Is a defendant subject to a retrial if he secures on appeal a reversal of his conviction based on insufficiency of evidence?

"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.

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.