Filed 10/26/15 P. v. Villa CA2/6
Opinion following rehearing

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                                  2d Crim. No. B260672
                                                                          (Super. Ct. No. 2012023527)
     Plaintiff and Respondent,                                                 (Ventura County)

v.                                                                       OPINION ON REHEARING

ANTHONY RECINOS VILLA,

     Defendant and Appellant.



                   Pursuant to a plea agreement, appellant Anthony Recinos Villa pled guilty
in three cases and was sentenced to an aggregate term of three years four months in
prison. Following passage of Proposition 47, the Safe Neighborhoods and Schools Act,
he petitioned for resentencing in two of these cases. The trial court granted the requested
relief but simultaneously increased his sentence in the third case, at issue here, so that the
overall duration of his confinement would remain the same. Villa contends that this was
unauthorized. We disagree and affirm.1
                                                        FACTS
                   We briefly summarize the facts of the offense from the probation officer's
report. Villa and the mother of his three-year-old daughter (mother) were arguing about

         1
        We granted Villa's petition for rehearing so that the parties could address
whether the resentencing was justified under Penal Code section 1170, subdivision (d).
money. He slapped her four times across the face. As she tried to run away, he grabbed
her by the hair and scratched her on the back of her neck. She ran off, but he found her
hiding in the bathroom and dragged her back to the dining room. He punched her in the
eye. When she began to yell for help, he placed her on her back, pushed his knee into her
stomach, and began choking her with both hands. He stopped when their daughter,
standing next to them, cried, "No papi!"
                A few weeks later, mother tried to leave her house with a friend. Villa
stopped her, stating, "You're not going anywhere, you bitch." He sat down on her lap to
keep her seated on the couch. He told his friend Muggs to retrieve a gun and a knife.
Muggs returned with a gun in his waistband and handed Villa a six-inch knife. Villa
poked mother with it in the back of her arm while they were arguing. Mother's friend ran
out and called the police. When officers arrived, they ordered mother to leave the
residence with her daughter. Mother could not comply because Villa was holding her
against her will. Mother and her daughter eventually left the residence after a SWAT
team arrived.
                              PROCEDURAL BACKGROUND
                An information charged Villa with one count of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1)),2 two counts of corporal injury to a cohabitant
(§ 273.5, subd. (a)), and one count of false imprisonment by violence (§ 236). Pursuant
to a negotiated agreement, he pled guilty to the assault charge and one of the corporal
injury charges. The trial court suspended imposition of the sentence and placed him on
formal probation for three years with terms and conditions including that he serve 270
days in county jail.
                Villa's probation was terminated unsuccessfully after repeated violations.
In each of two separate cases (Nos. 2014019230 & 2014020757), he pled guilty to
one count of felony drug possession (Health & Saf. Code, § 11377, subd. (a)) and
admitted a prior strike. In a "package resolution of the three matters," the trial court


       2
           All further statutory references are to the Penal Code unless otherwise stated.
                                                2
sentenced him to an aggregate term of three years four months in prison. This was
calculated as follows: In one of the drug possession cases, No. 2014020757, he was
sentenced to the low term of 16 months, doubled to 32 months because of the strike. In
the other drug possession case, No. 2014019230, he was sentenced consecutively to eight
months (one-third of the midterm of two years) after the trial court struck the prior strike.
In the instant domestic violence case, he was sentenced to the low term of two years for
the assault conviction and the low term of two years for the corporal injury conviction,
each to run concurrent to the sentence in case No. 2014020757.
              Subsequently, Villa sought resentencing under Proposition 47 in the two
drug cases. Because "[i]t was an agreed-upon disposition based on all the charges and
all the credits," the trial court also resentenced him in the instant case so that his total
period of confinement would remain the same, although he would serve the final four
months in county jail rather than in state prison. The trial court achieved this result
as follows: The two-year assault sentence in the instant case was deemed to be the
principal term. Villa was resentenced on the corporal injury conviction to a consecutive
subordinate term of one year (one-third the midterm of three years). In one of the drug
cases, No. 2014020757, the trial court resentenced him to a consecutive 120 days. In
the other drug case, No. 2014019230, it imposed a concurrent rather than consecutive
eight-month sentence.
                                        DISCUSSION
              Villa contends that Proposition 47 does not authorize resentencing in the
instant case. No one disputes that the sentences for assault and corporal injury are
outside the scope of Proposition 47. The real issue is whether, after Villa became eligible
for resentencing on some of his convictions due to a change in the law, the trial court was
authorized to resentence him on all of his convictions in order to keep the overall length
of his bargained-for sentence the same. It is of no moment that his convictions arose
from three separate cases. (§ 1170.1, subd. (a); cf. Advisory Com. com., foll. rule 4.412
of the California Rules of Court ["[A] defendant who, with the advice of counsel,


