Filed 2/4/16 P. v. Velasquez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050800

         v.                                                            (Super. Ct. No. 96NF2175)

RAYMOND MICHAEL VELASQUEZ,                                             OPINION

     Defendant and Appellant.


                   Appeal from an order of the Superior Court of Orange County, Gary S.
Paer, Judge. Reversed and remanded.
                   Melanie K. Dorian, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
              Raymond Michael Velasquez appeals from an order dismissing his petition
for resentencing under Penal Code section 1170.126 (all further undesignated statutory
references are to this code). Velasquez was sentenced to two concurrent terms of 25
years to life for committing an armed robbery and being a felon in possession of a
firearm, and to a consecutive term of 25 years to life for a count of heroin possession. He
acknowledges he is ineligible for resentencing on the concurrent indeterminate life terms
imposed for the armed robbery and gun possession counts, but argues the trial court erred
in ruling that his ineligibility on those counts also rendered him ineligible for
resentencing on the separate drug possession count.
              We agree. In July 2015, after the parties concluded their briefing in this
case, our Supreme Court issued its opinion in People v. Johnson (2015) 61 Cal.4th 674
(Johnson), ruling “that [section 1170.126] requires an inmate’s eligibility for
resentencing to be evaluated on a count-by-count basis. So interpreted, an inmate may
obtain resentencing with respect to a three-strikes sentence imposed for a felony that is
neither serious nor violent, despite the fact that the inmate remains subject to a third
strike sentence of 25 years to life.” (Id. at p. 688.) Applying that ruling here means
Velasquez remained eligible for resentencing on the drug possession count, even though
he was admittedly ineligible on the other counts for which he was also sentenced to
separate indeterminate life terms under the “Three Strikes” law. Consequently, we
reverse and remand the case to the trial court for a determination of whether resentencing
Velasquez on the drug possession count would present “an unreasonable risk of danger to
public safety.” (§ 1170.126, subd. (f).)


                                           FACTS


              In March 1997, Velasquez was convicted of robbery (§ 211), of being a
felon in possession of a firearm on the day of the robbery (§ 12021.1, subd. (a)), and of

                                              2
being in possession of heroin when he was arrested for the robbery two weeks later
(Health & Saf. Code, § 11350, subd. (a)). The jury also found he personally used a
firearm during the robbery, but acquitted him on a count alleging he was also in
possession of a firearm on the day he was arrested. Velasquez was sentenced to a term of
25 years to life for the robbery, a concurrent term of 25 years to life for the firearm
possession, and a consecutive term of 25 years to life for the heroin possession. He was
also sentenced to (1) an additional four years for his personal use of a firearm during the
robbery, (2) an additional three years for prior prison terms, and (3) an additional 10
years for prior serious felony convictions, for a total term of 67 years to life.
              In September 2014, following the passage of Proposition 36, Velasquez
petitioned for recall of his sentence pursuant to section 1170.126, and specifically asked
the trial court to impose a new sentence incorporating a term of only 32 months (16
months, doubled) on the count of heroin possession, rather than the consecutive 25 years
to life term originally imposed on that count. He did not ask the court to alter the two
concurrent terms of 25 years to life imposed on the robbery and firearm possession
counts.
              The district attorney filed a motion to dismiss Velasquez’s petition, arguing
he was not eligible for resentencing because his “current offense” – referring specifically
to the armed robbery count – qualified as a serious or violent felony which rendered him
ineligible for resentencing relief, and because he was armed during the commission of
that offense. The trial court agreed with the district attorney, noting that “disqualification
on one count renders the whole case ineligible,” because “eligibility under [section]
1170.126 is determined by the judgment as a whole and not per offense.”




                                               3
                                        DISCUSSION


              This case was fully briefed in June 2015, one month before the Supreme
Court issued its opinion in Johnson. Although the Attorney General’s brief maintained
the position taken by the district attorney below – i.e., that an inmate’s eligibility for
resentencing under section 1170.126 was determined by examining the judgment as a
whole rather than each count separately, her office also notified us promptly after
Johnson was decided, and acknowledged the case established a contrary rule.
              As the Supreme Court explains in Johnson, “section 1170.126 is ambiguous
as to whether a current offense that is serious or violent disqualifies an inmate from
resentencing with respect to another count that is neither serious nor violent. Considering
section 1170.126 in the context of the history of sentencing under the Three Strikes law
and Proposition 36’s amendments to the sentencing provisions, and construing it in
accordance with the legislative history, we conclude that resentencing is allowed with
respect to a count that is neither serious nor violent, despite the presence of another count
that is serious or violent. Because an inmate who is serving an indeterminate life term for
a felony that is serious or violent will not be released on parole until the Board of Parole
Hearings concludes he or she is not a threat to the public safety, resentencing with respect
to another offense that is neither serious nor violent does not benefit an inmate who
remains dangerous. Reducing the inmate’s base term by reducing the sentence imposed
for an offense that is neither serious nor violent will result only in earlier consideration
for parole. If the Board of Parole Hearings determines that the inmate is not a threat to
the public safety, the reduction in the base term and the resultant earlier parole date will
make room for dangerous felons and save funds that would otherwise be spent
incarcerating an inmate who has served a sentence that fits the crime and who is no
longer dangerous.” (Johnson, supra, 61 Cal.4th at pp. 694-695.)



                                               4
              Applying that decision in this case requires reversal of the trial court’s
order dismissing Velasquez’s petition. Because Velasquez’s conviction for possession of
heroin did not qualify as either a serious or a violent felony, and he was acquitted of the
charge of possessing a firearm on the date he possessed the heroin, we conclude he was
eligible for resentencing on that count.


                                      DISPOSITION


              The order dismissing Velasquez’s petition is reversed and the case is
remanded to the trial court for a determination of whether resentencing Velasquez on the
heroin possession count would present “an unreasonable risk of danger to public safety.”
(§ 1170.126, subd. (f).)




                                                  RYLAARSDAM, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




                                              5
