People v. Velasco CA4/3 ( 2016 )

Filed 8/26/1 P. v. Velasco CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G051686
v. (Super. Ct. No. 12CF3062)
ERICK CARLOS VELASCO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Patrick Donahue, Judge. Remanded for resentencing and affirmed in all other respects.
John L. Dodd, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne
G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *
A jury convicted Erick Carlos Velasco of one count (count 2) of assault
with a firearm in violation of Penal Code section 245, subdivision (a)(2) (further code
references are to the Penal Code). The jury found true two enhancement allegations:
(1) Velasco committed the offense for the benefit of, at the direction of, or in association
with a criminal street gang in violation of section 186.22, subdivision (b)(1); and
(2) Velasco personally used a firearm in the commission of the offense in violation of
section 12022.5, subdivision (a).
The trial court sentenced Velasco to the low term of two years on count 2,
10 years for the gang enhancement, and three years for the firearm enhancement, for a
total term of 15 years in prison.
Velasco argues that imposing sentence on both the gang enhancement and
the firearm enhancement constituted an improper dual use of facts pursuant to People v.
Rodriguez (2009) 47 Cal.4th 501, 509. The Attorney General agrees.
In People v. Rodriguez, supra, 47 Cal.4th at page 509, the California
Supreme Court concluded: “[T]he standard additional punishment for committing a
felony to benefit a criminal street gang is two, three, or four years’ imprisonment.
(§ 186.22, subd. (b)(1)(A).) But when the crime is a ‘violent felony, as defined in
subdivision (c) of Section 667.5,’ section 186.22’s subdivision (b)(1)(C) calls for
additional punishment of 10 years. Here, defendant became eligible for this 10-year
punishment only because he ‘use[d] a firearm which use [was] charged and proved as
provided in . . . Section 12022.5.’ (§ 667.5, subd. (c)(8).) Thus, defendant’s firearm use
resulted in additional punishment not only under section 12022.5’s subdivision (a)
(providing for additional punishment for personal use of a firearm) but also under
section 186.22’s subdivision (b)(1)(C), for committing a violent felony as defined in
section 667.5, subdivision (c)(8) (by personal use of firearm) to benefit a criminal street
gang. Because the firearm use was punished under two different sentence enhancement
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provisions, each pertaining to firearm use, section 1170.1’s subdivision (f) requires
imposition of ‘only the greatest of those enhancements’ with respect to each offense.”
The trial court erred by imposing sentence on both enhancements;
therefore, we remand for the sole purpose of resentencing.
Disposition
The matter is remanded for resentencing. In all other respects, the
judgment is affirmed.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
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