People v. Villegas CA2/7

Filed 2/15/22 P. v. Villegas CA2/7
Opinion following transfer 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B300146
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA032022)
v.
HECTOR RODOLFO VILLEGAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Teri Schwartz, Judge. Affirmed.
Jin H. Kim, 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, Senior Assistant Attorney General, Michael R.
Johnsen, Supervising Deputy Attorney General, Idan Ivri, Nancy
L. Ladner, and Nikhil Cooper, Deputy Attorneys General for
Plaintiff and Respondent.
INTRODUCTION
Hector Rodolfo Villegas appeals from the superior court’s
order denying his petition under Penal Code section 1170.95. 1 In
our prior opinion we affirmed the superior court’s ruling, after
which Villegas successfully petitioned the Supreme Court for
review. The Supreme Court transferred the case to us with
directions to vacate our earlier opinion and reconsider our
decision in light of Senate Bill No. 775 (Stats. 2021, ch. 551),
which, among other things, confirmed that the standard of proof
at the hearing on an order to show cause under section 1170.95 is
proof beyond a reasonable doubt. Because the trial court applied,
in the alternative, that standard of proof, we vacate our earlier
opinion and again affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Villegas of Murder, and We Affirm
At 2:30 a.m. on April 14, 1997, 20-year-old Villegas, in a
stolen car, led police officers on a 10-mile high-speed chase,
driving 85 miles per hour through residential neighborhoods in
several cities. During the chase Villegas drove on the wrong side
of the road, ran at least two stop signs and two red lights, and
nearly collided with a city bus. The chase ended when he skidded
across seven lanes of traffic and crashed into a telephone pole,
killing his passenger, 57-year-old Todd Cassick.
The People charged Villegas with second degree murder
(§ 187, subd. (a), count 1), willfully fleeing or attempting to elude
1 Undesignated statutory references are to the Penal Code.
2
a pursuing peace officer proximately causing death (Veh. Code,
§ 2800.3, subd. (b), count 2), and unlawful driving or taking of a
vehicle (Veh. Code, § 10851, subd. (a), count 3). At trial Villegas
sought to establish he fled from police only because he was afraid
of and pressured by the much older Cassick. Villegas admitted
that during the chase he knew what he was doing “was very
dangerous” and that he “knew [he] might hurt people by driving
this quick.”
The trial court instructed the jury on two theories of
murder: second degree felony murder and implied malice
murder.2 The jury convicted Villegas on all counts. The court
sentenced Villegas on count 1 to a prison term of 15 years to life,
on count 2 to four years (stayed under section 654), and on
count 3 to a term of two years (concurrent with the sentence on
count 1). We affirmed the judgment. We also dismissed a
petition by Villegas for writ of habeas corpus in which he
contended he received ineffective assistance of counsel.
B. Villegas Files a Petition Under Section 1170.95,
Which the Superior Court Denies After Appointing
Counsel, Issuing an Order To Show Cause, and
Holding a Hearing
In January 2019 Villegas filed a petition for resentencing
under section 1170.95. After the People conceded he had made a
prima facie showing he was entitled to relief because “there were
multiple theories of [murder] liability available to the jury,
2 The predicate felony for the felony murder theory was
fleeing or attempting to elude a pursuing peace officer while
driving with a willful or wanton disregard for the safety of
persons or property, in violation of Vehicle Code section 2800.2.
3
including felony murder,” the superior court appointed counsel
for Villegas and issued an order to show cause. In the ensuing
briefing, the People argued Villegas was not entitled to relief
because, among other reasons, under current law Villegas “could
still be convicted of second degree murder beyond a reasonable
doubt” on an implied malice theory.
In June 2019 the superior court held a hearing, at which
the court stated it had reviewed the file, including the entire
reporter’s transcript of the 1997 trial, the jury instructions, and
our opinion resolving Villegas’s direct appeal and habeas petition.
And after observing that, as a result of Senate Bill No. 1437,
Villegas could no longer be convicted of murder based on the
felony murder theory presented at his trial, the court stated:
“I view my role here as a limited one. I view my role as one of
making a determination not of guilt beyond a reasonable doubt,
but whether the People can prove that the defendant is ineligible
under 1170.95 because he could now be convicted under the
present state of the law. So the way I view the question is, Can
the People demonstrate beyond a reasonable doubt that the
defendant could be convicted under the implied malice theory of
murder?”
