P. v. Villegas

Filed 12/9/20 P. v. Villegas CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
HECTOR RODOLFO VILLEGAS,
Defendant and Appellant.
B300146
(Los Angeles County
Super. Ct. No. GA032022)
APPEAL from an order of the Superior Court of Los
Angeles County, Teri Schwartz, Judge. Affirmed.
Jin H. Kim, 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, Senior
Assistant Attorney General, and Idan Ivri and Nancy L. Ladner,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________

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INTRODUCTION
Hector Rodolfo Villegas appeals from the superior court’s
order denying his petition under Penal Code section 1170.95,1
which allows certain defendants convicted of murder under a
felony murder or natural and probable consequences theory to
petition the court to vacate their convictions and for resentencing.
Villegas contends the court erred by applying an incorrect
standard of proof. We conclude that, although the court initially
applied an incorrect standard, the court also applied, in the
alternative, the correct standard and that substantial evidence
supported the court’s ruling under that standard. Therefore, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Villegas of Murder, and This Court
Affirms
At 2:30 a.m. on April 14, 1997, 20-year-old Villegas, in a
stolen car, led police officers on a 10-mile high-speed chase,
driving 85 miles per hour on residential neighborhoods through
several cities. During the chase Villegas drove on the wrong side
of the road, ran at least two stop signs and two red lights, and
nearly collided with a city bus. The chase ended when he skidded
across seven lanes of traffic and crashed into a telephone pole,
killing his passenger, 57-year-old Todd Cassick.
The People charged Villegas with second degree murder
(§ 187, subd. (a); count 1), willfully fleeing or attempting to elude
a pursuing peace officer proximately causing death (Veh. Code,
1 Undesignated statutory references are to the Penal Code.

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§ 2800.3, subd. (b); count 2), and unlawful driving or taking of a
vehicle (Veh. Code, § 10851, subd. (a); count 3). At trial Villegas
sought to establish he fled from police only because he was afraid
of and pressured by the much older Cassick. Villegas admitted
that during the chase he knew what he was doing “was very
dangerous” and that he “knew [he] might hurt people by driving
this quick.”
The trial court instructed the jury on two theories of
murder: second degree felony murder and implied malice
murder.2 The jury convicted Villegas on all counts. The court
sentenced Villegas on count 1 to a prison term of 15 years to life,
on count 2 to four years (stayed under section 654), and on
count 3 to a term of two years (concurrent with the sentence on
count 1). On direct appeal this court affirmed the judgment. It
also dismissed a petition by Villegas for writ of habeas corpus in
which he contended he received ineffective assistance of counsel.
B. The Legislature Enacts Senate Bill No. 1437
In 2018 the Legislature enacted Senate Bill No. 1437
(Stats. 2018, ch. 1015, § 4), effective January 1, 2019, which
amended the felony murder rule and eliminated the natural and
probable consequences doctrine as it relates to murder by
amending sections 188 and 189. New section 188,
subdivision (a)(3), provides, “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
2 The predicate felony for the felony murder theory was
fleeing or attempting to elude a pursuing peace officer while
driving with a willful or wanton disregard for the safety of
persons or property, in violation of Vehicle Code section 2800.2.

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imputed to a person based solely on his or her participation in a
crime.” New section 189, subdivision (e), provides that a
participant in the perpetration or attempted perpetration of a
felony listed in section 189, subdivision (a), in which a death
occurs (that is, those crimes that provide the basis for first degree
felony murder) “is liable for murder only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.”
Senate Bill No. 1437, through new section 1170.95, also
authorizes an individual convicted of felony murder or murder
under a natural and probable consequences theory to petition the
sentencing court to vacate the conviction and to be resentenced
on any remaining counts if the individual could not have been
convicted of murder under Senate Bill No. 1437’s changes to the
definition of the crime. (§ 1170.95, subd. (a).) The petition must
include a declaration by the petitioner that he or she is eligible
for relief under this section, the superior court case number and
year of the petitioner’s conviction, and a statement whether the
petitioner requests the appointment of counsel. (§ 1170.95,
subd. (b)(1); see People v. Verdugo (2020) 44 Cal.App.5th 320,
326-327, review granted Mar. 18, 2020, S260493 (Verdugo).)
If the petition contains all required information, and the
court determines the petition is facially sufficient, section
1170.95, subdivision (c), prescribes a two-step procedure for the

