Filed 9/1/20 P. v. Velasquez CA2/8
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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.
____________________________________
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
1 All further statutory references are to the Penal Code,
unless otherwise stated.
strike or dismiss an enhancement imposed under section
12022.53. (Stats. 2017, ch. 682, § 2.)
The discretion to strike a firearm enhancement under
section 12022.53 may be exercised as to any defendant whose
conviction is not final as of the effective date of the amendment.
(See In re Estrada (1965) 63 Cal.2d 740, 742–748; People v.
Brown (2012) 54 Cal.4th 314, 323.) Velasquez entered his plea in
2011, and his case was final far before the January 1, 2018,
effective date of SB 620. (See People v. Vieira (2005) 35 Cal.4th
264, 305–306 [“a defendant generally is entitled to benefit from
amendments that become effective while his case is on appeal”];
People v. Smith (2015) 234 Cal.App.4th 1460, 1465 [“[a] judgment
becomes final when the availability of an appeal and the time for
filing a petition for certiorari have expired”]; see also Bell v.
Maryland (1964) 378 U.S. 226, 230 [“[t]he rule applies to any
such [criminal] proceeding which, at the time of the supervening
legislation, has not yet reached final disposition in the highest
court authorized to review it”].)
Velasquez also contends insufficient evidence supports the
gang enhancement, and it should have been dismissed in the
interests of justice. This is not an appeal from the initial plea
and sentencing; it is an appeal from the denial of his request for
resentencing. His arguments, therefore, are untimely. (See
People v. Webb (1986) 186 Cal.App.3d 401, 410 [a defendant
cannot attack his convictions in connection with an appeal
following resentencing]; Cal. Rules of Court, rule 8.308(a)
[“a notice of appeal . . . must be filed within 60 days after the
rendition of the judgment or the making of the order being
appealed].)
DISPOSITION
The order is affirmed.
BIGELOW, P. J.
We concur:
GRIMES, J.
WILEY, J.