THE PEOPLE, Plaintiff and Respondent, v. TORY PALMER BRATTON, Defendant and Appellant.
E078627
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 9/26/23
CERTIFIED FOR PARTIAL PUBLICATION* (Super.Ct.No. FWV07728)
OPINION
Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Robin Urbanski, Alan L. Amann, Juliet W. Park, A. Natasha Cortina, Felicity Senoski and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
*
Pursuant to
At the age of 16, defendant Tory Palmer Bratton confessed to robbing a local market, with an accomplice, shooting the clerk dead, and taking $184. At his trial, his counsel argued that defendant‘s confession was false and that he did not participate in the robbery at all. However, trial counsel did not argue that, even if defendant did participate, he was not the shooter. Defendant was convicted of (among other things) first degree murder, with a personal firearm use enhancement and felony-murder special circumstances. He appealed; we affirmed.
When defendant filed a petition to vacate the murder conviction under
The People concede that this was error. In ruling on a
Anticipating this response, defendant contends that, under standard principles of issue preclusion (a/k/a collateral estoppel), preclusion does not apply here because:
- Whether defendant was the shooter was not actually litigated.
- Trial counsel had an incentive not to contest whether defendant was the shooter.
- The significance of whether defendant was the shooter was small at trial but, due to the then-unforeseeable enactment of
section 1172.6 , has since become great. Section 1172.6 is a significant change in the law that warrants reexamination of whether defendant was the shooter.
We agree that standard principles of issue preclusion apply here. However, we hold that the issue of whether defendant was the shooter was actually
I
STATEMENT OF FACTS
A. The Area of the Crime.
Defendant‘s arguments require an understanding of the layout of the area of the crime. The exhibits that we have include two aerial views of the scene. However, due to the age of the case, two other exhibits that were maps of the scene have been destroyed. Defendant asks that in lieu of the missing exhibits, we consider a current Google Maps view of the area. We deem this to be a request for judicial notice of a Google Maps view of the area, which is granted. (See
The area involved is the southeast corner of Mountain Avenue (north-south) and I Street (east-west) in Ontario. On the corner itself, there was a gas station. Immediately east of that was the I Street Market, and immediately east of that was an alley running north-south.
On Mountain, south of the gas station, there was a Taco Bell, and south of that, a McDonald‘s. The alley ran behind (i.e., east of) both of these businesses.
Behind the McDonald‘s, on the other side of the alley, there was an apartment complex, made up of 823 and 827 Palmetto Street. Between the two buildings, there was a small triangular area. On the night of the crimes, a white pickup truck was parked in that triangular area. There was also a wrought iron fence, with a gate, between the two buildings.
B. The Arrival of the Police at the Scene.
On June 14, 1995, around 8:40 p.m., a 911 operator answered a call but heard only “a moaning sound.”
Also around 8:40 p.m., Ellen Trakes drove to an ATM on I Street, directly across from the market, to get cash. She saw three “kids,” all male, come out
After getting the cash, Trakes went to the market. There she found the dead body of the clerk, Swindel “Sonny” Singh, lying behind the counter. He had been shot once, in the left chest. The bullet went through his heart, killing him. Trakes picked up the store‘s phone to call 911, but found the 911 operator already on the line.
When the police arrived, the cash register drawer was open and the money tray was missing. On the floor, behind the counter, they found one fired bullet and one bullet casing. The casing was .380-caliber. The bullet was fully jacketed and consistent with .380-caliber. The presence of the casing meant that the gun was semiautomatic. The bullet hit a tobacco display behind the counter, indicating that the shot was fired from the customer side of the counter while Singh was standing behind the counter, at the cash register. In a planter south of the market, the police also found “fresh footprints.”
C. Other Eyewitnesses.
1. Irene Lopez.
Irene Lopez lived in the apartment complex. About 8:30 p.m., she was driving north through the alley to go home. She saw three Black men and one Black woman standing in a planter area behind the I Street Market. One man was wearing a white tank top. The tallest man had something shiny.2
2. John Miranda.
John Miranda also lived in the apartment complex. Around 8:35 p.m., he was at a payphone at the McDonald‘s when he heard two backfires coming from the north.
Seconds later, Miranda finished his call and started walking home across the alley. He saw two Black men, in their early 20‘s or younger, running south down the alley. The one in front was holding a gun. The one in back was carrying a dark object, about a foot and a half wide, in both hands. One of them was wearing a white T-shirt or tank top.