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court to determine whether to issue an order to show cause:
“‘The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent
the petitioner. The prosecutor shall file and serve a response . . .
and the petitioner may file and serve a reply . . . . If the
petitioner makes a prima facie showing that he or she is entitled
to relief, the court shall issue an order to show cause.’” (Verdugo,
supra, 44 Cal.App.5th at p. 327.)
If the court determines the petitioner has made a prima
facie showing and the court issues an order to show cause, the
court must hold a hearing to determine whether to vacate the
murder conviction and to recall the sentence and resentence the
petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see
Verdugo, supra, 44 Cal.App.5th at p. 327.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).) The prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence. (See
People v. Tarkington (2020) 49 Cal.App.5th 892, 898-899, review
granted Aug. 12, 2020, S263219; People v. Lewis (2020)
43 Cal.App.5th 1128, 1136 & fn. 7 [“The record of conviction
includes a reviewing court’s opinion.”], review granted Mar. 18,
2020, S260598.)

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C. Villegas Files a Petition Under Section 1170.95,
Which the Superior Court Denies After Issuing an
Order To Show Cause and Holding a Hearing
In January 2019 Villegas filed a petition for resentencing
under section 1170.95. After the People conceded he had made a
prima facie showing he was entitled to relief because “there were
multiple theories of [murder] liability available to the jury,
including felony murder,” the superior court issued an order to
show cause. In the ensuing briefing, the People argued Villegas
was not entitled to relief because, among other reasons, under
current law Villegas “could still be convicted of second degree
murder beyond a reasonable doubt” on an implied malice theory.
As we will discuss more fully below, “second degree murder based
on implied malice has been committed when a person does ‘“‘an
act, the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who knows
that his conduct endangers the life of another and who acts with
conscious disregard for life.’”’” (People v. Watson (1981) 30 Cal.3d
290, 300; accord, Zemek v. Superior Court (2020) 44 Cal.App.5th
535, 548.)
In June 2019 the superior court held a hearing, at which
the court stated it had reviewed the file, including the entire
reporter’s transcript of the 1997 trial, the jury instructions, and
this court’s opinion resolving Villegas’s direct appeal and habeas
petition. And after observing that, as a result of Senate Bill
No. 1437, Villegas could no longer be convicted of murder based
on the felony murder theory presented at his trial, the court
stated: “I view my role here as a limited one. I view my role as
one of making a determination not of guilt beyond a reasonable

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doubt, but whether the People can prove that the defendant is
ineligible under 1170.95 because he could not be convicted under
the present state of the law. So the way I view the question is,
Can the People demonstrate beyond a reasonable doubt that the
defendant could be convicted under the implied malice theory of
murder?”
Agreeing that the court had accurately described its role
and the dispositive question, the People argued Villegas “could
still be convicted beyond a reasonable doubt of implied malice
murder given the evidence that was presented during the trial.”
Counsel for Villegas, however, argued Villegas was entitled to
have a jury determine whether “the People can prove beyond a
reasonable doubt that [Villegas] is ineligible for relief” under
section 1170.95. After the court rejected that argument, counsel
for Villegas expressed concern about “the court’s emphasi[s] on
the word ‘could’” when stating the People’s burden was to
demonstrate beyond a reasonable doubt the defendant could be
convicted of murder on an implied malice theory. The court
responded, in relevant part: “I don’t know that my role here is to
say, Is the defendant guilty? Have the People proven him guilty
beyond a reasonable doubt of second degree implied malice
murder? I don’t know that that’s my role here. Because the
question is could he be, not would he be.” Counsel for Villegas
answered: “And that’s why I go back to asking for a jury.” The
court indicated it understood Villegas’s argument and again
outlined what the court viewed its role was. “So I don’t view my
role as the trier of fact here. I don’t view my role as the 13th
juror. And if I’m wrong, we’ll be back, right, depending on the
outcome.”

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After hearing further argument on the evidence at trial, the
superior court found the People had met their burden of proving
Villegas was ineligible for relief under section 1170.95. The court
stated: “There is more than enough evidence to prove beyond a
reasonable doubt that the way this . . . evading was committed
does rise to the level of proving that the defendant committed an
implied malice murder. . . . The natural consequences of that
conduct . . . were dangerous to human life. And I don’t think
there could be any dispute but that . . . the duration of the chase,
the location of the chase, the speeds, the manner in which
[Villegas] was driving—all of that was dangerous to human life.
And it’s clear just by the testimony of the officers, without the
defendant’s admissions, it’s clear he was deliberately engaging in
this conduct knowing the danger to human life and acting in
conscious disregard for that human life. . . . So while I’m
aware . . . that one theory was presented that was legally
incorrect, the manner in which the evading was committed . . .
does support the implied malice second degree theory of liability
here. And as such, I think if Mr. Villegas were tried today, . . .
there would be proof beyond a reasonable doubt.”
The court continued: “Now, I will extend and enlarge the
scope of what I view my role is because I do think it’s what I said
earlier. But since I don’t know what the court of appeal is going
to do, I can comfortably say that the evidence today would prove
beyond a reasonable doubt implied malice murder given these
facts that I have from the testimony from the transcript and from
the description by the court of appeal. And then on top of that, if
I were to add Mr. Villegas’s testimony, that was kind of icing on
the cake for the prosecution. I don’t know if the prosecution
really needed that testimony, but they got it. And it was

