People v. Villanueva CA6

Filed 1/19/23 P. v. Villanueva CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049951 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS102330B)

v.

RICARDO VILLANUEVA,

Defendant and Appellant.

In 2013, as part of a negotiated disposition, defendant Ricardo Villanueva pleaded no contest to one count of attempted murder (Pen. Code, §§ 664, 187, subd. (a)),1 one count of street terrorism (§ 186.22, subd. (a)), and admitted allegations supporting criminal street gang (§ 186.22, subd. (b)(1)) and firearm enhancements (§ 12022.53, subds. (c), (e)). Villanueva was sentenced to an aggregate term of 25 years in state prison. Villanueva now appeals following the denial of his petition for resentencing under former section 1170.95 (Stats. 2018, ch. 1015, § 4).2 The parties agree that the trial court erred in making certain factual findings and should not have denied Villanueva’s petition at the prima facie stage. We concur. We therefore reverse the trial court’s order and remand with directions.

1 Unspecified statutory references are to the Penal Code. 2 Section 1170.95 has been amended and renumbered as section 1172.6. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022; see also Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.) We will henceforth refer only to section 1172.6.

I. FACTUAL AND PROCEDURAL BACKGROUND A. Procedural background On May 24, 2011, the Monterey County District Attorney filed an amended information against Villanueva and a codefendant, Jesse Estrada Diaz. Villanueva was charged with one count of first degree murder (§ 187, subd. (a); count 1), one count of attempted first degree murder (§§ 664, 187, subd. (a); count 2), and one count of street terrorism (§ 186.22, subd. (a); count 3). In addition, the information charged Villanueva with gang allegations (§ 186.22, subd. (b)(1)) in connection with counts 1 and 2, and with firearm allegations (§ 12022.53, subds. (c), (e)) in connection with count 2. On October 3, 2013, Villanueva entered into a plea agreement, pleading no contest to attempted murder, without premeditation (§§ 664, 187, subd. (a); count 2), street terrorism (§ 186.22, subd. (a), count 3), and admitting the gang and firearm enhancement allegations (§§ 186.22, subd. (b)(1), 12022.53, subds. (c), (e)).3 In exchange, the remaining charges and allegations would be dismissed and Villanueva would receive a stipulated sentence of 25 years in state prison. The trial court subsequently sentenced Villanueva to a total term of 25 years, consisting of the lower term of five years on count 2, plus 20 years for the firearm enhancement. On January 5, 2022, Villanueva filed a pro per petition seeking resentencing pursuant to section 1172.6. The trial court appointed counsel and, after the parties submitted briefing on the matter,4 denied the petition for failure to state a prima facie claim for relief.