Opinion
B295652
04-03-2020
THE PEOPLE, Plaintiff and Respondent, v. RICHARD DAVID VILLA, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Michael R. Johnsen and Blythe J. Leszky, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA442792) APPEAL from the judgment of the Superior Court of Los Angeles County. Craig J. Mitchell, Judge. Affirmed as modified. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Michael R. Johnsen and Blythe J. Leszky, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Richard David Villa was charged with eight felonies arising from a series of criminal acts inflicted against multiple victims, including murder, attempted murder, domestic violence, child abuse and assault with a firearm. He was sentenced to 291 years to life in state prison.
Defendant contends the trial court abused its discretion in denying his motion to sever and that the imposition of the firearm use enhancement on the murder count violates the multiple conviction rule and his constitutional rights. He further contends, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), that the court erred in failing to conduct an ability-to-pay hearing before imposing various fines and fees.
We requested supplemental briefing on the passage of Senate Bill No. 136 (2019-2020 Reg. Sess.) during the pendency of this appeal. We conclude the seven 1-year enhancements imposed pursuant to Penal Code section 667.5, subdivision (b) must be stricken in light of Senate Bill No. 136 and affirm the judgment of conviction in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information as follows: murder (Pen. Code, § 187, subd. (a) [count 1]), attempted premeditated murder (§ 187, subd. (a), § 664 [count 2]), corporal injury to a spouse or cohabitant (§ 273.5, subd. (a) [count 3]), child abuse (§ 273a, subd. (a) [count 4]), false imprisonment by violence (§ 236 [count 5]), possession of a firearm by a felon (§ 29800, subd. (a)(1) [count 6]), and assault with a firearm (§ 245, subd. (b) [counts 7 & 8]). Firearm use allegations pursuant to section 12022.53, subdivisions (b) through (d) and gang allegations pursuant to section 186.22 were alleged as to counts 1 and 2. Firearm use allegations pursuant to section 12022.5, subdivision (a) were alleged as to counts 3, 4, and 5. It was also alleged that defendant inflicted great bodily injury within the meaning of section 12022.7, subdivision (e) in the commission of counts 3 and 5. Finally, it was alleged defendant had suffered two prior convictions for a serious or violent felony within the meaning of the "Three Strikes" law (§ 667, § 1170.12), one prior felony conviction within the meaning of section 667, subdivision (a)(1) and one prison prior (§ 667.5, subd. (b)).
The charges arose from a series of acts by defendant that occurred in the early morning hours of January 10, 2015. At that time, defendant was living with his longtime girlfriend, J.M., the mother of his minor son and infant daughter. They lived in a detached house at the back of a property in Los Angeles. J.M.'s parents and her teenage daughter lived in the front house on the property. Defendant had been a member of the 18th Street gang for many years.
We refer to the victims and witnesses only by their first names or initials to protect their privacy.
J.M. testified that on the evening of January 9, 2015, both she and defendant were drinking alcohol and were alone in their house, except for the baby who was sleeping. Defendant had previously been employed at various construction-related jobs but had recently lost his job. As the night wore on, defendant began to make repeated trips to the bathroom and J.M. believed he was doing drugs. During the early morning hours of January 10, defendant began acting upset, then angry. He cursed and yelled at J.M., saying life was unfair. Defendant expressed anger about losing his job and said he wanted to get back at the people he felt were responsible.
At some point, defendant started to leave the house and J.M. tried to stop him because he was drunk and not "in his right state of mind to be in the streets." Defendant insisted he had to confront the people who had gotten him fired. J.M. asked defendant for his car keys, asked him not to leave and tried to block the door. Defendant struck her repeatedly in the face, to the point that she lost consciousness. When J.M. awoke on the floor, defendant was kicking her. She pleaded with him, but he kept attacking her. J.M. said "[i]t seemed like he just took his anger out on me."
J.M. heard their infant daughter crying in her crib and she feared the crying might agitate defendant further, so she crawled to her daughter's room. She held the baby and tried to soothe her, but defendant kept yelling and cursing at her. J.M. tried to shield the baby as defendant continued to hit her.
At some point, J.M. noticed defendant was holding a "small black handgun." He twice pointed the gun at his own head and apparently pulled the trigger, but the gun only made a clicking noise.
