I agree with my colleagues that none of the defenses advanced by petitioner—former jeopardy, law of the case, collateral estoppel, or res judicata—applies to this case. Consequently, there is no bar to retrial of the prior convictions charged for purposes of punishment. I write separately because I arrive at the res judicata portion of this conclusion by a somewhat different route than the majority.
*1306At the outset I acknowledge that there is much in the majority opinion with which I fully agree. By the same token, I fully agree with most of the analysis and conclusions in People v. Scott (2000) 85 Cal.App.4th 905 [102 Cal.Rptr.2d 622], on which the majority understandably relies. Thus, there is no basis for operation of the collateral estoppel principle since this litigation involves separate phases of the same case, not a different case. 'Nor does law of the case play a role, since the only law of this case is that the evidence received by the trial court to prove that petitioner suffered a previous serious felony conviction is insufficient for that purpose. Whether sufficient other cognizable evidence exists has not been decided by any court. I also agree that we are precluded from applying the former jeopardy rule to retrial of the prior conviction issue because it has been authoritatively decided that the retrial offends neither the state nor federal former jeopardy provision. (U.S. Const., 14th Amend, and Cal. Const., art. I, § 15; People v. Monge (1997) 16 Cal.4th 826, 845 [66 Cal.Rptr.2d 853, 941 P.2d 1121]; Monge v. California (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615]; Almendarez-Torres v. U.S. (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350]; Jones v. United States (1999) 526 U.S. 227, 248 [119 S.Ct. 1215, 1226-1227, 143 L.Ed.2d 311]; and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435].) Petitioner argues that the last-cited of these decisions “supercedes” the others, leaving us free to ignore them. As the majority correctly points out, Apprendi does no such thing. The case does express doubt about the correctness of carving out retrial of a recidivist allegation, found true but reversed for insufficiency of evidence, from the general rule announced in that case. That rule is that a defendant is entitled to jury trial and application of the beyond a reasonable doubt standard of proof in the adjudication of sentence factors that may result in punishment beyond the statutory range. But Apprendi found it unnecessary to decide the application of the rule it announced to recidivist adjudication. (530 U.S. at pp. 489-490 [120 S. Ct. at p. 2362].) The precedential force of the other decisions remains binding on this court.
That leaves the principal issue, res judicata, which also was the focus of the decision of our sister court in Scott. That case provides a detailed discussion of People v. Mitchell (2000) 81 Cal.App.4th 132 [96 Cal.Rptr.2d 401], in which Division One of the Fourth District held that res judicata (and related doctrines) bar retrial of the prior conviction issue when an earlier true finding had been reversed for insufficiency of evidence. Mitchell is a thorough, scholarly treatment of the legal principles involved, and there is much in its discussion with which I agree. I agree, for example, that the doctrines of res judicata and collateral estoppel apply to criminal trials. (See discussion at 81 Cal.App.4th at p. 143.) I agree, too, that these doctrines ought “ ‘not to be applied with the hypertechnical and archaic approach of a 19th *1307century pleading book, but with realism and rationality.’ ” (Ashe v. Swenson (1970) 397 U.S. 436, 444 [90 S.Ct. 1189, 1194, 25 L.Ed.2d 469], quoted in Lucido v. Superior Court (1990) 51 Cal.3d 335, 343 [272 Cal.Rptr. 767, 795 P.2d 1223, 2 A.L.R.5th 995], and in Mitchell at p. 156.) In that regard, I note that the California courts occasionally have been willing to depart from strict application of the collateral estoppel doctrine when the circumstances were sufficiently compelling. (See Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153, 169 [29 Cal.Rptr.2d 376] [departure in favor of defendant] and Lucido v. Superior Court, supra, 51 Cal.3d at p. 342 [departure in favor of prosecution].)
