P. v. Villicana CA2/6

Filed 5/14/13 P. v. Villicana CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B243810 (Super. Ct. No. 2010026459) Plaintiff and Respondent, (Ventura County)

v.

EDWARD VILLICANA,

Defendant and Appellant.

Edward Villicana appeals from the judgment entered following his guilty plea to threatening to commit a crime that would result in death or great bodily injury (Pen. Code, § 422, subd. (a)),1 actively participating in a criminal street gang (§ 186.22, subd. (a)), and inflicting corporal injury upon a cohabitant. (§ 273.5, subd. (a).) Appellant admitted one prior serious felony conviction (§ 667, subd. (a)(1)) and one prior conviction ("strike") within the meaning California's "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court dismissed the strike and sentenced appellant to prison for seven years, eight months. Appellant contends that the trial court abused its discretion in denying probation. In addition, he contends that the court failed to exercise its discretion in determining the length of his prison sentence. We affirm.

1 All statutory references are to the Penal Code. 1

Facts Since there was no trial, the following facts are taken from the transcript of the preliminary hearing: Officer Edward Kasaba went to a residence in Oxnard in response to a report of a domestic incident. He met Lillie Perez, who complained that her live-in boyfriend, appellant, had punched her in the face. As a result of the blow, Perez's upper lip was swollen and cut. While Kasaba was questioning Perez, appellant telephoned the house phone. Kasaba answered the phone and identified himself as "Frank." Appellant asked to speak to Perez, but Kasaba said that she was busy and could not come to the phone. Appellant replied, "[T]ell that bitch to call me back within five minutes or I'm going to come over there and drag her out." Appellant hung up, but called back a few minutes later. Kasaba again answered the phone. Appellant said "that he was Lalo from Colonia Chiques and that [Kasaba] had better watch out because he's on his way over." Approximately 10 minutes later, appellant arrived at the residence and was arrested. A gang expert testified that appellant is an active member of Colonia Chiques, a criminal street gang. Guilty Plea and Sentencing Appellant pleaded guilty with the expressly stated "understanding that the Court [would] sentence [him] to no more than seven years, eight months." The court dismissed the strike and imposed the middle term of two years for actively participating in a criminal street gang (count 2), plus a consecutive five-year term for the prior serious felony conviction. (§ 667, subd. (a)(1).) It added a consecutive sentence of eight months for inflicting corporal injury upon a cohabitant (count 3).2 It reduced the criminal threats