Can the attempted murder charge (count 1) be retried?

Our prior opinion neither analyzed nor addressed whether the attempted murder charge (count 1) could be retried. To the contrary, we remanded this matter for resentencing. Although we gave the prosecution the option to reinstate the charges in count 1, we did not declare that the prosecution could, as a matter of law, retry the matter. Instead, we directed the trial court to "conduct further proceedings as may be appropriate." (People v. Fierro, supra, F068387.)

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Our prior opinion did not state a principle or rule of law regarding whether the attempted murder charge (count 1) could be retried. As such, the "law of the case" doctrine does not apply. (See People v. Alexander, supra, 49 Cal.4th at p. 870.) Accordingly, we reject respondent's argument that this doctrine precludes appellant's present double jeopardy challenge. However, as we discuss below, appellant's claim otherwise fails on its merits.

2. The trial court did not abuse its discretion in declaring a mistrial.