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The First District Court of Appeal on Monday reversed the dismissal of murder and attempted murder charges in a 5-year-old San Francisco case. Chief Assistant District Attorney Murlene Randle said Wednesday she expects Larry Joe McDougal will be retried on those charges, but a final decision has not been made. “This case is very important to us and we’re going to do all we can to make sure justice is served,” said Randle. McDougal was accused of stabbing two men, killing one, and threatening two other people with a knife outside a Geary Boulevard grocery store in 1998. The jurors found McDougal guilty as to two charges of assault with a deadly weapon. But they deadlocked on murder and attempted murder, and San Francisco Superior Court Judge Lillian Sing declared a mistrial as to those two charges. In a second jury trial before Superior Court Judge Wallace Douglass, McDougal’s lawyer successfully moved to dismiss the murder and attempted murder charges on double jeopardy grounds. The defense argued that Sing failed to have the jury specifiy whether it was acquitting McDougal of certain charges. But First District Justices William Stein, Douglas Swager and Sandra Margulies found this week that Sing’s jury instructions had covered the legal bases. Sing used one of two procedures, laid out in Stone v. Superior Court, 31 Cal.3d 503, by which a trial court may ensure a jury has been given an opportunity to render a partial verdict of acquittal on a greater offense, Stein wrote in his opinion. Sing told jurors that if they unanimously decided McDougal was not guilty of a greater offense, they were to sign and return a verdict form to that effect, and they didn’t, Stein wrote. “The inescapable conclusion is that they were unable to reach a unanimous verdict on either charge,” he wrote in People v. McDougal, 03 C.D.O.S. 4933. “We respectfully disagree with their legal reasoning and the procedural history,” said McDougal’s attorney, Deputy Public Defender Gabriel Bassan. “We’re reviewing our options,” he said, but declined to say whether he’d seek review by the state Supreme Court. The appellate court’s opinion also affirmed parts of Douglass’ judgment, which denied McDougal’s motion for a new trial on the assault charges and sentenced him to four years in state prison.

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