The one with the object went to a white pickup and put something under the tire. “He then panicked and went towards the alley,” where he met up
3. Mary Prestridge.
Mary Prestridge, too, lived in the apartment complex. Around 8:40 p.m., as she was leaving her apartment to go to the market, a Black man, aged 18 to 20 and “kind of tall,” ran into the triangular area. He looked around, under, and into a white pickup.
A second young Black man “came running down the alley and stopped and stuck his head around the corner and said something to [the first] man.” The first man then ran east and jumped over a gate. The second man did not go with him, but Prestridge was not sure where he went.
4. Second-Hand Statements of Unknown Witnesses.
When Detective Michael Cover arrived at the scene, other officers told him that according to witnesses, two Black men — one holding a money tray — had jumped over the wrought iron fence.3
D. Defendant‘s Confession.
About two weeks later, “[a]fter various investigations,” Detective Cover interviewed defendant at the police department. In his opinion, defendant was not under the influence of any controlled substance. Defendant said he had last used PCP two days before the interview.
Defendant said that after he took “a couple of hits off” a “sherm,” he and a friend decided to rob the I Street Market. He had shopped there; he knew Singh and Singh knew him.
They drove to the market. Defendant brought along a gun that he claimed to have found in a park. It was a .380 semiautomatic; he had loaded it with fully jacketed bullets.
They spent 10 or 15 minutes casing the store, going back and forth between the planter area and the front of the store, to look inside. When defendant saw there were no customers inside, he and his friend went in.
black bag. Singh said defendant‘s name — “Tory” — and defendant shot him once in the chest. He explained that he shot Singh because “he realized Sonny knew him.” At that moment, defendant was in front of the counter, to the right of the register; Singh was behind the counter, between the register and the tobacco display.
According to defendant‘s account, he and his friend went out the front door, turned right (east), then turned right again (south) down an alley. At this point, the friend was holding the black bag; he turned left into an area where there were some trucks and tried to hide the bag by a truck. Defendant told him, “No, not here. Let‘s go.”
They resumed running south down the alley. Then the friend turned left (east). Defendant ran west toward the Taco Bell. He threw the gun into a dumpster at the Taco Bell. He continued west to a friend‘s apartment and stayed there for a while before going home. He took the money out of the money tray, then threw both the money tray and the black bag into a dumpster by his apartment.
The money totaled $184. Defendant had planned to give his friend half but decided to give him only $60 because defendant “had done the killing.”
Initially, defendant refused to identify his friend. Then he said his name was “Jax” and described him as a tall, thin Black male. Defendant refused to say any more about him because he did not want to be a “snitch.”
Over defendant‘s objections, the trial court allowed Detective Cover to testify that he could tell from an interviewee‘s “body language and answers and how quickly they respond,” “their tone, their inflection,” “and a variety of other things,” whether an interviewee was telling the truth. He implied that defendant was telling the truth because his body language changed from “defensive” to “open” and “relaxed“; because he gave the same account three times, with “no discrepancies at all“; and because he gave specific details that he would not have known if he was not present.
Detective Cover left defendant in a room with a second person who had been arrested with him. Defendant said “he had shot Sonny,” and now he would be a “big man” in jail and “nobody would . . . fuck with him.” (Inner quotation marks omitted.) “He also said that he had told the detective that he had used PCP at the time, even though he hadn‘t, because it would give him an alibi of temporary insanity and because of that he would only do two years in prison for the homicide.”
The police searched the area around the Taco Bell, including the dumpster, but did not find a gun.
Defendant‘s father testified that he showed defendant the newspaper article and asked, “Do you know anything about this[? M]ight have been somebody you know.” Defendant “grabbed it,” looked at it, and kept it.
II
STATEMENT OF THE CASE
A. The Relevant Instructions.
In 1996, at trial, the jury was instructed:
“Every person who unlawfully kills a human being with malice aforethought or during the commission or attempted commission of a robbery or a burglary is guilty of the crime of murder in violation of Section 187 of the Penal Code.
“In order to prove such crime each of the following elements must be proved:
“1. A human being was killed.
“2. The killing was unlawful, and
“3. The killing was done with malice aforethought or occurred during the commission or attempted commission of a robbery or a burglary.” (CALJIC 8.10 [1994 rev.].)
