Supreme Court of California Justia
Citation 47 Cal. 4th 125, 211 P.3d 606, 97 Cal. Rptr. 3d 103

Porter v. Super. Ct.

Filed 7/23/09 (this opn. follows companion case, S152695, filed same date)

IN THE SUPREME COURT OF CALIFORNIA

ANTHONY PORTER,
Petitioner,
v.
S152273
THE SUPERIOR COURT OF
MONTEREY COUNTY,
Respondent,
Ct.App. 6 H029884
THE PEOPLE,
Monterey County
Real Party in Interest.
Super. Ct. No. SS042332A

This is a companion case to People v. Anderson (July 23, 2009, S152695)
__ Cal.4th __ (Anderson), also filed today. In Anderson, we held that retrial of a
penalty allegation on which a jury has deadlocked is not barred by constitutional
double jeopardy principles or by Penal Code section 1023.1 We also concluded
that retrial may be limited to the deadlocked allegation alone and need not
encompass the underlying offense.
Petitioner here raises the same arguments we addressed in Anderson but in
a different procedural context. A jury convicted petitioner of all substantive
offenses and found all attached penalty allegations and enhancements to be true.
The trial court granted a new trial on some of these penalty factors. Sitting, in
effect, as a “13th juror,” the court concluded the allegations had not been proven

1
All statutory references are to the Penal Code.
1


beyond a reasonable doubt. (§ 1181, subd. 6 (hereafter section 1181(6)).)
Petitioner then objected that a second trial on the sentencing allegations would
violate double jeopardy. The trial court rejected that argument, but the Court of
Appeal disagreed. Relying on language in Apprendi v. New Jersey (2000) 530
U.S. 466 (Apprendi) requiring that certain sentencing factors be treated as the
“functional equivalent” of elements of greater offenses, as compared with the
underlying offense alone, the Court of Appeal concluded retrial of the penalty
allegations would violate the double jeopardy clause and section 1023.
Accordingly, that court issued a peremptory writ of mandate directing the trial
court to dismiss the allegations. We reverse.
BACKGROUND
Based on his participation in a drive-by shooting, petitioner Anthony Porter
was indicted on two counts of attempted murder, two counts of assault with a
semiautomatic firearm, shooting at an inhabited dwelling, shooting from a motor
vehicle, and carrying a loaded firearm registered to a different owner.2 The
indictment alleged that the attempted murders were committed willfully,
deliberately, and with premeditation (§ 664, subd. (a)), and that all of the offenses
were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Enhancements to the attempted murder and assault charges were alleged for
personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (c)). The jury
convicted on all counts and found all the allegations true.
Petitioner sought a new trial under section 1181(6), arguing there was
insufficient evidence to prove he acted with premeditation and deliberation, with
intent to kill, or for the benefit of a street gang. The trial court rejected the
argument relating to intent, observing, “It‟s impossible to summon up what the
intent could have been under these circumstances if not the intent to kill . . . .”

2
We grant petitioner‟s unopposed request for judicial notice of the
indictment and the motion for new trial. These two documents are relevant to our
discussion but were not included in the record prepared for this writ proceeding.
2


