Filed 7/27/26 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E086323
v. (Super.Ct.No. FEBA2500192)
PAUL RALPH HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Brian S. McCarville,
Judge. Affirmed in part; reversed as to sentence with directions.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland and Arlene A. Sevidal,
Assistant Attorneys General, Christopher P. Beesley and Kristen Kinnaird Chenelia,
Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
A jury found defendant and appellant Paul Ralph Hernandez guilty of being a
felon in possession of a firearm, and the court sentenced him to the upper term of three
years, doubled pursuant to a prior strike conviction. Defendant argues that he was not
offered the right to a jury trial on the aggravating sentencing factors, and those factors
were not properly proven. We vacate the sentence and remand for a new sentencing
hearing.
FACTUAL AND PROCEDURAL BACKGROUND1
Police officers stopped two vehicles associated with a robbery and searched the
vehicles pursuant to a search warrant. Defendant was driving one of the cars. He had
just bought two firearms. The police found a 9-millimeter pistol in his car and a
semiautomatic pistol on his person.
Defendant was charged by amended information with entering an inhabited
dwelling with the intent to commit felony theft while a person other than an accomplice
was present (Pen. Code,2 §§ 459 & 667.5, subd. (c)(21), count 1) and being a felon in
possession of a firearm (§ 29800, subd. (a)(1), count 2). The information also alleged
that defendant had one prior strike conviction (§§ 667, subds. (c), (e) & 1170.12, subd.
(c)). The prosecution did not allege any aggravating factors in the information.
1 Because the facts of the underlying offense are not relevant to the issue on
appeal, we have only included a brief summary of the facts.
2 All further statutory references are to the Penal Code unless otherwise noted.
2
A jury found defendant not guilty of theft, but guilty of being a felon in possession
of a firearm.
At the outset of the sentencing hearing on June 13, 2025, the court noted it had
read the probation officer’s report and ordered it filed. The court then stated it had
received a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497
and asked whether defendant was going to admit the prior strike. Defense counsel stated
defendant was willing to admit it. The court addressed defendant and said it was alleged
he had a prior strike which, if admitted, would have the effect of doubling his punishment
and that there were “aggravating factors pled within the body of the Information.”3
The court next stated the following: “Based upon your criminal record, you had
an increasing level of seriousness in your criminal activity over the years such that if
those were admitted or found true would have the effect of allowing the judge at the time
of sentencing to … give you an aggravated term. [¶] With respect to whether or not you
suffered a previous strike allegation or whether or not you suffered aggravating factors,
you have the right to a court trial, a jury trial to be represented by your attorney at that
trial on these limited issues.” Defendant confirmed he understood his rights.
The court then stated: “Now, sir, after having those rights in mind, as to the strike
allegation and the aggravating factors allegation, did you wish to waive, that’s [sic]
means give up that right and admit you suffered that previous robbery within the meaning
of the so-called strike legislation and also admit that your criminal record as set forth in
3 The amended information did not allege any aggravating factors. Additionally,
there were no aggravating factors set forth in the probation report.
3
the probation officer’s report can be considered by the Court as aggravating factors. Do
you admit that?” Defendant said, “Yes.”4
Defense counsel joined, and the People accepted the admissions. The court found
that the admissions to the strike and the aggravating factors were knowingly and
intelligently made, defendant had been advised of his rights, and he waived his rights.
The court denied defendant’s Romero motion, denied probation, and said the
question was whether or not the aggravating factors outweighed any mitigating factors.
The court stated the probation report “adequately, in fact admirably, sets forth, starting at
page 7” defendant’s prior convictions. The court listed the convictions by year, from
1999 to the current conviction, stating their status as felonies or misdemeanors and their
punishments. It then said, “I just don’t find that the interest of justice would be served in
doing anything but imposing aggregated term.”
The court stated its tentative order would be to impose the upper term of three
years, doubled pursuant to the strike, for a term of six years in state prison, and the parties
submitted. The court said that its tentative would become the order and that it chose the
aggravated term “based upon the alleged aggravating circumstances, together with the
review of the very more than sketchy past that the defendant has exhibited since 1999 to
the present, his performance on probation or parole, together with his numerous
convictions on both felonies and misdemeanors.”
4 The court never advised defendant of which specific aggravating factors he was
admitting.
