Full Opinion

Filed 11/9/26 P. v. Imperial CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F088707 Plaintiff and Respondent, (Super. Ct. No. BF195816A) v. JUAN LUIS IMPERIAL, SR., OPINION Defendant and Appellant. THE COURT * APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa, Judge. Omer A. Khan, 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, Ivan P. Marrs and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- * Before Detjen, Acting P. J., Harrell, J. and Sandhu, J. Defendant Juan Luis Imperial, Sr., 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 Penal Code 1 section 1170, subdivision (b) and the Sixth Amendment of the federal Constitution. Accordingly, he requests a remand for resentencing. The People concede that remand is warranted on this record. We agree with the parties that remand is warranted. Defendant sought leave to file supplemental briefing, which we granted. In his supplemental brief, defendant contends the double jeopardy clause bars retrial of the aggravating factors on remand. The People contend retrial of the aggravating factors is not barred by the double jeopardy clause. We vacate defendant’s sentence and remand the matter for further proceedings. On remand, the prosecution may elect to retry the aggravating factors. We otherwise affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND 2 On August 15, 2024, the District Attorney of Kern County filed an amended information with three counts of criminal threats (§ 422, subd. (a); counts 1–3). As to each count, it was alleged that defendant suffered a prior strike conviction (§§ 667, subds. (e)–(j), 1170.12, subds. (a)–(e)), and a prior serious felony conviction (§ 667, subd. (a)). It was further alleged: the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); 3 defendant had engaged in violent conduct that indicated a serious danger to society (rule 4.421(b)(1); and defendant had 1 All further statutory references are to the Penal Code. 2 The facts of the underlying offense are not relevant to the issue on appeal. Accordingly, we include only a brief summary of the facts. 3 All further rule references are to the California Rules of Court. 2. served a prior prison term or jail term under section 1170, subdivision (h) (rule 4.421(b)(3)). On August 22, 2024, a jury found defendant guilty on counts 1 and 3. As to count 2, the jury found defendant guilty of the lesser included offense of attempted criminal threats (§§ 664/422, subd. (a)). The trial court held a bifurcated proceeding the same day on the remaining allegations. The court stated it had “previously taken a waiver of jury on those issues.” The court found two of the aggravated factor allegations true: the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (rule 4.421(a)(1)); and defendant had served a prior prison term or jail term under section 1170, subdivision (h) (rule 4.421(b)(3)). The court found the rule 4.421(b)(1) allegation was not proven beyond a reasonable doubt. The court also found the prior conviction allegations true. The trial court held the sentencing hearing on September 20, 2024. As to any mitigating factors, the court stated: “I do find there is a circumstance in mitigation in that [defendant’s] prior performance on one grant of misdemeanor probation was satisfactory.” As to aggravating factors, the trial court stated: “… there were those that were found true at trial and there are those that will be found true by the [c]ourt based on the probation officer’s report as well as evidence received at trial regarding things like criminal history. “So first the crime involved great violence, great bodily harm or in this case quite frankly the threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness under [rule] 4.421(a)(1). We heard evidence that his conduct created such fear in these ladies that they actually had to take remedial measures to help themselves at least feel safe in the circumstances. They were truly afraid that [defendant] was going to inflict great bodily harm on themselves or those folks that were close to them. And given everything I know about this case, I think that was certainly a realistic belief on their part. Second, [defendant] has served a prior prison term. That is however as noted before somewhat aged. Third, [defendant] was on a grant of misdemeanor 3. probation in [c]ase [No.] BM870867A at the time of the offense. I am able to take notice of that pursuant to [rule] 4.421(b)(4). Fourth, [defendant’s] prior performance on deferred entry of judgment misdemeanor probation not mentioned above, … [s]ection 1210.1. Probation and parole has been unsatisfactory in that he violated terms and conditions and re-offended under [rule] 4.421(b)(5). Again, finding that to be true at this time.” The trial court sentenced defendant to an aggregate sentence of 13 years, as follows: the upper term of six years as to count 1, plus a five-year enhancement (§ 667, subd. (a)), consecutive to eight months as to count 2, and consecutive to 16 months as to count 3. Defendant filed a timely notice of appeal. DISCUSSION Defendant contends the trial court erred by imposing the upper term sentence on count 1 because it relied on aggravating factors which were not found in accordance with section 1170, subdivision (b)(2). Specifically, he argues the court improperly found aggravating factors true in the absence of a waiver of his right to a jury trial on those factors. The