However, the court found it “a closer question” whether sufficient, credible
evidence supported the finding of premeditation and deliberation. It conceded that
some evidence supported premeditation, including testimony that petitioner‟s car
drove past the victims two or three times before petitioner opened fire. But, “on
balance, given the really uncontroverted evidence of [petitioner‟s] extreme
intoxication in the hours preceding the shooting,” the court did not believe
petitioner acted with the more exacting mental state. The court also found the
evidence of gang involvement to be weak. In the court‟s view, scant evidence
showed the “Krazy Ass Pimps” gang was still in existence at the time of the
shooting. The court characterized the testimony identifying petitioner as a
member of this gang as “very, very vague.” Accordingly, the court granted a new
trial on the gang enhancements and the allegation of premeditation and
deliberation.
After announcing this ruling, the trial court proceeded to sentencing. The
court remarked that the People could request a date for a new trial on the
premeditation allegation and gang enhancements, and if a jury later found them to
be true petitioner could be resentenced. Petitioner‟s counsel agreed to this
proposal. The court then imposed a total imprisonment of 25 years.
Several months later, petitioner filed a demurrer, along with a motion to
dismiss, and entered pleas of former judgment and once in jeopardy (§ 1016,
subds. 4, 5) with respect to the premeditation and gang allegations. Reasoning that
these sentencing factors were elements of greater offenses under Apprendi, as
construed by this court in People v. Seel (2004) 34 Cal.4th 535 (Seel), petitioner
argued the court lacked the power to grant a section 1181 motion as to an element
alone and could not limit retrial to an element of an offense. Petitioner argued
that, to grant relief under section 1181, the trial court either had to “reduce the
verdict to a lesser included offense or order a new trial of the principal offense.”
In addition, based on the court‟s comments at the section 1181 hearing that “no”
evidence supported the allegations, petitioner asserted that the court found the
3
evidence legally insufficient to support the jury‟s verdicts, such that double
jeopardy barred retrial. (See Burks v. United States (1978) 437 U.S. 1.) The trial
court rejected these arguments. Retrial of the sentencing allegations was stayed,
however, when petitioner sought a writ of mandate.
In the Court of Appeal, petitioner renewed his arguments that double
jeopardy barred further trial on the penalty allegations and that Apprendi, supra,
530 U.S. 466, precluded trial of the allegations alone because they constituted
discrete elements of greater offenses. The Court of Appeal determined the
granting of a new trial could not be construed as an implied acquittal of the
sentencing allegations but agreed that Apprendi rendered the allegations the
equivalent of elements of greater offenses. It remained skeptical whether a
defendant who creates the need for a second trial by bringing a motion seeking
precisely this relief can then claim double jeopardy. The court observed, “Retrial
of a greater offense after a defendant has successfully brought a statutory new trial
motion is not the type of governmental oppression or prosecutorial overreaching
targeted by the double jeopardy clause.” The court ultimately did not resolve the
federal double jeopardy question because it concluded retrial of the allegations
was barred by section 1023 and our holding in People v. Fields (1996) 13 Cal.4th
289 (Fields). Based on its view that sentencing allegations are elements of an
offense under Apprendi, it concluded that retrial of the allegations alone would be
no different from having piecemeal jury trials of discrete elements of an offense, a
prospect at odds with the Sixth Amendment‟s jury trial guarantee.
The Court of Appeal directed the trial court to dismiss the premeditation
and gang enhancement allegations. We granted review to decide whether double
jeopardy principles permit retrial of a penalty allegation after the jury‟s verdict is
found “contrary to . . . evidence” under section 1181(6).
4
DISCUSSION
I.
Order Granting New Trial Is Not Equivalent to an Acquittal
In the trial court, a defendant may attack the evidence against him in two
ways. A motion under section 1118.1 seeks a judgment of acquittal for
insufficient evidence. It may be made at the close of the prosecution‟s case or at
the close of the defense evidence, before the case is presented to a jury.
(§ 1118.1.) A motion under section 1181(6) seeks a new trial because the verdict
is “contrary to law or evidence.” The court performs significantly different tasks
under these two provisions.
In ruling on an 1118.1 motion for judgment of acquittal, the court evaluates
the evidence in the light most favorable to the prosecution. If there is any
substantial evidence, including all inferences reasonably drawn from the evidence,
to support the elements of the offense, the court must deny the motion. (People v.
Mendoza (2000) 24 Cal.4th 130, 175; see also People v. Harris (2008) 43 Cal.4th
1269, 1286.) In considering this legal question, “a court does not „ “ask itself
whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.” [Citation.] Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.‟ [Citation.]” (People v. Lagunas (1994) 8 Cal.4th 1030, 1038,
fn. 6 (Lagunas).) This test is the same as that used by appellate courts in deciding
whether evidence is legally sufficient to sustain a verdict. (Ibid.; see also People
v. Harris, at p. 1286.) The grant of a judgment of acquittal under section 1118.1
bars “any other prosecution for the same offense.” (§ 1118.2.) Because the
prosecution had a full opportunity to prove the facts necessary for a conviction but
failed to do so, double jeopardy bars a second bite at the apple. (Hudson v.
5
Louisiana (1981) 450 U.S. 40, 43-44; Burks v. United States, supra, 437 U.S. at
pp. 16-18.)3
A grant under section 1181(6) is different. The court extends no
evidentiary deference in ruling on an 1181(6) motion for new trial. Instead, it
independently examines all the evidence to determine whether it is sufficient to
prove each required element beyond a reasonable doubt to the judge, who sits, in
effect, as a “13th juror.” (Lagunas, supra, 8 Cal.4th at p. 1038 & fn. 6; see also
People v. Davis (1995) 10 Cal.4th 463, 523-524; People v. Serrato (1973) 9
Cal.3d 753, 761 (Serrato), overruled on another ground in People v. Fosselman
(1983) 33 Cal.3d 572, 583, fn. 1.) If the court is not convinced that the charges
have been proven beyond a reasonable doubt, it may rule that the jury‟s verdict is
“contrary to the . . . evidence.” (§ 1181(6); see People v. Veitch (1982) 128
Cal.App.3d 460, 467-468.) In doing so, the judge acts as a 13th juror who is a
“holdout” for acquittal. Thus, the grant of a section 1181(6) motion is the
equivalent of a mistrial caused by a hung jury. (Veitch v. Superior Court (1979)
89 Cal.App.3d 722, 727.) We have repeatedly held that an order granting a new
trial under section 1181(6) is not an acquittal and does not bar retrial on double
jeopardy grounds. (Lagunas, supra, 8 Cal.4th at pp. 1038-1039; Serrato, supra, 9
Cal.3d at p. 761.)
Significantly, a court has no authority to grant an acquittal in connection
with an 1181 motion. (Serrato, supra, 9 Cal.3d at p. 762.) “[A] trial court
considering a section 1181 motion to modify a verdict on the ground that it is
contrary to the evidence is limited to the three options specified in the statute:
(1) It can set aside the verdict of conviction and grant the defendant a new trial;
(2) it can deny the motion and enter judgment on the verdict reached by the jury;
or (3) it can modify the verdict either to a lesser degree of the crime reflected in

3
Petitioner did bring a motion for acquittal before his case was submitted to
the jury. The motion was denied.
6


the jury verdict or to a lesser included offense of that crime as specified by
[section 1181(6)].” (Lagunas, supra, 8 Cal.4th at p. 1039, italics omitted.)
Whereas a jury must acquit if it finds the evidence insufficient, a trial court ruling
on an 1181 motion may only grant the defendant a new trial if it is not convinced
of guilt beyond a reasonable doubt. (Serrato, at p. 762.) This rule permits trial
court oversight of the verdict but ensures that the People, like the defendant, have
the charges resolved by a jury.
The trial court here chose the first of the Lagunas options and set the
allegations for a new trial. However, this ruling cannot be construed as an express
or implied acquittal triggering constitutional double jeopardy protections.
(Lagunas, supra, 8 Cal.4th at p. 1038 & fn. 6; Serrato, supra, 9 Cal.3d at p. 761.)
II.
Double Jeopardy Does Not Bar Retrial Under Section 1181
The next question is whether these relatively straightforward principles
have been altered by the United States Supreme Court‟s holding in Apprendi,
supra, 530 U.S. 466, at least as they apply to sentencing allegations. In Apprendi,
the high court rejected any distinction between “elements” and “sentencing
factors” for purposes of determining a criminal defendant‟s rights under the Sixth
Amendment. (Apprendi, at p. 494.) Except for facts relating to a prior conviction,
the court held, “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Id. at p. 490, italics added.) In explaining this holding, the
court reasoned that “when the term „sentence enhancement‟ is used to describe an
increase beyond the maximum authorized statutory sentence, it is the functional
equivalent of an element of a greater offense than the one covered by the jury‟s
guilty verdict.” (Id. at p. 494, fn. 19, italics added; see also People v.
Sengpadychith (2001) 26 Cal.4th 316, 326 (Sengpadychith).) But, as discussed in
greater detail below, the application of Apprendi in these circumstances means
only that a defendant is entitled to a jury determination of facts that would support
an increased sentence.
7

