People v. Griffin, E011496

• Decision Date: 16 February 1994
• Docket Number: No. E011496,E011496
• Citation: 22 Cal.App.4th 801,27 Cal.Rptr.2d 721
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 22 Cal.App.4th 801, 27 Cal.App.4th 1338 22 Cal.App.4th 801, 27 Cal.App.4th 1338 PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Lee GRIFFIN, Defendant and Respondent.

Page 721

27 Cal.Rptr.2d 721

Previously published at 22 Cal.App.4th 801, 27 Cal.App.4th 1338

22 Cal.App.4th 801, 27 Cal.App.4th 1338

PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Lee GRIFFIN, Defendant and Respondent.

No. E011496.

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

Feb. 16, 1994.

Review Granted May 19, 1994.

Review Transferred to the Court of Appeal Jan. 19, 1995.

[27 Cal.App.4th 1340] Dennis Kottmeier, Dist. Atty., and Joseph A. Burns, Deputy Dist. Atty., for plaintiff and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., and Joan Killeen, Deputy Atty. Gen., as amici curiae for plaintiff and appellant.

Mark L. Christiansen, Granite Bay, under appointment by the Court of Appeal, for defendant and respondent.

TIMLIN, Associate Justice.

INTRODUCTION

The People appeal from an order dated April 24, 1992, by which the court, on its own motion, dismissed the action against Robert Lee Griffin (defendant) after the People announced that they were unable to proceed because an earlier court order prevented them from "showing the full extent of defendant's culpability" for the commission of the charged offense of first degree murder of

                Steven Ray Gibson. 1  The People's conclusion that they were unable to proceed came after Judge Kayashima did not rule on the People's motion that he reconsider Judge Ziebarth's earlier order restricting the People's proffering certain evidence that defendant was the actual perpetrator of the murder, i.e., evidence that defendant stabbed or cut Gibson's throat.  A jury in an earlier trial had found untrue the sentence enhancement [27 Cal.App.4th 1341] allegation that defendant had used a knife in the commission of the murder within the meaning of Penal Code section 12022, subdivision (b). 2  Judge Ziebarth excluded such evidence pursuant to the principle of collateral estoppel
                

FACTS

In 1982, defendant was charged by information with the murder of Steven Ray Gibson (Gibson), and it was further alleged that in the commission of the murder defendant "used a deadly weapon, to wit, a cutting and stabbing instrument commonly called a shank, within the meaning of Penal Code section 12022b." ³ The evidence presented at the first trial indicated that Gibson, an inmate of the California Institute for Men at Chino, died of multiple stab wounds to the back and windpipe, that the neck wounds were caused by a sharpened instrument, such as a knife, and that the back wounds were caused by a blunter instrument, such as a prison-made knife or shank, and that defendant, who was also an inmate, and another inmate, Junior Snyder (Snyder), used a knife and a blade fashioned from a light fixture to stab Gibson. There also was evidence that defendant stabbed Gibson in the throat while Snyder stabbed him in the back several times. Further, there was conflicting evidence that the murder was committed by two other inmates rather than by defendant and Snyder.

Defendant testified at the first trial that he was in the prison exercise yard at the time of the murder, but that he was not close to the location of the murder, and that he was not involved in the assault on the victim.

The majority of witnesses were fellow inmates of the victim and defendant, and there was evidence that the witnesses' gang affiliations had affected their testimony. The jury was given an instruction on aiding and abetting under the 1979 versions of CALJIC Nos. 3.00 and 3.01.

The jury returned a verdict finding defendant guilty of first degree murder, and found, as to the use allegation, that it was not true that defendant used a deadly weapon, to wit, a knife, in the commission of the murder. Defendant was sentenced to 25 years to life.

Defendant appealed, and his conviction was reversed, in an opinion in appeal No. E000068, for instructional error related to the aiding and abetting instructions. We noted in the opinion that the fact that the jury found not true the allegation that defendant had personally used a knife made it inferable that the jury had, in fact, convicted defendant under the theory of aiding and abetting.

In an amended information filed in 1986, defendant was charged in count 1 with conspiracy to murder Gibson and in count 2 with the first degree murder of Gibson. The information did not include a sentence enhancement allegation that defendant used a deadly weapon, to wit, a knife, in the commission of the murder (use of a knife).

