P. v. Magana

Filed 5/2/07 P. v. Magana CA3

NOT TO BE PUBLISHED

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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This appeal involves claims of collateral estoppel.

After two individuals were shot and killed in their home, an information charged defendant Joel Angel Magana and a codefendant, Christopher Jones, with murder, robbery, burglary and conspiracy to commit these crimes. (Pen. Code, 182, 187, 211, 459; unspecified statutory references that follow are to the Penal Code.) In a first trial, the jury acquitted defendant of murder and robbery, but could not reach a verdict on the charges of burglary and conspiracy. (The jury hung on the conspiracy charge as to codefendant Jones as well, but convicted him on all other counts.)

Defendant was retried on the two unresolved charges of burglary and conspiracy to commit murder, robbery and burglary. The jury convicted defendant of both offenses and found the charged firearm enhancements to be true. ( 12022.53, subd. (d), 12022.5, 12022.7.) The trial court sentenced defendant to an aggregate prison term of 75 years to life.

On appeal, defendant contends that the earlier acquittals on the murder and robbery charges precluded the introduction in the second trial of any evidence that defendant perpetrated the murder or robbery, or aided and abetted their commission. In a similar vein, he argues that principles of double jeopardy preclude the sentence enhancements for firearm discharge under section 12022.53. We disagree and affirm the judgment.

Facts and Proceedings

Given the nature of the claims on appeal, we provide only an abbreviated synopsis of the underlying events. As noted, two individuals were shot and killed in their home. An information charged defendant and Christopher Jones with both murders, as well as robbery, burglary and conspiracy to commit murder, robbery, and burglary. The jury acquitted defendant of the murder charges and robbery, but was unable to reach a verdict on the remaining burglary and conspiracy charges.

In retrying defendant on these two counts, the prosecution introduced testimony from investigators, forensic experts, and a number of other witnesses, including Scott F. (Scott), a friend of defendants. Scott recounted conversations with defendant in which defendant described in detail his participation and involvement in the attack.

Defendant testified at trial. He said he went to the victims house with Jones in order to purchase marijuana. While they were there, Jones pulled out guns, shot and killed both residents, and took marijuana. Defendant claimed he knew nothing of Joness plans, and that these events took him completely by surprise.

The jury convicted defendant on both counts--burglary and conspiracy to commit murder, robbery, and burglary--and found the charged firearm enhancements to be true. The trial court sentenced defendant to an aggregate prison term of 75 years to life, and this appeal followed.

Discussion

Defendant invokes theories of double jeopardy, res judicata and collateral estoppel to claim that his acquittal on charges of murder and robbery precluded the introduction of any evidence implicating him in these crimes in the subsequent retrial. Similarly, he argues that the jurys earlier verdicts of not guilty mean that the jurys subsequent findings that defendant discharged a gun in the commission of the two charged offenses cannot stand. Neither claim has merit.

Defendant offers a somewhat complicated analysis of his claims. We opt for a simplified approach.

Preliminarily, we note that this case does not involve the most basic form of double jeopardy. The first jury acquitted defendant of murder and robbery; the retrial did not seek to prosecute him a second time for the same offenses. The only charges at issue in the retrial were those on which the first jury was unable to reach a verdict, namely, burglary and conspiracy to commit murder, robbery and burglary. While this situation does not implicate the classic double jeopardy situation, it does potentially give rise to a related claim of collateral estoppel.

Under the collateral estoppel doctrine, which is a component of the Fifth Amendments double jeopardy clause [citation], when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. [Citation.] (People v. Catlin (2001) 26 Cal.4th 81, 123-124.) [C]ollateral estoppel bars relitigation of an issue decided at a previous trial if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial. [Citation.] (People v. Lawley (2002) 27 Cal.4th 102, 163.)

Defendant does not claim on appeal that he could not be retried on the unresolved charges, but instead asserts that the court erred in permitting any evidence relating to defendants involvement in a murder or robbery as a perpetrator or an aider or abettor. We question whether this claim is properly preserved for appeal.

