People v. Wilkins

• Citation: 31 Cal.Rptr.2d 764,26 Cal.App.4th 1089
• Decision Date: 13 July 1994
• Docket Number: No. B069829,B069829
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel WILKINS, Defendant and Appellant.

Page 764

31 Cal.Rptr.2d 764

26 Cal.App.4th 1089

The PEOPLE, Plaintiff and Respondent, v. Daniel WILKINS, Defendant and Appellant.

No. B069829.

Court of Appeal, Second District, Division 7, California.

July 13, 1994.

Review Denied Oct. 20, 1994.

[26 Cal.App.4th 1090] Stephen Temko, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Linda C. Johnson, Supervising Deputy Atty. Gen., and Sharon Wooden Richard, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

If the defendant-shooter, in one trial, is acquitted of murder, may the defendant-aider and abettor, in another trial, be convicted of murder? Our answer is yes. Collateral estoppel, as we explain, does not bar the aider and abettor's conviction. We correct the judgment and, as corrected, affirm the judgment.

PROCEDURAL AND FACTUAL BACKGROUND

On May 22, 1990, the Los Angeles County district attorney filed an information charging Donald Rose and Daniel Wilkins (appellant) with the September 5, 1987, murder (PEN.CODE, § 187¹, subd. (a); count I) and robbery (§ 211; count II) of William Dabbs. It was also alleged that Donald Rose personally used a firearm in the commission of both offenses (§ 12022.5).

On February 19, 1991, appellant's severance motion was granted.

Donald Rose was tried first and found not guilty of both murder and robbery.

Appellant was then tried and on January 28, 1992, a jury found appellant guilty of first degree murder, robbery and found true an armed principal allegation. (§ 12022, subd. (a)(1).) This appeal followed.

There being no insufficiency of evidence claim, the essential facts may be stated simply. (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110).

On September 5, 1987, members of the East Coast Crips gang were in Yolanda McDuffy's livingroom in South Central Los Angeles. Donald Rose, a Crips gang member, was being teased and called a "buster" (meaning a punk) because he had not "proved himself." Donald Rose denied being a "buster". Appellant, a friend of Donald Rose, said "Well, if you ain't, let's go" and gave Donald Rose a .22 caliber pistol. Appellant and Donald Rose left the apartment and walked toward 92nd and Central Avenue, the turf of two Blood gangs, enemies of the 89 East Coast Crips.

That same early morning, a CHP officer stopped a speeding and weaving car at 92nd and Central Avenue. The driver was arrested but the passenger, victim William Dabbs, was left at the scene. He went to a phone booth in front of Mike's liquor store and called his cousin, Tyrone, for a ride. During the conversation, Tyrone heard someone say to William Dabbs, "Hey, cuz, what's up?" and William answered "Hey, man, that's all I got." Tyrone then heard William's telephone William Dabbs was taken by ambulance to Martin Luther King hospital where he died from a gunshot wound to the stomach.

drop, the sound of a scuffle, and two .22 caliber gunshots.

Three months later "confidential informant," Anthony Spratley, gave investigating officers information about a gang-related robbery murder. The officers did not then link that information to the murder of William Dabbs. Spratley, now in state prison, was again interviewed by investigating officers. Finally, after several interviews of Spratley in August 1989, the investigating officers linked the William Dabbs murder to Donald Rose and appellant. Both were arrested. Appellant confessed to aiding and abetting Donald Rose who he said robbed and shot William Dabbs. Donald Rose did not confess.

At appellant's trial ², Anthony Spratley recanted and was impeached by the investigating officers.

DISCUSSION

1. Appellant contends the collateral estoppel doctrine bars the conviction of an aider and abettor if the alleged perpetrator has been acquitted.

Before discussing what is at issue, it may be helpful to indicate what is not.

Not at issue are: multiple defendant inconsistent verdicts at a joint trial (compare People v. Stone (1963) 213 Cal.App.2d 260, 28 Cal.Rptr. 522 [inconsistent murder verdicts permissible] with People v. Allsip (1969) 268 Cal.App.2d 830, 74 Cal.Rptr. 550 [inconsistent rape verdicts not permissible]; what non-trial proceedings satisfy collateral estoppel requirements (People v. Fuentes (1986) 183 Cal.App.3d 444, 237 Cal.Rptr. 465 [confederate's guilty plea does not satisfy collateral estoppel requirements]; Lucido v. Superior Court (1990) 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223 [finding at probation violation hearing does not bar criminal trial] ); collateral estoppel involving multiple trials of the same defendant (People v. Asbury (1985) 173 Cal.App.3d 362, 218 Cal.Rptr. 902); prosecutions of the same defendant for the same conduct by different county prosecutors (People v. Torres (1992) 6 Cal.App.4th 1324, 8 Cal.Rptr.2d 332 [granting of § 1538.5 motion by Los Angeles County Superior Court judge not binding on San Mateo County Superior Court judge] ); prosecutions of the same defendant for the same conduct by federal and then state prosecutors (People v. Meredith (1992) 11 Cal.App.4th 1548, 15 Cal.Rptr.2d 285 [suppression of evidence ruling in federal court not binding upon state court] ); collateral estoppel applied against a criminal defendant (e.g., compare People v. Ford (1966) 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132 [collateral estoppel applied against criminal defendant] with Gutierriz v. Superior Court (1994) 24 Cal.App.4th 153, 29 Cal.Rptr.2d 376 [collateral estoppel may not be applied against criminal defendant] ).