The sentencing allegations in this case come within Apprendi‟s holding
because, if found true, they will increase the penalty for petitioner‟s attempted
murder offenses beyond the statutory maximum. The crime of attempted murder
carries a determinate sentence of five, seven, or nine years. (§§ 187, 664,
subd. (a).) However, if the jury finds the attempted murder was willful, deliberate,
and premeditated, the defendant must be sentenced to life imprisonment with the
possibility of parole. (Ibid.; see Seel, supra, 34 Cal.4th at pp. 540-541.) This
substantial increase in potential penalty brings a section 664, subdivision (a)
premeditation allegation under the Apprendi rule. (Seel, at p. 548; see also
Sengpadychith, supra, 26 Cal.4th at p. 327.)
Whether the gang enhancements would increase the penalty for attempted
murder in this case is more difficult to discern. In general, a true finding on the
allegation that a defendant has attempted murder for the benefit of a criminal street
gang will increase the defendant‟s sentence by an additional five years in the case
of a serious felony (§ 186.22, subd. (b)(1)(B)), or 10 years when attached to a
violent felony (id., subd. (b)(1)(C)). However, if the defendant is already subject
to a life sentence because of a conviction for attempted murder with deliberation
and premeditation, section 186.22 does not increase the punishment beyond this
indeterminate life term. Instead, it sets a minimum term of 15 years before the
defendant may be considered for parole. (Id., subd. (b)(5); see Sengpadychith,
supra, 26 Cal.4th at p. 327.) Under these circumstances, a section 186.22 gang
enhancement does not increase the defendant‟s sentence, and thus it is not subject
to Apprendi. (Sengpadychith, at p. 327.) Because a new jury has not yet decided
the issue of premeditation in this case, there is still a potential for the gang
enhancements to increase petitioner‟s total sentence. For purposes of the issues
presented here, we assume this potential brings the enhancements within the scope
of Apprendi‟s directive that they be treated, for certain purposes, as the “functional
equivalent of an element of a greater offense.” (Apprendi, supra, 530 U.S. at
p. 494, fn. 19.)
8

The Court of Appeal applied Apprendi‟s “functional equivalen[ce]”
language to conclude that a penalty provision or sentence enhancement cannot be
separated from the underlying offense and must be considered, for all purposes, as
an element of a greater offense. This misinterpretation led the court to confront a
double jeopardy problem under section 1023 and our holding in Fields, supra, 13
Cal.4th 289.4
Section 1023 states: “When the defendant is convicted or acquitted or has
been once placed in jeopardy upon an accusatory pleading, the conviction,
acquittal, or jeopardy is a bar to another prosecution for the offense charged in
such accusatory pleading, or for an attempt to commit the same, or for an offense
necessarily included therein, of which he might have been convicted under that
accusatory pleading.” In Fields, we held that section 1023 prohibits the retrial of a
greater offense after a defendant‟s conviction of a lesser included offense even
when there has been no express or implied acquittal of the greater offense.
(Fields, supra, 13 Cal.4th at p. 307.) As discussed at greater length in Anderson,
supra, __ Cal.4th __ [pp. 21-23], our decision in Fields was grounded on the
“acquittal first” rule, which requires that a jury be instructed it must acquit the
defendant of a greater offense before it returns a verdict on any lesser included
offense. (Fields, at p. 309; see People v. Kurtzman (1988) 46 Cal.3d 322, 329-
330.) We reasoned that a jury‟s verdict on a lesser included offense alone is
“mistaken in law,” and section 1023 requires that the consequences of this mistake
must be borne by the People, not the defendant. (Fields, at pp. 310-311.)

4
Petitioner apparently did not raise a federal double jeopardy claim. If he
had, it would have been foreclosed by Supreme Court authority. In Tibbs v.
Florida
(1982) 457 U.S. 31, the high court held federal double jeopardy principles
do not bar retrial after a reversal on the ground that the verdict is against the
weight of the evidence. “When the State has secured one conviction based on
legally sufficient evidence, it has everything to lose and little to gain by retrial.
Thus, the type of „second chance‟ that the State receives when a court rests
reversal on evidentiary weight does not involve the overreaching prohibited by the
Double Jeopardy Clause.” (Id. at p. 43, fn. 19.)
9


