Filed 8/20/20 P. v. Villa 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.

RUBEN VILL A,

Defendant and Appellant. B293118

(Los Angeles County

Super. Ct. No. BA29 2 983 )

APPEAL from a judg ment of the Superior Court of

Los Angeles County, Larry P. Fidler, Judge. Affirmed in part

and remanded in part with directions.

Le slie Conrad, 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, Scott A.

Taryle and David E. Madeo, Deputy Attorney s General, for

Plaintiff and Respondent.2 _______________________ After shooting and killing Matthew Simms, Ruben Villa

was convicted of voluntary manslaughter, assault by means

likely to produce great bodily injury, shooting at an occupied

vehicle and possession of a firearm by a felon. The jury also

found true firearm enhancement allegations. Villa was sentenced

to an aggregate indeterminate state prison term of 33 years to

life. On appeal Villa contends the trial court committed

prejudicial error by permitting th e People to introduce

speculative and irrelevant testimony and allowing the jury to see

improper notations on the transcript of a witness’s police

interview . He also argues the court abused its discretion in

declining to strike the firearm enhancement imp osed pursuant to

Penal Code section 12022.53, subdivision (d), 1 and his sentence

constitutes cruel and /or unusual punishment. We affirm Villa’s

convictions and reject his arguments concerning imposition of the

firearm enhancement and the constitutional va lidity of his

sentence, but nonetheless remand for resentencing to permit the

trial court t o exercise its sentencing discretion after striking t he

one

- year prior prison term enhancement imposed pursuant to

section 667.5, subdivision (b).

FACTUAL AND PROCED URAL BACKGROUND

1. The Information, First Trial and Amended Charges

V i lla w a s originally c h a rg e d b y i nformat i on wi t h the murder

of Simms ( co u nt 1 )

, p o ssessi o n of a fire a rm b y a f e lon (c o unt 2 )

and a s s ault by means likely to produce great bodily injury on

Amanda Alvarez (count 3) . Firearm enhancements were alleged

as to counts 1 and 3. It was further alleged that Villa had served

1 Statutory refe rences are to this code unless otherwise

stated.3

two prior prison terms for felonies within the meaning of

section 667.5, subdivision (b). A jury convicted Villa of unlawful

p ossession of a firearm but was unable to reach a verdict on the

other two charges. Prior to retrial on the murder and aggravated

assault counts, the prosecutor added a charge of shooting at an

occupied motor vehicle (count 4) with additional firearm

- use

a llegations under sections 12022.53, subdivisions (b), (c) and (d).

2. Villa’s Second Trial

a. The People’s evidence

Si m ms had be e n dat i ng Alvar e z for t wo or th r ee yea r s. 2

During that time

, A lvar e z also b e c a me r om a ntic a lly i nvolv e d wi t h

Vill a

. Alv a r e z’ s rel a tion s hip w i th V i lla angered Simms, a nd

Simms period i c a lly asked h e r if she was still seeing Villa.

Alv a rez’s b est f

rie n d, Noelle J ens e n, li v ed across the st r eet

from Vil l a in El Sereno. Alv a r ez a nd Jensen g ot to g ether a lmost

e very d ay to smoke meth a m phet a mine. Bec a use Alva r ez d i d not

h a ve a c a r, S i mms dropped Alv a r e z off a nd p i c k ed her up a t

J ensen ’ s hou s e.

On Octo b er 23

, 2 0 0 5 Jensen he a r d Villa outside her house

screaming at Si m ms . Villa yelled , “I told you not to come back up

here.

. . . Don’t com e back up here, disrespect.” Alv a rez and Jensen

went o utsi d e ; and Alvarez b e g a n c u rsing at Vill a

, who was with

another man. Jensen told Alvarez to “shut the fuck up

. ” When

asked why she had said that, Jensen explained she was

2 Both Villa and the Attorney General adopt the description

of the evidence presented at Villa’s second trial from our

nonpublished opinion in the People’s earlier appeal in the case.

( People v. Villa (Aug . 14, 2017, B269082).) We do so as well,

supplemented by greater detail concerning the testimony at issue

in the current appeal

.4

concerned that, “by her tal king shit to [Villa], all it’s going to do is

make him mad”

— that Alvarez’s outburst would just make

matters worse. After Jensen answered the question, defense

counsel objected on relevancy grounds, insisting, “It’s irrelevant

why she did something.” The court responded, “Well, no, because

it explains her state of mind and explains why she acted the way

she did, so that’s the reason it will be received.” 3

On redirect Jensen elaborated that she told Alvarez to shut

up because Villa’ s friend looked “like a homeboy,” “like somebody

from a gang

, ” and Alvarez was making Villa look bad in front of

him. Defense counsel objected that the question, already

answered, called for speculation. The court overruled the

objection, “It was why she did something.” Conti nuing, Jensen

said she had seen people involved in gang culture react with

violence to “save face.” Alvarez also testified over a defense

objection on relevancy grounds that she was concerned about

“what was going on” after Jensen told her to shut up and go

inside.

The foll o wing d ay S i mms dropped Al v a rez a t Jens e n’s

h o use. Because A lv a rez w a s p l ann i ng to st a y only a b o u t

1 5 minut es, Simms s t opped his car in front o f Vi l l a ’s house . The

dri v er’s side of the c a r f a c ed Vil l a ’s ho u se. Alv a rez n oticed Vil l a

outsi d e, tal k ing to the occu p ants o f a nother c ar th a t w a s sto p ped

in the stre e t. Wh e n V i lla s a w Alvar e z and Simms, he we n t in t o

his ho u se.

