P. v. Canada
Appellant Ronald Lee Canada challenges his conviction for assault with a firearm following two trials on multiple counts. Under the longstanding rule of Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 (Kellett) and the plain language of Penal Code[1]section 654, ordinarily an acquittal bars a prosecutor from pursuing new charges in successive prosecutions based on the same acts and course of conduct. The questions framed by this appeal are whether a door for an amended information with new charges otherwise banned under Kellett and section 654 is nevertheless opened because (1) there was a mistrial on another count in the first trial and that count was properly subject to a second prosecution; and (2) the newly charged offense was submitted to the jury in the first trial under erroneous instructions that it was a lesser included offense of the acquitted crime (attempted murder), and the jury likewise failed to reach a verdict on that charge. We conclude that Kellett and section 654 precluded the subsequent prosecution for assault with a firearm and accordingly reverse the judgment as to that conviction only. The conviction for assault with a firearm is reversed. In other respects, the judgment is affirmed.
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