People v. Velazquez CA3

Filed 5/2/22 P. v. Velazquez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C094061

Plaintiff and Respondent, (Super. Ct. No. CR82006)

v.

GUILLERMO VELAZQUEZ,

Defendant and Appellant.

In 1989, a jury found defendant Guillermo Velazquez guilty of second degree murder and found true the allegation that a principal in the murder was armed with a firearm. Defendant appeals the denial of his petition for resentencing pursuant to Penal Code1 section 1170.95 arguing the trial court improperly conducted a factual analysis at

1 Undesignated statutory references are to the Penal Code.

1

the prima facie stage. The Attorney General concedes the error. We reverse and direct the trial court to issue an order to show cause under section 1170.95, subdivision (c).2 BACKGROUND We disagree with defendant’s and the Attorney General’s suggestion that the facts are of no moment here. A brief must “[p]rovide a summary of the significant facts limited to matters in the record.” (Cal. Rules of Court, rule 8.204(a)(2)(C).) Whether defendant has demonstrated a prima facie case and whether the record of conviction refutes that showing as a matter of law requires a familiarity with the underlying facts that support defendant’s conviction. We take the facts from our prior opinion in People v. Velazquez (May 24, 1990, C005941) [nonpub. opn.] (Velazquez). Defendant and codefendant John Flores killed the victim. On the day of the murder defendant and Flores drove by the home of Shirley R. Apparently there had been a prior disagreement over the men parking in the driveway of that house. The victim and several other people were at the home. The victim asked his brother to whistle for the two men to return. When they returned the victim walked over to the car and spoke to them. Flores shot the victim in the face and then he and defendant drove away. (Velazquez, supra, C005941.) The prosecution filed an information charging defendant and Flores with murder. (§ 187, subd. (a).) It further alleged that Flores personally used a firearm within the meaning of section 12022.5, subdivision (a) and that defendant had two prior felony convictions pursuant to section 667, subdivision (a). At trial, the judge gave the jury instructions on direct aiding and abetting as well as the natural and probable consequences doctrine. The jury found defendant guilty of murder and found true the