German

*60 Opinion

Petitioner seeks a writ of prohibition directing the trial court to dismiss count 2 of a pending information charging appellant with conspiracy to commit murder. This petition raises the question whether a defendant, whose conviction for conspiracy to commit second degree murder was reversed on appeal for trial error, may now be retried for conspiracy to commit first degree murder without subjecting him to double jeopardy. The issue of double jeopardy arises here not because of trial error, but because of intervening case law of our Supreme Court effectively abrogating the crime of conspiracy to commit second degree murder, and holding that all conspiracies to commit murder are necessarily premeditated and deliberated, subject to the same punishment as murder in the first degree. (People v. Cortez (1998) 18 Cal.4th 1223 [ 77 Cal.Rptr.2d 733 , 960 P.2d 537 ].)

Pointing out that the jury convicted him of conspiracy to commit second degree murder, petitioner argues it impliedly acquitted him of the crime of conspiracy to commit premeditated and deliberated murder. Any effort to prosecute him on a conspiracy charge, now subject to the penalty for first degree murder,…