Pettaway v. Plummer, 90-15469

Citation943 F.2d 1041
Decision Date23 August 1991
Docket NumberNo. 90-15469,90-15469
PartiesJames PETTAWAY, Petitioner-Appellant, v. Charles PLUMMER, Sheriff of Alameda County, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Renee E. Torres, First District Appellate Project, San Francisco, Cal., for petitioner-appellant.

Joan K. Haller, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before BEEZER, NOONAN, and FERNANDEZ, Circuit Judges.

BEEZER, Circuit Judge:

James Pettaway seeks a writ of habeas corpus on the ground that the State of California's attempt to retry him for murder on the theory that he was the actual perpetrator of the murder violates the Double Jeopardy Clause. In a prior state court criminal proceeding, a jury determined that he did not actually perpetuate the murder. The district court denied the petition. We reverse.

I

At Pettaway's first state court trial, it was established that on May 1, 1981, Pettaway, Lowana Walker and Michael Seals were at the house of Karen Taylor. At some point, Walker handed Pettaway a handgun with which he shot Seals in the back of the neck. Seals fainted, but when he regained consciousness he saw Pettaway and Walker leaving the house through the front door. Taylor was subsequently found dead in the bathroom with two bullet holes in her head. People v. Pettaway, 206 Cal.App.3d 1312, 254 Cal.Rptr. 436 (1988).

Pettaway was charged with and convicted of one count of murder and one count of attempted murder. The information included sentencing enhancement charges that, with respect to both the murder and the attempted murder, Pettaway personally used a firearm and personally inflicted great bodily injury.

The prosecution tried the case on the theory that Pettaway personally shot Seals and Taylor. Although the jury initially was not given a jury instruction on aiding and abetting, it requested and received such an instruction during the third day of deliberations.

With respect to the charges of personal use of a firearm and personal infliction of great bodily injury, the jury was instructed that if it found Pettaway guilty on either substantive charge, it had the "duty" to determine whether Pettaway personally shot the relevant victim and that it could do so only if the proof established beyond a reasonable doubt that he had done so. The jury was further instructed that "all twelve jurors must agree to the decision, and to any finding you have been instructed to include in your verdict." At the same time that the jury found Pettaway guilty of both substantive counts, it also found, in a special verdict, that Pettaway did not personally use the handgun or inflict great bodily injury in the commission of the murder of Taylor. The jury was polled and was found unanimously to agree with the verdict.

On appeal, the California Court of Appeal reversed the murder conviction because it found reversible error in the aiding and abetting instruction.

On remand, Pettaway moved to preclude the state from proceeding on the theory that Pettaway personally shot Taylor. Pettaway argued that because the jury had found the sentence enhancements to be untrue with respect to the murder charge, the doctrines of double jeopardy and collateral estoppel barred the prosecution from advancing a theory that Pettaway shot Taylor. The trial court agreed, and because the prosecution said it could not proceed to trial solely on an aiding and abetting theory, the trial judge dismissed the murder count.

The California court of appeals reversed, Pettaway, 206 Cal.App.3d at 1315, 254 Cal.Rptr. 436, and the California Supreme Court denied review. Pettaway filed a petition for a writ of habeas corpus in federal district court, claiming that a retrial on the theory that he shot Taylor would violate the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. The district court denied the petition and Pettaway appeals.

II

We review de novo the denial of a petition for writ of habeas corpus. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987).

The constitutional guarantee against double jeopardy includes the concept of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). The basis for Pettaway's petition is that his reprosecution on the theory that he shot Taylor is barred by this element of the Double Jeopardy Clause. To resolve this claim, we must first determine whether the jury's finding that Pettaway did not personally shoot Taylor has collateral estoppel effect. If it does, we must then determine whether the Double Jeopardy Clause bars Pettaway's reprosecution.

Collateral estoppel analysis involves a three-step process:

(1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was "litigated" in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case.

United States v. Hernandez, 572 F.2d 218, 220 (9th Cir.1978).

