People v. Pettaway

• Decision Date: 29 December 1988
• Docket Number: No. A037224,A037224
• Citation: 254 Cal.Rptr. 436,206 Cal.App.3d 1312
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. James PETTAWAY, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 436

254 Cal.Rptr. 436

206 Cal.App.3d 1312

The PEOPLE of the State of California, Plaintiff and Appellant, v. James PETTAWAY, Defendant and Respondent.

No. A037224.

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

Dec. 29, 1988.

Review Denied April 20, 1989.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John Sugiyama, Asst. Atty. Gen., David D. Salmon, Supervising Deputy Atty. Gen., Blair W. Hoffman, Deputy Atty. Gen., San Francisco, for plaintiff and appellant.

Robert K. Calhoun, Jr., Executive Director, Renee E. Torres, Staff Atty., Neoma Kenwood, Staff Atty., First District Appellate Project, San Francisco, for defendant and respondent. BENSON, Associate Justice.

Pursuant to Penal Code section 1238, subdivision (a)(8), the People appeal from the trial court's dismissal of a murder charge against defendant James Anthony Pettaway. We will reverse the judgment. In doing so we will disagree with People v. White (1986) 185 Cal.App.3d 822, 231 Cal.Rptr. 569, an opinion rendered by our colleagues in Division Five of this District. We hold that where a defendant has been convicted of first degree murder at his first trial and that conviction is reversed on appeal because of instructional error, the defendant may be retried as the murder perpetrator despite negative jury findings, at the first trial, on the personal use of a handgun and personal infliction of great bodily injury enhancement allegations.

Our summary of the pertinent underlying facts in this case is taken from an earlier unpublished appellate decision by Division One of this District following defendant's conviction of first degree murder and attempted murder. On May 1, 1981, defendant and his girlfriend Lawana Walker were at the home of Karen Taylor. Another man, Michael Seals, was also present. At some point, Lawana handed defendant a gun and defendant shot Michael in the back of the neck. Michael then fainted. When he regained consciousness, he saw defendant and Lawana leave through the front door. Karen's dead body was later found in the bathroom. She had been shot twice.

Defendant was charged with one count of murder and a second count of attempted murder. The information also alleged as enhancements, personal use of a handgun (Pen.Code, § 12022.5) and personal infliction of great bodily injury (Pen.Code, § 12022.7) during the commission of both offenses. The prosecution tried the case on the theory that defendant had been the perpetrator of both shootings. Neither party requested and the trial court initially did not give instructions on aiding and abetting. However, during the third day of deliberations the jury requested the following: "Please explain the law concerning complicity, for example, in this case may the defendant be convicted of murder or attempted murder without having personally fired the bullets?" The court, responding to this inquiry, then instructed in accordance with former CALJIC Nos. 3.00 and 3.01. Thereafter, the jury returned verdicts of guilty for both the first degree murder and the attempted murder. With respect to the personal use of a handgun and great bodily injury allegations, the jury found them to be true as to the attempted murder but not true as to the murder.

On appeal, Division One of this court reversed defendant Pettaway's murder conviction for Beeman error (People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318), i.e., that the language of CALJIC 3.01 as it then existed "removed from the jury's consideration the issue of whether appellant shared in the intent to commit murder." The attempted murder conviction remained undisturbed.

On remand the public defender, relying principally on People v. White, supra, 185 Cal.App.3d 822, 231 Cal.Rptr. 569, moved to preclude the prosecutor from proceeding to trial on a theory that defendant shot Karen and from referring to defendant as the actual killer. The public defender argued that because the jury determined not true the enhancement allegations with respect to the murder charge, the principles of res judicata, collateral estoppel and/or equitable estoppel, double jeopardy and due process required that result. The trial court, determining that it was bound by People v. White, supra, agreed with the defendant's position and, since the prosecution refused to proceed on an aider and abettor theory, dismissed the murder count against defendant.

On appeal the People concede that defendant may not be retried on the enhancement allegations that the jury found not true. They contend, however, that the trial court erred in ruling that evidence demonstrating defendant was the actual perpetrator in Karen's killing could not be used when retrying the murder count. They argue that People v. White, supra, 185 Cal.App.3d 822, 231 Cal.Rptr. 569, was wrongly decided or at least distinguishable from the ruling below.

