May a criminal defendant be collaterally estopped from presenting all or part of his defense?
This question, raised by the instant petition, has divided both federal courts (compare, e.g., United States v. Rangel-Perez (C.D.Cal. 1959) 179 *171F.Supp. 619; Pena-Cabanillas v. United States (9th Cir. 1968) 394 F.2d 785; United States v. Colacurcio (9th Cir. 1975) 514 F.2d 1 [allowing preclusion against a criminal defendant] with United States v. DeAngelo (3d Cir. 1943) 138 F.2d 466) and state courts (Compare, e.g., Commonwealth v. Evans (1869) 101 Mass. 25; Commonwealth v. Ellis (1892) 160 Mass. 165 [35 N.E. 773]; State v. Sargood (1907) 80 Vt. 412 [68 A. 51] [allowing preclusion] with People v. Goss (1993) 200 Mich.App. 9 [503 N.W.2d 682]. See generally, 147 A.L.R. 991; Comment, The Use of Collateral Estoppel Against The Accused (1969) 69 Colum. L.Rev. 515; 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 356, pp. 411-413). With but one exception,1 it has not divided the courts of California.
Our decisions have consistently applied collateral estoppel “ ‘by preventing a party who has had one fair trial on an issue from again drawing it into controversy.* ” (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 605 [25 Cal.Rptr. 559, 375 P.2d 439].) Prosecutors have been estopped from murder prosecutions (People v. Taylor (1974) 12 Cal.3d 686 [117 Cal.Rptr. 70, 527 P.2d 622]) and criminal defendants from presenting a defense (People v. Majado (1937) 22 Cal.App.2d 323 [70 P.2d 1015]). Our decisions have fortified “the public interest in determining criminal guilt and innocence at criminal trials” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 352 [272 Cal.Rptr. 767, 795 P.2d 1223, 2 A.L.R.5th 995]), preserved the integrity of the judicial system, promoted judicial economy, protected litigants from harassment (ibid.), “maintain [ed] the stability of judgments, insure[d] expeditious trials” (People v. One 1964 Chevrolet Corvette Convertible (1969) 274 Cal.App.2d 720, 731 [79 Cal.Rptr. 447]), and spared victims and witnesses from endless court appearances.
All of these interests—with all due respect to the majority—would be served by denying the petition. *172In sum, my answer to the question is yes. A criminal defendant may be estopped from presenting a defense. Our cases, as I explain, so hold.
California Cases: a Summary
People v. Majado (1937) 22 Cal.App.2d 323 [70 P.2d 1015]
The defendant was found guilty of failing to provide for his minor child (Pen. Code, § 270; statutory references, unless otherwise noted, are to the Penal Code). He was granted probation and ordered to pay $15 a month. When probation expired defendant ceased payments and was again charged with failure to provide. At this second trial defendant was collaterally estopped from contesting paternity, that issue having been finally decided in the first trial. The Court of Appeal approved use of collateral estoppel against the defendant and affirmed the conviction.
Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601 [25 Cal.Rptr. 559, 375 P.2d 439]
Teitelbaum was convicted of conspiracy to commit grand theft, attempted grand theft, and filing a fraudulent insurance claim—all arising from his claimed “fur robbery.” After this criminal conviction was final, Teitelbaum filed a civil suit against his insurance company, alleging the same furs had been robbed and thus were covered by his insurance policy. A jury found in his favor but the trial court ruled the evidence insufficient and granted a new trial. The insurance company moved for judgment notwithstanding the verdict based upon collateral estoppel. The motion was denied.
Justice Traynor, writing for a unanimous court, reversed the trial court order denying the insurance company’s motion for judgment notwithstanding the verdict, holding that a criminal conviction may be conclusive in a subsequent civil action and mutuality is not required for collateral estoppel.
In this landmark case Justice Traynor stated, “Collateral estoppel applies to successive criminal trials . . . and although not widely adopted, has been applied in the better reasoned cases that have dealt with the problem here presented.” (58 Cal.2d at p. 606, citations omitted.) One of the criminal cases cited with apparent approval was People v. Majado. (Ibid.) Justice Traynor further noted that criminal trials have “rigorous safeguards against unjust conviction, including the requirements of proof beyond a reasonable doubt. . . and of a unanimous verdict. . . , the right to counsel. . . , and a record paid for by the state on appeal .... Stability of judgments and expeditious trials are served and no injustice done, when criminal defendants *173are estopped from relitigating issues determined in conformity with these safeguards." (Ibid., citations and fn. omitted; italics added.)
