People v. Velasquez CA1/1

Filed 6/21/22 P. v. Velasquez CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A159797

v. (Contra Costa County JOSE VELASQUEZ, Super. Ct. No. 51510692) Defendant and Defendant.

MEMORANDUM OPINION1 In 2016, a jury convicted defendant Jose Velasquez of a number of sexual assault crimes, including forcible rape and forcible sodomy, committed during a 2000 residential burglary and assault. The jury also found true several enhancement allegations. In an unpublished opinion (People v. Velasquez (Oct. 18, 2018) A149205 [nonpub. opn.]2), we ruled Proposition 57 applied retroactively to defendant and he was entitled to a juvenile transfer hearing. We therefore conditionally reversed his convictions and remanded for the trial court to hold a transfer hearing. In that appeal, we also rejected defendant’s claim that his state and

This appeal is appropriately resolved by Memorandum Opinion 1

pursuant to California Standards of Judicial Administration, section 8.1. The trial court took judicial notice of our prior opinion, as do we. 2

(Evid. Code, §§ 452, 453.)

1

federal speedy trial rights had been violated because the Contra Costa District Attorney waited to serve the 2005 warrant for his arrest until 2014, when defendant completed a Washington State prison sentence for a 2001 rape in that state. On remand, the trial court granted the prosecution’s motion for transfer and subsequently resentenced defendant to 25 years to life. Defendant has again appealed, this time claiming he should have received the benefit of “concurrent” sentencing under Penal Code section 669.3 Section 669, subdivision (a) provides in pertinent part that when a defendant “is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts . . . , the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.” Subdivision (b) provides in relevant part that “[u]pon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run” relative to a “prior incomplete term or terms of imprisonment,” the “second or subsequent judgment shall run concurrently.” (Id., subd. (b), italics added.) Section 669, subdivision (b) does not “establish a presumption in favor of concurrent sentences.” (People v. Black (2007) 41 Cal.4th 799, 822, overruled on another ground in Cunningham v. California (2007) 549 U.S. 270, 272-273.) Rather, it “merely provides for a default” if a trial court fails to exercise its discretion to impose consecutive sentences. (Ibid.) In his opening brief, defendant maintained that since the trial court failed to specify whether his California sentence ran consecutively to, or