P. v. Villa

1
Filed 7/14/20 P. v. Villa CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ADAM VILLA,
Defendant and Appellant.
C089392
(Super. Ct. No. 15F01261)
Defendant Adam Villa and codefendants Joshua Parrish and Frank Camacho were
convicted of attempted murder, attempted robbery, and related firearm crimes. On
appeal, defendant argues his conviction for attempted murder must be reversed under
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437).
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant also
argues the trial court erred in imposing certain fines, fees, and assessments without
holding a hearing to determine his ability to pay them. We disagree with both

-- 1 of 12 --

2
contentions. Our review of the record revealed that a portion of defendant’s sentence was
unauthorized. We will modify the judgment to correct the error but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Given defendant’s contentions on appeal, we provide only a brief recitation of the
facts.1 In February 2015, defendant, Parrish, and Camacho arrived at the victim’s home
under the pretext of purchasing marijuana. When the victim opened the door, defendant
pointed a gun in his face. The victim, who was unarmed, began fighting with defendant
over the gun. Meanwhile, the two other men, who also were armed, pushed their way
inside. During the melee, the three intruders each shot at the victim a total of five to 10
times. The victim’s friend, who was visiting the victim at the time of the incident,
testified at trial that he heard defendant say, “[E]verybody just chill out. We’re here just
to take [stuff].” Defendant, Parrish, and Camacho also beat up the friend. Eventually,
the victim chased the three intruders outside and the men left in a waiting vehicle.
The victim suffered gunshot wounds to his legs, abdomen, and bladder. His
bladder had to be sewn up, and he was forced to wear a colostomy bag for a year and a
half. He also was shot in his buttocks, and other shots grazed his stomach and back.
These injuries required the victim to undergo seven or eight separate surgeries.
In December 2017, a jury found defendant guilty of attempted murder and
attempted robbery while entering a structure and acting in concert. (Pen. Code,
§§ 664/187, subd. (a), 664/211 & 213, subd. (a)(1)(A).)2 As to both counts, the jury
1 We previously granted defendant’s request for judicial notice of our unpublished
opinion in codefendant Parrish’s appeal, People v. Parrish (Apr. 25, 2019, C087461). To
facilitate our review in the instant case, we will incorporate by reference the facts and
procedural history from our unpublished opinion in that appeal.
2 Undesignated statutory references are to the Penal Code.

-- 2 of 12 --

3
found defendant personally used a firearm and personally discharged a firearm.
(§§ 12022.5, subd. (a)(1), 12022.53, subds. (b)-(c).)
In April 2019, the trial court sentenced defendant to state prison for an aggregate
term of 28 years, as follows: seven years for the attempted murder conviction, plus 20
years consecutive for the firearm enhancement, and one year consecutive for the
attempted robbery conviction, plus six years eight months consecutive for the firearm
enhancement, stayed under section 654. It also imposed a $5,000 restitution fine
(§ 1202.4, subd. (b)), a corresponding $5,000 parole revocation fine (§ 1202.45), an $80
court operations assessment (§ 1465.8, subd. (a)(1)), and a $60 court facilities assessment
(Gov. Code, § 70373).
DISCUSSION
I
Defendant argues his conviction for attempted murder based upon a natural and
probable consequences theory must be reversed because, under Senate Bill 1437 (2017-
2018 Reg Sess.), the Legislature has abrogated the basis for his conviction. His theory is
that because his conviction was not final when Senate Bill 1437 became effective, the bill
applies retroactively to his conviction based on In re Estrada (1965) 63 Cal.2d 740:
“[W]here the amendatory statute mitigates punishment and there is no saving clause, the
rule is that the amendment will operate retroactively so that the lighter punishment is
imposed.” (Id. at p. 748.) Defendant contends that given the retroactive application of
Senate Bill 1437, the jury was misinstructed on the elements of attempted murder and his
conviction must be reversed.
The People do not disagree that Senate Bill 1437 applies retroactively, but argue
that defendant’s sole avenue of relief is the petition procedure outlined in section
1170.95. They also contend that under the plain text of the statute, section 1170.95 does
not apply to attempted murder convictions like defendant’s.

