Opinion
No. C048147.
June 5, 2006. REVIEW DENIED September 13, 2006.
Appeal from the Superior Court of Placer County, No. 62-034224, Robert G. Vonasek, Judge.
Retired Judge of the Glenn Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
An information alleged that defendant Christopher Michael Brown committed battery with serious bodily injury, abuse of an elder, and assault by means of force likely to produce great bodily injury; the latter count also alleged personal infliction of great bodily injury. (Pen. Code, §§ 243, subd. (d), 368, subd. (b)(1), 245, subd. (a)(1), 12022.7, subd. (a).) All charges stemmed from a fight with a 69-year-old victim. In his first trial, the jury acquitted defendant of the charged offense of elder abuse. It also returned verdicts that purported to acquit him of lesser offenses to that count on which the court had instructed: simple battery, simple assault, and misdemeanor elder abuse. (§§ 242, 240, 368, subd. (c).) In returning these verdicts, the jury announced it was not able to reach a verdict on either of the remaining charged counts of aggravated battery and assault, and the trial court consequently declared a mistrial. On retrial, a second jury found defendant guilty of both remaining counts as charged, and sustained the allegation of great bodily injury. The trial court suspended imposition of sentence and placed defendant on probation. On appeal, defendant contends that the verdicts of acquittal for elder abuse and the included offenses of battery and assault barred his retrial because the included offenses are elements of the remaining charges. He concludes that we must reverse the convictions and order their dismissal. Defendant also claims the trial court erred in ordering him to pay for his legal fees without complying with notice and hearing requirements. The People concede that defendant could not be retried, but urge us to remand the matter for a hearing on defendant's payment of his legal fees. We requested supplemental briefing on whether the crimes of assault and battery are necessarily included in the crime of elder abuse, and the effect on the retrial issue if they are not. In their supplemental briefs, both parties acknowledge that neither assault nor battery are included within the crime of elder abuse. Both parties agree that this circumstance has no effect on the retrial issue. We agree that neither battery nor assault are lesser offenses included in elder abuse, because (whether as a matter of statutory definition or the pleadings in the present case) elder abuse may be committed solely by inflicting mental suffering. We disagree, however, that either constitutional or statutory protections against double jeopardy barred the retrial for assault and battery. We also conclude that the acquittals do not have any preclusive effect on the issues on retrial. As a result, we reject the People's concession and will affirm the judgment. We will remand the matter for further proceedings on the issue of reimbursement for defendant's legal fees.
Further undesignated section references are to the Penal Code.
Following our original opinion in this matter, defendant contended he was entitled to rehearing pursuant to Government Code section 68081 because he had not addressed the principles of issue preclusion in his briefs. However, a party is entitled to relief only where an issue that neither party proposed or briefed is the basis for the decision. As the legislative history of the statute makes clear, "issue" is not synonymous with a decision applying a rule, principle, or theory of law that the parties did not raise in their briefs in connection with an issue. (See Assem. Amend. to Sen. Bill No. 2321 (1986 Reg. Sess.) July 9, 1986 [substituting "issue" for "rule, principle or theory of law" in text of statute].) Issue preclusion is a component of double jeopardy analysis, as we note later in this opinion. It is thus a principle of law that defendant ignored which is embraced in his actually raised issue of double jeopardy. He is therefore not entitled to mandatory rehearing. However, this court had been of the mistaken belief that the transcript of the first trial was not part of the present record: neither party cited to it in any of the briefs, it was not part of the reporter's transcript on appeal, and it appeared in the middle of the clerk's transcript. This court therefore granted rehearing in order to have the opportunity to review this transcript and make any necessary modifications to its opinion. It also allowed the parties to file supplementary briefing and to request oral argument if desired. We have modified the opinion accordingly without altering the original result.
DISCUSSION I A
According to the parties, two principles barred the People from seeking to retry the defendant. They first assert that the constitutional prohibition against double jeopardy (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15) and its statutory equivalent (§ 1023) bar retrial because simple battery and assault are respectively elements of the charged offenses of battery with great bodily injury and assault by means of force likely to produce great bodily injury. Second, they claim section 654, subdivision (a) bars retrial because the jury acquitted defendant of elder abuse, and all three of the charges arose out of the same indivisible course of conduct, i.e., a fist fight. We conclude that neither the constitutional protection against double jeopardy nor the cited statutes support these arguments. The parties miss a key point: the constitutions and statutes apply only to successive prosecutions, and not (as here) a continued prosecution in a second trial after a jury is unable to reach a verdict on certain counts. ( Richardson v. United States (1984) 468 U.S. 317, 323 [ 82 L.Ed.2d 242, 104 S.Ct. 3081]; Stone v. Superior Court (1982) 31 Cal.3d 503, 516 [ 183 Cal.Rptr. 647, 646 P.2d 809].) That a jury has returned a verdict of acquittal on one of several counts is immaterial. "In a single criminal action (pleading any number of counts), no plea of guilty to, or order of dismissal or acquittal of, any separately pleaded offenses, included or otherwise, will bar the progress of that prosecution as to the other counts. The prosecution on such other counts may continue until each, on its own merits, has been severally and finally disposed of by bringing the defendant to conviction and sentence or to acquittal." ( People v. Tideman (1962) 57 Cal.2d 574, 583 [ 21 Cal.Rptr. 207, 370 P.2d 1007]; accord, §§ 954, 1160; People v. Simmons (1978) 82 Cal.App.3d Supp. 1 [147 Cal.Rptr. 481] [acquittal of one count involving same course of conduct does not bar retrial under § 654 on second count].) Since this case presents only a continuing prosecution and not successive prosecutions, neither constitutional nor statutory protections against double jeopardy prohibit retrial on the two counts. As a result, we do not have any concern with the analysis of lesser included offenses, which is relevant only in the context of applying the rules of double jeopardy. ( People v. Bright (1996) 12 Cal.4th 652, 660-661 [ 49 Cal.Rptr.2d 732, 909 P.2d 1354].) It does not play any part in applying principles of issue preclusion ( United States v. Bailin (7th Cir. 1992) 977 F.2d 270, 281 ( Bailin)), which we next discuss.