Defendant moved to dismiss the charges of conspiracy and burglary, arguing that collateral estoppel precluded further prosecution, but the trial court denied that motion. The court then turned to defendants motion to exclude all evidence under collateral estoppel that the prosecutor intends to introduce through [two] witnesses . . . relating to issues previously decided in defendants [sic] favor by way of his acquittal of the homicide and robbery charges at the previous trial. The court noted the similarity between this motion and the collateral estoppel motion, and expressly asked defense counsel if there were any differences between the two. Counsel responded, None, Your Honor. The court therefore denied this motion on the same principle.

At no time did defense counsel offer the argument now being made on appeal, namely, that while the prosecution was not collaterally estopped from prosecuting defendant for the unresolved offenses, collateral estoppel limited the evidence that could be introduced to prove its case. Having failed to raise this argument in the trial court, defendant is precluded from doing so here. (Evid. Code, 353; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1185.)

Defendant contends that his attorney rendered ineffective assistance of counsel in failing to raise this argument. The predicate for defendants claim is lacking: there was no valid collateral estoppel argument to be made.

As we have already noted, the theory of collateral estoppel precludes the relitigation of an issue of ultimate fact. (People v. Catlin, supra, 26 Cal.4th at pp. 123-124; Ashe v. Swenson (1970) 397 U.S. 436, 443 [25 L.Ed.2d 469, 475].) The ultimate facts in the charges for which defendant was acquitted in the first trial--murder and robbery--are different from the ultimate facts at issue in the retrial. Here, the issue is not whether defendant participated in (or aided and abetted) the murders and/or a robbery. Rather it is whether defendant (1) committed a burglary and (2) conspired to commit murder, robbery and burglary.

The fact that defendant was acquitted of robbery has no bearing on whether defendant committed a burglary. Robbery is defined as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ( 211.) In contrast, burglary involves an entry (here, into a house) with intent to commit grand or petit larceny or any felony. ( 459.) The jurys verdict finding that defendant did not commit a robbery does not mean that defendant also did not commit a burglary. The ultimate facts at issue in each charge are different from those at issue in the other.

The same is true of the conspiracy charge. The jurys verdicts acquitting defendant of murder and robbery does not mean that defendant could not be found guilty of conspiring to commit these offenses.

A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance of the conspiracy. [Citations.] []  Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object of the conspiracy. [Citations.] . . . Conspiracy is an inchoate crime. [Citation.] It does not require the commission of the substantive offense that is the object of the conspiracy. [Citation.] (People v. Morante (1999) 20 Cal.4th 403, 416-417, fn. omitted.) [I]t is well settled in California that a conspiracy conviction will stand even though the defendant is acquitted of the substantive crime. (People v. Peppars (1983) 140 Cal.App.3d 677, 688.)

Thus, the ultimate issues involved in a prosecution for murder and robbery are different from the ultimate issues involved in a prosecution for conspiracy to commit those crimes. In the former case, the issue is whether defendant committed the substantive crimes; in the latter, it is whether defendant entered into an agreement to commit these crimes and committed overt acts in furtherance of the conspiracy.

Under these circumstances, principles of collateral estoppel did not preclude the prosecution from introducing evidence relating to defendants involvement in the events that unfolded at the victims house. The jurys findings in the first case resolved two ultimate issues: whether defendant was guilty of murder and whether defendant was guilty of robbery. Those ultimate facts were different from those at issue in the retrial, namely, whether defendant committed a burglary and whether defendant conspired to commit murder, robbery and burglary. The prior acquittals did not determine ultimate issues in the present case. And because these ultimate issues were not identical, there was no collateral estoppel problem.

Moreover, the collateral estoppel doctrine does not prohibit the admission of evidence that has been introduced in a trial resulting in acquittal from being admitted for all purposes at a subsequent proceeding. As the United States Supreme Court declared in Dowling v. United States (1990) 493 U.S. 342, 348, the doctrine does not exclude in all circumstances . . . relevant and probative evidence that is otherwise admissible . . . simply because it relates to alleged criminal conduct for which a defendant has been acquitted. (People v. Catlin, supra, 26 Cal.4th at p. 124; see also People v. Santamaria (1994) 8 Cal.4th 903, 922.)

