People v. Velasquez CA2/8

Filed 9/1/20 P. v. Velasquez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B305543

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA384036) v.

RICARDO VELASQUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Robert Perry, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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In 2011, Velasquez pleaded no contest to attempted murder (Pen. Code, §§ 664, 187, subd. (a)),1 admitted he used a firearm in its commission causing great bodily injury (§ 12022.53, subd. (d)), and admitted the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C), (b)(4)). He was sentenced to a base term of nine years, which was enhanced by 10 years for the firearm allegation and five years for the gang allegation. In 2020, Velasquez filed a motion to modify his sentence, requesting the trial court strike the gang and firearm enhancements. The court summarily denied the motion. Velasquez timely appealed. Velasquez’s appointed counsel on appeal filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), requesting independent review of the record for arguable issues. We notified Velasquez by letter that he could submit any claims, arguments, or issues that he wished our court to review. Velasquez filed a response, contending both the firearm and gang enhancements should have been stricken. Velasquez first contends that Senate Bill No. 620 (2017– 2018 Reg. Sess.; SB 620) should apply retroactively to his case. We find his contention unavailing because the law is to the contrary, and well settled. On January 1, 2018, SB 620 took effect, which amends section 12022.53, subdivision (h), to remove the prohibition against striking the gun use enhancements under this and other statutes. The amendment grants the trial court discretion to