People v. Ford (1966) 65 Cal.2d 41 [52 Cal.Rptr. 228, 416 P.2d 132]
In his first trial, defendant was convicted of burglary, possession of a concealable weapon, robbery, two counts of kidnapping, assault with a deadly weapon, and first degree murder of a police officer. He was sentenced to death. On first appeal, the California Supreme Court reversed the murder conviction for instructional errors but affirmed the other convictions.
In the murder retrial, the trial court gave felony-murder instructions and applied collateral estoppel by informing the jury defendant “had been convicted of robbery, kidnaping and possession of a concealable weapon by an ex-felon, and reserved for the jury only the questions whether the homicide was perpetrated during the commission of any or all of these felonies, and whether he possessed the intent requisite to the various felonies at the time of the commission of the homicide.” (65 Cal.2d at p. 50.)
In approving the trial court’s use of collateral estoppel against the defendant Justice Peters, for a unanimous court,2 stated: “The doctrine of res judicata applies to criminal as well as civil proceedings and operates to conclude those matters in issue which the verdict determined though the offenses be different. . . . Thus where a defendant is tried on multiple counts of a single information, each count being considered as a separate and distinct offense, the doctrine of res judiciata operates to preclude the relitigation of issues finally determined upon retrial of only one count. ... It follows that the doctrine of res judicata justifies instructions, where relevant, that a defendant has been found guilty of crimes finally adjudicated which are charged as elements in another charge or charges then in the process of being retried. Accordingly, it was not error for the trial court to give appropriate instructions that defendant had been convicted of the various felonies, and that if they found that defendant’s commission of such felonies was conjoined with his commission of the homicide, they might predicate their verdict on the felony-murder rule articulated in Penal Code section 189.” (65 Cal.2d at pp. 50-51, citations omitted.)
To avoid the apparent controlling effect of Ford, the majority asserts Ford is “distinguishable . . . factually and procedurally.” (Maj. opn., ante, p. 168.) If there is a procedural distinction the majority does not specify it. A procedural distinction is a partial reversal in Ford versus a full affirmance in the instant case. Perhaps the majority is suggesting that a judgment, *174reversed in part, has greater collateral estoppel effect than a judgment fully affirmed.
The majority’s factual distinction is no more persuasive. Ford was permitted to raise a diminished capacity defense to the murder charge because that charge had been reversed and thus collateral estoppel was inapplicable. Ford was precluded from raising all other defenses collaterally estopped by his affirmed convictions on the other charges (robbery, kidnapping, etc.). Ford’s retrial was fair—notwithstanding his being collaterally estopped from raising potential defenses—because application of the collateral estoppel doctrine is fair.
People v. Superior Court (Scofield) (1967) 249 Cal.App.2d 727 [57 Cal.Rptr. 818]
Defendants were charged with conspiracy and 28 counts of submitting false insurance claims. They were temporarily discharged when Superior Court Judge Lawler granted their motions to suppress the evidence (seized pursuant to a search warrant) and set aside the indictment (§ 995). But on appeal by the People, Judge Lawler’s orders were reversed because another superior court judge, Judge Wapner, had previously upheld the seizure.
Justice Fourt, writing for Justices Wood and Lillie, stated: “We are persuaded that the principles of res judicata apply in criminal matters to bar a redetermination of identical issues decided in a prior proceeding instituted by the same parties. Once the prosecutor has convinced a trier of fact to find a certain fact (and that determination becomes final), he should not have the burden of proving again and again that same fact in court after court.” (249 Cal.App.2d at p. 735.)
People v. One 1964 Chevrolet Corvette Convertible (1969) 274 Cal.App.2d 720 [79 Cal.Rptr. 447]
Frederick Busch borrowed his father’s Corvette and later, when the police found marijuana in it, was convicted of marijuana possession. Thereafter, the police instituted forfeiture proceedings against the Corvette and Mr. Busch (the father) filed an answer denying that either he or his son knew there was marijuana in the car. The People moved for summary judgment (seeking collateral estoppel based upon Frederick Busch’s conviction) but the motion was denied. A jury then returned a verdict denying forfeiture. The trial court, however, granted a new trial motion and, after some delay, summary judgment for the People (based upon collateral estoppel).
