People v. Velasquez CA1/1

Filed 6/21/22 P. v. Velasquez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A159797
v. (Contra Costa County
JOSE VELASQUEZ, Super. Ct. No.
51510692)
Defendant and Defendant.
MEMORANDUM OPINION1
In 2016, a jury convicted defendant Jose Velasquez of a number of
sexual assault crimes, including forcible rape and forcible sodomy, committed
during a 2000 residential burglary and assault. The jury also found true
several enhancement allegations.
In an unpublished opinion (People v. Velasquez (Oct. 18, 2018) A149205
[nonpub. opn.]2), we ruled Proposition 57 applied retroactively to defendant
and he was entitled to a juvenile transfer hearing. We therefore conditionally
reversed his convictions and remanded for the trial court to hold a transfer
hearing. In that appeal, we also rejected defendant’s claim that his state and
This appeal is appropriately resolved by Memorandum Opinion
1
pursuant to California Standards of Judicial Administration, section 8.1.
The trial court took judicial notice of our prior opinion, as do we.
2
(Evid. Code, §§ 452, 453.)
1
federal speedy trial rights had been violated because the Contra Costa
District Attorney waited to serve the 2005 warrant for his arrest until 2014,
when defendant completed a Washington State prison sentence for a 2001
rape in that state.
On remand, the trial court granted the prosecution’s motion for
transfer and subsequently resentenced defendant to 25 years to life.
Defendant has again appealed, this time claiming he should have received
the benefit of “concurrent” sentencing under Penal Code section 669.3
Section 669, subdivision (a) provides in pertinent part that when a
defendant “is convicted of two or more crimes, whether in the same
proceeding or court or in different proceedings or courts . . . , the second or
other subsequent judgment upon which sentence is ordered to be executed
shall direct whether the terms of imprisonment or any of them to which he or
she is sentenced shall run concurrently or consecutively.” Subdivision (b)
provides in relevant part that “[u]pon the failure of the court to determine
how the terms of imprisonment on the second or subsequent judgment shall
run” relative to a “prior incomplete term or terms of imprisonment,” the
“second or subsequent judgment shall run concurrently.” (Id., subd. (b),
italics added.) Section 669, subdivision (b) does not “establish a presumption
in favor of concurrent sentences.” (People v. Black (2007) 41 Cal.4th 799, 822,
overruled on another ground in Cunningham v. California (2007) 549 U.S.
270, 272-273.) Rather, it “merely provides for a default” if a trial court fails
to exercise its discretion to impose consecutive sentences. (Ibid.)
In his opening brief, defendant maintained that since the trial court
failed to specify whether his California sentence ran consecutively to, or
3 All further statutory references are to the Penal Code unless
otherwise indicated.
2
concurrently with, his Washington sentence, his California sentence must,
under section 669, subdivision (b), run concurrently with his Washington
sentence.
As the Attorney General pointed out in his respondent’s brief,
defendant’s section 669, subdivision (b) argument suffers from an incurable
flaw—defendant had already completed his Washington sentence before he
was tried, let alone sentenced, in the instant case. Thus, there was no other
prison sentence that he was then serving that could provide the means to
concurrently serve some or all of his sentence in this case. There, likewise,
was no basis for the trial court to specify under section 669 whether his
sentence was to run consecutively or concurrently with a “prior incomplete”
sentence in another case, as there was no such sentence.
As our high court explained in In re Roberts (1953) 40 Cal.2d 745, 749,
sentences run concurrently during the period they “overlap.” “[A] concurrent
new term ‘overlaps’ the prior term to the extent service of the earlier sentence
is not complete on the day the new term is imposed. ‘[S]entences may be
concurrent, i.e., may run together, without starting together or ending
together. What is meant is that they run together during the time that the
periods overlap.” (People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3
(Bruner), quoting In re Roberts, at p. 749.) Thus, a subsequent sentence can
run concurrently with the remainder of a prior sentence. But this does not
operate to “terminate or reduce the second or subsequent term.” (In re
Roberts, at p. 749.)
Defendant was not serving another prison sentence when he was
sentenced in this case, as he had already completed his Washington state
prison sentence. Thus, there were no “overlapping” sentences, and section
669 simply did not apply to this case.
3
In his reply brief, defendant does not dispute that he completed his
Washington prison sentence before he was tried in the instant case. Rather,
for the first time in his reply brief, he argues we should carve out an
exception to the well-established definition of “concurrent sentences” our
Supreme Court has articulated. Claiming he could have, and should have,
been served with the 2005 California arrest warrant while he was serving his
Washington sentence, he maintains the District Attorney unfairly deprived
him of the benefit of concurrent sentencing under section 669 and thus urges
that his current prison term should be deemed to have been served
“concurrently” with his prior Washington sentence from at least 2005.
