Filed 8/24/26 P. v. Villareal CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
THE PEOPLE, F089438
Plaintiff and Respondent, (Super. Ct. No. DF017264B)
v.
FRANKIE O. VILLAREAL, OPINION Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Nathan A. Coelho, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and Jesica Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Snauffer, J. and Harrell, J.
Defendant Frankie O. Villareal (defendant) contends his sentence must be vacated because the trial court imposed the upper term based on aggravating factors that were not proven in accordance with section 1170, subdivision (b). He argues the matter must be remanded for resentencing or for the trial court to obtain a personal waiver of his right to a jury trial on the aggravating circumstances. The People agree, as do we.1 In all other respects, the judgment is affirmed.
PROCEDURAL SUMMARY
On December 4, 2024, case No. DF017264B, the Kern County District Attorney filed an amended information charging defendant with assault by a prisoner by means of force likely to produce great bodily injury (Pen. Code,2§ 4501, subd. (b); count 1).3 It was further alleged that defendant suffered a prior strike and serious felony conviction for murder (§§ 667, subds. (a), (c)–(j), 1170.12, subds. (a)–(e)). Three aggravating factors were also alleged (Cal. Rules of Court, rule 4.421).4 On December 5, 2024, a jury found defendant guilty on count 1. Defendant waived his right to a jury trial on the enhancement and prior strike allegation. Defendant did not waive his right to a jury trial on the aggravating factors. At a bifurcated proceeding, the trial court dismissed the prior serious felony enhancement allegation but found true the prior strike allegation and all three aggravating factors (rule 4.421).
1 Defendant argues as a threshold issue that the issue was not forfeited by defense counsel failing to object below. As we agree with the parties that the matter must be remanded for resentencing, we need not address forfeiture. Defendant further contends that if the issue is forfeited, defense counsel provided ineffective assistance. However, as we agree with the parties that the issue was not forfeited, we also need not address the issue of ineffective assistance of counsel. 2 All further statutory references are to the Penal Code, unless otherwise noted. 3 Codefendant Eric C. was charged with and convicted of the same offense in a joint trial. 4 All further rule references are to the California Rules of Court.
On February 25, 2025, the trial court sentenced defendant to an aggregate sentence of 13 years four months, consecutive to the term he was serving in Los Angeles County case No. KA124726-01, as follows: in case No. DF017264B on count 1, 12 years (the upper term, doubled pursuant to the “Three Strikes” law); and in case No. DF017601 to a term of 16 months (one-third the midterm), consecutive to the term in case No. DF017264B.5 On March 5, 2025, defendant filed a timely notice of appeal.
FACTUAL SUMMARY
On May 6, 2022, at approximately 10:00 a.m., correctional officers working in the prison yard saw an inmate, Eric C., run up to another inmate and punch him in the face, then saw defendant, also an inmate, join Eric in striking the victim as the victim fell to the ground. Eric and defendant initially ignored the officers’ orders to get down but ceased the attack and got on the ground in a prone position when the officers fired multiple 40-millimeter foam-tipped rounds at them. The officers then escorted Eric and defendant out of the yard. The altercation lasted several seconds.
The victim needed medical attention and suffered a laceration on his scalp, swelling on his right cheek, an abrasion on his left knee, and a crescent-shaped bruise on his arm. Eric C. and defendant also had similar crescent-shaped injuries.
DISCUSSION
Defendant contends the trial court erred under section 1170, subdivision (b), by failing to obtain a personal waiver of his right to a jury trial on the aggravating circumstances. He argues the error was prejudicial and requires that his sentence be
5 On December 21, 2023, in case No. DF017601, defendant was convicted of possessing or manufacturing a weapon in a penal institution under section 4502, subdivision (b). The court resentenced defendant for this conviction at the sentencing hearing in the present case.
vacated and the matter remanded for resentencing or for the trial court to obtain the required waiver. The People agree, as do we.
A. Background The amended information alleged three aggravating circumstances: defendant engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); his prior convictions as an adult or sustained juvenile delinquency petitions are numerous or of increasing seriousness (rule 4.421(b)(2)); and he has served a prior prison or jail term (rule 4.421(b)(3)).
