Filed 1/26/22 P. v. Villeda CA2/3

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ALLAN VILLEDA,

Defendant and Appellant.

B302413

Los Angeles County

Super. Ct. No. TA111443-01

APPEAL from an order of the Superior Court of 

Los Angeles County, Tammy Chung Ryu, Judge. Reversed 

and remanded.

Tanya Dellaca, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, 

Lance E. Winters, Chief Assistant Attorney General, Susan 

Sullivan Pithey, Assistant Attorney General, Steven D. Matthews

and Analee J. Brodie, Deputy Attorneys General, for Plaintiff 

and Respondent.

_________________________
2

A jury convicted Allan Villeda of four counts of robbery 

committed against four victims in 2009 and 2010. The jury 

found Villeda personally used a firearm in the robberies and 

committed the crimes for his gang. The trial court sentenced 

Villeda to 38 years in the state prison. In 2012 a different panel 

of this court affirmed Villeda’s conviction. (People v. Villeda

(Sept. 27, 2012, B230494) [nonpub. opn.] (Villeda I).)

In February 2019 the Secretary of the California 

Department of Corrections and Rehabilitation (CDCR) sent 

the trial court a letter recommending it recall Villeda’s sentence

and resentence him under Penal Code section 1170, subdivision 

(d)(1) (section 1170(d)(1)).1 The Secretary noted the court now 

has the discretion to strike firearm enhancements. The trial 

court declined to follow the Secretary’s recommendation. Villeda 

appealed and, on August 18, 2021, we issued an opinion affirming 

the trial court’s order.

Villeda then petitioned for review. On November 17, 2021, 

the California Supreme Court granted review and transferred 

the matter to us with directions to vacate our decision and to 

reconsider the case in light of the amendments to the Penal Code 

accomplished by Assembly Bill No. 1540 (2021-2022 Reg. Sess.) 

(Assembly Bill 1540) (Stats. 2021, ch. 719, §§ 1-7).

2 Both Villeda 

and the Attorney General filed supplemental letter briefs. (See 

Cal. Rules of Court, rule 8.200(b).) The parties agree that—in 

1 References to statutes are to the Penal Code.

2 The court noted, “This case does not raise the issue 

presented in People v. Federico [(2020) 50 Cal.App.5th 318], 

review granted August 26, 2020, S263082, because petitioner 

Allan Villeda’s sentence was not recalled under Penal Code 

section 1170, subdivision (d).”
3

light of the new legislation—we should reverse the trial court’s 

order denying recall and remand the case for further proceedings 

under new section 1170.03. We do so.

FACTS AND PROCEDURAL BACKGROUND

1. Villeda’s crimes, convictions, and sentence

Villeda robbed four victims over a span of about five

months in late 2009 and early 2010.3 In summary, these victims 

were:

• Ignacia Melendez. Melendez was going to pick up her 

son from school. She went to her car parked in front 

of her home. Villeda pulled up in a red Ford Explorer 

and called to her. Melendez approached the SUV. 

Villeda demanded Melendez give him two gold necklaces 

she was wearing. Melendez saw Villeda had a gun in 

his lap, pointed at her. She refused and walked toward 

her home. Villeda got out and followed her, holding 

the gun. He threatened to shoot her if she didn’t stop. 

Villeda pulled the chains from Melendez’s neck and 

drove away.

• Ever Pineda. Pineda was washing a truck, accompanied 

by his wife and two children. As Pineda was bending 

down to clean the tires, Villeda approached and yanked 

a gold chain from his neck. Pineda turned to find 

Villeda pointing a gun at him. Villeda demanded money 

and Pineda gave him about $85. Villeda removed 

3 We take the facts from our opinion in Villeda I, of which 

we take judicial notice. (Evid. Code, §§ 452, subd. (d), 459.) 

Villeda also relies on, and quotes from, our opinion in his 

statement of facts on appeal. The Attorney General asks us 

to take judicial notice of our “file from appellant’s prior appeal” 

as well.
4

Pineda’s wallet from his pocket and looked at his 

driver’s license, saying, “ ‘Just in case you talk to 

the police.’ ”

• Oscar Hernandez and Julio Nunez. Hernandez and 

Nunez were rebuilding a wall. As they began to clean 

up, a red SUV pulled up and Villeda’s fellow gang 

member Luis Alonso Escatel got out and approached 

Nunez. Villeda also got out of the SUV, approached 

Hernandez, grabbed his neck in a headlock, and told 

him, “ ‘Walk.’ ” Hernandez felt a hard object pushed 

against his back. Villeda or Escatel, or both of them, 

took cash and a cell phone from Hernandez’s pockets, 

and Villeda tore a gold chain from his neck. Villeda also 

went through Nunez’s pockets and took his cell phone. 

