Porter

This is a companion case to People v. Anderson (2009) 47 Cal.4th 92 (Anderson), also filed today. In Anderson , we held that retrial of a penalty allegation on which a jury has deadlocked is not barred by constitutional double jeopardy principles or by Penal Code section 1023. 1 We also concluded that retrial may be limited to the deadlocked allegation alone and need not encompass the underlying offense.

Petitioner here raises the same arguments we addressed in Anderson but in a different procedural context. A jury convicted petitioner of all substantive offenses and found all attached penalty allegations and enhancements to be true. The trial court granted a new trial on some of these penalty factors. Sitting, in effect, as a “13th juror,” the court concluded the allegations had not been proven beyond a reasonable doubt. (§ 1181, subd. 6 (hereafter section *130 1181(6)).) Petitioner then objected that a second trial on the sentencing allegations would violate double jeopardy. The trial court rejected that argument, but the Court of Appeal disagreed. Relying on language in Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ] (Apprendi)…

Concurring. — In this case, the court rejects a claim that retrial of an allegation that defendant’s commission of an attempted murder was “willful, deliberate, and premeditated” would violate the constitutional prohibition against trying a criminal defendant twice for the same offense. (U.S. Const., 5th Amend.; see also Cal. Const., art. I, § 15.) This decision mirrors the holding of the majority in People v. Bright (1996) 12 Cal.4th 652 [ 49 Cal.Rptr.2d 732 , 909 P.2d 1354 ] (Bright). I thought this court was wrong in Bright , and I said so in a dissenting opinion. (Id. at pp. 683-693 (dis. opn. of Kennard, J.).) I still hold that view. I write separately to explain why I nonetheless join today’s decision.

I

Because this court’s decision in Bright, supra, 12 Cal.4th 652 , plays a significant role in this case, I discuss it in considerable detail. The defendant there was charged with attempted murder (Pen. Code, §§ 187, 664, subd. (a)), 1 which the prosecution alleged was “willful, deliberate, and premeditated” (§ 664, subd. (a)). Such an allegation, if found to be true, would increase the sentence for attempted murder from five, seven, or nine years to mandatory life…

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, Seth K. Schalit and William Kuimelis, Deputy Attorneys General, for Real Party in Interest.

Tony Rackauckas, District Attorney (Orange), Mitchell Keiter, Deputy District Attorney; and W. Scott Thorpe for California District Attorneys Association as Amicus Curiae on behalf of Real Party in Interest.

CORRIGAN, J.—

This is a companion case to People v. Anderson (2009) 47 Cal.4th 92 ( Anderson ), also filed today. In Anderson , we held that retrial of a penalty allegation on which a jury has deadlocked is not barred by constitutional double jeopardy principles or by Penal Code section 1023. [1] We also concluded that retrial may be limited to the deadlocked allegation alone and need not encompass the underlying offense.

Petitioner here raises the same arguments we addressed in Anderson but in a different procedural context. A jury convicted petitioner of all substantive offenses and found all attached penalty allegations and enhancements to be true. The trial court granted a new…