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devastating. . . . But I think the evidence, even without it, is
substantial and constitutes proof beyond a reasonable doubt.”
The court concluded: “So even assuming my role is to be a
trier of fact—which I don’t assume it to be—but even if it were
and the courts were to say that that’s what it is to be, I believe
the People have demonstrated beyond a reasonable doubt that
the defendant not only could be convicted under the present state
of the law, but most likely would be convicted under the present
state of the law given those facts. And so given the uncertainty
as to how this is going to be construed, the statute, I think there
is really more than enough evidence here no matter how I look at
it to support this conviction . . . .” Villegas timely appealed.
DISCUSSION
Villegas contends that the superior court, in finding the
People met their burden of proving beyond a reasonable doubt he
was ineligible for relief under section 1170.95, erroneously
required the People “to prove only that, based on the record of
conviction, Villegas could have been convicted of implied malice
murder, i.e., there was substantial evidence to support such a
conviction.” He argues that, properly interpreted, section
1170.95, subdivision (d)(3), instead “requires the prosecution to
prove beyond a reasonable doubt that the jury would have
convicted Villegas of implied malice murder despite the now-
erroneous jury instruction on second-degree felony murder.”3 He
maintains the People did not meet that burden here.
3 Villegas argues that, “construed in light of the legislative
purpose of” Senate Bill No. 1437, section 1170.95,
subdivision (d)(3), “requires the trial court . . . to conduct a

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The proper interpretation of section 1170.95,
subdivision (d)(3)—“that is, the correct standard to be applied by
the superior court in evaluating eligibility for resentencing—is a
question of law that we determine de novo.” (People v. Rodriguez
(Dec. 7, 2020, B303099) ___ Cal.App.5th ___, ___
[2020 WL 7137040, p. 6] (Rodriguez); see People v. Prunty (2015)
62 Cal.4th 59, 71; People v. Drayton (2020) 47 Cal.App.5th 965,
981.) We review for substantial evidence the superior court’s
factual determination under section 1170.95, subdivision (d)(3),
that the prosecution proved beyond a reasonable doubt the
petitioner was ineligible for resentencing. (People v. Lopez (2020)
56 Cal.App.5th 936, 951-952, petn. for review pending, petn. filed
Dec. 7, 2020, S265974; see People v. Prunty, supra, 62 Cal.4th at
p. 71; Rodriguez, at p. ___ [p. 6] [“As appellate courts generally
do, we apply a deferential standard of review in determining
whether the evidence supports any of the superior court’s factual
findings.”]; see also People v. Sledge (2017) 7 Cal.App.5th 1089,
1095-1096 [where an appeal involves interpreting a statute, the
issue is a legal one we review de novo, and where “‘the trial court
applies disputed facts to such a statute, we review the factual
findings for substantial evidence’”]; see generally People v.
Penunuri (2018) 5 Cal.5th 126, 142 [describing standard of
review for sufficiency of the evidence to support a criminal
conviction].) Applying these standards, we conclude the superior
court did not err.
Chapman [v. California (1967) 386 U.S. 18, 87 S.Ct. 824,
17 L.Ed.2d 705]-like analysis used in cases where the jury was
instructed on two theories of liability, one of which was
erroneous.”