Accordingly, a conviction of the lesser offense alone will bar the People from
retrying the greater offense notwithstanding the jury‟s deadlock on that charge.
(Id. at p. 311.)
However, our holding in Fields is limited to greater and lesser included
offenses and does not apply to sentencing enhancements or penalty allegations,
which the jury does not address until after it has reached a verdict on the
underlying offense. As we noted in Anderson, this court has never held that a
jury‟s conviction of an offense alone, without an accompanying acquittal on
alleged penalty factors, is a mistaken or illegal verdict. Petitioner‟s attempt to
extend Fields to the circumstances here is even more problematic. Petitioner‟s
jury did not return an irregular or mistaken verdict. It found petitioner guilty of
every offense and allegation set before it. The only conflicting findings in this
case occurred when the trial judge granted petitioner‟s new trial motion.
Petitioner does not cite, nor have we found, any case applying section 1023
or our holding in Fields, supra, 13 Cal.4th 289, to the situation that arises when a
court grants a defendant‟s motion for new trial because it disagrees with the jury‟s
evaluation of the evidence. A fundamental problem with petitioner‟s position is
that he sought a new trial by bringing a section 1181 motion. Section 1180
expressly provides that “[t]he granting of a new trial places the parties in the same
position as if no trial had been had. All the testimony must be produced anew
. . . .” (Italics added.) In filing a motion for new trial, petitioner impliedly waived
any double jeopardy protections he might have had under state law, just as if he
had consented to a mistrial. (See, e.g., Serrato, supra, 9 Cal.3d at p. 759 [“It is a
familiar principle that a defendant who has succeeded in having his conviction set
aside impliedly waives any objection to being retried on the charge of which he
was convicted”]; see also 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000)
Criminal Judgment, § 90, p. 121 [“A new trial can only be granted on the
defendant’s motion”].) A contrary result would mean that any time a trial court
enters judgment on a jury‟s conviction of a substantive offense but grants an 1181
10
new trial motion on a sentencing allegation, retrial of the allegation would be
barred. In such cases, an 1181 ruling would have the same effect as an acquittal.
Yet the law is well settled that a court reviewing the jury‟s verdict under
section 1181 lacks the power to acquit the defendant based on the court‟s view of
the evidence. (Serrato, at p. 762.) The Court of Appeal‟s extension of Fields to
cover rulings on new trial motions thus undermines the limits on trial court
authority the Legislature established in section 1181 and runs counter to the
provisions of section 1180.
Another problem with applying Fields to petitioner‟s case is the lack of
authority for extending this statutory double jeopardy protection to sentencing
allegations. We rejected the application of section 1023 to penalty allegations in
People v. Bright (1996) 12 Cal.4th 652 (Bright), a case the Court of Appeal‟s
opinion does not mention. We explicitly held in Bright that “a defendant‟s
conviction of the underlying substantive offense does not (on double jeopardy
grounds) bar further proceedings, such as retrial, on a penalty allegation.
[Citation.] Thus, the circumstance that the jury has returned a verdict on the
underlying offense, but is unable to make a finding on the penalty allegation, does
not constitute an „acquittal‟ of (or otherwise bar retrial of) the penalty allegation
on the ground of double jeopardy. [Citations.]” (Id. at pp. 661-662.)
For reasons explained more fully in Anderson, our double jeopardy holding
in Bright remains good law despite intervening pronouncements of the United
States Supreme Court. Apprendi required us to reconsider the constitutional
double jeopardy consequences of an acquittal on a penalty allegation (see Seel,
supra, 34 Cal.4th at pp. 547-550), but Apprendi does not control the statutory
double jeopardy protection California provides in section 1023 when there has
been no express or implied acquittal.
In the context of a Sixth Amendment analysis, the Supreme Court in
Apprendi described sentence enhancements as the “functional equivalent” of
elements of greater offenses. (Apprendi, supra, 530 U.S. at p. 494, fn. 19.) This
11
characterization means only that a defendant is entitled to have a jury determine
whether those facts supporting an increased sentence have been proven beyond a
reasonable doubt. The high court chose its language carefully and has expressed
no intention to alter state law procedures that have no bearing on the jury trial
right. Indeed, when the court recently held that Apprendi does not govern the
decision whether to impose concurrent or consecutive sentences, it explicitly
recognized states‟ sovereign interest in administering their own criminal justice
systems. (Oregon v. Ice (2009) 555 U.S. __ [129 S.Ct. 711, 718-719].)
We recently rejected the notion that the high court‟s “functional equivalent”
statement requires us to treat penalty allegations as if they were actual elements of
offenses for all purposes under state law. (People v. Izaguirre (2007) 42 Cal.4th
126, 133-134 (Izaguirre).) Specifically, we held that Apprendi did not convert
conduct enhancements into offenses for purposes of our rule that multiple
convictions may not be imposed for necessarily included offenses. (Izaguirre, at
p. 134.) Because “enhancements are not legal elements of the offenses to which
they attach” under California law, and because Apprendi did not change this
aspect of our state law, we concluded enhancements should not be considered in
defining necessarily included offenses under the multiple conviction rule.
(Izaguirre, at p. 128.)
The same analysis applies to petitioner‟s claims. Apprendi did not convert
the penalty allegations here into actual elements of greater offenses for purposes of
the statutory double jeopardy protection of section 1023. Thus, petitioner‟s
conviction of the underlying attempted murder offenses did not bar retrial of the
allegations. (Bright, supra, 12 Cal.4th at p. 661.)5
Finally, in his briefing to this court, petitioner argues for the first time that
retrial of the allegations is impermissible under section 654, which prohibits

5
Having reached this conclusion, we decline the invitation of amicus curiae
California District Attorneys Association to abandon Fields, supra, 13 Cal.4th
289, and adopt a more expansive construction of the “acquittal first” doctrine.
12


punishment under different code provisions for a single “act or omission.” This
claim was not raised in the trial court or the Court of Appeal. At this late stage of
the proceedings, we consider it waived. Moreover, it has long been settled that
section 654 addresses punishment alone. It does not bar multiple convictions for
different crimes based on the same act. (See § 954; People v. Reed (2006) 38
Cal.4th 1224, 1226-1227.)
III.
Scope of Retrial
Although the Court of Appeal believed retrial of the sentencing allegations
was barred by section 1023 and Fields, it nevertheless opined that such allegations
may never be tried in isolation because a defendant‟s right to a jury trial requires
that a single jury decide all elements of an offense. For the reasons just discussed,
the premise of this assertion fails. Penalty allegations are not elements of an
offense under California law. (People v. Wims (1995) 10 Cal.4th 293, 307,
overruled on another ground in Sengpadychith, supra, 26 Cal.4th at p. 326.)
Moreover, requiring an expanded scope of retrial after the granting of a new
trial motion would pose serious practical difficulties, as petitioner‟s case
illustrates. He sought a new trial, urging the court to disagree with the jury‟s
conviction on the attempted murders and true findings on the attached
premeditation and gang allegations. The trial court upheld the verdicts of
attempted murder, concluding the evidence was “certainly sufficient” to support
them. Nevertheless, under the Court of Appeal‟s view, every element of these
attempted murder offenses would have to be retried because the trial court
disagreed with the jury‟s findings on some of the penalty allegations attached to
them. In issuing its dictum, the Court of Appeal chose not to address what, if
anything, the second jury would be told of petitioner‟s prior conviction on the
attempted murder charges. Nor did it explain what would become of that
conviction, or of the first jury‟s true finding on an attached firearm enhancement
13
(§ 12022.53, subd. (c)),6 if the second jury reached a different conclusion. As a
practical matter, there can be little doubt that a rule requiring retrial of the
underlying offense along with a challenged sentencing allegation could result in
some, if not all, of the first jury‟s verdict being ignored or superseded even though
much of this verdict has not been challenged or has been determined to be sound.
Such disregard for valid jury findings cannot be what the Supreme Court intended
when it clarified the scope of the Sixth Amendment jury trial right in Apprendi.
Finally, petitioner makes a statutory argument for an expanded scope of
retrial. Quoting the portion of section 1180 that states the “granting of a new trial
places the parties in the same position as if no trial had been had,” petitioner
argues he was entitled to “a whole new trial . . . at which no reference could be
made to former verdicts or findings.” Petitioner cites no authority for this
conclusion, and we will not adopt such an all-or-nothing interpretation of the relief
available on a new trial motion. Section 1181(6) permits the trial court to grant a
“new trial” when “the verdict or finding is contrary to law or evidence,” and
section 1179 defines “new trial” as “a reexamination of the issue.” (Italics added.)
Read together, these provisions allow the court to grant a new trial on an “issue,”
i.e., on an offense or a sentencing allegation, if the court concludes the jury‟s
finding on that issue is contrary to the evidence. Under petitioner‟s view, if a trial
court wished to order a new trial because it independently found the evidence
insufficient to support a single jury finding in a case involving multiple charges
and allegations, that retrial would have to encompass all charges and allegations,
even the ones for which the jury‟s verdict was unobjectionable.7 We have never

