Sullivan

We hold that double jeopardy bars a retrial on a substantive offense when jurors reached a verdict on the substantive offense but deadlocked as to an enhancement. The trial court should have taken a verdict on the substantive offense and declared a mistrial as to the enhancement only. Finding that defendant Demetrius Sullivan received ineffective assistance of counsel for counsel’s failure to advise defendant to plead once in jeopardy, we reverse the judgment of conviction.

BACKGROUND

On March 17, 2011, defendant was charged with robbery (Pen. Code, § 211) and assault likely to produce great bodily injury (§ 245, subd. (a)(1)). It was further alleged defendant personally inflicted great bodily injury on John Doe in violation of section 12022.7, subdivision (a). Prior convictions were alleged. Defendant was tried by jury. With respect to the great bodily injury enhancement, the jurors were instructed that “great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” The jurors asked the court the meaning of “moderate harm,” and the court reinstructed them.

In the morning of June 30, 2011, the jurors…