People v. Villescas CA2/2

Filed 12/3/20 P. v. Villescas CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B306082
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A892288)
v.
ALBERTO VILLESCAS,
Defendant and Appellant.
THE COURT:
In October 1998, a jury convicted Alberto Villescas
(defendant) of two counts of possession of a firearm by a felon
(former Penal Code section 12021, subd. (a)).1 The trial court
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sentenced defendant to prison for 26 years to life. This was a
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The sentence included one year for a prison prior (§ 667.5,
subd. (b)).
“third strike” sentence under our state’s Three Strikes Law
(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)). Defendant’s two
prior “strike” convictions were based on his guilty plea in a single
proceeding in July 1989 to committing violations of attempted
murder (§§ 664, 187) and robbery (§ 211), for which he received a
combined sentence of nine years in state prison.
On appeal, a prior panel of this division of the Court of
Appeal affirmed the judgment. (People v. Villescas (May 2, 2000,
B129758) [nonpub. opn.].) Defendant’s conviction became final in
August 2000.
In February 2020, defendant petitioned the trial court (1) to
declare his 1989 pleas as “void” under newly enacted section
1016.8, and (2) because this declaration would eliminate both of
his prior “strikes,” to vacate the third strike sentence imposed in
this case. The trial court summarily denied the motion on the
grounds that section 1016.8 “does not apply” to defendant’s case.
Defendant filed a timely notice of appeal. We appointed
appellate counsel for defendant. Citing People v. Serrano (2012)
211 Cal. App. 4th 496, counsel filed an opening brief setting out
the procedural history of this case, and a declaration indicating
that counsel had “reviewed the entire record,” had found no
“arguable issues to raise on appeal” and had informed defendant
“of his right to file a supplemental brief.”
We sent a letter to defendant advising him that he had 30
days to file a supplemental brief. On October 27, 2020, defendant
filed a supplemental brief in which he reiterates the argument he
made in his petition to the superior court.
Pursuant to People v. Cole (2020) 52 Cal. App. 5th 1023,
review granted Oct. 14, 2020, S264278, our obligation in
reviewing this appeal of an order denying post-conviction relief is
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to “evaluate [the] arguments presented” in the defendant’s
supplemental brief. (Id. at p. 1040.)
At bottom, defendant in his supplemental brief argues that
his constitutional right to equal protection of the law was violated
because “retroactive application of Penal Code [section] 1016.8 is
proper and just.” Although section 1016.8 applies retroactively to
cases not yet final on appeal (People v. Barton (2020) 52
Cal. App. 5th 1145, 1153), defendant’s judgment has been final
since 2000. Nothing in section 1016.8 authorizes a collateral
attack on a final judgment. By its terms, section 1016.8 prohibits
the state from requiring a defendant, as a condition of a plea
bargain, to “waive future benefits of legislative enactments,
initiatives, appellate decisions, or other changes in the law that
may retroactively apply after the date of the plea . . . .” (§ 1016.8,
subd. (b).) But the trial court imposing sentence in 1998 did not
transgress this requirement because the Three Strikes Law is not
a “future benefit” to defendants, and because the trial court’s act
of sentencing defendant under the Three Strikes Law in 1998
applied the law in effect at that time and thus did not
retroactively apply any law (People v. Sipe (1995) 36 Cal. App. 4th
468, 478-479).
The trial court’s order is accordingly affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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ASHMANN-GERST, Acting P. J., CHAVEZ, J., HOFFSTADT, J.
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