People v. Villagomez CA5

California Court of Appeal Feb 6, 2024 No. F084663Unpublished

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Holding. The trial court erred in denying the defendant's petition for resentencing at the prima facie stage because the record did not refute his eligibility for relief, and the court lacked jurisdiction to issue subsequent orders while the initial appeal was pending. The case is remanded for the trial court to issue an order to show cause and conduct an evidentiary hearing.

Issues

Did the trial court err in denying the petition for resentencing at the prima facie stage?
Did the trial court lack jurisdiction to issue orders on the petition while an appeal was pending?
Is the defendant entitled to an evidentiary hearing under Penal Code section 1172.6?

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Because appellant’s appeal was still pending, the court lacked jurisdiction to issue any orders that impacted appellant’s judgment or involved the denial of the petition.”

“The trial court was not entitled to reject appellant’s factual allegations on credibility grounds absent an evidentiary hearing.”

Filed 2/6/24 P. v. Villagomez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F084663, F085933 Plaintiff and Respondent, (Super. Ct. No. VCF349094A) v.

JOSE CHAVEZ VILLAGOMEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Melinda Myrle Reed, Judge. Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Detjen, J. and Meehan, J.

INTRODUCTION In 2019, appellant Jose Chavez Villagomez pleaded no contest to a charge of attempted murder (Pen. Code, §§ 664/187, subd. (a)).1 He received a determinate prison sentence of 25 years. In 2022, appellant filed a petition for resentencing in the trial court, claiming he could no longer be convicted of attempted murder following changes in the law. The court denied the petition at the prima facie stage, and respondent concedes in the present appeal that the trial court erred. After appellant appealed the denial of his petition, and while that appeal was still pending in this court, the trial court recalled this matter and acknowledged that its denial was erroneous. However, the court again denied the petition at the prima facie stage. Respondent admits that the court’s second denial is null and void because this matter was then under appeal. We agree with the parties that the trial court erred in denying appellant’s petition at the prima facie stage. We will remand this matter for the court to conduct an evidentiary hearing regarding the validity of appellant’s conviction for attempted murder. (See § 1172.6, subd. (d)(1)-(3).) BACKGROUND In 2018, an information was filed against appellant and three other codefendants alleging that they each committed three separate counts of premeditated attempted murder. It was alleged that one codefendant, Jesus Villagomez, had personally discharged a firearm. In contrast, the information alleged that appellant and two other codefendants had vicariously discharged a firearm (§ 12022.53, subds. (c) & (e)(1)).2

People v. Villagomez CA5

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