The Kellett rule does not foreclose a second prosecution for charges that the People “were not permitted” to pursue during initial prosecution because the trial court dismissed them. Large capacity magazine (PC 32310(a)) counts were dismissed during first prosecution, based on a Ninth Circuit decision later reversed, and defendant was convicted on the remaining charges. A second prosecution for dismissed counts was permissible under PC 1387. Additionally, the unavailable evidence exception provided a second justification for denying defendant’s Kellett motion.

The full opinion is on the court’s website here: https://www4.courts.ca.gov/opinions/documents/G065074.PDF