6
Petitioner did not challenge these findings in his new trial motion, and a
sentence for the enhancement was imposed.
7
It is no answer to say that the court could avoid this problem by modifying
the verdict to a lesser degree of the offense or to a lesser included offense. (See
§ 1181(6) [permitting such modification].) The statute gives the trial court the
choice between granting a new trial and modifying the verdict in this manner.
Petitioner‟s interpretation could render this choice all but illusory in multiple-
14


interpreted the new trial statutes in this manner, and there is no indication the
Legislature intended to foreclose trial courts‟ ability to grant new trials on a
limited issue under section 1181(6).
DISPOSITION
The judgment of the Court of Appeal is reversed. The matter is remanded
to the Court of Appeal for entry of an order lifting the stay of proceedings and
denying the petition for writ of mandate.
CORRIGAN, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

count cases, in which the new trial option would be excessively burdensome for
the court and unfair to the People.
15





CONCURRING OPINION BY KENNARD, J.

In this case, the court rejects a claim that retrial of an allegation that
defendant‟s commission of an attempted murder was “willful, deliberate, and
premeditated” would violate the constitutional prohibition against trying a
criminal defendant twice for the same offense. (U.S. Const., 5th Amend.; see also
Cal. Const., art. I, § 15.) This decision mirrors the holding of the majority in
People v. Bright (1996) 12 Cal.4th 652 (Bright). I thought this court was wrong in
Bright, and I said so in a dissenting opinion. (Id. at pp. 683-693 (dis. opn. of
Kennard, J.).) I still hold that view. I write separately to explain why I
nonetheless join today‟s decision.
I
Because this court‟s decision in Bright, supra, 12 Cal.4th 652, plays a
significant role in this case, I discuss it in considerable detail. The defendant there
was charged with attempted murder (Pen. Code, §§ 187, 664, subd. (a)),1 which
the prosecution alleged was “willful, deliberate, and premeditated” (§ 664, subd.
(a)). Such an allegation, if found to be true, would increase the sentence for
attempted murder from five, seven, or nine years to mandatory life imprisonment
with the possibility of parole. (Ibid.)

