Mata

In this case, we consider whether the doctrine of collateral estoppel bars the conviction of one of three coconspirators of murder in the first degree where one of his two coconspirators has previously been convicted of the lesser offense of murder in the second degree. We have concluded that where, as in the instant case, the accused’s guilt need not be predicated upon the guilt of his previously tried confederate, the doctrine of collateral estoppel does not apply.

*236 Facts and Background

This case arose out of a planned robbery and the killing of the victim in the course of the robbery. On May 18, 1976, appellant, together with one Castro and one Guerrero, agreed to rob the victim, a storekeeper. Guerrero, in accordance with their agreement, left the others to borrow his father’s pickup truck. Meanwhile, Castro armed himself with a knife. After Guerrero returned, the three proceeded to the store and Guerrero, again in accordance with their plan, remained outside in the getaway vehicle while appellant and Castro entered the store and robbed the victim. While he and appellant were still in the store, Castro stabbed the victim several times in the neck, resulting in…

The majority opinion correctly notes that the holding in People v. Taylor (1974) 12 Cal.3d 686 [ 117 Cal.Rptr. 70 , 527 P.2d 622 ] was expressly limited to cases in which “an accused’s guilt must be predicated on his vicarious liability for the acts of a previously acquitted confederate.” (Id, at p. 698.) The application of Taylor beyond its express language may be appropriate.

It is unnecessary to resolve this issue, however, because of a crucial distinction between the present case and Taylor . In Taylor , the court had before it the record of the trial in which the accomplice was acquitted. (See People v. Taylor, supra, at p. 692, fn. 6 , and p. 697, fn. 13.) The court was able to determine from this record that the only theory upon which Taylor’s murder conviction could be predicated had been litigated and resolved adversely to the People in the previous trial.

We are unable to make a similar finding in this case. While we know that Guerrero was initially charged with first degree murder, we cannot *240 determine in the absence of the complete record under what theories the jury was instructed to resolve the issue.

I would conclude that the doctrine of collateral estoppel…

In this case, we consider whether the doctrine of collateral estoppel bars the conviction of one of three coconspirators of murder in the first degree where one of his two coconspirators has previously been convicted of the lesser offense of murder in the second degree. We have concluded that where, as in the instant case, the accused's guilt need not be predicated upon the guilt of his previously tried confederate, the doctrine of collateral estoppel does not apply.

This case arose out of a planned robbery and the killing of the victim in the course of the robbery. On May 18, 1976, appellant, together with one Castro and one Guerrero, agreed to rob the victim, a storekeeper. Guerrero, in accordance with their agreement, left the others to borrow his father's pickup truck. Meanwhile, Castro armed himself with a knife. After Guerrero returned, the three proceeded to the store and Guerrero, again in accordance with their plan, remained outside in the getaway vehicle while appellant and Castro entered the store and robbed the victim. While he and appellant were still in the store, Castro stabbed the victim several times in the neck, resulting in the…