In Re Gutierrez

In this habeas corpus proceeding petitioner asks this court to vacate his conviction for attempted murder after his subsequent prosecution for murder of the same victim and arising out of the same event resulted in three mistrials and a dismissal of all homicide charges. The prosecution filed the murder charges because the victim had died after petitioner’s conviction for attempted murder. In an earlier opinion, this court ruled collateral estoppel did not bar petitioner from relitigating in the murder trial several issues the jury had decided in the attempted murder case. In this proceeding, we conclude the order allowing relitigation of those issues in the murder trial did not constitute a “new trial” of the attempted murder case and thus deny the writ.

Facts and Proceedings Below

In 1990, the People charged petitioner with discharging a gun into an occupied motor vehicle (count 2) and the attempted first degree murder of Sandra Zarate (count 1). Petitioner’s defense was mistaken identity. The jury found petitioner guilty of both counts but found the attempt to commit murder was not willful, deliberate and premeditated; the jury also found petitioner personally used a…

Introduction

I would deny the petition but for reasons entirely different from the majority. To explain, I shall synopsize the background facts; comment on *1713 petitioner’s “new trial” claim; consider the function, purpose, and effect of collateral estoppel; and demonstrate the error of Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153 [ 29 Cal.Rptr.2d 376 ].

Background: Synopsis

On June 2, 1990, petitioner, other gang members, and friends conducted a memorial car wash for Phillip Juarez, a friend and fellow gang member recently fatally shot in front of his house. Petitioner believed Evergreen, a rival gang, had murdered him.

After the car wash, petitioner and about 30 to 40 others gathered at 1155 LeBorgne. While outside, petitioner saw a car slowly drive by. His friends yelled their gang name at the car and petitioner heard someone in the car yell “Evergreen.” Petitioner was mad at the “Evergreen” car, so when it made a U-turn and returned he threw a beer can at it.

There were four teenagers in the car: Ismael Fernandez, Veronica Zarate, her 16-year-old sister Sandra, and 14-year-old Danny Reyes.

Ismael recognized petitioner. He had known him for two or three…

In this habeas corpus proceeding petitioner asks this court to vacate his conviction for attempted murder after his subsequent prosecution for murder of the same victim and arising out of the same event resulted in three mistrials and a dismissal of all homicide charges. The prosecution filed the murder charges because the victim had died after petitioner's conviction for attempted murder. In an earlier opinion, this court ruled collateral estoppel did not bar petitioner from relitigating in the murder trial several issues the jury had decided in the attempted murder case. In this proceeding, we conclude the order allowing relitigation of those issues in the murder trial did not constitute a "new trial" of the attempted murder case and thus deny the writ.

In 1990, the People charged petitioner with discharging a gun into an occupied motor vehicle (count 2) and the attempted first degree murder of Sandra Zarate (count 1). Petitioner's defense was mistaken identity. The jury found petitioner guilty of both counts but found the attempt to commit murder was not willful, deliberate and premeditated; the jury also found petitioner personally used a firearm and…