“In this case the prosecution has asserted two separate theories of first degree murder: first degree felony murder, and willful, deliberate, and premeditated murder.”
“If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.” (CALJIC 8.20 [5th ed.].)
“The
unlawful killing of a human being[,] whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery or burglary, or as a direct causal result of the crime of robbery [sic; omitting burglary] is murder of the first degree when the perpetrator had the specific intent to commit the crime of robbery or burglary.” (CALJIC 8.21 [5th ed.].)
B. The Prosecutor‘s Arguments.
In closing argument, the prosecutor took it for granted that defendant was the shooter. However, he did argue that defendant‘s confession was true, because defendant knew that the murder weapon was a .380-semiautomatic handgun and knew that the bullet was fully jacketed; defendant also correctly stated where the shooter was standing, the number of shots fired, the location of the victim‘s wound, and the location where the victim fell.
In discussing the felony-murder rule, the prosecutor continued to assume that defendant was the shooter. Thus, he did not argue that under the felony-murder rule, defendant was guilty of first degree murder even if someone else was the shooter. However, he did argue that under the felony-murder rule, defendant was guilty of first degree murder even if he did not intend to kill: “The unlawful killing of a human being whether intentional, unintentional, or accidental. It doesn‘t have to be on purpose, under felony-murder. During the commission of a robbery or burglary.”
C. Trial Counsel‘s Arguments.
Trial counsel argued that defendant was not involved in the crimes at all. Defendant‘s confession was false; he confessed because he wanted to be “a big man with his friend on the street,” he was under the influence of PCP, and he mistakenly believed he could be sentenced to as little as two years. He could have gotten the details of his confession from the newspaper article, “from somebody on the street,” by logical inference, or by lucky guesswork. Some of the details of his confession were incorrect, such as his description of his route away from the scene. Trial counsel also noted that none of the eyewitnesses had identified defendant.
D. Conviction and Appeal.
The jury found defendant guilty of first degree murder (
In defendant‘s direct appeal, we affirmed the judgment. (People v. Bratton (June 4, 1998, E019605) [nonpub. opn.].) Defendant argued that the trial court erred by allowing Detective Cover to testify that (1) he could tell whether a suspect was telling the truth, and (2) defendant was telling the truth. We held that this was error, but it was harmless in light of the other evidence that defendant was telling the truth.
E. Section 1172.6 Petition.
In 2021, defendant filed a petition to vacate the murder conviction pursuant to
At a prima facie hearing, the trial court took judicial notice of the entire case file. After hearing argument, it denied the petition; it ruled that our opinion in defendant‘s direct appeal established that he was the actual killer.
III
SECTION 1172.6
Subject to exceptions for killings in a heat of passion or in unreasonable self-defense (
In addition, under the felony-murder rule, as it stood in 1995, a killing perpetrated in the commission or attempted commission of a specified felony — including robbery and burglary — was also first degree murder. (Former
killer had no intent to kill. “““Under the felony-murder rule those who commit enumerated felonies [we]re ‘strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted
In 2018, the Legislature limited the scope of the felony murder rule. (
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
“(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life . . . .” (
§ 189, subd. (e) , italics added.)5
At the same time, the Legislature also enacted
“hold a hearing to determine whether the [defendant] has made a prima facie case for relief.” (
Although it is not express in the statute, the Supreme Court has held that, at the prima facie hearing, the trial court can consider the record of conviction “to distinguish petitions with potential merit from those that are clearly meritless.” (People v. Lewis (2021) 11 Cal. 5th 952, 971 (Lewis); see id., at pp. 970-972.) At the prima facie stage, “““[a] court should not reject the [defendant‘s] factual allegations on credibility grounds . . . .’ [Citation.] ‘However, if the record, including the court‘s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court is justified in making a credibility determination adverse to the [defendant].“” [Citation.]” (Ibid.)
If the trial court finds a prima facie case, it must hold an evidentiary hearing. (
We review the denial of a petition at the prima facie stage independently. (People v. Jenkins (2021) 70 Cal. App. 5th 924, 933.)
IV
RELIANCE ON OUR PREVIOUS OPINION
Defendant contends that the trial court erred by relying on the facts stated in our previous opinion.
