Filed 1/13/15 P. v. Cavness CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                 A137912
v.
MICHAEL CAVNESS,                                                 (San Francisco County
                                                                 Super. Ct. No. 211241)
         Defendant and Appellant.

         Defendant Michael Cavness appeals from his conviction after jury trial on several
criminal counts and related enhancement allegations. Among other things, he was
sentenced to eight years for involuntary manslaughter and to a base term of 25 years to
life under the Three Strikes Law for assault with a deadly weapon, upon which 13 years
were added for certain enhancement allegations. Defendant argues the trial court
committed prejudicial instructional error regarding his involuntary manslaughter charge,
requiring reversal. He further contends there was insufficient evidence to support his
25 years-to-life sentence under the Three Strikes Law for assault with a deadly weapon.
We agree in both respects. Therefore, we reverse defendant’s involuntary manslaughter
conviction, vacate his 25-years-to-life sentence, and remand this matter to the trial court
for further proceedings consistent with this opinion.
                                                 BACKGROUND
                                                Procedural History
         In January 2010, the San Francisco District Attorney charged defendant in an
information with four criminal counts related to events that occurred on April 2, 2009.



                                                             1
Defendant was alleged to have assaulted George Michael Taylor with a deadly weapon,
an iron bar (Pen. Code, § 245, subd. (a)(1)),1 and to have personally inflicted great bodily
injury (§ 12022.7, subd. (a)) in doing so (count one); to have committed the involuntary
manslaughter (§ 192, subd. (b)) of his brother Edward Cavness (Edward),2 as the
proximate result of committing assault with a force likely to produce great bodily injury
(§ 245, subd. (a)(1)) (count two); to have assaulted Edward with force likely to cause
great bodily injury (§ 245, subd. (a)(1)) (count three); and to have been in possession of a
controlled substance, cocaine base (Health & Saf. Code, § 11350, subd. (a)) (count four).
The sentence enhancement allegations included that defendant had two prior “strike”
convictions. This required that he be sentenced to an indeterminate life term under the
“Three Strikes Law.”3 (§ 667.)
       Defendant pled not guilty to all allegations and a jury trial followed. The jury
found him guilty of counts one, two, and four, and guilty of a lesser offense, “simple
assault” (§ 240), in count three. It also found a sentence enhancement allegation
contained in count one to be true. The court subsequently held a bench trial regarding the
prior conviction allegations. Among other things, it found to be true the allegations that
defendant had two prior “strike” convictions.
       Accordingly, in February 2013, the trial court sentenced defendant on count one,
the assault of Taylor with a deadly weapon, to a base term of 25 years to life pursuant to
the Three Strikes Law, with 13 additional years added under the other applicable
enhancement allegations; on count two, involuntary manslaughter, to a total of eight
years including a sentencing enhancement; on count three, simple assault, to one year in
county jail; and on count four, to eight months in county jail. The court ordered that the


       1
           All of our statutory references are to the Penal Code.
       2
         We refer to Edward by his first name for clarity’s sake, and mean no disrespect
in doing so. We also recognize that the parties refer to him as “Bernard.”
       3
        The Three Strikes Law is codified at section 667, subdivisions (b) through (i)
and Penal Code section 1170.12, subdivisions (a) through (d). (People v. Sosa (2013)
210 Cal.App.4th 946, 948.)