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A. The Superior Court Applied, in the Alternative, the
Correct Standard
As we recently held in Rodriguez, supra, ___ Cal.App.5th
___, “section 1170.95 requires the prosecutor to prove beyond a
reasonable doubt each element of first or second degree murder
under current law to establish a petitioner’s ineligibility for relief
under that statute.” (Rodriguez, at p. ___ [p. 1]; accord, People v.
Lopez, supra, 56 Cal.App.5th at p. 951.) We explained that, in
evaluating whether the prosecutor has met this burden, “it is the
court’s responsibility to act as independent factfinder and
determine whether the evidence establishes a petitioner would be
guilty of murder under amended sections 188 and 189 . . . .”
(Rodriguez, at p. ___ [p. 11].) Although the prosecutor did not
take that position in the superior court, the Attorney General
takes that position on appeal.
In Rodriguez we rejected both the standard Villegas urges
us to adopt and the standard the superior court initially applied
here. (See Rodriguez, supra, ___ Cal.App.5th at pp. ___ [pp.
6-11].) We characterized the latter incorrect standard as “would
the evidence permit a reasonable jury to find the petitioner guilty
of murder with the requisite mental state beyond a reasonable
doubt—essentially substantial evidence standard for appellate
review.” (Rodriguez, at p. ___ [p. 6].) And we concluded the
superior court in that case erroneously applied that incorrect
standard, as reflected, for example, in its statement that “it was
required to review the record to determine ‘whether or not there
is evidence in the record beyond a reasonable doubt that could
support a murder conviction.’” (Rodriguez, at p. ___ [p. 11],
italics added; see ibid. [superior court’s “formulations of the

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standard used the phrase ‘could support’—the appellate standard
of review—not ‘does support beyond a reasonable doubt’ or
equivalent language”].) The superior court here described the
standard it initially applied in almost identical language and
stated it did not view its role as that of the trier of fact concerning
whether Villegas would be guilty of murder on an implied malice
theory. The court stated, “I think they [the legislators] are telling
us to act somewhat as a reviewing court.”
And had the superior court here proceeded on that basis
only, its ruling would have been, like that of the superior court in
Rodriguez, error. But acknowledging it might be mistaken that
its role was to act as a reviewing court, rather than as the trier of
fact, the superior court here “extend[ed] and enlarge[d]” its view
of its role and found it could “comfortably say that the evidence
today would prove beyond a reasonable doubt implied malice
murder.” The court added that, even without Villegas’s trial
testimony—which the court called “icing on the cake” and
“devastating”—“I think the evidence . . . is substantial and
constitutes proof beyond a reasonable doubt.” These statements
show the superior court applied, in the alternative, the correct
standard in determining the People proved beyond a reasonable
doubt Villegas was ineligible for relief under section 1170.95.
Of course, at the conclusion of the hearing, when repeating
the alternative basis for its ruling, the superior court misstated
the correct standard, stating the People had demonstrated
beyond a reasonable doubt Villegas not only could be, but “most
likely would be,” convicted of implied malice murder. It is not
clear what the court meant by that statement. Viewed in
isolation, the phrase “most likely would be” might suggest, as

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Villegas contends, the court was applying something “akin to a
preponderance [of the evidence] standard.”
But nothing about the court’s and the parties’ discussion of
the issue at the hearing, when viewed as a whole, suggests the
court ever considered or applied a preponderance of the evidence
standard. Rather, the court considered two standards: that of a
reviewing court applying a substantial evidence standard and
that of the independent factfinder, a “13th juror,” applying the
standard of beyond a reasonable doubt. Believing the former was
correct, the court nevertheless applied the latter in the
alternative, finding the evidence proved beyond a reasonable
doubt Villegas committed implied malice murder. The court’s
first statement of that alternative ruling, applying the correct
standard, was clear. And viewing its later statement in context,
we are satisfied the court merely misspoke in using the phrase
“most likely would be.” (See People v. Carrington (2009)
47 Cal.4th 145, 201 [although the trial court’s statement of the
standard for determining whether to modify a verdict of death to
life imprisonment without parole was “difficult to interpret,” it
apparently “misspoke,” and the “court’s ruling, when considered
in its entirety,” indicated it applied the correct standard]; People
v. Wilson (2008) 44 Cal.4th 758, 809, fn. 12 [trial court
“apparently misspoke” in identifying the controlling statutory
provision because other statements made clear it relied on the
correct provision]; People v. Griffin (2004) 33 Cal.4th 536, 570 [it
was “reasonable to conclude” the trial court applied the correct
standard, “even if it did not quote it exactly,” when its words
were viewed “in context”], disapproved on another ground in
People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32; People v.
Deere (1991) 53 Cal.3d 705, 725 [“it is readily apparent, from the

