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People v. Villegas

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Feb 16, 2012
B232227 (Cal. Ct. App. Feb. 16, 2012)

Opinion

B232227

02-16-2012

THE PEOPLE, Plaintiff and Respondent, v. RICARDO ENRIQUE VILLEGAS, Defendant and Appellant.

David Arredondo for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Linda C. Johnson and Robert M. Snider, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA085367)

APPEAL from a judgment of the Superior Court of Los Angeles County. George Genasta, Judge. Affirmed.

David Arredondo for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Ricardo Enrique Villegas guilty of three counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), and found true as to each count the special enhancement allegation that he personally used a firearm (§ 12022.5, subd. (a)). The trial court sentenced him to 10 years in prison.

Further statutory references are to the Penal Code.

In a prior appeal, this court concluded that the trial court erred in allowing the prosecution to use a witness's preliminary hearing testimony at trial because the witness was not "unavailable" in the constitutional sense. In the absence of that testimony, substantial evidence did not support the jury's finding that Villegas used a semiautomatic weapon. Accordingly, we modified the judgment to reflect Villegas's conviction on three counts of the lesser, necessarily included offense of assault with a firearm (§ 245, subd. (a)), and remanded the matter for resentencing.

People v. Villegas (Nov. 3, 2010, B215575) [nonpub. opn.], pp. 7-8.

On remand, the trial court sentenced Villegas to nine years and four months in prison. Villegas contends that the trial court erred in imposing a term on count 2 to run consecutively to the sentence on count 1, instead of imposing a concurrent term on count 2 as it did the first time Villegas was sentenced. We affirm.

BACKGROUND

I. Trial and Initial Sentencing

In our opinion in the prior appeal, we stated the evidence presented at trial regarding the assaults with a firearm, in pertinent part, as follows:

"Until he was fired in March 2008, defendant [Villegas] had worked at Sunburst Rock, in the city of Irwindale, for about one year. The general manager of Sunburst Rock fired defendant following a dispute between defendant and his co-worker, Alvaro Diaz.

"Eight months after defendant had been fired, on the evening of November 10, 2008, Diaz called the general manager, stating defendant had just assaulted him and other employees who had been inside a trailer at Sunburst Rock. After the call, the general manager went to Sunburst Rock, where he found Diaz, who was bleeding from one ear, and other employees outside the trailer. Diaz told the general manager that defendant had come into the trailer with a mask over his face, demanded money and hit Diaz on the ear.

"The other employees who had been inside the trailer with Diaz that night were Jose Gonzalo Santis Cruz, Raul Alvarez, and his brother Humberto Alvarez.[] Raul, Humberto and Diaz each testified and gave similar accounts of what happened that evening.[] The four co-workers were watching television in the trailer at Sunburst Rock, when two masked men holding guns came into the trailer. One man stayed by the door, while the other moved further inside the trailer. Humberto . . . stated that the masked men pointed their guns at the four of them watching television. According to Raul, the man who came further inside the trailer said 'Get on the ground, assholes.' . . . Humberto similarly stated the men ordered them to 'get on the ground.'

"Because they share the same last name, we refer to the Alvarez brothers as Raul and Humberto."

"At trial, the court allowed the prosecution to use Diaz's preliminary hearing testimony. The court held that Diaz was unavailable and that the prosecution had used due diligence in trying to locate him. . . ." In the present appeal, we do not refer to the substance of Diaz's testimony because of our conclusion in the prior appeal that the testimony was erroneously admitted.

"The man who came further inside the trailer hit Cruz and then Diaz with the butt of his gun, causing Diaz's ear to bleed. As Diaz tried to defend himself, he lifted the man's mask, revealing his face. Raul [and] Humberto . . . each saw that it was defendant, whom they all knew. A few days after the incident, Raul identified defendant in a photographic lineup.

"After his mask was lifted, defendant and the other man fled to a car waiting outside. Raul and Diaz chased after them, but took cover when defendant turned as he was running and fired a shot in their direction. Humberto heard the shot and saw a spark come from defendant's gun. Humberto described the shot as a random shot in the direction of the trailer and the four men. . . . [¶] . . . [¶]

"An Irwindale Police Officer who responded to the scene stated that, when he spoke with the victims that night, none of them mentioned defendant had fired a shot. . . . An Irwindale Police Detective spoke with the victims a few days later. They told him defendant had fired a shot toward them as he was fleeing the trailer. . . ." (People v. Villegas, supra, B215575, pp. 2-4.)