Justice Lillie, for a unanimous court, affirmed the judgment. She rejected Mr. Busch’s claims that collateral estoppel should not be applied against him *175because he was not a party to the criminal proceeding, had no notice of it, was not in privity with any party, and no appeal had been taken. (274 Cal.App.2d at p. 729.) Justice Lillie stated, “Collateral estoppel may be invoked to conclusively resolve any issue necessarily determined in previous litigation between the same parties or their privies.” (Id. at p. 726.) Regarding “privies,” Justice Lillie noted: “However, to maintain the stability of judgments, insure expeditious trials, prevent ‘ “ ‘vexatious litigation with its attendant expense both to the parties and to the public’ ” ’ and to serve the ends of justice, more and more our courts are striving to give effect to judgments by extending ‘privies’ beyond the classical description to include relationships not originally embraced therein.” (Id. at p. 731.)
People v. Taylor (1974) 12 Cal.3d 686 [117 Cal.Rptr. 70, 527 P.2d 622]
Defendant Taylor was to be the getaway driver for his confederate robbers, Daniels and Smith. But things did not go as planned. The intended robbery victims, Mr. & Mrs. West, fearing that gun-wielding Smith would execute them as he threatened to do, each shot at Smith, killing him. Both Taylor and Daniels were charged with murder (causing Smith’s death by inciting the Wests to shoot him) and robbery. Daniels, tried first, was convicted of robbery but acquitted of murder.
Taylor, tried second, was convicted of both robbery and murder. The Supreme Court reversed the murder conviction on collateral estoppel grounds. The court stated: “Since defendant was sitting in the getaway car outside the store at the time of the shooting, his subsequent conviction for murder could result only upon a finding that one of his confederates, Daniels or Smith, harbored malice which the trier of fact then attributed to defendant because of his role as an aider and abettor. (See § 31.) At Daniels’ trial the People already have sought and have failed to establish that either Daniels or Smith entertained the requisite malice aforethought. Defendant thus argues that the doctrine of collateral estoppel should have precluded the People from relitigating this identical issue at his later trial. We agree.” (12 Cal.3d at p. 691.)
In explaining why the prosecution could not prosecute Taylor even once for murder, the Supreme Court cited strong policy considerations. Besides judicial economy (“even more important in criminal than in civil trials” (12 Cal.3d at p. 695)) and avoiding vexatious litigation, the court underscored the importance of avoiding contradictory verdicts. It stated, “Perhaps the most compelling reason for an application of collateral estoppel where vicarious liability is at issue is to prevent the compromising of the integrity of the judicial system caused by the rendering of inconsistent verdicts. *176Criminal trials generally receive more publicity than civil ones, and the public’s view of the judicial system in general is often shaped by the impression of the fairness of the criminal justice system in particular.” (Id. at pp. 695-696.)
People v. White (1986) 185 Cal.App.3d 822 [231 Cal.Rptr. 569]
On March 28, 1979, the bullet-riddled bodies of Phyllis Lamboy and Darryl Charles were found in a vacant San Francisco housing project. Appellant was charged with their murders. At his first trial a jury convicted appellant of both first degree murders but found a firearm-wse allegation not true (there was evidence appellant’s brother may also have been involved). On appeal, the convictions were reversed (improper hearsay evidence had been admitted).
At the second trial the prosecution relied on two theories: appellant was the shooter; appellant aided the shooter. The jury (without specifying which theory they relied on) again convicted appellant of both first degree murders.
The Court of Appeal reversed the convictions because the “shooter theory” had been collaterally estopped by the first jury’s not true finding.
Although for almost all other purposes, an enhancement allegation such as firearm use (§ 12022.5) is an appendage to a substantive count, without independent viability, for collateral estoppel purposes a not true finding survives the death (reversal) of the substantive count. This result3 fortifies our jury trial system and reduces the risk of contradictory jury findings.
