Filed 2/15/22 P. v. Villegas CA2/7

Opinion following transfer from Supreme Court

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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.

HECTOR RODOLFO VILLEGAS,

Defendant and Appellant.

 B300146

 (Los Angeles County

 Super. Ct. No. GA032022)

APPEAL from an order of the Superior Court of Los 

Angeles County, Teri Schwartz, Judge. Affirmed.

Jin H. Kim, 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, Senior Assistant Attorney General, Michael R. 

Johnsen, Supervising Deputy Attorney General, Idan Ivri, Nancy 

L. Ladner, and Nikhil Cooper, Deputy Attorneys General for 

Plaintiff and Respondent.
2

INTRODUCTION

Hector Rodolfo Villegas appeals from the superior court’s 

order denying his petition under Penal Code section 1170.95.1 In 

our prior opinion we affirmed the superior court’s ruling, after 

which Villegas successfully petitioned the Supreme Court for 

review. The Supreme Court transferred the case to us with 

directions to vacate our earlier opinion and reconsider our 

decision in light of Senate Bill No. 775 (Stats. 2021, ch. 551), 

which, among other things, confirmed that the standard of proof 

at the hearing on an order to show cause under section 1170.95 is 

proof beyond a reasonable doubt. Because the trial court applied, 

in the alternative, that standard of proof, we vacate our earlier 

opinion and again affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Villegas of Murder, and We Affirm

At 2:30 a.m. on April 14, 1997, 20-year-old Villegas, in a 

stolen car, led police officers on a 10-mile high-speed chase, 

driving 85 miles per hour through residential neighborhoods in 

several cities. During the chase Villegas drove on the wrong side 

of the road, ran at least two stop signs and two red lights, and 

nearly collided with a city bus. The chase ended when he skidded 

across seven lanes of traffic and crashed into a telephone pole, 

killing his passenger, 57-year-old Todd Cassick.

The People charged Villegas with second degree murder 

(§ 187, subd. (a), count 1), willfully fleeing or attempting to elude 

1 Undesignated statutory references are to the Penal Code. 
3

a pursuing peace officer proximately causing death (Veh. Code, 

§ 2800.3, subd. (b), count 2), and unlawful driving or taking of a 

vehicle (Veh. Code, § 10851, subd. (a), count 3). At trial Villegas 

sought to establish he fled from police only because he was afraid 

of and pressured by the much older Cassick. Villegas admitted 

that during the chase he knew what he was doing “was very 

dangerous” and that he “knew [he] might hurt people by driving 

this quick.” 

The trial court instructed the jury on two theories of 

murder: second degree felony murder and implied malice 

murder.2 The jury convicted Villegas on all counts. The court 

sentenced Villegas on count 1 to a prison term of 15 years to life, 

on count 2 to four years (stayed under section 654), and on 

count 3 to a term of two years (concurrent with the sentence on 

count 1). We affirmed the judgment. We also dismissed a 

petition by Villegas for writ of habeas corpus in which he 

contended he received ineffective assistance of counsel. 

B. Villegas Files a Petition Under Section 1170.95, 

Which the Superior Court Denies After Appointing 

Counsel, Issuing an Order To Show Cause, and 

Holding a Hearing 

In January 2019 Villegas filed a petition for resentencing 

under section 1170.95. After the People conceded he had made a 

prima facie showing he was entitled to relief because “there were 

multiple theories of [murder] liability available to the jury, 

2 The predicate felony for the felony murder theory was

fleeing or attempting to elude a pursuing peace officer while 

driving with a willful or wanton disregard for the safety of 

persons or property, in violation of Vehicle Code section 2800.2. 
4

including felony murder,” the superior court appointed counsel 

for Villegas and issued an order to show cause. In the ensuing 

briefing, the People argued Villegas was not entitled to relief 

because, among other reasons, under current law Villegas “could 

still be convicted of second degree murder beyond a reasonable 

doubt” on an implied malice theory. 

In June 2019 the superior court held a hearing, at which 

the court stated it had reviewed the file, including the entire 

reporter’s transcript of the 1997 trial, the jury instructions, and 

our opinion resolving Villegas’s direct appeal and habeas petition. 

And after observing that, as a result of Senate Bill No. 1437, 

Villegas could no longer be convicted of murder based on the 

felony murder theory presented at his trial, the court stated: 

“I view my role here as a limited one. I view my role as one of 

making a determination not of guilt beyond a reasonable doubt, 

but whether the People can prove that the defendant is ineligible 

under 1170.95 because he could now be convicted under the 

present state of the law. So the way I view the question is, Can 

the People demonstrate beyond a reasonable doubt that the 

defendant could be convicted under the implied malice theory of 

murder?” 