At trial, defendant stipulated to the fact that he was serving a prison sentence on May 26, 2022.
On December 5, 2024, before the jury returned defendant’s verdict, the parties discussed whether defendant would waive his right to a jury on the prior strike conviction allegation and aggravating factors. The following colloquy occurred:
“[DEFENSE COUNSEL]: The factors in aggravation are still—
“THE COURT: That’s just for a court because of the [rule 4.421(B)] factors not—the [rule 4.421(A)] factors but not the [rule 4.421(B)] factors. Right? That’s my understanding unless the law has changed.
“[DEFENSE COUNSEL]: And in either of those my client will waive jury.”
The trial court did not obtain an express waiver of defendant’s right to a jury trial on the aggravating factors from defendant himself.
The jury then returned defendant’s guilty verdict on count 1 (§ 4501, subd. (b);
assault by a prisoner by means of force likely to produce great bodily injury), which required the jury to find that defendant committed an act that by its nature would directly result in the application of force to a person, that the amount of force was likely to cause great bodily injury, and that defendant was incarcerated at the time of the offense.
After the jury was excused, defendant waived his right to a jury trial on his prior strike conviction and the trial court found true the strike prior. The trial court then stated again that defendant did not have a right to a jury trial on the alleged aggravating factors, stating, “On the factors in aggravation, I should have taken a further—oh, that’s a— there’s no right to a jury trial.”
Defense counsel did not object or demand a jury trial on the aggravating factors. Defense counsel then declined to present any evidence on the factors in aggravation and the prosecution submitted on the matter. The trial court stated it considered a certified California Law Enforcement Telecommunications System Record of Arrests and Prosecutions (CLETS RAP) sheet and three certified abstracts of judgment, including a 2015 conviction under section 273.5, subdivision (f)(2), a 2016 conviction under section 10851, subdivision (a), and a 2021 conviction under section 187, subdivision (a). The court then stated it found true each of the three aggravating factors alleged in the information, stating, “On three, page three, lines 3 through 6, [defendant], under 4.421(b) danger—violent conduct and presents a danger. That’s true. Nine through 13 numerous petitions or adult convictions is true. And 16 through 18, prior prison term is true.”
On February 25, 2025, at the sentencing hearing, the trial court reaffirmed its findings on the three aggravating factors alleged in the information and additionally found that defendant’s prior performance on probation and parole was unsatisfactory. The court stated:
“As to [defendant], no factors in mitigation. Factors in aggravation include he has engaged in violent conduct and indicates a serious danger to society. Prior convictions as an adult are numerous. He has served a prior prison term not used to enhance this case. His prior performance on probation, both misdemeanor and felony, as well as state parole, was unsatisfactory, in that he violated terms and/or reoffended. He was on probation, mandatory supervision, and Post Release Community Supervision. I don’t know if that is true. He was in prison at the time. I’m not going to find—I’ll find number five. So the factors in aggravation clearly outweigh the factor in mitigation. No factors in mitigation.” The trial court again specified in its statement that it found true, under rule 4.421(b)(2), that defendant’s convictions were “numerous” but did not state that it found his convictions to be of increasing seriousness as well.6 (See rule 4.421(b)(2).)
The trial court denied defendant’s request for probation and sentenced him to an aggregate term of 13 years four months, consecutive to the term he was serving in Los Angeles County case No. KA124726-01, as follows: in case No. DF017264B, on count 1, 12 years (the upper term, doubled pursuant to the Three Strikes law); and in case No. DF017601, to a term of 16 months (one-third the midterm), consecutive to the term in case No. DF017264B.
B. Law A criminal defendant’s right to a jury trial on “all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence” is guaranteed by the Sixth Amendment of the U.S. Constitution under section 1170, subdivision (b). (People v. Wiley (2025) 17 Cal.5th 1069, 1078 (Wiley); see U.S. Const., 6th Amend.)
