Filed 2/16/18 P. v. Villa CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO VILLA, JR.,

Defendant and Appellant.

F074301

(Super. Ct. No. DF011998B)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-

INTRODUCTION
Appellant Pedro Villa, Jr., stands convicted of attempted premeditated murder and assault with a deadly weapon. It also was found true that he used a deadly weapon in the commission of the attempted murder. Villa appealed his convictions and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
An information was filed on June 3, 2015, charging Villa in count 1 with attempted, premeditated murder, in violation of Penal Code sections 187, subdivision (a) and 664, and in count 2 with assault with a deadly weapon, in violation of section 245, subdivision (a)(1). It also was alleged that Villa used a deadly weapon in the commission of the count 1 offense, in violation of section 12022, subdivision (b)(1); as to each count, that he inflicted great bodily injury within the meaning of section 12022.7; and that each offense was committed for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b)(1).
After a trial by jury, Villa was found guilty of both counts and the deadly weapon allegation was found true. The gang and great bodily injury enhancements were found not true. Therefore, our recitation of facts will focus on those facts pertinent to the guilty verdicts and true findings.
Criminal proceedings were suspended on April 7, 2016, and it was ordered Villa’s competency to stand trial be evaluated. On April 8, 2016, the trial court appointed Dr. Nick Garcia to evaluate Villa for competency to stand trial. The trial court found Villa competent to stand trial and reinstated criminal proceedings on April 28, 2016.
On June 13, 2016, defense counsel filed a motion stating Villa was requesting a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. The motion was heard on June 21, 2016, and ultimately Villa withdrew his motion.
Trial commenced on June 22, 2016. The victim, Diego Avila, testified that he and Villa were at the same high school their freshman year. Although they had some classes together, they were not friends. Avila graduated from high school in 2013.
The afternoon of March 6, 2015, Avila stopped at Van’s Deli and Gas in Delano. As he pulled in, Avila saw an SUV parked at another pump and recognized Villa as the man walking in front of Avila’s car. After parking, Avila got out of his car and walked inside to purchase a drink.
Once inside, Avila realized he had left his wallet in his car. He walked back out to his car. A video of the incident that day shows Villa hiding behind a post as Avila walks to his car. As Avila put the key into the car door, he “felt some blows” to his back. Avila felt four or five blows and heard Villa’s voice. Villa said, “What’s up, foo?”
After the first blow, Avila realized he “had actually been stabbed.” Avila tried to protect himself with his hand. Avila apparently turned to face his attacker because he received stab wounds to his chest or stomach area and his hands. Avila started bleeding and felt pain after the first blow. Avila began feeling weak; he was scared he was “gonna die.”
The entire incident was captured on the surveillance system for the deli and gas station. The video depicts the actual stabbing.
Avila drove himself to the emergency room of the local hospital. After receiving emergency care, he was transported by ambulance to the Kern Medical Center Trauma Center. He was having problems breathing and received further emergency care at the trauma center.
Avila spoke with police at the emergency room and at the trauma center. He identified Villa as his attacker from a six-pack photographic line-up.
At the time of trial, Avila still was suffering pain from the attack to his hands and back. He had been unable to work for a week or two after the attack.
Delano Police Department Officer Dino Garcia spoke with Avila at the emergency room. Garcia testified Avila told him he thought he was stabbed by Villa because Villa is a Norteño gang member and he was a Sureño gang member. Avila also told Garcia that he was bullied by Villa while in high school. Avila also stated, “You better find [Villa] before I do or it’s not going to be good.”
When interviewed at the trauma center by Officer Anthony Puente, Avila told him he had been stabbed by Villa. Avila also told Puente that there was “trouble between” himself and Villa going back to high school.
On March 7, 2015, Villa was brought to the police station by his girlfriend’s father and turned himself into the police. Villa was given his Miranda rights and agreed to speak with police, but did not want to have his statement recorded. Villa admitted stabbing Avila.
At trial, Villa again admitted stabbing Avila. Villa claimed he was not trying to kill Avila, but just “snapped” when he saw Avila. When he saw Avila in the store, Villa “got mad.” Villa walked back to the SUV and “grabbed” a “pocketknife.”
Villa was acting on a “personal vendetta” over what had happened in high school, where Villa claimed Avila “shoved” his “head in the toilet” and “kicked” him “in the privates.” Afterwards, he disposed of the knife. Villa regretted what he had done to Avila and stated it was a “[b]ig mistake.”
The trial court instructed the jury prior to their beginning deliberations. The jury returned their verdict on July 19, 2016.
The probation report recommended the term of life with the possibility of parole for the attempted premeditated murder, plus a determinate term of one year for the section 12022, subdivision (b)(1) enhancement. A determinate term of three years, the midterm, was recommended on the assault charge, to be stayed pursuant to section 654.
Villa filed a motion for new trial, which the People opposed. The trial court denied the motion.
At sentencing on August 23, 2016, the trial court imposed a term of life with the possibility of parole for the count 1 offense of attempted premeditated murder, with a one-year determinate term for the section 12022, subdivision (b)(1) enhancement. The midterm of three years was imposed for the count 2 offense and stayed pursuant to section 654. Various fines and fees were imposed. Total credits of 616 days were awarded. Restitution pursuant to section 1202.4, subdivision (f) was to be determined.
The abstract of judgment was filed August 29, 2016, and accurately reflects the trial court’s oral pronouncement of sentence.
Villa filed a notice of appeal on August 23, 2016, in the superior court, which was lodged with this court on September 1, 2016.
DISCUSSION
Appellate counsel was appointed on January 6, 2017. Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on June 9, 2017. That same day, this court issued its letter to Villa inviting supplemental briefing. No supplemental brief was filed.
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.