When defendant once again returned to the bathroom, J.M. took the baby and fled to her parents' house at the front of the property. J.M.'s daughter let her in. J.M. appeared frightened and her face was swollen. Both J.M. and the baby were crying. J.M. did not want the lights turned on and warned her daughter not to go outside. J.M. said she and defendant had a fight and she believed he hit her in the head with a gun. Defendant came up to the house but was not let in. He jumped over the fence and walked off.
Thereafter, J.M. received several texts from defendant, one of which said "[j]ust stop me please."
Around 7:00 a.m., friends Jose E. and William B. were collecting cans at an intersection on Crenshaw Boulevard about a mile from defendant's home. A surveillance camera at a gas station located at the intersection captured video showing a man matching defendant's general appearance apparently following Jose and William.
Defendant confronted Jose and William and asked them where they were from. William said he did not belong to a gang, but Jose said he was "Sur Treces." Defendant responded that he was from 18th Street, and Jose said "Faketeen." Defendant pulled out a black handgun and started shooting. William was able to run away, but Jose suffered fatal gunshot wounds. At trial, William claimed not to remember anything other than being shot at, but his recorded pretrial statements, including one recorded in the police car on the day of the shooting, were played for the jury. William described the shooter consistently with defendant's general appearance, identifying him as a bald, muscular guy of medium height with a moustache.
James B. lived near the intersection and heard several gunshots that morning while he was lying in bed. He got up and looked out his window and saw a man near his neighbor's truck. The man appeared to be putting a black handgun into his jacket pocket. The man had a shaved head, a mustache and a medium build. He was wearing jeans and what looked like a Letterman's jacket. James later identified defendant in a photographic six-pack.
Oswaldo C. was heading to work and stepped outside his home around 7:00 a.m. He immediately heard several gunshots. He walked to his truck parked in his driveway. He noticed a Hispanic man walking down the street with one hand in the pocket of his jacket. The man started staring at him, so he turned and began to unlock his truck. The man quickly crossed the street and walked right up to Oswaldo, asking him, in English, "where you from?" Oswaldo said he was not in a gang but was from El Salvador. The man pointed a black handgun directly at him. Oswaldo noticed that his son, Kevin, had come outside at some point and gotten into the passenger side of the truck. The man pointed the gun at Kevin and asked where he was from. Oswaldo asked the man to please take it easy. The man turned the gun back on Oswaldo, said "don't say nothing" and walked away. Oswaldo went inside and called 911. He said the man was wearing a gray jacket, had a shaved head, was about 170 to 180 pounds, and was of medium height.
Kevin was frightened and kept his head down most of the time and was unable to get a good look at the man. He recalled however that he had a shaved head, medium build and appeared to be a light-skinned Latino.
Cell phone records showed that defendant's cell phone was in the vicinity of the two locations where the shooting and assaults took place at the time they occurred. The records also showed that defendant's cell phone then headed south and by the late afternoon was in the vicinity of San Ysidro at the Mexican border.
During J.M.'s trial testimony, she said she suffered from memory loss since the January 10 incident and that she did not want to be testifying and feared retaliation. She explained that after the incident she experienced serious headaches and was eventually hospitalized and underwent surgery due to a subdural hematoma. J.M. also testified briefly about a prior incident of domestic violence by defendant that occurred in May 2009, the details of which she could not recall.
J.M. was also asked about seeing a televised press conference several months after the January 10 incident in which the police were offering a $75,000 reward for information related to the murder of Jose E. J.M. said she believed the photographs of the wanted man looked like defendant, and she eventually notified the police. She said she now had doubts about that and had been motivated in part by the possibility of receiving the reward.
The jury convicted defendant as charged. In a bifurcated bench proceeding, the court found true the prior conviction allegations.
The court sentenced defendant to a third strike sentence for a term of 291 years to life. The court imposed a $40 court operations fee (Pen. Code, § 1465.8) as to each count, a $30 criminal conviction fee (Gov. Code, § 70373) as to each count, a $10,000 restitution fine (Pen. Code, § 1202.4) and imposed and stayed a $10,000 parole revocation fine (Pen. Code, § 1202.45). The court ordered victim restitution in the amount of $5,000 and awarded defendant 1,382 days of presentence custody credits.
This appeal followed.