Agreeing that the court had accurately described its role 

and the dispositive question, the People argued Villegas “could 

still be convicted beyond a reasonable doubt of implied malice 

murder given the evidence that was presented during the trial.” 

Counsel for Villegas, however, argued Villegas was entitled to 

have a jury determine whether “the People can prove beyond a 

reasonable doubt that [Villegas] is ineligible for relief” under 

section 1170.95. After the court rejected that argument, counsel 

for Villegas expressed concern about “the court’s emphasis on the 
5

word ‘could’” when stating the People’s burden was to 

demonstrate beyond a reasonable doubt the defendant could be 

convicted of murder on an implied malice theory. The court 

responded, in relevant part: “I don’t know that my role here is to 

say, Is the defendant guilty? Have the People proven him guilty 

beyond a reasonable doubt of second degree implied malice 

murder? I don’t know that that’s my role here. Because the 

question is could he be, not would he be.” Counsel for Villegas 

answered: “And that’s why I go back to asking for a jury.” The 

court indicated it understood Villegas’s argument and again 

outlined what the court viewed its role was. “So I don’t view my 

role as the trier of fact here. I don’t view my role as the 13th 

juror. And if I’m wrong, we’ll be back, right, depending on the 

outcome.” 

After hearing further argument on the evidence at trial, the 

superior court found the People had met their burden of proving 

Villegas was ineligible for relief under section 1170.95. The court 

stated: “There is more than enough evidence to prove beyond a 

reasonable doubt that the way this . . . evading was committed 

does rise to the level of proving that the defendant committed an 

implied malice murder. . . . The natural consequences of that 

conduct . . . were dangerous to human life. And I don’t think 

there could be any dispute but that . . . the duration of the chase, 

the location of the chase, the speeds, the manner in which

[Villegas] was driving—all of that was dangerous to human life. 

And it’s clear just by the testimony of the officers, without the 

defendant’s admissions, it’s clear he was deliberately engaging in 

this conduct knowing the danger to human life and acting in 

conscious disregard for that human life. . . . So while I’m aware 

. . . that one theory was presented that was legally incorrect, the 
6

manner in which the evading was committed . . . does support the 

implied malice second degree theory of liability here. And as 

such, I think if Mr. Villegas were tried today, . . . there would be 

proof beyond a reasonable doubt.”

The court continued: “Now, I will extend and enlarge the 

scope of what I view my role is because I do think it’s what I said 

earlier. But since I don’t know what the court of appeal is going 

to do, I can comfortably say that the evidence today would prove 

beyond a reasonable doubt implied malice murder given these 

facts that I have from the testimony from the transcript and from 

the description by the court of appeal. And then on top of that, if 

I were to add Mr. Villegas’s testimony, that was kind of icing on 

the cake for the prosecution. I don’t know if the prosecution 

really needed that testimony, but they got it. And it was 

devastating. . . . But I think the evidence, even without it, is 

substantial and constitutes proof beyond a reasonable doubt.” 

The court concluded: “So even assuming my role is to be a 

trier of fact—which I don’t assume it to be—but even if it were 

and the courts were to say that that’s what it is to be, I believe 

the People have demonstrated beyond a reasonable doubt that 

the defendant not only could be convicted under the present state 

of the law, but most likely would be convicted under the present 

state of the law given those facts. And so given the uncertainty 

as to how this is going to be construed, the statute, I think there 

is really more than enough evidence here no matter how I look at 

it to support this conviction . . . .” 
7

C. We Affirm the Superior Court’s Order Denying 

Villegas’s Petition Under Section 1170.95

Villegas appealed from the order denying his petition under 

section 1170.95. He argued the superior court, in finding the 

People met their burden of proving beyond a reasonable doubt he 

was ineligible for relief under section 1170.95, erroneously 

required the People “to prove only that, based on the record of 

conviction, Villegas could have been convicted of implied malice 

murder, i.e., there was substantial evidence to support such a 

conviction.” He argued section 1170.95, subdivision (d)(3), 

instead “requires the prosecution to prove beyond a reasonable 

doubt that the jury would have convicted Villegas of implied 

malice murder despite the now-erroneous jury instruction on 

second-degree felony murder.” He contended the People did not 

meet that burden here. We affirmed the order denying Villegas’s 

petition.

