People v. Velez CA2/8 ( 2015 )

Filed 9/17/15 P. v. Velez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT
THE PEOPLE, B262296
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA072076)
v.
RICARDO TORRES VELEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court for the County of Los Angeles.
William C. Ryan, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_______________________________
This case involves an inmate’s petition for recall of his sentence under Penal Code
section 1170.126. (All statutory references are to the Penal Code.)
In 2005, a jury convicted defendant Ricardo Torres Velez of two counts of first
degree burglary, one count of second degree burglary, grand theft of an automobile, and
petty theft with a prior. The court found defendant had suffered two prior serious or
violent felony convictions. The court sentenced defendant to a total of 100 years to life:
four consecutive terms of 25 years to life under the “Three Strikes” law.
This court affirmed the judgment of conviction in an unpublished opinion,
rejecting defendant’s contention that the trial court abused its discretion by denying his
motion to strike one of his prior serious or violent felony convictions.1 (People v. Velez
(Aug. 31, 2006, B188376) [nonpub. opn.].)
In November 2012, the voters approved Proposition 36, the Three Strikes Reform
Act of 2012 (the Act). The Act amended the Three Strikes law so that an indeterminate
term of 25 years to life in prison is applied only “where the current crime is a serious or
violent felony or the prosecution has pled and proved an enumerated disqualifying
factor”; otherwise, the recidivist is to be sentenced as a second strike offender. (People v.
Yearwood (2013) 213 Cal.App.4th 161, 167-168, citing §§ 667, 1170.12.) In addition, an
inmate serving an indeterminate life sentence imposed under the Three Strikes law for a
crime that is not a serious or violent felony, and who is not disqualified, may petition for
recall of his or her sentence, and is eligible for resentencing as a second strike offender
unless the court determines that resentencing would pose an unreasonable risk of danger
to public safety. (§ 1170.126.)
1 The opinion also found the trial court had imposed an unauthorized sentence when
it directed that the section 667, subdivision (a)(1) prior serious felony enhancement for
count 2 (the base count) run concurrently. (People v. Velez, supra, B188376, p. 5.) (The
statute expressly requires the five-year enhancement provided in subdivision (a)(1) to run
consecutively. (§ 667, subd. (a)(1).)) There is no modified abstract of judgment in the
record, but defendant’s petition for resentencing states the length of his sentence is
105 years to life.
2
On October 30, 2014, defendant filed a pro se “Petition for Resentencing Pursuant
to [section] 1170.126.” He argued that he was sentenced as a third striker, and that under
section 1170.126, three of his offenses were no longer subject to third strike sentencing.2
On November 5, 2014, the trial court appointed the Public Defender to represent
defendant in connection with his resentencing petition.
On December 26, 2014, defendant and his counsel stipulated that the prima facie
determination of eligibility related to defendant’s petition could be heard and determined
by Judge William C. Ryan.
On February 17, 2015, Judge Ryan denied the petition for recall of sentence under
section 1170.126 with prejudice. The court stated defendant’s current conviction was for
first degree burglary (§ 459), “a violent felony pursuant to Penal Code section 667.5
(c)(21), making Defendant ineligible for resentencing pursuant to Penal Code
section 1170.126 (e)(1).” (Burglary of the first degree is also a serious felony. (§ 1192.7,
subd. (c)(18).))
Defendant filed a timely appeal.
On June 9, 2015, defendant’s appointed counsel filed a Wende brief (People v.
Wende (1979) 25 Cal.3d 436) requesting our independent review of the record.
2 The petition was also denominated a “Petition for Writ of Habeas Corpus.” The
greater part of the petition was addressed to defendant’s claim that two of his strikes
arose from “a single act against a single victim” and so one of them should be dismissed
under People v. Vargas (2014) 59 Cal.4th 635, 638-639 (because the defendant’s two
prior felony convictions for robbery and carjacking were based on the same act,
committed at the same time and against the same victim, “the trial court should have
dismissed one of them and sentenced defendant as if she had only one, not two,
qualifying strike convictions”). Defendant contended the trial court could “resolve this
issue by merely recalling [defendant’s] sentence and resentencing [defendant] as a
two striker on his current offense of property crimes.” Defendant’s petition also claimed
in a second ground for relief that his trial and appellate counsel were ineffective in failing
to raise this issue at his sentencing and on appeal. The trial court dismissed these claims
without prejudice, stating that those issues in defendant’s petition, “particularly as it
relates to his claims pursuant to People v. Vargas . . . need to be submitted in a separate
Petition for Writ of Habeas Corpus in the original sentencing court.”
3
Counsel’s declaration of the same date stated that he would that day inform defendant of
the filing of the Wende brief and of defendant’s rights to file a brief of his own and to
request appointment of other counsel, and would send defendant a copy of the record on
appeal and the Wende brief. No supplemental brief was filed.
In the interim, the Supreme Court decided People v. Johnson (2015) 61 Cal.4th
674. The court held that “an inmate is eligible for resentencing with respect to a current
offense that is neither serious nor violent despite the presence of another current offense
that is serious or violent.” (Id. at p. 695.)
We sent a letter to counsel seeking supplemental briefing on appellant’s eligibility
for resentencing and whether the court should reverse and remand for a further hearing on
appellant’s petition in light of People v. Johnson. We received and reviewed those briefs,
and conclude no need exists for a further resentencing hearing. Defendant is ineligible
for resentencing on a ground the trial court did not reach: he has a disqualifying prior
conviction under section 1170.126, subdivision (e)(3).
Under subdivision (e)(3) of the statute, an inmate is eligible for resentencing if
“[t]he inmate has no prior convictions for any of the offenses appearing in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126,
subd. (e)(3).) The prior convictions identified in those two clauses include “[a] ‘sexually
violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare and
Institutions Code.” (§ 667, subd. (e)(2)(C)(iv)(I); § 1170.12, subd. (c)(2)(C)(iv)(I).)
Welfare and Institutions Code section 6600, subdivision (b) defines “sexually
violent offense” to include “a felony violation of Section . . . 289 of the Penal Code . . . .”
Section 289 provides that any person “who commits an act of sexual penetration when
the act is accomplished against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim or another person
shall be punished by imprisonment in the state prison for three, six, or eight years.”
(§ 289, subd. (a)(1)(A).)
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Respondent informs us that defendant has a prior conviction for forcible sexual
penetration. Respondent cites our opinion in defendant’s appeal from his current
conviction, where we stated: “In 1991, he [(defendant)] was convicted of three felonies,
two of which were alleged as strikes in the present case: attempted oral copulation,
forcible sexual penetration, and sexual battery by restraint.” (People v. Velez, supra,
B188376, p. 4.) Respondent also cites defendant’s petition for resentencing, where
defendant describes the nature of one of his prior convictions as “penetration with a
foreign object i.e. finger . . . .”
Defendant’s supplemental brief provides no contrary information, stating only
that, under People v. Johnson, defendant would be eligible for recall and resentencing on
his commercial burglary and theft counts, “unless [defendant] is otherwise ineligible
because of a prior conviction . . . .” The record confirms defendant is “otherwise
ineligible.” (See People v. Johnson, supra, 61 Cal.4th at p. 693 [“if an inmate’s prior
convictions include any of the super strikes that are incorporated into section 1170.126,
subdivision (e)(3), he or she will be disqualified from the resentencing provisions,
because a prior offense is present as to each current offense”].)
We are satisfied that defendant’s appointed counsel has fully complied with his
responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106,
109-110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The trial court’s order is affirmed.
GRIMES, J.
We concur:
BIGELOW, P. J. RUBIN, J.
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