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Name: Porter v. Superior Court
Case #: S152273
Court: CA Supreme Court
District CalSup
Opinion Date: 07/23/2009

Apprendi, which did not convert penalty allegations into actual elements of the offense for double jeopardy purposes, has no impact on Penal Code section 1023 where there has been no express or implied acquittal. In this companion case to People v. Anderson (July 23, 2009, S152695) __ Cal.4th __, a jury convicted Porter of attempted murder, along with findings of premeditation, and gang enhancements. Arguing there was insufficient evidence of premeditation or of the gang findings, Porter sought a new trial under Penal Code section 1181, subdivision (6) [When a verdict has been rendered or a finding made against the defendant, the court may grant a new trial when the verdict or finding is contrary evidence], which the court granted. He then filed a motion for dismissal on double jeopardy grounds. Finding that the allegations were elements of the crime for Apprendi purposes, the Court of Appeal concluded that retrial of the allegations would violate double jeopardy as well as section 1023. For reasons set forth in Anderson, the Supreme Court here noted that Apprendi did not convert penalty allegations into elements of greater offenses. Further, under section 1181, subdivision (6) the trial court has no authority to grant an acquittal. Therefore, double jeopardy principles do not bar retrial and, as explained in Anderson, the scope of retrial is limited to the allegations, not the substantive offense.