People v. Superior Court (Jackson)

• Citation: 44 Cal.App.3d 494,118 Cal.Rptr. 702
• Court: California Court of Appeals
• Decision Date: 14 January 1975
• Parties: The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN BERNARDINO, Respondent; Harold Eugene JACKSON, Real Party in Interest. Civ. 13718.

Page 702

118 Cal.Rptr. 702

44 Cal.App.3d 494

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN BERNARDINO, Respondent;

Harold Eugene JACKSON, Real Party in Interest.

Civ. 13718.

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

Jan. 14, 1975.

[44 Cal.App.3d 497] Lowell E. Lathrop, Dist. Atty., and Kenneth L. Kloepfer, Deputy Dist. Atty., for petitioner.

James H. McDaniel, Pomona, for real party in interest.

No appearance for respondent.

OPINION ON HEARING

KERRIGAN, Associate Justice.

This case presents the novel question of whether a person accused of conspiracy can lawfully be tried when all his alleged co-conspirators have been acquitted of the charge.

On February 15, 1972, Harold Eugene Jackson ('Defendant'), Michelle Jones and Benny Finch ('Codefendants') were held to answer upon a felony complaint.

On February 18, 1972, an information was filed charging Jackson, Jones and Finch with conspiracy to commit robbery (Pen.Code, § 182), robbery (Pen.Code, § 211), and murder (Pen.Code, § 187).

On April 26, 1972, the court severed the trial of defendant from that of Jones and Finch.

In May 1972, defendant was tried and convicted on all counts of the information, including the conspiracy charge.

In June 1972, Jones and Finch were tried and acquitted of all charges, including the conspiracy count.

Defendant appealed his conviction. For reasons not pertinent to the issue raised in this review, this court reversed the judgment of conviction by virtue of an unpublished majority decision handed down in February 1974.

The People once again proceeded against defendant on the charges contained in the February 18, 1972 information. In May 1974, defendant moved to dismiss the conspiracy count of the information. On June 3, 1974, the motion was granted.

The prosecution then sought extraordinary relief for the purpose of having the order of dismissal vacated and we issued an alternative writ for the purpose of reviewing the integrity of the court's order dismissing the conspiracy count.

A criminal conspiracy is a combination for an unlawful purpose. (Pen.Code, § 182; Perkins, Criminal Law (2d ed. 1969) 614; 1 Witkin, California Crimes (1963) § 105 at p. 99.) By definition, a conspiracy is an agreement; the perpetration of the crime requires--indeed, consists in--the proscribed concurrence of at least two parties. (People v. Reeves, 250 Cal.App.2d 490, 58 Cal.Rptr. 518; People v. James, 189 Cal.App.2d 14, 10 Cal.Rptr. 809; Perkins, Criminal Law (2d ed. 1969) 622; 1 Witkin, California Crimes (1963) § 109 at p. 105; 'Developments in the Law--Criminal Conspiracy,' 72 Harv.L.Rev. 920, 949.)

Where all of the alleged participants in leged conspirators were severed; Jones and Finch were acquitted of the charged crime before the present information was filed. Defendant Jackson claims that the exoneration of all his alleged co-conspirators leaves him, effectively, in the position of one who is charged with accomplishing the legal impossibility of conspiring with himself alone. The court below agreed that this is so, and consequently dismissed the conspiracy count.

In the instant case, the trials of the ala conspiracy are tried together, it is a logical and legal imperative that the jury cannot return a verdict of guilty against only one defendant. (Lubin v. United States (9th Cir. 1963) 313 F.2d 419; People v. Holzer, 25 Cal.App.3d 456, 102 Cal.Rptr. 11; People v. Reeves, Supra, 250 Cal.App.2d 490, 58 Cal.Rptr. 517.) In a single trial of so-conspirators, the jury determines at one moment and on the same evidence and arguments the culpability of all the participants. Application of this 'consistency rule' provides the court with two checks upon the jury: First, it insures that the jury will adhere to the conspiracy requirement of the concurrence of at least two guilty minds; and second, it prevents the jury from weighing the same pieces of evidence differently in regard to each of the alleged conspirators. (See 'Developments in the Law--Criminal Conspiracy,' 72 Harv.L.Rev. 920, 972--974.)