The greatest difficulty facing the Mitchell court in applying the res judicata and collateral estoppel rules was their requirement that “the previous proceeding resulted in a final judgment on the merits.” (People v. Davis (1995) 10 Cal.4th 463, 514-515, fn. 10 [41 Cal.Rptr.2d 826, 896 P.2d 119], and People v. Mitchell, supra, 81 Cal.App.4th at p. 143.) The court recognized that finality is a cornerstone of the res judicata doctrine (Mitchell at p. 155), but held that the circumstances of the case before it presented a situation “akin to an acquittal of an offense.” (Ibid.)
Those circumstances concerned the failure of the trial court to find the prior conviction allegations “not true” because the evidence to support them was insufficient. If it had, the Mitchell court said, that would have been an end to the matter, since the People could not appeal. (Ibid.) According to Mitchell, that was enough finality to satisfy the doctrine.
But akin to finality is not finality. As Scott correctly points out, “the necessary finality cannot exist in the context of successive hearings which take place in the same proceeding or action.” (Scott, supra, 85 Cal.App.4th at p. 918.) That is our case as well.
The Scott decision, like the majority opinion in this case, relies to a considerable degree on the decision of our Supreme Court in People v. Morton (1953) 41 Cal.2d 536 [261 P.2d 523], and the fact that Morton was cited with apparent approval in People v. Monge, supra, 16 Cal.4th at page 845.1 believe Morton is of little value in the resolution of the case before us (or in Scott), and that too much is read into its citation in Monge. The principal issue in Morton was whether a defendant who is successful in gaining reversal of a prior conviction true finding is entitled to retrial of all issues, including the “present charges.” The court concluded that he or she is not, disagreeing with Court of Appeal decisions that had held otherwise. The court considered the merits of the several possible dispositions of the issue, each supported by some appellate precedent, and concluded that the best *1308course was to order a retrial on the prior conviction issue alone. (People v. Morton, supra, 41 Cal.2d at p. 544.) The Monge court cited Morton with the “cf.” signal (indicating “compare”), and noted that the case did not discuss former jeopardy. (People v. Monge, supra, 16 Cal.4th at p. 845.) Neither did Morton discuss res judicata, collateral estoppel or law of the case. Understandably so, since none of those doctrines was before the court.
The real basis of the Mitchell decision, as I understand it, is that once the prosecution has had a “full and fair opportunity to marshall its best evidence to meet its burden of proving the prior conviction allegations . . . ,” unhampered by trial court error, and fails to carry its burden, it ought not be given a “second bite of the apple.” (Mitchell, supra, 81 Cal.App.4th at p. 156.) In the end, the assertion is that it is simply unfair to give the prosecution a second chance if it has failed in the first. There is some force to that approach, but I do not believe we are free to follow it here.
Each of the doctrines discussed here is related, and each traces to the same basic roots. (See Ashe v. Swenson, supra, 397 U.S. 436, 445 [90 S.Ct. 1189, 1195]; Simpson v. Florida (1971) 403 U.S. 384, 385-387 [91 S.Ct. 1801, 1802-1803, 29 L.Ed.2d 549]; People v. Mitchell, supra, 81 Cal.App.4th at p. 147.) But the most applicable doctrine is former jeopardy, for the defendant has already been at risk of an enhanced punishment because of the allegation of a serious felony prior conviction, and the general rule is that the double jeopardy rule bars a retrial after reversal for insufficiency of evidence. (Burks v. United States (1978) 437 U.S. 1 [98 S.Ct. 2141, 57 L.Ed.2d 1]; see People v. Pierce (1979) 24 Cal.3d 199, 209 [155 Cal.Rptr. 657, 595 P.2d 91].) If there is no jeopardy bar to retrial of a prior conviction true finding reversed for insufficiency of evidence—and the law is that there is not—it is an undue stretch of the law to apply other, more general doctrines, to contradict that result. That, I believe, is the effect of Mitchell, and the reason I am unable to follow it here.
For these reasons, I agree that the retrial of the prior conviction allegations in this case should go forward, and that the application for writ intervention to prevent it should be denied.
Petitioner’s petition for review by the Supreme Court was denied May 2, 2001. Kennard, I., was of the opinion that the petition should be granted.