People v. Velasco CA4/1

Opinion

Filed 9/16/26 P. v. Velasco CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D085791

Plaintiff and Respondent, (Super. Ct. No. FVI1002669-2)

v.

ROBERT FRANK VELASCO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County, Kathleen Curtis, Judge. Remanded with directions.

Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Senior Assistant Attorney General, A. Natasha Cortina, Supervising Deputy Attorney General and Alan L. Amann, Deputy Attorney General, for Plaintiff and Respondent.

1 Robert Frank Velasco appeals sentencing decisions of the trial court following this court’s remand and direction that he be resentenced consistent with what are now Penal Code sections 1172.75 and 1172.1.1 Velasco contends (1) the court violated his constitutional rights by imposing an upper term sentence without a jury determination of aggravating factors; (2) the court misunderstood its discretion to reduce a 10-year section 12022.53, subdivision (b) firearm enhancement and impose a lesser uncharged enhancement; (3) the court abused its discretion by declining to strike enhancements on its finding that doing so would endanger public safety; and (4) the cumulative errors deprived him of his constitutional right to due process. The People concede resentencing is required based on Velasco’s first two points, but maintain substantial evidence supports the court’s decision that striking Velasco’s section 12022.53, subdivision (b) firearm enhancement or section 667, subdivision (a)(1) prior serious felony conviction enhancement would endanger public safety. We accept the People’s concessions for the reasons discussed below. Because this entails a remand for the trial court to exercise its informed discretion in sentencing Velasco, we must permit the court to reconsider the entire sentence, including whether to strike or dismiss Velasco’s enhancements under section 1385, subdivision (c). FACTUAL AND PROCEDURAL BACKGROUND Velasco was originally convicted in June 2013 of various offenses with gun enhancements and eventually received a 27-year four-month prison 1 Undesignated statutory references are to the Penal Code.

2 sentence.2 He sought resentencing after the California Department of Corrections and Rehabilitation (CDCR) determined he was eligible under now sections 1172.75 and 1172.1. The trial court summarily denied the CDCR’s recommendation for recall and resentencing under section 1172.1. (People v. Velasco (Nov. 29, 2023, D080603) [nonpub. opn.].) As to the recommendation under section 1172.75, Velasco was not present at his September 2022 resentencing hearing in which the trial court struck a one- year prior prison term enhancement but otherwise left the sentence intact. (People v. Velasco, supra, 97 Cal.App.5th at p. 669.) Following Velasco’s separate appeals, this court remanded for reconsideration of the CDCR’s recall and resentencing recommendation consistent with section 1172.1, and for a full resentencing hearing consistent with section 1172.75’s provisions. (People v. Velasco, supra, 97 Cal.App.5th at p. 675; People v. Velasco, supra, D080603.) The court conducted Velasco’s resentencing hearing in February 2025. After considering the parties’ arguments and Velasco’s statements, it 2 The jury convicted Velasco of attempted home invasion robbery (§§ 211, 664; count 1) with a 10-year section 12022.53, subdivision (b) firearm enhancement and a stayed section 12022.5, subdivision (a) firearm enhancement as to that count; assault with a firearm (§ 245, subd. (a)(2); count 4) with a 3-year four-month section 12022.5, subdivision (a) firearm enhancement as to that count; unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1); count 5); and active participation in a criminal street gang (§ 186.22, subd. (a); count 6). (People v. Velasco (2023) 97 Cal.App.5th 663, 668.) The offenses were committed in November 2010. Velasco admitted having a prior serious felony conviction and serving a prior prison term within the meaning of sections 667, subdivisions (a) and (b) and 667.5, subdivision (b). (Ibid.) The trial court eventually dismissed count 6 with its one-year 4-month sentence to reach the 27-year four-month sentence. (Ibid.)

3 sentenced Velasco to a 24-year four-month prison term. In doing so, the court denied Velasco’s request to strike his prior strike conviction, which was used as the basis for the five-year prior serious felony enhancement. On count 1, it imposed an upper three-year term doubled to six years, along with a consecutive ten-year section 12022.53, subdivision (b) firearm enhancement. In reaching the upper term, the court found aggravating factors pursuant to California Rules of Court, rules 4.421(b)(1)) and 4.421(b)(5) that Velasco “engaged in violent conduct that indicates a serious danger to society, and that his prior performance on probation or parole was unsatisfactory . . . .” The court stayed the section 12022.5, subdivision (a) firearm enhancement on that count. The court further rejected Velasco’s request to substitute his 10-year section 12022.53 firearm enhancement for the lesser enhancement under section 12022.5. It “agree[d] with the logic of [People v. Lewis (2002) 86 Cal.App.5th 34] saying the court may not substitute out an enhancement for a more lenient enhancement from another statute” and declined to change the enhancement to one under section 12022.5, subdivision (a). The court further found striking the section 12022.53, subdivision (b) firearm enhancement would not be in furtherance of justice and would endanger public safety. It stated: “From what I have reviewed regarding [Velasco’s] prior cases, including the facts of this current case in front of me to sentence today, [Velasco] does not hesitate to use violence, physical force, and fear to get his way. He has a pattern of behavior of making demands and using force in his priors, the robbery of the store clerk, which actually, was multiple robberies, the domestic violence of his wife, and then in the current case, using a gun in the attempted robbery of the victim. And putting it to the victim’s head and pistol-whipping the victim and threatening his life with it.

