People v. Villa CA2/6

Filed 6/16/21 P. v. Villa CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B304324
(Super. Ct. No. KA062933)
Plaintiff and Respondent, (Los Angeles County)

v.

ANNA ROSA VILLA,

Defendant and Appellant.

Anna Rosa Villa appeals the trial court’s order denying the
Secretary of the California Department of Corrections and
Rehabilitation’s (CDCR) recommendation that her sentence be
recalled for resentencing pursuant to Penal Code section 1170,
subdivision (d)(1).1 We conclude that the court did not abuse its
discretion by declining to recall Villa’s sentence and affirm.
This appeal concerns the trial court’s exercise of discretion
as well as its due process obligations when it receives a

1 All statutory references are to the Penal Code.
recommendation from the CDCR to recall a defendant’s sentence
and impose resentencing.
FACTUAL AND PROCEDURAL HISTORY
On August 2, 2003, Villa stabbed to death a female
employee at an El Monte bar. When Villa attempted to flee
afterwards, bar patrons detained her until police officers arrived.
Villa and the victim, former coworkers, had argued previously
and the victim continued to bully and verbally abuse Villa. On
one occasion, the victim threw a bottle at Villa and injured her
forehead, requiring 11 stitches to suture. Weary of the abuse,
Villa went to the victim’s workplace to confront her and, in Villa’s
words, “lost control.”
In 2004, a jury convicted Villa of first degree murder and
found that she used a deadly weapon, a knife, during commission
of the crime. (§§ 187, subd. (a), 189, 12022, subd. (b)(1).) The
trial court sentenced her to a prison term of 26 years to life. In
an unpublished opinion, we affirmed. (People v. Villa (Jan. 26,
2006, B177072).)
In 2019, the CDCR recommended that the trial court recall
Villa’s sentence and resentence her.2 The CDCR provided the
court with a detailed case summary and evaluation, reciting
Villa’s model inmate behavior and lengthy achievements during

2 The CDCR sent the recommendation to the Honorable
Philip S. Gutierrez, the trial judge who presided over Villa’s trial
and imposed sentence in 2004. Judge Gutierrez was nominated
and confirmed as a judge of the U.S. District Court for the
Central District of California in 2007.
(https://www.fjc.gov/history/judges/gutierrez-philip-s.)
Consequently, a different judge of the Los Angeles Superior Court
considered and ruled upon Villa’s section 1170, subdivision (d)(1)
recommendation.

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her 15 years of incarceration. The evaluation noted her lack of
criminal history, other than the present offense, and stated that
she had a large support system of friends and family in the local
community. Specifically, the evaluation detailed her
participation in Alcoholics Anonymous, Narcotics Anonymous,
Alternatives to Violence Project, and Conflict Resolution. The
evaluation also praised Villa’s aptitude for math and electronics,
her ability to focus and persevere, and interest in her
rehabilitation. During her incarceration, Villa had only one
serious rules violation. The CDCR provided a copy of the
recommendation to the Los Angeles County Public Defender and
the Los Angeles District Attorney. The recommendation also
noted that Villa had a parole consultation hearing for November
12, 2021.
On August 27, 2019, in an ex parte hearing, the trial court
considered and denied the recommendation. The court stated
that it had read and considered the CDCR evaluation, including
the recitation of Villa’s self-improvement and vocational efforts.
In addition, the court reviewed Villa’s court file and saw that her
crime was a premeditated and revengeful act intending to seek
revenge for an altercation that occurred several weeks previously.
The court concluded that Villa was a violent threat to the
community, but encouraged her to continue her path of self-
improvement.
Villa appeals and contends that the trial court abused its
discretion by not recalling her sentence and imposing a different
one. She asserts that the court did not consider fully her post-
conviction record, ameliorative changes in the sentencing laws,
the need to reduce prison overcrowding, the COVID-19 pandemic,
the best interests of justice, and the spirit of section 1170,