                                               2
sentences run consecutively and stayed the sentences for counts three and four.
Defendant filed a timely notice of appeal.
                               Evidence Presented At Trial
       At trial, it was not disputed that on the morning of April 2, 2009, defendant and
Taylor smoked crack cocaine in defendant’s makeshift home, located in the garage of a
house he shared with his mother and other family in San Francisco, California.
Defendant became agitated after Taylor refused to leave the garage and hit him in the
head with an iron bar, dazing Taylor and causing him to bleed profusely. Taylor testified
that defendant was standing behind him as he, Taylor, was engaged in a drug transaction
with a visitor to the garage. Taylor next remembered waking up on the ground outside
the garage, his head bleeding profusely. Defendant testified that he hit Taylor once with
the bar in self-defense after Taylor tried to stab him with a sharp metal object. Taylor
was treated at a hospital and released the next day.
       It also was not disputed that a few moments after defendant hit Taylor, defendant
and Edward were standing on the sidewalk outside the garage. Defendant punched
Edward in the jaw, knocking him unconscious and causing him to fall backwards.
Edward’s head hit the sidewalk and his skull fractured, leading to his death. Defendant
testified that Edward punched him first in the head. The parties disputed whether Edward
did so based on different eyewitness accounts. They also disputed whether Edward also
smoked crack cocaine with his brother that morning.
       A medical examiner for the San Francisco Police Department testified that, along
with Edward’s skull fracture, there was a sutured area inside his lip and a red abrasion on
his jaw that were consistent with blunt force trauma. The blow to the back of Edward’s
head was of a “severe” force, but the punch to the jaw was not. Alcohol and a metabolite
of cocaine were found in Edward’s blood. It could not be determined when he used the
cocaine.
       Defendant was arrested a few blocks away from his home on the afternoon of the
incident. He was carrying .97 grams of cocaine base in a cigarette container. After his
arrest, he called a cousin from jail. The call was recorded and played for the jury.


                                             3
Defendant told his cousin about Taylor and Edward, “I had to break [Taylor] and
[Edward] ass off.” He went on to say, “What, what’s up with [Taylor], man? Cause I
clubbed his ass a bunch of times.” He also said, “I hit [Edward] in his jaw one time.
Nigger was out cold[,]” as well as “[Edward] hit me on the side [of] the head after I was
fighting [Taylor]. He jump in on [Taylor’s] side.”
                                       DISCUSSION
                I. The Court Committed Prejudicial Error In Instructing
                    The Jury Regarding Involuntary Manslaughter.

       Defendant argues the trial court prejudicially erred when it instructed the jury
about involuntary manslaughter pursuant to CALCRIM No. 581 without including the
definition for “criminal negligence” contained in that standard instruction. The People
concede the court’s error, but argue that it was not prejudicial. We agree with defendant.
A. The Elements Of Involuntary Manslaughter
       Section 192 defines involuntary manslaughter as “the unlawful killing of a human
being without malice” either (a) “in the commission of an unlawful act, not amounting to
felony” (i.e., a misdemeanor); or (b) “in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and circumspection.”
“Through statutory definition and judicial development, there are three types of acts that
can underlie commission of involuntary manslaughter: a misdemeanor, a lawful act, or a
noninherently dangerous felony.” (People v. Butler (2010) 187 Cal.App.4th 998, 1006.)
The defendant’s act must proximately cause the death (id. at p. 1009) and be committed
with criminal intent that is at least criminal negligence. (People v. Stuart (1956) 47
Cal.2d 167, 173-174, explained by People v. Cox (2000) 23 Cal.4th 665, 670-676; People
v. Butler, supra, at p.1006 [“for all three types of predicate acts the required mens rea is
criminal negligence”].)




                                              4
B. The Prosecution’s Theory And The Trial Court’s Instructions
       The prosecution argued, and the trial court instructed the jury, on two alternative
predicate acts as the basis for the involuntary manslaughter charge: battery in violation
of section 242 or assault with force likely to cause injury in violation of section 245,
subdivision (a).4 The court correctly instructed the jury using a modified version of
CALCRIM No. 581 that the People had to prove one of those crimes, that the defendant
had to have committed the crime with criminal negligence, and that the crime had to have
caused the death. The instruction addressed the causation element, but failed to define or
further discuss the criminal negligence mens rea requirement.
       The court made this omission although “criminal negligence” is defined in the
standard CALCRIM No. 581 instruction. This definition indicates that the People are
required to show that a defendant acted in a “reckless” way, thereby creating a “high risk
of death or great bodily injury,” and that a reasonable person would have known that
acting in this way would have created such a risk.5
       This definition for “criminal negligence” is consistent with our Supreme Court’s
determination that “misdemeanor assault and battery may support a conviction of
involuntary manslaughter under section 192[, subdivision] (b) if shown to be dangerous
under the circumstances of their commission.” (People v. Cox (2000) 23 Cal.4th 665,


       4
          The court’s instruction omitted the word “great” from the description of the
stated assault offense. However, both the court’s accompanying assault instruction and
the jury’s verdict form for count two referred to force likely to cause “great bodily
injury.” (Italics added.) In any event, as we will discuss, the jury did not rely on this
assault allegation for its involuntary manslaughter guilty verdict.
       5
          The standard definition for “criminal negligence” contained in CALCRIM No.
581 states in full: “Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal negligence when: [¶] 1.
He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶]
AND [¶] 2. A reasonable person would have known that acting in that way would create
such a risk. [¶] In other words, a person acts with criminal negligence when the way he
or she acts is so different from the way an ordinarily careful person would act in the same
situation that his or her act amounts to disregard for human life or indifference to the
consequences of that act.”


