For the reasons set forth in Justice Werdegar’s dissenting opinion, I also decline to join the majority’s opinion and respectfully dissent. To the extent any constitutional issues may be implicated in this case, Monge v. California (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615] (Monge II) and People v. Monge (1997) 16 Cal.4th 826 [66 Cal.Rptr.2d 853, 941 P.2d 1121] (Monge I) are sufficient to resolve them. For now, we need venture no further.
Additionally, I write separately to disclaim the majority’s blatant obiter dictum that no double jeopardy implications would attend the trial court’s reconsideration of factual findings. (Maj. opn., ante, at p. 842; see also id. at p. 843.) “ ‘It is the general rule that the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.’ [Citations.]” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734-735 [257 Cal.Rptr. 708, 771 P.2d 406].) As the majority perforce concedes, reconsideration of factual findings “did not actually occur here . . . .” (Maj. opn., ante, at p. 842.) What did actually occur here is that the trial court redetermined the governing legal standard for imposing increased punishment for a prior serious felony conviction. (Pen. Code, § 667, former subd. (a), now subd. (a)(1).) A fortiori, this case cannot carry the majority’s attempt to extend the reasoning of Monge II, supra, 524 U.S. 721 [118 S.Ct. 2246], to reconsideration of factual findings.
*849Like Monge I and Monge II, the enhancement allegation here is a typical recidivist provision, which is predicated on “a fact objectively ascertainable on the basis of readily available evidence. Either a defendant has [a prior serious felony conviction], or he does not. Subjecting him to a second proceeding at which the State has the opportunity to show [that] conviction[] 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 (1994) 510 U.S. 383, 396 [114 S.Ct. 948, 956-957, 127 L.Ed.2d 236].) Thus, even though a defendant is statutorily entitled to a jury trial and the prosecution has an evidentiary burden, “[w]hen 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.” (Monge I, supra, 16 Cal.4th at p. 847 (conc. opn. of Brown, J.).)
We have yet to consider, however, whether the same rationale holds true for fact-bound enhancement allegations that a jury determines at trial based on facts inextricably bound with the manner in which the substantive offense was committed. (E.g., Pen. Code, §§ 12022.5, former subd. (a), now subd. (a)(1) [personal use of firearm], 12022.7, subd. (a) [personal infliction of great bodily injury].) In my view, the proper application of double jeopardy principles in this latter situation is far from clear or certain under either the federal or state Constitution. In Monge II, the Supreme Court distinguished Bullington v. Missouri (1981) 451 U.S. 430 [101 S.Ct. 1852, 68 L.Ed.2d 270] as a capital sentencing case. Nevertheless, it did not state the holding in definitively broad terms, saying only “that the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context.” (Monge II, supra, 524 U.S. at p. __ [118 S.Ct. at p. 2253], italics added; see also Graham v. West Virginia (1912) 224 U.S. 616, 631 [32 S.Ct. 583, 588, 56 L.Ed. 917] [separate indictment alleging only recidivist status for increased punishment does not violate double jeopardy]; cf. Almendarez-Torres v. U.S. (1998) 523 U.S. 224 [118 S.Ct. 1219, 1230-1231, 140 L.Ed.2d 350] [no constitutional violation for not including recidivist allegation in indictment].)
Moreover, the high court acknowledged in Monge II, as it has in other contexts, that there are constitutional limits to the state’s power to define crimes and prescribe penalties. “One could imagine circumstances in which fundamental fairness would require that a particular fact be treated as an element of the offense” rather than as a sentencing factor and hence would be subject to double jeopardy. (Monge II, supra, 524 U.S. at p. __ [118 S.Ct. at p. 2250]; cf. Almendarez-Torres v. U.S., supra, 523 U.S. at p. __ [118 S.Ct. at p. 1230]; McMillan v. Pennsylvania (1986) 477 U.S. 79, 86 [106 *850S.Ct 2411, 2416, 91 L.Ed.2d 67].) The court has also allowed that certain of its decisions, taken together, might be read “for the broad proposition that sometimes the Constitution does require (though sometimes it does not require) the State to treat a sentencing factor as an element.” (Almendarez-Torres v. U.S., supra, 523 U.S. at p. __ [118 S.Ct. at p. 1230].) Because the double jeopardy clause preserves and protects interests distinct from those traditionally associated with a criminal proceeding, such as the presumption of innocence and the right to jury trial, its application to fact-bound enhancements may vary accordingly.
With respect to the state constitutional protection against double jeopardy, as noted, Monge I, supra, 16 Cal.4th at pages 843-845, construed California’s double jeopardy clause only in the context of a recidivist enhancement, and should not be read more broadly. More importantly, this court has a long history of independent interpretation even as it has sought guidance from high court precedents. (See generally, People v. Superior Court (Harris) (1990) 217 Cal.App.3d 1332, 1335-1337 [266 Cal.Rptr. 563].) As we explained in Curry v. Superior Court (1970) 2 Cal.3d 707, 716 [87 Cal.Rptr. 361, 470 P.2d 345], “Benton [v. Maryland (1969) 395 U.S. 784 [89 S.Ct. 2056, 23 L.Ed.2d 707]] requires only that the states accord their citizens at least as much protection against double jeopardy as is provided under the Fifth Amendment of the United States Constitution; it does not forbid a state from according a greater degree of such protection. (See, e.g., People v. Henderson (1963) 60 Cal.2d 482, 496-497 [35 Cal.Rptr. 77, 386 P.2d 677].)” (Fn. omitted; see Bunnell v. Superior Court (1975) 13 Cal.3d 592, 601 [119 Cal.Rptr. 302, 531 P.2d 1086]; People v. Belcher (1974) 11 Cal.3d 91, 97 [113 Cal.Rptr. 1, 520 P.2d 385].) With respect to fact-bound enhancement allegations, it appears this court has previously accepted the proposition that a jury’s not-true finding precludes retrial as double jeopardy. (See People v. Santamaria (1994) 8 Cal.4th 903, 910 [35 Cal.Rptr.2d 624, 884 P.2d 81]; People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 78, fn. 22 [2 Cal.Rptr.2d 389, 820 P.2d 613]; People v. Pettaway (1988) 206 Cal.App.3d 1312, 1331-1332 [254 Cal.Rptr. 436]; but see Monge I, supra, 16 Cal.4th at p. 843.) Until a case presents the issue directly, we cannot foreclose the possibility that was a correct determination. Since this is not such a case, the question remains open.