I concur in the opinion of the court prepared by Justice Kennard.
I write separately in order to supplement what is there stated on the question whether the double jeopardy clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment, precludes a second trial for defendant on the multiple-murder special circumstance for purposes of death eligibility.
Without a doubt, we are compelled to find that the evidence introduced at the death-eligibility phase of defendant’s trial, following the superior court’s declaration of mistrial, was insufficient as a matter of law to support the jury’s adverse determination on the multiple-murder special circumstance. In People v. Turner (1984) 37 Cal.3d 302, 328-329 [208 Cal.Rptr. 196, 690 P.2d 669]—which we would later overrule in People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150 [240 Cal.Rptr. 585, 742 P.2d 1306]—we had held that intent to kill was an element of this special circumstance. At this phase of defendant’s trial, there was no evidence on the issue whatsoever. “[T]he Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient . . . .” (Burks v. United States (1978) 437 U.S. 1, 18 [98 S.Ct. 2141, 2150-2151, 57 L.Ed.2d 1].)
There are, perhaps unsurprisingly, certain exceptions to this rule.
For example, the double jeopardy clause does not preclude a second trial if the prosecution failed to introduce sufficient evidence on an element at the first because the element in question had not yet been defined. (See People v. Garcia (1984) 36 Cal.3d 539, 557-558 [205 Cal.Rptr. 265, 684 P.2d 826].) At the death-eligibility phase of defendant’s trial, the prosecution failed to introduce any evidence, sufficient or otherwise, on the intent-to-kill element of the multiple-murder special circumstance—even though it had introduced evidence of intent to kill earlier at the guilt phase and would also introduce evidence of intent to kill later at the penalty phase. Its failure cannot be excused by any absence of definition of an element. Intent to kill had already been held to be an element of this special circumstance in Turner, and had not yet been held not to be such in Anderson. “The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” (Burks v. United States, supra, 437 U.S. at p. 11 [98 S.Ct. at p. 2147].)
The double jeopardy clause also does not preclude a second trial if the prosecution introduced sufficient evidence on an element at the first, but a *693reviewing court subsequently concluded that a necessary part of such evidence was inadmissible. (See Lockhart v. Nelson (1988) 488 U.S. 33, 40 [109 S.Ct. 285, 290, 102 L.Ed.2d 265].) At defendant’s trial, even though the prosecution had introduced evidence of intent to kill earlier at the guilt phase and would also introduce evidence of intent to kill later at the penalty phase, it did not introduce any evidence whatsoever on the intent-to-kill element of the multiple-murder special circumstance at the death-eligibility phase. Again, “[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” (Burks v. United States, supra, 437 U.S. at p. 11 [98 S.Ct. at p. 2147].) One might perhaps argue that the prosecution’s failure to introduce evidence at the death-eligibility phase was invited by an erroneous ruling by the superior court that it need not do so. But the superior court’s erroneous ruling was itself invited by a motion by the prosecution, which sought to avoid making proof.
That having been said, as the opinion of the court correctly notes, “the parties have not raised or briefed the [double jeopardy] issue . . . .” (Maj. opn., ante, at p. 690, fn. 22.) Because that is the case, I agree that it is appropriate to decline to resolve it here.
Appellant’s petition for a rehearing was denied October 15, 1997.