On February 16, 2022, we held that by allowing consideration of ” ‘the procedural history’ ” in a prior appellate opinion, the Legislature intended to prohibit consideration of “the factual summar[y]” in a prior appellate opinion. (People v. Clements (2022) 75 Cal. App. 5th 276, 292 (Clements); accord, People v. Cooper (2022) 77 Cal. App. 5th 393, 400, fn. 9.) And “[i]f such evidence may not be considered at an evidentiary hearing to determine a petitioner‘s ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner‘s ineligibility for resentencing at the prima facie stage.” (People v. Flores (2022) 76 Cal. App. 5th 974, 988, fn. omitted (Flores).)
Nevertheless, on March 4, 2022, at the prima facie hearing, the trial court relied on the statement of facts in our prior opinion in finding that defendant was the actual killer.
Arguably, trial counsel forfeited defendant‘s present contention by failing to raise it below. However, “““[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.“” [Citation.]” (People v. Perez (2020) 9 Cal. 5th 1, 7-8.) Here, forfeiture is a close question; it turns on whether, by March 4, competent and knowledgeable counsel would have been aware of the January 1 amendment and our February 16 opinion (which was not yet final). (See ibid.)
Under Clements and Flores, the trial court erred. The People even concede the error. They argue only that the error was harmless because the record of conviction conclusively establishes that the jury found that defendant was the actual killer. We therefore turn to this issue.
V
EVIDENCE THAT DEFENDANT WAS NOT THE SHOOTER
Defendant contends that there is substantial evidence in the record of conviction that he was not the shooter.
It is not entirely clear how this contention fits into his overall view of the case. He frames it as a contention that he made a prima facie case for relief. As such, it seems to be a preemptive contention that the trial court‘s error in relying on our previous opinion was not harmless. The People do not argue, however, that the error was harmless because there was no evidence that defendant was not the shooter.
We discuss this contention anyway because it is relevant to defendant‘s separate contention that his trial counsel had an incentive not to contest whether he was the shooter. (See part VI.B, post.) If the evidence that defendant was not the shooter was weak, that would tend to show that trial counsel chose not to contest the issue for that reason alone. If, on the other hand, the evidence was strong, that would tend to show that (as defendant argues) trial counsel nevertheless chose not to contest the issue for some overriding tactical reason.
There was considerable evidence that defendant was the shooter. As the prosecutor argued, his confession, with a few exceptions, matched the eyewitnesses’ accounts as well as the physical evidence. Trial counsel argued valiantly that defendant gave a false confession; however, once the jury rejected this, presumably it would conclude that he confessed truthfully both to being present and to being the shooter.
Defendant asserts, however, that “there was ample basis for reasonable doubt that [his] confession to being the gunman was the truth,” in several respects.
He also notes that, when Lopez saw three men standing in the planter before the robbery, the tallest one had something shiny in his hand. Defendant concludes that, at five feet six inches tall, he was not the robber holding the gun. However, absent the heights of the other robbers, this is speculative; if they, too, were juveniles, they may have been shorter.6 In any event, it would not be surprising if the gun changed hands while the robbers were standing in the planter; defendant and the others were taking turns peeking into the store, and presumably they did not want to be seen holding a gun as they did so.
Next, defendant notes that his account of who was carrying the money tray was unconvincing. He claimed that he pulled out the gun, took the money tray, and put it in a black bag. As he argues, however, it is more likely that one robber held a gun on the victim while a second robber fussed with the bag and the money tray. Even in defendant‘s account, his friend was holding the money tray as they ran down the alley. In addition, an unknown witness saw a robber with a money tray jump over the wrought iron fence; this cast doubt on defendant‘s claim that the money tray was in a black bag, as well as on his claim that he had the money tray when he got home.
None of this, however, went to whether defendant was the shooter. At best, it showed that his confession was not entirely truthful. However, that was equally relevant to whether he was present at all. It did not tend to show that, even if he was present, he was not the shooter.
Defendant then notes that he said there were only two robbers when eyewitnesses saw three.7 Again, this does not specifically go to whether defendant was the shooter; it goes to the truthfulness of his confession as a whole.
It does tend to show that defendant was trying to protect his cohorts. In defendant‘s view, the very fact that he was trying to protect the third robber is some evidence that the third robber was the shooter. However, he was also
Last but not least, defendant concedes that his claim that he found the gun in the park was not very credible. He asks us to infer, however, that he had to lie about where the gun came from, because — not being the shooter — he did not know. But it is also inferable that he was protecting the person he got the gun from. Indeed, as we already know he was protecting his accomplices, this is a more plausible inference.
