THE PEOPLE, Plaintiff and Appellant, v. JAMES PETTAWAY, Defendant and Respondent, 206 Cal. App. 3d 1312

Opinion BENSON, J. Pursuant to Penal Code

section 1238, subdivision (a)(8), the People appeal from the trial court’s dismissal of a murder charge against defendant James Anthony Pettaway. We will reverse the judgment. In doing so we will disagree with People v.

White (1986) 185 Cal.App.3d 822 [231 Cal.Rptr. 569], an opinion rendered by our colleagues in Division Five of this District, We hold that where a defendant has been convicted of first degree murder at his first trial and that conviction is reversed on appeal because of instructional error, the defendant may be retried as the murder perpetrator despite negative jury findings, at the first trial, on the personal use of a handgun and personal infliction of great bodily injury enhancement allegations. Our

summary of the pertinent underlying facts in this case is taken from an earlier unpublished appellate decision by Division One of this District following defendant’s conviction of first degree murder and attempted murder. On May 1, 1981, defendant and his girlfriend Lowana Walker were at the home of Karen Taylor. Another man, Michael Seals, was also present. At some point, Lowana handed defendant a gun and defendant shot Michael in the back of the neck. Michael then fainted. When he regained consciousness, he saw defendant and Lowana leave through the front door. Karen’s dead body was later found in the bathroom.

She had been shot twice. Defendant was charged with one count of murder and a second count of attempted murder. The information also alleged as enhancements, personal use of a handgun (Pen. Code, § 12022.5) and personal infliction of great bodily injury (Pen. Code, § 12022.7) during the commission of both offenses. The prosecution tried the case on the theory that defendant had been the perpetrator of both shootings. Neither party requested and the trial court initially did not give instructions on aiding and abetting.

However, during the third day of deliberations the jury requested the following: “Please explain the law concerning complicity, for example, in this case may the defendant be convicted of murder or attempted murder without having personally fired the bullets?” The court, responding to this inquiry, then instructed in accordance with former CALJIC Nos. 3.00 and 3.01. Thereafter, the jury returned verdicts of guilty for both the first degree murder and the attempted murder.

With respect to the personal use of a handgun and great bodily injury allegations, the jury found them to be true as to the attempted murder but not true as to the murder. On appeal, Division One of this court reversed defendant Pettaway’s murder conviction for Beeman error (People v. Beeman (1984) 35 Cal.3d 547 [199 Cal.Rptr. 60, 674 P.2d 1318]), i.e., that the language of CALJIC 3.01 as it then existed “removed from the jury’s consideration the issue of whether appellant shared in the intent to commit murder.” The attempted murder conviction remained undisturbed.

On remand the public defender, relying principally on People v. White, supra, 185 Cal.App.3d 822, moved to preclude the prosecutor from proceeding to trial on a theory that defendant shot Karen and from referring to defendant as the actual killer. The public defender argued that because the jury determined not true the enhancement allegations with respect to the murder charge, the principles of res judicata, collateral estoppel and/or equitable estoppel, double jeopardy and due process required that result. The trial court, determining that it was bound by People v.

White, supra, 185 Cal.App.3d 822, agreed with the defendant’s position and, since the prosecution refused to proceed on an aider and abettor theory, dismissed the murder count against defendant. On appeal the People concede that defendant may not be retried on the enhancement allegations that the jury found not true. They contend, however, that the trial court erred in ruling that evidence demonstrating defendant was the actual perpetrator in Karen’s killing could not be used when retrying the murder count. They argue that People v.

White, supra, 185 Cal.App.3d 822, was wrongly decided or at least distinguishable from the ruling below. During the hearing of defendant’s motion it was the prosecutor’s position that he could not in good faith urge any theory to the trier of fact other than that defendant had shot and killed Karen. The prosecutor recited to the court the substance of the evidence available to support his position. A

summary of that offer is as follows: Michael’s testimony that he saw defendant “secure possession of a handgun and walk behind him almost immediately preceding Michael being shot from behind;” Michael’s testimony that “he saw no other persons in the room, no other persons in the house other than himself, Karen . . . [Lowana] . . . and the defendant”; that “when he was shot ... he was looking at Karen Taylor who was alive and well and [Lowana] Walker”; ballistic testimony that “the expended cartridges found in the house were .32 caliber Winchester Western slugs.

When [defendant] was arrested ... in the state of Texas ... he was found in possession of .32 caliber Winchester Western ammunition, seven cartridges to be exact”; testimony from defendant’s employer that “. . . during the time of this particular incident. . . [defendant] acknowledged being in possession of [the employer’s] gun which, in fact, was the murder weapon”; circumstantial evidence “. . . that the same weapon [used to shoot Michael] was also the weapon that killed Karen Taylor”; that the “cartridges that [defendant’s employer] kept with the gun, . . . some of that ammunition was missing. . .”; that Lowana Walker, had given a tape-recorded statement to the Oakland police department wherein she stated; “that she was present, and saw [defendant] go behind Michael Seals and shoot him from behind . . . that [defendant] then chased Karen Taylor into a back room. [Lowana] remained in the dining room . . . she heard approximately four shots and after approximately 10 or 15 minutes of silence . . . she went to the bathroom and saw the defendant. . . standing over Miss Taylor’s body with the . . . gun”; that while Lowana “had invoked the Fifth Amendment privilege” at the preliminary hearing and during the first trial, she “is presently available and willing to testify in accordance with the taped statement. . . .” Because we have profound disagreement with the holding reached by our colleagues in People v.

