People v. Villareal CA2/2

INTRODUCTION

Defendant Justin Villareal appeals from his convictions, after a jury trial, of two violations of Penal Code1 section 69, subdivision (a) (felony resisting arrest, hereinafter § 69(a); counts 1 & 2), and one violation of section 484, subdivision (a) (misdemeanor petty theft; count 3). He raises two points of error. First, Villareal contends the trial court should have instructed the jury on misdemeanor resisting arrest under section 148, subdivision (a)(1) (hereinafter section 148(a)(1)), which the People concede is a lesser offense included within felony resisting under the circumstances of this case. We agree with the People that such an instruction was unnecessary because the jury’s conviction was necessarily predicated on Villareal’s use of force within the meaning of section 69(a). Second, relying on our Supreme Court’s recent decision in People v. Wiley (2025) 17 Cal.5th 1069 (Wiley), Villareal contends remand is necessary for resentencing because the trial court determined one of the factors in aggravation against Villareal in violation of his constitutional right to a jury and relied on such determination in increasing Villareal’s sentence. We agree. The…