first trial have by stipulation been made a part of the record on appeal. The undisputed evidence is that defendants Beltran and Louis Moreno entered a liquor store on East Foothill Boulevard about 4:30 in the afternoon; both were armed; they held up the proprietors, the accountant and a customer in the store and ordered them into the back room, a distance of about 25 feet; they took the money that was in the cash register and money from a secret hiding place which they intimidated one of the victims into revealing, one of whom was robbed of his wallet. While these two defendants were engaged in robbing the store respondent Jesus Deanda Moreno was in or near an automobile parked at the curb across the side street opposite the rear of the store. After the robbery Beltran and Louis Moreno left the store by the front door, proceeded around the southeast corner of the building, crossed the street to the car and were driven away by respondent. They left respondent's car when he made a boulevard stop almost a mile and a half from the liquor store and were shortly afterwards arrested in another car. Respondent was apprehended after he had proceeded a few blocks.

Respondent testified and denied all knowledge of the criminal intent of the other two defendants to rob the store. His story was supported by the testimony of his brother, Louis Moreno and that of Beltran. There is, however, other substantial evidence upon which a conclusion could be reached that respondent did have knowledge which would make him an abettor.

Res Judicata as Applied to Criminal Cases.

Respondent does not contend that the evidence does not support the verdict but maintains that the question of his guilty knowledge was determined by the jury at the first trial when it acquitted him of the charge of kidnaping and that the verdict was res judicata of that issue; that evidence as to this knowledge was improperly introduced by the prosecution at the second trial and without that evidence he could not have been convicted.

Appellant asserts that the question is governed by section 954 of the Penal Code as amended in 1927 and that each count which charges a separate and distinct offense must stand upon its own merits and disposition of one count has no bearing upon the verdict with respect to other counts contained in the information or indictment, citing People v. Ranney, 123 Cal.App. 403, 11 P.2d 405.

That section provides that 'A verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count.' However, although under this section each count stands on its own merits, if a defendant is acquitted on one and convicted on the other and the verdicts are irreconcilable, the latter verdict is void. People v. Novo, 12 Cal.App.2d 525, 527, 55 P.2d 915, 56 P.2d 560; In re Johnston, 3 Cal.2d 32, 36, 43 P.2d 541.

Unquestionably the crime of kidnaping is distinctly separate from that of robbery and proof of the former calls for other evidence than that necessary to prove the latter, People v. Bruno, 140 Cal.App. 460, 462, 35 P.2d 391 and cases cited, and a verdict of acquittal of the former would not be irreconcilable with a verdict of conviction of the latter. But conceding that the acquittal of kidnapping on count III is not an acquittal of any other count, and that each count which charges a separate and distinct offense must stand on its own merits, there is still the question whether upon trial for the separate offense any matter of law or fact which has necessarily been determined upon a prior trial between the same parties is res judicata. In other words, does the doctrine of res judicata apply in criminal cases as well as in civil?

The doctrine has been applied in California in criminal cases under different circumstances. In People v. Majado, 22 Cal.App.2d 323, 70 P.2d 1015, the defendant was prosecuted for failing to provide for a minor child, the offense having been committed after he had served a sentence for a previous failure to provide for the same child. His proferred defense that the child was not his was held res judicata, the court stating that there could have been no prior conviction in the absence of a judicial determination that the defendant was the father of the child. In Oliver v. Superior Court, 92 Cal.App. 94, 267 P. 764, the indictment contained 33 counts accusing the defendants of grand larceny and embezzlement and one of conspiracy. It was alleged that in furtherance of the conspiracy the defendants committed certain overt acts which were delineated as the same offenses as those charged in the first 33 counts. The jury acquitted some of the defendants of grand larceny and embezzlement but failed to agree on the conspiracy charge. These defendants brought proceedings in prohibition to prevent the superior court from retrying them for conspiracy upon the ground the subject matter of that count was res judicata. The court held that since the sole overt acts averred were larceny and embezzlement of which the petitioners had been acquitted, the remaining portion of the count charging conspiracy was insufficient to constitute criminal conspiracy and by finding that one of the overt acts charged as parts of the conspiracy had been committed the jury in effect acquitted the petitioners of the offense of conspiracy. See also In re Johnston, 3 Cal.2d 32, 43 P.2d 541.

In Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969, the court stated that the fundamental principle that a question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties is as applicable to the decisions of criminal courts as to those of civil jurisdictions.

In United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 69, 61 L.Ed. 161, 3 L.R.A. 516, the defendant was indicted for a conspiracy to conceal assets from a trustee in bankruptcy. The defendant in a so-called motion to quash, which was in substance a plea in bar, pleaded that upon a former indictment for the same offense there had been an adjudication that it was barred by the statute of limitations. The prosecution contended that the doctrine of res...