Here, the challenged evidence was relevant to matters at issue in the retrial. Evidence is sufficient to prove a conspiracy to commit a crime if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.] [Citation.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)

The information charged that defendant and defendant Jones committed six overt acts in furtherance of the conspiracy to commit murder, robbery, and burglary. Specifically, the information charged that they (1) armed themselves with handguns, (2) obtained a potato to use as a silencer for one of the handguns, (3) drove to the victims residence, (4) placed a potato on a handgun, and (5) entered the victims home. A sixth overt act charged that a .44 handgun and a .38 handgun were discharged inside the residence. Evidence of what happened before and during the attack was therefore relevant to establish these overt acts.

Because collateral estoppel did not preclude the prosecution from introducing evidence relating to defendants involvement in the attack on the victims, defense counsel cannot be deemed ineffective for failing to raise such a claim. (People v. McPeters (1992) 2 Cal.4th 1148, 1173.)

Moreover, the lack of objection may have been a tactical decision, and therefore not a proper basis for a claim of ineffective assistance of counsel. (See People v. Zapien (1993) 4 Cal.4th 929, 980.) At trial, Scott detailed conversations he had with defendant in which defendant described his participation in the attack, and forensic experts and investigators testified about evidence found at the scene. Defense counsel used the now-challenged evidence to defendants benefit to challenge Scotts credibility, the veracity of defendants statements to Scott, and the prosecutions theories about the crime scene. Under these circumstances, a claim of ineffective assistance of counsel cannot succeed.

Defendant raises a related claim challenging the propriety of the enhancements under section 12022.53, subdivision (d) in the second trial. That statute provides for enhanced punishment if a defendant personally and intentionally discharges a firearm, causing great bodily injury or death. Defendant argues that the acquittals in the first trial precluded charging this enhancement in the second. We do not agree.

Again, we emphasize that different offenses were at issue in the two trials. The jury in the first trial never reached the question of whether defendant discharged a firearm and caused great bodily injury or death in the commission of the murder or robbery because it acquitted defendant of those two offenses. (See CALJIC No. 17.19.5.) The jury would have considered these enhancements only if it had convicted defendant of these substantive offenses.

The enhancement alleged in the second trial presented a different question for the jury, namely, whether defendant discharged a firearm and caused great bodily injury or death in the commission of a conspiracy. The fact that defendant was acquitted of murder and robbery has no bearing on whether firearm discharge enhancements can be alleged in conjunction with the entirely different offense of conspiracy.

In arguing otherwise, defendant contends that the acquittals in the first trial meant that the jury necessarily determined that defendant did not personally and intentionally discharge the firearm and cause great bodily injury or death. We do not agree with defendants logic. We know only that the first jury found that the prosecution had not met its burden of proving defendant of guilty of murder or robbery beyond a reasonable doubt. We do not know why. The jury may have believed that defendant planned to rob the victims with Jones, but withdrew from that plan upon arriving at the house, negating any liability on a conspiracy theory. The jury may have declined to find defendant guilty of murder on an aiding and abetting theory because defendant did not know of or share Joness intent. The jury may have determined that defendant had nothing whatsoever to do with the shootings. It is also possible that the jury simply exhibited lenience, or engaged in jury nullification. The point is that we do not know why the jury returned the verdicts it did. What we do know is that nothing in these verdicts conclusively established that defendant did not discharge a firearm and cause great bodily injury or death in the commission of a conspiracy to commit murder, burglary, and robbery. Under these circumstances, the enhancements in the second trial were proper.

The jury in the first trial did not return a verdict on the enhancement allegations because it was unable to agree on the conspiracy charge and it found defendant not guilty of the murder charges.

The enhancements were based on the allegations that defendant intentionally and personally discharged a firearm, to-wit: HANDGUN and proximately caused great bodily injury . . . to a person other than an accomplice, to-wit: KEVIN DAHNKE and SABRINA DAHNKE. The evidence presented at the first trial in support of the enhancement allegations and the murder charges was that the victims died due to multiple gunshot wounds which might have been inflicted by more than one weapon. The evidence also showed that some of the wounds were serious enough to be fatal, but others would not have caused death. In his summation to the jury, the prosecutor took the position the evidence showed that defendant and codefendant Christopher Jones armed themselves with guns and went to the victims residence for the purpose of committing robbery and killing the victims, and that both defendant and Jones fired the fatal shots. In defendants summation to the jury, his counsel asserted that defendant went to the victims residence for the sole purpose of purchasing marijuana. He had no intent to commit burglary, robbery, or murder. Defendant did not know that Jones, the killer, intended to shoot the victims. Thus, he was not guilty of any of the crimes and allegations charged against him.

