People v. Fay CA2/7
B299385
| Cal. Ct. App. | Jul 19, 2021Background
- Defendant Tyre Fay was tried for multiple shootings; first jury acquitted him of two counts of assault with a semiautomatic firearm (Hernandez and Allison), hung on five counts (three attempted murders, one shooting at an occupied vehicle, one assault on Villamara), and a mistrial was declared on the hung counts.
- The People refiled the five hung counts in a new case and added gang enhancement allegations; at the second trial the jury convicted Fay on the retried counts and found the gang and firearm enhancements true.
- Key evidence: ballistic testing tied shell casings to a Heckler & Koch recovered at the suspects’ house; Fay and companions had gunshot-residue particles; eyewitness Hernandez identified Fay at a field show-up, but defense emphasized very dark lighting and challenged the reliability of identification.
- At the first trial the court excluded gang-related evidence because no gang allegations were charged; during the preliminary hearing for the earlier case victims testified they passed the house twice, which led prosecutors to conclude a gang motive existed and later to refile with gang allegations.
- Fay appealed, arguing (1) double jeopardy / collateral estoppel barred retrial on the hung counts because the acquittals necessarily found he did not shoot, and (2) the refiling with gang enhancements was vindictive prosecution. The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether double jeopardy / collateral estoppel barred retrial on hung counts after acquittals on two assault-with-a-semiautomatic-firearm counts | Retrial permitted because the prior acquittals did not necessarily decide the ultimate fact (i.e., whether Fay fired the gun) required for conviction on the retried counts | Acquittals on the two assault counts necessarily meant jurors found Fay did not shoot, so retrial on counts that require proof he shot violated double jeopardy/collateral estoppel | Forfeiture: Fay failed to raise this below so issue forfeited; on the merits, court held acquittals did not necessarily decide the shooting fact (jury could have found Fay shot but lacked awareness that Hernandez/Allison were in the car), so double jeopardy/collateral estoppel did not bar retrial |
| Whether refiling the hung counts with gang enhancements amounted to vindictive prosecution requiring dismissal | Prosecutor: no vindictiveness — defendants faced less exposure on retrial overall and the gang allegations were added only after new, legitimately discovered information at the preliminary hearing justified enhancements | Fay: adding gang allegations after mistrial increased his exposure and was punitive retaliation for exercising the right to jury trial | Court found a presumption of vindictiveness arose (because enhancements increased potential exposure) but the People rebutted it with objective, intervening circumstances: victim testimony at the preliminary hearing provided new gang-motive evidence not known earlier and the prosecution had legitimate concerns about victim availability and presenting gang proof at the first trial; denial of dismissal affirmed |
Key Cases Cited
- Currier v. Virginia, 138 S. Ct. 2144 (2018) (collateral estoppel in criminal cases requires that the earlier jury necessarily decided the ultimate factual issue)
- Ashe v. Swenson, 397 U.S. 436 (1970) (foundational collateral estoppel/double jeopardy principle)
- Yeager v. United States, 557 U.S. 110 (2009) (reiterating necessity standard for issue preclusion in criminal context)
- Brown v. Superior Court, 187 Cal.App.4th 1511 (2010) (examining record to determine what prior jury necessarily decided; hung counts not probative for issue preclusion)
- Bower, In re, 38 Cal.3d 865 (1985) (presumption of vindictiveness can arise where charges are increased after a mistrial)
- Ledesma, People v., 39 Cal.4th 641 (2006) (discussing presumption when charges are increased after appeal or retrial)
- Goodwin, United States v., 457 U.S. 368 (1982) (prosecutorial vindictiveness framework; direct evidence vs. presumption)
- Blackledge v. Perry, 417 U.S. 21 (1974) (rebuttal of presumption of vindictiveness requires objective justification)
- People v. Gurule, 28 Cal.4th 557 (2002) (failure to raise double jeopardy objection in trial court forfeits issue on appeal)