                                              5
674.) “Where involuntary manslaughter is predicated on an unlawful act constituting a
misdemeanor, it must still be shown that such misdemeanor was dangerous to human life
or safety under the circumstances of its commission.” (Id. at p. 675.) A battery under
section 242, which, as we will discuss, the jury relied upon as the predicate unlawful act,
is a misdemeanor offense. (See, e.g., People v. Merriman (2014) 60 Cal.4th 1, 30.)
       The court’s omission was particularly significant because the parties did not
discuss the “criminal negligence” element of involuntary manslaughter in closing
argument. Indeed, their arguments suggested the jury could find defendant guilty of the
crime without finding that defendant acted in a reckless way that created a high risk of
death or great bodily injury. The prosecutor argued the jury could convict if it found
“that there was a crime, a battery or an assault likely to cause great bodily injury, which
was the substantial cause of [Edward’s] death . . . [t]hat [defendant] hit, in an offensive
touching, [Edward] in the jaw. He fell to the ground and he struck his head.” Similarly,
defense counsel told the jury that involuntary manslaughter required “the commission of
an unlawful act that does not amount to a felony, such as a punch, which sets those
wheels in motion, it resulted in the death of a human being. . . . Again, the commission
of an unlawful act not amounting to a felony that results in the death of a human being,
involuntary manslaughter.”
       Indeed, defense counsel suggested to the jury that it need not consider whether
Edward’s death was even foreseeable to defendant, although another requirement of
“criminal negligence” is that a reasonable person would have known that acting in the
way charged would create a high risk of death or great bodily injury. (CALCRIM No.
581.) He said defendant had been charged with involuntary manslaughter, rather than
murder, because “it is not reasonably foreseeable that this kind of thing would happen
from a punch.” (Italics added.) His statement was directly inconsistent with the standard
definition of “criminal negligence” contained in CALCRIM No. 581.
       During its deliberations, the jury asked the court whether “simple assault,” which
it was instructed was a possible lesser offense for count three, was the “same” as
“battery” and could therefore “cover” the unlawful act required for a finding that


                                              6
defendant committed involuntary manslaughter. The court, after conferring with counsel
and without objection from the defense, responded that “[s]imple battery is not the same
as simple assault. However, simple assault can be the underlying non-felonious conduct
of involuntary manslaughter if all the other elements have been proven. The simple
assault and the other elements must be proven beyond a reasonable doubt. If you find
that simple assault is the underlying unlawful act not amounting to a felony in count
[two], please indicate it on the verdict form.”
       The jury found defendant guilty of involuntary manslaughter. It did not designate
“simple assault” as the unlawful act on its verdict form. It also did not indicate whether
“assault with force likely to produce great bodily injury” or “battery,” both of which were
on the form, was the unlawful act. However, in count three, it found defendant was not
guilty of “assault with force likely to cause great bodily injury” but guilty of the lesser
included offense of “simple assault.” The only logical conclusion that can be drawn from
these verdicts is that the jury relied on battery as the predicate unlawful act in finding
defendant guilty of involuntary manslaughter.
C. Analysis
       Defendant asserts we must analyze the trial court’s error pursuant to the federal
standard for prejudice, which requires that we determine whether or not the error was
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
The People contend we should do so under the state standard, which requires that we
determine whether or not it is reasonably probable that a result more favorable to
defendant would have been reached in the absence of the error. (People v. Watson (1956)
46 Cal.2d 818, 836.) Defendant is correct.
       As this court stated in People v. Hunter, under the Fifth Amendment of the federal
Constitution, “the prosecution must prove every element of a criminal offense beyond a
reasonable doubt [citation], and the Sixth Amendment requires that determination to be
made by the jury, not the court [citation]. Consequently, an instruction lightening the
prosecution’s burden of proof violates the accused’s right to a jury trial. [Citations.]”
(People v. Hunter (2011) 202 Cal.App.4th 261, 276.) These federal constitutional rights


