People v. Villanueva

Decision Date14 September 2011
Docket NumberB227268.,Nos. B222580,s. B222580
Citation196 Cal.App.4th 411,2011 Daily Journal D.A.R. 8361,126 Cal.Rptr.3d 244,11 Cal. Daily Op. Serv. 7094
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Roberto VILLANUEVA, Defendant and Appellant. In re Roberto Villanueva, Petitioner, on Habeas Corpus.


Jean Ballantine, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant and appellant Roberto Villanueva was charged with attempted murder and mayhem; various firearm enhancements were alleged. Defendant was convicted of attempted murder and mayhem, but the jury hung on the truth of the two most serious firearm enhancements. A mistrial was declared with respect to the enhancements on which the jury hung. Defendant was sentenced to prison for the attempted murder. The firearm enhancements were not dismissed. Defendant filed an immediate notice of appeal from the judgment of conviction. We reversed defendant's conviction due to the trial court's failure to instruct the jury on the lesser offense of attempted voluntary manslaughter.

After the remittitur issued, defendant was retried. At the second trial, the prosecution pursued the firearm enhancements on which a mistrial had been declared. The second jury found defendant not guilty of attempted murder but guilty of attempted voluntary manslaughter and mayhem. Additionally, the jury found the firearm enhancements to be true. At sentencing, because of the true findings on the firearm enhancements, defendant received a greater aggregate sentence than he had received at his first trial (even though he was convicted of a lesser offense).

Defendant appeals and pursues a petition for writ of habeas corpus, arguing the impropriety of his increased sentence and the prosecution's pursuit of the previously mistried firearm enhancements at the second trial. Although defendant argues that several theories apply to invalidate his sentence, each theory is based on the premise that the prosecution's failure to immediately retry the firearm enhancements while his appeal was pending was, in fact or effect, a prosecutorial decision to decline further prosecution on these allegations. We conclude that it was not. We modify defendant's sentence to correct a conceded error and otherwise affirm.


The facts leading to defendant's prosecution are largely irrelevant to the disposition of the appeal. Defendant shot the victim in the face, some hours after a previous altercation with the victim. There was evidence that defendant had not intended to come across the victim after the earlier altercation, and that he aimed his firearm at the victim only because he believed the victim was going to run him over with his car. Although defendant testified that the gun fired accidentally, the jury could reject this testimony and conclude that defendant intentionally shot the victim under an honest, but unreasonable, belief that deadly force was necessary to protect his life. The victim survived the shooting, but suffered permanent partial paralysis of his face, and lost his hearing in one ear.

Defendant was charged by amended information with attempted murder (Pen.Code, §§ 664, 187) and mayhem (Pen.Code, § 203). With respect to both charges, it was further alleged that defendant personally used a firearm (Pen.Code, § 12022.53, subd. (b)); intentionally and personally discharged a firearm (Pen.Code, § 12022.53, subd. (c)); intentionally and personally discharged a firearm causing great bodily injury (Pen.Code, § 12022.53, subd. (d)); personally inflicted great bodily injury (Pen.Code, § 12022.7, subd. (a)); and personally inflicted great bodily injury which caused the victim to suffer paralysis of a permanent nature (Pen.Code, § 12022.7, subd. (b)).

The case proceeded to jury trial. The jury returned verdicts finding defendant guilty of attempted murder and mayhem. The allegations that defendant personally used a firearm and personally inflicted great bodily injury were found true. However, the jury was unable to reach a verdict on whether the defendant personally and intentionally discharged a firearm, or personally and intentionally discharged a firearm causing great bodily injury.1 The trial court declared a mistrial on the two enhancement allegations on which the jury had failed to reach verdicts (hereafter, the “mistried firearm enhancement allegations”). The court indicated that the parties “can decide down the road what they want to do with” the mistried firearm enhancement allegations.

Defendant was sentenced to 20 years in prison, calculated as the 7–year midterm for attempted murder, plus 10 years for the personal use of a firearm, plus 3 years for the infliction of great bodily injury. The sentence on mayhem was stayed under Penal Code section 654. At the sentencing hearing, the prosecutor argued for a high-term sentence of 22 years, but stated that “a 20–year state prison sentence is something that the People can live with.” 2 Neither the prosecution nor the defense moved to dismiss the mistried firearm enhancement allegations. Nor did defendant offer to waive time for sentencing to permit an immediate retrial of the mistried firearm enhancement allegations. At the close of the sentencing hearing, on September 12, 2007, defendant filed a notice of appeal.