Agreeing that the court had accurately described its role
and the dispositive question, the People argued Villegas “could
still be convicted beyond a reasonable doubt of implied malice
murder given the evidence that was presented during the trial.”
Counsel for Villegas, however, argued Villegas was entitled to
have a jury determine whether “the People can prove beyond a
reasonable doubt that [Villegas] is ineligible for relief” under
section 1170.95. After the court rejected that argument, counsel
for Villegas expressed concern about “the court’s emphasis on the
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word ‘could’” when stating the People’s burden was to
demonstrate beyond a reasonable doubt the defendant could be
convicted of murder on an implied malice theory. The court
responded, in relevant part: “I don’t know that my role here is to
say, Is the defendant guilty? Have the People proven him guilty
beyond a reasonable doubt of second degree implied malice
murder? I don’t know that that’s my role here. Because the
question is could he be, not would he be.” Counsel for Villegas
answered: “And that’s why I go back to asking for a jury.” The
court indicated it understood Villegas’s argument and again
outlined what the court viewed its role was. “So I don’t view my
role as the trier of fact here. I don’t view my role as the 13th
juror. And if I’m wrong, we’ll be back, right, depending on the
outcome.”
After hearing further argument on the evidence at trial, the
superior court found the People had met their burden of proving
Villegas was ineligible for relief under section 1170.95. The court
stated: “There is more than enough evidence to prove beyond a
reasonable doubt that the way this . . . evading was committed
does rise to the level of proving that the defendant committed an
implied malice murder. . . . The natural consequences of that
conduct . . . were dangerous to human life. And I don’t think
there could be any dispute but that . . . the duration of the chase,
the location of the chase, the speeds, the manner in which
[Villegas] was driving—all of that was dangerous to human life.
And it’s clear just by the testimony of the officers, without the
defendant’s admissions, it’s clear he was deliberately engaging in
this conduct knowing the danger to human life and acting in
conscious disregard for that human life. . . . So while I’m aware
. . . that one theory was presented that was legally incorrect, the
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manner in which the evading was committed . . . does support the
implied malice second degree theory of liability here. And as
such, I think if Mr. Villegas were tried today, . . . there would be
proof beyond a reasonable doubt.”
The court continued: “Now, I will extend and enlarge the
scope of what I view my role is because I do think it’s what I said
earlier. But since I don’t know what the court of appeal is going
to do, I can comfortably say that the evidence today would prove
beyond a reasonable doubt implied malice murder given these
facts that I have from the testimony from the transcript and from
the description by the court of appeal. And then on top of that, if
I were to add Mr. Villegas’s testimony, that was kind of icing on
the cake for the prosecution. I don’t know if the prosecution
really needed that testimony, but they got it. And it was
devastating. . . . But I think the evidence, even without it, is
substantial and constitutes proof beyond a reasonable doubt.”
The court concluded: “So even assuming my role is to be a
trier of fact—which I don’t assume it to be—but even if it were
and the courts were to say that that’s what it is to be, I believe
the People have demonstrated beyond a reasonable doubt that
the defendant not only could be convicted under the present state
of the law, but most likely would be convicted under the present
state of the law given those facts. And so given the uncertainty
as to how this is going to be construed, the statute, I think there
is really more than enough evidence here no matter how I look at
it to support this conviction . . . .”
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C. We Affirm the Superior Court’s Order Denying
Villegas’s Petition Under Section 1170.95
Villegas appealed from the order denying his petition under
section 1170.95. He argued the superior court, in finding the
People met their burden of proving beyond a reasonable doubt he
was ineligible for relief under section 1170.95, erroneously
required the People “to prove only that, based on the record of
conviction, Villegas could have been convicted of implied malice
murder, i.e., there was substantial evidence to support such a
conviction.” He argued section 1170.95, subdivision (d)(3),
instead “requires the prosecution to prove beyond a reasonable
doubt that the jury would have convicted Villegas of implied
malice murder despite the now-erroneous jury instruction on
second-degree felony murder.” He contended the People did not
meet that burden here. We affirmed the order denying Villegas’s
petition.
