Filed 5/9/22 P. v. Villa CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C089392
Plaintiff and Respondent, (Super. Ct. No. 15F01261)
v. OPINION ON TRANSFER
ADAM VILLA,
Defendant and Appellant.
Defendant Adam Villa and codefendants Joshua Parrish and Frank Camacho were
convicted of attempted murder, attempted robbery, and related firearm crimes. On
appeal, defendant initially argued that 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, defendant
also argued the trial court erred in imposing certain fines, fees, and assessments without
holding a hearing to determine his ability to pay them.
In an unpublished opinion, we modified the judgment to effectuate Penal Code
section 6541 by imposing and staying a full term for the attempted robbery conviction
1 Undesignated statutory references are to the Penal Code.
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and associated firearm enhancement, and affirmed the judgment as modified. (People v.
Villa (July 14, 2020, C089392) [nonpub. opn.].) The Supreme Court granted review and
transferred the matter back to us with directions to vacate our decision and reconsider the
cause in light of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats 2021, ch. 551) (Senate
Bill 775).
In supplemental briefing on transfer of this case, defendant argues his conviction
for attempted murder must be reversed under Senate Bill 775. The People declined to file
a posttransfer brief. We agree with defendant. We will reverse defendant’s conviction
for attempted murder and the associated firearm enhancement, remand the matter to give
the People the opportunity to retry defendant on the attempted murder charge and the
associated firearm enhancement and, if the People decline to do so, instruct the trial court
to conduct a full resentencing on the remaining conviction and enhancement. (See
People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.)
FACTUAL AND PROCEDURAL BACKGROUND
Given defendant’s contentions on appeal, we provide only a brief recitation of the
facts.2 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, “[E]verybody just chill out. We’re here just
2 We previously granted defendant’s request for judicial notice of our unpublished
opinion in codefendant Parrish’s appeal, People v. Parrish (Apr. 25, 2019, C087461). To
facilitate our review in the instant case, we will incorporate by reference the facts and
procedural history from our unpublished opinion in that appeal.
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to take [stuff].” 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.
At trial, the court instructed the jury, in relevant part, as follows:
“A person may be guilty of a crime in two ways.
“One, he or she may have directly committed the crime. I will call that person the
perpetrator.
“Two, he or she may have aided and abetted a person who directly committed the
crime.
“A person is guilty of a crime whether he or she committed it personally or aided
and abetted the perpetrator
“Under some circumstances[,] if the evidence establishes aiding and abetting of
one crime, a person may also be found guilty of other crimes that occurred during the
commission of the first crime.” (CALCRIM No. 400, as given.)
The court next instructed the jury on direct aiding and abetting principles, as well
as the elements of attempted murder and attempted robbery. The court then explained the
natural and probable consequences doctrine:
“Under certain circumstances[,] a person who is guilty of one crime may also be
guilty of other crimes that were committed at the same time.
“To prove that the defendant is guilty of attempted murder, the People must prove
that one, the defendant is guilty of attempted robbery.
“Two, during the commission of attempted robbery[,] a co-participant in that
attempted robbery committed the crime of attempted murder.
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“And three, under all of the circumstances[,] a reasonable person in the
defendant’s position would have known that the commission of attempted murder was a
natural and probable consequence of the commission of the attempted robbery. [¶] . . .
[¶]
“A natural and probable consequence is one that a reasonable person would know
is likely to happen if nothing usual intervenes.” (CALCRIM No. 402, as given.)
The prosecutor began his closing argument as follows: “Ladies and Gentlemen,
we’re at our noon hour I’m going to tell you why that during the course of this attempted
robbery it’s a natural and probable consequence that these individuals are gonna pull a
gun on [the victim] and shoot him six times.” The prosecutor then told the jury, “What’s
important . . . is there is no need, absolutely zero need to say who did the attempted
murder. [¶] If some of the three did it and there is a natural and probable consequence of
a robbery, they’re guilty.”
The prosecutor further argued as follows: “[CALCRIM No.] 400 is basically
saying that you’re a perpetrator. You did it.
“[CALCRIM No.] 401 says you aid and abet it. You aid and abet somebody in the
attempted murder.
“Okay. When you’re coming in and you’re forcing your way in on them, . . .
you’re guilty of attempted murder. Of course, the shooter obviously is attempted murder.
“But [CALCRIM No.] 402 here is the natural and probable consequence. And this
is—this is clearly the liability that lies on everybody in this case.
“Is that when you commit an attempted robbery in somebody’s home with three or
more individuals and guns, what do you [think is going to] happen?