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subdivision (d)(1). Villa asserts that, at a minimum, the court
should have struck her one-year weapon use enhancement.
(§ 1385, subd. (c)(1).) She also challenges the nature of the
court’s deliberation in her absence, and the lack of a court-
appointed attorney.
DISCUSSION3
Section 1170, subdivision (d)(1) authorizes the Secretary of
the CDCR to recommend to the trial court that it recall a
sentence and resentence the defendant for any lawful reason.
The goal of the resentencing is to eliminate disparity of sentences
and to promote uniformity of sentencing. (Ibid.) Section 1170,
subdivision (d)(1) authorizes the court, “within 120 days of the
date of commitment on its own motion, or at any time upon the
recommendation of the secretary or the Board of Parole Hearings
in the case of state prison inmates, . . . [to] recall the sentence
and commitment previously ordered and resentence the
defendant in the same manner as if they had not previously been
sentenced, provided the new sentence, if any, is no greater than
the initial sentence.”
The CDCR can only recommend to the trial court that it
recall and resentence the defendant. The court retains the
authority to accept or decline the recommendation. The statute
is clearly permissive, not mandatory; it uses the verb “may,” not
“shall.” (People v. Frazier (2020) 55 Cal.App.5th 858, 866; People

3This is all for naught. This opinion discusses the issue as
presented by the parties. Neither mentions the legal
impossibility of changing the sentence for murder without first
changing the verdict returned by the jury. A verdict of first
degree murder as charged in this case carries with it but one
sentence: 25 years to life. (§ 190, subd. (a).) See masterful
concurring opinion.

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v. Humphrey (2020) 44 Cal.App.5th 371, 378.) Although the
CDCR’s recommendation vests the court with authority to recall
the defendant’s sentence, the recommendation “is but an
invitation to the court to exercise its equitable jurisdiction.”
(Frazier, at p. 866.) The recommendation does not trigger a due
process right to a hearing or to the recommended relief. (Ibid.)
In deciding whether to recall a sentence pursuant to section
1170, subdivision (d)(1), the trial court may exercise its authority
for any reason rationally related to lawful sentencing. (People v.
Loper (2015) 60 Cal.4th 1155, 1166.) The statute expressly
authorizes the court in resentencing to consider post-conviction
factors, including the inmate’s disciplinary record and record of
rehabilitation while incarcerated, evidence whether age, time
served, and diminished physical condition have reduced the
inmate’s risk for violence, and any evidence reflecting a change of
circumstances so that continued incarceration is no longer in the
interest of justice. (People v. McCallum (2020) 55 Cal.App.5th
202, 210.)
Section 1170, subdivision (d)(1) contains a two-step process.
In the first step, the trial court decides whether to recall the
sentence. If not, the inquiry is ended. If the court decides to
recall the sentence, however, the inquiry moves onto the second
step and the court holds a resentencing hearing. “[S]ection
1170(d) permits the sentencing court to recall a sentence for any
reason which could influence sentencing generally, even if the
reason arose after the original commitment.” (Dix v. Superior
Court (1991) 53 Cal.3d 442, 463.) We review the court’s decision
for declining to follow the CDCR’s recommendation for an abuse
of discretion. (People v. Frazier, supra, 55 Cal.App.5th 858, 863;
People v. McCallum, supra, 55 Cal.App.5th 202, 211 [the abuse of

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discretion standard involves “abundant deference” to the court’s
ruling].)
The trial court did not abuse its discretion when it declined
to recall Villa’s sentence and resentence her. The trial judge
stated that he had reviewed the CDCR evaluation packet as well
as the court’s file. The judge also acknowledged that Villa had
taken academic and vocational classes and was endeavoring to
improve herself. The ultimate decision to recall sentence rested
with the court, not the CDCR. Here the court expressly
considered Villa’s positive post-conviction behavior, but
reasonably concluded that the circumstances of her crime
outweighed her good behavior. That Villa disagrees with the
court’s consideration and balancing of the various factors does not
mean the court’s decision is unreasonable. Reasonable minds
could differ whether to grant or deny the request, reflecting that
it was a discretionary judgment, not an error of law. The court
reasonably drew inferences from the circumstances of Villa’s
crime and weighed her post-conviction efforts differently.
Moreover, we agree with precedent that Villa has no due
process right to a hearing or appointment of counsel regarding
the first step of a recall request pursuant to section 1170,
subdivision (d)(1). (People v. McCallum, supra, 55 Cal.App.5th
202, 211-215; People v. Frazier, supra, 55 Cal.App.5th 858, 865-
868.) Although these rights may apply if the trial court
determined that Villa was eligible for resentencing, they do not
apply where the court is merely deciding whether to recall
sentence in the first instance. (Frazier, at p. 869 [“[T]he filing of
the Secretary’s recommendation letter inviting the court to
exercise its jurisdiction pursuant to section 1170, subdivision
(d)(1), to recall a sentence, without more, does not trigger a due

