APPEAL from a judgment of the Superior Court of Los Angeles County, David S. Wesley, Judge. Reversed. (Los Angeles County Super. Ct. No. BA322130).
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PUBLICATION
Arlester 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).*fn1 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 factual summary reflects the conflicting testimony which gave rise to these different determinations.
In the early morning hours of May 2, 2007, Tonia Taylor was talking, drinking and playing cards with several other people in the front bedroom of Shelby Williams's house, which was the rear house at 4234 Third Avenue, a residence Taylor described as a crack house. Melvin James was one of the persons present at the time. At about 5:00 a.m., three men entered the house. According to Taylor, one was short, one was medium height, and one was tall. The short man asked James if he had anything to sell, but James indicated he was not selling drugs at that time. During that conversation, the tall man turned around, reached over Taylor's head, and pointed a gun at James's head. The tall man told James to give up the money, James tried to get the gun from him, and the two men struggled. Taylor ran to the kitchen during the struggle and pulled a mattress over her head. She heard two gunshots, saw James on the ground, and ran out of the house. She did not see the three intruders leave the house. Melvin James died as a result of two gunshot wounds.
Tonia Taylor told police the shooter was a male black, 6 feet 2 to 6 feet 3 inches in height, light skinned, wearing a black leather jacket and a black beanie. She described the short person as 5 feet 2, 120 to 130 pounds, dark complexion, wearing a leather jacket. She described the third intruder as male black, light skin with curly hair. Taylor identified Samuel Riggs from a photo six-pack as the short intruder ―who was doing all the talking.‖ She identified Kevin Cheval at the preliminary hearing as the medium-sized man. She selected appellant's photograph from a six-pack as looking like the shooter; she wrote on the back of his photograph, ―Kind of look like him.‖ At trial, she did not think appellant looked like the person in that photograph.
Shelby Williams had been asleep in the house when he was awakened by a ―loud pop‖ from the other side of a curtain. He sat up, and saw two men coming through the curtain. One of the men asked Williams for the location of the back door. Williams pointed it out, and the men ran out the door. Police showed Williams a photo six-pack. He selected appellant's photograph as someone he had possibly seen before in the neighborhood; he selected a different photograph as looking familiar because of the eyes. When he saw appellant at the preliminary hearing, Williams identified him as the person who asked about the back door. He explained he only saw the person for two seconds, and he made the identification based on appellant's eyes and ears.
Rickey Marks was sleeping in his car, parked across the street from Shelby Williams's house when he was awakened by the sound of car doors slamming. He saw three men get out of a white Ford Taurus and walk toward the rear house. They came out a little while later, got into the car, and left. He recognized the driver as Kevin Cheval, and the ―little dude‖ with him as Samuel Riggs. He identified appellant in a photo six-pack, but that identification was ―based on something someone told me.‖
Kevin Cheval testified that on the date of the incident, he had stopped at Riggs's house because he was drunk and wanted to get some sleep before driving home. Riggs asked Cheval to take him to get some crack cocaine. Cheval agreed, and as he and Riggs walked toward Cheval's white Taurus, appellant joined them. They stopped at one location to buy drugs, but were directed to go to Williams's house. According to Cheval, he parked near the address, and Riggs and appellant walked down the driveway to Williams's house, which was the rear house. Cheval stayed in the car for a few minutes, then got out and walked toward the house to find out what was taking so long. He went to the back door and went through to an inner doorway with a curtain in front of it. He heard noise, arguing, and screaming. And then he heard gunshots, coming from the other side of the curtain.
Cheval ran out the back door, then back up the driveway. Appellant came from behind, grabbed him by the collar, and pulled and dragged Cheval to his car. Appellant had a gun in his hand, and when Cheval tried to resist, appellant hit him in the back of the head with the gun. All three men got into the car, and appellant told Cheval, ―Get out of here. Drive.‖ Cheval drove back to Riggs's house, Riggs and appellant got out, and Cheval drove away. Cheval was arrested 12 days later. He was later considered a victim of kidnapping, as charged in count 4.
Riggs testified that Cheval drove him to get some crack cocaine. He went into the house at the rear of 4234 Third Avenue. He was high at the time and did not remember if Cheval went in with him. He did not remember appellant going with them, and did not remember if he saw a fight or a struggle, or heard a demand for money. In a recorded interview with police, Riggs identified appellant's photograph and told police appellant went to the house with him, and Cheval drove them. Appellant pointed the gun at James, James came at appellant, the two started wrestling, and then appellant's gun went off. Riggs told police he did not know why appellant pulled out a gun, but after being asked several times, said he thought appellant did it to get some money.
Appellant was arrested and charged with the murder of Melvin James during the commission of an attempted robbery (count 1; § 187, subd. (a)), attempted robbery (count 2; §§ 211/664), kidnapping of Kevin Cheval (count 4; § 207, subd. (a)), and possession of a firearm by a felon (count 5; § 12021, subd. (a)(1)). It was alleged that appellant personally used a firearm within the meaning of section 12022.53, subdivisions (b), (c) and (d); and that he had suffered a prior felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (a) through (i).
At the start of trial, appellant's counsel moved to sever trial on the prior conviction allegations and the felon in possession charge from the other counts. The court granted the motion and appellant agreed to waive jury trial on the severed count and allegations. The jury found appellant not guilty on counts 1, 2 and 4. The court then tried appellant on count 5, the ...