How have courts dealt with fact situations where a defendant is convicted of a double murder and sentence enhancement for use of a firearm in the commission of the crime?

People v. White, supra, involved a fact situation indistinguishable from that before us. The defendant was charged with a double murder and a sentence enhancement for use of a firearm in the commission of the murders. He was found guilty of the murders, but the jury returned a not true finding on the firearm-use allegation. After the convictions were reversed on appeal, the trial court denied the defendant's motion to bar the prosecution from proceeding on the theory he was the actual killer. (185 Cal.App.3d at p. 826, 231 Cal.Rptr. 569.) The defendant was again convicted on the murder counts. (Id. at p. 824, 231 Cal.Rptr. 569.)

[27 Cal.App.4th 1312] The Court of Appeal reversed on grounds of double jeopardy and collateral estoppel: "Appellant's use of a gun was resolved adversely against the prosecution in the first trial, and should not have been relitigated in the second. The prosecution is not prevented from proceeding on the theory that appellant supplied the weapons or otherwise participated as a principal. (See Pen.Code, 31.) What it cannot do is relitigate the fact of appellant's use of a gun in these homicides, since that issue was decided against it in the first trial. Principles of double jeopardy and due process which incorporate the doctrine of collateral estoppel preclude such action." (People v. White, supra, 185 Cal.App.3d at pp. 827-828, 231 Cal.Rptr. 569, emphasis in original.)