Filed 3/16/15 P. v. Villarreal CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F068735

                   v.                                                      (Super. Ct. No. 1092502)

JESUS MARIO VILLARREAL, JR.,                                                      OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo
Cordova, Judge.
         Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

   Before Levy, Acting P.J., Detjen, J., and Smith, J.

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                              FACTS AND PROCEEDINGS
       Jesus Mario Villarreal, Jr., appellant, is before this court on his third appeal. 1 In
Villarreal I, we found the trial court erred in failing to conduct an inquiry into appellant’s
complaints about his trial court’s counsel and remanded the matter for the trial court to
conduct a Marsden2 hearing. On remand, the trial court denied appellant’s Marsden
motion to substitute his trial counsel. In Villarreal II, this court concluded that the trial
court erred in denying appellant’s Marsden motion and we ordered the trial court on
remand to grant the Marsden motion, appoint new trial counsel for appellant, and
entertain any motion by appellant to withdraw his plea.
       After remand from his second appeal, the trial court granted appellant’s motion to
withdraw his plea.3 On the day set for trial, November 12, 2013, appellant changed his
not guilty pleas and entered into a new plea agreement. Under the terms of the plea
agreement, appellant agreed to a sentence between 42 and 44 years to life. The trial court
advised appellant of the consequences of his plea. The court further advised appellant of,
and appellant waived, his constitutional rights pursuant to Boykin/Tahl.4 Appellant pled
no contest to all eight counts of the original information.5


1      On March 28, 2014, this court took judicial notice of our nonpublished opinions in
appellant’s first two appeals, People v. Villarreal (Mar. 3, 2009, F055291) (Villarreal I),
and People v. Villarreal (Feb. 2, 2011, F058288) (Villarreal II).
2      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3      In appellant’s original plea agreement, he admitted two counts of section 269,
subdivision (a) and received consecutive prison terms of 15 years to life for each count.
Six other counts were dismissed.
4      Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
5       The information alleged two counts of aggravated sexual assault of a minor under
14 years of age (§ 269, subd. (a), counts I & V), three counts of penetration of a genital
opening with a foreign object on a minor under 14 years of age (§ 289, subd. (j), counts
II, IV, & VII), one count of continuous lewd and lascivious activity on a minor under 14
years of age (§ 288.5, count III), one count of oral copulation on a minor under 14 years
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       On December 16, 2013, the trial court sentenced appellant to an indeterminate
prison term of 30 years to life based on consecutive terms of 15 years to life on counts I
and V. The court sentenced appellant to a determinate prison term of 14 years based on
consecutive terms of six years on count III and two years on each of counts II, IV, VI,
and VII.6 The court awarded appellant actual custody credits of 2,763 days, conduct
credits of 414 days, and total custody credits of 3,177 days.
       The court imposed a restitution fine of $280 multiplied by 44 years for a total fine
of $12,320 pursuant to sections 1202.4, subdivision (b) and 1202.45 (suspended unless
parole is revoked). Appellant contends the trial court erred in imposing this restitution
fine because it exceeded the $8,800 fine imposed under his original plea agreement and
because the amount exceeds the statutory maximum fine of $10,000 set forth in section
1202.4, subdivision (b)(1) which was in effect between 2004 and 2005 when appellant
committed his offenses. The People do not concede the first point, but concur with
appellant that the trial court erred in imposing a restitution fine greater than $10,000.
                                   RESTITUTION FINE
       Section 1202.4, subdivision (b)(1) provided in 2004 that a restitution fine “shall be
set at the discretion of the court and commensurate with the seriousness of the offense,
but shall not be less than two hundred dollars ($200), and not more than ten thousand
dollars ($10,000), if the person is convicted of a felony ….” (Stats. 2004, ch. 223, § 2.)
Because this is an unauthorized sentence by the trial court, it can be raised any time and
is not subject to forfeiture for failing to raise the issue with the trial court. (People v.
Smith (2001) 24 Cal.4th 849, 852-854.) The People concede the trial court erred in

of age (§ 288a, subd. (c)(1), count VI), and one count of knowingly possessing matter,
data, and images depicting a minor in or simulating sexual conduct (§ 311.11, count
VIII).
6      Count VIII was sentenced as a misdemeanor to be served concurrently with
appellant’s prison sentence.

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imposing a restitution fine in excess of $10,000 pursuant to sections 1202.4 and 1202.45.
We agree with the parties and remand for the trial court to impose a new restitution fine.
       Appellant contends that because the trial court originally imposed a restitution fine
of $8,800, the court violated the prohibition against double jeopardy in imposing a
restitution fine over that amount. The rule against double jeopardy, however, does not
apply after a defendant successfully withdraws a prior guilty plea. The sentence imposed
pursuant to the invalidated plea agreement does not serve as a cap on subsequent
sentencing. (People v. Hanson (2000) 23 Cal.4th 355, 360, fn. 2; People v. Superior
Court (Garcia) (1982) 131 Cal.App.3d 256, 258-260.) We reject appellant’s argument to
the contrary.
       Appellant further argues that the court multiplied 44 years by $280, a dollar
amount and formula present under the current statute that were not applicable to appellant
when he committed his offenses beginning in 2004. We agree with appellant that the trial
court cannot apply the current version of sections 1202.4 and 1202.45 without violating
the ex post facto clause of the United States and California Constitutions. We further
believe, however, that the trial court is vested with the discretion to select any restitution
fine it finds appropriate in a dollar amount no more than $10,000 and no less than $200.
Because we cannot clearly discern the trial court’s sentencing discretion in imposing the
restitution fine, we will remand for the trial court to exercise its discretion to do so. We
therefore do not accept the appellant’s invitation to simply multiply his sentence of 44
years by $200 to achieve the restitution fine from the original plea agreement of $8,800.
                                       DISPOSITION
       The court’s imposition of a restitution fine pursuant to Penal Code sections 1202.4
and 1202.45 of $12,320 is vacated. The case is remanded for the trial court to impose a
new restitution fine of no more than $10,000 and not less than $200, to amend the
abstract of judgment indicating the new amount of the restitution fine pursuant to Penal

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Code sections 1202.4 and 1202.45, and to forward an amended abstract of judgment to
the appropriate authorities. The judgment is otherwise affirmed.




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