We held that section 1170.95 requires the prosecutor to
prove beyond a reasonable doubt each element of first or second
degree murder under current law to establish a petitioner’s
ineligibility for relief under that statute. We explained that, in
evaluating whether the prosecutor has met this burden, it is the
court’s responsibility to act as independent factfinder and
determine whether the evidence establishes a petitioner would be
guilty of murder under amended sections 188 and 189. We
concluded the superior court ruled, in the alternative, the People
had met their burden under this beyond-a-reasonable-doubt
standard and that the superior court properly denied Villegas’s
petition under section 1170.95. We explained that, although the
superior court initially applied an incorrect standard, the court
found in the alternative it could “comfortably say that the
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evidence today would prove beyond a reasonable doubt implied
malice murder.” The superior court added that, even without
Villegas’s trial testimony—which the court called “icing on the
cake” and “devastating”—“I think the evidence . . . is substantial
and constitutes proof beyond a reasonable doubt.” We concluded
that these statements showed the superior court applied, in the
alternative, the correct standard in determining the People
proved beyond a reasonable doubt Villegas was ineligible for
relief under section 1170.95. We also concluded substantial
evidence supported the superior court’s finding the People proved
beyond a reasonable doubt Villegas was guilty of implied malice
murder.
D. The Supreme Court Grants Review and Transfers the
Cause
The Supreme Court granted review and transferred the
case to us with directions to vacate our decision and reconsider
Villegas’s appeal in light of amendments to section 1170.95 by
Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551,
§ 2) (Senate Bill 775), effective January 1, 2022. In their
supplemental brief, the People argue the “superior court
ultimately applied the correct standard of proof, as required by
Senate Bill 775, when it acted as an independent factfinder and
determined beyond a reasonable doubt that [Villegas] committed
second degree murder under an implied malice theory.” The
People argue that the superior court “employed the same
standard of proof that is now required by Senate Bill 775” and
that “substantial evidence supports the denial” of Villegas’s
petition. Villegas submitted a supplemental brief agreeing
Senate Bill 775 requires the prosecution to “prove beyond a
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reasonable doubt a petitioner is guilty of murder under the
amended murder laws” and otherwise relying on the arguments
in his opening and reply briefs (which did not address Senate
Bill 775).
DISCUSSION
The Supreme Court directed us to reconsider the appeal in
light of Senate Bill 775. That law, like our prior opinion, provides
that the standard of proof at the hearing on the order to show
cause is proof beyond a reasonable doubt and that a “finding
there is substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3).) As the People point out,
“Senate Bill 775 simply reaffirmed the standard that this Court
had already adopted as correct.” The trial court applied that
correct standard.
In addition, as we held before, substantial evidence
supported the superior court’s findings. “[S]econd degree murder
based on implied malice has been committed when a person does
‘“‘an act, the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who knows
that his conduct endangers the life of another and who acts with
conscious disregard for life.’”’” (People v. Watson (1981) 30 Cal.3d
290, 300; accord, Zemek v. Superior Court (2020) 44 Cal.App.5th
535, 548.) Here, the evidence showed that Villegas, in evading
officers for 10 miles, drove 85 miles per hour through residential
neighborhoods, drove on the wrong side of the road, ran through
stop signs and red lights, nearly hit a bus, and finally skidded
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across multiple lanes of traffic before crashing into a telephone
pole violently enough to kill his passenger. He admitted he knew
what he was doing was very dangerous and might hurt people.
That admission, as the superior court observed, was icing on a
substantial cake of circumstantial evidence that the natural
consequences of the way Villegas drove while evading police were
dangerous to life, that he knew his driving endangered human
life, and that he drove with conscious disregard for life. (See
Watson, at pp. 300-301 [substantial evidence supported a finding
the defendant committed implied malice murder where, while
intoxicated, he “drove at highly excessive speeds through city
streets” and “nearly collided with a vehicle after running a red
light” before crashing into the victims’ car]; People v. Moore
(2010) 187 Cal.App.4th 937, 941 [substantial evidence supported
a conviction for implied malice murder where the defendant
“drove 70 miles per hour in a 35-mile-per-hour zone, crossed into
the opposing traffic lane, caused oncoming drivers to avoid him,
ran a red light and struck a car in the intersection”].)
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DISPOSITION
The order denying Villegas’s petition under section 1170.95
is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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