Porter

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

Petitioner Anthony Porter, the criminal defendant in the underlying prosecution for attempted murder and other felonies arising from a drive-by shooting, filed a petition for writ of mandate to compel respondent superior court to vacate its order denying petitioner's motion to dismiss this action on double jeopardy grounds and to enter a different order granting the motion or for a writ of mandate granting other appropriate relief. Petitioner Porter seeks to avoid further trial on the premeditation and gang enhancement allegations. We issued an order to show cause. The People, the real party in interest, filed a return.

The question before us is whether the prosecution may retry premeditation allegations and gang enhancement allegations on which the trial court granted a new trial after the jury had convicted petitioner as charged. Petitioner argues that double jeopardy bars further trial and Apprendi v. New Jersey…