In Re Gutierrez

51 Cal. App. 4th 1704, 60 Cal. Rptr. 2d 332, 97 Daily Journal DAR 597, 97 Cal. Daily Op. Serv. 404, 1997 Cal. App. LEXIS 24

• Court: California Court of Appeal
• Decided: January 15, 1997
• Docket: B103860
• Status: Published

Opinions

Opinion

JOHNSON, J.

In this habeas corpus proceeding petitioner asks this court to vacate his conviction for attempted murder after his subsequent prosecution for murder of the same victim and arising out of the same event resulted in three mistrials and a dismissal of all homicide charges. The prosecution filed the murder charges because the victim had died after petitioner’s conviction for attempted murder. In an earlier opinion, this court ruled collateral estoppel did not bar petitioner from relitigating in the murder trial several issues the jury had decided in the attempted murder case. In this proceeding, we conclude the order allowing relitigation of those issues in the murder trial did not constitute a “new trial” of the attempted murder case and thus deny the writ.

Facts and Proceedings Below

In 1990, the People charged petitioner with discharging a gun into an occupied motor vehicle (count 2) and the attempted first degree murder of Sandra Zarate (count 1). Petitioner’s defense was mistaken identity. The jury found petitioner guilty of both counts but found the attempt to commit murder was not willful, deliberate and premeditated; the jury also found petitioner personally used a firearm and intentionally and personally inflicted great bodily injury on Zarate. The trial court sentenced petitioner to state prison for a total term of 18 years and 8 months. The judgment was affirmed on appeal in People v. Gutierrez (1992) 10 Cal.App.4th 1729 [13 Cal.Rptr.2d 464].

Zarate died in January 1993, apparently from the wounds sustained in petitioner’s attack. The People then filed an information charging petitioner with murder. On August 16, 1993, the People filed a written motion re collateral estoppel, seeking to preclude petitioner from litigating again the issues of his identity as the shooter and his intent to kill. The superior court, in finding in favor of the prosecution, stated: “I’ve seen the findings that [the jury] made, and. . . the jury has decided these issues, that the defendant had express malice aforethought, that he did the shooting. The only issue is whether or not what he did caused the death.”

Petitioner sought a writ of prohibition with this court challenging the August 20, 1993, order. After we denied the order, petitioner sought review with the Supreme Court. On November 10,1993, the Supreme Court granted review and transferred the matter to us with instructions to vacate our prior order and to issue an alternative writ. On April 15, 1994, in a published opinion titled Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153 [29 Cal.Rptr.2d 376], we granted the writ of prohibition, directing the superior court to vacate its August 20,1993, ruling, and to enter an order denying the prosecution’s motion re collateral estoppel.

In the months that followed, petitioner was tried on second degree murder charges for the murder of Sandra Zarate at three separate trials. Each trial ended in a mistrial due to the jury’s failure to reach a unanimous verdict. Following the third trial, the People moved for dismissal in the interest of justice. The trial court granted the motion.

Petitioner is presently in custody pursuant to a judgment and conviction in Los Angeles Superior Court (People v. Gutierrez (Super. Ct. L.A. County, No. KA004789).) He first sought relief by habeas corpus on July 9, 1996, filing a writ of habeas corpus with the superior court. The writ was denied. Petitioner filed this petition on July 22, 1996, challenging the validity of his prior conviction on grounds the subsequent trial for murder acted as a new trial on his prior conviction for attempted murder. Petitioner contends the subsequent proceedings operated to set aside the earlier conviction as a matter of law and therefore he should be released.

Discussion

In Gutierrez, v. Superior Court, supra, 24 Cal.App.4th 153, 169-170, we held the preservation of the petitioner’s right to a jury trial outweighed policy considerations favoring application of the doctrine of collateral estoppel. We found inherent in petitioner’s constitutional right to jury trial, the right to present evidence and defenses he may not have presented at this prior trial. Therefore, the prosecution could not apply the doctrine to limit petitioner’s ability to relitigate issues the jury adjudicated against him at his prior trial for attempted murder. (24 Cal.App.4th at pp. 169-170.) Petitioner maintains the necessary effect of our holding was to grant him a new trial on his prior conviction for attempted murder. We disagree.