Defendant argues overall that the evidence is consistent with a scenario in which he participated in a robbery with older cohorts (possibly fellow gang members)8 and took the fall for a murder actually committed by one of them because he was a juvenile. This
is pure speculation. It appears that he confessed truthfully to both the robbery and the murder but fudged any details that would have inculpated his cohorts.Are defendant‘s inferences that he was not the shooter illogical or impossible? No. Thus, we agree that there was substantial evidence — meaning, in this context, evidence sufficient to raise a reasonable doubt — that he was not the shooter. But were these inferences likely to convince a jury — once it found that defendant had truthfully admitted to police that he robbed and burglarized the market — that he might have been lying when he said he shot the clerk? No, not likely.
We will return to this point in part VI.B, post.
VI
THE PRECLUSIVE EFFECT OF THE JURY‘S FINDINGS
The People argue that the record of conviction conclusively establishes that defendant was the actual killer. They assert that the instructions on both deliberate and premeditated murder and felony murder required the jury to find that defendant was the actual killer. They also point to the fact that the jury found the personal firearm enhancement true.
Defendant argues, however, that the jury‘s findings are not conclusive, because they do not meet the requirements for issue preclusion.
Defendant aptly cites Strong. There, the question was whether a true finding on a felony-murder special circumstance — which required that the defendant be a major participant in the underlying felony and acted with reckless indifference to human life — established that the defendant was ineligible for relief under
“[I]ssue preclusion bars relitigation of issues earlier decided ‘only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion issought must be the same as, or in privity with, the party to the former proceeding.’ [Citation.]” (Strong, supra, 13 Cal.5th at p. 716.)
“And while these threshold requirements are necessary, they are not always sufficient ....” (Strong, supra, 13 Cal.5th at p. 716.) There are exceptions when (1) “the party sought to be precluded . . . did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action,” or (2) “it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action . . . .” (Rest.2d Judgments, § 28(5).) There is also an exception (3) “when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.” (Strong, supra, 13 Cal.5th at p. 716.)
Defendant contends that whether he was the shooter was not actually litigated.
“An issue is actually litigated ‘[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined . . . [Citation.]” (People v. Sims (1982) 32 Cal.3d 468, 484 (Sims); accord, Rest.2d Judgments, § 27, com. d.) By contrast, “[a]n issue is not actually litigated if the defendant might have interposed it as an affirmative defense but failed to do so; nor is it actually litigated if it is raised by a material allegation of a party‘s pleading but is admitted (explicitly or by virtue of a failure to deny) in a responsive pleading; nor is it actually litigated if it is raised in an allegation by one party and is admitted by the other before evidence on the issue isadduced at trial; nor is it actually litigated if it is the subject of a stipulation between the parties.” (Rest.2d Judgments, § 27, com. e.)
“Although ‘“[a] former judgment is not a collateral estoppel on issues which might have been raised but were not; just as clearly, it is a collateral estoppel on issues which were raised, even though some factual matters or legal arguments which could have been presented were not.“’ [Citations.]” (People v. DeMontoya (2022) 85 Cal.App.5th 1159, 1180 (DeMontoya).) “[T]he imposition of an additional requirement that the prior judgment also be supported by some particular level of litigation activity would be a novel and troublesome departure from settled law.” (State Farm Mut. Auto. Ins. Co. v. Superior Court (1989) 211 Cal.App.3d 5, 15, fn. 12.)10
Under the definition in Sims, whether defendant was the shooter was actually litigated. The firearm enhancements were alleged in the information; they were submitted to the jury for determination; and the jury made a true finding on them. In addition — if more were needed — the prosecution introduced evidence that defendant was the shooter. True, trial counsel did not introduce evidence nor argue that defendant was not the shooter, but he had the opportunity to do both.
Defendant uses a different definition, which he cites to Hardy v. America‘s Best Home Loans (2014) 232 Cal.App.4th 795, 806 (Hardy): “‘Whether an issue was actually litigated in a prior action . . . is generally determined by ascertaining whether the partiesto the original action
Hardy did not say this. Rather, like Sims, it said: “An issue is ‘actually litigated’ when it ‘is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined . . . .’ [Citations.]” (Hardy, supra, 232 Cal.App.4th at p. 806.) It then added a “see” cite to Corpus Juris Secundum, and quoted — in brackets — the rather different definition on which defendant relies. (Id. at p. 806.) Thus, Hardy is by no means a holding that California actually follows this different definition.
