People v. Villegas CA4/3

Filed 5/25/23 P. v. Villegas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, G061176 Plaintiff and Respondent, (Super. Ct. No. 15NF2192) v. OPINION ALFREDO GABRIEL VILLEGAS,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Reversed and remanded for resentencing. Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Paige B. Hazard and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Alfredo Gabriel Villegas appeals from the trial court’s sentencing decision, which postdated by several weeks the January 2022 effective date of new legislation providing for the presumptive imposition of a low term based on a defendant’s youth 1 under certain circumstances. (See Pen. Code, § 1170, subd. (b)(6)(B).) Specifically, the statute directs the court to determine whether age may have been “a contributing factor in the commission of the offense.” (Id., subd. (b)(6).) When the record indicates the trial court was not aware of new discretionary authority and it does not reflect that the sentencing result “‘clearly’” would have been the same had the court been so aware, the standard remedy is to vacate the sentence imposed and remand the matter for resentencing. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) That is the situation here. We express no opinion as to how the trial court should exercise its discretion on remand.

FACTUAL AND PROCEDURAL BACKGROUND Villegas pled guilty to one count of attempted murder (§§ 664, subd. (a); 187, subd. (a)), one count of mayhem (§ 203), one count of assault likely to cause great bodily harm (§ 245, subd. (a)(4)), and one count of active participation in a criminal street gang (§ 186.22, subd. (a)). Based on the court’s indicated sentence with a “23 y[ea]r lid” settlement offer reflected on his plea form, the actual sentence was to be determined “at sentencing.” According to the probation officer’s pre-sentence report, Villegas “and his mother went to the Anaheim Police Department” on August 11, 2015 “so the defendant could turn himself in” for the offenses he committed two weeks earlier on July 26. Villegas and his gang cohort had been spray painting graffiti when two older men, one