CERTIFIED FOR PARTIAL PUBLICATION*

OPINION

IKOLA, J.—

In 2010, we reversed the judgment against defendant Dale Franklin Wensinger in People v. Wensinger (Oct. 15, 2007, G035534) [nonpub. opn.] (Wensinger I). On retrial, a jury convicted defendant of two counts of assault by means of force likely to produce great bodily injury (counts 1 & 3, victims Delaine Carlson and John Doe, respectively) (Pen. Code, § 245, subd. (a)(1)),1 and three counts of making criminal threats (counts 2, 4 & 5, victims Carlson, Doe, and Ignacio Marquez, respectively) (§ 422). The court sentenced defendant to 19 years four months in prison, including a consecutive term of 16 months for count 5 (criminal threat against Marquez) and 10 years for two prior convictions (§ 667, subd. (a)(1)).

On appeal, defendant challenges the judgment on many grounds, including that his retrial on count 5 was barred by reason of double jeopardy or judicial estoppel. We agree the double jeopardy clause of the Fifth Amendment of the United States Constitution barred the People from retrying count 5; we therefore reverse the judgment on that count. In all other respects, we affirm the judgment.

FACTS

On the morning of May 20, 2002, Carlson was walking on the sidewalk outside Lillie King Park when he saw defendant and his rottweiler walking toward him. As the dog came close, it jumped up and snapped its jaws in front of Carlson's face, no more than 12 inches away. Two weeks earlier, the same thing had happened in the park, but Carlson had "just jumped back and kept going." This time, however, Carlson said to defendant: "Wow. That dog needs a shot." Defendant, who seemed a little angry, said, "You want to shoot my dog?" Carlson replied: "No. He needs a shot. He is a hyper dog. Apparently he needs something." Defendant repeated, "You want to shoot my dog?"

Carlson moved a step away from the dog as defendant moved a step closer, leaving the men about two steps apart. At this point, the dog was on a leash. Carlson and defendant repeated their verbal exchange one or two more times, with Carlson explaining the dog needed a shot to calm it down and defendant becoming more angry.

Carlson started to walk away. After taking about 10 steps, Carlson heard defendant say, "Attack. Attack." Carlson looked back over his shoulder and saw the dog running at him. Defendant was no longer holding the dog's leash.

The dog bit Carlson's left inner thigh. Carlson was "scared to death," and yelled for defendant to get the dog away from him. Defendant asked Carlson, "Do you want more?" Carlson yelled, "No." Defendant pulled his dog away.

Carlson walked away quickly and did not look back. He was shaking and scared. Later, Carlson saw that a piece of flesh hung from his thigh, with blood and puncture marks. The wound took about a week to a week and a half to heal and left a faint scar.

Two weeks after the incident, Carlson walked past defendant and his dog on the sidewalk inside the park. Again, the dog snapped its jaws less than 12 inches from Carlson's face. Carlson gave a hard look and kept on walking.

On October 31, 2002, at around 6:00 a.m., Marquez was at Lilly King Park walking his pit bull when he heard someone screaming, "Help me." Marquez turned around and saw an older man, between 65 and 70 years old, being followed or chased by a person with a big rottweiler. The person with the rottweiler was about two or three feet behind the older man and was shouting, "I'm going to kill you," "son of a bitch," and other obscenities. The dog was attacking, barking, growling, and lunging. Marquez ran toward them. He asked a park employee to phone 911, then continued running toward the two men, who were heading for some condominiums across the street from the park. Marquez shouted at the person with the dog, "Stop. Stop."

At the condominiums, neighbors had come outside and were screaming. The man with the dog stopped running, turned toward Marquez, shouted obscenities, and said, "I'm going to kill you." The man was about 20 to 30 feet away from Marquez; the rottweiler was growling and barking. Marquez took the threat to kill him seriously and felt intimidated and scared. Marquez shouted back, "Stop," and "I'm calling the police." The man took off toward the park across the street.

At trial, Marquez did not recognize defendant. Marquez did, however, identify on People's exhibit 1 the house where the man with the dog lived.

Within the four months prior to this incident, Marquez had seen the man at the park three or four times when Marquez and his son were practicing football there. The man with the rottweiler had approached Marquez and his son, screamed, and said, "I'm going to kill you."

When an investigator showed Marquez a photograph of John Woolston, Marquez said he was "70 percent sure" Woolston was the man he saw being chased.

A police officer responded to Lillie King Park around 6:15 a.m. on October 31, 2002. The officer spoke with some people. He then went to 418 Harvey Street in Santa Ana, a house depicted on exhibit 1, and contacted defendant, who was exiting the residence from the garage. Defendant said people had moved his trash cans. The officer asked if defendant knew why he (the officer) was there. Defendant said it was because "he was yelling at people with his dog in the park." The officer said that people in the park were complaining about defendant "sicking" his dog on them and yelling obscenities. Defendant said they were lying and they would have to prove it.