White, supra, 185 Cal. App.3d 822, a case concerning the identical issue we are called upon to address, it is appropriate to begin our discussion with a review of the White decision. The case involved a drug-related double murder. Defendant White was apprehended, tried and convicted of two counts of first degree murder and firearm possession. However, the jury found the firearm-use allegations not true. An appeal followed and the murder convictions were reversed due to the improper admission of hearsay testimony. The case was retried and the jury convicted White on both counts of first degree murder.

White again appealed contending that the principles of collateral estoppel and res judicata prohibited his prosecution in the second trial as the actual killer. He argued that the trial court committed error in denying his motion to prohibit the prosecution from proceeding on the theory that he fired the fatal shots.

Division Five of this court agreed with White’s position and, in analyzing the problem, stated: “The doctrine of collateral estoppel prevents the relitigation of issues decided between the parties in earlier proceedings upon which a judgment on the merits of the issues has become final. [Citations.] In the instant case, the issue of appellant’s use of a gun in the commission of these particular homicides was litigated between the parties and decided finally in appellant’s favor in the first trial. In the second trial the prosecution sought to relitigate the same issue.

It argued that appellant was guilty of murder if he was ‘the actual perpetrator, that it was Mr. Willie White out there who pulled the trigger on one of the firearms or both of them that killed these people.’ Appellant’s use of a gun was resolved adversely against the prosecution in the first trial, and should not have been relitigated in the second. The prosecution is not prevented from proceeding on the theory that appellant supplied the weapons or otherwise participated as a principal. (See Pen.

Code, § 31.) What it cannot do is relitigate the fact of appellant’s use of a gun in these homicides, since that issue was decided against it in the first trial. Principles of double jeopardy and due process which incorporate the doctrine of collateral estoppel preclude such action.” (People v. White, supra, 185 Cal.App.3d at pp. 827-828.) As acknowledged in White, “. . . the doctrine [of res judicata] applies to criminal as well as civil proceedings. . . . [Sealfon v.

United States (1948) 332 U.S. 575, 578 [92 L.Ed. 180, 68 S.Ct. 237]] . . . [and] collateral estoppel [is] not only a requirement of due process, but included within the ‘Fifth Amendment’s guarantee against double jeopardy.’ [Ashe v. Swenson (1970) 397 U.S. 436, 443-445.]” (People v. White, supra, 185 Cal.App.3d at pp. 826-827.) As explained in Ashe v. Swenson (1970) 397 U.S. 436 [25 L.Ed.2d 469, 90 S.A. 1189], “‘collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice.

It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Id. at p.443 [25 L.Ed.2d at p. 475].) “Traditionally, collateral estoppel has been found to bar relitigation of an issue decided at a previous proceeding ‘if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].’ ” (People v.

Sims (1982) 32 Cal.3d 468, 484 [186 Cal.Rptr. 77, 651 P.2d 321], quoting People v. Taylor (1974) 12 Cal.3d 686, 691 [117 Cal.Rptr. 70, 527 P.2d 622].) The purposes justifying application of the doctrine of collateral estoppel have been defined as: (1) promoting judicial economy by minimizing repetitive litigation; (2) preventing inconsistent judgments which undermine the integrity of the judicial system; and (3) providing repose by preventing a person from being harassed by vexatious litigation. (People v. Taylor, supra, 12 Cal.3d at p. 695.) Taylor, citing Teitelbaum Furs, Inc. v. Dominion Ins. Co.

Ltd. (1962) 58 Cal.2d 601, 605 [25 Cal.Rptr. 559, 375 P.2d 439], also observed: “In deciding whether the doctrine is applicable in a particular situation a court must balance the need to limit litigation against the right of a fair adversary proceeding in which a party may fully present his case.” (Id. at p. 695.) In reaching its conclusion that collateral estoppel precluded retrial of the defendant as the perpetrator, the White court placed considerable reliance on People v.

Asbury (1985) 173 Cal.App.3d 362 [218 Cal.Rptr. 902], a case which utilized the doctrine of “collateral estoppel” to bar the retrial of a defendant on a felony murder theory. We believe White's reliance on As-bury was misplaced, although understandably so. In our judgment the proper rationale for the conclusion reached in Asbury was the principle of double jeopardy and not collateral estoppel. A discussion of Asbury is required. Asbury’s original trial resulted in his conviction of first degree murder and robbery.

At the same time the jury rejected a special circumstance allegation that the murder occurred during the course of the robbery. (Pen. Code, § 190.2, subd. (a)(17).) The jury also concluded that although the defendant had used a deadly weapon during the murder (Pen. Code, § 12022, subd. (b)) he had not done so during the robbery nor had he inflicted great bodily injury during the robbery (Pen. Code, § 12022.7). Asbury appealed and his conviction was reversed for reasons relating to his self-representation at trial. Asbury was retried.

