People v. Villagrana ( 2024 )

Filed 10/30/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B331439
(Super. Ct. No. TA128922)
Plaintiff and Respondent, (Los Angeles County)
v.
JAVIER VILLAGRANA,
Defendant and Appellant.
The victim of a “drive-by,” gang motivated shooting, who
suffers six bullet wounds, and who dies as a result thereof, is a
murder victim. This seems unremarkable. The only rational
inference that can be drawn from this uncontested factual
predicate is that the crime is murder.
In 2014, Javier Villagrana pleaded no contest to voluntary
manslaughter and admitted gang as well as personal use of a
firearm allegations. This was a lenient offer by the prosecutor.
Appellant now challenges the trial court’s denial of his
subsequent Penal Code section 1172.6 petition for resentencing.1
1 All further statutory references are to the Penal Code.
We affirm. Appellant’s connection to, and causation of this
murder is demonstrated by his plea and admissions of the
enhancement allegations.
Facts
In June 2013, Los Angeles Sheriff’s deputies responded to a
call regarding a “drive-by” shooting. When Deputy Eugene
Contreras arrived at the location, he found an unconscious man
lying on the ground with multiple gunshot wounds, six of them.
He also found seven .22-caliber casings at the scene. The victim
was taken to the hospital where he died.
Procedural Background
In November 2013, the People filed an information
charging appellant and Jaime Chavez, appellant’s cousin, with
the murder of Juan Vasquez and alleging gang and firearm
enhancements. (§§ 187, subd. (a), 186.22, subd. (b)(1)(C),
12022.53, subds. (b)-(e).)
Pursuant to a negotiated disposition, appellant pleaded no
contest to an amended charge of voluntary manslaughter. (§ 192,
subd. (a).) He also admitted the gang enhancement allegation
and that he personally used a firearm during the commission of
the crime.2 (§§ 186.22, subd. (b)(1)(C), 12022.5, subd. (a)(1).) The
trial court sentenced appellant to 26 years in state prison.
2 Chavez, the codefendant, pleaded no contest to voluntary
manslaughter and admitted the gang enhancement allegation.
Unlike appellant, he was not charged with nor did he admit any
personal use of a firearm enhancement allegation. (§ 12022.5,
subd. (a)(1).) The logical inference which can be drawn from this
is that Chavez did not personally use a firearm to murder
Vasquez.
2
Section 1172.6 Proceedings
In 2022, appellant filed a form petition for resentencing.
He declared that he could not now be convicted of murder. After
appointing counsel and considering the briefing, the trial court
found appellant established a prima facie case and issued an
order to show cause. The People opposed the petition, arguing
that appellant was prosecuted as the actual killer and thus
ineligible for resentencing as a matter of law.
After conducting an evidentiary hearing, the trial court
factually, and also, legally found appellant ineligible for
resentencing and denied the petition.
Discussion
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
1437) amended the felony murder rule and the natural and
probable consequences doctrine “to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to life.”
(Stats. 2018, ch. 1015, § 1, subd. (f).) To that end, Senate Bill
1437 amended section 188 by adding a requirement that, except
as stated in section 189, subdivision (e), all principals to murder
must act with express or implied malice. (§ 188, subd. (a)(3).) A
person charged with murder who negotiates a plea bargain down
to manslaughter may be eligible for sentencing relief.
Senate Bill 1437 also enacted section 1172.6, which created
a procedural mechanism for defendants who could not be
convicted of murder or attempted murder under the amended
laws to seek retroactive relief. (§ 1172.6, subd. (a)(3); People v.
Lewis (2021) 11 Cal.5th 952, 957.) If the trial court determines
that the petitioner has made a prima facie showing of entitlement
3
to relief, it must issue an order to show cause and hold an
evidentiary hearing. (§ 1172.6, subds. (c), (d); Lewis, at pp. 959-
960.)
At the evidentiary hearing, the prosecution has the burden
“to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder . . . under California law as amended by the changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (d)(3).)
