People v. Vasquez CA4/3

Filed 7/23/24 P. v. Vasquez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G062450

v. (Super. Ct. No. 16NF0028)

JOSE RINCON VASQUEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Patrick H. Donahue, Judge. Affirmed as modified. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Daniel Rogers and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.

This appeal comes to us following a remand for full resentencing that took place in 2023. The sole disputed issue is whether the trial court erred as a matter of law by not striking appellant’s firearm enhancement in 1 the interest of justice pursuant to Penal Code section 1385. Consistent with every other published decision that has construed that provision, we conclude dismissal was not required. Therefore, we affirm appellant’s prison term. However, as requested by both parties, we modify the abstract of judgment to accurately reflect various other aspects of the court’s sentencing decision. PROCEDURAL BACKGROUND In 2020, a jury found appellant Jose Rincon Vasquez guilty of second degree murder for fatally shooting a rival gang member during a confrontation in Orange. It also found true allegations that appellant committed the murder for the benefit of a criminal street gang and that he personally discharged a firearm causing death as contemplated by section 12022.53, subdivision (d). Following that verdict, appellant then pleaded guilty to receiving stolen property and aggravated assault arising from a separate incident. At sentencing, appellant admitted additional enhancement allegations that he had suffered a prior strike conviction and a prior serious felony conviction. Although the trial court struck those enhancements, it declined appellant’s request to strike the gang and firearm enhancements. It then sentenced appellant to prison for 50 years to life on the murder count, including 25 years to life for the firearm enhancement, plus a determinate concurrent term on the remaining counts.