During the second trial the court refused to instruct the jury on premeditated murder, determining there was insufficient foundation for the instruction. The case was submitted to the jury on felony murder pursuant to Penal Code

section 189. Asbury was again convicted of first degree murder and robbery. The Asbury court, in reversing the conviction observed: “[In] finding the defendant guilty of first degree murder . . . the jury necessarily . . . determined that the murder had occurred during the course of the robbery—a finding in apparent conflict with the verdict in the earlier proceeding rejecting the robbery special circumstance allegation and the allegations of deadly weapon use and infliction of great bodily injury during the robbery.” (People v.

Asbury, supra, 173 Cal.App.3d at p. 365.) The court held that because the jury had “. . . necessarily rejected the notion that the murder occurred during the course of the robbery” (ibid.) the doctrine of collateral estoppel barred the felony murder conviction at the second trial. The Asbury holding was predicated on the “virtually indistinguishable” language of Penal Code

section 190.2, subdivision (a)(17) and Penal Code

section 189. The former statute defines the special circumstances as specifying that the murder occur “in the commission of’ robbery, while the latter statute defines felony murder as murder “in the perpetration of’ robbery. (People v. Asbury, supra, 173 Cal.App.3d at p. 365.) “In light of the plain meaning of these statutes” (Ibid.) the court accepted Asbury’s contention that “collateral estoppel” barred the felony murder conviction. As previously indicated, in our judgment the principle of double jeopardy controlled the issue before the Asbury court, not collateral estoppel.

When the first Asbury jury decided that the murder had not occurred in the commission of the robbery, that finding impliedly acquitted Asbury of the offense of first degree murder, which, as defined in Penal Code

section 189, includes murder in the perpetration of a robbery. Using the language of Penal Code

section 1023, the jeopardy statute not referred to in the Asbury opinion, felony murder was an offense “of which [Asbury] might have been convicted under the accusatory pleading” at the first trial.

Our dissenting colleague argues that “the theory of implied acquittal. . . is correctly applied only in relation to a charged or necessarily included offense” and, therefore, “has no application ... in Asbury . . . .” (Dis. opn., post, p. 1335.) The argument is premised on Justice Kline’s statement, “. . . felony murder is not an offense ‘necessarily included’ within the offense of first degree murder, . . . .’ (Dis. opn., post, p. 1333.) While we certainly agree with the general proposition that not every first degree murder necessarily includes a felony murder as defined in Penal Code

section 189 (the White and instant cases for example), the patently evident fact of the matter is that felony murder was necessarily included in the first Asbury trial. There, the special circumstance allegation requiring that the murder occur “in the commission of’ robbery, language which, we repeat, the Asbury court found “virtually indistinguishable” from the felony murder definition of murder “in the perpetration of’ robbery, provided an element that elevated the crime from second degree murder to first degree murder.

Asbury could not have murdered in the commission of robbery without, at the same time, subjecting himself to a first degree murder conviction under the felony murder rule. It is fundamental that double jeopardy will not bar retrial of a defendant who has succeeded in overturning his conviction. (North Carolina v. Pearce (1969) 395 U.S. 711, 719-720 [23 L.Ed.2d 656, 665-666, 89 S.Ct. 2072].) This rule rests on the premise that the original conviction is nullified and “the slate wiped clean.” (Id. at p. 721 [23 L.Ed.2d at p. 667]; see Bullington v.

Missouri (1980) 451 U.S. 430, 442 [68 L.Ed.2d 270, 281, 101 S.Ct. 1852].) A well-established exception to the general rule enunciated in North Carolina v. Pearce lies where a defendant has been impliedly acquitted of an offense at the first trial. In Gomez v. Superior Court (1958) 50 Cal.2d 640, 652 [328 P.2d 976], our Supreme Court observed: “Double jeopardy attaches when [defendants] are threatened with a second trial on the charge of grand theft of which they were impliedly acquitted at the first trial where they were found guilty only of petty theft.” In People v.

Mercer (1962) 210 Cal.App.2d 153, 161 [26 Cal.Rptr. 502], the court stated: “. . . the jury returned its verdict, finding appellant guilty of second degree murder, thus impliedly finding that the killing did not take place during the perpetration of a robbery by the appellant of the decedent. The result of this implied finding was to acquit the appellant of the charge of first degree murder, thus precluding any subsequent trial of appellant on such charge.” Gomez and Mercer follow the lead of Green v.

United States (1957) 355 U.S. 184 [2 L.Ed.2d 199, 204, 78 S.Ct. 221, 61 A.L.R.2d 1119], In Green, the defendant was indicted for first degree murder. At trial the jury was instructed that it could convict on either first or second degree murder. The jury convicted on second degree, but the conviction was reversed on appeal. The United States Supreme Court held “ *. . . that a retrial on the first degree murder charge was barred by the Double Jeopardy Clause, because the defendant was forced to run the gantlet once on that charge and the jury refused to convict him.’ (Id. at p. 190; see also Price v.