3 The prosecutor attempted to follow up, asking, “How does it

make matters worse?” Defense counsel again objected. The cou rt

sustained th is objection : “She already indicated that’s where her

thought process was, which is the only relevant thing, so

sustained.”5 J ensen c ame o utsi d e to talk to Si m ms. Sudden l y, she s aw

Villa l e aving h is ya r d, holdi n g a g u n , and heard h i m s a y, “ I to l d

you not to c o me u p here.” Alvar e z s a w Villa holding a gun,

runn i ng out of his driv e way t o ward Simms’s c a r.

Villa fir e d several sh o ts throu g h the d riv e r’s side w indow of

Simms’s c a r. T he c a r beg a n t o roll down the stre e t. A l v a rez and

Jensen s aw a n d/or h eard Vil l a fire a few more sh o ts thr o ugh the

b a ck wi n dow of the c a r as it rolled down the stre e t. Alv a rez asked

Villa wh a t he was d oing. He told h er to s hut up a nd said t h e

sh o oting w a s her f

ault f or letting Si m ms disrespe c t him.

According to J e n se n

, Villa p ointed his g un at A l varez’s head

a n d s a id he s h ould sho o t her t oo. He then tuck e d his g un i nside

his pan t s and r an o ver to S i mms’s c a r before r eturning to his

house a n d dr i ving a w ay in his f a the r ’s t r uck.

When the shooting occurred, Jensen’s b oyfr i end, Art

Est e vez, w a s in the driv e w a y of her house, w o rking on s tolen

ve h icles p a rked i n the d riv e way. He heard sev e ral guns h ots a n d

d r opped to the gr o und. He t hen hea r d five t o 10 more g u nshots

.

Estevez saw s omeo n e ru n ning to w a rd S i mms’s c a r, shoo ting a t it.

Because he was worried a b o ut the p o lice a r r ivi n g at the scene and

discovering the stol e n veh i cles, Estevez left the area.

Los Angeles Police Officer Ri c a rdo Ort e ga w as t h e first to

a rrive at t he scene. He fo u nd Simms slumped forwa r d in his c a r,

w hich h ad c r a shed i n to a t r ee, and o bse r ved a b u llet w ound i n

Simm s ’s left c heek and blood in the ca r

. T h e front dr i v er’s s ide

window was o p en; t he front pa s senger ’ s s i de wind o w was p a r t ially

op e n; and the r e a r p a sseng e r win d ows were clo s ed. All we r e

intact. The r e a r w indow and re a r wing win d ow on t h e drive r ’s

s i de were s h a tte r ed, a nd there we r e mul t iple b ullet h o les in the

c a r’s tru n k. E i g ht s h ell c a sings f r om a sem i a utom a tic h a n dgun6

were fou n d a t t he s c ene. The cas i ngs a p pear e d to b e g oing

d own h i ll in a “ trail.”

P a r a m e dics t o ok S i mms, who h a d gunshot wounds to his

f a ce, c hest and b ack, to the hospital. S i mms di e d f rom a gunshot

wound to t he chest; the b u llet pierced h i s lung, la c erated a m a jor

b l ood v e ssel a nd left his b ody through his ne c k. The re w a s no

s oot or s tipp l ing a rou n d the gun s hot wou n ds, in d ic a t i ng the

muzzle of t he gun w as mo r e t h an two f e et fr o m S i mms when he

was s h ot.

According to Los Angeles Police Department S e n ior

C riminal i st N a th a n Cross, there w ere no b ullet mar k s ins i de

Simms’ s c a r t h a t c o uld have been c a us e d by s o meone s hoot i ng

through t he dri v er’s side wi n dow. The b ullet m a r k s he fou n d

were con s istent wi t h someo n e hav i ng f i red into t he c a r fr o m

behind

.

b. Defense evidence

Testifying on his own be h a lf, Villa explained he m e t

Alv a rez thro u gh J ensen i n April 2 0 0 5. He h a d a r e lati o nship

wi t h her f

or s ever a l months. While she told him that she w as

living with anot h er m a n a n d help i ng h i m t a ke c a re of his c hild,

she did n o t ini t i a lly tell him the m an’s n ame or t hat he w a s her

boy fr i end.

Two weeks after Villa began seeing Alvarez, he had a

confrontation with Simms. About 10 minutes after having been

picked up by Simms, Alvarez returned and came to see Villa. She

was bleeding from her mouth. Alvarez told Villa that Simms had

thrown her out of his car and had threatened to kill Villa. While

Alvarez and Villa were talking, Simms approached them, pointed

a gun at Villa and said something about Villa’s relationship with

Alvarez. Villa told Simms, “[D]on’t come up here”; Alvarez and7

S i mms star t ed argui n g; a n d Al v a rez pushed S imms b a ck tow a rd

J ense n ’s h o use. S i mms l a ter c a lled Villa t o apol o gize, s aying it

w a s o kay if Alvarez p referr e d V illa to him.

Villa h a d a no t her c o nfrontat i on wi t h S i mms w h en Villa was

w a lking with Alvar e z. Sim m s d ro v e up, jumped o ut of h is c a r

and approached Vill a

. Alv a rez got i n b etwe e n the two men and

be g an ar g uing with S i mms. V i lla wal k ed a w ay.