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context of the remark itself, that the court simply misspoke
itself”].)
Villegas also isolates other individual words used by the
superior court to argue that, even in the alternative, the court
applied an incorrect standard. Specifically, he cites the court’s
statements that “I can comfortably say that the evidence today
would prove beyond a reasonable doubt implied malice murder
given these facts” and “I think there is more than enough
evidence here no matter how I look at it to support this
conviction.” Villegas argues that, “in both instances,” the
superior court “was equivocal, stating that the prosecution’s
evidence would prove beyond a reasonable [doubt] Villegas’s guilt
and that the evidence supported a conviction for implied malice
murder. It did not state that the evidence proved Villegas’s guilt
beyond a reasonable doubt, as the standard advocated by
respondent requires.”
These arguments are not persuasive. Concerning the first
statement Villegas cites, the superior court’s use of the
conditional verb “would” was, as we explained in Rodriguez, “a
normal grammatical construct to express the hypothetical
situation an inmate . . . faces when filing the petition—what
would happen today if he or she were tried under the new
provisions of the Penal Code?” (Rodriguez, supra, ___
Cal.App.5th at p. ___ [p. 9].) And the superior court had already
made clear how it was using the word “would,” in this context,
when earlier explaining it believed its role was to act as a
reviewing court, not an independent factfinder, “[b]ecause the
question is, could [Villegas] be, not would he be” guilty of implied
malice murder. The superior court thus was using the word
“would” exactly as we did when articulating the proper standard

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in Rodriguez: “[I]t is the court’s responsibility to . . . determine
whether the evidence establishes a petitioner would be guilty of
murder under amended sections 188 and 189.” (Rodriguez, at
p. ___ [p. 11].)
Moreover, Villegas is presumably suggesting the court’s use
of “would” in the statement in question indicates it was applying,
even in the alternative, a substantial evidence standard. That
interpretation is not reasonable, however, given the court had
already applied that standard and was now, alternatively,
applying a different one. The same is true of Villegas’s argument
concerning the court’s use, in the other statement he cites, of the
word “supported.” Finally, to the extent the court’s use of these
two words in these two statements was equivocal—and it
wasn’t—we presume the court was using the words correctly.
(See People v. Kareem A. (2020) 46 Cal.App.5th 58, 77 [“‘A
judgment or order of a lower court is presumed to be correct on
appeal, and all intendments and presumptions are indulged in
favor of its correctness.’”]; People v. Chubbuck (2019)
43 Cal.App.5th 1, 12 [“‘“‘[w]e must indulge in every presumption
to uphold a judgment, and it is defendant’s burden on appeal to
affirmatively demonstrate error[;] it will not be presumed,’” [and]
any uncertainty in the record must be resolved against the
defendant’”].)
B. Substantial Evidence Supported the Superior Court’s
Ruling
“The Supreme Court has ‘“interpreted implied malice as
having ‘both a physical and a mental component. The physical
component is satisfied by the performance of “an act, the natural
consequences of which are dangerous to life.” [Citation.] The

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mental component is the requirement that the defendant “knows
that his conduct endangers the life of another and . . . acts with
conscious disregard for life.”’”’” (People v. Jones (2018)
26 Cal.App.5th 420, 442; see People v. Jimenez (2015)
242 Cal.App.4th 1337, 1358 [the defendant must have “‘actually
appreciated the risk of his or her actions’”].) “‘It is unnecessary
that implied malice be proven by an admission or other direct
evidence of the defendant’s mental state; like all other elements
of a crime, implied malice may be proven by circumstantial
evidence.’” (Jimenez, at p. 1358.)
Ample evidence supported the superior court’s finding the
People proved beyond a reasonable doubt Villegas was guilty of
implied malice murder. In evading officers for 10 miles, Villegas
drove 85 miles per hour through residential neighborhoods, drove
on the wrong side of the road, ran through stop signs and red
lights, nearly hit a bus, and finally skidded across multiple lanes
of traffic before crashing into a telephone pole violently enough to
kill his passenger. He admitted he knew what he was doing was
very dangerous and might hurt people. That admission, as the
superior court observed, was icing on a substantial cake of
circumstantial evidence showing that the natural consequences of
the way Villegas drove while evading police were dangerous to
life, that he knew his driving endangered human life, and that he
drove with conscious disregard for life. (See People v. Watson,
supra, 30 Cal.3d at pp. 300-301 [evidence supported a finding the
defendant committed implied malice murder where, while
intoxicated, he “drove at highly excessive speeds through city
streets” and “nearly collided with a vehicle after running a red
light” before crashing into the victims’ car]; People v. Moore
(2010) 187 Cal.App.4th 937, 941 [substantial evidence supported

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a conviction for implied malice murder where the defendant
“drove 70 miles per hour in a 35-mile-per-hour zone, crossed into
the opposing traffic lane, caused oncoming drivers to avoid him,
ran a red light and struck a car in the intersection”].)
DISPOSITION
The order denying Villegas’s petition under section 1170.95
is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.

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