-- 3 of 12 --

4
Senate Bill 1437 restricted the application of the felony-murder rule and the
natural and probable consequences doctrine, as applied to murder, by amending sections
188 and 189.3 (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 276.)
And, pertinent here, Senate Bill 1437 added section 1170.95. “Section 1170.95 permits a
person convicted of felony murder or murder under a natural and probable consequences
theory to petition the sentencing court to vacate the murder conviction and resentence the
person on any remaining counts if the following conditions are met: ‘(1) A complaint,
information, or indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder. [¶] (3) The
petitioner could not be convicted of first or second degree murder because of [the]
changes to [s]ection 188 or 189 made effective January 1, 2019.’ (Id., subd. (a).) [¶] If
the petitioner makes a prima facie showing of entitlement to relief, the court must issue
an order to show cause and, absent a waiver and stipulation by the parties, hold a hearing
to determine whether to vacate the murder conviction, recall the sentence, and resentence
the petitioner. (§ 1170.95, subds. (c) & (d)(1).)” (Gooden, at pp. 276-277.) At that
hearing, the prosecution bears the burden of proving beyond a reasonable doubt the
3 As amended, 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 imputed to a person based solely
on his or her participation in a crime.” Section 189, subdivision (e), as amended, limits
murder liability based on felony murder to a person who: (1) was the actual killer;
(2) although not the actual killer, intended to kill and aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the commission
of first degree murder; or (3) was a major participant in the underlying felony and acted
with reckless indifference to human life. (§ 189, subd. (e).)

-- 4 of 12 --

5
petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) If the prosecution
does not sustain its burden of proof, then the prior conviction, including any allegation
and enhancements, must be vacated and the petitioner resentenced on the remaining
charges. (Ibid.) “The prosecutor and the petitioner may rely on the record of conviction
or offer new or additional evidence to meet their respective burdens.” (Ibid.)
In People v. Martinez (2019) 31 Cal.App.5th 719 (Martinez), the Court of Appeal
concluded that Senate Bill 1437 applies equally to persons whose sentences are final and
those whose sentences are not, and that relief under Senate Bill 1437 in either case is not
available by direct appeal; instead, the person seeking relief must file a petition in the
sentencing court under section 1170.95. (Martinez, at pp. 722-723, 724-727.)
In reaching its conclusion, the court in Martinez relied upon two California
Supreme Court cases it found addressed analogous circumstances. (Martinez, supra, 31
Cal.App.5th at p. 725.) In People v. Conley (2016) 63 Cal.4th 646 (Conley), the
defendant had been sentenced under the three strikes law to an indeterminate term of 25
years to life and appealed. While his appeal was pending, voters passed the Three Strikes
Reform Act of 2012 (Proposition 36); two days later the appellate court issued its
decision. The defendant petitioned for rehearing asking the court to remand to the trial
court for resentencing. (Conley, at pp. 654-655.) The defendant argued that since his
judgment was not yet final, he was entitled to rely on the Estrada rule to be resentenced
without complying with Proposition 36’s requirement for a petition and an assessment of
his risk to public safety. (Conley, at pp. 655-656.)
The Supreme Court rejected the defendant’s argument. It held the postconviction
procedure of section 1170.126 was the exclusive means of relief for three reasons. First,
unlike the statute at issue in Estrada, Proposition 36 was not silent on the issue of
retroactivity; it was directly addressed in section 1170.126. (Conley, supra, 63 Cal.4th at
p. 657.) Second, resentencing under Proposition 36 was contingent on the court’s
evaluation of the defendant’s dangerousness and an automatic resentencing would

