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   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                  B293118

         Plaintiff and Respondent,                           (Los Angeles County
                                                             Super. Ct. No. BA292983)
         v.

RUBEN VILLA,

         Defendant and Appellant.


      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.
                       _______________________
       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.

                                 2
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.

                                 3
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.”

                                   4
       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


                                 5
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


                                6
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




                                7
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




                                  8
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


                                 9
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.

                                10
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.)

                                 11
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.)

                                12
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].)

                                 13
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.

                                14
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.


                                 15
(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 cross-
examination, 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


                                16
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


                                 17
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.”

                                 18
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;


                                19
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


                                  20
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].)

                                21
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.

                                22
“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.

                                23
      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.

                                24
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.




                                25
