Estate of Anna Edwards v. Agnew

Pursuant to Penal Code section 1238, subdivision (a)(8), the People appeal from the trial courts dismissal of a murder charge against defendant James Anthony Pettaway. We will reverse the judgment. In doing so we will disagree with People v. White (1986) 185 Cal. App. 3d 822 [231 Cal. Rptr. 569], an opinion rendered by our colleagues in Division Five of this District. We hold that where a defendant has been convicted of first degree murder at his first trial and that conviction is reversed on appeal because of instructional error, the defendant may be retried as the murder perpetrator despite negative jury findings, at the first trial, on the personal use of a handgun and personal infliction of great bodily injury enhancement allegations.