Filed 1/26/22 P. v. Villeda CA2/3
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B302413
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA111443-01
v.
ALLAN VILLEDA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Tammy Chung Ryu, Judge. Reversed
and remanded.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Steven D. Matthews
and Analee J. Brodie, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________________
A jury convicted Allan Villeda of four counts of robbery
committed against four victims in 2009 and 2010. The jury
found Villeda personally used a firearm in the robberies and
committed the crimes for his gang. The trial court sentenced
Villeda to 38 years in the state prison. In 2012 a different panel
of this court affirmed Villeda’s conviction. (People v. Villeda
(Sept. 27, 2012, B230494) [nonpub. opn.] (Villeda I).)
In February 2019 the Secretary of the California
Department of Corrections and Rehabilitation (CDCR) sent
the trial court a letter recommending it recall Villeda’s sentence
and resentence him under Penal Code section 1170, subdivision
(d)(1) (section 1170(d)(1)).1 The Secretary noted the court now
has the discretion to strike firearm enhancements. The trial
court declined to follow the Secretary’s recommendation. Villeda
appealed and, on August 18, 2021, we issued an opinion affirming
the trial court’s order.
Villeda then petitioned for review. On November 17, 2021,
the California Supreme Court granted review and transferred
the matter to us with directions to vacate our decision and to
reconsider the case in light of the amendments to the Penal Code
accomplished by Assembly Bill No. 1540 (2021-2022 Reg. Sess.)
(Assembly Bill 1540) (Stats. 2021, ch. 719, §§ 1-7).2 Both Villeda
and the Attorney General filed supplemental letter briefs. (See
Cal. Rules of Court, rule 8.200(b).) The parties agree that—in
1 References to statutes are to the Penal Code.
2 The court noted, “This case does not raise the issue
presented in People v. Federico [(2020) 50 Cal.App.5th 318],
review granted August 26, 2020, S263082, because petitioner
Allan Villeda’s sentence was not recalled under Penal Code
section 1170, subdivision (d).”
2
light of the new legislation—we should reverse the trial court’s
order denying recall and remand the case for further proceedings
under new section 1170.03. We do so.
FACTS AND PROCEDURAL BACKGROUND
1. Villeda’s crimes, convictions, and sentence
Villeda robbed four victims over a span of about five
months in late 2009 and early 2010.3 In summary, these victims
were:
• Ignacia Melendez. Melendez was going to pick up her
son from school. She went to her car parked in front
of her home. Villeda pulled up in a red Ford Explorer
and called to her. Melendez approached the SUV.
Villeda demanded Melendez give him two gold necklaces
she was wearing. Melendez saw Villeda had a gun in
his lap, pointed at her. She refused and walked toward
her home. Villeda got out and followed her, holding
the gun. He threatened to shoot her if she didn’t stop.
Villeda pulled the chains from Melendez’s neck and
drove away.
• Ever Pineda. Pineda was washing a truck, accompanied
by his wife and two children. As Pineda was bending
down to clean the tires, Villeda approached and yanked
a gold chain from his neck. Pineda turned to find
Villeda pointing a gun at him. Villeda demanded money
and Pineda gave him about $85. Villeda removed
3 We take the facts from our opinion in Villeda I, of which
we take judicial notice. (Evid. Code, §§ 452, subd. (d), 459.)
Villeda also relies on, and quotes from, our opinion in his
statement of facts on appeal. The Attorney General asks us
to take judicial notice of our “file from appellant’s prior appeal”
as well.
3
Pineda’s wallet from his pocket and looked at his
driver’s license, saying, “ ‘Just in case you talk to
the police.’ ”
• Oscar Hernandez and Julio Nunez. Hernandez and
Nunez were rebuilding a wall. As they began to clean
up, a red SUV pulled up and Villeda’s fellow gang
member Luis Alonso Escatel got out and approached
Nunez. Villeda also got out of the SUV, approached
Hernandez, grabbed his neck in a headlock, and told
him, “ ‘Walk.’ ” Hernandez felt a hard object pushed
against his back. Villeda or Escatel, or both of them,
took cash and a cell phone from Hernandez’s pockets,
and Villeda tore a gold chain from his neck. Villeda also
went through Nunez’s pockets and took his cell phone.