                                               3
expresses agreement to a specified prison term normally is acknowledging that the term
is appropriate for his or her total course of conduct"].)
              "[G]enerally a trial court lacks jurisdiction to resentence a criminal
defendant after execution of sentence has begun." (People v. Howard (1997) 16 Cal.4th
1081, 1089.) Within 120 days of committing a defendant to state prison, however, the
trial court on its own motion may "reconsider its original sentence and impose any new
sentence that would be permissible under the Determinate Sentencing Act if the
resentence were the original sentence so long as the new aggregate sentence does not
exceed the original sentence." (People v. Johnson (2004) 32 Cal.4th 260, 265, italics
omitted; § 1170, subd. (d)(1).) "[S]ection 1170(d) permits the sentencing court to recall a
sentence for any reason which could influence sentencing generally, even if the reason
arose after the original commitment." (Dix v. Superior Court (1991) 53 Cal.3d 442, 463.)
              Villa was originally sentenced on August 28, 2014. After the voters
approved Proposition 47 in November, he petitioned to have his sentence recalled and
to be resentenced with his drug convictions treated as misdemeanors. (§ 1170.18.)
Ninety-eight days after he was committed to prison, the trial court granted Proposition 47
relief and, on its own motion, adjusted the term imposed for the domestic violence
convictions so that his aggregate sentence remained the same.
              Villa contends that Proposition 47 does not permit resentencing in the
domestic violence case, pointing to two of its provisions. First, "[n]othing in [Proposition
47] is intended to diminish or abrogate the finality of judgments in any case not falling
within [its] purview." (§ 1170.18, subd. (n).) Second, "[u]nder no circumstances may
resentencing under [Proposition 47] result in the imposition of a term longer than the
original sentence." (Id., subd. (e).) However, this language "does not trump section
1170.1, subdivision (a) or govern aggregate . . . sentences which are treated as
interlocking pieces." (People v. Sellner (2015) 240 Cal.App.4th 699, 702.) If Villa had
not requested Proposition 47 relief, the trial court still could have resentenced him as it
did pursuant to section 1170, subdivision (d). That he did request such relief changes
nothing.

                                              4
               Villa also contends that he was denied due process because neither he nor
mother were notified that the trial court intended to resentence him on the domestic
violence counts and mother lacked an opportunity to be heard. Because he only first
raised these issues in his petition for rehearing, they are forfeited. (Akins v. State (1998)
61 Cal.App.4th 1, 38-39, fn. 34 ["Reviewing courts need not consider points raised for
the first time in a petition for rehearing"].)
                                        DISPOSITION
               The judgment is affirmed.
               NOT TO BE PUBLISHED.




                                             PERREN, J.


We concur:



               GILBERT, P. J.



               YEGAN, J.




                                                 5
                               Patricia M. Murphy, Judge

                           Superior Court County of Ventura
                          ______________________________


             Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy
Public Defender for Defendant and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney
General, for Plaintiff and Respondent.
