dissenting,
joined by Circuit Judges HAWKINS and THOMAS.A state trial jury found Jose Napolean Santamaría guilty of murder and robbery. The same jury then addressed sentencing enhancement based on the state’s claim that Santamaría had personally used a knife to commit the murder. After being instructed that the state must prove this claim beyond a reasonable doubt, the jury unanimously responded that the claim was “not true.”
The majority seems entirely comfortable with the possibility that a second jury may be asked this same question and come to an entirely different conclusion. A fundamental constitutional doctrine meant to give prose-cutive authorities one full, fair opportunity to prove its claims is thus read to give the state a second bite at the apple.
Pettaway v. Plummer, 943 F.2d 1041 (9th Cir.1991), would preclude the prosecution from arguing at a retrial that Santamaría personally used a knife to commit murder. I submit that Pettaway was decided correctly and should not be overturned.
I.
A defendant bears the burden to show that “the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 673, 107 L.Ed.2d 708 (1990). In making this determination, a court should “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) (emphasis added) (internal quotations omitted). Moreover, “[t]he inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Id. (internal quotations omitted). And the court should bear in mind that the rule of collateral estoppel is “not to be applied with the hyper-technical and archaic approach of a 19th century pleading book, but with realism and rationality.” Id.
The majority opinion “overrules” Pettaway and in doing so concludes that the jury’s unanimous “not true” finding on the sentence enhancement charge did not necessarily mean that it found that Pettaway only aided and abetted another person’s gun use. In coming to this conclusion, the majority reasons that the “not true” finding could also *1252mean that the jury found, under the “either- or” theory, that Pettaway either directly used the gun or aided and abetted the person who did.
The majority’s imaginative approach might carry water except that Pettaway’s jury was never instructed on the “either-or” theory-as was the case with Santamaria’s jury. The “either-or” theory permits the prosecution to obtain convictions when it is clear that two or more parties were involved in the commission of a crime, yet, the prosecution does not have evidence to prove, beyond a reasonable doubt, the specific role that each played. See Santamaria, 8 Cal.4th at 919 n. 8, 35 Cal.Rptr.2d 624, 884 P.2d 81 (“either-or” theory necessary in case where jury cannot determine specific roles played by two masked participants in a robbery) (citing People v. Perez, 21 Cal.App.4th 214, 222, 26 Cal.Rptr.2d 691 (1993)).
This dilemma did not exist in Pettaway, where the prosecution conceded that “at all times [its] theory of prosecution at [the first trial] and even now [at retrial] would be that [Pettaway] shot and killed Karen Taylor.” Pettaway, 943 F.2d at 1044 (internal quotations omitted).1 Similarly, in Santamaria’s case, the prosecution admitted that it had “no other theory of prosecuting this murder; that is we have no evidence that the defendant was anything but the stabber____” Santamaria, 8 Cal.4th at 929, 35 Cal.Rptr.2d 624, 884 P.2d 81.
In assessing the Santamaría case, the majority opinion concludes: “We cannot say that the split verdict, even in the absence of a specific ‘either-or’ instruction, indicates that a rational jury could only conclude that [Anthony Nubia, the prosecution’s witness who was involved in the crimes,] had not only perjured himself [when he said that Santa-maría was the stabber] but also [that Nubia] was the sole active participant in the murder.” Majority Opinion at 1246 (emphasis added).2 But I suggest that the jury would not necessarily have concluded that Nubia was the sole participant in the crime when it found that the prosecution failed to prove that Santamaría used a knife to commit murder.
The jury’s “not true” finding does not necessarily preclude the possibility that it concluded that Santamaría was a direct perpetrator by strangling the victim or by running him over with Nubia’s car when it convicted him of murder. Santamaria, 8 Cal.4th at 934, 35 Cal.Rptr.2d 624, 884 P.2d 81. Thus, the jury’s “not true” finding does not necessarily mean that the jury thought that Nubia was the sole direct perpetrator of the crime. It only means that Santamaría was not the stabber.
As the above discussion indicates, the juries in both Pettaway and Santamaría did “necessarily decide” that the defendants in these two cases were aiders and abettors only to the extent that they did not personally use a hand held weapon to commit murder.
II.
The majority further holds that the prosecution may introduce evidence to show that Santamaría used a knife to commit murder because “knife use” is not an ultimate fact required to prove the crime of murder. The majority explains that: “If an act that could have been proved to a lesser degree than that required for conviction is for some reason probative in a subsequent trial, it need not be excluded because of the prior acquittal.” Majority Opinion at 1247 (citing United States v. Seley, 957 F.2d 717, 728 (9th Cir.1992)). Thus, the majority concludes that because knife use need not be proved beyond a reasonable doubt to prove murder, the prosecution can relitigate knife use on retrial because it is not an “ultimate fact.”
However, as California Supreme Court Justice Stanley Mosk pointed out in his dissent in Santamaría, “personal use of a knife is a necessary fact for the unlawful-act element of the crime of murder insofar as guilt is predicated on a theory dependent thereon-in this ease, on a theory that defendant was a *1253principal as a direct and active perpetrator solely through his personal use of a knife.” Santamaria, 8 Cal.4th at 932, 35 Cal.Rptr.2d 624, 884 P.2d 81 (emphasis added).
Moreover, the majority opinion does not apply collateral estoppel with “realism and rationality” when it allows the prosecution to relitigate the issue whether Santamaría personally used a knife to commit murder based on the ephemeral possibility that the jury on retrial may decide that the defendant is guilty of murder resulting from knife use under the “either-or” theory. Here, the prosecution states unequivocally that the available evidence only supports a theory that the defendant was not an aider and abettor but directly used the knife to commit murder. The prosecution thus admits that it will proceed under the theory that the defendant directly used the knife, and implicitly, will not proceed on the “either-or” theory regarding knife use because the prosecution concedes that it will not seek to prove that Santamaría was an aider or abettor.
While the “either or” theory is an option available under California law for cases where it is unclear which of two or more defendants played a specific role in a crime, this option should not be used as a ploy to deny Santamaría the right to be protected under the double jeopardy clause when realism and rationality dictate that the “either- or” theory is inapplicable to his case.
For the reasons stated above, I respectfully dissent.
. The prosecution further stated that "it could not proceed on any other theory, because it could suggest no person Pettaway might have aided and abetted.” Id. at 1047.
. "Anthony Nubia pled guilty to being an accessory to the murder and agreed to cooperate with the prosecution." Santamaria, 8 Cal.4th at 908-909, 35 Cal.Rptr.2d 624, 884 P.2d 81.