James Pettaway seeks a writ of habeas corpus on the ground that the State of California’s attempt to retry him for murder on the theory that he was the actual perpetrator of the murder violates the Double Jeopardy Clause. In a prior state court criminal proceeding, a jury determined that he did not actually perpetuate the murder. The district court denied the petition. We reverse.
I
At Pettaway’s first state court trial, it wаs established that on May 1, 1981, Petta-way, Lowana Walker and Michael Seals were at the house of Karen Taylor. At some point, Walker handed Pettaway a handgun with which he shot Seals in the back of the neck. Seals fainted, but when
*1043
he regained consciousness he saw Petta-way and Walker leaving the house through the front door. Taylor was subsequently found dead in the bathroom with two bullet holes in her head.
People v. Pettaway,
Pettaway was charged with and convictеd of one count of murder and one count of attempted murder. The information included sentencing enhancement charges that, with respect to both the murder and the attempted murder, Pettaway personally used a firearm and personally inflicted great bodily injury.
The prosecution tried the case on the theory that Pettaway personally shot Seals and Taylor. Although the jury initially was not given a jury instruction on aiding and abetting, it requested аnd received such an instruction during the third day of deliberations.
With respect to the charges of personal use of a firearm and personal infliction of great bodily injury, the jury was instructed that if it found Pettaway guilty on either substantive charge, it had the “duty” to determine whether Pettaway personally shot the relevant victim and that it could do so only if the proof established beyond a reasonable doubt that he had done so. The jury was further instructed that “аll twelve jurors must agree to the decision, and to any finding you have been instructed to include in your verdict.” At the same time that the jury found Pettaway guilty of both substantive counts, it also found, in a special verdict, that Pettaway did not personally use the handgun or inflict great bodily injury in the commission of the murder of Taylor. The jury was polled and was found unanimously to agree with the verdict.
On appeal, the California Court of Appeal reversed the murder conviction because it found reversible error in the aiding and abetting instruction.
On remand, Pettaway moved to preclude the state from proceeding on the theory that Pettaway personally shot Taylor. Pettaway argued that because the jury had found the sentence enhancements to be untrue with respect to the murder charge, the doctrines of double jeopardy and collateral estoppel barred the prosecution from advancing a theory that Pettaway shot Taylor. The trial court agreed, and because the prosecution said it could not proceed to trial solely on an aiding and abetting theory, the trial judge dismissed the murder count.
The California court of appeals reversed,
Pettaway,
II
We review
de novo
the denial of a petition for writ of habeas corpus.
Carter v. McCarthy,
The constitutional guarantee against double jeopardy includes the concept of collateral estoppel.
Ashe v. Swenson,
Collateral estoppel analysis involves a three-step process:
(1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was “litigated” in the first case; and (3) *1044 an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case.
United States v. Hernandez,
The state concedes that the question whether Pettaway fired the gun himself was actually litigated at the first trial. The prosecutor admitted that “at all times [his] theory of prosecution at [the original trial] and even now [аt the retrial] would be that [Pettaway] shot and killed Karen Taylor.” At argument, the state reiterated that it will not retry Pettaway if it is not permitted to claim that he fired the weapon.
The district court based its denial of Pett-away’s petition on the third step of the collateral estoppel analysis, because the court believed the jury could have “ ‘grounded its verdict on an issue other than that which the defendant seeks to foreclose frоm consideration.’ ” Specifically, the court found that because California law makes the direct perpetrator, of a crime and an aider and abettor equally guilty,
see People v. Beeman,
The district court’s conclusion assumes that collateral estoppel does not apply unless the issue previously determined was necessary to the question of guilt or innocence. Discussion of the necessity prong of collateral estoppel analysis is usually framed in terms of determinations that were necessary to the “judgment” or the “verdict.”
