People v. Velasquez CA4/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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