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Name: German v. Superior Court
Case #: B148154
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 07/30/2001
Subsequent History: None
Summary

Petitioner’s original conviction for conspiracy to commit second degree murder was reversed on appeal. Following the reversal and prior to retrial, the California Supreme Court decided People v. Cortez (1998) 18 Cal.4th 1223, which effectively abrogated the crime of conspiracy to commit second degree murder, and held that all conspiracies to commit murder must necessarily be first degree. The prosecution sought to prosecute petitioner for conspiracy to commit first degree murder, and petitioner sought a writ of prohibition directing the trial court to dismiss that count. The appellate court here granted the writ. In returning a verdict for the lesser included offense of conspiracy to commit murder in the second degree, the jury impliedly acquitted of the greater crime of conspiracy to convict first degree murder. Therefore, the protection against double jeopardy precludes retrial on the conspiracy to commit first degree murder. Nor could petitioner be retried for conspiracy to commit second degree murder, because that crime no longer exists in California.