People v. Nunez

• Decision Date: 10 July 1986
• Citation: 228 Cal.Rptr. 64,183 Cal.App.3d 214
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joe NUNEZ, Jr., Defendant and Appellant. Crim. F002058.

Page 64

228 Cal.Rptr. 64

183 Cal.App.3d 214

The PEOPLE, Plaintiff and Respondent, v. Joe NUNEZ, Jr., Defendant and Appellant.

Crim. F002058.

Court of Appeal, Fifth District, California.

July 10, 1986.

Certified for Partial Publication ^*

Review Denied Oct. 16, 1986.

Review Denied Oct. 30, 1986.

[183 Cal.App.3d 216] James F. Johnson, under appointment by the Court of Appeal, San Francisco, for defendant and appellant.

[183 Cal.App.3d 217] John K. Van de Kamp, Atty. Gen., Edmund D. McMurray and Richard Thomson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

BEST, Associate Justice.

Defendant Joe Nunez, Jr., was convicted of count I, conspiracy to commit murder for financial gain (PEN.CODE, §§ 182¹, 187, 190.2, subd. (a)(1)), and count II, first degree murder ( § 187). The jury found to be true the special-circumstance allegation that the murder was intentional and carried out for financial gain ( § 190.2, subd. (a)(1)). An allegation that defendant personally used a firearm in the commission of the murder within the meaning of sections 12022.5 and 1203.06, subdivision (a)(1), was found by the jury to be untrue. In a bifurcated trial, the trial court subsequently found that defendant had previously been convicted of one violent felony within the meaning of sections 667.5, subdivision (a), and 667.6.

For his convictions of conspiracy to commit murder and first degree murder, defendant was sentenced to concurrent terms of life imprisonment without possibility of parole. A three-year enhancement was imposed pursuant to section 667.5 and ordered to be served prior to the life term. For reasons hereafter stated, we reject defendant's multiple contentions of reversible error and affirm the judgment.

THE FACTS ^**

DISCUSSION

I

Does collateral estoppel bar defendant's convictions for conspiracy to commit murder and murder?

Pursuant to defendant's request, we take judicial notice of the following matters:

Jo Ann Johnson and Manuel Medina Galvan (Medina) were each tried separately for conspiring with one another and defendant to murder Dwayne Johnson and for murdering Mr. Johnson;

Jo Ann Johnson was tried by jury in San Luis Obispo County and on September 1, 1981, found not guilty of the charged offenses but guilty of the lesser included offenses of conspiracy to commit voluntary manslaughter and voluntary manslaughter, together with a finding that she was a principal and was armed with a firearm during the commission of said crime;

Although finding Mrs. Johnson not guilty of murder, which normally alleviates the duty to find on a special-circumstance charge, the jury found the charged special circumstance (that the murder was intentional and carried out for financial gain) to be untrue;

Medina was tried in Santa Barbara County by jury and on June 4, 1982, found not guilty of the charged offenses but guilty of the lesser offenses of conspiracy to commit voluntary manslaughter and voluntary manslaughter, together with a finding that he was armed with a firearm but did not personally use a firearm during the commission of the homicide.

Defendant contends that the acquittal of his alleged coconspirators, Jo Ann Johnson and Manuel Medina, of the charges of conspiracy to commit murder and murder compels reversal of his convictions for these same crimes. His contention is premised upon the applicability of the doctrine of collateral estoppel. For reasons that follow, we reject defendant's contention.

A. Collateral estoppel as applied to defendant's conviction for conspiracy to commit murder.

When two or more alleged coconspirators are jointly tried, it is generally held that acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. This result is compelled by the rule of consistency of verdicts because, as Justice Cardoza once noted, "It is impossible in the nature of things for a man to conspire with himself." (Morrison v. California (1934) 291 U.S. 82, 92, 54 S.Ct. 281, 285, 78 L.Ed. 664; see People v. James (1961) 189 Cal.App.2d 14, 16-17, 10 Cal.Rptr. 809; see also Annot. (1983) 19 A.L.R.4th 192, 198-201.)

There is a division of authority as to whether this rule of consistency of verdicts will apply to alleged coconspirators who are tried separately.

The following cases applied the rule even though the acquittals of all alleged coconspirators were in separate trials. (Romontio v. United States (10th Cir.1968) 400 F.2d 618; People v. Levy (1939) 299 Ill.App. 453 .)

Other courts, however, have refused to extend the rule to the separate trial situation. (People v. Holzer (1972) 25 Cal.App.3d 456, 102 Cal.Rptr. 11; Rosecrans v. United States (5th Cir.1967) 378 F.2d 561; Com. v. Byrd (1980) 490 Pa. 544 ; Gardner v. State (1979) 286 Md. 520 ; Platt v. State (1943) 143 Neb. 131 .)