On appeal, in an opinion issued December 12, 2008, we reversed the judgment, on the basis that the trial court should have instructed the jury on, among other things, the lesser included offense of attempted voluntary manslaughter on a theory of imperfect self-defense. ( People v. Villanueva (2008) 169 Cal.App.4th 41, 86 Cal.Rptr.3d 534.) The remittitur issued on February 19, 2009, and was received by the trial court on March 4, 2009.

Defendant was rearraigned on the initial information, entered a plea of not guilty, and denied the special allegations.3 Under Penal Code section 1382, a felony defendant whose conviction has been reversed on appeal has a right to be brought to trial within 60 days after the filing of the remittitur in the trial court. The 60th day in this case was Monday, May 4, 2009.

On Friday, May 1, 2009, the prosecutor indicated a potential problem. The victim in the case had no telephone; the prosecutor could only contact him through his place of employment, where he works once a week. The prosecutor hoped the victim would make contact prior to the trial date of May 4, but believed it likely that he would not. At this point, the prosecutor also indicated for the record that defendant had been offered, and rejected, a plea bargain for a 16–year sentence.

On May 4, 2009, the date set for trial, the prosecutor indicated that contact had not, in fact, been made with the victim. As such, the prosecutor could not, in good faith, proceed to trial. The prosecution moved to dismiss the case under Penal Code section 1382, based on its inability to proceed within the 60–day period. The trial court granted the motion.

A single dismissal of a felony prosecution is not a bar to a second prosecution for the same offense. (Pen.Code, § 1387.) The prosecution immediately refiled all charges against defendant.

At no point did defendant indicate a willingness to waive time prior to trial, not even when he was appointed new counsel due to a conflict of interest. 4 Defendant's second jury trial therefore began on July 27, 2009, 60 days from his arraignment on the refiled information.5 The jury found defendant not guilty of attempted murder, but guilty of attempted voluntary manslaughter and mayhem. All sentence enhancement allegations, including the mistried firearm enhancement allegations, were found to be true.6

Defendant filed a motion to strike the previously mistried firearm enhancements on the basis of vindictive prosecution. Defendant acknowledged that the prosecution generally has the authority to retry an enhancement allegation on which the jury initially hung. However, defendant argued the mistried firearm enhancement allegations in this case should have been retried prior to his initial sentencing. He argued that it had been improper to require defendant to be tried on those allegations after his success on appeal, stating, “At the time of his initial sentencing, defendant had a reasonable expectation that the [Penal Code] section 12022.53, [subdivision (c) and] (d) enhancing allegations could no longer affect his sentence, and that his 20–year sentence could only be improved upon by filing an appeal.” 7 The trial court denied the motion.

Defendant was sentenced to the high term of 8 years on the count of mayhem, consecutive to a term of 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement. Sentences on all other enhancements were stayed.8 Defendant filed a timely notice of appeal.


On appeal, defendant makes three challenges to his retrial on, and ultimately increased sentence for, the mistried firearm enhancement allegations. First, defendant contends that the retrial of the mistried firearm enhancement allegations constituted an impermissible vindictive prosecution. Second, defendant contends that it is a violation of his state constitutional due process rights and the privilege against double jeopardy for him to receive an increased aggregate sentence following a successful appeal. Third, defendant contends his speedy trial rights (under Penal Code section 1382, as well as the federal Constitution) were violated by the lengthy passage of time between the declaration of mistrial on the mistried firearm enhancement allegations and the prosecution's initial attempt...

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    ...1, 349 P.3d 103 ; People v. Standish (2006) 38 Cal.4th 858, 882, 43 Cal.Rptr.3d 785, 135 P.3d 32 ; People v. Villanueva (2011) 196 Cal.App.4th 411, 425, 126 Cal.Rptr.3d 244.) That section provides: "(a) Where an offense is a violent felony, as defined in Section 667.5 and the prosecution ha......
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    ...fixed in section 1382 of the Penal Code without defendant's consent entitles the defendant to a dismissal."'" (People v. Villanueva (2011) 196 Cal.App.4th 411, 422 (Villanueva).)Section 1382, subdivision (a)(2), provides, in pertinent part, that the trial court "unless good cause to the con......
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