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Filed 5/14/13 P. v. Villicana CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

EDWARD VILLICANA,

 Defendant and Appellant.

2d Crim. No. B243810

(Super. Ct. No. 2010026459)

(Ventura County)

Edward Villicana appeals from the judgment entered following his guilty plea to 

threatening to commit a crime that would result in death or great bodily injury (Pen. 

Code, § 422, subd. (a)),1actively participating in a criminal street gang (§ 186.22, subd. 

(a)), and inflicting corporal injury upon a cohabitant. (§ 273.5, subd. (a).) Appellant 

admitted one prior serious felony conviction (§ 667, subd. (a)(1)) and one prior 

conviction ("strike") within the meaning California's "Three Strikes" law. (§§ 667, 

subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court dismissed the strike and sentenced 

appellant to prison for seven years, eight months. 

Appellant contends that the trial court abused its discretion in denying probation. 

In addition, he contends that the court failed to exercise its discretion in determining the 

length of his prison sentence. We affirm.

 

1 All statutory references are to the Penal Code.
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Facts

Since there was no trial, the following facts are taken from the transcript of the 

preliminary hearing:

Officer Edward Kasaba went to a residence in Oxnard in response to a report of a 

domestic incident. He met Lillie Perez, who complained that her live-in boyfriend, 

appellant, had punched her in the face. As a result of the blow, Perez's upper lip was 

swollen and cut. 

While Kasaba was questioning Perez, appellant telephoned the house phone. 

Kasaba answered the phone and identified himself as "Frank." Appellant asked to speak 

to Perez, but Kasaba said that she was busy and could not come to the phone. Appellant 

replied, "[T]ell that bitch to call me back within five minutes or I'm going to come over 

there and drag her out." 

Appellant hung up, but called back a few minutes later. Kasaba again answered 

the phone. Appellant said "that he was Lalo from Colonia Chiques and that [Kasaba] had 

better watch out because he's on his way over." Approximately 10 minutes later, 

appellant arrived at the residence and was arrested. 

A gang expert testified that appellant is an active member of Colonia Chiques, a 

criminal street gang. 

Guilty Plea and Sentencing

Appellant pleaded guilty with the expressly stated "understanding that the Court 

[would] sentence [him] to no more than seven years, eight months." The court dismissed 

the strike and imposed the middle term of two years for actively participating in a 

criminal street gang (count 2), plus a consecutive five-year term for the prior serious 

felony conviction. (§ 667, subd. (a)(1).) It added a consecutive sentence of eight months 

for inflicting corporal injury upon a cohabitant (count 3).2 It reduced the criminal threats 

 

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The consecutive sentence on count 3 should have been one year - one-third the middle 

term of three years. (§§ 273.5, subd. (a), 1170.1, subd. (a).) But because of the plea 

bargain, the consecutive sentence was limited to eight months.
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conviction (count 1) to a misdemeanor and imposed a concurrent county jail sentence of 

one year. Appellant's aggregate sentence was seven years, eight months, the maximum 

allowed under the plea bargain.

Defense counsel stated, "[T]he defense has accepted seven years, eight months as 

a fair sentence." But counsel asked the court "to consider running" the sentence on count 

3 concurrently with the sentence on count 2.3 Counsel argued that "seven years is a 

sentence that adequately addresses the criminal behavior in this case and adequately 

addresses the problem that [appellant] has." 

The prosecutor objected: "[T]his was a negotiated disposition, and I believe it's 

disingenuous at this point to make this request." The court responded, "I do believe it 

was a negotiated sentence." Nothing more was said concerning counsel's request for a 

concurrent sentence on count 3. 

Denial of Probation

Appellant contends that the trial court abused its discretion in denying probation. 

But in the Felony Disposition Statement, appellant initialed a provision stating, "I will not 

be granted probation." Thus, the trial court lacked discretion to grant probation because 

the denial of probation was an element of the plea bargain.

Alleged Failure to Exercise Discretion in 

Determining the Length of Appellant's Prison Sentence

Appellant argues that the trial court mistakenly believed that the plea bargain 

mandated a seven-year, eight-month prison sentence. This mistaken belief "led the [trial] 

court to exercise no discretion in deciding whether . . . to impose a particular sentence. 

Therefore, this Court should vacate the sentence and remand the case for resentencing 

with directions to the [trial] court to weigh the mitigating and aggravating factors 

appropriate to appellant's case and determine the appropriate sentence." 

Appellant focuses on the trial court's statement that the seven-year, eight-month 

sentence "was a negotiated sentence." Appellant points out that this sentence was a 

 

3 Counsel mistakenly referred to count 3 as count 1. 
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"sentence lid" that protected him from the imposition of a greater sentence. (People v. 

Shelton (2006) 37 Cal.4th 759, 768.) When the parties negotiate a maximum sentence, 

i.e., a sentence lid, they obviously mean something different than if they had bargained 

for a specific or recommended sentence. " 'By agreeing only to a maximum sentence, the 

parties leave unresolved between themselves the appropriate sentence within the 

maximum. That issue is left to the normal sentencing discretion of the trial court, to be 

exercised in a separate proceeding.' " (Id., at p. 770.)

When, as here, a defendant believes that a negotiated disposition has been 

breached, he must move to withdraw his plea of guilty in the trial court. He is precluded 

from obtaining relief on appeal. (People v. Barajas (1972) 26 Cal.App.3d 932, 937; see 

also Cal. Rules of Court, rule 4.412.) 

The trial court's statement that the seven-year, eight-month sentence "was a 

negotiated sentence" is ambiguous. The statement could be interpreted as meaning that 

this sentence was a negotiated sentence lid. "[A] judgment is presumed correct, all 

intendments and presumptions are indulged in its favor, and ambiguities are resolved in 

favor of affirmance. [Citations.]" (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 

765-766, accord, Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Furthermore, 

"[i]t is a basic presumption indulged in by reviewing courts that the trial court is 

presumed to have known and applied the correct statutory and case law in the exercise of 

its official duties. [Citations.]" (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) 

Accordingly, we presume that the trial court was aware that the seven-year, eight-month 

sentence was a sentence lid and that it had discretion to impose a lesser sentence. We 

also presume that the trial court exercised its discretion and determined that the sentence 

lid was the appropriate sentence. 

Appellant contends that the trial court's "failure to state reasons in support of its 

[sentencing] choices constitutes a second ground for reversal." This contention is 

forfeited because appellant did not request that the trial court state reasons for imposing 

the sentence lid. Appellant's counsel told the court that "the defense has accepted seven 

years, eight months as a fair sentence." "[C]omplaints about the manner in which the 
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trial court exercises its sentencing discretion and articulates its supporting reasons cannot 

be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) 

"Included in this category are cases in which the stated reasons allegedly do not apply to 

the particular case, and cases in which the court purportedly erred because it . . . failed to 

state any reasons or give a sufficient number of valid reasons." (Id., at p. 353.)

Disposition

The judgment is affirmed.

 NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.
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Kenneth W. Riley, Judge

Superior Court County of Ventura

______________________________

California Appellate Project, under appointment by the Court of Appeal, 

Jonathan Steiner, Executive Director and Richard Lennon, Staff Attorney, for Defendant 

and Appellant. 

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, 

Supervising Deputy Attorney General, Stacy S. Schwartz, Deputy Attorney General, for 

Plaintiff and Respondent.