It has been suggested that the consistency rule also applies to the situation in which the trials of so-conspirators are severed. (See 72 Harv.L.Rev. 920, 972.) The federal courts have consistently held that when one of two alleged co-conspirators has been acquitted in a severed trial, the reversal of the first-tried co-conspirator's conviction is required. (Romontio v. United States (10th Cir. 1968) 400 F.2d 618; Lubin v. United States. Supra (9th Cir. 1963) 313 F.2d 419.) However, the consistency rule has not been followed where the disposition of the conspiracy count regarding the second-tried of two co-conspirators has amounted to something less than an acquittal. Where the second co-conspirator has remained uncharged or his case has been dismissed Nolle prosequi, the conviction of the first-tried co-conspirator has been allowed to stand. (United States v. Fox (3d Cir. 1942) 130 F.2d 56; United States v. Koritan (D.C.E.D.Pa.1960) 182 F.Supp. 143.) Similarly, the consistency rule has not been applied when one conspirator has plea guilty and subsequently, in a severed trial, his alleged co-conspirators have been acquitted. (United States v. Strother (5th Cir. 1972) 458 F.2d 424; Rosecrans v. United States (5th Cir.1967) 378 F.2d 561.)

But the federal courts have extended the consistency rule to the severed trial situation summarily, with little regard for its logical application. By extending this rule from the single to the severed trial situation, these courts have--at least implicitly--assumed that the same evidence would be presented at both trials (an unwarranted assumption) And that when the same evidence is presented to two different juries, that both must evaluate and weigh that body of evidence in like ways so as to reach identical judgments.

Perhaps the most cogent criticism of the application of the consistency rule to the severed trials of co-conspirators was made in Platt v. State (1943) 143 Neb. 131, 8 N.W.2d 849: 'We think that the verdict of a jury on a separate trial, finding one of two persons charged with conspiracy to be guilty, Concludes also the guilt of the other for the purposes of that trial, . . . This element of the crime having been established as against the convicted defendant, the crime was complete and the conviction final as to him, irrespective of what some other jury on different evidence might decide. The rule cannot logically be otherwise.' (8 N.W.2d p. 855, emphasis added.)

The Fifth Circuit has recently agreed that the consistency rule has no applicability in the severed trial situation. (United States v. Musgrave (5th Cir. 1973) 483 F.2d 327, 333.) The Musgrave court indicated that insofar as application of the consistency rule to severed trials was concerned, it was of no import whatever whether the first or second tried conspirator was the one acquitted.

A California court recently refused to apply the consistency rule to the severed trial situation. (People v. Holzer, Supra, 25 Cal.App.3d 456, 460, 102 Cal.Rptr. 11.)

We are in agreement with the Holzer, Platt and Musgrave decisions: the consistency rule has no applicability to the situation in which co-conspirators' trials are severed. Application of the consistency rule in this situation neither insures that the two juries understand the crime of conspiracy nor that they evaluated the facts of the case consistently in regard to each conspirator. Hence, the consistency rule is not dispositive of this case.

But this is not to say that the trial court erred in its ruling. Defendant Jackson recognizes that the consistency rule is not applicable herein, but rather argues that the jury in the prior Jones-Finch trial determined that he and his alleged co-conspirators did not, in fact, conspire as the state has charged and that this determination is binding on the state at his subsequent trial by operation of the doctrine of collateral estoppel.

Historically, criminal defendants have been protected from accusatorial harassment by the constitutional prohibition against double jeopardy--and it has been thought unnecessary to import the doctrines of res judicata and collateral estoppel from the civil field to further protect them. ¹ However, some authorities have suggested that the aforesaid doctrines may appropriately be applied in criminal cases (i.e., where the doctrine of double jeopardy is inapplicable) in order to prevent the state from pursuant multiple prosecutions regarding a single transaction in situations where the first prosecution has failed. (See 'Statutory Implementation of Double Jeopardy Clauses,' 65 Yale L.J 339, 349; 'Developments in the Law--Res Judicata,' 65 Harv.L.Rev. 818, 874.)

The doctrine of res judicata has been applied in federal criminal cases (United States v. Oppenheimer (1916) 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161; Sealfon v. United States (1947) 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180) and in California (People v. Ford, 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132). And, in a recent decision, the California Supreme Court held that the doctrine of collateral estoppel may be appropriately applied to criminal cases provided certain criteria are met. (People v. Taylor, 12 Cal.3d 686, 117 Cal.Rptr. 70, 527 P.2d 622.)

The Taylor court indicated that if the doctrine of collateral estoppel is to be applied to bar litigation of an issue in a criminal matter the three prerequisite requirements historically associated with the civil doctrine of collateral estoppel must be...