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Name: Cherry v. Superior Court (Los Angeles County)
Case #: B144293
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 02/07/2001
Subsequent History: Rev. den. 5/2/01

Res judicata, law of the case, and double jeopardy do not, singularly or in combination, preclude a new trial on the issue of whether appellant personally used a dangerous or deadly weapon in committing the crime underlying his prior conviction for assault under Penal Code sections 245, subdivision (a)(2), and 1192.7, subdivision (c)(23). Apprendi v. New Jersey (2000) 530 U.S. 466, does not supersede Monge v. California (1998) 524 U.S. 721, but recognizes prior convictions as an exception to be the double jeopardy bar. Explicitly declining to follow People v. Mitchell (2000) 81 Cal.App.4th 132, because there on remand, the prosecution had failed to offer any additional evidence, the Court of Appeal followed People v. Morton (1953) 41 Cal.2d 536, and concluded that retrial on the prior conviction allegation here was not barred by res judicata and law of the case. Justice Epstein concurred separately, noting that collateral estoppel could not apply as this remand had occurred in the same case, and law of the case could not apply because the only law of this case is that the prosecution’s proof of the prior was insufficient.