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process right to counsel”].) Moreover, as McCallum points out,
“the Legislature was well aware of what language to use to
require the trial court to hold a hearing before acting on a
recommendation or petition to recall a sentence.” (Id. at p. 212;
id. at p. 217 [section 1170, subdivision (e) requires the trial court
to hold a hearing upon receipt of a CDCR recommendation to
recall a sentence based upon compassionate release].)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.

GILBERT, P. J.
We concur:

PERREN, J.

TANGEMAN, J.

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PERREN, J.
I concur.
The opinion of the majority is wisely limited to the trial
court’s exercise of its discretion in appellant's resentencing.
Neither party discusses the authority for such resentencing. I
add my comments only to underscore the point for future
consideration by the Department of Corrections and
Rehabilitation.
In 2004 appellant was sentenced for first degree murder.
The only sentence the trial court could impose was,
“imprisonment in the state prison for a term of 25 years to life.”
(Pen. Code, § 190, subd. (a).1) It did so.
In 2019 the Secretary to the Department of Corrections and
Rehabilitation sent a letter to the sentencing judge purporting “to
provide the court with the authority to resentence [appellant],”
and to recall the earlier sentence. The letter concluded with the
Secretary’s recommendation that “the inmate’s sentence be
recalled and that she be resentenced.” I must ask, “To what?”
The indeterminate term was the only choice, the only option.
(Dix v. Superior Court (1991) 53 Cal.3d 442, 457-459.) 2
To achieve the result suggested by the Secretary would
require changing the verdict before resentencing. Such a result is

1 All statutory references are to the Penal Code.

2 Yes, appellant also received an additional determinate
term of one year for the use of a knife. (§ 12022, subd. (d).) The
trial court could have stricken the enhancement thereby reducing
the sentence to 25 years to life from 26 years to life. The issue
sub judice is modification of the indeterminate sentence, not the
verdict. (People v Espinosa (2014) 229 Cal.App.4th 1487, 1498-
1500.)

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not contemplated under section 1170, subdivision (d)(1). Section
1170, subdivision (d) is part of the “Determinate Sentencing Act.”
Appellant was sentenced to an indeterminate term to which the
rules applicable to determinate sentencing do not apply. (Dix v.
Superior Court, supra, 53 Cal.3d at p. 457.) “By its express
terms, section 1170, subdivision (d), is limited to sentencing and
says nothing about modifying the judgment.” (People v Nelms
(2008) 165 Cal.App.4th 1465, 1472; see People v. Espinoza (229
Cal.App.4th 1487, 1498; Cal. Criminal Law: Procedure and
Practice (Cont.Ed.Bar 2021) § 35.10, p. 1023 (Pronouncing
Judgment).)3
I do not by my comments mean to diminish appellant’s
exemplary performance in prison as recounted my colleagues.
Her remedy, however, is parole.
NOT TO BE PUBLISHED.

PERREN, J.

3 The clarity of this distinction becomes a bit murky by
references to indeterminate sentencing in subdivision (d)(2) of
section 1170 pertaining to indeterminate sentences imposed on
juveniles, and medical incapacitation pursuant to subdivision
(e)(2) of section 1170. (See also Cal. Code Regs., tit. 15, § 3076.)

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 Salvatore T. Sirna, Judge

Superior Court County of Los Angeles

______________________________

Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.