Georgia, 398 U.S. 323 (1970).)” (Bullington v. Missouri, supra, at p. 443 [68 L.Ed.2d at p. 281].) The issue before the Asbury court is decidedly different from that which confronted the White court or which faces this court. In Asbury, the first degree felony murder offense was decided adversely to the People at the first trial, resulting in an implied acquittal of that charge of which he might have been convicted under the accusatory pleading. This implied acquittal and the resulting attachment of jeopardy gave finality on the merits to the felony murder offense.

In contrast, White, and Pettaway here, both convicted of first degree murder at the first trial, were not beneficiaries of a jury determination that impliedly acquitted them of the offense of first degree murder. There was no finality on the merits as to the offense charged. The court in People v. White, we respectfully submit, merely adopted the erroneous “collateral estoppel” label offered by Asbury without an appreciation that finality on the merits had been realized in Asbury by the attachment of jeopardy due to an implied acquittal of the felony murder offense.

As we pointed out earlier, a prerequisite to barring litigation of an issue by collateral estoppel is that “. . . “(2) the previous (proceeding) resulted in a final judgment on the merits. . . .” (People v. Sims, supra, 32 Cal. 3d 484.) The Ninth Circuit in Newton v. Superior Court of California (9th Cir. 1986) 803 F.2d 1051, 1057, quoting an earlier decision of that court (United States v.

Hernandez (9th Cir. 1978) 572 F.2d 218), describes the collateral estoppel doctrine in this manner: “ ‘When an issue of fact or law is actually litigated and determined by a final and valid judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or different claim. [Citation.]’ ” The Newton court, citing Ashe v.

Swenson, supra, 397 U.S. 444, observes that inquiry into application of the doctrine “ ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ ” Contrary to the holding in People v.

White we conclude that a negative finding on the enhancements was not essential to the judgment of conviction of first degree murder reached at the first trial, does not impose any finality on the merits and, therefore, does not collaterally estop the prosecution from retrying the appellant as the perpetrator nor preclude the presentation of admissible evidence to prove that theory of guilt. Several California cases clearly demonstrate the adjunctive nature of an enhancement.

Our Supreme Court in In re Culbreth (1976) 17 Cal.3d 330, 333 [130 Cal.Rptr. 719, 551 P.2d 23], held that a firearm-use enhancement under Penal Code

section 12022.5 “. . . does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used. [Citation.] [fl] The legislative purpose of

section 12022.5 has been described as deterrence, i.e., to deter the use of firearms on subsequent occasions.” (See also People v. Henry (1970) 14 Cal.App.3d 89, 92 [91 Cal.Rptr. 841].) Again acknowledging that “ ‘section 12022.5 does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used,’ ” our Supreme Court, adhering to the view adopted by a majority of Court of Appeal decisions, held that “ ‘an allegation of firearm use for purposes of Penal Code

section 12022.5 is not to be considered in determining whether the accusation encompasses a lesser included offense.’ ” (People v. Wolcott (1983) 34 Cal.3d 92, 100-101 [192 Cal.Rptr. 748, 665 P.2d 520].) The court reasoned that to allow a use enhancement to be considered a part of the accusatory pleading for the purpose of defining lesser included offenses raised due process objections.

It explained: “. . . an offense not necessarily included as a matter of law may become such because of the ‘specific language of the accusatory pleading.’ [Citation.] That rule rests on principles of due process—that a defendant cannot be convicted of a charge unless he has received notice from the accusatory pleading that he may be called upon to defend against the charge. [Citation.] The application of those principles to an enhancement allegation, however, is unclear since that allegation becomes relevant only if the defendant is convicted of a substantive crime.’’'’ (Italics added.) (Id. at p. 101.) The question of whether a jury’s finding that defendant did not personally use a firearm would collaterally estop his conviction of murder was explored in People v.

Nunez (1986) 183 Cal.App.3d 214 [228 Cal.Rptr. 64]. In Nunez the defendant was convicted of conspiracy to commit murder and first degree murder. The jury found a firearm-use allegation not true. In separate trials for the same crimes the alleged coconspirators were acquitted of the murder and conspiracy charges though found guilty of lesser offenses. On appeal defendant Nunez contended, inter alia, that the prosecution should have been barred from relitigating the issues of malice and defendant’s motive of killing for financial gain.

He argued that “since the jury found he did not personally use a firearm ... he was not found to be the direct perpetrator of the murder.” Further, that since it had been determined (in the separate trial) that an alleged coconspirator (Medina) entertained no malice, the defendant therefore entertained no malice. (Id. at p. 225.) The appellate court rejected this contention pointing out that it was based on the speculative assumption that the jury necessarily found Nunez an aider and abettor and not a direct perpetrator.

The court held that “[a] jury’s finding on an alleged enhancement that an accused was not armed with a firearm or did not personally use a firearm does not necessarily mean that the accused was not a direct perpetrator of the crime.” (People v. Nunez, supra, 183 Cal.App.3d at pp. 225-226.) The Nunez court followed similar reasoning in People v. Lopez (1982) 131 Cal.App.3d 565 [182 Cal.Rptr. 563] where the defendant claimed that “ ‘the negative finding on the enhancement allegation is equivalent to a special verdict on the factual question of whether [he] personally used a firearm.’ ” (People v.