At issue is only this question: may the acquittal of one confederate bar the conviction of another? Generally, the answer is no, collateral estoppel is inapplicable (People v. Garrison (1989) 47 Cal.3d 746, 782, 254 Cal.Rptr. 257, 765 P.2d 419; People v. Howard (1988) 44 Cal.3d 375, 412, 243 Cal.Rptr. 842, 749 P.2d 279; People v. Nunez (1986) 183 Cal.App.3d 214, 220, 228 Cal.Rptr. 64; People v. Mata (1978) 85 Cal.App.3d 233, 237, 149 Cal.Rptr. 327; 1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) § 344, pp. 396-399).

The reasons for the general inapplicability of collateral estoppel involving different defendants is best explained in Standefer v. United States (1980) 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689. The issue was identical to the instant one: "whether a defendant accused of aiding and abetting in the commission of a[n] ... offense may be convicted after the named principal has been acquitted of that offense." (Id., at p. 11, 100 S.Ct. at p. 2001.) In holding collateral estoppel inapplicable, Standefer noted, "[t]he doctrine of nonmutual collateral estoppel was unknown to the common law...." (Id., at p. 21, 100 S.Ct. at p. 2006.) It then distinguished civil cases, where nonmutual collateral estoppel has been applied, from criminal cases "First, in a criminal case, the Government is often without the kind of 'full and fair opportunity to litigate' that is a prerequisite of estoppel. Several aspects of our criminal law make this so: the prosecution's discovery rights in criminal cases are limited, both by rules of court and constitutional privileges; it is prohibited from being granted a directed verdict or obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt, cf. Fed.Rule Civ.Proc. 50; it cannot secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence, cf. Fed.Rule Civ.Proc. 59; and it cannot secure appellate review where a defendant has been acquitted. See United States v. Ball, 163 US 662, 671 [16 S.Ct. 1192, 1195, 41 L.Ed. 300] (1896).

"The absence of these remedial procedures in criminal cases permits juries to acquit out of compassion or compromise or because of ' "their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." ' Dunn v. United States, 284 U.S. 390, 393 [52 S.Ct. 189, 190, 76 L.Ed. 356] (1932), quoting Steckler v. United States, 7 F2d 59, 60 (CA2, 1925). See generally H. Kalven & H. Zeisel, The American Jury 193-347 (ed. 1976). It is of course true that verdicts induced by passion and prejudice are not unknown in civil suits. But in civil cases, post-trial motions and appellate review provide an aggrieved litigant a remedy; in a criminal case the Government has no similar avenue to correct errors. Under contemporary principles of collateral estoppel, this factor strongly militates against giving an acquittal preclusive effect. See Restatement (Second) of Judgments § 68.1 (Tent Draft No. 3, 1976) (denying preclusive effect to an unreviewable judgment).

"The application of nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion unique to our criminal law. It is frequently true in criminal cases that evidence inadmissible against one defendant is admissible against another. The exclusionary rule, for example, may bar the Government from introducing evidence against one defendant because that evidence was obtained in violation of his constitutional rights. And the suppression of that evidence may result in an acquittal.

"The same evidence, however, may be inadmissible against other parties to the crime 'whose rights were [not] violated.' Alderman v. United States, 394 US 165, 171-172 [89 S.Ct. 961, 965-966, 22 L.Ed.2d 176] (1969). Accord, Rakas v. Illinois, 439 US 128, 134 [99 S.Ct. 421, 425, 58 L.Ed.2d 387] (1978). In such circumstances, where evidentiary rules prevent the Government from presenting all its proof in the first case, application of nonmutual estoppel would be plainly unwarranted." (Id., 447 U.S. at pp. 22-24, 100 S.Ct. at pp. 2007-2008, fns. omitted.)

Finally, Standefer observed: "In denying preclusive effect to [the principal's] acquittal, we do not deviate from sound teaching...