Lucido v. Superior Court (1990) 51 Cal.3d 335 [272 Cal.Rptr. 767, 795 P.2d 1223, 2 A.L.R.5th 995]
A finding, made at a probation revocation hearing, that defendant did not commit a crime will not bar a prosecution charging defendant with the commission of that crime.
Collateral estoppel is inapplicable, not because all its threshold requirements have not been satisfied, but because applying it would “undermine the *177public interest in determining criminal guilt and innocence at criminal trials." (51 Cal.3d at p. 352, italics added.)
This decision preserves and strengthens the vitality of our jury trial system.
People v. Percifull (1992) 9 Cal.App.4th 1457 [12 Cal.Rptr.2d 331]
Applying Lucido, Percifull holds a finding, made at a dependency hearing, that parents had not criminally abused their child will not bar a child abuse criminal conviction.
This holding affirms the primacy of jury trial in our criminal justice system.
Conclusion
As California appellate decisions make clear, when the jury’s finding— that it was Abraham Gutierrez who shot Sandra Zarate—became final, Mr. Gutierrez could not again “draw[] into controversy” (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., supra, 58 Cal.2d 601, 605) that same issue.
Although Mr. Gutierrez would not benefit from this application of the collateral estoppel doctrine, other defendants would. Their last refuge is a jury trial. It, with all attendant protections—presumption of innocence, proof beyond a reasonable doubt, unanimous verdict, right to counsel—not only protects the innocent but also, given a reasonable doubt, the guilty.
But this last refuge—expensive, time consuming, sometimes ineffectual— perseveres only so long as it enjoys public confidence. That confidence is undermined by the “specter of a system” (People v. Taylor, supra, 12 Cal.3d 686, 696) which would allow one fair jury to find Mr. Gutierrez did shoot Sandra Zarate and another fair jury to find he did not. To permit such a “specter” is to encourage erosion of jury trial as we know it and to aid proposals for nonunanimous verdicts, for ten- or eight- or six-person juries, and for further elimination of jury trial for “minor” offenses.
Jury trial is the cornerstone of our justice system. I would preserve not degrade it. For that reason, I respectfully dissent.
A petition for a rehearing was denied May 10, 1994, and the petition of real party in interest for review by the Supreme Court was denied August 11, 1994. Kennard, J., was of the opinion that the petition should be granted.
In People v. Hogue (1991) 228 Cal.App.3d 1500 [279 Cal.Rptr. 647] the defendant was charged with four sex crimes. All “were . . . sex acts upon a single victim closely connected in time.” (Id. at p. 1502, italics added.) At his first trial, the defense was alibi and mistaken identity. The jury rejected the defense and convicted defendant on all counts. On appeal, one count was reversed because the trial court failed to instruct on its “10 years older" element. The other three counts were affirmed.
At the second trial, defendant was collaterally estopped from relitigating identity (and therefore alibi). Defendant then waived jury and was found guilty by the court. On appeal, the conviction was reversed on the ground it was error to apply collateral estoppel against defendant.
People v. Hogue is wrongly decided. Irreconciliable with the Supreme Court’s decision in People v. Ford (1966) 65 Cal.2d 41 [52 Cal.Rptr. 228, 416 P.2d 132], Hogue offers this metaphysical distinction: “[I]n Ford the issue of defendant’s guilt of the underlying felonies had been tried on the merits and affirmed on appeal. In other words, the issue to be decided—whether the defendant committed certain felonies—merged with the judgment of conviction of those felonies. By contrast, the issue to be decided here—the identity of appellant as the person who violated section 289, subdivision (j)—did not merge with the judgment of conviction on the related counts.” (228 Cal.App.3d at p. 1504.)
Justice McComb dissented but not as to this issue.
People v. Asbury (1985) 173 Cal.App.3d 362 [218 Cal.Rptr. 902], with similar facts, reaches the same result. See also People v. Griffin (1994) 22 Cal.App.4th 801 [27 Cal.Rptr.2d 721].
The majority accepts the holding of White, Asbury, and Griffin: a jury’s reasonable doubt finding collaterally estops the prosecution. What the majority apparently does not accept is that a jury’s finding beyond a reasonable doubt, which is affirmed and final on appeal, may have any collateral estoppel effect on a criminal defendant.