Nunez, supra, 183 Cal.App.3d at p. 226.) For convenience we will quote verbatim the Nunez court’s reference to the Lopez decision: “In People v. Lopez (1982) 131 Cal.App.3d 565, Lopez and three other men were charged with assault with a deadly weapon and personally using a firearm pursuant to

section 12022.5. The charges stemmed from an incident in which the defendant and the other men were responsible for shooting a rifle at a group of people in the park. The majority of the evidence indicated that Lopez fired the rifle. Lopez ultimately was convicted of six counts of assault with a deadly weapon, but the jury found he did not personally use a firearm in committing the offense. “Lopez argued the evidence was insufficient to support findings that he aided and abetted an assault with a deadly weapon.

He contended the court could not analyze the evidence for sufficiency under the theory that he was the direct perpetrator because the jury found he did not personally use a firearm. As the appellate court phrased Lopez’s argument, ‘he claims the negative finding on the enhancement allegation is equivalent to a special verdict on the factual question of whether he personally used a firearm.’ (People v. Lopez, supra, 131 Cal.App.3d at p.569.) “The Lopez court determined, however, it was not bound by Lopez’s theory in examining the sufficiency of the evidence.

The court first noted that a jury may make inconsistent findings or verdicts as to a defendant charged with two offenses. An acquittal on one offense will not invalidate a verdict on a second offense, although the two verdicts are factually inconsistent. (People v. Lopez, supra, 131 Cal.App.3d at p. 570.) This rule is based on the realization that inconsistent findings may be caused simply by the mercy or leniency of the jury. (Id. at p. 571.) The Lopez court found that this rule also should be applicable when the inconsistency exists between a verdict on an offense and a finding on an enhancement.

It finally held the evidence was sufficient to support a jury verdict that defendant had fired a rifle at a group of people and was guilty of assault with a deadly weapon. (Id. at pp. 570-572; see also People v. Federico (1981) 127 Cal.App.3d 20, 31-33 [179 Cal.Rptr. 315].)” (People v. Nunez, supra, 183 Cal.App.3d at p. 226.) We agree with the conclusion reached by the Nunez and Lopez courts that a negative finding on a personal-use enhancement does not necessarily mean the accused was not a direct perpetrator of the crime.

As pointed out in those cases, “inconsistent findings may be caused simply by the mercy or leniency of the jury” (People v. Nunez, supra, 183 Cal.App.3d at p. 226), to which we might add, or through confusion or ennui. It has been said that “[c]ollateral estoppel is an equitable concept based on fundamental principles of fairness. For issue preclusion purposes it means that a party ordinarily may not relitigate an issue that was fully and fairly litigated on a previous occasion.” (Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 941 [190 Cal.Rptr. 29], cited in People v.

Nunez, supra, 183 Cal.App.3d at p. 222.) Furthermore, “[collateral estoppel is only applicable where the issue necessarily decided at the previous trial is identical to the one sought to be relitigated.” (People v. Taylor, supra, 12 Cal.3d at p. 691, cited in People v. Nunez, supra, 183 Cal.App.3d at p.222.) Here, the issue which the People seek to relitigate is whether the defendant is guilty of murder and, if so, to what degree. We are not concerned with the subject of punishment following conviction. A use enhancement is relevant only to punishment. It is not an element of the substantive offense charged.

When, as here, the defendant’s earlier conviction of murder is reversed on appeal and the defendant is subject to retrial, a finding on an enhancement allegation by the first jury is superfluous to a determination of the guilt or innocence of the charged offense at the second trial. Nor can it be said that the guilt issue was “fully” litigated at the first trial. There, the People were denied the testimony of Lowana Walker due to her invocation of the Fifth Amendment privilege. That testimony was, and is, significantly relevant to defendant’s role in the homicide.

The People’s offer of proof demonstrated that evidentiary impediment would not be present on retrial. The court in People v. Nunez, supra, 183 Cal.App.3d at page 223, referred to the observations of the United States Supreme Court on the subject of “ ‘full and fair opportunity to litigate’ ” in Standefer v. United States (1980) 447 U.S. 10 [64 L.Ed.2d 689, 100 S.Ct. 1999].

While we acknowledge that the subject was discussed in the context of whether collateral estoppel barred the government from prosecuting the defendant as an aider and abettor when the alleged perpetrator had been acquitted of the underlying offense, we nevertheless find the discussion germane to the problem before us and quote, in part, from the Nunez analysis of Standefer. “. . .

The court first noted that the government in a criminal case, unlike a party in a civil case, is often without the kind of ‘full and fair opportunity to litigate’ upon which collateral estoppel is based. . . . [fl] The Standefer court also reasoned that the rules of evidence could preclude the prosecution from presenting all the evidence it had in a particular case against a particular defendant. . . .

