Does a jury's finding that defendant did not personally use a firearm would collaterally estop his conviction of murder?

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, 228 Cal.Rptr. 64.)

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 [206 Cal.App.3d 1324] 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

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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, 228 Cal.Rptr. 64.) 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, [182 Cal.Rptr. 563] 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.