“The admission of evidence in the hearing shall be governed
by the Evidence code, except that the court may consider
evidence previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court
may also consider the procedural history of the case recited in
any prior appellate opinion. However, hearsay evidence that was
admitted in a preliminary hearing . . . shall be excluded from the
hearing as hearsay, unless the evidence is admissible pursuant to
another exception to the hearsay rule. The prosecutor and the
petitioner may also offer new or additional evidence to meet their
respective burdens”. (§ 1172.6, subd. (d)(3).)
The trial court acts as an independent fact finder in
determining whether the People have met their burden. (People
v. Schell (2022) 84 Cal.App.5th 437, 442; People v. Clements
(2022) 75 Cal.App.5th 276, 293-294, 297; People v. Garrison
(2021) 73 Cal.App.5th 735, 745.) We review the trial court’s fact
finding for substantial evidence. (Clements, at p. 298.) We do not
reweigh the evidence.
At the evidentiary hearing, the People asked the trial court
to take judicial notice of the information, the plea and sentencing
transcripts, and portions of the preliminary hearing transcript
4
related to Deputy Contreras’s testimony. Appellant’s plea and
admissions are tantamount to evidence. They certainly must be
considered at a resentencing hearing.
After considering the evidence, the trial court found
appellant was “factually ineligible” for resentencing “based on the
fact that there was no natural and probable consequence [theory],
implied malice theory, or felony murder [theory].” Thus, the trial
court presumably found appellant ineligible as the actual shooter
or, at the very least, as a direct aider and abettor to murder.
This is a rational inference and not speculation. (See People v.
Bohana (2000) 84 Cal.4th 360, 369 (Bohana).) “Somewhere along
the evidentiary spectrum, a rational inference loses its character
if one or more of the premises upon which it rests, fails. When
this happens, the inference becomes irrational speculation. Here,
the inferences drawn by [the trier of fact, the sentencing judge]
were rational.” (Ibid.)
It is well settled that reversal for insufficient evidence is
unwarranted unless it appears “‘“that upon no hypothesis
whatever is there sufficient substantial evidence to support”’” the
finding. (People v. Manibusan (2013) 58 Cal.4th 40, 87
(Manibusan), quoting People v. Zamudio (2008) 43 Cal.4th 327,
357.)
“Our role in reviewing the sufficiency of the evidence in a
criminal case is a limited one. [Citation.] We examine the entire
record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence such that
any rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt. [Citations.] Substantial
evidence is ‘“evidence which is reasonable, credible, and of solid
value.”’ [Citation.] Although ‘mere speculation cannot support a
5
conviction’ [citation], the trier of fact is entitled to draw
reasonable inferences from the evidence and we will ‘“‘presume in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. [Citations.]’”’” (Bohana,
supra, 84 Cal.App.4th at pp. 367-368.)
Applying these principles and drawing all inferences in
favor of the trial court’s findings, a rational trier of fact could
reasonably have found appellant guilty, beyond a reasonable
doubt, as a direct aider and abettor to murder, if not as the actual
shooter. The evidence established that there were seven .22-
caliber casings at the scene. Vasquez was shot six times,
including in the neck, upper torso, and forearm. He died as a
result of these injuries. Appellant was present at the shooting.
He admitted using a firearm in an affirmative manner. He
admitted the offense was gang related. And appellant admitted
he was responsible for Vasquez’s death as indicated by his plea to
voluntary manslaughter.
The Attorney General confesses error based upon People v.
Jones (2003) 30 Cal.4th 104 to support its theory that the
evidence was insufficient to infer appellant was the actual
shooter. In Jones, our high court explained, “[i]f two robbers
display guns to intimidate robbery victims and one shoots and
kills a victim, both robbers could be found to have personally
used a gun in the robbery . . . even though only one is the actual
killer.” (Id. at p. 1120.)