In any event, the two definitions can be harmonized. In the criminal context, an issue is “disputed” when it is raised by the accusatory pleading and the defendant does not admit it. In that event, the People are put to their proof; if they fail to prove the issue in their favor — generally, beyond a reasonable doubt — it must be resolved in the defendant‘s favor, regardless of whether the defendant actively contests it.
In Sims itself, a county proposed to reduce Sims‘s welfare benefits, alleging that she had obtained past benefits fraudulently. Sims requested a “fair hearing” before a Department of Social Services (DSS) hearing officer. (Sims, supra, 32 Cal.3d at p. 473.) At the fair hearing, the county claimed the hearing officer had no jurisdiction and declined to present any evidence. The hearing officer ruled that the DSS did have jurisdiction and that there had been no fraud. (Id. at p. 474.)Meanwhile, the People had charged Sims with criminal welfare fraud. (Sims, supra, 32 Cal.3d at p. 473.) On Sims‘s motion, the trial court dismissed the criminal proceeding, based on issue preclusion. The People appealed. (Id. at p. 474.)
The Supreme Court affirmed. (Id. at p. 490.) It held, as relevant here: “[T]he welfare fraud issue was ‘properly raised’ by [Sims]‘s request for a fair hearing. . . . After the fair hearing, the controversy was ‘submitted’ to the DSS for a ‘determination’ on the merits. The hearing officer found that the County had failed to prove that respondent had fraudulently obtained welfare benefits.”
“Thus, it is clear that [Sims]‘s guilt or innocence of welfare fraud was actually litigated at the DSS fair hearing. The County‘s failure to present
Sims is all but on point. Indeed, the facts here present an even stronger case for issue preclusion: In Sims, the county claimed a legal justification for its failure to present evidence, namely the DSS‘s supposed lack of jurisdiction. Here, by contrast, defendant did not claim any such legal justification for his failure to contest the issue of whether he was the shooter. He had a full and fair opportunity to contest it; his trial counsel simply chose not to.Case after case has held that an issue can be actually litigated, notwithstanding one party‘s failure to contest it. (Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 869 (Murray) [“[i]t is the opportunity to litigate that is important . . . not whether the litigant availed himself or herself of the opportunity.“], and cases cited at pp. 869-875; accord, Dailey v. City of San Diego (2013) 223 Cal.App.4th 237, 257-258.)
Defendant argues that Sims, Murray, and the other cases cited ante are distinguishable because they all involved defensive collateral estoppel (i.e., a defendant‘s assertion of collateral estoppel against a plaintiff), whereas this case involves offensive collateral estoppel (i.e., a plaintiff‘s assertion of collateral estoppel against a defendant). The cases themselves, however, do not draw this distinction. The Restatement definition of “actually litigated” is not limited to the defensive context. (Rest.2d Judgments, § 27, com. d.) And we see no reason why the two contexts would call for different rules.
DeMontoya, supra, 85 Cal.App.5th at page 1180 applied the Sims standard in the context of offensive collateral estoppel. It held that the denial of the defendant‘s 2018 motion to withdraw her guilty plea operated as offensive collateral estoppel, requiring the denial of her 2021 motion to withdraw the same guilty plea. The defendant argued that in the 2018 proceeding, she did not actually litigate the claim of mental health issues that she raised in the 2021 proceeding. (Id. at p. 1180.) The appellate court cited Sims and relied on its standard of “actually litigated.” (Id. at pp. 1180-1181.) It noted that the defendant had claimed her mental health as an issue in 2018; “[s]he just did not provide sufficientevidence in support of her first motion . . . .” (Id. at p. 1181.) Therefore, that issue had been actually litigated. (Ibid.)12
Gonzalez had been convicted of first degree murder, with a robbery-murder special circumstance. (Gonzalez, supra, 65 Cal.App.5th at p. 426.) His
In sum, then, we hold that whether defendant was the shooter was actually litigated for purposes of issue preclusion.
B. Incentive to Contest.
Defendant contends that his trial counsel had no incentive to contest14 whether he was the shooter.
There are four problems with this analysis.
First, there was a third way out of the dilemma: All trial counsel had to do was move to bifurcate the firearm enhancements. Then he could argue in the first phase that defendant did not participate in the crimes; and, if the jury resolved that issue against defendant, he could argue in the second phase that defendant was not the shooter.