“Precisely what did happen. Is [the victim] going to resist. He’s going to try to
save his life, and gun play is going to go—I mean, it—harken[s] back to the argument I
made a couple minutes ago.
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“Why do you bring a gun? You bring a gun to exact fear on somebody and defend
against yourself if somebody resists you.
“It is a natural and probable consequence of a robbery—attempted robbery. Okay.
It is what is likely to happen as evidence ‘cuz it did happen here. Okay. [It is] precisely
what happened. So this is that liability.”
The jury subsequently found defendant guilty of attempted murder and attempted
robbery while entering a structure and acting in concert. (§§ 664, 187, subd. (a), 211,
213, subd. (a)(1)(A).) As to both counts, the jury found 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).
DISCUSSION
Senate Bill 775
“Senate Bill 775 amended section 1170.95. As relevant, it now reads: ‘A person
convicted of murder, attempted murder, or manslaughter whose conviction is not final
may challenge on direct appeal the validity of that conviction based on the changes made
to Sections 188 and 189 by Senate Bill 1437 (Chapter 1015 of the Statutes of 2018).’
(§ 1170.95, subd. (g).) Because section 188, subdivision (a)(3), prohibits imputing
malice based solely on participation in a crime, the natural and probable consequences
doctrine cannot prove an accomplice committed attempted murder. Accordingly, the
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natural and probable consequences doctrine theory urged in the trial court is now
invalid.” (People v. Sanchez (2022) 75 Cal.App.5th 191, 196, fn. omitted.)
We turn next to whether giving the instructions here that allowed the jury to
convict defendant of attempted murder under the natural and probable consequences
doctrine was harmless error. When, as here, a trial court “instructs a jury on two theories
of guilt, one of which was legally correct and one legally incorrect, reversal is required
unless there is a basis in the record to find that the verdict was based on a valid ground.
[Citations.] [A defendant’s attempted] murder conviction must be reversed unless we
conclude beyond a reasonable doubt that the jury based its verdict on the legally valid
theory that [he] directly aided and abetted the [attempted] murder.” (People v. Chiu
(2014) 59 Cal.4th 155, 167, superseded on other issues by Senate Bill 1437, as stated in
People v. Lewis (2021) 11 Cal.5th 952, 959.)
Once a defendant has “shown that the jury was instructed on correct and incorrect
theories of liability, the presumption is that the error affected the judgment: ‘ “Jurors are
not generally equipped to determine whether a particular theory of conviction submitted
to them is contrary to law . . . .” ’ ” (In re Martinez (2017) 3 Cal.5th 1216, 1224.)
Reversal is required unless we determine after examining the entire cause that the error is
harmless beyond a reasonable doubt. (People v. Aledamat (2019) 8 Cal.5th 1, 13.)
Here, the trial court instructed the jury on direct aiding and abetting, as well as the
natural and probable consequences doctrine, as alternate theories of liability for attempted
murder. The prosecutor’s closing argument focused the jury on the natural and probable
consequences doctrine. The prosecutor told the jury that, through his argument, he would
demonstrate the attempted murder committed by defendant and his codefendants was the
natural and probable consequence of their attempted robbery. He argued that liability for
attempted murder in this case lay not on the direct perpetrator, who the jury need not
identify, but on all three defendants as the natural and probable consequence of their
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attempted robbery. The jury then returned a general verdict finding defendant guilty of
attempted murder and attempted robbery.
Our review of the record did not offer any insight into the jury’s deliberations and
the theory underlying the verdict.” (People v. Sanchez, supra, 75 Cal.App.5th at p. 197.)
Under the circumstances, the error in instructing the jury on the natural and probable
consequences doctrine was not harmless beyond a reasonable doubt. We must reverse
defendant’s conviction for attempted murder and give the People the opportunity to retry
defendant on the attempted murder charge within the time limit prescribed by law. Given
our conclusion, we need not address defendant’s argument that the trial court violated his
constitutional rights by imposing fines, fees, and assessments without holding a hearing
to determine his ability to pay them.
DISPOSITION
Defendant’s attempted murder conviction is reversed and the findings as to the
associated firearm enhancement are vacated. Defendant’s attempted robbery conviction
and the findings as to the associated firearm enhancement are affirmed. We remand the
matter to the trial court with instructions that the People may, if they choose, retry
defendant on the attempted murder charge and the associated firearm enhancement within
the time limit prescribed by law. If the People choose not to retry, the trial court is
directed to resentence defendant fully on his remaining conviction for attempted robbery
and the associated firearm enhancement.
KRAUSE , J.
We concur:
BLEASE , Acting P. J.
DUARTE , J.
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