In some circumstances, the state protections against double jeopardy have a broader reach than their federal counterpart. ( People v. Monge (1997) 16 Cal.4th 826, 844 [ 66 Cal.Rptr.2d 853, 941 P.2d 1121].) Here, as we note post, they are in accord.
Prior to his retrial, defendant failed to enter a plea of once in jeopardy. This failure generally forfeits the issue for purposes of review on appeal. ( People v. Belcher (1974) 11 Cal.3d 91, 96 [ 113 Cal.Rptr. 1, 520 P.2d 385].) However, defendant also contends, in the alternative, that if this failure precludes review, then he received ineffective assistance of counsel. Since we cannot conceive of any tactical reason for failing to enter a plea of once in jeopardy, we shall review this contention.
In pertinent part, section 654, subdivision (a), provides, "An acquittal or conviction and sentence under any [provision of criminal law] bars a prosecution for the same act or omission under any other."
B
While "analytically distinct from double jeopardy," issue preclusion (the modern term for collateral estoppel) is a "component" of it that bars the relitigation of previously adjudicated issues of fact ( People v. Santamaria (1994) 8 Cal.4th 903, 912, fn. 3 [ 35 Cal.Rptr.2d 624, 884 P.2d 81] ( Santamaria)) where the same parties seek to retry an "issue of ultimate fact" that is identical to an issue actually and necessarily decided in a prior final adjudication on the merits ( Ashe v. Swenson (1970) 397 U.S. 436, 443 [ 25 L.Ed.2d 469, 90 S.Ct. 1189]; see ( Santamaria, supra, 8 Cal.4th at pp. 912, 916). "An 'issue of ultimate fact' is a fact that must be proven beyond a reasonable doubt at trial, including each of the essential elements of the charged offense." ( In re Cruz (2003) 104 Cal.App.4th 1339, 1345 [ 129 Cal.Rptr.2d 31].) Neither the federal nor state Supreme Court, nor any other California court has directly ruled whether issue preclusion applies in a retrial after a jury fails to reach a verdict. ( People v. Barragan (2004) 32 Cal.4th 236, 253-254 [ 9 Cal.Rptr.3d 76, 83 P.3d 480]; Santamaria, supra, 8 Cal.4th at p. 915, fn. 5; People v. Morales (2003) 112 Cal.App.4th 1176, 1187 [ 5 Cal.Rptr.3d 615] [declining to address squarely whether issue preclusion applied to retrial of issues from prior trial because necessary criterion of the doctrine was absent in any event]; People v. Mitchell (2000) 81 Cal.App.4th 132, 147-148 [ 96 Cal.Rptr.2d 401]; Bailin, supra, 977 F.2d at p. 272.) Bailin, agreeing with several other circuits, found it was appropriate to apply issue preclusion under that circumstance. ( Bailin, supra, 977 F.2d at pp. 276-277 [using the term "direct estoppel" to distinguish it from issue preclusion in separate actions].) In assessing the preclusive reach of a prior partial adjudication, a court must look to the entire record to determine whether it is possible that a rational jury could have grounded its verdict on an issue other than the one the criminal defendant seeks to foreclose. ( Id. at p. 280.) Thus, it is the defendant's burden to establish that an acquittal necessarily foreclosed the issue on retrial. ( Id. at pp. 280-281; cf. Dowling v. United States (1990) 493 U.S. 342, 350-352 [ 107 L.Ed.2d 708, 110 S.Ct. 668] [issue preclusion in separate action; "As the record stands, . . . nothing . . . persuasively indicates that the question of identity was at issue and was determined in Dowling's favor at the prior trial . . ."; there is an indication in colloquy between the prior trial court and counsel that in fact identity was conceded on the burglary charge but intent to commit a felony was disputed].)