1
Further undesignated statutory references are to the Penal Code.
1



The jury in Bright convicted the defendant of attempted murder. But it was
unable to reach a verdict on whether commission of the crime was willful,
deliberate, and premeditated. When the trial court ordered a retrial on that issue,
the defendant argued that retrial would violate the constitutional principle
prohibiting double jeopardy. (See Ex parte Nielsen (1889) 131 U.S. 176, 188
[when a defendant “has been tried and convicted for a crime which has various
incidents included in it, he cannot be a second time tried for one of those incidents
without being twice put in jeopardy for the same offence.”].) The trial court
agreed with the defendant; it then imposed a sentence for attempted murder,
dismissing the “willful, deliberate, and premeditated” allegation. After the Court
of Appeal reversed the order of dismissal, this court granted the defendant‟s
petition for review. (Bright, supra, 12 Cal.4th at pp. 657-660.)
The majority in Bright affirmed the Court of Appeal, holding that the
constitutional prohibition against double jeopardy did not bar a retrial of the
allegation in question. (Bright, supra, 12 Cal.4th at pp. 660-671.) The defendant
had argued that attempted murder was divided into two degrees: attempted second
degree murder being a lesser degree included within attempted willful, deliberate,
and premeditated first degree murder. Therefore, according to the defendant,
retrial of the “willful, deliberate, and premeditated” allegation would be trying him
for a greater degree of the same offense. (Id. at p. 668.) The majority in Bright
rejected that contention. (Id. at pp. 668-669.) Instead, it construed section 664,
subdivision (a), which defines an attempt, as simply “prescribing an additional
penalty for attempted murder where the jury finds true as charged the aggravating
circumstance that the offense was willful, deliberate, and premeditated . . . .”
(Bright, supra, 12 Cal.4th at p. 668, italics added.) Under that construction, “a
defendant‟s conviction of the underlying substantive offense [would] not (on
double jeopardy grounds) bar further proceedings, such as retrial, on a penalty
2
allegation.” (Id. at p. 661, citing People v. Bryant (1992) 10 Cal.App.4th 1584,
1597-1598.)
I dissented in Bright, supra, 12 Cal.4th at pages 683-693 (dis. opn. of
Kennard, J.). So did Justice Stanley Mosk, in a separate opinion. (Id. at pp. 671-
683 (dis. opn. of Mosk, J.).) Each of us concluded that double jeopardy principles
barred retrial of the allegation that the attempted murder was willful, deliberate,
and premeditated.
Unlike the majority in Bright, I construed attempted murder and attempted
willful, deliberate, and premeditated murder to comprise two degrees of the same
crime. (Bright, supra, 12 Cal.4th at p. 687 (dis. opn. of Kennard, J.).) I stated:
“Simple attempted murder is, in essence, attempted second degree murder, that is,
attempted murder not falling in any of the categories . . . that elevate murder from
the second to the first degree.” (Ibid., italics omitted.) I reasoned that if the
defendant attempted “ „willful, deliberate, and premeditated murder,‟ ” that would
be attempted first degree murder, in which case the jury‟s conviction for “the
lesser included crime of attempted second degree murder” would preclude
convicting the defendant of a greater degree of the same crime. (Ibid., italics
omitted; see Ex parte Nielsen, supra, 131 U.S. at p. 188.) Dissenting separately,
Justice Mosk reached the same conclusion. (Bright, supra, at pp. 671-683 (dis.
opn. of Mosk, J.).)
My disagreement with the majority in Bright, supra, 12 Cal.4th 652, did not
center on any constitutional principle. Instead, it hinged solely on the different
views we took of the statutory definition of attempted murder. The Bright
majority‟s statutory construction is now, with a limited exception discussed below,
the settled law of this state. As I have noted in the past, “repetition of dissenting
views is rarely justified.” (People v. Stansbury (1993) 4 Cal.4th 1017, 1073 (conc.
3
opn. of Kennard, J.).) Thus, following the doctrine of stare decisis, I “ „yield to the
obligation . . . to live with the law as it has been stated.‟ ” (Ibid.)
I now address the case at hand.
II
Here, a jury convicted defendant of two counts of attempted murder
(§ 187), and it determined that in each instance defendant attempted to commit a
“willful, deliberate, and premeditated murder” (§664, subd. (a)). (As noted earlier,
such a finding increases the punishment for attempted murder from five, seven, or
nine years to a mandatory life term with the possibility of parole. (§ 664, subd.
(a).).) Ruling on defendant‟s motion for a new trial (§ 1181, subd. 6), the trial
court granted the motion only as to the allegations that the two attempted murders
were willful, deliberate, and premeditated.
This court has long held that the granting of a new trial under section 1181,
subdivision 6, “is „not an acquittal‟ ” and thus does not implicate the constitutional
prohibition against double jeopardy. (People v. Lagunas (1994) 8 Cal.4th 1030,
1038.) Is this rule affected by the United States Supreme Court‟s sentencing
decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), when, as in
this case, the granting of a new trial pertains to a sentencing allegation?
As relevant here, Apprendi held that “when the term „sentence
enhancement‟ is used to describe an increase beyond the maximum authorized
statutory sentence, it is the functional equivalent of an element of a greater
offense. . . .” (Apprendi, supra, 530 U.S. at p. 494, fn. 19, italics added.) In this
case, the Court of Appeal held that the sentencing allegation that an attempted
murder was willful, deliberate, and premeditated was, in the language of Apprendi,
the “functional equivalent of an element of a greater offense” of attempted willful,
deliberate, and premeditated murder. In effect, the Court of Appeal held that this
4
court‟s decision in Bright, supra, 12 Cal.4th 652, was no longer good law in light
of Apprendi.
The majority reverses the Court of Appeal. I agree. As the majority
explains (maj. opn., ante, pp. 11-13), the Apprendi language in question pertains to
the federal Constitution‟s Sixth Amendment right to jury trial, an issue not
implicated here. More specifically, as explained in the companion case of People
v. Anderson (July 23, 2009, S152695) ___Cal.4th ___,___ [pp. 11-12], Apprendi
holds that a sentencing allegation that increases the statutory maximum penalty is
the “functional equivalent” of an element of a greater crime, thus entitling the
defendant to a jury trial on each of that crime‟s elements. (Apprendi, supra, 530
U.S. at p. 490 [“Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Italics added.)].)
Thus, Apprendi requires that a jury decide whether an attempted murder was
willful, deliberate, and premeditated. But there is nothing in Apprendi that would
preclude the prosecution in this case from retrying defendant before a different
jury on the sentencing allegations in question. (As mentioned earlier, the trial
court sustained the jury‟s findings that defendant committed two counts of
attempted murder, but the court granted a new trial on the allegations that those
attempted murders were willful, deliberate, and premeditated.)
Nor does this case fall within the limited exception to the majority‟s holding
in Bright, supra, 12 Cal.4th 652. Under that exception, the double jeopardy
prohibition does apply to retrial of a sentencing allegation that an attempted murder
was willful, deliberate, and premeditated. That exception was carved out in People
v. Seel (2004) 34 Cal.4th 535 (Seel), which is discussed in the companion case of
People v. Anderson, supra, ___ Cal.4th at pp. ___-___ [pp. 12-14].
5

In Seel, this court followed the teachings of Apprendi, supra, 530 U.S. 466,
and concluded that the double jeopardy prohibition barred retrial of the “willful,
deliberate, and premeditated” allegation in an attempted murder case after the
Court of Appeal‟s determination that the evidence was insufficient with respect to
“premeditation and deliberation.” (Seel, supra, 34 Cal.4th at pp. 540, 550.) Seel
distinguished this court‟s earlier decision in Bright, supra, 12 Cal.4th 652, as
arising in a different procedural posture: In Seel, “the Court of Appeal reversed
the judgment based on its determination of evidentiary insufficiency,” whereas in
Bright “[n]either a court nor a jury made a determination that the prosecution
failed to prove its case.” (Seel, supra, at p. 550.) Seel expressly overruled Bright,
but only to the extent that Bright “conflict[ed] with intervening high court
decisions as discussed [in Seel],” mainly Apprendi, supra, 530 U.S. 466. (Seel,
supra, at p. 550, fn. 6.) As articulated in Seel, the “conflict” that Seel perceived
between the high court‟s decision in Apprendi and the majority opinion in Bright
is limited to cases involving evidentiary insufficiency.
The case at bench pertains to a trial court‟s grant of new trial (§ 1181, subd.
6) on a sentencing allegation, a ruling that does not implicate evidentiary
insufficiency (see People v. Lagunas, supra, 8 Cal.4th at p. 1038 [granting of new
trial “ „not an acquittal.‟ ”]). Thus, when, as here, evidentiary insufficiency is not
an issue, this court‟s decision in Bright, supra, 12 Cal.4th at page 669, remains
controlling law. This means that with respect to defendant‟s retrial in this case on
the “willful, deliberate, and premeditated” sentencing allegation, that allegation is
not an element of the offense of attempted murder, and retrial on that issue does
not violate double jeopardy principles.
6
For these reasons, I agree with the majority that the Court of Appeal erred
in holding that retrial of the allegations in question would violate the constitutional
principle of not putting a defendant twice in jeopardy for the same offense.
KENNARD, J.
7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Porter v. Superior Court
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 148 Cal.App.4th 889
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S152273
Date Filed: July 23, 2009
__________________________________________________________________________________

Court:

Superior
County: Monterey
Judge: Russell D. Scott

__________________________________________________________________________________

Attorneys for Appellant:

J. Courtney Shevelson, under appointment by the Supreme Court; Glenn A. Nolte, Acting Public Defender,
James S. Egar, Public Defender, and Romano Clark, Deputy Public Defender, for Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan,
Seth K. Schalit and William Kuimelis, Deputy Attorneys General, for Real Party in Interest.