There w a s also an i ncident i n which Vi l la was i n his f r ont

yard a nd Si m ms left his car and r a n at Vi l l a

, hold i ng a m a che t e

a nd thr e ateni n g to kill him

. Vil l a ’s f at her came out of the ho use

,

gr a b b ed a sh o vel, a pproach e d Si m ms a nd told h im to le a v e

.

Simms r eturn e d to his c a r a nd dro v e a way.

Villa e n ded his rel a t ionship with A l v a r e z in Aug u st 2 0 05.

Two mo n ths l a ter, o n O ctober 23

, 20 0 5, Villa w a s t a l king to one o f

his friends b y his h ouse when he notic e d S i mms le a ving Jense n ’s

house. A s Si m ms d rove a w ay, he yelled curses at Vill a

, who

yelled cu r ses b ack a t Simm s

. Al v a rez a nd J ens e n ca m e ou t side,

a nd Al v a rez a s ked Villa w h y he w a s y e lling at Sim m s. Vil l a told

Alv a rez t o tell Si m ms to s t op co m ing t here a nd to st o p

disrespe c ting h i m.

L a te t he next morn i ng, Villa was w a iti n g for c owork e rs to

pick h i m up f

or w ork. Wh e n they arr i ved, he berated t h em for

being l a te and then w ent ins i de his ho u se to get his k eys. W hen

he c a me b ack o ut, h e saw S i mm s ’s c a r in the middle o f the s treet,

f a cing d o wnhil l

. S i mms w a s in t h e dri v er’s se a t; no o n e el s e w a s

in the c a r

. V i lla a pp r o a ched the o pen window o f the driv e r’s door

a nd to l d S i mm s not to di s resp e ct his family. Simms p oint e d a

g u n a t Vil l a and curs e d hi m

. Vil l a knocked the g u n a w ay a s

S i mms f ired a shot out the w i ndo w

. Villa tr i ed to g rab t he gun8

a way f r om S imms. As the men fought over the gun, it fired

ag a in ; and V illa e nded u p with t he gun in his hand.

Villa w a nted t o go b a ck to h i s hou s e, b u t he feared S i mms

would k i ll him if he tried to do so. Villa testif i ed, “So as all this

w as hap p ening, like h e st a rts t a king o ff, a n d just li k e im p ulse

. . .

I shot twice.” At th a t point

, S i mms’s c a r w a s a b o u t 1 0 f e et a w ay,

a nd “[l]ike my h and just went up a n d I s hot twic e .” Vil l a did not

int e nd to k ill S i mm s ; he just w a nted to p r otect hi m self a nd h i s

f a mily.

Villa r e mem b e red t hat Al v a rez w a s yel l ing at h i m and th a t

he prob a b ly t o ld her i t was a ll her f a ult. At th a t time, he w a s “ a ll

in a da z e. E ve r yth i ng h a p p ened

. . . li k e real fa s t.”

On cross

- e xam i nat i on Villa deni e d sh o oting S i mms i n the

face and s a id h e did not see a ny b l o od a f ter the fi r st two sh o ts

were fire d

. He den i ed chasi n g af t e r S i mms’s car a nd c onti n uing

to fire a t it, but he co u ld not e x plain how s hell casi n gs en d ed u p

further d o wn the st r eet in t h e direc t ion t he car h a d tra v eled.

When he f

ired a t t h e car, he was n o t tr y ing to ki l l Si m ms; “ [ i]t

w a s a n i mpul s e

. . . . I did n’t mean to s h oot.” He fired t wo s hots

a t Si m ms as h e w a s driving a way.

Wh e n the c a r came to a stop a bout h a lf a b lock a way, Vi l la

fir e d five more ti m es. Villa explained, “I am thinking he is g oing

to come out a n d st a rt shooti n g at me w i th another g un. I r an t o

the si d e by my dr i vew a y, a nd as soon a s that’s oc c urring, ju s t

five m o re we n t off

, ” mean i ng five shots were fired “ unc o ntr o ll a bly

f r om [hi s ] ha n d.”

After the incid e nt, Villa d i d not c a ll the 9 1 1 emergency

operator beca u se he d id not trust the p o li ce. H e took his fa t her’s

truck a n d dro v e a w ay. He disp o sed of the g un b y th r owing it in a9

gutter in El Monte. He did not keep guns around because he was

on parole and subject to search at any time.

3. The Verdict, First Appeal and Sentencing

The jury f

ound Villa not guilty of murder but guilty of

voluntary manslaughter ( count 1 ) with a true finding on a

firearm enhancement pursuant to section 12022.5,

subdivision (a). It also found Villa guilty of aggravated assault

on Alvarez (count 3) and shooting at an occupied motor vehicle

(count 4) with true findings on the firearm enhancements alleged

as to those counts.

The trial court granted Villa’s new trial motion, ruling it

had erred in failing to instruct the jury on count 4 on the lesser

included offens e of grossly negligent discharge of a firearm. The

People appealed the new trial order. We reversed, holding the

record did not contain substantial evidence Villa had committed

the offense of grossly negligent discharge of a firearm but not

shooting at a n occupied vehicle. ( People v. Villa (Aug. 14, 2017,

B269082) [nonpub. opn.].) We remanded for sentencing.

Villa and the People stipulated there should only be

one prior prison enhancement pursuant to section 667.5,

subdivision (b), which Villa admitted

. The court denied Villa’s

motion to strike the section 12022.53, subdivision (d), firearm

enhancement, noting, “This was a dangerous crime. Besides the

fact that multiple gunshots were fired striking [the victim], there

is a threat to other society whic h shows that Mr. Villa just is

immune to. He is not worried about it, doesn’t care.”