The [Standefer] court stated, ‘In such circumstances, where evidentiary rules prevent the Government from presenting all its proof in the first case, application of nonmutual estoppel would be plainly unwarranted.’ (Standefer v. United States, supra, 447 U.S. at p. 24.)” (183 Cal.App.3d at pp. 223-224.) None of the purposes justifying the application of collateral estoppel, as they have been defined by our Supreme Court in People v. Taylor, supra, 12 Cal.3d 686, find relevance in the case before us.

Certainly, we cannot rely on a desire to promote judicial economy to justify collaterally estopping the retrial of defendant as a perpetrator when there is significant evidence pointing to his culpability in that regard. Certainly, there is no undermining of the integrity of the judicial system by inconsistent judgments when the only judgment in the case declared defendant guilty of first degree murder. More likely, the integrity of the system would be undermined by permitting enhancement findings, made irrelevant by reversal, to control the theory and evidence of the case on retrial.

And certainly, it cannot be said that defendant is being subjected to harassment by vexatious litigation when he was subject to retrial for murder as an aider and abettor in any event. As we noted earlier, “collateral estoppel is an equitable concept based on fundamental principles of fairness.” Here, the People insist that the evidence points to the defendant as perpetrator, not aider and abettor, and decline to try the case solely on the latter theory. Based upon the offer of proof made to the trial judge at the motion hearing, their position does not appear unreasonable.

If on retrial the prosecution were limited to trying the defendant as an aider and abettor, and a jury were to determine that Lowana did not personally shoot Karen Taylor, then defendant could be acquitted despite the existence of admissible evidence that he perpetrated the homicide. This flies in the face of fairness and good sense, particularly when a jury has already found sufficient evidence to convict the defendant of murder. The principles of fairness apply to all parties in the litigation.

If the defendant were to enjoy an acquittal, then let it be on the merits following a fair presentation of admissible evidence and not because of an artificial curtailment of the People’s theory and proof predicated upon a punishment finding which became irrelevant when the conviction was reversed. Our dissenting colleague accuses us of “complete indifference to the double jeopardy clause of the Fifth Amendment.” The rhetoric is unfortunate for it carries the implication that we are somehow involved with a double jeopardy issue in our consideration of whether defendant may be retried as a perpetrator.

That is simply not the case. The defendant here is subject to “continuing jeopardy.” The United States Supreme Court explains the concept of continuing jeopardy in Justices of Boston Municipal Court v. Lydon (1984) 466 U.S. 294, 308 [80 L.Ed.2d 311, 324-325, 104 S.Ct. 1805]: “The Double Jeopardy Clause is not an absolute bar to successive trials. The general rule is that the Clause does not bar reprosecution of a defendant whose conviction is overturned on appeal. United States v. Ball, supra. The justification for this rule was explained in United States v.

Tateo, 377 U.S. 463, 466 (1964), as follows: [fl] ‘While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial.

It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.’ “In Price v. Georgia, 398 U.S. 323, 329 (1970), we recognized that implicit in the Ball rule permitting retrial after reversal of a conviction is the concept of ‘continuing jeopardy.’ See also Breed v. Jones, 421 U.S. 519, 534 (1975). That principle ‘has application where criminal proceedings against an accused have not run their full course.’ 398 U.S. at 326.

Interests supporting the continuing jeopardy principle involve fairness to society, lack of finality, and limited waiver. Id., at 329, n. 4. . . .” Succinctly stated, “. . . the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy. [Citation.]” (Richardson v. United States (1984) 468 U.S. 317, 325 [82 L.Ed.2d 242, 251, 104 S.Ct. 3081].) Here, that event has not occurred and the original jeopardy continues.

Where neither double jeopardy nor the principle of collateral estoppel is applicable in preventing reprosecution, as is the case here, the parties are placed in the “same position as if the cause had never been tried.” (People v. Murphy (1963) 59 Cal.2d 818, 833 [31 Cal.Rptr. 306, 382 P.2d 346], citing to Hall v. Superior Court (1955) 45 Cal.2d 377, 381 [289 P.2d 431].) The effect of a reversal of a judgment is discussed in Odlum v.

Duffy (1950) 35 Cal.2d 562, 564-565 [219 P.2d 785]: “It is well settled that the reversal of a judgment or order ordinarily leaves the proceeding in the same situation in which it stood before the judgment or order was made. [Citations.] The same rule has been stated with respect to the reversal of orders in criminal cases. [Citation.] It therefore appears that upon the reversal of the trial court’s order refusing to vacate the judgment of conviction, the parties were restored to the position that they had before the reversed order was made and with the same rights that they originally had, ‘with the exception that the opinion of the court of appeal must be followed so far as applicable.’ ” We must also take issue with our dissenting colleague’s apparent reliance on Arizona v.

Rumsey (1984) 467 U.S. 203 [81 L.Ed.2d 164, 104 S.Ct. 2305] and Bullington v. Missouri, supra, 451 U.S. 430, to justify the result reached in Asbury and White and which he would impose in the present case. (Dis. opn., post, at pp. 1341-1342.) In Rumsey and Bullington the Supreme Court did accord double jeopardy protection to special verdicts rendered by fact finders refusing to impose the death penalty.

