Does the doctrine of implied acquittal apply to cases in which the jury deadlocked on the greater offence?

[13 Cal.4th 301] Although the United States Supreme Court has not passed on the precise double jeopardy issue presented here, several of its prior decisions strongly suggest the doctrine of implied acquittal is inapplicable to cases in which the jury is expressly deadlocked, rather than merely silent, on the greater offense. In Selvester v. United States (1898) 170 U.S. 262, 263, 265, 18 S.Ct. 580, 581, 42 L.Ed. 1029, the court affirmed the trial court's receipt of the jury's verdict of guilty on three counts, even though the jury had deadlocked on a fourth count. As the court explained, when a jury convicts on some counts and is silent as to others, the effect of the jury's discharge is equivalent to an acquittal barring retrial on those counts on which the jury failed to render a verdict because "the record affords no adequate legal cause for the discharge of the jury." (Id. at 269, 18 S.Ct. at pp. 582-583.) By contrast, the court further explained, when juror disagreement is formally entered on the record, "[t]he effect of such entry justifies the discharge of the jury, and therefore a subsequent prosecution for the offense as to which the jury has disagreed and on account of which it has been

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