Skip to content
Name: People v. Anderson
Case #: S152695
Court: CA Supreme Court
District CalSup
Opinion Date: 07/23/2009

Retrial of a penalty provision allegation that elevates a substantive offense to “One Strike” status does not violate federal or state double jeopardy principles, and retrial is limited to the deadlocked allegation alone. Appellant was convicted of the offense of committing lewd acts on a child (Pen. Code, sec. 288, subd. (a)), but the jury deadlocked on the One Strike kidnapping allegation (Pen. Code, sec. 667.61) attached to the offense, and the court declared a mistrial as to the allegation. The One Strike allegation provides for enhanced sentencing. The trial court permitted a second trial on the penalty allegation. The jury found the factual allegation true, and appellant was sentenced to prison for 25 years to life. The Supreme Court found that a count alleging a crime plus factual sentencing factors is not a greater offense to the substantive offense for double jeopardy purposes, and neither federal nor state double jeopardy principles will bar retrial on an aggravated sentencing allegation in the instance where defendant is convicted of the substantive crime but the first trial does not produce an express or implied acquittal on the allegation. Retrial is also not barred under the statutory provision, Penal Code section 1023, which states that once a defendant is acquitted or convicted for an offense necessarily included therein, the conviction or acquittal is a bar to another prosecution for the same offense. The statute addresses the doctrine of included offenses, rather than penalty allegations. (People v. Bright (1996) 12 Cal.4th 652, 661.) Thus, retrial of the One Strike allegation, which was not an included offense, did not violate section 1023. The Court, analogizing that separate trials are permitted for prior conviction allegations and retrial on penalty alone in death penalty cases, further found that where jeopardy is not a bar, retrial on the limited question of the deadlocked penalty allegation is permissible and need not encompass the underlying offense.