DISCUSSION
1. Denial of Motion to Sever
Defendant's main contention is the trial court abused its discretion in denying his motion to sever trial of the domestic violence counts and the gun possession count (counts 3 - 6) from the murder, attempted murder and assault with a firearm counts (counts 1, 2, 7 & 8).
Penal Code section 954 authorizes the joinder of "two or more different offenses connected together in their commission." (Ibid.) " 'Offenses "committed at different times and places against different victims are nevertheless 'connected together in their commission' when they are . . . linked by a ' "common element of substantial importance." ' [Citations.]" [Citation.]' " (People v. Valdez (2004) 32 Cal.4th 73, 119 (Valdez) [joinder of capital murder charge and separate charge of attempted escape that arose two years after the murder was proper].)
Here, the felonies were of the same class and shared a common element of substantial importance. Defendant committed all the crimes within just a few hours while he was in an apparent alcohol- and drug-induced rage about the loss of his job. Defendant used the same handgun in all of the assaults on the various victims—another common thread linking all eight felonies. (See, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 160 [multiple robberies, burglaries, kidnappings and murder occurring over span of three days properly joined under Pen. Code, § 954].)
Where, as here, the charges are initially properly joined under Penal Code section 954, a defendant " 'must make a clear showing of prejudice to establish that the trial court abused its discretion in denying defendant's severance motion. [Citations.]' [Citation.]" (Valdez, supra, 32 Cal.4th at p. 119.)
In People v. Soper (2009) 45 Cal.4th 759, 774, the Supreme Court explained that a party seeking severance of properly joined charges must make a stronger showing of potential prejudice than would be required to exclude other-crimes evidence. "[A]mong the 'countervailing considerations present in the context of severance—but absent in the context of admitting evidence of uncharged offenses at a separate trial—are the benefits to the state, in the form of conservation of judicial resources and public funds. [Citation.] . . . [T]hese considerations often weigh strongly against severance of properly joined charges." (Ibid., italics added)
In this noncapital case, we also consider the following factors in assessing defendant's claimed prejudice: "whether the evidence [was] cross-admissible in separate trials; whether some of the charges [were] likely to inflame the jury; [and] whether a weak case has been joined with a strong case so that a 'spillover' effect [may have affected] the outcome." (Valdez, supra, 32 Cal.4th at p. 120.)
The domestic violence charges were not more likely to inflame the jury. While the details of the assault on J.M. and her infant daughter were serious and emotionally compelling, so were the facts of defendant's unprovoked shooting at Jose and William—a shooting that resulted in Jose's death. No less shocking were the facts that defendant then walked down the street and confronted Oswaldo and his son in the driveway of their home and threatened them, at close range, with the same gun used in the earlier felonies. We are not persuaded any of the evidence was presented in a sensationalized manner to inflame the jury.
We do not agree with defendant's contention that the evidence supporting the murder, attempted murder and assault counts was weak relative to the domestic violence counts. Defense counsel was able to point out on cross-examination some inconsistencies in the eyewitness testimony. But there was ample evidence supporting defendant's guilt on counts 1, 2, 7 and 8.
Whether or not all the evidence was cross-admissible, defendant has not shown that the trial was grossly unfair or resulted in a denial of due process.
2. The Firearm Use Enhancement on Count 1
Defendant next contends the imposition of the firearm use enhancement pursuant to Penal Code section 12022.53, subdivision (d) on the murder count violates the multiple conviction rule and federal double jeopardy principles. Defendant concedes our Supreme Court has already rejected this argument in People v. Sloan (2007) 42 Cal.4th 110 and People v. People v. Izaguirre (2007) 42 Cal.4th 126. He raises the issue to preserve the issue for further review. (People v. Jaramillo (1993) 20 Cal.App.4th 196, 198.)
We are bound to follow the Supreme Court's decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
3. Imposition of Fines and Fees
Finally, relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant contends the trial court's imposition of a court security fee on each count, a criminal conviction fee on each count, a restitution fine and a parole revocation fine without a finding of his ability to pay violated his due process rights. In raising this argument, defendant does not challenge the imposition of $5,000 in direct victim restitution and acknowledges that the parole revocation fine was stayed. Moreover, defendant concedes he did not object on these, or any, grounds in the trial court.