In a second amended information filed in 1987, it was solely alleged that defendant murdered Gibson in the first degree, and in a third amended information filed shortly thereafter, it was solely alleged that defendant "did unlawfully aid and abet the killing" of Gibson, "with malice aforethought." No use of a knife allegation was made.

At the second trial, evidence that defendant had personally used a knife in the commission of the murder was introduced over defendant's objection. The evidence showed The evidence also indicated that defendant was involved in the manufacture of two knives which were used to slit the victim's throat as well as to stab him in the back and that defendant was part of the organizing effort to set up the circumstances which allowed the killing to take place. Those circumstances involved certain inmates distracting the victim and the guards, and defendant helping to transport the knives into the exercise yard where the killing took place. There was also evidence that defendant and another man used the knives to commit the murder, that defendant cut the victim's throat, and that defendant admitted to other inmates afterward that he killed and/or stabbed the victim.

that defendant and the victim were both inmates at the California Institution for Men at Chino, that both were members of the Aryan Brotherhood, that the victim had made derogatory comments about another prison gang, the Mexican Mafia, that members of the Brotherhood were approached by Mexican Mafia members about the victim's comments, that the Brotherhood agreed that the victim would be killed to appease the Mexican Mafia, and that defendant was involved in soliciting the agreement for the victim's murder.

Defendant testified at this second trial that he was not a member of the Aryan Brotherhood, that he barely knew the victim, had no reason to wish him dead, and that he was nowhere near the victim when the stabbing occurred.

Defendant was again convicted of first degree murder. He appealed, and we reversed the conviction because of the admission of prejudicial "other crime" evidence against him. Because of this basis for reversal, this court did not resolve other assignments of error which defendant raised in his brief, including the contention that the prosecution should have been precluded from putting on evidence of defendant's personal use of a knife in the commission of the crime because of the first jury's "not true" finding on the use of a knife allegation. However, in our opinion in appeal No. E004690, we cautioned the prosecutor that in attempting to prove that defendant aided and abetted the murder, as charged in the third amended information, it would be wise to prove it by evidence other than that defendant had personally stabbed the victim. ⁴

In 1990, after defendant's second conviction for the murder of Gibson was reversed, defendant made a motion to prevent the prosecution from entering evidence at the third trial to show that he was "the stabber." The People opposed this motion and made its own motion to be allowed to introduce such evidence.

On August 31, 1990, the trial court (specifically, Judge Ziebarth) granted defendant's motion and impliedly denied the People's motion. On October 10, 1990, Judge Ziebarth made the following written order excluding specific evidence related to defendant's stabbing of the victim:

"Inmate Ben Langwick

"Mr. Griffin reached around and cut his throat with the knife.

"I saw Griffin take the knife out of the sack and cut Gibson's throat. He, Griffin, reached over with his right hand, I'm not sure what he did with [the] left, started right about here (indicating) and pulled it around. Going underneath the left ear and pulled it all the way around give or take an inch or two. Knife Griffin used to cut Gibson's throat was the street knife.

"Inmate Roger Wiersma

"I saw Griffin cut T-Bone's (victim Gibson) throat. I believe Griffin put his left hand on Gibson's shoulder and reaching around and cutting his throat ear to ear.

"Inmate Robert Rice

"He stabbed the victim in the neck, severing his jugular vein.

"Inmate Sam McCart

"A day or two after the killing defendant told me the knife he used was in a lunch sack. He told me he had cut Gibson's throat.

"Inmate Rick Rose

"Griffin told me he cut Gibson's throat.

"Inmate Clifford Smith

"... and cut his throat. The defendant said the knife he cut Gibson's throat with was a street knife.

"IT IS ALSO ORDERED that the Court will give the following special jury instruction: There may be evidence presented that the defendant had a knife in the vicinity of the victim just before the killing; however, as a matter of law you are instructed you must find he is not the stabber."

After the filing of this order, the People, in November 1990, petitioned this court by an application for writs of mandate and prohibition to review this order excluding evidence of defendant's stabbing of the victim. The petition was denied.

In March 1992, ⁵ the People appeared before Judge Kayashima at the outset of trial and moved that he reconsider Judge Ziebarth's 1990 order excluding evidence that defendant personally used a knife to stab or cut the victim. The People also stated that if the court were to stand by Judge Ziebarth's earlier ruling, the People would be prevented from showing defendant's guilt as a principal, and they would be...