Porter v. Superior Court of Monterey County, No. S152273

Court of Appeals' issuance of a peremptory writ of mandate directing the trial court to dismiss premeditation and gang enhancement allegations is reversed where: 1) trial court order setting aside the allegations for a new trial cannot be construed as an express or implied acquittal triggering constitutional double jeopardy protections; 2) plaintiff's conviction of the underlying attempted murder offenses did not bar retrial of the allegations under Penal Code sec. 1181; and 3) the scope of the retrial may be limited to penalty allegations as penalty allegations are not elements of an offense under California law.    

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Appellate Information
Appeal from Monterey County Super. Ct. No. SS042332A.
Filed July 23, 2009

Judges
Before BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by CORRIGAN, J.
Concurring Opinion by KENNARD, J.

Counsel
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 Real Party in Interest: 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.