Section 1170, subdivision (b), provides that a trial court may not impose the upper term when a criminal statute specifies three possible terms of confinement unless circumstances in aggravation justify doing so and “the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subds. (b)(1)–(2).) “An aggravating circumstance is a fact that makes the offense ‘distinctively worse than the ordinary.’ ” (People v. Black (2007) 41 Cal.4th 799, 817, overruled on other grounds in Wiley, supra, 17 Cal.5th at pp. 1084–1085.) A fact
6 However, on December 5, 2024, at the bifurcated trial on the aggravating factors, when the trial court recited its findings on the aggravating factors, it referenced the page and line numbers of the information containing the allegation that defendant’s convictions were “numerous or of increasing seriousness,” pursuant to rule 4.421(b)(2).
constituting an element of the offense cannot be relied upon by a trial court to aggravate or enhance a sentence on that offense. (People v. Scott (1994) 9 Cal.4th 331, 350; People v. Marshall (1987) 196 Cal.App.3d 1253, 1259; People v. Falcon (2023) 92 Cal.App.5th 911, 952–953, disapproved on other grounds in People v. Lynch (2024) 16 Cal.5th 730, 751, 768–769 (Lynch); rule 4.420(h).) Notwithstanding the right to a jury trial on the aggravating factors relied on to impose the upper term, the court may consider the defendant’s prior convictions based on a certified record of conviction without submitting the prior convictions to a jury. (§ 1170, subd. (b)(3); Lynch, at p. 768.) However, the court’s consideration is limited to “the bare fact of a prior conviction and its elements.” (Wiley, at p. 1086.)
Pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” except for “the fact of a prior conviction.” (Id. at p. 490.)
Further, the United States Supreme Court recently imposed new limits on the factors that the trial court may rely upon to increase a sentence in the absence of a jury finding or a defendant’s stipulation. In Erlinger v. United States (2024) 602 U.S. 821 (Erlinger), the United States Supreme Court imposed new limits on the factors that a sentencing judge may rely upon to increase a sentence in the absence of a jury finding or a defendant’s stipulation. (Id. at p. 825.) There, the defendant was charged under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), which enhances the sentence of certain defendants if they previously committed three violent felonies or serious drug offenses on separate occasions. (Erlinger, at p. 825.) Whether offenses occurred on separate occasions “can require an examination of a ‘range’ of facts, including whether the defendant’s past offenses were ‘committed close in time,’ whether they were committed near to or far from one another, and whether the offenses were ‘similar or intertwined’ in purpose and character.” (Id. at p. 828.) The Erlinger court concluded that, pursuant to Apprendi, the question of whether the offenses occurred on separate occasions must be submitted to a jury, not determined by a judge. (Erlinger, at p. 835.) The Erlinger court also rejected an argument that a trial court could decide the separate occasions inquiry under the exception to Apprendi set out in Almendarez-Torrez v. United States (1998) 523 U.S. 224, which permits a judge to “undertake the job of finding the fact of a prior conviction—and that job alone.” (Erlinger, at p. 837.) While Erlinger acknowledged that, “[o]ften, a defendant’s past offenses will be different enough and separated by enough time and space that there is little question [the defendant] committed them on separate occasions,” it nonetheless made a categorical rule that even though the fact of prior convictions can sometimes resolve the separate-occasions inquiry, that inquiry must always be submitted to a jury. (Id. at p. 842.)
The California Supreme Court, relying on Erlinger, thus recently held in Wiley that recidivism-based aggravating factors, beyond the existence of a prior conviction, are subject to Apprendi if used to impose an upper term sentence, overruling its prior decisions in People v. Towne (2008) 44 Cal.4th 63 and People v. Black (2007) 41 Cal.4th 799, “which construed the Almendarez-Torres prior conviction exception more broadly than Erlinger now allows.” (Wiley, supra, 17 Cal.5th at p. 1076.) In Wiley, the trial court imposed the upper term sentence based on the defendant’s prior convictions, poor performance on probation, and “ ‘the fact that the charges are becoming more serious.’ ” (Id. at p. 1077.) However, the Wiley court, relying on Erlinger, found that the trial court erred because “the federal Constitution’s jury trial right requires that a jury determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts to justify an upper term sentence.” (Wiley, at p. 1078.) Wiley stated that the trial court’s findings also “exceeded the scope of the statutory exception to the jury trial right for prior convictions that appears in section 1170[, subdivision] (b)(3).” (Id. at p. 1085.)