4
DISCUSSION
Defendant Did Not Validly Waive His Right to a Jury Trial on the Aggravating Factors
Defendant contends the trial court erred in sentencing him to the upper term since
it relied on aggravating factors that it determined on its own, without offering him a jury
trial on the allegations; thus, the aggravating factors were not properly found true by a
judge or jury. He argues that the failure to afford him a jury trial on the aggravating
factors was prejudicial error, and that it was error for the court to rely on the probation
report in imposing the factors, since the report is not a certified record of conviction.
(§ 1170, subd. (b)(3).) The People argue that defendant waived his right to a jury trial on
the aggravating factors when he “stipulated to the contents of the probation officer’s
report, which included the observation that his criminal conduct was of increasing
seriousness, to prove aggravating factors.” The People conclude the court’s reliance on
the probation report was proper, and the court was entitled to find that defendant’s prior
convictions were numerous and his prior performance on parole was unsatisfactory;
further, any error was harmless beyond a reasonable doubt. We respectfully disagree
with the People and remand for resentencing.
A. Relevant Law
Section 1170, subdivision (b)(1) provides that “[w]hen a judgment of
imprisonment is to be imposed and the statute specifies three possible terms, the court
shall, in its sound discretion, order imposition of a sentence not to exceed the middle
term, except as otherwise provided in paragraph (2).” Section 1170, subdivision (b)(2)
provides that “the trial court may impose a sentence exceeding the middle term only
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when circumstances in aggravation of the crime justify imposition of an upper term
sentence, and ‘the facts underlying those circumstances have been stipulated to by the
defendant or have been found true beyond a reasonable doubt’ at a jury or court trial.”
(People v. Wiley (2025) 17 Cal.5th 1069, 1078 (Wiley); see also People v. Lynch (2024)
16 Cal.5th 730, 759-760 (Lynch); § 1170, subd. (b)(2).) Rule 4.421 of the California
Rules of Court (rule 4.421) provides a list of aggravating circumstances that must be
“stipulated to by the defendant” or determined “beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) Notwithstanding section
1170, subdivisions (b)(1) and (2), “the court ‘may consider the defendant’s prior
convictions in determining sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.’” (Lynch, supra, 16 Cal.5th at p. 748; see also
§ 1170, subd. (b)(3).)
These provisions are subject to constitutional limitations under the Sixth
Amendment. Specifically, “a defendant is entitled to a jury trial on all aggravating facts,
other than the bare fact of a prior conviction and its elements, that expose the defendant
to imposition of a sentence more serious than the statutorily provided midterm.” (Wiley,
supra, 17 Cal.5th at p. 1086, fn. omitted.) For example, the Wiley court held that the
defendant was “entitled to have a jury determine whether his prior convictions were of
increasing seriousness and whether he had performed unsatisfactorily on
probation, before the court could rely on those aggravating facts to find justification for
an upper term sentence.” (Id. at p. 1085.) Under the Fifth and Sixth Amendments to the
federal Constitution, “a judge may ‘do no more … than determine what crime, with what
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elements, the defendant was convicted of.’” (Erlinger v. United States (2024) 602 U.S.
821, 838; see also Wiley, supra, 17 Cal.5th at p. 1076.) “The burden is on the People to
prove beyond a reasonable doubt the facts relied on to justify an upper term sentence. If
those facts are properly proven, the court may take them into account and exercise its
discretion under section 1170(b) to determine what sentence to impose.” (Id., at p. 1086.)
B. Defendant’s Waiver Was Not Knowing or Intelligent
The court here imposed the upper term “based upon the alleged aggravating
circumstances, together with the review of the very more than sketchy past that the
defendant has exhibited since 1999 to the present, his performance on probation or
parole, together with his numerous convictions on both felonies and misdemeanors.”
(Italics added.)
First, as we previously observed, there were no aggravating circumstances alleged,
either in the amended information or in the probation officer’s report. Specifically, the
record shows the prosecution did not allege any aggravating factors in the amended
information.5 The probation officer accordingly stated in his report that “[t]here were no
alleged circumstances in aggravation,” and then himself stated “[t]here are no factors”
5 We note our concern with defendant’s admission of unpled and unspecified
aggravating factors which increase the sentencing range above the presumptive middle-
term maximum. (See § 1170 subds. (b)(1), (2).) In People v. Lara (2012) 54 Cal.4th 896
(Lara), our Supreme Court discussed its longstanding concern that a “jury’s verdict [or
plea] must authorize the sentence.” (Id. at p. 904.) The Lara court referenced People v.
