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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 VILLA,

Defendant and Appellant.

 B293118

 (Los Angeles County

 Super. Ct. No. BA292983)

APPEAL from a judgment of the Superior Court of 

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

and remanded in part with directions. 

Leslie 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 Attorneys 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 the 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 imposed 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 validity of his 

sentence, but nonetheless remand for resentencing to permit the 

trial court to exercise its sentencing discretion after striking the 

one-year prior prison term enhancement imposed pursuant to 

section 667.5, subdivision (b).

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information, First Trial and Amended Charges

Villa was originally charged by information with the murder 

of Simms (count 1), possession of a firearm by a felon (count 2) 

and assault 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 references 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 

possession 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 

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

2. Villa’s Second Trial

a. The People’s evidence

Simms had been dating Alvarez for two or three years.2 

During that time, Alvarez also became romantically involved with

Villa. Alvarez’s relationship with Villa angered Simms, and

Simms periodically asked her if she was still seeing Villa.

Alvarez’s best friend, Noelle Jensen, lived across the street

from Villa in El Sereno. Alvarez and Jensen got together almost

every day to smoke methamphetamine. Because Alvarez did not

have a car, Simms dropped Alvarez off and picked her up at

Jensen’s house.

On October 23, 2005 Jensen heard Villa outside her house 

screaming at Simms. Villa yelled, “I told you not to come back up 

here. . . . Don’t come back up here, disrespect.” Alvarez and Jensen 

went outside; and Alvarez began cursing at Villa, 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 talking 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.” Continuing, 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 following day Simms dropped Alvarez at Jensen’s

house. Because Alvarez was planning to stay only about

15 minutes, Simms stopped his car in front of Villa’s house. The 

driver’s side of the car faced Villa’s house. Alvarez noticed Villa

outside, talking to the occupants of another car that was stopped

in the street. When Villa saw Alvarez and Simms, he went into

his house.

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

make matters worse?” Defense counsel again objected. The court 

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

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

sustained.” 
5

Jensen came outside to talk to Simms. Suddenly, she saw

Villa leaving his yard, holding a gun, and heard him say, “I told

you not to come up here.” Alvarez saw Villa holding a gun,

running out of his driveway toward Simms’s car. 

Villa fired several shots through the driver’s side window of

Simms’s car. The car began to roll down the street. Alvarez and

Jensen saw and/or heard Villa fire a few more shots through the

back window of the car as it rolled down the street. Alvarez asked

Villa what he was doing. He told her to shut up and said the

shooting was her fault for letting Simms disrespect him.

According to Jensen, Villa pointed his gun at Alvarez’s head

and said he should shoot her too. He then tucked his gun inside

his pants and ran over to Simms’s car before returning to his

house and driving away in his father’s truck.

When the shooting occurred, Jensen’s boyfriend, Art

Estevez, was in the driveway of her house, working on stolen

vehicles parked in the driveway. He heard several gunshots and

dropped to the ground. He then heard five to 10 more gunshots. 

Estevez saw someone running toward Simms’s car, shooting at it. 

Because he was worried about the police arriving at the scene and 

discovering the stolen vehicles, Estevez left the area.

Los Angeles Police Officer Ricardo Ortega was the first to

arrive at the scene. He found Simms slumped forward in his car,

which had crashed into a tree, and observed a bullet wound in

Simms’s left cheek and blood in the car. The front driver’s side

window was open; the front passenger’s side window was partially

open; and the rear passenger windows were closed. All were

intact. The rear window and rear wing window on the driver’s

side were shattered, and there were multiple bullet holes in the

car’s trunk. Eight shell casings from a semiautomatic handgun
6

were found at the scene. The casings appeared to be going

downhill in a “trail.”

Paramedics took Simms, who had gunshot wounds to his

face, chest and back, to the hospital. Simms died from a gunshot

wound to the chest; the bullet pierced his lung, lacerated a major

blood vessel and left his body through his neck. There was no

soot or stippling around the gunshot wounds, indicating the

muzzle of the gun was more than two feet from Simms when he

was shot.

According to Los Angeles Police Department Senior

Criminalist Nathan Cross, there were no bullet marks inside

Simms’s car that could have been caused by someone shooting

through the driver’s side window. The bullet marks he found

were consistent with someone having fired into the car from

behind.

b. Defense evidence

Testifying on his own behalf, Villa explained he met

Alvarez through Jensen in April 2005. He had a relationship

with her for several months. While she told him that she was

living with another man and helping him take care of his child,

she did not initially tell him the man’s name or that he was her

boyfriend.

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 and
7

Simms started arguing; and Alvarez pushed Simms back toward

Jensen’s house. Simms later called Villa to apologize, saying it

was okay if Alvarez preferred Villa to him.

Villa had another confrontation with Simms when Villa was 

walking with Alvarez. Simms drove up, jumped out of his car

and approached Villa. Alvarez got in between the two men and

began arguing with Simms. Villa walked away.

There was also an incident in which Villa was in his front 

yard and Simms left his car and ran at Villa, holding a machete

and threatening to kill him. Villa’s father came out of the house,

grabbed a shovel, approached Simms and told him to leave. 