I. This Court Did Not Order a New Trial by Allowing Petitioner to Relitigate Issues Determined at His Prior Trial

“A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given.” (Pen. Code, § 1179.) Petitioner maintains that each time the charge for second degree murder was tried, the same issues of identity and intent were reexamined within the contemplation of Penal Code section 1179¹ In doing so, petitioner overlooks section 1181 which sets forth the necessary prerequisites to an order for new trial providing, “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial.” (§1181, italics added.) With limited exceptions, the court may not grant a new trial on its own motion. (See People v. Skoff (1933) 131 Cal.App. 235, 240 [21 P.2d 118]; cf. People v. Knutte (1896) 111 Cal. 453 [44 P. 166] [court may set aside a verdict for insufficiency of the evidence and grant the defendant a new trial].) In any event, this court did not expressly order a new trial of the attempted murder case in its prior decision.

We find it unnecessary to reach the issue of whether it was within this court’s discretion to grant a new trial of the attempted murder at the time it considered the prior writ. What is clear is that we did not do so. By providing petitioner the opportunity to relitigate in his murder trial issues decided at his trial for attempted murder, it was neither our intent nor within the terms of the writ we issued to order a new trial for the prior conviction. In Gutierrez v. Superior Court, supra, 24 Cal.App.4th 153, we recognized some of the issues decided by the prior judgment may be identical to those sought to be relitigated at petitioner’s subsequent trial for murder. We further acknowledged the risk posed to the integrity of the prior judgment by the possibility of an inconsistent verdict. However, we concluded the need for consistency in criminal trials is outweighed by petitioner’s right to a full determination of the factual issues in the second trial. (24 Cal.App.4th at pp. 169-170, citing Lucido v. Superior Court (1990) 51 Cal.3d 335, 347 [272 Cal.Rptr. 767, 795 P.2d 1223, 2 A.L.R.5th 995].) We also pointed out a contrary decision would undermine public confidence in the judicial system. (Gutierrez v. Superior Court, supra, 24 Cal.App.4th at pp. 169-170.)

After reviewing the issues presented for our consideration and a careful reading of our prior opinion, we find no support for the proposition a subsequent mistrial on the murder charge disturbs the prior conviction for attempted murder. Our prior ruling only held the first trial for attempted murder did not have collateral estoppel effect in the second trial for murder. Our research has not uncovered any case which holds a decision denying collateral estoppel in a second proceeding somehow invalidates or opens up for relitigation the judgment in the first proceeding. It is axiomatic the decision about whether issues resolved in the first case also determine issues in the second case only affects the litigation of the second case, not the integrity of the judgment in the first. Thus, in our prior opinion, we neither held nor intended our denial of collateral estoppel in the murder prosecution to influence in any way the validity of the attempted murder judgment.

We further observe we need not decide the more difficult issue in this case. The jury in petitioner’s subsequent trial for murder did not acquit him of murder. Nor did they find the elements of murder or the issues previously decided to be untrue. None of the three juries could reach unanimous verdicts of guilt. There are many possible explanations for these three hung juries that having nothing to do with petitioner’s guilt of the attempted murder. The state prosecuted a murder where the shooting occurred nearly five years earlier. Witnesses’ faulty memories may have appeared less credible to the jury. Or the jurors might have believed petitioner was the gunman, but an intervening factor caused the death. Thus, in this case, a mistrial on the murder charge is not necessarily inconsistent with a conviction for attempted murder. As respondent aptly notes, verdicts should not be upset by speculative inquiry. (Dunn v. United States (1932) 284 U.S. 390, 393 [76 L.Ed. 356, 358-359, 52 S.Ct. 189, 80 A.L.R. 161].)