The court sentenced Villa to the upper term of seven years

for shooting at an occupied motor vehicle, plus 25 years to life for

personal discharge of a firearm causing great bodily injury or

death

, plus one year for the prior prison term enhancement. The10

court imposed a concurrent term of two years for Villa’s unlawful

possession of a firearm and stayed the sentences on the voluntary

manslaughter and aggravated assault count s pursuant to

section 654. 4 Villa received 3,065 days of custody credits

(2,666 actual days, plus 399 conduct days).

DISCUSSION

1. The Trial Court Did Not Abuse Its Discretion in

Allowing Jensen’s Testimony Regarding Her Reason for

Telling Alvarez To Shut Up or Alvarez’s Reaction to

Jensen’s Warning

Villa argues the trial court impermissibly permitted Jensen

to testify why she told Alvarez to stop cursing at him and to go

back inside the house on the day before the shooting

– that she

believed it wou ld make Villa even angrier tha n he already was

during a confrontation with Simms

– and compounded the error by

allowing Alvarez to confirm that she, too, was concerned about

4 The minute order from the sentencing hearing and the

abstract of judgment both incorrectly state a concurrent s ix

- year

state prison term was imposed for voluntary manslaughter. Villa

argues, the People concede and we agree the oral pronouncement

of judgment ordering the sentence on that count stayed pursuant

to section 654 controls. ( See People v. Farell (2002) 2 8 Cal.4th

381, 384, fn. 2 [record of court’s oral pronouncement controls over

clerk’s minute order]; People v. Mitchell (2001) 26 Cal.4th 181,

186

- 187 [appellate court may correct clerical errors on its own

motion or upon application of the parties].) Bec ause we vacate

Villa’s sentence and remand for resentencing, however, it is not

necessary to order the minute order and abstract of judgment

corrected

.11

the exchange. At trial Villa objected only that this testimony was

irrelevant and s peculative. Neither objection had merit. 5

“ No evidence is admissible except relevant evidence.”

(Evid. Code, § 350 ; see People v. Melendez (2016) 2 Cal.5th 1, 23 .)

“ Evidence is relevant if it ‘ha[s] any tendency in reason to prove

or disprove an y dis puted fact.’ [Citations.] The trial court has

broad latitude in determining relevance.” ( People v. Howard

(2010) 51 Cal.4th 15, 31; accord, People v. Benavides (2005)

35 Cal.4th 69, 90 [“[t]he test of relevance is whether the evidence

‘tends “logically, naturally, and by reasonable inference” to

establish material facts such as identity, intent, or motive’”] ;

see Evid. Code, § 210 [“‘[r]elevant evidence’ means evidence,

including evidence relevant to the credibility of a witness or

hearsay declarant, hav ing any tendency in reason to prove or

disprove any disputed fact that is of consequence to the

determination of the action”] .)

Jensen’ s perception of the animosity that existed between

Villa and Simms, as well as her concern about the tension

between Vi lla and Alvarez, both victims of Villa’s aggressive

actions the following day, unquestionably tended to prove Villa’s

motive or intent in shooting Simms and threatening Alvarez with

his gun. Alvarez’s understanding the situation was fraught did

as well. It was well within the trial court’s broad discretion to

5 “We review claims regarding a trial court’s ruling on the

admissibility of evidence for abuse of disc retion. [Citations.]

Specifically, we will not disturb the trial court’s ruling ‘ except on

a showing that the trial court exercised its discretion in an

arbitrary, capricious, or patently absurd manner that resulted in

a manifest miscarriage of justice. ’ ” ( People v. Goldsmith (2014)

59 Cal.4th 258, 266; accord, People v. Jones (2013) 57 Cal.4th

899, 947; People v. Cruz (2020) 46 Cal.App.5th 715, 729.)12

determine the evidence was relevant. 6 Nor was it speculative.

Both witnesses were asked to explain their own beliefs that the

situation could escalate into violence, not to guess what was in

Villa’ s mind.

On appeal Villa contends the testimony should have been

excluded under Evidence Code section 352 because any probative

value was outweighed by undue prejudice and suggests it was

also inadmissible as improper character evidence (see Evid. Code,

§ 1 101, subd. (a)). Because Villa failed to object to the testimony

on those grounds, his argument is not cognizable on appeal

. ( People v. Valdez (2012) 55 Cal.4th 82, 130 [“Evidence

Code section 353, subdivision (a), provides that a court may not

reverse a judgment based on error in admitting evidence unless

‘an objection to or a motion to exclude or to strike the evidence

. . . was timely made and so stated as to make clear the specific

ground of the objection or motion.’ ‘In accordance with this

statute, we have consistently held that the “defendant’s failure to

make a timely and specific objection” on the ground asserted on

appeal makes that ground not cognizable ’”]; cf. People v. Doolin

(2009) 45 Cal.4th 390, 437 [trial objection that evidence “was

irre levant and unduly prejudicial under Evidence Code

section 352 ” was insufficient to preserve for appeal claim under

Evidence Code section 1101 ]; see also People v. Demetrulias

(2006) 39 Cal.4th 1, 22 [“To satisfy Evidence Code section 353,

subdivision (a), the objection or motion to strike must be both

6 That the trial court suggested a different theory of

relevance

— the testimony explained Jensen’s an d Alvarez’s

actions

— is of no moment. With evidentiary rulings, as with

other matters, we review the ruling itself, not the court’s

reasoning. ( People v. Mason (1991) 52 Cal.3d 909, 944.)13

timely and specific as to its ground. An objection to evidence

must generally be preserved by specific objection at the time the

evidence is introduced; the opponent cannot make a ‘placeholder’