Second, trial counsel would not have viewed an enhancement term of up to 10 years as de minimis. It must be remembered that defendant was 16 when he was arrested. He was entitled to some conduct credits, although they were limited to 15 percent (
Defendant argues that trial counsel would have discounted this difference in parole eligibility because, at the time, “it was perceived” that prisoners sentenced to life wereunlikely ever to gain parole. We doubt that we can take judicial notice of this. Even if it was true at the time, however, trial counsel would have recognized that its truth was a function of the politics of the governor and of the parole board, which can swing back and forth over a period as long as 25 years.
Third, defendant misstates the effect of the instructions; they did not automatically require the jury to find him guilty of felony murder if he was guilty of robbery or burglary.
Here, however, the jury was not instructed on the felony-murder rule as a theory of vicarious liability. It was instructed on it only as a rule of strict liability and of degree-fixing.
Specifically, it was instructed that “[e]very person who unlawfully kills a human being . . . during the commission or attempted commission of a robbery or a burglary is guilty of the crime of murder.” (CALJIC 8.10 [1994 rev.], italics added.) It was also instructed that “[t]he unlawful killing of a human being, whether intentional,unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery or burglary, or as a direct causal result of the crime of robbery [sic], is murder of the first degree when the perpetrator had the specific intent to commit robbery or burglary.” (CALJIC No. 8.21 [5th ed. 1988].)
It was not given CALJIC No. 8.27 (6th ed. 1996), which would have stated: “If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of [robbery or burglary], all persons, who either directly and actively commit the act constituting such crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree.”
Thus, the instructions indicated that to be guilty of murder at all, defendant had to be the actual killer.
Under the instructions as given, if trial counsel conceded that defendant participated in the robbery and burglary, it did not follow that defendant was guilty of felony murder. Trial counsel therefore could safely argue that, even if defendant was present, he was not the shooter, without significantly increasing defendant‘s risk of being convicted of murder.
Fourth, as discussed in part V, ante, the evidence that defendant was not the shooter was weak and largely speculative. Trial counsel could well have
We therefore conclude that trial counsel had an adequate incentive to contest whether defendant was the shooter.
Defendant cites Haring v. Prosise (1983) 462 U.S. 306 for the proposition that issue preclusion does not apply unless the party to be precluded had an adequate incentive to litigate “‘to the hilt’ the issues in question.” [Citation.]” (Id. at p. 311.) However, that was not the Supreme Court‘s own legal reasoning; rather, it was summarizing the opinion of the court below in the case that it was reviewing. It neither accepted nor rejected the “to the hilt” language. It is true that it affirmed the court below, so that the lower court‘s opinion itself is precedential. In support of its “to the hilt” language, however, the lower court provided only a “see generally” citation to the Second Restatement. (Prosise v. Haring (4th Cir. 1981) 667 F.2d 1133, 1141.) Later courts have clarified that, “When one party introduces evidence on a dispositive issue of fact, and an adverse party with opportunity and motive to contest the presentation chooses not to, the ensuing finding is entitled to the same respect as one litigated to the hilt. [Citation.]” (Harris Trust and Sav. Bank v. Ellis (7th Cir. 1987) 810 F.2d 700, 705, italics added.)
Defendant also relies on In re Sokol (2d Cir. 1997) 113 F.3d 303. There, Sokol was found guilty of Medicaid fraud between $50,000 and $1 million. The trial courtordered him to pay $222,255.38 in restitution; it refused to hold a hearing regarding the amount. The state then brought a civil action against Sokol for treble damages. (Id. at p. 305.) After Sokol declared bankruptcy, the bankruptcy court ruled that the treble damages claim was nondischargeable but also that the amount of the claim was not established, because it had not been actually litigated. The district court affirmed. (Id. at pp. 305-306.)
The Second Circuit agreed. It applied the New York law of issue preclusion, which required that there have been a full and fair opportunity to litigate the issue. (In re Sokol, supra, 113 F.3d at p. 307inter alia: 1) the nature of the forum and the importance of the claim in the prior litigation; 2) the incentive to litigate and the actual extent of litigation in the prior forum; and 3) the foreseeability of future litigation (because of its impact on the incentive to litigate in the first proceeding). [Citation.]” (Ibid.)