The fact the jury acquitted defendant of the murders of both victims suggests the jury found defendant did not shoot either victim and, thus, did not intentionally and personally discharge a firearm proximately causing great bodily injury to them. If this were true, it would follow that the prosecutor should have been precluded from retrying defendant on the enhancement allegation. However, close inspection of the record reveals that the acquittals on the murder charges do not necessarily mean the jury found that defendant did not shoot either victim.

With respect to the fatal shootings, the jury instructions gave the jurors only two options--finding defendant was guilty or not guilty of either first degree murder or second degree murder. He was not charged with assault with a deadly weapon. The jurors were instructed that in order to find defendant guilty of first degree murder, they would have to find that he intended to kill a victim and acted with premeditation and deliberation; or that he killed the victim while intending to commit robbery or burglary; or that a co-participant in a robbery or burglary killed a victim and the killing was done to further that common plan or was the natural and probable consequence of the pursuit of that purpose; or that defendant aided and abetted another in the commission of the killing, with knowledge of the unlawful purpose of the perpetrator and with the intent to aid, promote, encourage, or instigate the killing. The jurors were further told that if they did not find defendant guilty of first degree murder, he could be convicted of second degree murder if the killing resulted from his intentional act, the natural consequences of which were dangerous to human life, and he did the act with knowledge of the danger to, and conscious disregard for, human life.

In acquitting defendant of home invasion robbery, but failing to reach a verdict on the burglary and conspiracy charges, the jurors necessarily found that defendant did not intend to take the victims property by force or fear but that he may have entered the residence to steal some marijuana without using any force. As noted above, the evidence was sufficient to support a finding that the victims wounds were caused by more than one gun and that some of the wounds suffered by each victim were not life-threatening. Thus, it is conceivable that, in acquitting defendant of murder, the jury concluded defendant shot one or both of the victims, but the shooting did not satisfy the requirements for murder beyond a reasonable doubt. For example, it is conceivable the jurors concluded they could not rule out that defendants shots were fired as reflexive reaction to codefendant Joness shooting of the victims and only after Jones inflicted the fatal wounds, and that the gunshots were fired by defendant without the intent to kill and in a manner that would not have resulted in the death of either of the victims. As pointed out above, it is also conceivable the jury concluded that defendant never had the intent to commit robbery, and that not all of the jurors believed he had the intent to commit burglary--thus, it was not established that his act of shooting one or both victims was done in furtherance of such a purpose. And it is conceivable the jury found that defendant did not aid and abet Jones in the commission of the killing, with knowledge of Joness unlawful purpose and with the intent to aid, promote, encourage, or instigate the killing and, thus, that Joness act of inflicting the fatal shots was not a natural and probable consequence of a common plan. If the jurors made these findings or could not rule out such a scenario, the instructions they were given would have compelled them to find defendant not guilty of first degree murder, even if he shot one or both of the victims. The instructions also would have compelled the jurors to acquit defendant of second degree murder if they found, or could not rule out, that he intentionally shot one or both victims only after Jones inflicted the fatal wounds, and the shots fired by defendant were not life-threatening and, thus, in the jurors view, were not done in a way that necessarily meant the natural consequence of the shooting was dangerous to human life.

While this scenario is speculative, the point is that it is conceivable and, hence, it is just as speculative to say the jury necessary found that defendant did not shoot either victim. Stated another way, the verdicts in the first trial did not conclusively establish that he did not intentionally and personally discharge a firearm, proximately causing great bodily injury to one or both of the victims. Consequently, the People were not precluded from retrying him on the section 12022.53, subdivision (d) enhancement, and the court did not err during the second trial by allowing the prosecutor to introduce evidence that defendant shot the victims.

Disposition

The judgment is affirmed.

HULL , J.

We concur:

SCOTLAND , P.J.

ROBIE , J.

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