People v. Velasquez CA4/1 ( 2023 )

Filed 1/12/23 P. v. Velasquez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080661
Plaintiff and Respondent,
v. (Super. Ct. No. SCS175592)
CARLOS TORREZ VELASQUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Garry G. Haehnle, Judge. Affirmed.
Carlos Torrez Velasquez, in pro. per.; and Athena Shudde, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
This appeal is from the denial of appellant’s second petition for
resentencing under Penal Code1 section 1172.6.
In 2004, Carlos Torrez Velasquez was convicted of second degree
murder (§ 187, subd. (a)). The jury also found that he personally and
1 All further statutory references are to the Penal Code.
intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). He
was the only person charged and was tried as the actual perpetrator of the
homicide. Velasquez was sentenced to an indeterminate term of 40 years to
life in prison.
Velasquez appealed and this court affirmed his conviction in an
unpublished opinion. (People v. Velasquez (Nov. 2, 2006, D045500).)
In 2019, Velasquez filed a petition for resentencing under section
1172.6, which was denied on the grounds that he was not eligible for relief
under the statute.
In 2022, Velasquez filed his second petition for resentencing under
section 1172.6. Among other contentions, Velasquez argued he was eligible
for relief after the modifications made to section 1172.6 by Senate Bill
No. 775. The court appointed counsel, reviewed the record of conviction, and
again denied the petition without an order to show cause or an evidentiary
hearing. The court stated:
“In this case, Inmate Velasquez filed his first [section]
[1172.6 ] petition on January 22, 2019. The petition was
denied on February 22, 2019. The petition was denied
because the defendant was found to be the actual killer. No
appeal was filed on that denial.
“Inmate Velasquez subsequently filed a new petition on
March 21, 2022. The petition was filed pursuant to Senate
Bill 775. However, the provisions of Penal Code section
[1172.6 ] which were expanded by the passing of Senate
Bill 775 do not affect the current petition since he has
already been determined to be the actual killer. Velasquez
did not appeal that finding.
“Additionally, in the new petition, Velasquez argues factual
reasons why the jury should not have found him guilty as
the actual killer. None of these reasons are subject to
[section 1172.6] analysis. Those reasons go to sufficiency of
the evidence to support the conviction, which are the
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subject for a direct appeal. Petitioner’s conviction was
upheld on appeal on January 5, 2006.
“Velasquez also includes in his petition a jury instruction,
CALJIC [No.]17.19.5, which only applies to the special
allegation, not the underlying crime for which he was
convicted.
“The petition fails to state a prima facie case for re-
sentencing.”
Velasquez filed a timely notice of appeal.
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende) indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks this court to review the
record for error as contemplated by Wende. We offered Velasquez the
opportunity to file his own brief on appeal. He has responded with a
supplemental brief, which we will discuss below.
In the opening brief, appellate counsel asks the court to review the
record for error. We are aware the Supreme Court has now issued its opinion
in People v. Delgadillo (Dec. 19, 2022) ____ Cal.5th ____ [2022 Cal. LEXIS
7654], limiting the application of Wende in cases of appeals from denial of
postjudgment petitions for resentencing under section 1172.6. Given the
timing, we have already completed our independent review of the record for
error. Further, Velasquez has submitted a supplemental brief, which we will
now address.
In his supplemental brief, Velasquez maintains he is innocent of the
offense for which he was convicted. At base, he wants an evidentiary hearing
under section 1172.6 in order to prove he is innocent of the crime. Velasquez
does not raise any arguable issues regarding his eligibility for resentencing.
To the extent Velasquez may have a remedy to challenge his conviction, it
will be by habeas corpus and not this statutory resentencing procedure.
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The supplemental brief does not raise any issue that is cognizable on
appeal from the denial of a postjudgment petition for resentencing.
DISPOSITION
Our review of the record does not reveal any arguable issues for
reversal on appeal. Velasquez’s supplemental brief does not raise any
meritorious issues challenging the denial of his petition for resentencing.
The order denying the petition for resentencing under section 1172.6 is
affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
DATO, J.
BUCHANAN, J.
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