People v. Villalobos CA5

Filed 6/25/21 P. v. Villalobos CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F080829 Plaintiff and Respondent, (Super. Ct. No. CF82277056) v.

DEMESIO CERVANTES VILLALOBOS, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christina Hitomi Simpson and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Franson, J. and Peña, J.

Appellant Demesio Cervantes Villalobos appeals following the denial of his petition for resentencing under Penal Code section 1170.95.1 Appellant raises several alleged errors with the proceedings and result in his opening brief but abandons several in reply based on the People’s concession that an error occurred. Ultimately, the parties agree that the trial court erred in making certain factual findings and that appellant should be provided counsel on remand. The remaining dispute is whether this court should remand for further proceedings on the prima facie case analysis or require the trial court to hold an evidentiary hearing. For the reasons set forth below, we agree with appellant that on the current record an evidentiary hearing is required and therefore remand for the trial court to conduct that hearing. FACTUAL AND PROCEDURAL BACKGROUND In 1982, appellant was convicted of murder, assault with a deadly weapon on a police officer, and resisting an executive officer. His conviction, however, was overturned on appeal. Upon remand, appellant pleaded guilty to a single count of second degree murder. In 2019, appellant filed a petition under section 1170.95 for resentencing. The People filed an opposition on the merits, claiming appellant was ineligible for relief, first because he aided and abetted in the crime and, second, because the victim in his case was a police officer engaged in his official duties. The court summarily denied appellant’s petition on the second ground, without appointing counsel. The court wrote, “The victim of the murder was a peace officer in the performance of his duties, and petitioner was aware of this and the circumstances were not such that he should not reasonably have been aware that the victim was a peace officer in the performance of his duties. Petitioner is not eligible for resentencing.” This appeal timely followed.