objection stat ing general or incorrect grounds (e.g.,‘relevance’)

and revise the objection later in a motion to strike stating specific

or different grounds”].) 7

2. The Court’s Admonition To Disregard Portions of the

Transcript of Estevez’s Police Interview Cured Any

Possible Error

a. Proceedings regarding Estevez’s police interview

In addition to Estevez’s testimony the jury heard an audio

recording of his interview with the police. The jury was also

provided a transcript of the interview, which included

handwritten additions in several places where the transcript

noted “inaudible.” Before the audio recording was played, the

7 Villa’s additional argument that admission of this

testimony v iolated his constitutional right s to due process and a

fair trial lacks merit. The objections he made were properly

overruled. (See People v. Johnson (2019) 8 Cal.5th 475, 517

[because trial court did not err in admitting evidence over

defendant’s object ion, defendant’s rights to due process and a fair

trial were not violated] ; People v. Hartsch (2010) 49 Cal.4th 472,

493

, fn. 19 [“[r] ejection of a claim on its merits necessarily

disposes of the additional constitutional ‘gloss’” ]; see generally

People v. Partida (2005) 37 Cal.4th 428, 437

- 438 [ a constitutional

argument is forfeited to the extent the defendant argues on

appeal that the constitutional provisions required the trial court

to exclude the evidence for a reason not included in the actual

trial o bjection ; however, a defendant may argue an additional

legal consequence of the asserted error in overruling an objection

actually made is a violation of due process ].)14

court discussed it and the transcript with counsel outside the

jury’s presence

.

Defense counsel stated he was concerned with Estevez’s

specula tion, “why he believed somebody did something, why he

believed

— things that I believed your Honor would never allow

him to say in court.” Counsel pointed to several specific places in

the transcript. On page 25 the transcript reads, “I don’t know

what the situation is. If this guy is just psycho or if he’s a

(Inaudible).” The word “fatal” is handwritten over “( Inaudible ).”

Counsel argued Estevez’s opinion Villa was psycho or fatal was

inadmissible. 8 Similarly

, on page 30 of the transcript, counsel

argu ed Estevez was speculating when he said, based on Villa’s

repeated presence in the neighborhood, that he seemed to be a

“stalker,” someone that “would be out there and (Inaudible)

sometimes you feel somebody looking at you, I’d look, and he

would be right there.”

After initially suggesting the handwritten comments c ould

be redacted, the court concluded it would admonish the jury to

disregard the handwritten words as meaningless and to rely on

the audio version of the interview as the evidence in the case

. Defense counsel said he “would prefer to delete it.”

The court then advised the jury the transcript is “basically

the person who is making the transcription, it’s what their

8 Also on page 25 of the transcript, after Estevez said he saw

Villa point the gun at Alvarez, the transcript reads, “I don’t know

if he did (Inaudible).” Handwritten over “( Inaudible )” is “shoot

because he no more bullets.” Although Villa discusses this

handwritten notation on appeal, he did not call it to the attention

of the court a s one of his concerns during the discussion outside

the presence of the jury.15

version is and what they hear as they’re transcribing. It will not

control wh at you hear. You will listen to the tape and make your

own

– or CD and make your own

– judgment as to what you are

hearing. This is merely a guid e to help you go along, but you are

not bound by this in any way, shape, or form. That’s number one,

generally. Number two, in this particular transcript, the way the

copies were made from whatever original where the interpreter

or the translator when they can’t understand a word, they will

put it in parens ‘inaudible.’ Someone has listened to this. They

think th ey know what the inaudible was, and you will see in

printing what that person

– you are to completely disregard that.

That has nothing to do

– you won’t even look at that. Just pay it

no attention.” The court then pointed out the two specific

portions of th e transcript defense counsel had identified and

instructed the jury as to each one to “completely strike that. You

will hear it in the audio. You are not to consider it in any way. It

is just absolutely inadmissible. Just give it no thought.”

b. The jury is presumed to have followed the court’s

admonition to disregard any handwritten or

speculative aspects of the interview transcript

On appeal Villa does not contend the audio recording of

Estevez’s police interview was in admissible, arguing only it w as

error to provide the jury with an unredacted transcript of the

interview that also included handwritten notations where the

transcript itself identified something as inaudible. However, the

trial court instructed the jury the transcript w as not evidenc e

, only the audio recording was, and additionally admonished the

jurors to disregard as speculation any handwritten notations on

the transcript, as well as Estevez’s reference to Villa as a stalker

. We presume the jury followed the trial court ’ s instructi ons

.16

( People v. Frederickson (2020) 8 Cal.5th 963, 1026; People v.

Erskine (2019) 7 Cal.5th 279, 301 ; se e People v. Yeoman (2003)

31 Cal.4th 93, 139 [“the presumption that jurors understand and

follow instructions [is] ‘[t]he crucial assumption underlying our

constitutional system of trial by jury’”].)

