PEOPLE v. ANDERSON (BARRY),S152695

 This case concerns two questions we did not resolve in People v. Seel (2006) 34 Cal.4th 535 (Seel). (1) Do double jeopardy principles prohibit retrial when a jury has convicted the defendant of an offense but deadlocked on an attached penalty allegation? (2) If retrial is permissible, must it encompass the underlying offense, or may the penalty allegation be retried in isolation? We conclude that, in such circumstances, mistried penalty allegations may be retried, and the retrial need only encompass the mistried enhancements.

PORTER v. SUPERIOR COURT, S152273

           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 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.