The Wiley court also stated that the failure to afford the defendant a jury trial on the aggravating factors was prejudicial and a federal constitutional error subject to review under Chapman.7 (Wiley, supra, 17 Cal 5th at p. 1087.) The court concluded the failure to afford the defendant a jury trial on whether his prior convictions were of increasing seriousness was prejudicial. (Id. at pp. 1087–1090.) There, the defendant had numerous convictions, and several of his most recent offenses were felonies. (Id. at pp. 1089– 1090.) The People argued “that the progression of [the defendant’s] offenses over time from misdemeanors to felonies demonstrates a clear trend from less serious offenses towards more serious ones” demonstrated that his crimes were of increasing seriousness. (Id. at pp. 1089–1090.) However, the court rejected the People’s argument that “ ‘no rational jury could conclude that a defendant who committed crimes two out of the three times that he was on a formal probation had performed satisfactor[ily] on probation.’ ” (Id. at p. 1091.) The court could not “discount the possibility that a rational jury could have disagreed as to whether the People had proved that [the defendant’s] overall performance on probation was unsatisfactory.” (Ibid.)
Accordingly, the Sixth Amendment is violated “when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.” (People v. Lynch, supra, 16 Cal.5th at p. 768.)
A defendant must express the right to a jury trial in words. (People v. Daniels (2017) 3 Cal.5th 961, 990.) “Waiver must be ‘express[ed] in words … and will not be implied from a defendant’s conduct.’ [Citation.] Moreover, a court may not accept a defendant’s waiver of a jury trial unless the waiver ‘is knowing and intelligent, that is,
7 Chapman v. California (1967) 386 U.S. 18.
“ ‘ “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,” ’ ” as well as voluntary “ ‘ “in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” ’ ” ’ ” (Ibid.)
Constitutional issues, even in cases involving mixed questions of law and fact, are reviewed de novo on appeal. (People v. Cromer (2001) 24 Cal.4th 889, 894.)
C. Analysis Here, as the parties agree, the trial court erred by imposing the upper term based on aggravating factors that were not proven in accordance with section 1170, subdivision (b), because defendant did not stipulate to the underlying facts or personally waive his right to a jury trial on the aggravating factors.
The record shows the trial court mistakenly believed defendant did not have a right to a jury trial on the alleged rule 4.421(b) aggravating factors. However, defendant had a constitutional right to a jury trial on the rule 4.421(b) aggravating factors. Constitutional error occurs when the trial court relies on unproven aggravating facts, even if other aggravating facts have been properly established. (Lynch, supra, 16 Cal.5th at p. 768.) Here, although the record shows defense counsel suggested defendant would be willing to waive his right to a jury trial on the aggravating factors, the record does not show that defendant was advised he possessed this right, that he was advised of the consequences of waiving it, or that he expressly waived it. (People v. French (2008) 43 Cal.4th 36, 47 [“When the constitutional right to jury trial is involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant— assumed that the defendant had waived or intended to waive the right”].) Accordingly, the trial court erred when it imposed the upper term based on aggravating circumstances that were not proven in accordance with section 1170, subdivision (b).
Further, as in Wiley, because defendant did not waive that right and a jury could have found in his favor on at least one factor, the error was prejudicial because a rational jury could disagree as to whether defendant had engaged in violent conduct indicating a serious danger to society, whether his prior convictions were numerous, and whether his prior performance on probation was unsatisfactory. (Lynch, supra, 16 Cal.5th at p. 743 [failing to submit aggravating factors to the jury is harmless if a reviewing court determines beyond a reasonable doubt that a jury would have found all aggravating factors true].) As stated above, the failure to afford the defendant a jury trial on the aggravating factors was a federal constitutional error subject to review under Chapman, which provides,
“ ‘[A] sentence imposed under … section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.’ [Citations.] Lack of a jury trial is not harmless under Chapman if ‘the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.” (Wiley, supra, 17 Cal.5th at p. 1087.) On review, we must determine “whether any rational fact finder could have come to the opposite conclusion.” (Id. at p. 1090.) Further, the denial of a jury trial on an aggravating factor is not rendered harmless simply because other aggravating factors have been properly established. (Lynch, supra, 16 Cal.5th at pp. 768, 774–775.) The reviewing court must reverse unless it can find beyond a reasonable doubt “every aggravating fact relied upon by the trial court to impose an upper term.” (Id. at p. 776.)
