Conviction for kidnapping is affirmed where: 1) constitutional double jeopardy principles did not bar retrial of the factual sentencing allegation of kidnapping on which defendant's first jury deadlocked as the mistrial due to jury deadlock was not an event that terminated jeopardy on the allegation; 2) defendant's retrial of the factual sentencing allegation of kidnapping did not violate California's statutory provision against double jeopardy as the allegation on which defendant's first jury deadlocked was not a greater offense that incorporated the underlying lewd act crime as a lesser included offense under California law; and 3) retrial of a penalty allegation may be limited to the deadlocked allegation alone.
Appeal from the Sacramento County Super. Ct. No. 03F00398.
Filed July 23, 2009
Before BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by CORRIGAN, J.
Concurring Opinion by MORENO, J.
For Plaintiff: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Janet E. Neeley, Charles A. French and Brook A. Bennigson, Deputy Attorneys General.
For Defendant: Kat Kozik, under appointment by the Supreme Court.