We held that section 1170.95 requires the prosecutor to 

prove beyond a reasonable doubt each element of first or second 

degree murder under current law to establish a petitioner’s 

ineligibility for relief under that statute. We explained that, in 

evaluating whether the prosecutor has met this burden, it is the 

court’s responsibility to act as independent factfinder and 

determine whether the evidence establishes a petitioner would be 

guilty of murder under amended sections 188 and 189. We 

concluded the superior court ruled, in the alternative, the People 

had met their burden under this beyond-a-reasonable-doubt 

standard and that the superior court properly denied Villegas’s 

petition under section 1170.95. We explained that, although the 

superior court initially applied an incorrect standard, the court 

found in the alternative it could “comfortably say that the 
8

evidence today would prove beyond a reasonable doubt implied 

malice murder.” The superior court added that, even without 

Villegas’s trial testimony—which the court called “icing on the 

cake” and “devastating”—“I think the evidence . . . is substantial 

and constitutes proof beyond a reasonable doubt.” We concluded 

that these statements showed the superior court applied, in the 

alternative, the correct standard in determining the People 

proved beyond a reasonable doubt Villegas was ineligible for 

relief under section 1170.95. We also concluded substantial 

evidence supported the superior court’s finding the People proved 

beyond a reasonable doubt Villegas was guilty of implied malice 

murder.

D. The Supreme Court Grants Review and Transfers the

Cause

The Supreme Court granted review and transferred the 

case to us with directions to vacate our decision and reconsider 

Villegas’s appeal in light of amendments to section 1170.95 by 

Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, 

§ 2) (Senate Bill 775), effective January 1, 2022. In their 

supplemental brief, the People argue the “superior court 

ultimately applied the correct standard of proof, as required by 

Senate Bill 775, when it acted as an independent factfinder and 

determined beyond a reasonable doubt that [Villegas] committed 

second degree murder under an implied malice theory.” The 

People argue that the superior court “employed the same 

standard of proof that is now required by Senate Bill 775” and 

that “substantial evidence supports the denial” of Villegas’s 

petition. Villegas submitted a supplemental brief agreeing 

Senate Bill 775 requires the prosecution to “prove beyond a 
9

reasonable doubt a petitioner is guilty of murder under the 

amended murder laws” and otherwise relying on the arguments 

in his opening and reply briefs (which did not address Senate 

Bill 775). 

DISCUSSION

The Supreme Court directed us to reconsider the appeal in 

light of Senate Bill 775. That law, like our prior opinion, provides 

that the standard of proof at the hearing on the order to show 

cause is proof beyond a reasonable doubt and that a “finding 

there is substantial evidence to support a conviction for murder, 

attempted murder, or manslaughter is insufficient to prove, 

beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing.” (§ 1170.95, subd. (d)(3).) As the People point out, 

“Senate Bill 775 simply reaffirmed the standard that this Court 

had already adopted as correct.” The trial court applied that 

correct standard. 

In addition, as we held before, substantial evidence 

supported the superior court’s findings. “[S]econd degree murder 

based on implied malice has been committed when a person does 

‘“‘an act, the natural consequences of which are dangerous to life, 

which act was deliberately performed by a person who knows 

that his conduct endangers the life of another and who acts with 

conscious disregard for life.’”’” (People v. Watson (1981) 30 Cal.3d 

290, 300; accord, Zemek v. Superior Court (2020) 44 Cal.App.5th 

535, 548.) Here, the evidence showed that Villegas, in evading 

officers for 10 miles, drove 85 miles per hour through residential 

neighborhoods, drove on the wrong side of the road, ran through 

stop signs and red lights, nearly hit a bus, and finally skidded 
10

across multiple lanes of traffic before crashing into a telephone 

pole violently enough to kill his passenger. He admitted he knew 

what he was doing was very dangerous and might hurt people. 

That admission, as the superior court observed, was icing on a 

substantial cake of circumstantial evidence that the natural 

consequences of the way Villegas drove while evading police were 

dangerous to life, that he knew his driving endangered human 

life, and that he drove with conscious disregard for life. (See 

Watson, at pp. 300-301 [substantial evidence supported a finding 

the defendant committed implied malice murder where, while 

intoxicated, he “drove at highly excessive speeds through city 

streets” and “nearly collided with a vehicle after running a red 

light” before crashing into the victims’ car]; People v. Moore

(2010) 187 Cal.App.4th 937, 941 [substantial evidence supported 

a conviction for implied malice murder where the defendant 

“drove 70 miles per hour in a 35-mile-per-hour zone, crossed into 

the opposing traffic lane, caused oncoming drivers to avoid him, 

ran a red light and struck a car in the intersection”].)
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DISPOSITION

The order denying Villegas’s petition under section 1170.95 

is affirmed. 

SEGAL, J. 

We concur: 

PERLUSS, P. J.

FEUER, J.