Anderson

This case concerns two questions we did not resolve in People v. Seel (2004) 34 Cal.4th 535 [ 21 Cal.Rptr.3d 179 , 100 P.3d 870 ] (Seel). (1) Do double jeopardy principles prohibit retrial when a jury has convicted the defendant of an offense but deadlocked on an attached penalty allegation? (2) If retrial is permissible, must it encompass the underlying offense, or may the penalty allegation be retried in isolation? We conclude that, in such circumstances, mistried penalty allegations may be retried, and the retrial need only encompass the mistried enhancements.

BACKGROUND

In January 2003, Donna Divens saw A.B. and E.M. following defendant around a block of units in the apartment complex where Divens lived. Both girls were five years old. Divens followed them around a comer and saw A.B. *99 standing with her pants down while defendant squatted behind her. E.M. was standing nearby. When Divens appeared, defendant quickly departed. The girls explained they had followed him because he promised them candy and kittens.

Defendant was charged in count one with committing a lewd and lascivious act on A.B., a child five years of age. (Pen. Code, § 288, subd. (a).) 1 That…

Concurring. — I concur in the majority opinion. The possible effect of the majority’s holding, however, is a cause for some concern. Rather than being required to find a defendant guilty beyond a reasonable doubt of the underlying offense, the jury that tries a penalty enhancement separately will presumably be told that a defendant has been found guilty of that offense, otherwise it would not be able to convict on the enhancement. In this circumstance, there is the potential that the presumption of innocence for the penalty enhancement, in practical terms, will be eroded, and that therefore a defendant being retried on the enhancement alone will be in a more disadvantageous position than he was in the original trial when the offense and the enhancement were tried together. Whether current standard jury instructions are adequate to safeguard the presumption of innocence in this situation, or a new instruction is needed, remains to be determined.

On August 26, 2009, the opinion was modified to read as printed above.

This case concerns two questions we did not resolve in People v. Seel (2004) 34 Cal.4th 535 [ 21 Cal.Rptr.3d 179 , 100 P.3d 870 ] ( Seel ). (1) Do double jeopardy principles prohibit retrial when a jury has convicted the defendant of an offense but deadlocked on an attached penalty allegation? (2) If retrial is permissible, must it encompass the underlying offense, or may the penalty allegation be retried in isolation? We conclude that, in such circumstances, mistried penalty allegations may be retried, and the retrial need only encompass the mistried enhancements.

In January 2003, Donna Divens saw A.B. and E.M. following defendant around a block of units in the apartment complex where Divens lived. Both girls were five years old. Divens followed them around a corner and saw A.B. standing with her pants down while defendant squatted behind her. E.M. was standing nearby. When Divens appeared, defendant quickly departed. The girls explained they had followed him because he promised them candy and kittens.

Defendant was charged in count one with committing a lewd and lascivious act on A.B., a child five years of age. (Pen. Code, § 288, subd. (a).) [1] That charge…