People v. Villegasluna CA3 ( 2022 )

Filed 8/2/22 P. v. Villegasluna CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent, C094220
v. (Super. Ct. No. 20CF00514)
MIRELLA ANABEL VILLEGASLUNA,
Defendant and Appellant.
Appointed counsel for defendant Mirella Anabel Villegasluna asked this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) We requested supplemental briefing
from the parties regarding the possible impact of ameliorative sentencing legislation,
including Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5)
(Assembly Bill 124) and Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 731, § 1.3) (Senate Bill 567), which both amended Penal Code section 1170 1 and
1 Undesignated statutory references are to the Penal Code.
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went into effect while defendant’s appeal was pending. 2 Having considered the parties’
supplemental briefs and their joint motion for calendar preference and request for
immediate issuance of remittitur,3 and having reviewed the record, we will affirm
defendant’s convictions but vacate her sentence and immediately remand the matter for
resentencing.
I
During the relevant time period, defendant was in an abusive relationship with her
boyfriend, who threatened to kill her and her family if she did not force her daughter to
engage in sex acts with him. Defendant forced and instructed her nine-year-old daughter
to orally copulate the boyfriend and also forced her daughter to receive oral sex from the
boyfriend. Marijuana, pay-owe sheets, and a large amount of cash were located in
defendant’s apartment, and defendant admitted that she cultivated the marijuana for sale.
In September 2020, defendant pleaded no contest to acting in concert with force to
commit oral copulation on a victim under 14 years of age (§ 287, subd. (d)(2)), along
2 Three bills amending section 1170 were enacted and signed into law on the same date
during the 2021-2022 legislative term -- Assembly Bill 124, Senate Bill 567, and
Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, § 2) (Assembly
Bill 1540). Senate Bill 567, which takes precedence because it bears the highest chapter
number and was enacted last (Gov. Code, § 9605, subd. (b); In re Thierry S. (1977)
19 Cal.3d 727, 738-739), states that if all three bills amending section 1170 are enacted
and become effective on or before January 1, 2022, and Senate Bill 567 is enacted last,
then section 1.3 of that bill, which incorporates the amendments proposed by Senate Bill
567, Assembly Bill 124, and Assembly Bill 1540, shall become operative. (Stats. 2021,
ch. 731, § 3.)
3 Following supplemental briefing, the parties waived oral argument and submitted a
joint motion for calendar preference and request for immediate issuance of remittitur so
that defendant can be resentenced while she is housed in the county jail on another
matter. (Cal. Rules of Court, rules 8.272(c)(1), 8.366(a).) We treat the joint request for
immediate issuance of remittitur as a stipulation by the parties. The joint motion for
calendar preference is denied as unnecessary.
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with misdemeanor possession of cannabis for sale (Health & Saf. Code, § 11359,
subd. (b)), in exchange for dismissal of the remaining counts with a Harvey waiver.
(People v. Harvey (1979) 25 Cal.3d 754.) The parties stipulated to the probation report
as the factual basis for the plea. The parties also executed a stipulated judgment in a
related civil forfeiture action whereby defendant agreed to forfeit $10,700. Under the
terms of the written plea agreement, probation and sentencing were left to the trial court’s
discretion.
The trial court appointed a forensic clinical psychologist, Dr. Don Stembridge,
under section 1203.067 to determine defendant’s mental condition, whether she would
pose a threat to her daughter if probation were granted, and whether she would benefit
from sex offender therapy. Dr. Stembridge reported that defendant had experienced,
among other things, sexual abuse as a child and post-traumatic stress disorder as a result
of battered woman syndrome. After considering defendant’s history and the nature of her
offenses, Dr. Stembridge opined that defendant’s sexual offenses were largely motivated
by the terror and trauma inherent in her relationship with an abusive boyfriend and that
she would pose a minimal risk of harm to her daughter if granted probation. According
to Dr. Stembridge, offenders with a similar risk analysis were often safely treated in the
community with close probation supervision.
In May 2021, the trial court sentenced defendant to the upper term of 14 years in
prison on the oral copulation conviction and a concurrent six months for the marijuana
offense. The trial court ordered defendant to pay various fines and fees, awarded 541
days of presentence credit (471 actual days and 70 conduct days), and issued a 10-year
criminal protective order under section 136.2 prohibiting defendant from having contact
with her daughter. Defendant did not obtain a certificate of probable cause.
II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
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issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
While this appeal was pending, the Governor signed Assembly Bill 124 and
Senate Bill 567, both effective January 1, 2022. (Cal. Const., art. IV, § 8, subd. (c).)
We requested supplemental briefing on the possible impact of the new legislation.
In her supplemental brief, defendant argues the enactments apply to her case and
that the matter must be remanded for resentencing because both enactments affect the
trial court’s discretionary decision to impose the upper term sentence on the oral
copulation conviction. The People agree remand is warranted, and we do too.
Generally, a penal statute does not apply retroactively unless the legislation
expressly states its retroactive effect. (§ 3.) There is an exception to this general rule for
statutes reducing criminal punishment, which, absent a statement to the contrary, apply
retroactively to all cases that were not final when the legislation takes effect. (See In re
Estrada (1965) 63 Cal.2d 740, 744-745.) Under Estrada, we presume that an
amendatory statute that lessens punishment applies to all nonfinal cases as of the
amendatory statute’s effective date, unless the enacting body clearly signals its intent to
make the amendment prospective, by including either an express saving clause or its
equivalent. (People v. Lara (2019) 6 Cal.5th 1128, 1134.)
Senate Bill 567 amended sections 1170 and 1170.1 to limit the trial court’s
discretion to impose the upper term. A trial court may not impose a sentence greater
than the middle term unless aggravating factors justify doing so and the facts have
been established in specified ways. (§ 1170, subd. (b)(1), (2), (3).) In addition,
subdivision (b)(6) provides that unless a lower term would be contrary to the interests of
justice, “the court shall order imposition of the lower term if any of the following was a
contributing factor in the commission of the offense: [¶] (A) The person has experienced
psychological, physical, or childhood trauma, including, but not limited to, abuse,
neglect, exploitation, or sexual violence. [¶] . . . [¶] (C) Prior to the instant offense, or
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at the time of the commission of the offense, the person is or was a victim of intimate
partner violence or human trafficking.”
In this case, the record indicates defendant may have been the victim of intimate
partner violence and may have experienced childhood trauma, including abuse. (§ 1170.
subd. (b)(6)(A) & (C).) Because defendant’s case is not yet final and Senate Bill 567,
which does not contain an express savings clause, affects the trial court’s decision to
impose the upper term on the oral copulation conviction, we will remand the matter for
resentencing. (In re Estrada, supra, 63 Cal.2d at pp. 744-745.)
Having undertaken an examination of the entire record and having found no other
arguable error that would result in a disposition more favorable to defendant, we will
affirm her convictions and remand for resentencing.
DISPOSITION
Defendant’s convictions are affirmed. Her sentence is vacated and the matter is
remanded to the trial court for resentencing in accordance with current sentencing laws.
Pursuant to California Rules of Court, rule 8.272(c)(1), the clerk of this court is directed
to immediately issue the remittitur.
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
EARL, J.
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