-- 5 of 12 --

6
eliminate that requirement. (Id. at pp. 658-659.) Third, Proposition 36 established a set
of disqualifying factors that the prosecution had to plead and prove. Proposition 36 “does
not address the complexities involved in applying the pleading-and-proof requirements to
previously sentenced defendants precisely because the electorate did not contemplate that
these provisions would apply. Rather, voters intended for previously sentenced
defendants to seek relief under section 1170.126, which contains no comparable
pleading-and-proof requirements.” (Id. at pp. 660-661.)
In People v. DeHoyos (2018) 4 Cal.5th 594, the Supreme Court reached a similar
conclusion as to the retroactive application of Proposition 47 (The Safe Neighborhoods
and Schools Act) to nonfinal cases on direct appeal. “Proposition 47 redefined several
common theft- and drug-related felonies as either misdemeanors or felonies, depending
on the offender’s criminal history” and provided a procedure for petitioning for
resentencing similar to that of Proposition 36, including a determination of a defendant’s
risk of dangerousness. (Id. at pp. 597, 598-599.) Proposition 47 also was not silent on
the issue of retroactivity, but contained provisions that drew no distinction between those
serving final or nonfinal sentences. (Id. at p. 603.) While Proposition 47 did not create
new sentencing factors, other indicia of legislative intent suggested that the resentencing
scheme was the exclusive remedy. (Ibid.)
The Martinez court found that the “analytical framework animating the decisions
in Conley and DeHoyos is equally applicable here. Like Propositions 36 and 47, Senate
Bill 1437 is not silent on the question of retroactivity. Rather, it provides retroactivity
rules in section 1170.95. . . . That the Legislature specifically created this mechanism,
which facially applies to both final and nonfinal convictions, is a significant indication
Senate Bill 1437 should not be applied retroactively to nonfinal convictions on direct
appeal.” (Martinez, supra, 31 Cal.App.5th at p. 727.)
Defendant asserts that Conley and DeHoyos are distinguishable because neither
case “involved a defendant seeking the application of newly enacted standards of fairness

-- 6 of 12 --

7
for deciding murder liability in his pending appeal as part of the appellate court’s
evaluation of whether he received a fair jury trial.” He further contends that the cases are
inapposite because the new laws in those cases required the trial court to make a finding
as to a defendant’s risk to public safety and no such finding is required under Senate Bill
1437. The Martinez court rejected this argument, stating: “While [the] defendant is
correct that section 1170.95 does not require a dangerousness inquiry, neither Conley nor
DeHoyos holds that inquiry was the indispensable statutory feature on which the result in
those cases turned. To the contrary, Conley notes ‘[o]ur cases do not “dictate to
legislative drafters the forms in which laws must be written” to express an intent to
modify or limit the retroactive effect of an ameliorative change; rather, they require “that
the Legislature demonstrate its intention with sufficient clarity that a reviewing court can
discern and effectuate it.” ’ ” (Martinez, supra, 31 Cal.App.5th at p. 728.)
Martinez found the provision of a detailed mechanism for resentencing in section
1170.95 evinced sufficient legislative intent that such mechanism was the exclusive
means of seeking relief under Senate Bill 1437. Since Martinez, other Courts of Appeal,
including a panel of this court, have followed its reasoning and concluded that a
defendant on direct appeal (or seeking habeas relief) must file a section 1170.95 petition
with the sentencing court. (See People v. Cervantes (2020) 46 Cal.App.5th 213, 218,
220-226; People v. Garcia (2020) 46 Cal.App.5th 123, 181-182; People v. Anthony
(2019) 32 Cal.App.5th 1102, 1147-1158; People v. Carter (2019) 34 Cal.App.5th 831,
835; In re R.G. (2019) 35 Cal.App.5th 141, 145-146; People v. Lopez (2019) 38
Cal.App.5th 1087, 1113-1116, review granted Nov. 13, 2019, S258175 (Lopez); People
v. Munoz (2019) 39 Cal.App.5th 738, 749-753, review granted Nov. 26, 2019, S258234
(Munoz); In re Cobbs (2019) 41 Cal.App.5th 1073, 1079-1781; but see People v.
Medrano (2019) 42 Cal.App.5th 1001, 1008, review granted Mar. 11, 2020, S259948
[concluding a defendant convicted of attempted murder is entitled to relief under In re
Estrada and Senate Bill 1437].)