(Villeda I.)
Both Villeda and Escatel were members of the Alondra 13
gang. Both had gang tattoos. Villeda’s monikers were “Evil,”
“Demon,” and “Chuckie.” Villeda was the senior member of the
gang and was active in recruiting members. (Villeda I.)
The jury convicted Villeda of the second degree robberies
of Melendez, Pineda, Hernandez, and Nunez. The jury found
true allegations that Villeda personally used a firearm in the
commission of each robbery and that he committed the crimes
for the benefit of, at the direction of, or in association with a
criminal street gang. As noted, the trial court sentenced Villeda
to 38 years in the state prison. The court chose the upper term
of five years on the Melendez robbery plus ten years for the
gun use plus ten years for the gang enhancement. On each
of the remaining three counts, the court imposed one-third
the midterm of one year plus three years and four months
for the gun. The court imposed but stayed concurrent terms
4
of ten years each for the gang enhancement on those counts.
(Villeda I.)
2. The Department of Corrections and Rehabilitation’s
letter of recommendation and the trial court’s ruling
On February 25, 2019, the Los Angeles Superior Court
received a letter dated February 11, 2019 from the Office of the
Secretary of the CDCR.4 The Secretary recommended “a recall
of sentence and resentence” of Villeda under former section
1170(d)(1). The Secretary stated, “[P]lease consider the
amendment to [Penal Code] Section 12022.53, subdivision (h),
which became effective January 1, 2018.” As the Secretary
noted, that amendment gave courts discretion to strike or
dismiss a personal use firearm enhancement at sentencing
(or resentencing) in the interest of justice.5
The Secretary enclosed a Cumulative Case Summary and
Evaluation Report, “present[ing] case factors that are applicable”
to the recommendation. The report noted Villeda has “an active
Immigration and Customs Enforcement (ICE) detainer . . . for
Illegal Entry.” Under “Institutional Adjustment” the Secretary
stated, “Villeda is identified as an active member of the
4 At the time, the Secretary was Ralph M. Diaz.
( [as of Jan. 25, 2022], archived at .)
5 Before 2018, the firearm enhancements contained in
section 12022.53—the basis for 20 years of Villeda’s 38-year
sentence—were mandatory. Effective January 1, 2018, the
Legislature gave trial judges discretion to strike or dismiss the
enhancements “ ‘in the interest of justice’ ” under section 1385.
(People v. Flores (2021) 63 Cal.App.5th 368, 375-376.)
5
Varrio Alondra 13 Sureno disruptive Security Threat Group.”
He received a “serious Rules Violation Report” in 2012
“for Possession of a Weapon and was subsequently found guilty
of the charges.” Villeda had “no pending disciplinary actions”
and had “not received any Custodial Counseling Chronos.” He
is housed in the general population at Ironwood State Prison.
He works as a kitchen cook. His work performance was
satisfactory for a three-month period in 2016. In 2012 and
2013 he participated in group hunger strikes at another prison.
In 2018 he received a report noting satisfactory progress “while
assigned to Adult Basic Education III.”
Under “Self-Help Activities,” the Secretary noted Villeda
completed his GED in December 2018 and received certificates
for completing two programs, the “Kairos Inside Weekend
Program” and the “Circle Keeper in the Prison of Peace.”
He “has participated in Alcoholics Anonymous.”6
On March 28, 2019, the trial court issued a minute order
declining to recall Villeda’s sentence. The order states,
“Defendant is not present in court, and not represented by
counsel.” The court described the facts of Villeda’s crimes and
noted the role his firearm played in the robberies: “[Villeda]
6 It is unclear whether Villeda received a copy of the
Secretary’s letter to the court. The letter shows copies to
the Offices of the District Attorney and the Public Defender,
but the Alternate Public Defender’s Office represented Villeda
at his trial and his January 2011 sentencing. (Cf. People v.