(Villeda I.)

Both Villeda and Escatel were members of the Alondra 13 

gang. Both had gang tattoos. Villeda’s monikers were “Evil,” 

“Demon,” and “Chuckie.” Villeda was the senior member of the

gang and was active in recruiting members. (Villeda I.)

The jury convicted Villeda of the second degree robberies 

of Melendez, Pineda, Hernandez, and Nunez. The jury found 

true allegations that Villeda personally used a firearm in the 

commission of each robbery and that he committed the crimes 

for the benefit of, at the direction of, or in association with a 

criminal street gang. As noted, the trial court sentenced Villeda 

to 38 years in the state prison. The court chose the upper term 

of five years on the Melendez robbery plus ten years for the 

gun use plus ten years for the gang enhancement. On each 

of the remaining three counts, the court imposed one-third 

the midterm of one year plus three years and four months 

for the gun. The court imposed but stayed concurrent terms 
5

of ten years each for the gang enhancement on those counts. 

(Villeda I.)

2. The Department of Corrections and Rehabilitation’s 

letter of recommendation and the trial court’s ruling

On February 25, 2019, the Los Angeles Superior Court 

received a letter dated February 11, 2019 from the Office of the 

Secretary of the CDCR.

4 The Secretary recommended “a recall 

of sentence and resentence” of Villeda under former section 

1170(d)(1). The Secretary stated, “[P]lease consider the 

amendment to [Penal Code] Section 12022.53, subdivision (h), 

which became effective January 1, 2018.” As the Secretary 

noted, that amendment gave courts discretion to strike or 

dismiss a personal use firearm enhancement at sentencing 

(or resentencing) in the interest of justice.5

The Secretary enclosed a Cumulative Case Summary and 

Evaluation Report, “present[ing] case factors that are applicable” 

to the recommendation. The report noted Villeda has “an active 

Immigration and Customs Enforcement (ICE) detainer . . . for 

Illegal Entry.” Under “Institutional Adjustment” the Secretary 

stated, “Villeda is identified as an active member of the 

4 At the time, the Secretary was Ralph M. Diaz. 

(<https://www.cdcr.ca.gov/insidecdcr/2020/08/28/governornewsom-announces-cdcr-secretary-retirement-names-newsecretary/> [as of Jan. 25, 2022], archived at <https://perma.cc

/9ZLX-DN5J>.)

5 Before 2018, the firearm enhancements contained in 

section 12022.53—the basis for 20 years of Villeda’s 38-year 

sentence—were mandatory. Effective January 1, 2018, the 

Legislature gave trial judges discretion to strike or dismiss the 

enhancements “ ‘in the interest of justice’ ” under section 1385. 

(People v. Flores (2021) 63 Cal.App.5th 368, 375-376.) 
6

Varrio Alondra 13 Sureno disruptive Security Threat Group.” 

He received a “serious Rules Violation Report” in 2012 

“for Possession of a Weapon and was subsequently found guilty 

of the charges.” Villeda had “no pending disciplinary actions” 

and had “not received any Custodial Counseling Chronos.” He 

is housed in the general population at Ironwood State Prison. 

He works as a kitchen cook. His work performance was 

satisfactory for a three-month period in 2016. In 2012 and 

2013 he participated in group hunger strikes at another prison. 

In 2018 he received a report noting satisfactory progress “while 

assigned to Adult Basic Education III.”

Under “Self-Help Activities,” the Secretary noted Villeda 

completed his GED in December 2018 and received certificates 

for completing two programs, the “Kairos Inside Weekend 

Program” and the “Circle Keeper in the Prison of Peace.” 

He “has participated in Alcoholics Anonymous.”6

On March 28, 2019, the trial court issued a minute order 

declining to recall Villeda’s sentence. The order states, 

“Defendant is not present in court, and not represented by 

counsel.” The court described the facts of Villeda’s crimes and 

noted the role his firearm played in the robberies: “[Villeda] 

6 It is unclear whether Villeda received a copy of the 

Secretary’s letter to the court. The letter shows copies to 

the Offices of the District Attorney and the Public Defender, 

but the Alternate Public Defender’s Office represented Villeda 

at his trial and his January 2011 sentencing. (Cf. People v. 

