Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F03735
OPINION
SIMS, Acting P.J.
Defendant Robbie Howard Woodson appeals his sentence following conviction by jury trial of the following offenses: count 1--murder (Pen. Code, § 187, subd. (a); undesignated section references are to the Penal Code); count 2--assault on a child with force likely to produce great bodily injury resulting in death (§ 273ab); count 4--felony child abuse (§ 273a, subd. (a)) and count 5--infliction of corporal injury on the mother of a child (§ 273.5, subd. (a)).
Defendant’s convictions resulted from the death of defendant’s 11-month-old son who, upon examination at the UC Davis Medical Center on April 28, 2005, had bruises on his head, torso, buttocks and leg. Defendant had earlier struck the child, causing a black eye, in February, 2005.
In this appeal, defendant challenges only the imposition of the upper term of six years on count 4, violation of section 273a, subdivision (a), on the ground the upper term was imposed based upon an aggravating factor not found by the jury as required by Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. __; 166 L.Ed.2d 856] and Blakely v. Washington (2004) 542 U.S. 296.
At sentencing, the trial court justified imposition of the upper term on count 4 as follows: “The upper term is recommend [sic] in that you have engaged in violent conduct and that conduct poses a--constitutes a serious danger to society.”
At sentencing, defendant’s counsel objected to imposition of the upper term on the ground that aggravating factors had not been tried to the jury as required by Blakely v. Washington, supra, 542 U.S. 296.
DISCUSSION
Cunningham v. California, supra, 549 U.S. __ at page __ [166 L.Ed.2d 856 at page 864] holds that the federal Constitution’s jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.
The aggravating factor used by the trial court to impose the upper term on count 4--the defendant has engaged in violent conduct that constitutes a serious danger to society--is a fact that must be tried to the jury.
The People argue that Cunningham, supra, 549 U.S. __ [166 L.Ed.2d 856], does not apply because “the recidivism exception applies in this case.” We disagree. The trial court’s reference was to the facts and circumstances of the present offense. The trial court was not referring to any prior conviction of the defendant. Consequently, the recidivism exception in Cunningham does not apply.
The People argue that the probation report listed aggravating factors not relied on by the trial court. In our view, this is of no moment. What is crucial is what the trial court stated on the record as the reason it imposed the upper term.
The People argue that any Cunningham error was harmless in this case. Cunningham error may be held harmless if we can conclude beyond a reasonable doubt that the jury would have made the same finding. (See Washington v. Recuenco (2006) 548 U.S. __ [165 L.Ed.2d 466, 474].) We cannot make the finding requested by the People. Although the death of an 11-month-old child is always tragic, the crime charged in count 4 occurred in February 2005, when defendant gave the child a black eye. It therefore preceded by several months the violent conduct that led to the child’s death. Considering all circumstances, we cannot say beyond a reasonable doubt that the jury would have found the aggravating factor.
Defendant contends we may not remand to the trial court for a jury trial of aggravating factors. We disagree.
Defendant first contends, “There is no provision in California Law for Jury Trial on Aggravating Factors that were Not Defined and Enacted by the Legislature.” In Barragan v. Superior Court (2007) 148 Cal.App.4th 1478, we recently rejected defendant’s contention. We shall follow Barragan here.
In a supplemental brief, defendant next contends, “remand for resentencing would violate appellant’s Fifth Amendment right to be free of double jeopardy.” We disagree.
There is a substantial question whether the state and federal prohibitions on double jeopardy apply at all to the retrial of a sentence enhancement. (See People v. Monge (1997) 16 Cal.4th 826, 843.) For present purposes, we shall assume for the sake of argument that double jeopardy may apply.
As the People point out, double jeopardy prohibitions apply only where there has been an implied or actual acquittal of the circumstance sought to be retried, or where there has been no substantial evidence of the offense adduced in the trial court. (See Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 108-109, 113; Burks v. United States (1978) 437 U.S. 1; United States v. Ball (1896) 163 U.S. 662, 671, 672.) In this case, there has been no acquittal, express or implied, of the aggravating factor relied on by the trial court. Moreover, there is substantial evidence in the record showing that defendant engaged in violent behavior that is dangerous to society. Accordingly, double jeopardy prohibitions do not apply. Courts from other states that have considered this problem have uniformly refused to apply double jeopardy principles to the retrial of an aggravating factor imposed in violation of Cunningham. (See Hankerson v. State (Minn. 2006) 723 NW.2d 232, 237-239; State v. Sawatzky (Or. 2005) 125 P.3d 722, 724-727; State v. Ring (Ariz. 2003) 6 P.3d 915, 929.) We agree with those decisions and follow them here.
People v. Seel (2004) 34 Cal.4th 535, relied on by defendant, is distinguishable. There the California Supreme Court held that federal constitutional double jeopardy principles precluded retrial because an appellate court found insufficient evidence to support a special allegation that an attempted murder was willful, deliberate and premeditated. (Id. at pp. 548-550.) Seel determined that a special allegation that an attempted murder was premeditated is an element of the offense, it was not a “typical sentencing determination, like a prior conviction allegation, to which double jeopardy protections do not apply.” (Id. at p. 550.) In the instant case, there has been no determination that there is insufficient evidence on the record to support the aggravating factor relied on by the trial court. Indeed, as we have noted, in the present case, there is ample evidence that defendant has engaged in violent conduct that constitutes a danger to society. Accordingly, Seel is distinguishable.
Defendant also relies on United States v. Velasco-Heredia (9th Cir. 2003) 319 F.3d 1080, a case decided under the federal sentencing guidelines. To the extent that Velasco-Heredia is inconsistent with the result we reach, we respectfully decline to follow it.
“As a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial. [Citations.]” (People v. Hernandez (2003) 30 Cal.4th 1, 6.) If sufficient evidence exists to support a conviction, retrial simply affords the defendant a second opportunity to seek a favorable judgment and does not violate the constitutional prohibition against double jeopardy. (Id. at p. 7.) Such is the case here.
CONCLUSION
Defendant’s upper term sentence on count 4 was imposed in violation of the rule of Cunningham v. California, supra, 549 U.S. __ [166 L.Ed.2d 856]. We shall vacate the upper term sentence and remand to the trial court for further proceedings. Within 30 days of the filing of our remittitur, the District Attorney shall elect whether to try the aggravating factor(s) to a jury or to stipulate to imposition of the midterm on count 4.
DISPOSITION
The upper term sentence on count 4 is vacated and the matter is remanded to the trial court. Within 30 days, the District Attorney shall elect whether to try aggravating factor(s) to a jury or whether to stipulate to imposition of the midterm on count 4. In all other respects, the judgment is affirmed.
We concur: DAVIS, J., RAYE, J.