But Jones does not apply, where as here, the only person
who admitted to using a firearm during the commission of the
offense is appellant. The logical inferences that were drawn by
the trier of fact are: (1) that appellant personally harbored malice
by shooting at the victim seven times, and (2) he could still be
6
found guilty of murder, at the very least, as a direct aider and
abettor.
Appellant’s remaining contention that the trial court
applied an erroneous standard of proof is meritless. The trial
court recognized its error in failing to state the standard on the
record, placed the matter on calendar, and expressly stated, “The
court finds that the People have proven beyond a reasonable
doubt that Mr. Villagrana could be found guilty of murder if he
were tried under the new law.”
Accordingly, sufficient evidence supports the trial court’s
finding that appellant was ineligible for resentencing.
Reply to Dissent
As a preliminary matter, the dissent is inconsistent with
common sense. The objective reader will make up his or her own
mind. The dissent violates the rules on appeal. It recites the
substantial evidence rule and then does not apply it. It reweighs
the evidence on appeal to achieve a result. The elementary
concept of logical inference drawing is missing. To make matters
worse, the dissent actually draws inferences away from the order
under review. This is an extreme departure from traditional
application of the substantial evidence rule. Moreover, it violates
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
457 by not following Manibusan’s “no hypothesis whatsoever”
rule. (See Manibusan, supra, 58 Cal.4th 40; ante p. 5.) There is a
hypothesis that supports the trial court’s order.
The dissent says that the majority opinion is based on
speculation. Not so. It is the dissent which is speculating and
there is no reason to do so given the uncontested factual
predicate. The Legislature changed the murder rules to ensure
that a sentence was commensurate with the defendant’s
7
individual culpability. Did the Legislature intend to give
sentencing leniency to someone who, motivated by gang animus,
uses a firearm in a drive-by shooting, that results in six bullet
holes in the victim and his death? Such a person is acting with
malice despite the People’s pretrial offer of a plea to
manslaughter with the admission of two special allegations. It is
not speculation “to connect the dots” and affirm the trial court’s
factual finding that appellant was acting with malice and can
presently be convicted of murder. The trial court expressly so
found beyond a reasonable doubt. According to the dissent, this
finding is entitled to no weight whatsoever.
The question is not whether the People’s proof is “thin.”
(Dissent at p. 2.) This adjective is foreign to the rules on appeal.
The evidence can always be more robust. The evidence and the
logical and reasonable inferences that flow from the plea and
admissions paint but one picture—murder committed by
appellant.
Disposition
The trial court’s order is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
I concur:
GILBERT, P. J.
8
BALTODANO, J., dissenting:
I respectfully dissent.
1
During a Penal Code section 1172.6 evidentiary hearing,
prosecutors bear the burden of proving, beyond a reasonable
doubt, that a person who was convicted of manslaughter under
prior versions of California law could still be convicted of murder
under current law. (§ 1172.6, subd. (d)(3).) Prosecutors may
meet this burden by offering into evidence matters that were
previously admitted into evidence and are admissible under
current law, plus any new evidence they choose to proffer. (Ibid.)
We review whether prosecutors met their burden for substantial
evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298
(Clements).)
Based on the record here, there is insufficient evidence that
is “ ‘ “reasonable, credible, and of solid value” ’ ” to support the
conclusion that prosecutors met their burden during Javier
Gabriel Villagrana’s evidentiary hearing. (Clements, supra, 75
Cal.App.5th at p. 298.) At that hearing, prosecutors chose not to
introduce any new evidence. They instead relied on the
information, the plea colloquy, the sentencing transcript, and
excerpts from the preliminary hearing transcript; there was no
trial. These documents show that: (1) in June 2013 Juan
Vasquez died after suffering multiple gunshot wounds; (2) a
sheriff’s deputy found several bullet casings at the scene of
Vasquez’s shooting; (3) prosecutors charged Villagrana and a
codefendant, Jaime Chavez, with Vasquez’s murder (§ 187, subd.
(a)), and alleged that they killed him for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)(C)) while using firearms
1
Statutory references are to the Penal Code.