Defendant has forfeited this contention. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen) [finding forfeiture where no objection raised in trial court to imposition of court operation assessment, criminal conviction assessment and restitution fine]; accord, People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; see also People v. Avila (2009) 46 Cal.4th 680, 729 [finding forfeiture where the defendant failed to object to imposition of restitution fine under Pen. Code, former § 1202.4 based on inability to pay].)
The court imposed the statutory maximum restitution fine. Under subdivision (c) of Penal Code section 1202.4, defendant had notice of his right to argue inability to pay in opposition to the imposition of any restitution fine over the statutory minimum of $300. Defendant did not do so. Defendant was in the best position to know whether he had the ability to pay the fines and fees and it was incumbent upon him to raise the issue with the court.
Defendant nevertheless urges us to reject Frandsen and find the contention has not been forfeited, citing People v. Castellano (2019) 33 Cal.App.5th 485, 489 and People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034. We believe Frandsen to be the better reasoned decision and conclude there is no basis for excusing defendant's forfeiture on this issue.
In any event, nothing in the record supports defendant's contention the imposition of the fines and fees was fundamentally unfair to defendant or violated his constitutional right to due process as found in Dueñas. The fines and fees were imposed pursuant to clear statutory authority. Dueñas not only involved unique factual circumstances not applicable here, but the validity of its analytical framework has been questioned by numerous courts: see, e.g., People v. Allen (2019) 41 Cal.App.5th 312, 326-329, review denied January 2, 2020, S259279; People v. Kingston (2019) 41 Cal.App.5th 272, 279-282; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted November 26, 2019, S258946; People v. Caceres (2019) 39 Cal.App.5th 917, 926-929, review denied January 2, 2020, S258720.
Defendant was represented by counsel at the sentencing hearing and in the absence of a timely objection, the trial court could reasonably presume the fines and fees would be paid out of defendant's future prison wages. (See, e.g., People v. Douglas (1995) 39 Cal.App.4th 1385, 1397; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Gentry (1994) 28 Cal.App.4th 1374, 1376-1377; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.) The record demonstrates defendant was able-bodied, had been employed in the past and was reasonably young. Defendant will have time to earn sufficient prison wages to pay the fines during his lengthy, indeterminate sentence.
4. Senate Bill No. 136
We asked the parties for supplemental letter briefs addressing whether we should strike the one-year sentence enhancements (the prison priors) in light of the passage of Senate Bill No. 136 during the pendency of this appeal.
The parties agree Senate Bill No. 136 applies retroactively and that defendant is entitled to the benefit of the amendments to Penal Code section 667.5 which became effective January 1, 2020. The parties further agree that defendant's prior conviction is not an enumerated sexually violent offense set forth in the amended statute and therefore the prison priors must be stricken. We agree.
Defendant asserts we may strike the prison priors and affirm the judgment as modified. Respondent contends we must remand to allow the trial court the opportunity to reconsider all of its sentencing options.
The trial court imposed a third-strike sentence of 291 years to life. The indeterminate terms were all run consecutively, and the court imposed an upper term sentence on count 6, the sole count with a determinate sentence, which was then doubled due to the prior strikes. The court stayed the sentence on count 5 pursuant to Penal Code section 654, finding it merged with count 3, both counts pertaining to the assault on J.M.
The only portion of the sentence for which the court did not impose the maximum term was the firearm enhancement on count 3. Having imposed 25 years to life on count 3, the court imposed the midterm of four years on the firearm use enhancement because of "the manner in which the gun was used in the commission of that offense. It was not as egregious as it could have been." The court appears to have been referencing the testimony that defendant hit J.M. with the gun during the assault, rather than shooting her.
Given the trial court's thorough explanation of its sentencing choices, we believe remanding under these circumstances would serve no purpose but to waste scarce judicial resources. We therefore reverse each of the seven 1-year enhancements imposed pursuant to Penal Code section 667.5, subdivision (b), including the one-year enhancement imposed and stayed on count 5.
As so modified, the judgment of conviction is affirmed in all other respects.
DISPOSITION
The seven 1-year enhancements imposed pursuant to Penal Code section 667.5, subdivision (b) are reversed and stricken. The judgment, as so modified, is affirmed in all other respects.
The superior court is directed to prepare a new abstract of judgment consistent with this opinion and transmit same to the Department of Corrections and Rehabilitation.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.