First, whether defendant “has engaged in violent conduct that indicates a serious danger to society” is a subjective determination and it may not be proven by either the bare facts or the elements of defendant’s prior convictions. (Rule 4.421(b)(1); see People v. Black (2007) 41 Cal.4th 799, 817, overruled on other grounds in Wiley, supra, 17 Cal.5th at pp. 1084–1085.) Here, the jury made no express findings other than the verdict on count 1 (§ 4501, subd. (b)), which did not include a finding that the conduct at issue indicated a serious danger to society because that is not required for a conviction under section 4501, subdivision (b). “Factors may be used to aggravate when they have the effect of ‘making the offense distinctively worse than the ordinary.’ ” (People v. Young (1983) 146 Cal.App.3d 729, 734.) “[W]hat constitutes ‘violent conduct that indicated a serious danger to society’ is vague and subjective.” (People v. Lewis (2023) 88 Cal.App.5th 1125, 1139, disapproved on other grounds in Lynch, supra, 16 Cal.5th at pp. 768–769.) This makes it “ ‘ “ ‘difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.’ ” ’ ” (Wiley, supra, 17 Cal.5th at p. 1090.) Accordingly, the jury’s finding on count 1 did not establish defendant’s conduct was “distinctively worse than the ordinary,” such that would justify the court’s decision finding true the aggravating factor and impose the upper term. (See Young, supra, 146 Cal. App.3d at p. 734.)
Second, the determination of whether defendant’s prior convictions were numerous is also a subjective factor, and accordingly, we cannot assess how a jury would have addressed the facts, as we cannot know what the jury would have defined as “numerous.” Whether a defendant’s convictions were numerous is a matter of fact for the jury to decide, as making that determination involves more than simply counting the convictions, which cannot be established by the bare fact of a defendant’s prior convictions. (People v. Wright (2025) 113 Cal.App.5th 832, 847–848.)
Further, the record shows that the trial court also relied upon defendant’s unsatisfactory performance on probation when imposing the upper term, although that factor was not alleged in the amended information. The Wiley court held that committing a new offense while on probation does not necessarily show poor overall performance on probation, and whether parole performance was satisfactory cannot be based on certified records of conviction and must be found true by a jury. (See Wiley, supra, 17 Cal.5th at pp. 1082–1083, 1091.) The facts required to prove unsatisfactory parole performance go beyond the bare face of a conviction and the elements of the offense. (Id. at p. 1093.) Accordingly, here, as in Wiley, a jury could also have disagreed that defendant’s overall performance on probation was unsatisfactory.
The trial court also did not have a valid basis for finding that defendant served a prior prison sentence, because although defendant’s CLETS RAP sheet shows that defendant served a four year prison term for a 2016 conviction under Vehicle Code section 10851, subdivision (a), records such as CLETS RAP sheets can be confusing and sometimes erroneous and whether defendant served a prior prison sentence goes beyond the bare fact of any of defendant’s prior convictions. (See Wiley, supra, 17 Cal.5th at p. 1087, fn. 12.)
Accordingly, we agree with the parties that the record does not establish beyond a reasonable doubt that a jury would have found all the alleged aggravating factors true, and that the trial court’s failure to obtain a personal waiver of defendant’s jury trial rights on the aggravating factors was prejudicial. As the parties agree, the sentence must be vacated and the matter remanded for resentencing or for the court to obtain a personal waiver from defendant of his right to a jury trial on the aggravating factors.
DISPOSITION
The sentence is vacated and the matter remanded for resentencing for the trial court to resentence defendant or obtain a personal waiver of a jury trial from defendant on the aggravating circumstances. In all other respects, the judgment is affirmed.