Regarding the second factor, it said: “Sokol not only had no incentive to litigate damages, he did not actually do so. His entire trial strategy was dedicated to proving his innocence, not to proving a lesser degree of damages. . . . While the State presented evidence as to the amount of loss . . . , that evidence was minimal: . . .” (In re Sokol,supra, 113 F.3d at p. 307.) It also noted that he had been denied a hearing on the amount of restitution. (Id. at pp. 307-308.)
It concluded: “Although the third of the relevant . . . factors weighs against Sokol because the civil proceeding was foreseeable at the time of the criminal trial, we nevertheless are convinced that he has proved the absence of a full and fair opportunity to litigate . . . as defined by New York law.” (In re Sokol, supra, 113 F.3d at p. 308.)
Sokol is of limited assistance, as California does not use a similar multifactor balancing test. However, to the extent that it sheds light on the meaning of incentive to contest, it is not on point. At trial, as long as the fraud was between $50,000 and $1 million, Sokol had no incentive to litigate the exact amount; and at sentencing, he was not allowed to litigate it at all. Here, by contrast, as already discussed, the evidence that defendant was the shooter was hardly “minimal“; moreover, trial counsel had both the incentive and the ability to litigate the personal firearm enhancements.
Defendant also contends that issue preclusion does not apply because it was not foreseeable that
1. Section 1172.6 as a change in the law.
Defendant contends that
The “change in the law” exception to issue preclusion “ensures basic fairness by allowing for relitigation where ‘the change in the law [is] such that preclusion would result in a manifestly inequitable administration of the laws.’ [Citation.] It also reflects a recognition that in the face of this sort of legal change, the equitable policies that underlie the doctrine of issue preclusion — ‘preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation’ [citation] — are at an ebb.” (Strong, supra, 13 Cal.5th at p. 717.)
If we were to accept defendant‘s argument, that would mean the prosecution could never rely on issue preclusion in proceedings under
In supplemental briefing, defendant denies taking this extreme position. He cites People v. Farfan, supra, 71 Cal.App.5th 942 (Farfan) and People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411 (Gutierrez-Salazar) as examples of cases in which he concedes that the “change in the law” exception would not apply. Farfan and Gutierrez-Salazar both held that the jury‘s true finding on a felony-murder special circumstance was issue preclusive, because it required that the defendant either intended to kill or was a
The whole point of issue preclusion is that there is no need to look at the evidence. As the court said in Farfan, “The mere filing of a
Admittedly, in the cases we have cited, no one was arguing that the “change in the law” exception applied. “It is axiomatic that a case is not authority for an issue that was not considered. [Citation.]” (People v. Brooks (2017) 3 Cal.5th 1, 110.)
However, after these cases had already been decided, the Legislature renumbered
2. Our previous opinion as a change in the law.
Defendant also contends that our previous opinion constitutes a change in the law that warrants relitigation.
As mentioned, the trial court allowed Detective Cover to testify that he had ways of telling when an interviewee was telling the truth. Moreover, he implied that, in his opinion, defendant was telling the truth. In defendant‘s direct appeal, we held that this was error but harmless.16 Thus, in any evidentiary hearing under
Our previous opinion, however, was not a change in the law. Since at least 1982, it has been the law that a witness, whether lay or expert, cannot testify to an opinion that another person is telling the truth. (People v. Sergill (1982) 138 Cal.App.3d 34, 39-40erred. The fact that a previous trial court judgment was based, in part, on inadmissible evidence is not an exception to issue preclusion. “‘[A]n erroneous judgment is as conclusive as a correct one.’ [Citations.]” (Busick v. Workmen‘s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 975, fn. omitted.)
VII
DENIAL OF THE OPPORTUNITY TO TESTIFY
Defendant contends that the trial court erred by preventing him from offering new evidence, including his own testimony, at the prima facie hearing.
If a trial court finds a prima facie case, it must hold an evidentiary hearing, at which a defendant can introduce new evidence (
In part VI, ante, we held that the jury‘s findings were preclusive; thus, they required the trial court to deny the petition at the prima facie stage. It follows that defendant was not denied an opportunity to testify.
VIII
DISPOSITION
The order appealed from is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
Notes
All further statutory citations are to the Penal Code unless otherwise specified.
The petition was actually filed under former section 1170.95. (Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) Effective June 30, 2022, however, former section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will use section 1172.6, somewhat anachronistically, to refer to whichever one of the two statutes was in effect at the relevant time.