-- 7 of 12 --

8
We agree with the authorities holding that a petitioning procedure like the one
created by section 1170.95 is an indication that the Legislature intended the law to apply
prospectively only. “When the Legislature creates a statutory procedure by which
defendants may avail themselves of a change in the law, that remedy must be followed
and relief is not available on direct appeal.” (Munoz, supra, 39 Cal.App.5th at p. 751,
review granted Nov. 26, 2019, S258234 [rejecting argument that Senate Bill 1437 applies
retroactively to attempted murder conviction on appeal].) We therefore hold that
defendant may only seek relief under Senate Bill 1437 by petitioning the sentencing court
as outlined in section 1170.95. (Munoz, at pp. 750-751, review granted Nov. 26, 2019,
S258234; People v. Anthony, supra, 32 Cal.App.5th at p. 1158; People v. Martinez,
supra, 31 Cal.App.5th at p. 727.)4
II
We next address defendant’s argument that the trial court violated his right to due
process and the federal and state constitutional prohibitions of excessive fines by
imposing fines, fees, and assessments without holding a hearing to determine his ability
to pay them. This argument relies primarily on Dueñas, which held that “due process of
law requires the trial court to conduct an ability to pay hearing and ascertain a
4 Given our conclusion, we do not reach (and express no opinion on) the issue of
whether Senate Bill 1437 applies to attempted murder, an issue currently pending before
our Supreme Court. (See Lopez, supra, 38 Cal.App.5th 1087, review granted Nov. 13,
2019, S258175].) The issues to be briefed and argued in Lopez include: “(1) Does
Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to attempted murder liability under the
natural and probable consequences doctrine? (2) In order to convict an aider and abettor
of attempted willful, deliberate and premeditated murder under the natural and probable
consequences doctrine, must a premeditated attempt to murder have been a natural and
probable consequence of the target offense? In other words, should People v. Favor
(2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States (2013) 570
U.S. 99 [186 L.Ed.2d 314] and People v. Chiu (2014) 59 Cal.4th 155?” (Order granting
review in Lopez, supra, 2019 Cal.LEXIS 8414.)

-- 8 of 12 --

9
defendant’s present ability to pay before it imposes court facilities and court operations
assessments under [ ] section 1465.8 and Government Code section 70373.” (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held that “although [ ] section
1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering
increasing the fee over the statutory minimum, the execution of any restitution fine
imposed under this statute must be stayed unless and until the trial court holds an ability
to pay hearing and concludes that the defendant has the present ability to pay the
restitution fine.” (Ibid.) Defendant requests that we strike the remaining fines, fees, and
assessments, or remand the matter for a hearing on his ability to pay.
The People argue defendant forfeited his Dueñas claim by failing to object on due
process grounds or even express any concern about inability to pay in the trial court. The
People further argue defendant’s restitution fines are constitutional.
A. Dueñas was incorrectly decided
Regardless of whether defendant forfeited the issue, we are not persuaded the
analysis used in Dueñas is correct. Our Supreme Court is now poised to resolve this
question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (review
granted Nov. 13, 2019, S257844), which agreed with the court’s conclusion in Dueñas
that due process requires the trial court to conduct an ability to pay hearing and ascertain
a defendant’s ability to pay before it imposes court operations and court facilities
assessments under section 1465.8 and Government Code section 70373.5. (Kopp, supra,
at pp. 95-96, review granted Nov. 13, 2019, S257844.)
In the meantime, we join the courts that have concluded that Dueñas was wrongly
decided. (See, e.g., People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks
(2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946 (Hicks); People v.
Aviles (2019) 39 Cal.App.5th 1055 (Aviles); People v. Caceres (2019) 39 Cal.App.5th
917, 923-929 (Caceres).) In support of its due process rationale, Dueñas relies on
authorities in which courts have held it is unconstitutional to punish an indigent

