People v. Villeda CA2/3 ( 2021 )

Filed 8/18/21 P. v. Villeda CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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. Affirmed.
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, 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 February 2019 the Secretary of the
California Department of Corrections and Rehabilitation sent the
trial court a letter recommending it recall Villeda’s sentence and
resentence him, noting the court now has the discretion to strike
firearm enhancements. The trial court declined the invitation.
We affirm.
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 2010.1 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.
1 We take the facts from our opinion in Villeda’s direct
appeal (People v. Villeda (Sept. 27, 2012, B230494) [nonpub. opn.]
(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.
2
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
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
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street gang. 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 of ten years each for the gang
enhancement on those counts. We affirmed Villeda’s conviction.
(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 Department of Corrections and Rehabilitation
(the Secretary).2 The Secretary recommended “a recall of
sentence and resentence” of Villeda under Penal Code section
1170, subdivision (d)(1) (section 1170(d)(1)).3 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.
The Secretary enclosed a Cumulative Case Summary and
Evaluation Report, “present[ing] case factors that are applicable”
2 At the time, the Secretary was Ralph M. Diaz.
( [as of Aug. 18, 2021], archived at .)
3 References to statutes are to the Penal Code.
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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
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.”
On March 28, 2019, the trial court issued a minute order
declining to recall Villeda’s sentence. The court described the
facts of Villeda’s crimes and noted the role his firearm played
in the robberies: “[Villeda] 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
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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. We do not agree.
We review Villeda’s constitutional claim on undisputed
facts de novo. (People v. Frazier (2020) 55 Cal.App.5th 858, 864
(Frazier).) We review the trial court’s order declining to follow
the Secretary’s recommendation for abuse of discretion. (Id.,
at p. 863; People v. McCallum (2020) 55 Cal.App.5th 202, 211
(McCallum); People v. Delson (1984) 161 Cal.App.3d 56, 62
(Delson).)
1. The Secretary’s letter recommending recall
of sentence and resentencing did not trigger
a due process right to counsel or a hearing
Section 1170(d)(1) authorizes 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.” This provision thus creates
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“ ‘an exception to the common law rule that the court loses
resentencing jurisdiction once execution of sentence has begun.’ ”
(Frazier, supra, 55 Cal.App.5th at p. 863, quoting Dix v.
Superior Court (1991) 53 Cal.3d 442, 455.)
Villeda contends the Secretary’s letter “triggered” his
“personal liberty interests in the matter” and he therefore should
have been given “a meaningful opportunity to be heard” as well
as the “effective assistance of counsel.” Villeda acknowledges
recent decisions have rejected that contention but, he asserts,
“the issue of what level of procedure is required to comport
with due process when the CDCR recommends an inmate for
resentencing[ ] should be revisited.”
In Frazier, our colleagues in Division 7 held the Secretary’s
filing of a section 1170(d)(1) recommendation for recall and
resentencing does not trigger a due process right to counsel
for an indigent defendant. (Frazier, supra, 55 Cal.App.5th
at pp. 865, 869.) Presiding Justice Perluss noted “nothing
in section 1170, subdivision (d)(1), authorizes appointment
of counsel following the Secretary’s recommendation for recall
and resentencing.” In response to Frazier’s argument that
“appointment of counsel is required as a matter of due process
at this ‘critical stage’ of a criminal proceeding to marshal
necessary evidence and address at a hearing any reservations
the court may have about the Secretary’s recommendation,”
the court provided “a brief overview” of the constitutional right
to counsel. (Id. at p. 864.)
The Frazier court stated, “[T]he Sixth Amendment right
to counsel at critical stages of a criminal proceeding through
sentencing does not apply to postjudgment collateral challenges.”
For example, the court said, “In a habeas corpus proceeding
the right to counsel and a hearing is triggered only after
the petitioner has made a prima facie factual showing that,
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if unrebutted, demonstrates entitlement to relief.” (Frazier,
supra, 55 Cal.App.5th at pp. 865-866.) In contrast, the court
explained, the Secretary’s request for recall and resentencing
under section 1170(d)(1) “provides no statutory entitlement
to relief to the inmate even when the court credits the
postconviction facts identified in the Secretary’s recommendation
materials.” (Frazier, at p. 866.) “[T]he Secretary’s
recommendation letter is but an invitation to the court to exercise
its equitable jurisdiction.” (Ibid.) Our Supreme Court denied
review in Frazier. (Review den. Jan. 20, 2021, S265660.)
Our colleagues in Division 7 also have held a trial court is
not required to hold a hearing before acting on a recommendation
by the Secretary for recall and resentencing. (McCallum, supra,
55 Cal.App.5th at pp. 206, 211-216. See also Delson, supra,
161 Cal.App.3d at pp. 60-61.) As Justice Feuer stated, section
1170(d)(1)’s statutory language, “read in the context of section
1170 as a whole, shows the Legislature did not intend to require
a trial court to hold” such a hearing. “It is up to the Legislature
to address in the first instance whether an inmate should be
afforded a hearing in response to a recommendation by the
[S]ecretary for recall and resentencing.” (McCallum, at p. 206.)4
4 In McCallum, the defendant—through counsel—
had expressly “requested an opportunity to respond to the
[S]ecretary’s recommendation” with “possible briefing and
presentation of evidence.” (McCallum, supra, 55 Cal.App.5th
at p. 216.) McCallum sought “to submit additional information
showing his rehabilitation and reentry plans.” (Id. at p. 217.)