During the hearing of defendant's motion it was the prosecutor's position that he could not in good faith urge any theory to the trier of fact other than that defendant had shot and killed Karen. The prosecutor recited to the court the substance of the evidence available to support his position. A summary of that offer is as follows:

Michael's testimony that he saw defendant "secure possession of a handgun and walk behind him almost immediately preceding Michael being shot from behind;"

Michael's testimony that "he saw no other persons in the room, no other persons in the house other than himself, Karen ... [Lawana] ... and the defendant"; that "when he was shot ... he was looking at Karen Taylor who was alive and well and [Lawana] Walker";

ballistic testimony that "the expended cartridges found in the house were .32 caliber Winchester Western slugs. When [defendant] was arrested ... in the state of Texas ... he was found in possession of .32 caliber Winchester Western ammunition, seven cartridges to be exact";

testimony from defendant's employer that "... during the time of this particular incident ... [defendant] acknowledged being in possession of [the employer's] gun which, in fact, was the murder weapon";

circumstantial evidence "... that the same weapon [used to shoot Michael] was also the weapon that killed Karen Taylor";

that the "cartridges that [defendant's employer] kept with the gun, ... some of that ammunition was missing....";

that Lawana Walker, had given a tape recorded statement to the Oakland police department wherein she stated: "that she was present, and saw [defendant] go behind Michael Seals and shoot him from behind ... that [defendant] then chased Karen Taylor into a back room. [Lawana] remained in the dining room ... she heard approximately four shots and after approximately 10 or 15 minutes of silence ... she went to the bathroom and saw the defendant ... standing over Miss Taylor's body with the ... gun";

that while Lawana "had invoked the Fifth Amendment privilege" at the preliminary hearing and during the first trial, she "is presently available and willing to testify in accordance with the taped statement...."

Because we have profound disagreement with the holding reached by our colleagues in People v. White, supra, 185 Cal.App.3d 822, 231 Cal.Rptr. 569, a case concerning the identical issue we are called upon to address, it is appropriate to begin our discussion with a review of the White decision. The case involved a drug related double murder. Defendant White was apprehended, tried and convicted of two counts of first degree murder and firearm possession. However, the jury found the firearm use allegations not true. An appeal followed and the murder convictions were reversed due to the improper admission of hearsay testimony. The case was retried and the jury convicted White on both counts of first degree murder. White again appealed contending that the principles of collateral estoppel and res judicata prohibited his prosecution in the second trial as the actual killer. He argued that the trial court committed error in denying his motion to prohibit the prosecution from proceeding on the theory that he fired the fatal shots.

Division Five of this Court agreed with White's position and in analyzing the problem, stated: "The doctrine of collateral estoppel prevents the relitigation of issues decided between the parties in earlier proceedings upon which a judgment on the merits of the issues has become final. [Citations.] In the instant case, the issue of appellant's use of a gun in the commission of these particular homicides was litigated between the parties and decided finally in appellant's favor in the first trial. In the second trial the prosecution sought to relitigate the same issue. It argued that appellant was guilty of murder if he was 'the actual perpetrator, that it was Mr. Willie White out there who pulled the trigger on one of the firearms or both of them that killed these people.' Appellant's use of a gun was resolved adversely against the prosecution in the first trial, and should not have been relitigated in the second. The prosecution is not prevented from proceeding on the theory that appellant supplied the weapons or otherwise participated as a principal. (See Pen.Code, § 31.) What it cannot do is relitigate the fact of appellant's use of a gun in these homicides, since that issue was decided against it in the first trial. Principles of double jeopardy and due process which incorporate the doctrine of collateral estoppel preclude such action." (People v. White, supra, 185 Cal.App.3d at pp. 827-828, 231 Cal.Rptr. 569.)

As acknowledged in White, "... the doctrine [of res judicata] applies to criminal as well as civil proceedings.... [Sealfon v. United States (1948) 332 U.S. 575, 578, 68 S.Ct. 237, 239, 92 L.Ed. 180] ... [and] collateral estoppel [is] not only a requirement of due process, but included within the 'Fifth Amendment's guarantee against double jeopardy.' [Ashe v. Swenson (1970) 397 U.S. 436, 443-445, 90 S.Ct. 1189, 1194-1195, 25...