                                              7
are implicated here. Therefore, we must apply the federal prejudice standard and
determine whether or not the court’s instructional error was harmless beyond a
reasonable doubt. (Id. at p. 278, citing Chapman v. California, supra, 386 U.S. at p. 24.)
       But the difference is of no moment in this case because the court’s error was
prejudicial under either standard. Defendant almost certainly would have received a
more favorable verdict regarding count two, involuntary manslaughter, if the court had
instructed the jury on the definition of “criminal negligence.” Regarding count three, the
jury found defendant was not guilty of “assault with force likely to produce great bodily
injury” and guilty only of the lesser offense of “simple assault.” The jury thus declined
to find that defendant’s act of punching his brother involved force “likely to produce
great bodily injury.” This element of the more serious assault charge is very similar to
the “criminal negligence” requirement that the relevant act create “a high risk of death or
great bodily injury.” (CALCRIM No. 581.) Counts two and three were based on the
same act—defendant’s attack of Edward.6 It would not be rational for a jury to conclude
that defendant did not act with force likely to produce great bodily injury, but did act
recklessly so as to create a high risk of death or great bodily injury.
       Nor did the jury’s apparent finding that defendant committed battery affect our
analysis. Regarding battery, the court instructed that the People were required to prove
that defendant “willfully and unlawfully touched Edward Cavness in a harmful or
offensive manner” and “did not act in self-defense.” Nothing in this instruction required
the jury to find defendant acted with force likely to produce great bodily injury, much
less that his act created a high risk of death or great bodily injury.



       6
          The People argue on appeal that the trial court’s instructional error lacked
prejudice because of the overwhelming evidence of defendant’s guilt, including one
witness’s testimony that she saw defendant continue his assault on Edward after Edward
fell. Defendant contends this evidence was discredited. It makes no difference to our
analysis, however, because the jury considered this evidence in determining defendant’s
guilt for both counts two and three and still declined to find that defendant acted with
force likely to produce great bodily injury.


                                               8
       In short, the court’s failure to instruct the jury regarding the definition of “criminal
negligence” was prejudicial: it relieved the prosecution of having to prove every element
of the offense beyond a reasonable doubt and it is more than reasonably probable that,
correctly instructed, the jury would have issued a verdict more favorable to defendant.
Therefore, we reverse defendant’s involuntary manslaughter conviction and remand this
matter to the trial court for further proceedings consistent with this opinion.
                        II. Defendant’s Three Strikes Conviction
       Defendant also argues there was insufficient evidence to support the trial court’s
finding at its bench trial that he had suffered two prior “strike” convictions. Therefore,
he contends, the court’s imposition of his 25-years-to-life sentence for assaulting Taylor
with a deadly weapon pursuant to the Three Strikes Law was in error and should be
vacated. We agree, and remand this matter to the trial court for further proceedings
consistent with this opinion.
A. The Proceedings Below
       The People alleged in their information that defendant was previously convicted of
two specific, serious felonies, each of which constituted a strike. At the bench trial, the
People submitted documentary evidence in support of these allegations and the court
found them to be true. Defendant challenges the sufficiency of the evidence regarding
one of them.7
       Specifically, the People alleged in their information that defendant was “convicted
of the crime of ASSAULT WITH FORCE LIKELY TO CAUSE GREAT BODILY
INJURY, violating section 245[, subdivision ](a)(1) of the Penal Code, a Felony, on or
about the 24th day of May, 1994, in the Superior Court of California, County of San
Francisco.” At the bench trial, the People submitted documents into evidence to prove
this allegation. These included reporter’s transcripts of hearings in San Francisco
Superior Court on May 3, 1994, and May 24, 1994. They show that defendant, in the

       7
         Defendant does not challenge the trial court’s finding that defendant was
convicted in 1999 of the crime of attempting to dissuade a witness (§ 136.1, subd. (a)(2)),
as alleged by the People in their information.