Petitioner directs our attention to In re Crow (1971) 4 Cal.3d 613 [94 Cal.Rptr. 254, 483 P.2d 1206], in support of the proposition our order granting his writ of prohibition was an order for new trial for attempted murder. In Crow, the petitioner filed a petition for writ of habeas corpus alleging he had been denied prompt sentencing in violation of section 1202. (4 Cal.3d at p. 617.) In affirming the court’s order granting a new trial, on its own motion, the reviewing court stated, “Having issued a writ of habeas corpus [citation], the court’s power could not be limited to either discharging the petitioner from, or remanding him to, custody [citations], but extended to disposing of him’ as the justice of the case may require’, [citations].” (Id. at p. 619.) The court reasoned that, “[i]nherent in the power to issue the writ of habeas corpus is the power to fashion a remedy for the deprivation of any fundamental right which is cognizable in habeas corpus.” (In re Crow, supra, 4 Cal.3d at pp. 619-620, fn. 7.) Petitioner’s reliance on this case is unjustified. In Crow, the court affirmatively ordered a new trial of the very case in which the sentence was imposed not some prior or different case.

Having clarified the scope of our order prohibiting application of the doctrine of collateral estoppel, we turn our focus to the necessary effect of the order.

II. Permitting Relitigation of the Issues at a Subsequent Trial for a Separate Offense Does Not Vacate by Operation of Law a Valid Prior Conviction

Following this court’s order in Gutierrez v. Superior Court, supra, 24 Cal.App.4th 153, petitioner suggests the state caused a reexamination in his murder trial of the same issues presented at his trial for attempted murder. Petitioner argues the subsequent proceedings, undertaken with the approval of the court, effectuated a new trial for attempted murder as defined in section 1179. According to petitioner, this places the parties in the position as if there has been no trial for attempted murder. (See § 1180.)

Our review of California law reveals no case directly addressing issues presented by this petition. However, exceptional cases do exist where it was determined orders by the court effectively granted a new trial without expressly doing so. We find these cases factually inapposite to the instant case.

In People v. Tomsky (1912) 20 Cal.App. 672 [130 P. 184], the trial court entered an order to set aside a conviction on the ground the defendant had never pled to the information under which he was prosecuted. The reviewing court noted that although no formal motion was presented, the effect of the order was to award the defendant a new trial. In reaching its conclusion, the court determined this effect was intended by the court as evidenced by the fact the court had ordered the defendant be admitted to bail and a time set for taking his pleas to the information.² (20 Cal.App. at p. 677.) No similar intention is evidenced in the instant case. This court did not order petitioner’s prior conviction for attempted murder be set aside. Our order merely directed the trial court to vacate its prior order barring petitioner from litigating the issues of identity and intent. As explained above, this court finds no authority for the supposition an order denying collateral estoppel in a second prosecution somehow vacates the valid prior conviction as a matter of law.

A similar situation resurfaced in People v. Rothrock (1936) 8 Cal.2d 21. In that case, the state appealed from a trial court’s order setting aside a conviction of the defendant for attempted murder and assault with a deadly weapon. The conviction was set aside on the grounds his initial plea was invalidated by a subsequent inquiry into his sanity. After the defendant was found to be sane, a trial was held and the defendant found guilty. The defendant filed objections to the verdict alleging, inter alia, the initial plea had been vacated by the inquiry into his sanity. The reviewing court determined as the order called for a reexamination of the same issues in the same court, it effectively granted a new trial.³ (8 Cal.2d at pp. 23-24.)