Simms returned to his car and drove away.

Villa ended his relationship with Alvarez in August 2005. 

Two months later, on October 23, 2005, Villa was talking to one of

his friends by his house when he noticed Simms leaving Jensen’s

house. As Simms drove away, he yelled curses at Villa, who

yelled curses back at Simms. Alvarez and Jensen came outside,

and Alvarez asked Villa why he was yelling at Simms. Villa told

Alvarez to tell Simms to stop coming there and to stop 

disrespecting him.

Late the next morning, Villa was waiting for coworkers to

pick him up for work. When they arrived, he berated them for

being late and then went inside his house to get his keys. When

he came back out, he saw Simms’s car in the middle of the street,

facing downhill. Simms was in the driver’s seat; no one else was

in the car. Villa approached the open window of the driver’s door

and told Simms not to disrespect his family. Simms pointed a

gun at Villa and cursed him. Villa knocked the gun away as

Simms fired a shot out the window. Villa tried to grab the gun
8

away from Simms. As the men fought over the gun, it fired

again; and Villa ended up with the gun in his hand.

Villa wanted to go back to his house, but he feared Simms 

would kill him if he tried to do so. Villa testified, “So as all this

was happening, like he starts taking off, and just like impulse . . .

I shot twice.” At that point, Simms’s car was about 10 feet away,

and “[l]ike my hand just went up and I shot twice.” Villa did not

intend to kill Simms; he just wanted to protect himself and his

family.

Villa remembered that Alvarez was yelling at him and that

he probably told her it was all her fault. At that time, he was “all

in a daze. Everything happened . . . like real fast.”

On cross-examination Villa denied shooting Simms in the

face and said he did not see any blood after the first two shots

were fired. He denied chasing after Simms’s car and continuing

to fire at it, but he could not explain how shell casings ended up

further down the street in the direction the car had traveled.

When he fired at the car, he was not trying to kill Simms; “[i]t

was an impulse . . . . I didn’t mean to shoot.” He fired two shots

at Simms as he was driving away.

When the car came to a stop about half a block away, Villa

fired five more times. Villa explained, “I am thinking he is going

to come out and start shooting at me with another gun. I ran to

the side by my driveway, and as soon as that’s occurring, just

five more went off,” meaning five shots were fired “uncontrollably

from [his] hand.”

After the incident, Villa did not call the 911 emergency 

operator because he did not trust the police. He took his father’s

truck and drove away. He disposed of the gun by throwing it in a
9

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 found 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 offense 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 an 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 which 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. The 
10

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 counts 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 would make Villa even angrier than 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 six-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) 28 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].) Because 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 speculative. 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 any disputed 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, having 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 Villa 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 discretion. [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, 

§ 1101, 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

irrelevant 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 and 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 stating 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 violated his constitutional rights 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 objection, 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 objection; 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 

speculation, “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 

argued 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 could 

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 as 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 what 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 guide 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 they 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 the 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 inadmissible, arguing only it was 

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 was not evidence, 

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 instructions. 
16

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

Erskine (2019) 7 Cal.5th 279, 301; see 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 is 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 situation: “Aranda 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 crossexamination, 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 general 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 involved, it is a less 

valid generalization that the jury will not likely obey the 
17

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 court’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 years 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 

section 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 not 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. at p. 376.) “‘“In the absence of 

such a showing, the trial court is presumed to have acted to 
18

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 crimes 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 felony 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), 

section 1202253, subdivision (d), provides, “Notwithstanding any 

other provision of law, any person who, in the commission of a 

felony specified in subdivision (a), Section 246, or 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 concluded Villa had committed an 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 recidivist 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 and 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, applicable 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 sentence 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 particular 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 subject 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 pp. 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 forbids 

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 

punishments 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; People v. Martinez (1999) 

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

as cruel and/or unusual under either the federal Constitution or 
21

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 strike 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 aggressiveness 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 Villa 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 issue 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 for a cruel and/or unusual

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 right to challenge his sentence as 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 romantic rival 

and the danger to society created by violations of section 246, 

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

The elements of a section 246 offense 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 injure someone else.” The jury’s necessary 

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

makes the life sentence he received fully commensurate with his

11 While returning a not guilty verdict on first degree murder 

and guilty verdicts on both aggravated assault 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 voluntary 

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 this 

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], 

and 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 an 

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 [sentence of seven years for attempted murder plus

25 years to life for the firearm enhancement held not cruel and

unusual punishment under federal and state Constitutions];

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, mayhem, 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 occupied vehicle and killing the occupant is 

disproportionate to the punishment for similar offenses in other 

jurisdictions. Other than the conclusory assertion that voluntary 

manslaughter is a more serious offense than shooting at an 

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

compare his sentence to those 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 October 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 prison 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 amendment 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; People 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 retroactively 

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 benefit of Senate Bill No. 136 but did not address 

the question of a remand for resentencing. 
25

agree a remand for resentencing 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 court 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 affirmed. 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.