Is assault with a deadly weapon an assault with intent to kill a defendant barred from a retrial?

Defendant's contention that the acquittal of an attempted murder (count 1) bars retrial on assault with a deadly weapon (count 2) is without merit. (Pen.Code, 1160.) '(A) retrial of a count on which the jury fails to agree is not 'another prosecution' within the meaning of Penal Code section 1023, and hence is not barred by the double jeopardy doctrine. (Citation.)' (People v. Webb, 66 Cal.2d 107, 127, 56 Cal.Rptr. 902, 916, 424 P.2d 342. 356.)

Generally, a defendant may be retried until 'complete and final disposition is made of . . . all charges pleaded.' (People v. Tideman, 57 Cal.2d 574, 581, 21 Cal.Rptr. 207, 211, 370 P.2d 1007, 1011.) Thus, for purposes of retrial where, as here, defendant was tried in one proceeding on both charges, it is irrelevant whether assault with a deadly weapon is, or is not, a necessarily included offense in attempted murder. ⁵