In both of the aforementioned cases, the necessary effect of the court’s order is to cause a new trial for the very same offense. In contrast, petitioner here was tried for the separate offenses of murder and attempted murder. It is well settled the crime of murder encompasses different elements than the crime of attempted murder. (See In re Saul S. (1985) 167 Cal.App.3d 1061,1067 [213 Cal.Rptr. 541]; see also People v. Bivens (1991) 231 Cal.App.3d 653, 662-663 [282 Cal.Rptr. 438], Diaz v. United States (1912) 223 U.S. 442, 449 [56 L.Ed. 500, 503, 32 S.Ct. 250], related issues.) To constitute attempt, there must be (1) proof of specific intent to commit a crime, and (2) a direct yet ineffectual act towards its commission. (People v. Swain (1996) 12 Cal.4th 593, 604-605 [49 Cal.Rptr.2d 390, 909 P.2d 994].) Thus, specific intent to kill is a necessary element of attempted murder, but not required for the crime of murder. Likewise, a homicide is a necessary element of murder, but not of attempted murder. (People v. Breland (1966) 243 Cal.App.2d 644, 650 [52 Cal.Rptr. 696].) Therefore, petitioner’s trial for murder was not necessarily a reexamination of the same issues presented to the court which found him guilty of attempted murder. This court merely prevented the prosecution from limiting petitioner’s murder trial to the issue of causation.⁴

In his concurrence, Justice Woods expresses his inability to detect the difference between a new trial and the trial which followed our decision in Gutierrez v. Superior Court. He suggests the order “compelled” a full trial on all issues. In fact, our order denies application of the doctrine of collateral estoppel as to those issues requisite to a finding of guilt for the crime of murder. As we have pointed out, the crime of murder entails different elements than attempted murder and thus can be proven without relitigating the same issues. To the extent the People, as opposed to the court, caused a reexamination of the identical issues previously litigated, there can be no “new trial” since petitioner had not previously been charged or tried for the crime of murder. In so far as cases exist where the court was found to have implicitly granted a new trial, the court’s order required relitigation of the same issues to establish guilt for the same crime thereby compelling a new trial.

Today we hold the same principles of maintaining integrity and public confidence in the judicial system that afforded petitioner the opportunity to relitigate some issues decided in his prior trial, preclude the interpretation he offers this court. Petitioner was not and could not have been charged with murder in the initial accusatory pleading.⁵ When the victim later died, a homicide occurred creating a distinct offense in law and fact. (See In re Saul S., supra, 167 Cal.App.3d 1061, 1067; see also People v. Bivens, supra, 231 Cal.App.3d 653, 662-663; Diaz v. United States, supra, 223 U.S. 442, 449 [56 L.Ed. 500, 505], related issues.) In this situation, the integrity of and public confidence in the judicial system would not be furthered by forcing the prosecution to risk valid prior convictions for attempted murder in order to subsequently prosecute those same defendants for the separate offense of murder. On the contrary, sound judicial policy requires defendants who are fairly tried and convicted remain responsible for those crimes they were found to have committed.

Disposition

The petition for writ of habeas corpus is denied.

Lillie, P. J., concurred.

1 All section references are to the Penal Code unless otherwise noted.

2 The trial court’s order was ultimately reversed after a determination the error impelling the judge to set aside the verdict could not have resulted in a miscarriage of justice. The issue of whether the order is within the power of the court was never reached. (People v. Tomsky, supra, 20 Cal.App. at pp. 685-686.)

3 The court went on to hold that pursuant to section 1181, the court could not grant a new trial on its own motion and the matter was remanded with instructions to enter a finding of guilty. (People v. Rothrock, supra, 8 Cal.2d at p. 24.)

4 A jury instruction limited to the issue of causation would prejudice petitioner. “[A] jury so instructed could not help but infer the defendant had either admitted the other issues or another jury had already decided them against him. Either inference creates ‘a strong . . . pull towards a guilty verdict . . .’ [Citation.]” (Gutierrez v. Superior Court, supra, 24 Cal.App.4th at p. 170.)

5 Zarate was hospitalized in a coma after being shot in the head in June 1990. The same year petitioner was tried on various counts including attempted murder; he was convicted of attempted murder in January 1991. The victim died in January of 1993.