The state concedes that the question whether Pettaway fired the gun himself was actually litigated at the first trial. The prosecutor admitted that "at all times [his] theory of prosecution at [the original trial] and even now [at the retrial] would be that [Pettaway] shot and killed Karen Taylor." At argument, the state reiterated that it will not retry Pettaway if it is not permitted to claim that he fired the weapon.

The district court based its denial of Pettaway's petition on the third step of the collateral estoppel analysis, because the court believed the jury could have " 'grounded its verdict on an issue other than that which the defendant seeks to foreclose from consideration.' " Specifically, the court found that because California law makes the direct perpetrator of a crime and an aider and abettor equally guilty, see People v. Beeman, 35 Cal.3d 547, 554-55, 199 Cal.Rptr. 60, 674 P.2d 1318 (1984), "it is possible that the verdict, when considered as a whole, did not rely on the determination that [Pettaway] did not personally kill Ms. Taylor, but was grounded on a determination that [Pettaway] either personally shot Ms. Taylor or aided and abetted in her killing, without deciding between the two alternatives." (Emphasis in original.)

The district court's conclusion assumes that collateral estoppel does not apply unless the issue previously determined was necessary to the question of guilt or innocence. Discussion of the necessity prong of collateral estoppel analysis is usually framed in terms of determinations that were necessary to the "judgment" or the "verdict." See, e.g., Segal v. American Tel. & Tel. Co., 606 F.2d 842, 845 n. 2 (9th Cir.1979) ("[R]elitigation of an issue ... is not foreclosed if the decision of the issue was not necessary to the judgment reached in the prior litigation."); Ashe, 397 U.S. at 444, 90 S.Ct. at 1194 (court must determine whether jury could have grounded its "verdict" upon any other issue). However, the fact that the personal use determination at issue in the present case was not formally necessary for a finding of guilt on the murder charge does not prevent the finding from having collateral estoppel effect in this case.

The primary purpose of the rule that prior resolution of an issue will have collateral estoppel effect only if it was necessarily decided is to ensure that the finder of fact in the first case took sufficient care in determining the issue. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4421, at 193 (1981). 1 The Supreme Court has addressed this concern by focusing on the nature of the original proceedings. In Burlington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the Court held that where the death penalty phase of a criminal proceeding bears the "hallmarks of a trial on guilt or innocence," id. at 439, 101 S.Ct. at 1858, failure of the state to obtain a death sentence indicates that there was insufficient evidence to support that sentence and retrial is barred. We have extended this holding to enhancement factors relevant to non-capital sentences, stating that an essential consideration is "whether the sentencing proceeding at issue resembled a trial on punishment." Durosko v. Lewis, 882 F.2d 357, 359 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1930, 109 L.Ed.2d 294 (1990). Durosko followed the approach of the Fifth Circuit, which held that where the state was required to prove the enhancement factors beyond a reasonable doubt, failure to do so prevents the state, via the Double Jeopardy Clause, from attempting to prove the same enhancement at a second trial. Id. at 359 (citing Briggs v. Procunier, 764 F.2d 368, 371 (5th Cir.1985)). 2

In the present case, although the jury did not have to reach the question of personal use of the handgun if it did not find Pettaway guilty of murder, it was required to do so once it found him guilty. California law requires that the enhancement for personal use of a firearm be "pleaded and proven as provided by law." Cal.Pen.Code § 1170.1 (Supp.); see also People v. Hernandez, 46 Cal.3d 194, 249 Cal.Rptr. 850, 856, 757 P.2d 1013, 1020 (1988) (the enhancements in the California Penal Code are "part of a determinate sentencing system the inevitable pattern of which is to require additional terms to be imposed only after the enhancement has been found true by the trier of fact"); People v. Najera, 8 Cal.3d 504, 509-10, 105 Cal.Rptr. 345, 350, 503 P.2d 1353, 1358 (1972) (Because of the severity of the additional punishment compelled by section...

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