Bailin noted that it is unclear to what extent this is constitutional principle as opposed to a rule of federal common law. ( Bailin, supra, 977 F.2d at p. 274, fn. 3.)
C
In the first trial, the victim and defendant presented contrasting versions of an extended episode of "road rage" that ran from Fair Oaks Boulevard's intersection with Greenback Lane, to Old Auburn and Antelope Roads, then up Sunrise Boulevard to a red light at Cirby Way. Each declared the other to be an overly aggressive driver that he sought to avoid, though both admitted making vulgar gestures at the other. No other witness observed the course of events until shortly before the red light, when defendant abruptly changed lanes and screeched to a halt behind the victim's truck in the left lane after making a rude gesture further back down Sunrise. The witnesses observed the victim and defendant approach each other after getting out of their vehicles, at which point defendant began to slap and punch the victim without any apparent provocation. Defendant, however, contended that the much bigger victim had grabbed him around the neck, at which point defendant panicked and lashed out. Most of the witnesses judged the victim to be over 65 years old. Defendant (who was 22 years old) and one other witness (who was 18) believed the victim was a man in his fifties, defendant describing the victim (without challenge) as having a "clear [ sic] head of dark hair." Defense witnesses attested to seeing a red mark on defendant's neck just after the incident; to defendant's peaceable nature; and to defendant's assertions to them that he had acted on a belief in the need to defend himself. We do not have the benefit of a transcript of closing arguments to determine the manner in which the parties framed the issues. The pattern instructions for the first trial included one defining the elements of elder abuse (among which is knowledge that the victim is 65 years or older), the panoply defining the nuances of self-defense, and the one describing the manner in which the jury should return its verdicts on lesser offenses. This latter instruction set out the procedure to be followed if the jury unanimously found defendant guilty of a charged offense (in which case it was to return all verdict forms for lesser offenses unsigned), if the jury was unable to reach a verdict on a charged offense (in which case it could not return a verdict on any lesser offense), if the jury unanimously acquitted him of a charged offense but believed him guilty of a lesser offense (in which case it could return verdicts on the lesser offenses after returning a verdict of not guilty on the charged offense), and if the jury unanimously acquitted him of a charged offense but was unable to return a verdict on a lesser offense (in which case it should return the verdict of acquittal and report its disagreement on lesser offenses).
D
Since there was no dispute that defendant struck the victim and caused serious injuries, the only disputed issue before the jury was whether he actually acted reasonably in self-defense. If it was unable to resolve this issue in connection with the other two charged offenses, it is unclear why the jury returned verdicts of acquittal on the lesser offenses to elder abuse. Under the instruction mentioned above, once it acquitted defendant of elder abuse, it should not have returned any verdicts on the lesser offenses unless it unanimously found him guilty. It is also inconsistent that the jury purportedly could resolve the issue of self-defense in his favor in one context but not the other. We need not resolve this logical conundrum. We should not apply issue preclusion as freely in the criminal context as in the civil context, in light of the restrictions on a prosecutor's ability to challenge the evidence through directed verdicts or motions for a new trial, or to appeal adverse rulings. (See Santamaria, supra, 8 Cal.4th at p. 915, fn. 5; People v. Aguilera (1993) 82 N.Y.2d 23, 30 [ 623 N.E.2d 519, 603 N.Y.S.2d 392].) A significant limitation on issue preclusion in at least the civil context is where the "issues are determined but the judgment is not dependent upon the determination," in which case "relitigation of those issues in a subsequent action between the parties is not precluded" because the prior adjudications "have the characteristics of dicta, and may not ordinarily be the subject of an appeal by the party against whom they were made. In these circumstances, the interest in providing an opportunity for a considered determination, which if adverse may be the subject of an appeal, outweighs the interest in avoiding the burden of relitigation." (Rest.2d Judgments, § 27, com. h, p. 258.) In the present case, the prior jury's acquittals on the improperly provided lesser offenses were superfluous once it had returned its verdict on the greater offense. Considering that the People had absolutely no mechanism by which to contest these derelict findings, there is even a stronger rationale for refusing to apply preclusive effect to such dicta in the context of a criminal action. As a result, even if we were squarely to hold that issue preclusion of the "direct estoppel" species is available in a criminal action in California, defendant cannot properly invoke it in the present case. We thus reject his claim that he could not be retried, and the People's concession of it.
II
Defendant contends the trial court erred in imposing an obligation to reimburse $2,600 in legal fees pursuant to section 987.8 without holding a hearing on his ability to pay. In pertinent part, the statute provides, "(b) In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed . . . counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof." (Italics added.) Absent such notice and hearing, an order to reimburse legal fees is invalid. ( People v. Flores (2003) 30 Cal.4th 1059, 1068 [ 135 Cal.Rptr.2d 63, 69 P.3d 979].) Here, as the People concede, the court failed to comply with these requirements. Therefore, we must remand for a proper determination.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for a determination of legal fees in compliance with section 987.8. Nicholson, J., and Robie, J., concurred.