People v. Villa CA2/6

Filed 11/14/22 P. v. Villa CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B316390
(Super. Ct. No. GA059672)
Plaintiff and Respondent, (Los Angeles County)
v.
ANTHONY RAY VILLA,
Defendant and Appellant.
Anthony Ray Villa appeals from the trial court’s order
denying his petition for resentencing pursuant to Penal Code
1
section 1172.6 (former section 1170.95). He contends he is
eligible for relief pursuant to Senate Bill No. 775 because he was
convicted of attempted murder under the natural and probable
consequences theory of liability. We reverse and remand with
instructions.
1 All further statutory references are to the Penal Code.
Facts and Procedural History
In October 2005, a jury convicted appellant of attempted
murder, attempted premeditated murder (§§ 664, 187, subd. (a)),
kidnapping to commit robbery (§ 209, subd. (b)(1)), second degree
robbery (§ 211), carjacking (§ 215, subd. (a)) and discharging a
firearm from a vehicle (former § 12034, subd. (c)). On appeal, we
affirmed the judgment. (People v. Pacheco, et al. (Oct. 9, 2008,
B188797) [nonpub.].)
In March 2020, appellant filed a petition for resentencing
pursuant to section 1172.6. The trial court summarily denied the
petition because appellant was not convicted of murder, and
section 1172.6 relief does not apply to attempted murder. In
October 2021, appellant filed a second petition for resentencing.
In a written order, the trial court again denied the petition
because appellant was not eligible for relief.
Discussion
In 2018, the Legislature enacted Senate Bill No. 1437,
which “amend[ed] the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder . . . .”
(Stats. 2018, ch. 1015, § 1, subd. (f); §§ 188, 189; People v. Lewis
(2021) 11 Cal.5th 952, 959 (Lewis).) Section 1172.6 was enacted
as part of Senate Bill No. 1437 “to provide a procedure for those
convicted of felony murder or murder under the natural and
probable consequences doctrine to seek relief . . . .” (People v.
Gentile (2020) 10 Cal.5th 830, 843; Lewis, at p. 959.)
In October 2021, the Governor signed into law Senate Bill
No. 775 (2021-2022 Reg. Sess.), which took effect on January 1,
2022. The new legislation amends subdivision (a) of section
1172.6 to read, in pertinent part: “[a] person convicted of . . .
attempted murder under the natural and probable consequences
2
doctrine . . . may file a petition with the court that sentenced the
petitioner to have the petitioner’s . . . attempted murder . . .
conviction vacated and to be resentenced on any remaining
counts . . . .” (Stats. 2021, ch. 551, § 2.)
Respondent concedes, in light of Senate Bill No. 775, the
trial court erred by denying appellant’s petition for resentencing
“on the basis that attempted murder is not a qualifying offense
under the statute.” Respondent also agrees that remand is
necessary because appellant’s jury was instructed on the natural
and probable consequences theory of liability.2
On these facts, appellant may establish a prima facie
showing of eligibility for sentencing relief. (See People v. Montes
(2021) 71 Cal.App.5th 1001, 1007-1009; Lewis, supra, 11 Cal.5th
at pp. 970-972 [where the record of conviction does not refute the
claims of eligibility in the section 1172.6 petition, petitioner has
made a prima facie showing for relief].)
Accordingly, we reverse the trial court’s order summarily
denying appellant’s section 1172.6 petition and remand with
directions to the trial court to appoint counsel and permit the
parties to brief whether appellant has established a prima facie
basis for relief. We express no opinion on whether the trial court
should grant such relief.
2 We grant respondent’s request to take judicial notice of
the clerk’s transcript from appellant’s direct appeal, which
includes the instruction, CALJIC No. 3.02 [Principals -- Liability
for Natural and Probable Consequences]. (See People v. Pacheco,
et al., supra, B188797.)
3
DISPOSITION
The order denying appellant’s section 1172.6 petition is
reversed and the matter is remanded with instructions to appoint
counsel for appellant and to proceed consistent with the pertinent
provisions of section 1172.6, subd. (c).
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
4
Darrell Mavis, Judge
Superior Court County of Los Angeles
______________________________
Edward J. Haggerty, 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, Daniel C. Chang and Ryan M.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.