Thus, in People v. Holzer, supra, 25 Cal.App.3d 456, 102 Cal.Rptr. 11, Holzer contended that his conviction for conspiracy to violate section 245 should be reversed because his alleged coconspirator was acquitted subsequently of the same charge. The court held:

"Defendant's first contention on appeal is that his conviction for conspiracy must be reversed because the only other conspirator named in the indictment, Merrill Shapiro, was later acquitted. This argument derives from the rule that the crime of conspiracy necessarily requires the participation of at least two people, and where the guilt of only one is shown, the crime is incomplete. (People v. Reeves, 250 Cal.App.2d 490, 492 ; People v. James, 189 Cal.App.2d 14, 15-16 [10 Cal.Rptr. 809, 91 A.L.R.2d 697].) This rule is a logical imperative where all conspirators are tried together. Where separate trials are had this reasoning loses its force.

"If a single jury trying X and Y for conspiracy were to find that X conspired with Y, but that Y did not conspire with X, the verdict could not stand. (See Lubin v. United States, 313 F.2d 419, 423; People v. Reeves, supra, 250 Cal.App.2d 490, 492.) But a jury trying X alone, can find that X and Y were co-conspirators and can properly convict X. (People v. Sagehorn, 140 Cal.App.2d 138, 146 ; United States v. Koritan, 182 F.Supp. 143, 145, affd. 283 F.2d 516.) The fact that Y is later acquitted of conspiring with X by a different jury on a different presentation of evidence, cannot affect the validity of the first conviction. (See 91 A.L.R.2d 704; 16 Am.Jur.2d, Conspiracy, § 33, pp. 144-145.)" (People v. Holzer, supra, 25 Cal.App.3d at pp. 459-460, 102 Cal.Rptr. 11.)

In United States v. Espinosa-Cerpa (5th Cir.1980) 630 F.2d 328, the court, on facts similar to those in the case at hand, held that the rule of consistency of verdicts would not preclude the defendant's conviction of conspiracy even though all of his alleged coconspirators had been previously acquitted in a separate trial. The court pointed out that different evidence might have been presented in the two trials or that the two juries, quite reasonably, might have taken different views of the same evidence.

In People v. Superior Court (Jackson) (1975) 44 Cal.App.3d 494, 118 Cal.Rptr. 702, Jackson, Jones and Finch were charged with conspiracy to commit robbery. Jones and Finch were tried and acquitted of the crime charged. The court, although agreeing that "the consistency rule has no applicability to the situation in which coconspirators' trials are severed," (id. at p. 500, 118 Cal.Rptr. 702), nevertheless, held that collateral estoppel precluded Jackson's prosecution for conspiracy to commit robbery. The court reasoned that, by definition, a conspiracy is an agreement and requires the concurrence of at least two parties. (Id. at p. 498, 118 Cal.Rptr. 702.) Jackson, by definition, could not have committed the conspiracy unless he engaged in a conspiracy with Jones and Finch. Jackson could not have committed a criminal conspiracy alone. Since the state already had failed to establish Jones and Finch conspired with Jackson to commit a robbery, the prosecution was precluded by collateral estoppel from charging Jackson with conspiracy to commit robbery. (Id. at pp. 500-503, 118 Cal.Rptr. 702.)

In addition to Jackson, defendant principally relies on People v. Taylor (1974) 12 Cal.3d 686, 117 Cal.Rptr. 70, 527 P.2d 622 to support his contention that collateral estoppel precludes his conviction for conspiracy to commit murder. In that case Taylor and two other men, Daniels and Smith, planned to rob a liquor store. Taylor remained in the car and was the getaway man. Daniels and Smith entered the store, and when they tried to rob the victim owners at gunpoint, one of the victims shot and killed Smith. Daniels fled from the scene. Taylor was convicted of first degree murder of Smith and robbery of the store owners. Previously, Daniels had been tried separately and convicted of robbery but acquitted of murder.

The Supreme Court held Taylor, as the getaway man, could only be guilty of murdering Smith if, on the theory of vicarious liability, it appeared that Smith and Daniels harbored malice aforethought in robbing the store. It further found the People had failed to establish at Daniels's trial that either Daniels or Smith entertained malice aforethought. The Supreme Court held the People were collaterally estopped from relitigating the issue of Daniels's or Smith's state of mind in Taylor's trial. However, the Supreme Court specifically limited its holding "to the particular circumstances of the instant case where an accused's guilt must be predicated on his vicarious liability for the acts of a previously acquited [sic ] confederate." (People v. Taylor, supra, 12 Cal.3d at p. 698, 117 Cal.Rptr. 70, 527 P.2d 622.)

The guilt of a conspirator is not predicated upon vicarious liability, but rather upon "interdependent or joint responsibility." (People v. Superior Court (Jackson), supra, 44 Cal.App.3d at p. 502, 118 Cal.Rptr. 702.) Taylor, therefore, does not compel application of...