Villa attempts to avoid this fundamental principle by

reliance on People v. Aranda (1965) 63 Cal.2d 518, in which the

Supreme Court held a limiting instruction i s not sufficient when

the prosecution proposes to introduce into evidence an

extrajudicial statement of one defendant that directly implicates

a jointly tried defendant. Aranda and its federal analog, Bruton

v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d

476] , present a very special s ituation: “ A r anda and Bruton stand

for the proposition that a ‘nontestifying codefendant’s

extrajudicial self

- incriminating statement that inculpates the

other defendant is generally unreliable and hence inadmissible as

violative of that defendant ’ s right of confrontation and cross

examination, even if a limiting instruction is given. ’” ( People v.

Jennings (2010) 50 Cal.4th 616, 652 .) Both the California and

United States Supreme Courts have held these cases recognize

only “a narrow exception to the gene ral rule that juries are

presumed to follow limiting instructions.” ( People v. Homick

(2012) 55 Cal. 4th 816, 874

, citing Richardson v. Marsh (1987)

481 U.S. 200 , 206

- 207 [ 107 S.Ct. 1702, 95 L.Ed.2d 176] ;

accord, People v. Ervine (2009) 47 Cal.4th 745, 776 .) Indeed, this

narrow exception does not even apply in the case of a confession

by one jointly tried defendant that only implicates a codefendant

through reference to other evidence. ( Richardson , at p. 208

[ “[w]here the necessity of such linkage is invo lved, it is a less

valid generalization that the jury will not likely obey the17

instruction to disregard the evidence”] ; see generally Ervine

, at

p. 776 [refusing to extend Aranda and Bruton outside the specific

context in which they were decided ; holding, “ [ w ] e presume the

jury faithfully followed the court’s limiting instruction” ].) Villa

offers no rationale, let alone a persuasive one, for refusing to

apply in this case the general presumption regarding the

effectiveness of the trial court’s instructions and admonition.

3

. The Trial Court Did Not Abuse Its Discretion in Denying

the Motion To Strike the Section 12022.53 Firearm

Enhancement

Because the jury found him guilty of voluntary

manslaughter, not murder, Villa argues the trial cou rt’s decision

not to strike the section 12022.53, subdivision (d), firearm

enhancement as applied to his conviction for shooting an occupied

motor vehicle, which added 25 yea rs to life to his upper term

sentence of seven years, was an abuse of discretion. Villa points

out the maximum penalty for voluntary manslaughter

– an offense

not subject to section 12022.53

– when committed with a firearm is

21 years (the upper term of 11 years for voluntary manslaughter

plus 10 years, the upper term for a firearm enhancement under

sectio n 12022.5, subdivision (a)) and contends imposition of a

25

- year

- to

- life enhancement for shooting at an occupied vehicle

effectively disregarded the jury’s verdict and is disproportionate

to the offense and arbitrary.

We review a trial court’s decision n ot to strike a sentencing

enhancement under section 1385 for abuse of discretion. ( People

v. Carmony (2004) 33 Cal.4th 367, 374 .) The party challenging

the sentence has the burden of showing the court’s decision was

“‘“irrational or arbitrary.”’” ( Id. a t p. 376 .) “‘“In the absence of

such a showing, the trial court is presumed to have acted to18

achieve legitimate sentencing objectives, and its discretionary

determination to impose a particular sentence will not be set

aside on review.”’” ( Id. at pp. 376

- 377 ; see People v

. Sandoval

(2007) 41 Cal.4th 825, 847 .)

The decision to include shooting at an occupied vehicle but

not voluntary manslaughter as an offense qualifying for

imposition of the section 12022.53, subdivision (d), firearm

enhancement was made by the Legislature. 9 The disparity

between the maximum sentence for the two offenses is not,

without more, a basis to find the sentencing decision here

arbitrary. ( See People v. Wilkinson (2004) 33 Cal.4th 821, 840

[“[t]he Legislature is responsible for determining which class of

crimes deserves certain punishments and which crimes should be

distinguished from others”] ; In re Lynch (1972) 8 Cal.3d 410, 414

[“ in our tripartite system of government it is the function of the

legislative branch to define crim es and prescribe punishments”] .)

Moreover, the record reflects the trial court was fully mindful of

9 The enhancements in section 12022.53, subdivisions (b), (c)

and (d), generally apply when the defendant has personally used

a firearm in committing one of the qualifying fel ony offenses

listed in subdivision (a). Murder is included (§ 12022.53,

subd. (a)(1) ) ; voluntary manslaughter is not. Although shooting

at an occupied motor vehicle and other offenses prohibited by

section 246 are also omitted from subdivision (a),

secti on 1202253, subdivision (d), provides, “Notwithstanding any

other provision of law, any per s on who, in the commission of a

felony specified in subdivision (a), Section 246, o r subdivision (c)

or (d) of Section 26100, personally and intentionally discharges a

firearm and proximately causes great bodily injury, as defined in

Section 12022.7, or death, to any person other than an

accomplice, shall be punished by an additional and consecutive

term of imprisonment in the state prison for 25 years to life. ”19

Villa’s argument that the jury

, through its verdict, had impliedly

found his culpability mitigated by provocation or heat of passion,

but nonetheless concl uded Villa had committed a n extremely

dangerous crime, firing multiple times at the victim, killing him,

and had thereafter aggressively threatened a second victim

. In

addition, as the prosecutor noted at sentencing, Villa, an active

gang member, was a re cidivist whose offenses were increasing in

seriousness. (See Cal. Rules of Court, rule 4.421(b)

[circumstances in aggravation for felony sentencing].) On this

record the sentence was neither irrational nor disproportionate to

the nature of the offense an d was well within the trial court’s

broad discretion

.