Pillsbury (2021) 69 Cal.App.5th 776, 781-782 [defendant has a 

due process right to notice and an opportunity to be heard before 

court denies a section 1170(d) recommendation by the Secretary];

new § 1170.03, subd. (b)(1) [if resentencing request is from the 

Secretary, “court shall provide notice to the defendant and set 

a status conference within 30 days”].)
7

threatened to use the gun on the victims if they didn’t comply 

and, in the case of victim Ever Pineda, pointed the gun at 

the victim in front of his wife and two children. Defendant’s 

actions were brazen and demonstrated extreme callousness.” 

After describing Villeda’s role as an “active senior member 

of his gang,” the court continued:

“Since defendant’s use of a gun played a 

significant role in the robberies, compelling 

the victims to give up their property in fear 

of their lives, this court finds it proper and 

reasonable that the trial court imposed 

the gun enhancements in all of the robbery 

counts. . . . [F]urther . . . , despite the evidence 

of defendant’s significant role in his gang, the 

trial court imposed only one gang enhancement 

and stayed the gang enhancements on the 

other three counts.”

The court concluded, “Therefore, this court finds that it would 

not be in the interest of justice to resentence defendant Villeda 

as recommended by CDCR.”

DISCUSSION

On appeal, Villeda contends (1) the trial court violated 

his due process rights by neither appointing counsel for him 

nor holding a hearing, and (2) the court abused its discretion 

in declining to recall his sentence. Former section 1170(d)(1)

authorized a trial court, at any time upon the recommendation 

of the Secretary, to “recall the sentence and commitment 

previously ordered and resentence the defendant in the same 

manner as if they had not previously been sentenced, provided 

the new sentence, if any, is no greater than the initial sentence.” 

Assembly Bill 1540, which took effect January 1, 2022, moved 

the recall-and-resentencing provision of section 1170(d)(1) to 
8

a new section, 1170.03, and added a number of requirements 

to the process. (Stats. 2021, ch. 719, § 3.1.) Among them are 

notice and appointment of counsel. (§ 1170.03, subd. (b)(1).) 

The new provision also requires a court to hold a hearing before 

denying resentencing. (§ 1170.03, subd. (a)(8).)7

The new statute also provides, “There shall be a 

presumption favoring recall and resentencing of the defendant, 

which may only be overcome if a court finds the defendant is 

an unreasonable risk of danger to public safety, as defined in 

subdivision (c) of [s]ection 1170.18.” (§ 1170.03, subd. (b)(2).) 

Section 1170.18, subdivision (c) defines “ ‘unreasonable risk 

of danger to public safety’ ” as “an unreasonable risk that the 

petitioner will commit a new violent felony within the meaning of 

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) 

of [s]ection 667,” a so-called super strike. (§ 1170.18, subd. (c).)8

The parties agree we should reverse the trial court’s order 

and remand the case. In its findings and declarations, the 

Legislature explicitly stated its intent that these resentencing 

proceedings “apply ameliorative laws passed by this body that 

reduce sentences or provide for judicial discretion, regardless 

of the date of the offense or conviction.” (Assem. Bill No. 1540

(2021-2022 Reg. Sess.) § 1(i).) As the Attorney General notes, 

7 The new provision also requires the court to state its

reasons on the record for granting or denying relief. (§ 1170.03, 

subd. (a)(6).) As we noted, here the court did state reasons 

for declining to follow the Secretary’s recommendation.

8 Those felonies include sexually violent offenses, certain sex 

crimes against children, certain homicide offenses, solicitation 

to commit murder, assault with a machine gun on a peace officer 

or firefighter, possession of a weapon of mass destruction, and 

any serious or violent offense punishable in California by life 

imprisonment or death. (§ 667, subd. (e)(2)(C)(iv).)
9

as “[t]he new version of the statute substantially alters the 

framework for recall and resentencing,” “judicial efficiency” 

will be served if the trial court considers Villeda’s recall request 

under the terms of the new statute.

DISPOSITION

We reverse the superior court’s order declining to recall 

Allan Villeda’s sentence and to resentence him. We remand the 

matter for the court to appoint counsel for Villeda and to conduct 

proceedings in accordance with newly-enacted section 1170.03, 

exercising its discretion in light of the presumption the 

Legislature has added to the governing statute.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

LAVIN, J.