People v. Vaca CA5

Filed 5/13/25 P. v. Vaca CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F087979 Plaintiff and Respondent, (Super. Ct. No. BF166704A) v.

JOSE CORTEZ VACA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.

Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary, Lewis A. Martinez and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent. –ooOoo–

*Before Hill, P. J., Peña, J. and Snauffer, J.

INTRODUCTION In September 2017, defendant Jose Cortez Vaca pleaded no contest to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2)) and admitted he personally used a firearm during the commission of the offense (§ 12022.5, subd. (a)) in exchange for a seven-year middle term sentence for the assault charge and a low term of three years for the firearm enhancement (total aggregate term of 10 years). In March 2024, defendant filed a “Request for Recall of Sentence and Resentencing Pursuant to Assembly Bill 600 and Penal Code Section 1172.1,” which the court denied in a written order stating, “Court declines request by defendant.” On appeal, defendant contends the trial court abused its discretion in denying his request for relief. He concludes the matter must be remanded so the court may exercise its informed discretion. The People argue the order is not appealable and, irrespective, defendant has not established the court misunderstood its sentencing discretion. We dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND In 2017, defendant pleaded no contest to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2); count 2) and admitted he personally used a firearm during the commission of the offense (§ 12022.5, subd. (a)). Pursuant to the plea agreement, defendant was sentenced to a fixed term of 10 years in prison: seven years (the middle term) for the assault with a semiautomatic firearm count and three years for the section 12022.5, subdivision (a) firearm enhancement. On March 26, 2024, defendant filed a form “Request for Recall of Sentence and Resentencing Pursuant to Assembly Bill 600 and Penal Code Section 1172.1.” Under a part titled “Statement of Eligibility,” he checked boxes indicating he was eligible for consideration of a new sentence under Assembly Bill No. 600 and Penal Code section 1172.1 based on Senate Bill No. 567’s changes to sections 1170 and 1170.1, and Senate Bill No. 620’s changes to sections 12022.5 and 12022.53. Under a separate part titled