People v. Velasco VA4/1

Filed 11/29/23 P. v. Velasco VA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080603

Plaintiff and Respondent,

v. (Super. Ct. No. FVI1002669)

ROBERT FRANK VELASCO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino, John Peter Vander Feer, Judge. Reversed and remanded. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, Paige Hazard, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION While Appellant Robert Frank Velasco was serving his sentence for attempted home invasion robbery, assault with a firearm, and possession of a

firearm by a felon, the Office of the Secretary for the California Department of Corrections and Rehabilitation (CDCR) recommended recall of Velasco’s

sentence and resentencing pursuant to Penal Code1 section 1170, subdivision (d), which subsequently was renumbered to section 1172.1. The trial court summarily denied the recommendation without notifying the public defender’s office or holding a hearing. Velasco filed a motion for reconsideration and another motion for resentencing, both of which were denied.

In the interim, the legislature passed Assembly Bill No. 1540,2 which amended section 1172.1 to require that the trial court notify the defendant of any resentencing requests, set a status conference within 30 days of receipt of the request, and appoint counsel for the defendant. (§ 1172.1, subd. (b)(1).) Additionally, it created “a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18.” (Id., subd. (b)(2).) On appeal, Velasco argues we should reverse the lower court’s summary denial and remand the case for a new hearing pursuant to the current version of section 1172.1. The People disagree that the changes