Filed 8/24/26 P. v. Villareal CA5
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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.
2.
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.
3.
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.
4.
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
5.
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).
6.
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
7.
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
8.
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.
9.
“ ‘ “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).
10.
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,
11.
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
12.
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.
13.