The officer asked defendant questions about his dog, such as its license and vaccination status. Defendant said, "Nobody's taking my dog," and uttered some obscenities. At that point, defendant's demeanor changed drastically; he became very excited and was almost yelling.

Uncharged Conduct

Stanley Brunner testified that he lives near defendant. A few months before October 2002, he walked through Lillie King Park toward defendant's house to have a conversation with him. Brunner had a sprained ankle and was walking with a cane. Defendant was in his garage; Brunner stayed in the park about 15 to 20 yards away. As they talked, defendant became angry and started calling Brunner insulting, vulgar names. He threatened to attack Brunner physically and to send his rottweiler after him. The rottweiler was not in the garage at the time.

Defense Case

Woolston testified he was 65 years old in 2002 and lived near Lillie King Park. At some point in 2002, he heard defendant cursing loudly, and making references to trash cans and a car. Defendant had a dog with him. That was the only time Woolston saw defendant yelling and cursing. Defendant and his dog did not chase Woolston on that date or on any other date. In response to a subpoena in this case, Woolston sent a letter to the district attorney's office saying they should not call him as a witness because he was not victimized.

DISCUSSION

Double Jeopardy Barred Retrial of Defendant for Threatening Marquez

Defendant argues his conviction for making a criminal threat against Marquez must be reversed, either on grounds of double jeopardy or judicial estoppel, because the People conceded in Wensinger I, that insufficient evidence supported his conviction for that offense in his first trial. In Wensinger I he was charged in count 7 (former count 7) with criminally threatening Marquez on October 31, 2002. On retrial, he was charged with the identical offense in count 5 (current count 5).

In Wensinger I, we reversed the judgment on all counts due to a missing reporter's transcript of a court hearing under People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].2 In doing so, we did not address defendant's contention that there was insufficient evidence to support his conviction on former count 7, although we did take note of his contention. In Wensinger I, the Attorney General conceded defendant's conviction for former count 7 should be reversed because, under the evidence, it was "impossible to know if [defendant] willfully threatened to commit a crime which would `result in death or great bodily injury,' or if the threat was `so unequivocal, unconditional, immediate, and specific,' as to convey to [Marquez] `a gravity of purpose and an immediate prospect of execution of the threat,'" as required under section 422. (Wensinger I, supra, G035534.)

On retrial of this case, defense counsel moved prior to trial to dismiss current count 5, noting that in Wensinger I, supra, G035534, this court stated "that the People conceded ... there was insufficient evidence presented at the trial to support the" offense. In Wensinger I, we stated, "Defendant was convicted of making criminal threats to Marquez even though the People concede there was insufficient evidence that defendant threatened to commit a crime against Marquez." (Ibid.) Defense counsel argued the People were "estopped by their concession" from proceeding on current count 5 and that there was an "implied acquittal."

The prosecutor countered that in Wensinger I, this court did not rule on the issue on the merits. The prosecutor stated she agreed with the Attorney General that the evidence presented at the first trial on the offense was insufficient, but that she believed she could present additional evidence in the new trial. Indeed, because the trial judge seemingly was concerned about "bad faith" or "professional responsibility" of the prosecutor, the prosecutor took pains to show the additional evidence she could present to overcome the deficiency. In an offer of proof, the prosecutor stated: "[T]here was no testimony at any point about statements made to [Marquez] by the defendant. When we are talking about criminal threats, the statements are really the bulk of the evidence. [¶] In the police report ..., Marquez told [the officer] that the defendant said to Mr. Marquez that he was going to [sic] his dog on him and `I am going to kill you.'" The prosecutor explained that this evidence was never presented in the first trial. She also stated: "[I]n the police report Mr. Marquez indicated that the defendant continued to advance on him with his dog and [Marquez] continued to retreat. [The officer] was called at trial; however, none of that information was elicited." In an ensuing discussion of the evidence adduced at the first trial, the prosecutor and defense counsel referred to specific pages of the reporter's transcript of the first trial.

The court denied defendant's motion to dismiss current count 5. The court declined to reweigh the evidence presented in the first trial, particularly because the jury there was convinced beyond a reasonable doubt that defendant was guilty of the offense.

In this appeal, the Attorney General again "agrees that the evidence at the first trial was insufficient to support that conviction," making this the third time the People have conceded the point.