In light of the trial court’s statement that it was declining
to recall McCallum’s sentence at least in part because it viewed
his “family and community support” as “ ‘tenuous, with no
identifiable base of support,’ ” the McCallum court concluded
“the trial court abused its discretion in denying McCallum an
opportunity to present information relevant to the [S]ecretary’s
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We decline Villeda’s invitation to depart from the sound
reasoning of these authorities. (See Delson, at p. 61 [“there
is a long-standing practice of ex parte consideration of such
a Department of Corrections’ [report], dating back to [section
1170(d)(1)’s predecessor]”].)
2. The record does not demonstrate the trial court
abused its discretion
Villeda contends the trial court “did not consider any
postconviction factors,” “did not understand the full scope of
sentencing options with regard to the firearm enhancements,”
and “failed to consider the scheme and spirit of the law.”
Villeda argues the court was “unaware of its discretionary
powers.” The record does not support these contentions.
Section 1170(d)(1) provides (in pertinent part),
“The court may consider postconviction factors,
including, but not limited to, the inmate’s
disciplinary record and record of rehabilitation
while incarcerated, evidence that reflects
whether age, time served, and diminished
physical condition, if any, have reduced the
inmate’s risk for future violence, and evidence
that reflects that circumstances have changed
since the inmate’s original sentencing so
that the inmate’s continued incarceration
is no longer in the interest of justice.”
The statute says “may,” not “must.” Moreover, as the
Frazier court noted, “nothing in section [1170(d)(1)] requires
recommendation.” (Id. at pp. 206-207.) Here, nothing in the
record shows Villeda sought to present any evidence to the
trial court. Nor on appeal does he suggest what he could
have submitted to support a recall of his sentence.
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the court to state its reasoning when declining to exercise
its discretion in response to the Secretary’s recommendation.”
(Frazier, supra, 55 Cal.App.5th at p. 868.)5 That the court here
did not specifically refer to Villeda’s conduct in prison does not
mean the court didn’t consider it. The pluses and minuses of
Villeda’s behavior over the previous eight years6 are a wash
at best. While he had no pending disciplinary actions and had
not “received any Custodial Counseling Chronos,” he remained
“an active member of the Varrio Alondra 13 Sureno disruptive
Security Threat Group.” While he had received a report of
“satisfactory work performance” for a three-month period in 2016,
the Secretary’s letter contains no information about Villeda’s
work performance during the remaining seven years and nine
months. He had been “found guilty” of possession of a weapon
in 2012 and participated in hunger strikes in 2012 and 2013.
Villeda did complete his GED, which is commendable. The
Secretary’s letter notes “satisfactory progress” in a “[b]asic
[e]ducation” program for a four-month period in 2018 but
provides no other information about the nature or status of
that course of study.
As for age and “diminished physical condition,” Villeda
was 26 when he committed the robberies and 36 when the court
declined to recall his sentence. Nothing in the record suggests
he is infirm. As far as “changed” “circumstances,” again, Villeda
5 In Frazier, the trial court had issued a minute order stating
only it had “received and reviewed” the Secretary’s letter and it
“declines to exercise its discretion pursuant to that section. The
original sentence is to remain in full force and effect.” (Frazier,
supra, 55 Cal.App.5th at p. 863.)
6 Villeda says he was “received into the prison on
February 14, 2011.” The Secretary’s letter was dated
February 11, 2019.
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has worked, earned his GED, and participated in programs, but
he remains involved with his gang. As for “time served,” when
the court ruled, Villeda had served about eight years of a 38-year
sentence.
As the Attorney General notes, the Secretary’s letter
did not “recommend[ ] [Villeda’s sentence] for reconsideration
. . . because of his postconviction conduct,” as Villeda contends.
To the extent the Secretary’s letter sets forth any reason for his
recommendation, it was the 2018 amendments to the firearm
enhancement statutes. 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, 376.) “The
factors a trial court must consider when determining whether
to strike a gun enhancement ‘are the same . . . the trial court
must consider when handing down a sentence in the first
instance.’ ” (Id. at p. 377.) “Among those factors are whether
‘ “[t]he crime involved great violence, . . . threat of great
bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness” ’ and whether ‘ “[t]he defendant
has engaged in violent conduct that indicates a serious danger
to society.” ’ ” (Ibid., italics omitted.)
Where, as here, a discretionary power is statutorily vested
in the trial court, the exercise of that discretion must not be
disturbed on appeal except on a showing the court exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice. (McCallum,
supra, 55 Cal.App.5th at p. 211; People v. Gibson (2016) 2
Cal.App.5th 315, 324-325; People v. Rodrigues (1994) 8 Cal.4th
1060, 1124-1125.) “ ‘The abuse of discretion standard “involves
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abundant deference” to the court’s ruling.’ ” (McCallum, at
p. 211, quoting People v. Jefferson (2016) 1 Cal.App.5th 235,
242-243. See also Frazier, supra, 55 Cal.App.5th at pp. 862-863,
868-869 [court did not abuse its discretion in declining to recall
sentence for defendant convicted of assault with a deadly weapon
even though she was “nearly 70 years old, had demonstrated
exemplary behavior while in prison; had completed . . . multiple
educational courses . . . ; and had served as a role model for
other students in the prison population”].)
DISPOSITION
We affirm the superior court’s order declining to recall
Allan Villeda’s sentence and to resentence him.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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