Pillsbury (2021) 69 Cal.App.5th 776, 781-782 [defendant has a
due process right to notice and an opportunity to be heard before
court denies a section 1170(d) recommendation by the Secretary];
new § 1170.03, subd. (b)(1) [if resentencing request is from the
Secretary, “court shall provide notice to the defendant and set
a status conference within 30 days”].)
6
threatened to use the gun on the victims if they didn’t comply
and, in the case of victim Ever Pineda, pointed the gun at
the victim in front of his wife and two children. Defendant’s
actions were brazen and demonstrated extreme callousness.”
After describing Villeda’s role as an “active senior member
of his gang,” the court continued:
“Since defendant’s use of a gun played a
significant role in the robberies, compelling
the victims to give up their property in fear
of their lives, this court finds it proper and
reasonable that the trial court imposed
the gun enhancements in all of the robbery
counts. . . . [F]urther . . . , despite the evidence
of defendant’s significant role in his gang, the
trial court imposed only one gang enhancement
and stayed the gang enhancements on the
other three counts.”
The court concluded, “Therefore, this court finds that it would
not be in the interest of justice to resentence defendant Villeda
as recommended by CDCR.”
DISCUSSION
On appeal, Villeda contends (1) the trial court violated
his due process rights by neither appointing counsel for him
nor holding a hearing, and (2) the court abused its discretion
in declining to recall his sentence. Former section 1170(d)(1)
authorized a trial court, at any time upon the recommendation
of the Secretary, 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.”
Assembly Bill 1540, which took effect January 1, 2022, moved
the recall-and-resentencing provision of section 1170(d)(1) to
7
a new section, 1170.03, and added a number of requirements
to the process. (Stats. 2021, ch. 719, § 3.1.) Among them are
notice and appointment of counsel. (§ 1170.03, subd. (b)(1).)
The new provision also requires a court to hold a hearing before
denying resentencing. (§ 1170.03, subd. (a)(8).)7
The new statute also provides, “There shall be a
presumption favoring recall and resentencing of the defendant,
which may only be overcome if a court finds the defendant is
an unreasonable risk of danger to public safety, as defined in
subdivision (c) of [s]ection 1170.18.” (§ 1170.03, subd. (b)(2).)
Section 1170.18, subdivision (c) defines “ ‘unreasonable risk
of danger to public safety’ ” as “an unreasonable risk that the
petitioner will commit a new violent felony within the meaning of
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
of [s]ection 667,” a so-called super strike. (§ 1170.18, subd. (c).)8
The parties agree we should reverse the trial court’s order
and remand the case. In its findings and declarations, the
Legislature explicitly stated its intent that these resentencing
proceedings “apply ameliorative laws passed by this body that
reduce sentences or provide for judicial discretion, regardless
of the date of the offense or conviction.” (Assem. Bill No. 1540
(2021-2022 Reg. Sess.) § 1(i).) As the Attorney General notes,
7 The new provision also requires the court to state its
reasons on the record for granting or denying relief. (§ 1170.03,
subd. (a)(6).) As we noted, here the court did state reasons
for declining to follow the Secretary’s recommendation.
8 Those felonies include sexually violent offenses, certain sex
crimes against children, certain homicide offenses, solicitation
to commit murder, assault with a machine gun on a peace officer
or firefighter, possession of a weapon of mass destruction, and
any serious or violent offense punishable in California by life
imprisonment or death. (§ 667, subd. (e)(2)(C)(iv).)
8
as “[t]he new version of the statute substantially alters the
framework for recall and resentencing,” “judicial efficiency”
will be served if the trial court considers Villeda’s recall request
under the terms of the new statute.
DISPOSITION
We reverse the superior court’s order declining to recall
Allan Villeda’s sentence and to resentence him. We remand the
matter for the court to appoint counsel for Villeda and to conduct
proceedings in accordance with newly-enacted section 1170.03,
exercising its discretion in light of the presumption the
Legislature has added to the governing statute.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
9