Ford (1964) 60 Cal.2d 772, 794 for the broad proposition that findings, including but not
necessarily limited to, enhancements that increase the range of sentencing should be pled
and proven. (Id. at pp. 904-905.)
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under California Rules of Court, rule 4.421(a), (b), and (c). The probation officer thus
recommended the middle term.
Second, the court relied on the aggravating factors that defendant’s “prior
convictions are numerous” (rule 4.421(b)(2)) and that his “prior performance on
probation, … or parole was unsatisfactory” (rule 4.421 (b)(5)), in imposing the upper
term. However, the court’s true findings constitute qualitative decisions that go beyond
the bare fact of the existence of the prior convictions and, absent a waiver, he was entitled
to a jury trial on them. (Wiley, supra, 17 Cal.5th at p. 1086 [“a defendant is entitled to a
jury trial on all aggravating facts, other than the bare fact of a prior conviction and its
elements, that expose the defendant to imposition of a sentence more serious than the
statutorily provided midterm”]; Lynch, supra, 16 Cal.5th at p. 759 [“An upper term
sentence may be imposed ‘only’ when circumstances in aggravation ‘justify’ that term,
and ‘only’ when the facts underlying ‘those’ justifying circumstances have been
stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court
trial”].)
The People argue the court explained to defendant that he had a right to a jury trial
on his prior strike conviction and aggravating factors, and defendant “explicitly” waived
his jury trial right when “he chose to admit the truth of the allegations and stipulated to
the contents of the probation officer’s report.” Defendant contends he did not stipulate
that the aggravating factors were true, but merely agreed the court could use the
probation report’s list of prior offenses to determine the factual issues (i.e., whether his
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prior crimes were increasing in severity or were numerous and that he did not perform
well on probation). We agree with defendant.
A defendant may waive his right to a jury trial on the aggravating factors,
provided he does so personally and expressly. (See People v. Collins (2001) 26 Cal.4th
297, 308 (Collins).) “To be valid, the record must show the defendant’s waivers of the
right to a jury are knowing, intelligent, and voluntary. [Citation.] In making such a
determination, we examine ‘the totality of the circumstances’ unique to each case.”
(People v. Morelos (2022) 13 Cal.5th 722, 753 (Morelos); see also People v.
Sivongxxay (2017) 3 Cal.5th 151, 166; People v. Daniels (2017) 3 Cal.5th 961, 990
(Daniels).)
The record here shows the court informed defendant of his right to a jury trial
“[w]ith respect to whether or not [he] suffered a previous strike allegation or whether or
not [he] suffered aggravating factors.” Defendant confirmed he understood his rights.
However, the court then stated: “Now, sir, after having those rights in mind, as to the
strike allegation and the aggravating factors allegation, did you wish to waive, that[]
means give up that right and … admit that your criminal record as set forth in the
probation officer’s report can be considered by the Court as aggravating factors. Do you
admit that?” Defendant said, “Yes.”
Although defendant agreed the court could consider his criminal record as set forth
in the probation officer’s report “as aggravating factors,” he was never told the nature of
those factors. As previously noted, the prosecution did not allege any aggravating
circumstances, and the probation officer’s report stated definitively that there were no
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aggravating factors. Further, at that point, the court had not specified the aggravating
factors it would be relying on in imposing the upper term.6
Without a clear explanation that defendant was entitled to have a jury decide the
truth of the specific aggravating factors that the court intended to use against him, or even
notice of those aggravating factors, it cannot be said that he knowingly or intelligently
waived his right to have a jury decide the truth of those specific aggravating factors, of
which he was never made aware. Considering the totality of the circumstances, we
conclude the record does not affirmatively show that defendant’s waiver was knowing,
intelligent, and voluntary. (Daniels, supra, 3 Cal.5th at p. 991 [“a reviewing court
satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it
was knowing and intelligent”]; Morelos, supra, 13 Cal.5th at p. 753.)
We note the People’s claim that the court was not required to obtain a certified
record of conviction because defendant stipulated to the probation report to prove his
aggravating factors. The People cite section 1170, subdivision (b)(3), which authorizes
the trial court to “consider the defendant’s prior convictions in determining sentencing
6 The only aggravating factor the court had mentioned to defendant was that his
crimes were of increasing seriousness. However, the court did not ultimately rely on the
increasing seriousness of his crimes to impose the upper term; rather, it relied on his
“numerous convictions on both felonies and misdemeanors” and his performance on
parole.
