I concur in the result, although I would favor a more cautious approach. The double jeopardy clause has proven *846singularly difficult to apply and remains one of the most “ ‘misunderstood maxims in the law, the passage of time having served in the main to burden it with confusion upon confusion.’ ’’ (Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 82, fn. 6.)
While acknowledging that its precedents could hardly be characterized as “models of consistency and clarity” (Burks v. United States (1978) 437 U.S. 1, 9 [98 S.Ct. 2141, 2146, 57 L.Ed.2d 1]), the United States Supreme Court has held the prosecution is not entitled to retrial when a conviction is reversed for insufficient evidence. (Id. at pp. 9-11 [98 S.Ct. at pp. 2146-2147].) The question in this case is whether the prosecution is similarly barred from retrying a prior-conviction-sentence-enhancement allegation when the true finding is reversed for insufficient evidence.
This is a question the high court has never specifically addressed. (Bullington v. Missouri (1981) 451 U.S. 430, 445 [101 S.Ct. 1852, 1861-1862, 68 L.Ed.2d 270]; Caspari v. Bohlen (1994) 510 U.S. 383, 397 [114 S.Ct. 948, 957, 127 L.Ed.2d 236].) In Bullington, the court considered whether the double jeopardy clause barred the prosecution from seeking the death penalty on retrial following reversal of an earlier conviction imposing a lesser penalty. Bullington marked the first time the court had applied the double jeopardy clause to a sentencing determination. (Bullington v. Missouri, supra, at p. 438 [101 S.Ct. at pp. 1857-1858].)
Bullington’s characterization of the first jury’s decision to impose life imprisonment as an acquittal of “ ‘whatever was necessary to impose the death sentence’ ” (Bullington v. Missouri, supra, 451 U.S. at p. 445 [101 S.Ct. at p. 1861], quoting State ex rel. Westfall v. Mason (Mo. 1980) 594 S.W.2d 908, 922 (dis. opn. of Bardgett, C. J.)), is strongly reminiscent of the court’s decision in Green v. United States (1957) 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199]. In Green, the court held the double jeopardy clause barred retrial of a greater offense after the jury at the defendant’s first trial convicted him of the lesser included offense. (Id. at p. 191 [78 S.Ct. at pp. 225-226].) In both settings, the failure of the prosecution to prove its greatest charge implicated a failure to prove the case-in-chief. Characterizing the failure of proof as an acquittal under these circumstances is fully consistent with the objectives of the double jeopardy clause in that it protects a defendant charged with a crime from being forced to “run the gantlet... on that charge” (id. at p. 190 [78 S.Ct. at p. 225]) more than once.
While the United States Supreme Court’s cases have not “foreclosed the application of the Double Jeopardy Clause to noncapital sentencing” (Caspari v. Bohlen, supra, 510 U.S. at p. 393 [114 S.Ct. at p. 955]), none has *847applied the clause in that particular context, and the question remains unresolved. In the wake of Bullington and Caspari considerable confusion exists, but a few propositions seem clear. First, the double jeopardy clause does apply to some sentencing proceedings; second, where the clause applies, its sweep is absolute and there can be no balancing of the equities; and finally, application of double jeopardy does not depend on the mechanical application of a formula. It depends instead on the nature of the determination to be made and its relationship to the underlying offense.
As the court stated in Caspari: “Persistent-offender status is a fact objectively ascertainable on the basis of readily available evidence. Either a defendant has the requisite number of prior convictions, or he does not. Subjecting him to a second proceeding at which the State has the opportunity to show those convictions is not unfair, and will enhance the accuracy of the proceeding by ensuring that the determination is made on the basis of competent evidence.” (Caspari v. Bohlen, supra, 510 U.S. at pp. 396-397 [114 S.Ct. at pp. 956-957].)
Other jurisdictions have found the reasoning of Bullington inapplicable where the facts at issue in the sentencing determination have no bearing on facts relating to the present crime. (Denton v. Duckworth (7th Cir. 1989) 873 F.2d 144, 148 [unlike death penalty determination in Bullington, habitual offender statute does not require consideration of facts underlying substantive offense]; Linam v. Griffin (10th Cir. 1982) 685 F.2d 369, 375 [same]; People v. Sailor (1985) 65 N.Y.2d 224 [491 N.Y.S.2d 112, 480 N.E.2d 701, 707] [Bullington implicitly recognizes death penalty was part of substantive offense of murder].)
When the prosecutor fails to prove a prior conviction allegation, a retrial does not require a fact finder to reevaluate the evidence underlying the substantive offense. Under these circumstances a retrial does not subject a defendant to the risk of repeated prosecution within the meaning of the double jeopardy clause.