-- 9 of 12 --

10
defendant or impede his access to the courts, solely on the basis of his poverty. (Dueñas,
supra, 30 Cal.App.5th at pp. 1165-1168, citing In re Antazo (1970) 3 Cal.3d 100, 103
[invalidating practice of requiring convicted defendants to serve jail time if they were
unable to pay a fine or assessment], and Griffin v. Illinois (1956) 351 U.S. 12, 16-17, 19-
20 [100 L.Ed. 891, 897-898, 899] [striking down a state practice of granting appellate
review only to convicted criminal defendants who could afford a trial transcript].) As
courts have subsequently noted, the line of cases cited in Dueñas relating to an indigent
defendant’s right of access to courts are inapplicable because the imposition of the
challenged fines and assessments did not affect the ability of the defendant in Dueñas to
present a defense at trial or to challenge the trial court’s rulings on appeal. (Hicks, supra,
at p. 326, review granted Nov. 26, 2019, S258946; Kingston, supra, at pp. 279-280;
Aviles, supra, at pp. 1068-1069; Caceres, supra, at p. 927; see also People v. Gutierrez
(2019) 35 Cal.App.5th 1027, 1038-1039 (Gutierrez) (conc. opn. of Benke, J.).)
Similarly, the authorities cited in Dueñas prohibiting incarceration for indigence
alone are also inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov.
26, 2019, S258946; Caceres, supra, 39 Cal.App.5th at p. 927.) Defendant faces at most a
civil judgment should he be unable to pay. We disagree that any resulting negative
consequences from a civil judgment constitute punishment rising to the level of a due
process violation. (See Caceres, at p. 927 [“Dueñas cites no authority for the proposition
that [the negative consequences from a civil judgment] constitute ‘punishment’ rising to
the level of a due process violation”]; see also Gutierrez, supra, 35 Cal.App.5th at p.
1039 (conc. opn. of Benke, J.) [fines and fees imposed in Dueñas did not “satisf[y] the
traditional due process definition of a taking of life, liberty or property].)
B. Analysis under the Eighth Amendment
To the extent imposing potentially unpayable fees or fines on indigent defendants
raises constitutional concerns, we agree that such challenges are properly analyzed under
the Eighth Amendment’s excessive fines clause, which limits the government’s power to

-- 10 of 12 --

11
extract cash payments as punishment for an offense. (Aviles, supra, 39 Cal.App.5th at
pp. 1071-1072.)
“The touchstone of the constitutional inquiry under the Excessive Fines Clause is
the principle of proportionality: The amount of the forfeiture must bear some
relationship to the gravity of the offense that it is designed to punish. [Citations.] [A]
punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to
the gravity of a defendant’s offense.” (United States v. Bajakajian (1998) 524 U.S. 321,
334 [141 L.Ed.2d 314, 329].) To determine whether a fine is excessive in violation of the
Eighth Amendment, we consider “(1) the defendant’s culpability; (2) the relationship
between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4)
the defendant’s ability to pay.” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co.
(2005) 37 Cal.4th 707, 728; Gutierrez, supra, 35 Cal.App.5th at pp. 1040-1041 (conc.
opn. of Benke, J.).) Accordingly, although ability to pay may be part of the
proportionality analysis, it is not the only factor. (Bajakajian, supra, at pp. 337-338.)
We review de novo whether a fine is excessive under the Eighth Amendment. (Id. at p.
336, fn. 10.)
We conclude the $5,000 restitution fine, $80 court operations assessment, and $60
court facilities assessment are not grossly disproportionate to defendant’s level of
culpability and the harm he caused, based on his convictions of attempted murder and
attempted robbery. Under the circumstances, the aggregate amount of fines, fees, and
assessments is not excessive under the Eighth Amendment.
III
Finally, although not raised by the parties, we note that the trial court erroneously
imposed and stayed pursuant to section 654 (1) a one year sentence (one-third the
midterm) for the attempted robbery conviction and (2) a six-year eight-month sentence
(one-third the midterm) for the associated firearm enhancement. However, “[t]he one-
third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive

-- 11 of 12 --

12
sentence, not to a sentence stayed under section 654.” (People v. Cantrell (2009) 175
Cal.App.4th 1161, 1164.) To effectuate section 654, the trial court must impose a full
term and stay execution of that term. (Ibid.; see also People v. Alford (2010) 180
Cal.App.4th 1463, 1469-1472.) We will exercise our inherent authority to correct an
unauthorized sentence by modifying the judgment. (People v. Relkin (2016) 6
Cal.App.5th 1188, 1197-1198 [correcting a judgment on the appellate court’s own
initiative to impose a full midterm sentence, rather than a one-third of the midterm
sentence, on a count stayed under § 654].)
DISPOSITION
The judgment is modified to replace the one-third consecutive term with a full
three-year term for the attempted robbery conviction and a 20-year term for the
associated firearm enhancement, stayed pursuant to section 654. The trial court is
directed to prepare an amended abstract of judgment in accordance with this opinion and
to forward a certified copy to the Department of Corrections and Rehabilitation. As
modified, the judgment is affirmed.
KRAUSE , J.
We concur:
BLEASE , Acting P. J.
DUARTE , J.

-- 12 of 12 --