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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph D. SLAPPY, Defendant and Appellant.

No. AO30216.

Decided: January 29, 1986

John K. Van De Kamp, Atty. Gen., Robert R. Granucci Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Ross Thomas, San Francisco, for defendant and appellant.

 Prior to an earlier appeal in this case a jury had found defendant Slappy guilty of (1) assault with intent to commit rape, (2) assault with a deadly weapon by means of force likely to produce great bodily injury, and (3) false imprisonment by violence, menace, fraud, or deceit.   And it appears that he had admitted suffering a prior conviction as proscribed by Penal Code section 667.   On that appeal we affirmed the judgment of conviction.   But we reversed as to the enhancement of Slappy's sentence according to Penal Code section 667, finding error as a matter of law under In re Yurko, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561.   And we remanded the cause for a new trial on the issue of his prior conviction.   Following our remand, a jury found that Slappy had suffered the prior Penal Code section 667 conviction, and he was sentenced accordingly.   He has again appealed, this time from the sentence.

We note initially that our decision on the earlier appeal is now, and has been, since the filing of our remittitur therein the final binding judgment of this court.

The appellate contentions follow:  “I. The trial court was without jurisdiction to try appellant on the alleged prior conviction before a second jury;  II. Assuming arguendo the trial court did have jurisdiction over the cause, trial of the alleged prior conviction by a second jury violated the prohibition against double jeopardy;  III. The law of the case doctrine does not preclude consideration of Argument II.”

Defendant Slappy here argues:  “In Slappy I, appellant argued that retrial on the alleged prior conviction violated the prohibition against double jeopardy.   This Court disagreed.   Relying on People v. Hickey (1980) 109 Cal.App.3d 426, 167 Cal.Rptr. 256, the Court remanded the cause.   Clearly, under these facts the issue of double jeopardy was actually presented and determined by the Court and necessary to its decision.   But in light of the reasoning of the subsequently decided People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, application of the ‘law of the case’ doctrine would result in an unjust decision.”

 It is a long “settled rule that the double jeopardy clause does not prohibit retrial after a reversal premised on error of law.”  (People v. Garcia (1984) 36 Cal.3d 539, 558, fn. 13, 205 Cal.Rptr. 265, 684 P.2d 826.)   Moreover, the double jeopardy rule does not attach where the jury were discharged “upon some legal necessity ” resulting from causes beyond the control of the court.  (Hutson v. Superior Court (1962) 203 Cal.App.2d 687, 691, 21 Cal.Rptr. 753.)   Here, Slappy's initial admission of the prior conviction and our earlier remand for a retrial on that issue will reasonably be deemed a “legal necessity” for a retrial.

 And we observe that our remand for retrial and determination on the issue of Slappy's prior conviction constituted the law of the case.  “ ‘[W]here upon an appeal, the supreme court [or Court of Appeal], in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.’ ”  (People v. Shuey (1975) 13 Cal.3d 835, 841, 120 Cal.Rptr. 83, 533 P.2d 211;  Tally v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 945.)

We find nothing at odds with our foregoing conclusions in People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, where, in a different factual context the court found double jeopardy.   But such inconsistency, if any, as there might be is transcended by the higher authority we have pointed out.

For the foregoing reasons no merit is seen in the appeal.

The judgment is affirmed.

ELKINGTON, Acting Presiding Justice.

NEWSOM and HOLMDAHL, JJ., concur.

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