Tony Rackauckas, District Attorney (Orange), Mitchell Keiter, Deputy District Attorney; and W. Scott
Thorpe for California District Attorneys Association as Amicus Curiae on behalf of Real Party in Interest.

Counsel who argued in Supreme Court (not intended for publication with opinion):

J. Courtney Shevelson
316 Mid Valley Center
Carmel, CA 93923-8516
(831) 625-6581

Seth K. Schalit
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1371


Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case presents the following issue: Do double jeopardy principles preclude retrial of the allegation that an attempted murder was willful, deliberate and premeditated (Pen. Code, section 664, subd. (a)) or retrial of an enhancement for allegedly committing the crime for the benefit of a criminal street gang (Pen. Code, section 186.22, subd. (b)) if the trial court granted a motion for a new trial on those allegations because the jury's verdicts were "contrary to . . . [the] evidence" within the meaning of Penal Code section 1181, subdivision 6? (See also People v. Anderson [S152695].)

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 07/23/200947 Cal. 4th 125, 211 P.3d 606, 97 Cal. Rptr. 3d 103S152273Review - Criminal Original (non-H.C.)closed; remittitur issued

PEOPLE v. PORTER (S149665)
PORTER (ANTHONY) ON H.C. (S149687)
PEOPLE v. ANDERSON (S152695)
SPILLMAN v. S.C. (PEOPLE) (S157215)


Parties
1Porter, Anthony (Petitioner)
North Kern State Prison
P. O. box 4999 (B-3 #252 lower)
Delano, CA 93216

Represented by J. Courtney Shevelson
Attorney at Law
316 Mid Valley Center, PMB 187
Carmel, CA

2Superior Court of Monterey County (Respondent)
240 Church Street, Suite 318
Salinas, CA 93901

3The People (Real Party in Interest)
Represented by William Michael Kuimelis
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

4The People (Real Party in Interest)
Represented by Seth K. Schalit
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

5California District Attorneys Association (Amicus curiae)
Represented by W. Scott Thorpe
California District Attorneys Association
731 "K" Street, 3rd Floor
Sacramento, CA


Disposition
Jul 23 2009Opinion: Reversed

Dockets
Apr 30 2007Petition for review filed
The People, Real Party in Interest William Kuimelis, Deputy Attorney General
May 1 2007Record requested
May 2 2007Received Court of Appeal record
file jacket/briefs
Jun 22 2007Time extended to grant or deny review
The time for granting or denying review in the above-entitled matter is hereby extended to and including July 27, 2007, or the date upon which review is either granted or denied.
Jul 11 2007Petition for review granted (criminal case)
Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jul 30 2007Request for extension of time filed
to and including August 31, 2007 to file real party's opening brief on the merits.
Aug 2 2007Extension of time granted
On application of real party in interest and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including August 31, 2007.
Aug 9 2007Counsel appointment order filed
Upon request of petitioner for appointment of counsel, J. Courtney Shevelson is hereby appointed to represent petitioner on the appeal now pending in this court. Petitioner's brief on the merits must be served and filed on or before thirty (30) days from the date the opening brief on the merits of real party ininterest is filed.
Aug 29 2007Opening brief on the merits filed
The People, real party in interest Seth K. Schalit, counsel
Aug 29 2007Filed letter from:
AG, dated 8/29/07: Supervising Dep. Atty Gen. Seth K. Schalit is now counsel for real party in interest.
Sep 25 2007Request for extension of time filed
to and including October 28, 2007, to file Petitioner's Answer Brief on the Merits.
Oct 5 2007Extension of time granted
On application of Petitioner and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including October 28, 2007.
Oct 23 2007Request for extension of time filed
to and including November 27, 2007, to file Petitioner's Answer Brief on the Merits
Oct 25 2007Extension of time granted
On application of petitioner and good cause appearing, it is ordered that the time to serve and file Petitioner Porter's Answer Brief on the Merits is extended to and including November 27, 2007. No further extensions of time are contemplated.
Nov 28 2007Answer brief on the merits filed
counsel for petnr. (Porter) (8.25(b))
Nov 28 2007Request for judicial notice filed (granted case)
counsel for petnr. (Porter)
Dec 18 2007Reply brief filed (case fully briefed)
The People, real party in interest by Seth K. Schalit, Supervising Deputy Attorney General
Jan 18 2008Received application to file Amicus Curiae Brief
California District Attorneys Association in support of real party in interest by W. Scott Thorpe, Chief Executive Officer, C.D.A.A., counsel
Jan 24 2008Permission to file amicus curiae brief granted
The application of California District Atorneys Association for permission to file an amicus curiae brief in support of real party in interest is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 24 2008Amicus curiae brief filed
California District Attorneys Association in support of real party in interest.
Feb 6 2008Request for extension of time filed
to and including March 14, 2008 to file Petitioner's Answer to the Amicus Curiae Brief of the California District Attorney Association by J. Courtney Shevelson, Supreme Court Appointed Counsel
Feb 11 2008Extension of time granted
On appplication of Petitioner Porter and good cause appearing, it is ordered that the time to serve and file Petitioner's Answer to the Amicus Curiae Brief of the California District Attorneys Association is extended to and including March 14, 2008.
Feb 14 2008Compensation awarded counsel
Atty Shevelson
Mar 11 2008Response to amicus curiae brief filed
Anthony Porter, Petitioner by J. Courtney Shevelson, Counsel
Apr 1 2009Case ordered on calendar
to be argued Wednesday, May 6, 2009, at 9:00 a.m., in San Francisco
May 6 2009Cause argued and submitted
Jul 22 2009Notice of forthcoming opinion posted
Jul 23 2009Opinion filed: Judgment reversed
The Judgment of the Court of Appeal is reversed. The matter is remanded to the Court of Appeal for entry of an order lifting the stay of proceedings and denying the petition for writ of mandate. Majority Opinion by Corrigan, J. ----- Joined by George, C.J., Baxter, Werdegar, Chin, Moreno. JJ. Concurring Opinion by Kennard, J.
Aug 31 2009Remittitur issued