In any event, the determination that a defendant’s prior convictions are of
increasing seriousness “requires a comparison and evaluation of the relationship among a
defendant’s prior convictions, and a determination as to their relative seriousness.”
(Wiley, supra, 17 Cal.5th at p. 1082.) The record here contains no such evaluation, and
the evidence could rationally lead to a finding that defendant’s convictions were not of
increasing seriousness, since he was convicted of several felonies beginning in 1999, and
was subsequently convicted of misdemeanors in 2004 and 2015.
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based on a certified record of conviction without submitting the prior convictions to a
jury.” (§ 1170, subd. (b)(3).) However, in Wiley, the Supreme Court explained that
pursuant to section 1170, subdivision (b)(3)’s prior conviction exception, “a defendant is
entitled to a jury trial on all aggravating facts, other than the bare fact of a prior
conviction and its elements, that expose the defendant to imposition of a sentence more
serious than the statutorily provided midterm.” (Wiley, supra, 17 Cal.5th at p. 1086,
italics added.)
C. The Error Was Not Harmless
Because defendant was deprived of a jury trial on the aggravating facts used to
justify imposition of the upper term sentence, and there was no knowing or intelligent
waiver, we must now determine whether he was prejudiced by that error under
the Chapman standard. (Wiley, supra, 17 Cal.5th at p. 1087; Chapman v. California
(1967) 386 U.S. 18.) Under Chapman, a sentence must be reversed “‘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.’” (Wiley, at p. 1087, italics added.) “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.” (Ibid.)
The probation report here shows that defendant had 16 convictions (14 felonies
and two misdemeanors). The People argue that his convictions demonstrate “a
significant increase in dangerousness and seriousness,” while defendant argues his first
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offense was his most serious, and he was subsequently convicted “only of less serious
offenses with lower sentences.” Although the parties make these arguments, we again
observe the court did not base the upper term on the increasing seriousness of defendant’s
prior convictions; rather, it cited “his numerous convictions on both felonies and
misdemeanors.”
Even if we assume for the sake of argument that the evidence proved defendant’s
convictions were numerous, we conclude the failure to conduct a jury trial on the second
aggravating factor—unsatisfactory performance on probation or parole (rule
4.421(b)(5))—was prejudicial. Under current case law, this aggravating factor “may be
proved ‘by evidence demonstrating that, while previously on probation or parole, [the
defendant] committed and was convicted of new offenses.’ [Citation.] Alternatively,
proof may be ‘based upon other evidence of misconduct that was not previously
adjudicated in a criminal trial’ such as evidence that the defendant ‘did not appear for
appointments, failed a drug test, or stopped attending counseling sessions as directed.’”
(Wiley, supra, 17 Cal.5th at p. 1083.) The only evidence submitted here was the
probation report, which merely indicated that defendant “[a]dmit[ted] violation of parole”
in 2002 and 2005. There was no discussion of his performance on probation or parole.
The probation officer apparently did not consider the two admissions of parole violation
to be significant, as he stated “there [were] no aggravating factors” under rule 4.421 that
affected the sentence. Accordingly, the probation officer recommended that defendant be
denied probation and sentenced to the middle term.
12
The People claim defendant’s two parole violations “demonstrate[ed] his prior
performance on parole was unsatisfactory.” However, the probation officer’s assessment
shows “the record is also open to a different interpretation.” (Wiley, supra, 17 Cal.5th at
p. 1091.) Given the assessment that there were no aggravating factors affecting
defendant’s sentence, “we cannot discount the possibility that either counsel in a
contested jury trial might have presented live testimony on this factor that would have
affected the jury’s determination … [or] … the possibility that a rational jury could have
disagreed as to whether the People had proved that [defendant’s] overall performance on
probation [or parole] was unsatisfactory.” (Ibid.) Accordingly, we cannot conclude that
the deprivation of a jury trial was harmless beyond a reasonable doubt. (Ibid.)
Since we cannot conclude the lack of a jury trial was harmless beyond a
reasonable doubt as to every aggravating fact the trial court used to justify the upper term
sentence, defendant is entitled to a reversal and remand for resentencing. (Lynch, supra,
16 Cal.5th at p. 775.)
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DISPOSITION
The sentence is vacated, and the matter is remanded to the trial court for a
resentencing hearing in accordance with section 1170, subdivision (b). In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
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