Can a defendant be immunized from retrial of a lesser included offense if a separate verdict has been taken on one of the included offenses but the jury disagreed on the other?

The statute plainly says an acquittal of an offense is also a bar to retrial of any lesser included offense. Therefore it has been assumed if a separate verdict were taken on a greater offense, then retrial would be prevented on included offenses. In fact, such a result occurred in at least one case, where after a separate verdict was permitted, a new trial on included offenses was declared impermissible. (Menjou v. Superior Court, 128 Cal.App. 117, 16 P.2d 1007.)

Trial courts have found unreasonable a result which acquits of the greater but prevents retrial of included offenses on which the jury has disagreed. For one thing, double jeopardy protection extends to retrials after evidentiary acquittals, not to jury disagreement. For example, if separate but not included offenses are tried together, and the jury agrees on some and disagrees on others, there may be retrial of all undecided counts. (Pen.Code, 1160; see e. g., People v. Ham, 7 Cal.App.3d 768, 86 Cal.Rptr. 906.) Further, if there is total disagreement, then again there may be retrial. (Pen.Code, 1140, 1141.) Why then should a defendant be immunized from retrial of undecided lesser offense charges just because there is agreement on the greater offense? Perceiving that result to

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