See, e.g., Segal v. American Tel & Tel. Co.,
The primary purpose of the rule that рrior resolution of an issue will have collateral estoppel effect only if it was necessarily decided is to ensure that the finder of fact in the first case took sufficient care in determining the issue. Wright, Miller & Cooper,
Federal Practice and Procedure: Jurisdiction
§ 4421, at 193 (1981).
1
The Supreme Court has addressed this concern by focusing on the nature of the original proceedings. In
Burlington v. Missouri,
In the present case, although the jury did not have to reach the question of personal use of the handgun if it did not find Petta-way guilty of murder, it was
required
to do so once it found him guilty. California law requires that the enhancement for personal use of a firearm be “pleaded and proven as provided by law.” Cal.Pen.Code § 1170.1 (Supp.);
see also People v. Hernandez,
The state also argues that the jury did not necessarily determine that Pettaway did not fire the handgun because that finding could be inconsistent with the guilty verdict.
The Supreme Court has stated that where truly inconsistent verdicts have been reached, “[t]he most that can be said is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.” ... It is equally possible that the jury, convinced of guilt, properly reached its conclusion on [one] offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.
United States v. Powell,
Although in our concept of double jeopardy the law must recognize that a jury can act in an irrational manner— even to the point of ignoring the law or the Judge’s instructions in a blend of *1046 undecipherable mercy — we must proceed on the basis that the jury in the first trial аcted in a legally correct manner. Otherwise, the ultimate issue of fact decided by any jury could be second guessed and we could never apply the principle of collateral estoppel.
De La Rosa v. Lynaugh,
This is not а case in which there is a “truly inconsistent verdict.” To the contrary, there is a rational explanation that takes into account the whole of the jury’s verdict. The jury was instructed that even if Pettaway did not personally use the weapon, he could be guilty of first degree murder as long as he aided and abetted the murderer. Therefore, the specific finding that he did not personally use a firearm was not inconsistent with the conviction; rather, it wаs as if the jury had issued a special verdict to that effect regarding the substantive offense.
Pursuant to California law, Pettaway’s use of the handgun was pleaded and tried to the jury. The jury necessarily decided that Pettaway did not fire the fatal shots. For these reasons, we hold that this determination has collateral estoppel effect. We must next determine whether that effect may bar the prosecution from proceeding on the theory that Pettaway fired the handgun.
Ill
The Fifth Amendment guarantee against double jeopardy embodies the concept of collateral estoppel.
Ashe,
“[T]he rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th Century pleading book, but with realism and rationality.”
Ashe,
In
Grady v. Corbin,
*1047 The Supreme Court held that the Double Jeopardy Clause barred the prosecution, stating that
the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.... The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct. As we have held, the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding. On the other hand, a State cаnnot avoid the dictates of the Double Jeopardy Clause merely by altering in successive prosecutions the evidence offered to prove the same conduct.... This holding would not bar a subsequent prosecution on the homicide and assault charges if the bill of particulars revealed that the State would not rely on proving the conduct for which [the defendant] had already been convicted.
The present case presents essentially the same situation. When Pettaway moved to prevent the State from proceeding on the theory that he shot Taylor himself, the prosecution admitted that it could not proceed on any other theory, because it could suggest no person Pettaway might have aided and abetted. The state trial court then prohibited the prosecution from proceeding on a theory based on conduct the state had previously failed to prove beyond a reasonable doubt. 4 The trial judge stated that he would not allow the prosecution to present to the jury the theory that “after he shot Michael Seals he then went and shot Karen Taylor.”
The state trial court did not prohibit the introduction of evidence tending to show that Pettaway shot Taylor. The court’s ruling did, however, make inadmissible evidence offered only to prove that Pettaway pullеd the trigger. For example, the trial judge stated that he would not allow Lowa-na Walker to testify that she saw Pettaway shoot Taylor because “it is irrelevant because being offered to prove not that he aided and abetted her or anybody else, but that he actually did the killing.” 5 The judge stated that he would allow the prosecution to introduce evidence supporting both theories, 6 but explained that he would “instruct the jury that you cannot convict this man on any theory that he personally used the gun.” Once this position was made clear, the prosecution admitted that it could present no evidence relevant to an aiding and abetting theory, and the trial judge dismissed the case. In other words, as in Grady, the trial court correctly barred reprosecution on a theory the prosecution had tried and failed to prove before.
