Filed 4/30/14 P. v. Velasquez CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059939

v.                                                                       (Super.Ct.No. FSB08126)

FELIX VELASQUEZ,                                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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       Defendant and appellant Felix Velasquez appeals from an order denying his

petition for recall of his indeterminate life term, under Penal Code section 1170.126,

subdivision (f).1 We will affirm the order.

                                    BACKGROUND2

       Defendant was convicted in 1995 for possession for sale of methamphetamine

(Health & Saf. Code, § 11378; count 1), sale or transportation of marijuana (Health &

Saf. Code, § 11360, subd. (a); count 2), and possession of a firearm following conviction

of a specified violent offense (Pen. Code, former § 12021.1, subd. (a); count 3). The jury

found true the allegation that defendant was armed with a firearm in the commission of

possession for sale of methamphetamine and in the commission of sale or transportation

of marijuana.3 (Pen. Code, § 12022, subd. (c).) The court found two prior serious or




       1 All further statutory citations refer to the Penal Code unless another code is
specified.

       2 The facts underlying defendant’s conviction are not material to the issue we
consider in this appeal.

       3 The trial court minutes from the prior conviction which are contained in the
record in this case do not reflect that the jury returned a true finding on the arming
allegations. We take judicial notice (Evid. Code, § 452, subd. (d)) that the jury findings
contained in the record in defendant’s appeal from the underlying conviction (People v.
Velasquez (Jul. 31, 1997, E019220) [nonpub. opn.]) show that the jury found those
allegations true.
       We also take judicial notice that the trial court dismissed counts 1 and 4 of the
information and amended the information by interlineation to renumber the remaining
counts—i.e., count 2 became count 1, count 3 became count 2, and count 5 became
count 3.




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violent felony allegations to be true, thus subjecting defendant to sentencing as a third

striker.

       The court sentenced defendant to terms of 25 years to life on counts 1, 2, 3, with

the sentences on counts 2 and 3 to be served concurrently with the sentence on count 1.

The court also imposed a term of four years for the two arming enhancements.

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Three Strikes Reform Act. Among other things, this ballot measure enacted section

1170.126, which permits persons currently serving an indeterminate life term under the

three strikes law to file a petition in the sentencing court, seeking to be resentenced to a

determinate term as a second-striker. (§ 1170.126, subd. (f).) If the trial court

determines, in its discretion, that the defendant meets the criteria of section 1170.126,

subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)

Section 1170.126, subdivision (e), provides, as pertinent here, that an inmate is not

eligible for resentencing if his or her current sentence was “imposed for any of the

offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2)

of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of

paragraph (2) of subdivision (c) of Section 1170.12.” Section 667, subdivision

(e)(2)(C)(iii) provides that a third-strike defendant is not eligible for sentencing as a

second-striker if “during the commission of the current offense, [he or she] . . . was

armed with a firearm or deadly weapon . . . .”

       On August 12, 2013, defendant filed a petition for resentencing pursuant to section

1170.126. On October 12, 2013, the trial court denied the motion, stating that defendant


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was ineligible because of the finding that defendant was armed with a firearm in

connection with the offense.

       Defendant filed a timely notice of appeal.

                                       DISCUSSION

       We appointed counsel to represent defendant on appeal. After examination of the

record, counsel filed an opening brief raising no issues and asking this court to

independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We have

independently examined the record and have found no arguable issues. We are satisfied

that defendant’s attorney has fully complied with his responsibilities and that no arguable

issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, at p. 441.) In

reaching this conclusion, we considered whether denial of a petition filed pursuant to

section 1170.126 is an appealable order.

       The California Supreme Court has granted review in cases that have found that the

trial court’s order on a postjudgment petition pursuant to section 1170.126 is a

nonappealable order. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308,

review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941,

review granted July 31, 2013, S212017.) Even if we were to conclude that the order is

not appealable, we could consider, in the interest of judicial economy and because of

uncertainty in the law, that defendant’s appeal is a petition for writ of habeas corpus or

petition for writ of mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4

[treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v.

Superior Court (2006) 139 Cal.App.4th 845, 853 [Fourth Dist., Div. Two] [treating


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appeal as petition for writ of mandate due to uncertainty in the law].) Because defendant

has not asserted in this appeal that the trial court erred in denying his petition and because

it is clear that defendant’s current convictions with findings that he was armed with a

firearm in the commission of two of the offenses render him ineligible for relief in any

event, we need not reach that issue.

       Defendant personally filed a supplemental brief, which we have also considered.

In it, he asserts a number of claims, including ineffective assistance of his trial attorney in

the underlying conviction in failing to argue that his 1980 prior conviction was not

provable, and insufficiency of the evidence to prove his 1980 prior conviction. These

issues are not cognizable on this appeal, which arises solely from the denial of

defendant’s section 1170.126 petition.

       In any event, the brief does not meet defendant’s burden of demonstrating error.

Judgments are presumed to be correct and an appellant has the burden of providing a

record which clearly demonstrates error, along with reasoned argument and citations to

authority to support the assertions of error. (See State Farm Fire & Casualty Co. v.

Pietak (2001) 90 Cal.App.4th 600, 610 [presumption of correctness]; Aguilar v. Avis Rent

A Car System, Inc. (1999) 21 Cal.4th 121, 132 [inadequate record]; McComber v. Wells

(1999) 72 Cal.App.4th 512, 522-523 [argument must be supported by argument and

citation to authority].) Defendant does not say why the prior conviction cannot be proven

or in what way the evidence supporting the prior conviction is deficient. Moreover, we

take judicial notice that the record in People v. Felix Velasquez, E019220, shows that the

trial court found the evidence sufficient to support a true finding, based on the submission


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of documents specified in section 969b for the “purpose of establishing prima facie

evidence of the fact that a person being tried for a crime or public offense under the laws

of this State has been convicted” of a prior offense and on the testimony of a fingerprint

expert. We presume that this evidence supports the court’s findings.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               McKINSTER
                                                                                             J.
We concur:


HOLLENHORST
          Acting P. J.


KING
                          J.




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