Gutierrez

Petitioner, defendant in a criminal prosecution for murder of Sandra Zarate, challenges an order of the trial court barring him from litigating the issues of identity and intent on the ground that a prior final judgment of conviction for attempted murder of Zarate 1 collaterally estops him from doing so, leaving for the jury only the issue of whether petitioner’s shooting of Zarate caused her death.

*156 Petitioner contends that the prosecution’s assertion of the doctrine of collateral estoppel denies him his constitutional right to jury trial and to due process of law as guaranteed by both the federal and state Constitutions.

Factual and Procedural Background

According to our opinion on petitioner’s prior appeal of his attempted murder conviction, petitioner was at a friend’s house drinking beer with 30 to 40 of his acquaintances when Zarate and 3 others drove by; petitioner and his friends threw beer cans and shouted gang slogans as the car passed; petitioner pursued the car on a motorcycle; while a second person drove the motorcycle, petitioner sat on the back with a gun and shot Zarate in the head.

Petitioner’s defense was mistaken identity; two defense witnesses…

May a criminal defendant be collaterally estopped from presenting all or part of his defense?

This question, raised by the instant petition, has divided both federal courts (compare, e.g., United States v. Rangel-Perez (C.D.Cal. 1959) 179 *171 F.Supp. 619 ; Pena-Cabanillas v. United States (9th Cir. 1968) 394 F.2d 785 ; United States v. Colacurcio (9th Cir. 1975) 514 F.2d 1 [allowing preclusion against a criminal defendant] with United States v. DeAngelo (3d Cir. 1943) 138 F.2d 466 ) and state courts (Compare, e.g., Commonwealth v. Evans (1869) 101 Mass. 25 ; Commonwealth v. Ellis (1892) 160 Mass. 165 [ 35 N.E. 773 ]; State v. Sargood (1907) 80 Vt. 412 [ 68 A. 51 ] [allowing preclusion] with People v. Goss (1993) 200 Mich.App. 9 [ 503 N.W.2d 682 ]. See generally, 147 A.L.R. 991 ; Comment, The Use of Collateral Estoppel Against The Accused (1969) 69 Colum. L.Rev. 515; 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 356, pp. 411-413). With but one exception, 1 it has not divided the courts of California.

Our decisions have consistently applied collateral estoppel “ ‘by preventing a party who has had one fair trial on an issue from again drawing it into controversy.* ”…

Gil Garcetti, District Attorney, Patrick D. Moran and Brent Riggs, Deputy District Attorneys, for Real Party in Interest.

OPINION

LILLIE, P.J.

Petitioner, defendant in a criminal prosecution for murder of Sandra Zarate, challenges an order of the trial court barring him from litigating the issues of identity and intent on the ground that a prior final judgment of conviction for attempted murder of Zarate [1] collaterally estops him from doing so, leaving for the jury only the issue of whether petitioner's shooting of Zarate caused her death.

Petitioner contends that the prosecution's assertion of the doctrine of collateral estoppel denies him his constitutional right to jury trial and to due process of law as guaranteed by both the federal and state Constitutions.

According to our opinion on petitioner's prior appeal of his attempted murder conviction, petitioner was at a friend's house drinking beer with 30 to 40 of his acquaintances when Zarate and 3 others drove by; petitioner and his friends threw beer cans and shouted gang slogans as the car passed; petitioner pursued the car on a motorcycle; while a second person drove the motorcycle, petitioner sat on the back with a…