Gordon

Arlester Carlyle Gordon II appeals his conviction of one count of being a felon in possession of a firearm, in violation of Penal Code section 12021, subdivision (a)(1). 1 He claims he was not properly advised of the rights he was waiving by agreeing to a court trial on that charge. We conclude he knowingly and voluntarily waived his right to jury trial on the gun possession charge. Appellant also claims that under principles of collateral estoppel, he could not be prosecuted for possession of a firearm after the jury acquitted him of all charges related to the incident where he allegedly possessed the gun, since the contested issue of identity crucial to guilt in both proceedings was necessarily decided in his favor in the jury trial. We agree with this contention and reverse the judgment.

FACTUAL AND PROCEDURAL SUMMARY

The underlying facts in this case were presented during the jury trial on charges of felony murder, attempted murder, and kidnapping. The jury found appellant not guilty on these charges. Relying on the evidence presented during the jury trial, the court then tried the severed count of felon in possession of a firearm, and found appellant guilty. Our…

I concur in the opinion. I write separately to emphasize three points.

First, it is apparent from the record that the trial court, the prosecutor, and trial defense counsel assumed that in the severed court trial on the charge of felon in possession of a firearm, the court would not be conclusively bound *1561 by a jury verdict of acquittal in the trial of the other charges. Indeed, that was the core assumption of the bargain the court struck in granting the severance motion—appellant received the benefit of the severance, preventing the jury from learning that he was a convicted felon; in exchange, he submitted to the court’s unrestricted judgment in a separate nonjury trial on the charge of being a felon in possession of a firearm. This core assumption, however, was not made an express condition of the severance and of appellant’s jury waiver on the charge of being a felon in possession of a firearm. Had such an express condition been imposed and agreed to by appellant, I would conclude that appellant waived the collateral estoppel effect, under Ashe v. Swenson (1970) 397 U.S. 436, 443 [ 25 L.Ed.2d 469 , 90 S.Ct. 1189 ] (Ashe), of the jury’s verdict.

Second, even with such an…

Arlester Carlyle Gordon II appeals his conviction of one count of being a felon in possession of a firearm, in violation of Penal Code section 12021, subdivision (a)(1). [1] He claims he was not properly advised of the rights he was waiving by agreeing to a court trial on that charge. We conclude he knowingly and voluntarily waived his right to jury trial on the gun possession charge. Appellant also claims that under principles of collateral estoppel, he could not be prosecuted for possession of a firearm after the jury acquitted him of all charges related to the incident where he allegedly possessed the gun, since the contested issue of identity crucial to guilt in both proceedings was necessarily decided in his favor in the jury trial. We agree with this contention and reverse the judgment.

The underlying facts in this case were presented during the jury trial on charges of felony murder, attempted murder, and kidnapping. The jury found appellant not guilty on these charges. Relying on the evidence presented during the jury trial, the court then tried the severed count of felon in possession of a firearm, and found appellant guilty. Our factual summary…