However, in both cases jeopardy was considered in light of detailed statutory procedures set in motion after determination of guilt and requiring a “precisely defined,” separate presentence hearing on the issue of death or life imprisonment. What our dissenting colleague ignores in his discussion of Rumsey and Bullington is the acknowledged reluctance of the Supreme Court to extend the double jeopardy principle to sentencing and the very limited rationale which supports the holding.

In Bullington the Supreme Court opened its discussion of the issue with the following comments: “It is well established that the Double Jeopardy Clause forbids the retrial of a defendant who has been acquitted of the crime charged. United States v. DiFrancesco, 449 U.S. 117, 129-130 (1980); Burks v. United States, 437 U.S. 1, 16 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977); Fong Foo v. United States, 369 U.S. 141, 143 (1962); Green v. United States, 355 U.S. 184 (1957). This Court, however, has resisted attempts to extend that principle to sentencing.

The imposition of a particular sentence usually is not regarded as an ‘acquittal’ of any more severe sentence that could have been imposed. The Court generally has concluded, therefore, that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside. See North Carolina v. Pearce, 395 U.S. 711 (1969). See also United States v. DiFrancesco, 449 U.S., at 133, 137-138; Chaffin v. Stynchcombe, 412 U.S. 17, 23-24 (1973); Stroud v. United States, 251 U.S. 15 (1919).” (Bullington v.

Missouri, supra, at pp. 437-438 [68 L.Ed.2d at p. 278].). The court continued: “The procedure that resulted in the imposition of the sentence of life imprisonment upon petitioner Bullington at his first trial, however, differs significantly from those employed in any of the Court’s cases where the Double Jeopardy Clause has been held inapplicable to sentencing. . . . The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence.

It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes.” (451 U.S. at p. 438 [68 L.Ed.2d at pp. 278-279].) The narrowly crafted holding in Bullington concludes: “Because the sentencing proceeding at petitioner’s first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury also is available to him, with respect to the" death penalty, at his retrial. We therefore refrain from extending the reasoning of Stroud v.

United States, 251 U.S. 15 (1919), to this very different situation.” (451 U.S. at p.446 [68 L.Ed.2d at p. 284], fn. omitted.) Clearly, Bullington and Rumsey are inapposite to White and the case before us. They involve cases where the defendants were convicted of the crime charged and the states’ procedures required a second trial on the issue of punishment. However, our colleague’s discussion of Bullington and Rumsey does serve to highlight the analytical error which permeates his dissent.

He chooses to put the Asbury, White and Pettaway cases on the same plane, consistently ignoring that White and Pettaway were convicted of the first degree murder offense, while Asbury on the other hand, was impliedly acquitted of first degree felony murder. Thus while jeopardy had attached to Asbury, its protection did not flow to White or Pettaway. There is another aspect of People v. White, supra, 185 Cal.App.3d 822, which requires discussion. In White, the respondent contended Penal Code

section 954 permitted retrial of the gun use issue. Our colleagues in Division Five dismissed the argument on two grounds: “a statutory enactment cannot override the constitutional prohibition against double jeopardy” and “section 954 is concerned with multicount indictments or informations, and not with the retrial of issues previously adjudicated to finality.” (185 Cal.App.3d at p. 828.) The White court then explained that inconsistencies in unified jury verdicts are tolerated.

To allow the prosecution to retry the case on the theory White used a firearm “ ‘implicates concerns about the injustice of exposing a defendant to repeated risks of conviction for the same conduct. . . that lie at the heart of the double jeopardy clause.’ ” The court went on to say “the previous jury decided that issue and acquitted him of that charge.” (Id. at p. 829, italics added.) The White court, we respectfully submit, was wrong in the application of

section 954 and mischaracterized what the first jury did. Both Pettaway and White were found by their first juries to be guilty of murder; both juries also found untrue the allegation of use of a firearm in connection with the murder. In People v. Amick (1942) 20 Cal.2d 247 [125 P.2d 25], appellant was charged in count one with manslaughter and in count two with negligent homicide. Both counts grew out of the same act by appellant. The jury found appellant guilty of negligent homicide and not guilty of manslaughter.

Appellant claimed the verdicts were inconsistent and conflicting since the same evidence was relied on in both counts and the verdicts were insufficient to support the conviction. The Supreme Court held that the 1927 amendment to Penal Code

section 954 permitted inconsistent verdicts and the disposition of one count had no bearing on the verdict with respect to other counts; each count must stand on its own merits. In People v. Federico, supra, 127 Cal.App.3d 20, a jury determined appellant guilty of murder but also found untrue the enhancements that he was armed with a firearm and used a firearm.

Appellant argued that reversal of the murder conviction was mandated because of a fatal inconsistency between the verdict of guilty on the murder count and the jury’s finding that the allegation that appellant was armed with a firearm in the commission of the murder was not true. The Federico court rejected this contention relying on Penal Code

section 954 and the rule that each count must stand on its own merits. The court recognized a limited exception to the rule that each count must stand on its own merits.