4

. Villa’s Sentence Did Not Constitute Cruel and/or

Unusual Punishment

The Eighth Amendment’s prohibition of cruel and unusual

punishment, appl icable to the states through the

14th Amendment, contains a “‘narrow proportionality principle’

that ‘applies to noncapital cases.’” ( Ewing v. California (2003)

538 U.S. 11, 20 [123 S.Ct. 1179, 155 L.Ed.2d 108, 117] ( Ewing )

(plur. opn. of O’Connor, J.) .) Although strict proportionality

between crime and senten ce is not required, “‘extreme sentences

that are “grossly disproportionate” to the crime’” are

constitutionally prohibited. ( Id. at p. 23; accord, Graham v.

Florida (2010) 560 U.S. 48, 59 [130 S.Ct. 2011, 176 L.Ed.2d 825].)

To determine whether a particul ar sentence is so grossly

disproportionate that it violates the federal Constitution, the

court considers all the circumstances of the case, including the

gravity of the offense and the severity of the penalty as well as

whether more serious crimes are sub ject to the same penalty in

other jurisdictions. ( Graham v. Florida, supra , 560 U.S. at p. 58 ;20

Solem v. Helm (1983) 463 U.S. 277 [103 S.Ct. 3001, 77 L.Ed.2d

637].) No single criterion is dispositive. ( Solem

, at p. 291, fn. 17.)

“‘[O]utside the context of capital punishment, successful

challenges to the proportionality of particular sentences [will be]

exceedingly rare.’” ( Id. at p p

. 289

- 290, quoting Rummel v. Estelle

(1980) 445 U.S. 263, 271 [100 S.Ct. 1133, 63 L.Ed.2d 382].) Still,

although deference is given to the Legislature’s prescribed

sentence for a particular crime ( Solem

, at p. 290), no penalty is

per se constitutional. ( Ibid. )

The California Constitution’s prohibition of “cruel or

unusual punishment” (Cal. Const., art. I, § 17) similarly for bids

punishment so disproportionate to the crime for which it was

imposed that it “shocks the conscience and offends fundamental

notions of human dignity.” ( In re Lynch

, supra

, 8 Cal.3d at

p. 424; accord, People v. Dillon (1983) 34 Cal.3d 441, 478; People

v. Gomez (2018) 30 Cal.App.5th 493, 500.) The Lynch Court

identified three factors for the reviewing court to consider in

assessing this constitutional claim: (1) the nature of the offense

and the offender; (2) how the punishment compares with

punishmen ts for more serious crimes in the jurisdiction; and

(3) how the punishment compares with the punishment for the

same offense in other jurisdictions. ( Lynch, at pp. 425

- 427.)

A claim that a particular sentence amounts to cruel and/or

unusual punishment in violation of either the federal or

California Constitution is a question of law subject to de novo

review, while any underlying disputed facts are reviewed in the

light most favorable to the judgment. ( People v. Gomez

, supra,

30 Cal.App.5th at p. 499; Peo ple v. Martinez (1999)

76 Cal.App.4th 489, 496.) “Successful challenges” to a sentence

as cruel and/or unusual under either the federal Constitution or21

California Constitution are “exceedingly rare.” ( Ewing, supra,

538 U.S. at pp. 20

- 21; accord, People v . Perez (2013)

214 Cal.App.4th 49, 60.)

Villa’s contention his sentence is so disproportionate to his

culpability as to constitute cruel and/or unusual punishment

essentially repeats his argument that the trial court abused its

discretion in refusing to st rike the 25

- year

- to

- life

section 12022.53, subdivision (d), firearm enhancement

– that is,

by finding Villa guilty of voluntary manslaughter, the jury

confirmed he was not a murderer and the shooting was mitigated

by Simms’s prior threats of violence and agg ressiveness toward

him. 10 Accordingly, Villa asserts, he should not be punished by a

sentence longer than the maximum prescribed for that offense.

Whatever the reason for the jury’s verdict that Villa was

guilty of voluntary manslaughter, not murder (cf. People v.

Santamaria (1994) 8 Cal.4th 903, 915 [favorable finding by jury

may be product of mistake, leniency, compromise, confusion or

10 Vi lla did not argue in his sentencing memorandum or at

the sentencing hearing that failure to strike the section 12022.53,

subdivision (d), firearm

- use enhancement would result in cruel

and/or unusual punishment. That omission has been held to

forfeit the i ssue on appeal. (See, e.g., People v. Baker (2018)

20 Cal.App.5th 711, 720; People v. Norman (2003)

109 Cal.App.4th 221, 229 .) Villa, however, did assert the

sentence being considered was disproportionate to his

culpability

– the fact

- specific foundation f or a cruel and/or un u sual

punishment claim; and the People address Villa’s argument on

the merits, as do we

. (Cf. People v. Gutierrez (2014) 58 Cal.4th

1354, 1368 [although court of appeal held defendant had forfeited

his righ t to challenge his sentence a s cruel and unusual

punishment by failing to object on that ground in the trial court,

Supreme Court exercised its discretion to consider the issue].)22

ennui] )

, 11 Villa’s argument significantly understates both his

individual culpability in firing multiple shots at a roman tic rival

and the danger to society created by violation s of section 246,

which in this case resulted in the death of his victim.