federal Constitution’s Sixth Amendment provides that a criminal defendant has the right to a trial by an impartial jury. (U.S. Const., 6th Amend.) Similarly, the United States Supreme Court recently held that “[v]irtually ‘any fact’ that ‘ “increase[s] the prescribed range of penalties to which a criminal defendant is exposed” ’ must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).” (Erlinger v. United States (2024) 602 U.S. 821, 834.) Under section 1170, the trial court may impose a sentence exceeding the middle term only if “there are circumstances in aggravation of the crime that justify” the upper term. (§§ 1170, subd. (b)(1)–(2), 1170.1, subd. (d)(1)–(2).) The facts underlying those aggravating circumstances must “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, subd. (b)(2), 1170.1, subd. (d)(2).) Our Supreme Court held that a 4. criminal defendant has the right to a jury trial under section 1170, subdivision (b) on the facts underlying aggravating factors used to justify imposition of an upper term sentence. (People v. Lynch (2024) 16 Cal.5th 730, 757 (Lynch); People v. Wiley (2025) 17 Cal.5th 1069, 1086 (Wiley).) This trial right “is not merely a state law entitlement, but is constitutionally required for all aggravating facts.” (Wiley, at p. 1078.) The Wiley court further noted the “proper procedure” for adjudicating aggravating factors is as follows: “Defendants may assert the right to a jury trial, may waive jury in favor of a court trial, or may waive trial altogether. Subject to the standard rules of evidence both parties may stipulate to the admission of probation reports or other evidence bearing on a defendant’s social and educational history, as well as other information relevant to sentencing, including criminal history. 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[, subdivision] (b) to determine what sentence to impose, keeping in mind the statutory limits on upward departures from the midterm and the requirement for stating its reasons on the record. (§ 1170[, subd.] (b)(2), (5).)” (Wiley, supra, 17 Cal.5th at p. 1086.) “[A] Sixth Amendment violation occurs 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.” (Lynch, supra, 16 Cal.5th at p. 768.) “The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements.” (Ibid.) Here, the trial court found several rule 4.421 factors true, and then relied on those factors in imposing the upper term on count 1. It appears the court believed defendant had previously waived his right to a jury on these factors. However, the record fails to 5. produce such a waiver. Thus, these two factors were found true without a jury’s determination, a waiver, or an admission. (See 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 to a jury trial.”].) We agree with the parties that this was erroneous. Further, we cannot conclude beyond a reasonable doubt that a jury would have found true every aggravating factor relied upon by the trial court. (Lynch, supra, 16 Cal.5th at p. 768.) In Wiley, the court noted that aggravating factors requiring “comparative and qualitative” determinations 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; see Lynch, at p. 775 [“ ‘ “[t]o the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be 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” ’ ”].) The Wiley court further noted the difficulty in concluding a defendant’s prior performance on probation was unsatisfactory (rule 4.421(b)(5)) where, as here, the defendant’s prior performance on probation was both an aggravating factor and a mitigating factor. (Wiley, at p. 1091.) Thus, we agree with the parties that the error was prejudicial. Accordingly, a remand for resentencing is required. Defendant argues in supplemental briefing that double jeopardy principles bar the prosecution from attempting to retry the aggravating factors on remand. Not so. “The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee that a person may not be 6. placed twice ‘in jeopardy’ for the ‘same offense.’ ” (People v. Seel (2004) 34 Cal.4th 535, 541–542.) “ ‘The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense.’ ” (Id. at p. 542.) Double jeopardy protections are generally inapplicable to sentencing proceedings. (See Monge v. California (1998) 524 U.S. 721, 728–729.) The high court reasoned that the determinations at issue in sentencing proceedings do not place a defendant in jeopardy for an offense. (Id. at p. 728.) Further, double jeopardy protections generally do not bar retrial following appellate reversal for reasons other than sufficiency of the evidence. (See People v. Wilson (2023) 14 Cal.5th 839, 855; Seel, at p. 541 [“the Court of Appeal’s finding of evidentiary insufficiency bars retrial of the allegation under the federal jeopardy clause”]; cf. People v. Anderson (2009) 47 Cal.4th 92, 111 [“double jeopardy principles do not bar retrial of an aggravated sentencing allegation if the first trial did not produce an express or implied acquittal on the allegation”].) We conclude double jeopardy protections do not preclude the prosecution from attempting to prove the aggravating factors in accordance with section 1170, subdivision (b) on remand. DISPOSITION The sentence is vacated, and the matter is remanded for resentencing in compliance with section 1170, subdivision (b) and the Sixth Amendment. On remand, the prosecution may elect to retry the aggravated factors. The judgment is otherwise affirmed. 7.