Cherry

I agree with my colleagues that none of the defenses advanced by petitioner—former jeopardy, law of the case, collateral estoppel, or res judicata—applies to this case. Consequently, there is no bar to retrial of the prior convictions charged for purposes of punishment. I write separately because I arrive at the res judicata portion of this conclusion by a somewhat different route than the majority.

*1306 At the outset I acknowledge that there is much in the majority opinion with which I fully agree. By the same token, I fully agree with most of the analysis and conclusions in People v. Scott (2000) 85 Cal.App.4th 905 [ 102 Cal.Rptr.2d 622 ], on which the majority understandably relies. Thus, there is no basis for operation of the collateral estoppel principle since this litigation involves separate phases of the same case, not a different case. 'Nor does law of the case play a role, since the only law of this case is that the evidence received by the trial court to prove that petitioner suffered a previous serious felony conviction is insufficient for that purpose. Whether sufficient other cognizable evidence exists has not been decided by any court. I also agree that we are…

In our earlier opinion (People v. Cherry (Mar. 7, 2000, B128324) [nonpub. opn.]), this court found the evidence insufficient to support the trial court’s finding that Charles Darnell Cherry had suffered a prior serious felony conviction for assault (Pen. Code, § 245, subd. (a)(1)) 1 which qualified as a strike under the “Three Strikes” law (§§ 667, subds. (b) -(i), 1170.12, subds. (a)-(d)). We reversed the sentence and remanded the matter with directions to the trial court to conduct a retrial of the nature of that prior allegation 2 and for resentencing and recalculation of presentence custody credits. We affirmed the judgment in all other respects.

*1299 Retrial of the nature of the assault prior was originally set for August 3, 2000. It was subsequently continued to September 19, 2000.

On August 11, 2000, Cherry filed a motion to bar the retrial on the grounds of res judicata, collateral estoppel and law of the case and cited People v. Mitchell (2000) 81 Cal.App.4th 132 [ 96 Cal.Rptr.2d 401 ], as authority.

On August 17, 2000, he filed a document entitled “Plea of Once in Jeopardy” in which he cited Apprendi v. New Jersey (2000) 530 U.S. 466 [ 120 S.Ct. 2348 , 147…

Gil Garcetti and Stephen L. Cooley, District Attorneys of Los Angeles County, Patrick D. Moran and Brent Riggs, Deputy District Attorneys, for Real Party in Interest.

Certiorari Denied October 1, 2001. See 122 S.Ct. 125 .

CURRY, J.

In our earlier opinion (B128324), this court found the evidence insufficient to support the trial court's finding that Charles Darnell Cherry had suffered a prior serious felony conviction for assault (Pen.Code, § 245, subd. (a)(1)) [1] which qualified as a strike under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). We reversed the sentence and remanded the matter with directions to the trial court to conduct a retrial of the nature of that prior allegation [2] and for resentencing and recalculation of presentence custody credits. We affirmed the judgment in all other respects.

Retrial of the nature of the assault prior was originally set for August 3, 2000. It was subsequently continued to September 19, 2000.

On August 11, 2000, Cherry filed a motion to bar the retrial on the grounds of res judicata, collateral estoppel and law of the case and cited People v. Mitchell (2000) 81 Cal.App.4th 132 , 96 Cal.Rptr.2d 401 , as…