The elements of a section 246 o ffense are “( 1) acting

willfully and maliciously, and (2) shooting at an inhabited house

[or occupied vehicle].” ( People v. Ramirez (2009) 45 Cal.4th 980,

985; accord, People v. Hernandez (2010) 181 Cal.App.4th 1494,

1501.) As defined by CALCRIM No. 965, used at Villa’s trial, for

purposes of the charge of shooting at an occupied motor vehicle,

“[s]omeone acts maliciously when he intentionally does a

wrongful act or when he acts with the unlawful intent to disturb,

defraud, annoy, or injur e someone else.” The jury’s necessary

finding that Villa acted maliciously when he fired at Simms’s car

make s the life sentence he received fully commensurate with his

11 While r eturning a not guilty verdict on first degree murder

and guilty verdicts on both aggravated ass ault and shooting at an

occupied vehicle with a true finding that Villa had personally

discharged a firearm causing Simms’s death, the foreperson

advised the court the jury was divided seven

- to

- five whether to

find Villa guilty of second degree murder or v oluntary

manslaughter. The jury thereafter asked the court, “Can

someone be considered guilty of murder two if they acted under

the ‘heat of passion’ and the four items that fall under implied

malice aforethought also apply for the situation, or would thi s reduce voluntary manslaughter only because the ‘heat of passion’

applies?” The court responded, “I think I can answer your

question. I am not going to answer it yes or no. What I am going

to do is re

- read two instructions [CALCRIM Nos. 520 and 570],

a nd I am going to give you an additional instruction [CALJIC

No. 850], okay?” The jury returned its verdict that Villa was

guilty of voluntary manslaughter the following day.23

“personal responsibility and moral guilt.” (See Enmund v.

Florida (1982) 458 U.S. 782, 801 [102 S.Ct. 3368, 73 L.Ed

. 2d

1140] .) There is nothing about Villa’s crime that distinguishes it

from the many other cases upholding imposition of a n

indeterminate life sentence for offenses other than murder. (See

,

e.g., People v. Riva (2003) 112 Cal.App.4th 981, 986, disapproved

on another ground in People v. Anderson (2020) 9 Cal.5th 946,

956 [sentence of 30 years to life held not cruel and unusual

punishment for shooting at an occupied vehicle and causing great

bodily injury]; see also People v. Garcia (2017) 7 Cal.App.5th 941,

949

- 950 [s entence of seven years for attempted murder plus

25 years to life fo r the firearm enhancement held not cruel and

unusual punishment under federal and state C onstitution s];

People v. Villegas (2001) 92 Cal.App.4th 1217, 1221

- 1222

[sentence of 40 years to life held not cruel and unusual

punishment for attempted murder, mayhe m, and assault with a

firearm]; People v. Morales (1992) 5 Cal.App.4th 917, 930 [life

sentence for one count of attempted murder held not cruel and

unusual].) 12

12 Villa makes no attempt to demonstrate his punishment for

shooting at an occupi ed vehicle and killing the occupant is

disproportionate to the punishment for similar offenses in other

jur isdictions. O ther than the conclusory assertion that voluntary

manslaughter is a more serious offense than shooting at an

occupied motor vehicle res ulting in a death, he makes no effort to

compare his sentence to tho s e for other crimes in California.

Accordingly, he fails to demonstrate disproportionality on those

grounds.24 5

. Villa’s Sentence Must Be Modified To Strike the

One

- year Prior Prison Term Enhancement

In O ctober 2019 the Legislature enacted Senate Bill

No. 136 (Stats. 2019, ch. 590, § 1) amending section 667.5,

subdivision (b) , effective January 1, 2020

. The new law limited

the applicability of that provision’s one

- year sentence

enhancement for prior priso n terms to defendants who had

previously served a prison term for sexually violent offenses as

defined in Welfare and Institutions Code section 6600,

subdivision (b). This ameliorative amend ment applies to nonfinal

judgments on appeal. ( People v. Petri ( 2020) 45 Cal.App.5th 82,

94 [“amendment to section 667.5, subdivision (b),” effective

January 1, 2020, “applies retroactively to all defendants whose

judgments are not yet final as of that date”]; see People v.

Matthews (2020) 47 Cal.App.5th 857, 865; Peop le v. Winn (2020)

44 Cal.App.5th 859, 872

- 873; see generally In re Estrada (1965 )

63 Cal.2d 740, 748 [for a nonfinal conviction, “where the

amendatory statute mitigates punishment and there is no saving

clause, the rule is that the amendment will operate r etroactively

so that the lighter punishment is imposed”].)

Because Villa’s prior conviction was not for a sexually

violent offense, the one

- year prior prison term enhancement

included in his sentence must be stricken. In supplemental letter

briefing the People acknowledge the enhancement must be

stricken and request the matter be remanded for resentencing to

permit the trial court to reconsider all its sentencing options

without the section 667.5, subdivision (b), enhancement. 13 We

13 In his supplemental letter brief Villa argued he was

entitled to the bene fit of Senate Bill No. 136 but did not address

the question of a remand for resentencing.25

agree a remand for res entencing is appropriate in the

circumstances of this case. (See People v. Buycks (2018) 5 Cal.5th

857, 893 [“ when part of a sentence is stricken on review, on

remand for resentencing ‘a full resentencing as to all counts is

appropriate, so the trial cour t can exercise its sentencing

discretion in light of the changed circumstances’”]; accord, People

v. Navarro (2007) 40 Cal.4th 668, 681 .)

DISPOSITION

Villa’s convictions are affi rmed. The sentence is vacated,

and the matter remanded with instructions to strike the one

- year

prior prison term enhancement imposed under section 667.5,

subdivision (b), and to conduct further sentencing proceedings not

inconsistent with this opinion.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.