(1) If this court had reversed former count 7 in Wensinger I for lack of substantial evidence, the double jeopardy clause of the Fifth Amendment to the United States Constitution would clearly have barred the People's retrial of defendant for the offense: "The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.'" (Burks v. United States (1978) 437 U.S. 1, 11 [57 L.Ed.2d 1, 98 S.Ct. 2141], fn. omitted, italics added (Burks).) "The Clause does not allow `the State ... to make repeated attempts to convict an individual for an alleged offense,' since `[t]he constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.'" (Ibid.) (2) "[O]nce the reviewing court has found the evidence legally insufficient, the only `just' remedy available for that court is the direction of a judgment of acquittal." (Id. at p. 18.)

For double jeopardy purposes, whether an appellate court, instead of a trial court, decides that a defendant should be acquitted is "a purely arbitrary distinction." (Burks, supra, 437 U.S. at p. 11.) While it clearly would have been more efficient had we reached the insufficiency of the evidence argument in Wensinger I, the insufficiency issue did not somehow disappear because we failed to do so. Procedural niceties aside, the bedrock constitutional principal is clear, and bears repeating: "The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." (Burks, at p. 11, fn. omitted.) A violation of that bedrock principle is precisely what the prosecutor on remand unabashedly sought to do. The prosecutor stated: "There were things that the prior trial prosecutor could have done and did not do to support [former count 7], and that is the only reason I am asking to proceed on that." "I would not be proceeding if I was just going to be presenting the same evidence. I think there was additional evidence that can be presented, admissible evidence that—in addition to what was presented at the first trial to support that charge." In other words, the prosecutor was impermissibly asking for "another opportunity to supply evidence which it failed to muster in the first proceeding." (437 U.S. at p. 11, fn. omitted.)

(3) On remand the trial court should have dismissed the offense charged in current count 5 based on the clear insufficiency of the evidence in the first trial. As the prosecutor acknowledged: "There was no testimony at any point [in the first trial] about statements made to [Marquez] by the defendant." "So my feeling was there are statements that are critical to this count that are attributed to the defendant that were never elicited, and I feel that they would be admissible in this matter." True, in Wensinger I, we reversed the entire case for a new trial. Normally, "reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case.... Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect .... [¶] The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial ...." (Burks, supra, 437 U.S. at pp. 15-16.)

(4) It is immaterial we reversed the judgment in Wensinger I on grounds entirely unrelated to the sufficiency of the evidence. There was no final judgment in the matter, nor did the law of the case doctrine preclude inquiry into the sufficiency of the evidence.3 The issue was still open and the court was required to adjudicate it on remand. When defense counsel moved to dismiss current count 5 in the trial court, based on insufficiency of the evidence in the first trial, the trial court was obligated either to accept the People's concession that the evidence had been insufficient, or, if it chose to do so, to review the record of the first trial to determine whether the evidence was indeed insufficient. The court erred by declining to review the sufficiency of the evidence, despite its access to the first trial transcript.

U.S. v. Marolda (9th Cir. 1981) 648 F.2d 623, was a procedurally similar case, and raised the same double jeopardy argument presented in the instant appeal. In Marolda, the defendant, in his first appeal, challenged his conviction on several grounds, including that the evidence was insufficient to support the conviction. (Id. at p. 624.) But the appellate court's opinion "made no mention of Marolda's sufficiency of the evidence argument" and reversed the judgment on other grounds. (Ibid.) On remand, the defendant moved in the district court "to dismiss on double jeopardy grounds, contending there had been insufficient evidence." (Ibid.) The defendant argued, and the government conceded, "that, if the evidence was insufficient to support a conviction at the first trial, double jeopardy bars retrial." (Ibid.) The district court denied the defendant's dismissal motion. (Ibid.) On appeal, the appellate court reviewed the record from the first trial, found the evidence was insufficient to support the verdict, and held that the district court should have granted the defendant's motion to dismiss. (Id. at p. 625.)

Likewise, the reporter's transcript of the first trial is now before us. As the People have acknowledged on three separate occasions, it is clear the evidence was insufficient to support former count 7 in the first trial. Accordingly, the judgment on current count 5 is reversed, and we direct the entry of judgment of acquittal on that count.

Substantial Evidence Supports Counts 3 and 4*

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The Court Properly Instructed the Jury on Count 3*

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The Court Did Not Abuse Its Discretion by Admitting Uncharged Conduct Evidence*

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There Was No Cumulative Error*

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DISPOSITION

The judgment of conviction on current count 5 is reversed, the trial court is directed to enter a judgment of acquittal on that count, and the judgment is modified by striking the 16-month consecutive prison term on current count 5. The trial court is directed to prepare an amended abstract of judgment reflecting the modified sentence and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

Rylaarsdam, Acting P. J., and Aronson, J., concurred.