To begin with, the Courts of Appeal generally will not consider an
alternative argument raised for the first time in a reply brief. (People v.
Peevy (1998) 17 Cal.4th 1184, 1206; see People v. Rangel (2016) 62 Cal.4th
1192, 1218; People v. Romero and Self (2015) 62 Cal.4th 1, 25.) And we
decline to do so here.
Even were we to consider the merits of defendant’s belated argument,
we would reject his proposed alternative definition of the term “concurrent
sentences” as used in section 669. We are bound by the decisions of our high
court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455)
and therefore will not depart from its consistent holdings that sentences run
concurrently during the period they overlap. (E.g., Bruner, supra, 9 Cal.4th
at p. 1182, fn. 3; In re Roberts, supra, 40 Cal.2d at p. 749.)
In support of his alternative construction of concurrent sentences,
defendant cites to In re Atiles (1983) 33 Cal.3d 805, 810 (Atiles), overruled in
Bruner, supra, 9 Cal.4th at pp. 1193-1194. In Atiles, the Supreme Court was
concerned with the application of section 2900.5, governing the extent to
which custody credits must be given for custody that is “’ attributable to
4
[other] proceedings related to the same conduct for which the defendant has
been convicted.’ ” (Atiles, at p. 808, italics omitted.) A bare majority
concluded this included time “in presentence custody during which a
restraint or restraints related to that conduct made it impossible for the
defendant to obtain his freedom, regardless of whether the defendant was
also subject to other restraints on his liberty.” (Id. at p. 811.) The majority
concluded that the sentencing court “is not required to eliminate all other
possible bases for the defendant’s presentence incarceration. The court need
only determine that the defendant was not already serving a term for an
unrelated offense when restraints related to the new charge were imposed on
him, and the conduct related to the new charge is a basis for those
restraints.” (Id. at p. 810.) It justified its reading of the statute in part on
the ground this would better effectuate concurrent sentences—absent the
credits, “[t]he terms then are not truly concurrent since the effect of denying
credit on the later terms is that they commence only on the date sentence is
pronounced. . . . The Legislature has not either expressly or by implication
indicated an intent to deny dual credit in any of these situations.” (Id. at
p. 813.)
In Bruner, the court pointed out that in In re Joyner (1989) 48 Cal.3d
487, it had strongly criticized the majority opinion in Atiles, including stating
in Joyner that “Atiles had ‘[gone] astray’ in concluding that section 2900.5
was intended to maximize the concurrency of sentences imposed in multiple
proceedings.” (Bruner, supra, 9 Cal.4th at p. 1190.) The court went on to
squarely part company from the reasoning of Atiles. (Id. at pp. 1188-1192,
1194.) “[N]either the words nor the history of section 2900.5 implies that
separately imposed criminal and revocation terms based on unrelated
conduct should collapse into one simultaneous term whenever it happens that
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there was some common factual basis for both proceedings.” (Id. at p. 1193.)
“Section 2900.5 is not intended to bestow the windfall of duplicative credits
against all terms or sentences that are separately imposed in multiple
proceedings.” (Id. at p. 1191.) “Accordingly, when one seeks credit upon a
criminal sentence for presentence time already served and credited on a
parole or probation revocation term, he cannot prevail [and obtain credit
again] simply by demonstrating that the misconduct which led to his
conviction and sentence was ‘a’ basis for the revocation matter as well.” (Id.
at p. 1194.)
In short, Atiles has no bearing on the issue before us. Not only did it
concern a different statute governing custody credits, but the high court
subsequently repudiated its reasoning in Bruner.4
DISPOSITION
The judgment is AFFIRMED.
4 Defendant’s reliance on People v. Kading (1988) 204 Cal.App.3d 1500,
is misplaced for similar reasons. It too involved custody credits under section
2900.5 and was decided well before Bruner. In that case, the defendant was
serving a misdemeanor sentence when he was sentenced in a felony case.
The court imposed, but suspended execution of, the felony sentence pending
the determination of a petition to commit the defendant for drug treatment,
during which time he remained in custody. (Id. at pp. 1503, 1508-1509.)
Emphasizing the defendant had already been sentenced and would start
serving his prison term as soon as the statutorily required medical
examination was complete, the court approved “dual custody credit.”
(Kading, at p. 1509.) Thus, the case is not remotely comparable to the case at
hand. Furthermore, the court in Kading reiterated the fundamental rule
that concurrent sentences “meant that the misdemeanor sentence and the
state prison sentence were to overlap.” (Ibid.)
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_________________________
Banke, J.
We concur:
_________________________
Margulies, P.J.
_________________________
Wiss, J.*
*Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A159797
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