                                              9
same court proceeding, pled to, and was found guilty of, two separate charges in two
separate cases pursuant to a negotiated disposition.
       That is, on May 3, 1994, defendant pled to, and was found guilty of, assault with
force likely to produce great bodily injury in case number 153902. The information filed
against him in that case, also submitted into evidence at the bench trial, indicates this
assault was against Kathryn Schneider. The record does not contain further information
about the offense. Although the relevant count recited in the information in case number
153902 includes an enhancement allegation that defendant personally inflicted great
bodily injury on Schneider, this allegation was dismissed as part of the negotiated
disposition.
       Also on May 3, 1994, defendant pled guilty to assault with a deadly weapon, a
baseball bat, in case number 153932. The information filed against him in that case, also
submitted into evidence at the bench trial, includes the allegation that he personally
committed an assault with the bat upon Charles Cavness. The record does not contain
further information about this offense either.
       At the bench trial regarding defendant’s prior convictions, neither party presented
much argument. The prosecutor declined to make any detailed argument because “the
exhibits speaks [sic] for themselves.” He made no comment regarding the May 1994
proceedings other than in the course of addressing allegations of prior felonies with state
prison terms that were made pursuant to Penal Code section 666.5, subdivision (b)
(regarding determinate sentencing). He stated then that the documents showed “prison
commitments as alleged for the 245 [,subdivision] (a)(1) as one strike; and 245
[,subdivision] (a)(1), nonstrike[.]” Defense counsel submitted on the matter without
making any argument.
       The trial court found that the People’s Three Strikes allegation that defendant had
been convicted of “assault with force likely to cause great bodily injury . . . on or about
the 24th day of May 1994” to be true, without further elaboration. Neither the
information, nor the court’s finding, made any mention of the other conviction defendant
suffered in May 1994, for assault of Charles Cavness with a deadly weapon.


                                             10
B. Analysis
       We review the trial court’s findings to determine whether there is substantial
evidence that the allegation has been proved beyond a reasonable doubt. (People v.
Delgado (2008) 43 Cal.4th 1059, 1065, 1067 (Delgado).) In other words, “we examine
the record in the light most favorable to the judgment . . . [to] determine whether a
rational trier of fact could have found that the prosecution sustained its burden of proving
the elements of the sentence enhancement beyond a reasonable doubt.” (Id. at p. 1067.)
       As defendant points out, in order for the court to sentence him pursuant to the
Three Strikes Law under the circumstances of his case, it must be “pled and proved” that
any prior strike conviction was for a “serious” or “violent” felony. (§ 667, subds. (c),
(e)(2); § 1170.12, subd. (a).)
       Defendant contends that his May 1994 conviction for “assault with force likely to
produce great bodily injury” against Schneider in case number 153902 was neither a
“serious” nor “violent” felony. This is correct. A “serious” or “violent” felony, when a
weaponless assault against a non-accomplice is involved, must involve evidence that the
defendant in fact personally inflicted great bodily injury on the victim. (§ 1192.7,
subd. (c)(8); § 667.5, subd. (c)(8).) “[A]ssault merely by means likely to produce [great
bodily injury], without the additional element of personal infliction, is not included in the
list of serious felonies.” (Delgado, supra, 43 Cal.4th at p. 1065.) Nothing in the record
indicates that defendant’s assault on Schneider involved his actual personal infliction of
such an injury. To the contrary, an allegation that he did so accompanied this assault
charge in case number 153902 and was dismissed as part of the negotiated disposition of
the case.
       A dismissed allegation alone is insufficient evidence that defendant’s assault of
Schneider involved the infliction of the requisite personal injury. “[I]f the prior
conviction was for an offense that can be committed in multiple ways, and the record of
the conviction does not disclose how the offense was committed, a court must presume
the conviction was for the least serious form of the offense. [Citations.] In such a case, if
the statute under which the prior conviction occurred could be violated in a way that does