The exception comes into play where “ ‘all of the essential elements of the crime of which the defendant was acquitted are identical to some or all of the essential elements of the crime of which he was convicted, and proof of the crime of which the defendant was acquitted is necessary to sustain a conviction of the crime of which the defendant was found guilty. ’ ” (Id. at p. 32, italics in original.) While acknowledging that “. . . strictly speaking the allegation that defendant was armed in the commission of the murder did not charge a separate offense” the court held that “. . . the principles found in Penal Code

section 954 and the cases interpreting it are applicable in resolving the logical inconsistency between the not true findings of the armed allegation and the guilty verdict on the murder charge.” (Id. at pp. 32-33; see also People v. Brown (1985) 174 Cal.App.3d 762, 768 [220 Cal.Rptr. 264].) Had Pettaway contended in his appeal that his conviction for murder must be reversed on the grounds it was inconsistent with the finding on the enhancement, he could not have prevailed under Penal Code

section 954 and the above cited cases. There is no logical reason why the result should differ on retrial after his murder conviction was reversed for Beeman error. The finding on the enhancement simply has no effect on the murder charge in the first or the second trial. Finally, we briefly address whether under double jeopardy principles defendant here may be retried on the enhancement allegations which the jury determined in his favor. Earlier we noted that the People had conceded defendant’s immunity from retrial on the enhancement issues.

Subsequent to our submission of this matter we requested additional briefing addressed to the propriety of this concession. We are now satisfied that the People’s concession was sound and that retrial on an enhancement allegation is precluded where a jury has resolved that question, correctly or not, in defendant’s favor. The California Supreme Court addressed the issue in People v. Henderson (1963) 60 Cal.2d 482, 495-497 [35 Cal.Rptr. 77, 386 P.2d 677].

Justice Traynor, writing for the majority, stated: “Defendant contends that the prohibition against double jeopardy precludes imposing the death sentence after reversal of the first judgment sentencing him to life imprisonment.

Article I,

section 13, of the California Constitution provides that ‘No person shall be twice put in jeopardy for the same offense. . . .’It states a fundamental principle limiting the state’s right repeatedly to prosecute a defendant.

It is not an absolute prohibition, for although jeopardy may have attached, legal necessity or the real or implied consent of the defendant permits a retrial. [Citation.] In the present case, we must determine the extent to which a defendant who attacks an erroneous conviction thereby opens the door to being again placed in jeopardy. [U] He does not gain immunity, for by successfully attacking the judgment he at least subjects himself to a retrial that may reach the same result. [Citations.] There is a sharp conflict in the cases, however, whether such an attack opens the door to the imposition of a more severe sentence on retrial. . . .” Concluding that the double jeopardy principle of the state Constitution forbids the imposition of a greater punishment for the same crime on retrial, Justice Traynor concluded: “A defendant’s right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right.

Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal.” (People v. Henderson, supra, 60 Cal.2d at p.497.) More recently our Supreme Court in People v. Collins (1978) 21 Cal.3d 208, 216 [145 Cal.Rptr. 686, 577 P.2d 1026], addressing a sentencing issue observed: “We find precedent for the foregoing result in a line of cases based on principles of double jeopardy.

Our concern there was specifically to preclude vindictiveness and more generally to avoid penalizing a defendant for pursuing a successful appeal. In People v. Ali (1967) 66 Cal.2d 277, 281 [57 Cal.Rptr. 348, 424 P.2d 932], we stated that ‘a defendant should not be required to risk being given greater punishment on a retrial for the privilege of exercising his right to appeal.’ ” For the reasons expressed in Henderson and Collins, we agree that defendant cannot be retried on the Penal Code sections 12022.5 and 12022.7 enhancements. The judgment of dismissal is reversed.

The case is remanded for trial in accordance with the views expressed herein. Rouse, J., concurred. Penal Code

section 189 provides, inter alia: “All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under

section 288, is murder of the first degree; and all other kinds of murders are of the second degree. . . .” Asbury was originally charged with murder pursuant to Penal Code

section 187. Our Supreme Court has recognized that the “usual manner” of charging the crime of murder is “without specification of degree.” (People v. McDonald (1984) 37 Cal.3d 351, 379 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011].) Penal Code

section 187, subdivision (a), defines murder as the “unlawful killing of a human being, or a fetus, with malice aforethought.” The degrees of murder are defined in Penal Code

section 189. A murder charge pursuant to

section 187 may include first and second degree murder. Footnote 10 in Bullington notes: “At the statutorily prescribed presentence hearing, counsel make opening statements, testimony is taken, evidence is introduced, the jury is instructed, and final arguments are made.

The jury deliberates and returns its formal punishment. . . .” (451 U.S. at pp. 438-439 [68 L.Ed.2d at p. 279].) In Rumsey the court, after outlining the procedure set forth in the Arizona statute commented: . . these characteristics make the Arizona capital sentencing proceeding indistinguishable for double jeopardy purposes from the capital sentencing proceeding in Missouri.” (467 U.S. at p. 210 [81 L.Ed.2d at p. 171].) The relevant portion of

section 954 provides: “An acquittal on one or more counts shall not be deemed an acquittal of any other count.” Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.