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Name: In re Cruz
Case #: B154156
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 01/02/2003
Subsequent History: Rev. den. 4/23/03

The factual finding in a state habeas corpus proceeding that defendant was not the shooter in a murder and attempted murder case had no collateral estoppel effect in a subsequent retrial of defendant on the same charges, nor was retrial barred by double jeopardy principles. Newly discovered evidence (testimony by an informant and a statement by Reyes himself that he was shooter) convinced the habeas court that Cruz was not the shooter. At the sentencing hearing on remaining charges, the People asserted the effect of the orders made at the habeas hearing was to vacate the convictions and reinstate the murder charge. The People moved to dismiss the charge pursuant to Penal Code section 1385, stating “we believe our only viable option at this time is to dismiss those [murder and attempted murder charges] and not reinstate charges against the defendant . . .” The court granted the motion and later issued an order stating that the People were barred by collateral estoppel from relitigating the fact that Cruz was not the shooter. The People appealed, saying in the notice of appeal that the appeal would “focus on” the propriety of the order that further prosecution based upon factual issues determined in the habeas proceeding was precluded. The appellate court held that the whether Cruz was the shooter was not an issue of ultimate fact in the prior habeas proceeding. First, the order did not bar retrial on an aider and abettor theory in this gang murder case. Second, habeas is not a proceeding to determine guilt or innocence, but invalidates the conviction and restores the defendant to the position he or she was in if there had been no trial. Retrial was not barred due to double jeopardy because the trial court’s order and the record did not show that the court applied the substantial evidence standard of review and found that no reasonable factfinder could convict Cruz. The appeals court described the People’s motion to dismiss the charges as “a conciliatory gesture without any legal impact.”