Filed 3/14/24 P. v. Villescas CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ALBERTO VILLESCAS,

Defendant and Appellant.

 B330018

 (Los Angeles County

 Super. Ct. No. VA044837)

APPEAL from an order of the Superior Court of Los 

Angeles County, Joseph R. Porras, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 
2

Attorney General, Steven D. Matthews and Gary A. Lieberman, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

In 1998, Alberto Villescas (defendant) was convicted of two 

counts of being a felon in possession of a firearm (former Pen. 

Code, § 12021, subd. (a)(1))1 and sentenced to 26 years to life in 

prison, calculated as a base sentence of 25 years to life under our 

state’s “Three Strikes” law (§§ 1170.12, subds. (a)-(d), 667, subds. 

(b)-(j)) plus one additional year for having served a prior prison 

sentence (§ 667.5, subd. (b)).2 In 2022, defendant filed a petition

pursuant to what is currently section 1172.75 asking the trial 

court to (1) strike the one-year “prison prior” enhancement; and 

(2) engage in a full resentencing, which would include potentially 

dismissing one or two of the prior “strike” allegations.3 The trial 

court granted defendant’s request to strike the one-year “prison 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2 We affirmed defendant’s conviction and sentence on direct 

appeal. (People v. Villescas (May 2, 2000, B129758) [nonpub. 

opn.].)

3 Although defendant’s petition did not confer jurisdiction on 

the trial court (because section 1172.75 proceedings must be 

initiated by the Department of Corrections and Rehabilitation

rather than by a defendant’s petition) (People v. Escobedo (2023) 

95 Cal.App.5th 440, 447-448; People v. Newell (2023) 93 

Cal.App.5th 265, 268), the Department’s subsequent act in 

informing the trial court that defendant was “on the list” eligible 

for relief under section 1172.75 conferred that jurisdiction (People 

v. Cota (2023) 97 Cal.App.5th 318, 332-333).
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prior” enhancement, but declined defendant’s request for a full 

resentencing. The sole issue on appeal is whether the court erred 

in denying a full resentencing.

We conclude that there was no error.

Section 1172.75 expressly provides that a trial court “shall 

recall [a defendant’s] sentence and resentence the defendant.” (§ 

1172.75, subd. (c).) This “requires a full resentencing” (People v. 

Monroe (2022) 85 Cal.App.5th 393, 402), one in which the trial 

court may reconsider all of its prior sentencing decisions as well 

as “‘modify every aspect of the sentence,’” including in light of 

“postconviction factors, including, but not limited to, the 

[defendant’s] disciplinary record and record of rehabilitation . . . 

while incarcerated” (§ 1172.75, subd. (d)(3); People v. Coddington

(2023) 96 Cal.App.5th 562, 568; see generally People v. Buycks

(2018) 5 Cal.5th 857, 893-894 [describing the “full resentencing 

rule”]). A defendant’s prison record is an important part of any 

resentencing because it provides highly relevant insight into the

“defendant’s risk for future violence” and whether “continued 

incarceration is no longer in the interest of justice,” factors that 

section 1172.75 specifies are to be part of any resentencing (§ 

1172.75, subd. (d)(3)).

Although defendant—while representing himself after 

waiving his right to counsel—repeatedly asked for a full 

resentencing, he simultaneously and steadfastly asked the trial 

court not to consider his prison disciplinary record, going so far as 

to “mo[ve] to suppress” that record on the ground that “most” of

the discipline in that record was inaccurate because the hearing 

officers were biased, because the allegations were “false,” and 

because none of the disciplinary findings were made beyond a 

reasonable doubt. Defendant nevertheless asked the trial court 
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to consider evidence of his positive progress while incarcerated. 

The trial court succinctly summed up defendant’s position: “So 

you want the court to consider the good stuff because that’s 

accurate but not the bad stuff because that’s inaccurate?” When 

the trial court eventually asked defendant, point blank, if he 

wanted the court to consider his prison record, defendant replied 

he did not; the court thereafter declined to resentence defendant 

because it lacked “the requisite information” on defendant’s 

postconviction conduct to meaningfully conduct the type of full

resentencing called for by the plain language of section 1172.75.

The trial court did not err. Section 1172.75 entitles a 

defendant to a full resentencing; it does not entitle him to a 

myopic resentencing, where he is permitted to present only 

favorable information while concealing unfavorable information

from the court’s view. In other contexts, litigants who seek to 

have their cake and eat it too are deemed to have waived their 

right to have cake. (See, e.g., Vesco v. Superior Court (2013) 221 

Cal.App.4th 275, 279; Guess?, Inc. v. Superior Court (2000) 79 

Cal.App.4th 553, 555; see generally People v. Concepcion (2008) 

45 Cal.4th 77, 82 [“Waiver may be express or implied,” including 

by a litigant’s conduct].) This precept applies here. The trial 

court expressly gave defendant a choice: Allow the court to 

consider the full prison record and have a full resentencing on the 

basis of that record, or continue to insist that the court ignore the 

negative parts of that record and forego a full resentencing 

because there is no such thing as a myopic resentencing. 

Defendant chose the latter, and he is stuck with that choice now.

On appeal, defendant argues that the court should have 

ruled on his motion to suppress “and then, regardless of that 

ruling, proceeded with a full resentencing.” We frankly do not 
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understand what this means. Is defendant suggesting that the 

court should have granted his motion to suppress and ignored the 

discipline in defendant’s record in order to engage in a myopic 

resentencing? Or is he suggesting that the court should have 

denied his own suppression motion and engaged in a full 

resentencing notwithstanding defendant’s strident and crystal 

clear position that the disciplinary record be ignored? Or is he 

suggesting that the trial court should have simply made a ruling 

and then, “regardless of that ruling,” done whatever it wanted 

regarding the resentencing? In our view, none of these 

suggestions is supported by the law or the record.

DISPOSITION

We accordingly affirm the trial court’s order striking the 

one-year prison prior enhancement without engaging in a full 

resentencing.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