People v. Villa
| Decision Date | 14 July 2020 |
| Docket Number | C089392 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ADAM VILLA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Adam Villa and codefendants Joshua Parrish and Frank Camacho were convicted of attempted murder, attempted robbery, and related firearm crimes. On appeal, defendant argues his conviction for attempted murder must be reversed under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant also argues the trial court erred in imposing certain fines, fees, and assessments without holding a hearing to determine his ability to pay them. We disagree with both contentions. Our review of the record revealed that a portion of defendant's sentence was unauthorized. We will modify the judgment to correct the error but otherwise affirm.
Given defendant's contentions on appeal, we provide only a brief recitation of the facts.1 In February 2015, defendant, Parrish, and Camacho arrived at the victim's home under the pretext of purchasing marijuana. When the victim opened the door, defendant pointed a gun in his face. The victim, who was unarmed, began fighting with defendant over the gun. Meanwhile, the two other men, who also were armed, pushed their way inside. During the melee, the three intruders each shot at the victim a total of five to 10 times. The victim's friend, who was visiting the victim at the time of the incident, testified at trial that he heard defendant say, Defendant, Parrish, and Camacho also beat up the friend. Eventually, the victim chased the three intruders outside and the men left in a waiting vehicle.
The victim suffered gunshot wounds to his legs, abdomen, and bladder. His bladder had to be sewn up, and he was forced to wear a colostomy bag for a year and a half. He also was shot in his buttocks, and other shots grazed his stomach and back. These injuries required the victim to undergo seven or eight separate surgeries.
In December 2017, a jury found defendant guilty of attempted murder and attempted robbery while entering a structure and acting in concert. (Pen. Code, §§ 664/187, subd. (a), 664/211 & 213, subd. (a)(1)(A).)2 As to both counts, the juryfound defendant personally used a firearm and personally discharged a firearm. (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b)-(c).)
In April 2019, the trial court sentenced defendant to state prison for an aggregate term of 28 years, as follows: seven years for the attempted murder conviction, plus 20 years consecutive for the firearm enhancement, and one year consecutive for the attempted robbery conviction, plus six years eight months consecutive for the firearm enhancement, stayed under section 654. It also imposed a $5,000 restitution fine (§ 1202.4, subd. (b)), a corresponding $5,000 parole revocation fine (§ 1202.45), an $80 court operations assessment (§ 1465.8, subd. (a)(1)), and a $60 court facilities assessment (Gov. Code, § 70373).
Defendant argues his conviction for attempted murder based upon a natural and probable consequences theory must be reversed because, under Senate Bill 1437 (2017-2018 Reg Sess.), the Legislature has abrogated the basis for his conviction. His theory is that because his conviction was not final when Senate Bill 1437 became effective, the bill applies retroactively to his conviction based on In re Estrada (1965) 63 Cal.2d 740: "[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.) Defendant contends that given the retroactive application of Senate Bill 1437, the jury was misinstructed on the elements of attempted murder and his conviction must be reversed.
The People do not disagree that Senate Bill 1437 applies retroactively, but argue that defendant's sole avenue of relief is the petition procedure outlined in section 1170.95. They also contend that under the plain text of the statute, section 1170.95 does not apply to attempted murder convictions like defendant's.
Senate Bill 1437 restricted the application of the felony-murder rule and the natural and probable consequences doctrine, as applied to murder, by amending sections 188 and 189.3 (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 276.) And, pertinent here, Senate Bill 1437 added section 1170.95. (Gooden, at pp. 276-277.) At that hearing, the prosecution bears the burden of proving beyond a reasonable doubt thepetitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) If the prosecution does not sustain its burden of proof, then the prior conviction, including any allegation and enhancements, must be vacated and the petitioner resentenced on the remaining charges. (Ibid.) "The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Ibid.)
In People v. Martinez (2019) 31 Cal.App.5th 719 (Martinez), the Court of Appeal concluded that Senate Bill 1437 applies equally to persons whose sentences are final and those whose sentences are not, and that relief under Senate Bill 1437 in either case is not available by direct appeal; instead, the person seeking relief must file a petition in the sentencing court under section 1170.95. (Martinez, at pp. 722-723, 724-727.)
In reaching its conclusion, the court in Martinez relied upon two California Supreme Court cases it found addressed analogous circumstances. (Martinez, supra, 31 Cal.App.5th at p. 725.) In People v. Conley (2016) 63 Cal.4th 646 (Conley), the defendant had been sentenced under the three strikes law to an indeterminate term of 25 years to life and appealed. While his appeal was pending, voters passed the Three Strikes Reform Act of 2012 (Proposition 36); two days later the appellate court issued its decision. The defendant petitioned for rehearing asking the court to remand to the trial court for resentencing. (Conley, at pp. 654-655.) The defendant argued that since his judgment was not yet final, he was entitled to rely on the Estrada rule to be resentenced without complying with Proposition 36's requirement for a petition and an assessment of his risk to public safety. (Conley, at pp. 655-656.)
The Supreme Court rejected the defendant's argument. It held the postconviction procedure of section 1170.126 was the exclusive means of relief for three reasons. First, unlike the statute at issue in Estrada, Proposition 36 was not silent on the issue of retroactivity; it was directly addressed in section 1170.126. (Conley, supra, 63 Cal.4th at p. 657.) Second, resentencing under Proposition 36 was contingent on the court's evaluation of the defendant's dangerousness and an automatic resentencing wouldeliminate that requirement. (Id. at pp. 658-659.) Third, Proposition 36 established a set of disqualifying factors that the prosecution had to plead and prove. Proposition 36 (Id. at pp. 660-661.)
In People v. DeHoyos (2018) 4 Cal.5th 594, the Supreme Court reached a similar conclusion as to the retroactive application of Proposition 47 (The Safe Neighborhoods and Schools Act) to nonfinal cases on direct appeal. "Proposition 47 redefined several common theft- and drug-related felonies as either misdemeanors or felonies, depending on the offender's criminal history" and provided a procedure for petitioning for resentencing similar to that of Proposition 36, including a determination of a defendant's risk of dangerousness. (Id. at pp. 597, 598-599.) Proposition 47 also was not silent on the issue of retroactivity, but contained provisions that drew no distinction between those serving final or nonfinal sentences. (Id. at p. 603.) While Proposition 47 did not create new sentencing factors, other indicia of legislative intent suggested that the resentencing scheme...
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