                                             11
not qualify for the alleged enhancement, the evidence is thus insufficient, and the People
have failed in their burden.” (Delgado, supra, 43 Cal.4th at p. 1066.) Such is the case
here.
        On appeal, the People do not argue that defendant’s conviction for assault with
force likely to produce great bodily injury against Schneider in May 1994 should count as
a prior strike conviction. Instead, they contend we should construe the trial court’s
finding as that defendant suffered a prior conviction for assault with a deadly weapon
against Charles Cavness in case number 153932. Such an assault is a serious felony.
(§ 1192.7, subd. (c)(31); Delgado, supra, 43 Cal.4th at p. 1065.)
        The People’s argument is untenable for three reasons. First, the People did not
plead that defendant was convicted in May 1994 of assault with a deadly weapon in case
number 153932, nor did they seek to amend the information at any time. They were
required by statute to plead the prior strike conviction. (§ 667, subds. (c), (e)(2);
§ 1170.12, subds. (a), (d); People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332.)
        Second, the People never put the matter at issue. Their information does not refer
to defendant’s conviction for assault with a deadly weapon as a prior strike conviction.
At the hearing, the People did not argue that it was the basis for one. It is true that, as the
People contend, the prosecutor submitted evidence at the bench trial which showed that
defendant was convicted in 1994 for assault with a deadly weapon. However, the
prosecutor never made a direct reference to that conviction. He made what may have
been an oblique reference to it, as well as to defendant’s simultaneous conviction for
assault with force likely to cause great bodily injury, in discussing the charges relevant to
the People’s determinate sentencing enhancement allegations. However, he stated only
that defendant had previously been convicted of a strike and non-strike offense pursuant
to section 245, subdivision (a)(1). He did not identify which of defendant’s two May
1994 convictions constituted a strike conviction. This was an important omission
because in 1994, the crimes of assault with force likely to produce great bodily injury and
assault with a deadly weapon were both contained in that same subdivision, section 245,



                                              12
subdivision (a)(1).8 (Stats. 1993, ch. 369, § 1.) Thus, the prosecutor’s oblique reference
was too ambiguous to clarify the People’s allegations or put forward the assault with a
deadly weapon conviction as the basis for the court finding a prior strike conviction.
       Third, the trial court did not make any mention of, or finding regarding,
defendant’s conviction for assault with a deadly weapon. To the contrary, it specifically
ruled that defendant’s 1994 conviction for assault with force likely to produce great
bodily injury constituted a prior strike conviction. As we have discussed, this was
incorrect absent evidence that defendant in fact inflicted such an injury on the victim.
       The People also contend that the defense understood the People were relying on
defendant’s conviction for assault with a deadly weapon against Charles for the second
strike conviction because, shortly after the bench trial, the defense argued in its
sentencing memorandum that this particular conviction should be stricken and not be a
basis for a Three Strikes Law sentence. Given the evidence submitted by the prosecution
at the bench trial, it is not surprising that the defense would nonetheless argue that this
conviction should not be the basis for a Three Strikes Law sentence. Regardless, it is of
no consequence in light of the fact that at the bench trial, the People did not argue, nor
did the trial court find, that defendant’s conviction for assault with a deadly weapon
against Charles was the basis for his second strike.
       In short, the trial court found as defendant’s second strike conviction that he had
previously been convicted of assault with force likely to produce great bodily injury in
May 1994. The only such conviction was for defendant’s assault of Schneider in case
number 153902. Nothing in the record regarding that proceeding indicates that
defendant’s assault of Schneider included his infliction of great bodily injury upon her.
In the absence of any such evidence, the People did not meet their burden of proving this




       8
         Assault with a deadly weapon remains in section 245, subdivision (a)(1), but
assault with force likely to produce great bodily injury is now contained in section 245,
subdivision (a)(4).


                                              13
conviction constituted a second strike. We therefore vacate defendant’s sentence and
remand this matter to the trial court for further proceedings consistent with this opinion.9
       In light of our conclusions, we do not address the remainder of the parties’
arguments, including defendants’ contention that the People did not present evidence
sufficient to meet certain other elements of involuntary manslaughter.
                                      DISPOSITION
       Defendant’s conviction for involuntary manslaughter is reversed and his 25-years-
to-life sentence for assault of Taylor with a deadly weapon is vacated. This matter is
remanded to the trial court for further proceedings consistent with this opinion.



                                                  STEWART, J.


We concur.




KLINE, P.J.




RICHMAN, J.




       9
         The parties do not address what is permissible upon remand. We make no
determination regarding it. We only note that the People generally may retry strike
conviction allegations found on appeal to be unsupported by sufficient evidence without
double jeopardy acting as a bar. (People v. Sotello (2002) 94 Cal.App.4th 1349, 1354-
1357.)


                                             14