If the state is allowed to proceed on the theory that Pettaway pulled the trigger himself, it is possible that the second jury would convict Pettaway by reaching a conclusion directly contrary to that reached by the jury in the first trial. This possibility is abhorrent to the principles underlying the Double Jeopardy Clause.
See Dowling v. United States,
“that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety аnd insecuri-ty_” Green v. United States,355 U.S. 184 , 187 [78 S.Ct. 221 , 223,2 L.Ed.2d 199 ] (1957). Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the offenses charged. See, e.g., Tibbs v. Florida,457 U.S. 31 , 41 [102 S.Ct. 2211 , 2217,72 L.Ed.2d 652 ] (1982) (noting that the Double Jeopardy Clause “prevents the state from honing its trial strategies and perfecting its evidence through successive attempts at conviction”).
Grady,
Allowing the state to reprosecute Petta-way for murder on the theory that he was the actual perpetrator of the murder permits the state to remedy the flaws it perceives as having been fatal to its case the first time, and to attempt to convince a second jury of that which it tried and failed to prove to the first jury. “Having received one fair opportunity to offer whatever proof it could assemble, the State is not entitled to another.”
Bullington,
For these reasons, we hold that it would violate double jeopardy principles if, on retrial of the second offense, the prosecution attempted to prove that Pettaway did personally use the gun. We must, however, emphasize the limits of our holding. What we hold is that when enhancement of the penalties for a substantive offense is presented to the trial jury for its determination beyond a reasonable doubt, and the jury expressly determines the enhancement issue adversely to the prosecution, the prosecution cannot seek to prove the contrary at a second trial of the substantive offense, where it is not clear that there was simply an inconsistent verdict in the first trial. Of course, the prosecution could still seek to prove Pettaway guilty of first degree murder under an aiding and abetting theory, but, as we have pointed out, the prosecutor expressly eschеws any intention to do so. Thus, because this prosecution must be based upon personal use of a firearm or nothing, we are constrained to hold that it cannot proceed at all.
IY
The district court’s order is REVERSED and the cause is REMANDED with instructions to issue the writ of habeas corpus with respect to Pettaway’s reprosecution for murder.
Notes
. The other major concern is that appellate review of a determination may not be avаilable where the issue is not necessary to the determination of the final judgment. Wright, Miller & Cooper,
Federal Practice and Procedure: Jurisdiction
§ 4421, at 193 (1981). In California, the enhancement of a sentence pursuant to a finding of personal use of a firearm may be appealed.
See People v. Harty,
. Where the original proceedings have all the characteristics of a trial on guilt or innocence, it does not matter whether the fact at issue was originally determined in the guilt/innocence phase, the sentencing phase, or, as here, as an enhancement factor tried during the guilt/innocence phase.
See, e.g., Delap v. Dugger,
. California law requires that the enhancement be proved beyond a reasonable doubt, and that a unanimous jury determination is required.
See, e.g., People v. Allen,
That being so, there is no need to grant appellant’s motion to augment the record with evidence that was not before the district court, and we decline to do so.
Cf. United States v. Walker,
. Although the prior proceedings in
Vitale
and
Grady
resulted in convictions, an acquittal that has collateral estoppel effect has essentially the same double jeopardy ramifications as a conviction.
See North Carolina v. Pearce,
. Whether such a ruling would have been correct is not at issue in this appeal.
. The trial court indicated that it would allow the prosecution to present evidence relevant to an aiding and abetting theory, such as ballistic evidence regarding the gun used and the bullets found in Pettaway's possession.