We do not describe here other evidence presented at trial which is not pertinent to the issue on appeal, including evidence regarding the type of firearm used and evidence presented in support of Villegas's alibi defense.

The jury found Villegas guilty of three counts of assault with a semiautomatic firearm against Diaz (count 1), Raul Alvarez (count 2) and Jose Gonzalo Santis Cruz (count 3). The jury also found true as to each count the special enhancement allegation that Villegas personally used a firearm within the meaning of section 12022.5, subdivision (a). On count 1, the trial court sentenced Villegas to the mid-term of six years in prison, plus four years for the firearm allegation. The court imposed the same terms for counts 2 and 3, and ordered each to run concurrently with the sentence on count 1.

On the court's own motion, we take judicial notice of the appellate record in the prior appeal, B215575.

II. Prior Appeal and Resentencing

Villegas appealed. As set forth above, we concluded that the trial court erred in allowing the prosecution to use Diaz's preliminary hearing testimony at trial because Diaz was not "unavailable" in the constitutional sense. We found that, in the absence of Diaz's testimony, substantial evidence did not support the jury's finding that Villegas used a semiautomatic weapon. Accordingly, we modified the judgment to reflect Villegas's conviction on three counts of the lesser, necessarily included offense of assault with a firearm (§ 245, subd. (a)), and remanded the matter for resentencing.

On remand, the trial court sentenced Villegas to nine years and four months in prison: on count 1, the mid-term of three years for the assault with a firearm, plus the mid-term of four years for the firearm enhancement under section 12022.5, subdivision (a); on count 2, a consecutive term of one year for assault with a firearm (one-third the mid-term), plus one year and four months for the firearm enhancement (one-third the mid-term). On count 3, the court imposed a concurrent term of three years for the assault with a firearm, plus four years for the firearm enhancement.

The court noted that the first time it sentenced Villegas for these crimes it could have imposed consecutive terms on counts 2 and 3 because there was a different victim for each of the three counts. The court chose to impose concurrent terms on counts 2 and 3 during the first sentencing because it believed that 10 years was an appropriate sentence based on Villegas's conduct ("discharging a firearm at three individuals") and his lack of a prior record. The court explained that it believed nine years and four months was an appropriate sentence on remand based on Villegas's conduct regardless of which type of firearm he used ("a semiautomatic or a regular firearm").

DISCUSSION

Villegas contends that the trial court erred in imposing a term on count 2 to run consecutively to the sentence on count 1, instead of imposing a concurrent term on count 2 as it did the first time Villegas was sentenced.

In the respondent's brief, the People argue that Villegas has forfeited this claim by failing to object below to the imposition of consecutive terms. We agree. "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) Villegas did not address the forfeiture issue in his opening brief and did not file a reply brief on appeal.

Even if Villegas had not forfeited this claim, he could not show that the trial court abused its discretion in imposing consecutive terms on counts 1 and 2. "[T]he trial judge's original sentencing choices did not constrain him . . . from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased," which it was not here. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1256.)

The crimes involved separate victims and separate acts of violence or threats of violence. (See People v. Caesar (2008) 167 Cal.App.4th 1050, 1061, disapproved on other grounds in People v. Superior Court (2010) 48 Cal.4th 1, 18 ["the naming of separate victims in separate counts is a circumstance on which a trial court may properly rely to impose consecutive sentences"]; Cal. Rules of Court, rule 4.425(a)(2) [that the "crimes involved separate acts of violence or threats of violence" is a "[c]riteri[on] affecting the decision to impose consecutive rather than concurrent sentences"].) Evidence presented at trial showed that Villegas ordered Diaz and Raul Alvarez (the respective victims in counts 1 and 2) at gunpoint to get on the ground. Villegas then hit Diaz with the butt of his firearm, which caused Diaz's ear to bleed. Later Villegas discharged his gun at Diaz and Raul Alvarez.

These facts are supported by evidence presented at trial other than Diaz's preliminary hearing testimony which was erroneously admitted.
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Based on the foregoing, we have no cause to vacate Villegas's sentence.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

CHANEY, J. We concur:

MALLANO, P. J.

JOHNSON, J.


Summaries of

People v. Villegas

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Feb 16, 2012
B232227 (Cal. Ct. App. Feb. 16, 2012)
Case details for

People v. Villegas

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICARDO ENRIQUE VILLEGAS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

Date published: Feb 16, 2012

Citations

B232227 (Cal. Ct. App. Feb. 16, 2012)