Can a defendant be retried for conspiracy to commit second-degree murder without violating double jeopardy?

2. Two justices did decide to reach the double jeopardy question in concurring opinions, each suggesting different results. (Compare concurrence of Justice Mosk in People v. Swain, supra, 12 Cal.4th at pp. 611, 619-620 [retrial may be had without violating double jeopardy where due to general verdict, defendant was never expressly acquitted nor expressly convicted of crime of conspiracy to commit first degree murder] with concurrence of Justice Kennard, 12 Cal.4th at pp. 629-630 [protection against double jeopardy precludes retrying defendants for conspiracy to commit first degree murder, a crime for which they were impliedly acquitted when the jury found them guilty of conspiracy to commit second degree murder].)

2. Two justices did decide to reach the double jeopardy question in concurring opinions, each suggesting different results. (Compare concurrence of Justice Mosk in People v. Swain, supra, 12 Cal.4th at pp. 611, 619-620 [retrial may be had without violating double jeopardy where due to general verdict, defendant was never expressly acquitted nor expressly convicted of crime of conspiracy to commit first degree murder] with concurrence of Justice Kennard, 12 Cal.4th at pp. 629-630 [protection against double jeopardy precludes retrying defendants for conspiracy to commit first degree murder, a crime for which they were impliedly acquitted when the jury found them guilty of conspiracy to commit second degree murder].)

3. Nothing in our opinion precludes retrying defendant for the crime of second degree murder.

3. Nothing in our opinion precludes retrying defendant for the crime of second degree murder.