1
(§§ 12022.53, subds. (b), (c), & (d), 12022.55); (4) Villagrana
pleaded no contest to the voluntary manslaughter of Vasquez
(§ 192, subd. (a)) and admitted the gang allegation and a firearm
use allegation (§ 12022.5, subd. (a)); and (5) Chavez pleaded no
contest to manslaughter and admitted the gang allegation.
No rational trier of fact could reasonably find the elements
of murder proven beyond a reasonable doubt on such a thin
evidentiary record. None of the evidence relied on by the trial
court shows that Villagrana was the actual shooter—or that he
was even present at the shooting. (Cf. People v. Garcia (2022) 82
Cal.App.5th 956, 973 [§ 1172.6 resentencing relief unavailable to
actual killers].) He was not the sole perpetrator. Nothing
indicates that his was the only firearm used during the shooting,
nor does anything connect him to the bullet casings found at the
scene or the firearm that killed Vasquez. And while he admitted
to the use of a firearm, such use does not require actually firing
the weapon (People v. Jones (2003) 30 Cal.4th 1084, 1120); the
allegations that could have shown that Villagrana fired his
weapon were jettisoned by prosecutors. That is why the Attorney
General concedes insufficient evidence supports a murder
conviction here.
The evidence also fails to prove that Villagrana harbored
malice aforethought. (Cf. § 188, subd. (a)(3) [subject to exception
not relevant here, person must act with malice to be guilty of
murder].) Villagrana pleaded no contest to voluntary
manslaughter—the killing of a person without malice. (People v.
Nunez (2023) 97 Cal.App.5th 362, 368.) And because no evidence
connects Villagrana to the bullet casings or firearm that killed
Vasquez, it cannot be reasonably inferred that he acted with
malice−again, something the Attorney General concedes. (Cf.
2
People v. Smith (2005) 37 Cal.4th 733, 742 [malice may be
inferred from firing gunshots at a person].)
The majority speculates Villagrana was the actual
shooter—or “at the very least . . . [an] aider and abettor”—
because he was present at the scene of Vasquez’s shooting and,
unlike Chavez, admitted to using a firearm. (Maj. opn., ante, at
pp. 2, fn. 2, 6-7.) From this, my colleagues conclude that
Villagrana harbored malice aforethought, rendering him
ineligible for section 1172.6 relief. (Maj. opn., ante, at pp. 6-7.)
I respectfully decline the invitation to speculate. In
reaching its conclusion, the majority relies on the absence of
Chavez’s admission to using a firearm, positing that Villagrana
either shot or aided and abetted the shooting of Vasquez because
Chavez did not admit to using a firearm. This is a false binary.
It is not evidence. (People v. Raley (1992) 2 Cal.4th 870, 891
[“ ‘ “finding of fact must be an inference drawn from evidence
rather than . . . a mere speculation as to probabilities” ’ ”].)
Moreover, both Villagrana and Chavez reached plea
agreements with prosecutors after facing 50-year-to-life
sentences if convicted at trial. But nothing in the plea colloquy
provides any insight into why the parties agreed that certain
allegations would be admitted while others would be dismissed.
It is not my role to imagine such reasons; my role is “to determine
whether there is any substantial evidence, contradicted or
uncontradicted, to support a rational fact finder’s findings beyond
a reasonable doubt.” (Clements, supra, 75 Cal.App.5th at p. 298.)
Here, no such evidence supports the trial court’s cursory
conclusion that Villagrana was the actual shooter. I would
therefore vacate the order denying Villagrana’s section 1172.6
3
petition and remand the matter for resentencing. (§ 1172.6,
subd. (d)(3); People v. Guiffreda (2023) 87 Cal.App.5th 112, 132.)
CERTIFIED FOR PUBLICATION.
BALTODANO, J.
4
Connie R. Quinones, Judge
Superior Court County of Los Angeles
_____________________________
James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield, Supervising
Deputy Attorney General, and Stephanie Yee, Deputy Attorney
General, for Plaintiff and Respondent.