Briefs
Aug 29 2007Opening brief on the merits filed
The People, real party in interest Seth K. Schalit, counsel
Nov 28 2007Answer brief on the merits filed
counsel for petnr. (Porter) (8.25(b))
Dec 18 2007Reply brief filed (case fully briefed)
The People, real party in interest
Jan 24 2008Amicus curiae brief filed
California District Attorneys Association in support of real party in interest.
Mar 11 2008Response to amicus curiae brief filed
Anthony Porter, Petitioner by J. Courtney Shevelson, Counsel
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 10, 2009
Annotated by Mikaela Weber

SUMMARY:
A jury convicted petitioner, Anthony Porter, of two counts of attempted murder, and found that the attempted murders were committed deliberately, with premeditation, and for the benefit of a criminal street gang. Petitioner requested a new trial under Penal Code section 1181(6), arguing that the penalty enhancements had not been proven beyond a reasonable doubt. After the trial court granted petitioner’s motion for a new trial, he then argued that a retrial would violate the principles of double jeopardy. This case addresses the following issue: Does double jeopardy prohibit retrial of sentencing enhancements if the jury approved them, but the trial court then ordered a new trial because it found that the jury’s verdicts were contrary to the evidence? The court concluded that a retrial of this case would not violate double jeopardy because retrial of the penalty allegations is not equivalent to an acquittal, and under California law penalty enhancements are not elements of their corresponding offenses.

FACTS AND PROCEDURE:
As a result of his participation in a drive-by shooting, petitioner was convicted of two counts of attempted murder. The jury also found that the attempted murders were committed deliberately, with premeditation, and for the benefit of a street gang. At petitioner’s request, the trial court granted a new trial on the penalty enhancements under Penal Code section 1181(6) because they had not been proven beyond a reasonable doubt. Petitioner was then sentenced to 25 years in prison.

Seven months later, petitioner filed a demurrer and a motion to dismiss under the principles of double jeopardy (§1016(4) and (5)). Petitioner argued that, under Penal Code section 1023, the court could not order a new trial on the penalty enhancements (that he acted with deliberation, premeditation, and for the benefit of a street gang) because they were elements of a greater offense. Also, petitioner alleged that the trial court found the evidence legally insufficient to support the jury’s verdicts, and thus could not order a retrial without violating double jeopardy.

Although the trial court disagreed with petitioner, the appellate court found that retrial of the penalty allegations was barred by Penal Code section 1023. The appellate court relied on both Apprendi and People v. Fields, 13 Cal.4th 289 (1996) to support its findings. The Supreme Court took the case to decide whether, after a jury’s verdict is found contrary to evidence, retrial of the penalty allegations violates the principles of double jeopardy.

HOLDING:
In its opinion, the Supreme Court addresses three primary issues: (1) Is an order granting a new trial equivalent to an acquittal? (2) Does double jeopardy bar retrial under Penal Code section 1181?, and (3) What is the scope of retrial?

In response to the first question, the court differentiates between a motion under Penal Code section 1118, which seeks judgment of acquittal for insufficient evidence, and a motion under Penal Code section 1181, which seeks a new trial because the verdict is contrary to law or evidence. A motion for judgment of acquittal bars retrial for the same offense(s) because the prosecution cannot be allowed a second opportunity to prove what it could not prove the first time. In contrast, a motion for retrial is the equivalent of a mistrial caused by a hung jury. In this case, the trial court’s grant of petitioner’s motion for retrial was not an acquittal and does not conflict with the principles of double jeopardy.

Second, the court addresses petitioner’s argument that Apprendi bars retrial under Penal Code section 1181 because the penalty enhancements are “functional equivalent[s]” of elements of a greater offense than the one covered by the jury’s verdict. Apprendi at 494. Under California law, however, penalty enhancements are not elements of their corresponding offenses. Apprendi did not change this state law, and only requires that penalty allegations must be determined by a jury. Since retrial of petitioner’s penalty enhancements would require a jury determination of guilt, Apprendi presents no obstacle to a new trial in this case.

The appellate court also misinterpreted Penal Code section 1023 and the court’s decision in Fields, which holds that retrial of a greater offense after a defendant’s conviction of a lesser included offense violates the principles of double jeopardy. Fields can be distinguished here because its holding was limited to greater and lesser included offenses, and does not apply to sentencing or penalty enhancements.

Finally, the Court of Appeal’s ruling would unnecessarily expand the scope of retrial after a motion for a new trial. Under the Court of Appeal’s ruling, the trial court would have to either dismiss the case entirely or order a completely new trial of the underlying offenses along with the challenged sentencing enhancements. This would, in essence, nullify part of the original jury’s verdict even though it was valid. The Supreme Court could not have intended to disregard jury findings through its ruling in Apprendi.

The judgment of the Court of Appeal is reversed.

CONCURRING OPINION BY KENNARD, J.

The language in Apprendi applies to the Constitutional Sixth Amendment right to a jury trial, a right which is not violated in this case since the jury approved of all the penalty enhancements.

Also, because this case involved a verdict contrary to the evidence, and not evidentiary insufficiency, People v. Bright, 12 Cal.4th 652 (1996) remains controlling law. The court in Bright held that Penal Code section 1023 does not bar retrial on the penalty allegations when a defendant has already been convicted of the underlying offense. Thus, retrial of petitioner’s penalty allegations does not violate the double jeopardy rule.