4 [¶] The additional prior [conviction] under [the] Health and Safety Code of the sale or transportation of narcotics was also dangerous to public safety. It’s not a crime of violence, but that activity of selling and transporting narcotics is likely to involve violence because of the inherently . . . dangerous nature of the activity. [¶] . . . [Velasco] is not a deserving defendant because his current crime was violent. The gun was used and caused the victim to experience injury and great fear. [Velasco] was on parole at the time of the crime for two separate felony offenses. [Velasco] had previously had his strike stricken on multiple occasions. He was given an opportunity on supervised felony probation. Adult probation and adult parole were insufficient rehabilitation to prevent [Velasco] from putting the gun to the victim’s head, threatening to kill him, and pistol-whipping him. [¶] The combination of these factors clearly demonstrate that [Velasco] still presents a great risk to public safety. Adult probation and adult parole were insufficient deterrents to prevent [him] from committing further felony offenses of increasing violence. Adult parole was insufficient to prevent [him] from possessing and using a firearm in this case. [¶] I agree with the People [Velasco’s] pattern of behavior when he is not in custody, not subject to the control and confines of prison, the supervision that prison provides him remains and it demonstrates that he continues to pose a risk to public safety.”3 On count 4, the court sentenced Velasco to a consecutive one-third midterm of one year, doubled to two years for the prior strike, as well as a 3 When making its finding as to the firearm enhancement, the court stated it did not need to consider mitigating factors in section 1385, subdivision (c)(2), but it did so anyway and found the danger to public safety outweighed those factors.

5 one-year four-month midterm for the section 12022.5 firearm enhancement. It imposed but stayed under section 654 a 16-month term (eight months doubled) on count 5. The court imposed the five-year enhancement for Velasco’s prior serious felony conviction, finding striking that conviction would not be in furtherance of justice and would endanger public safety considering Velasco’s continuous crime streaks, opportunities for leniency, and increasingly violent nature of his crimes. Velasco filed this appeal. DISCUSSION I. Velasco’s Request to Strike the Section 12022.53 Enhancement and Impose a Lesser Section 12022.5 Enhancement Velasco contends the trial court misunderstood its sentencing discretion with regard to his section 12022.53 firearm enhancement. He argues it had discretion to modify that enhancement to a lesser uncharged enhancement outside section 12022.53 under cases including People v. McDavid (2024) 15 Cal.5th 1015. The People concede that remand is proper for the court to exercise its authority to substitute a lesser firearm use enhancement. We accept the concession. A sentencing court, “in the interest of justice pursuant to [s]ection 1385” may “strike or dismiss an enhancement otherwise required to be imposed” under section 12022.53. (§ 12022.53, subd. (h); People v. Jasso (2025) 17 Cal.5th 646, 701; People v. McDavid, supra, 15 Cal.5th at pp. 1020-1021; People v. Tirado (2022) 12 Cal.5th 688, 692 [“[T]he statutory framework [of section 12022.53] permits a court to strike the section 12022.53[, subdivision] (d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead”].) This discretion includes imposing a lesser included, uncharged enhancement under statutes 6 other than section 12022.53, such as section 12022.5, subdivision (a): “[W]hen a court has exercised its discretion under [section 12022.53,] subdivision (h), to strike a section 12022.53 enhancement and finds that no other section 12022.53 enhancement is appropriate, the [law] does not bar the court from imposing a lesser included, uncharged enhancement under a law other than section 12022.53.” (McDavid, at p. 1030.) In reaching this conclusion, McDavid expressly disapproved People v. Lewis, supra, 86 Cal.App.5th 34. (McDavid, at p. 1030.) The trial court’s reliance on the now-disapproved reasoning in Lewis for its ruling is a clear indication it did not appreciate the discretion it had as to striking the section 12022.53 enhancement. We recognize that the court’s additional reasoning—its findings as to the interests of justice and Velasco’s danger to public safety—suggests it would not have stricken the 10-year section 12022.53 enhancement and imposed a lesser one in any event. But because the court erroneously believed it lacked power to reduce the enhancement, we cannot say the record clearly indicates it would not have imposed a lesser enhancement. This, combined with the court’s further error in reaching an upper term sentence (discussed next) compels us to remand so the court can exercise informed discretion in sentencing Velasco. (See People v. Lynch (2024) 16 Cal.5th 730, 774 [a count unaware of its discretionary powers cannot exercise informed discretion; “In this circumstance, ‘it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing’ ”], citing People v. Salazar (2023) 15 Cal.5th 416, 431 [“unless there is a clear indication from the sentencing court that it would be idle to do so, remand for resentencing is required. When the applicable law governing the defendant’s sentence has substantively changed after 7 sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing. Mere reliance on the length of the original sentence and attendant decisions, such as imposing consecutive sentences, imposing middle or upper term sentences, or declining to strike enhancements, is not sufficient to provide a clear indication of what a sentencing court might do on remand if it had been fully aware of the scope of its discretionary powers”].) Remand is appropriate to allow the court to consider whether to exercise its discretion to strike the section 12022.53 firearm enhancement and impose a lesser enhancement. (People v. Jasso, supra, 17 Cal.5th at pp. 701-702.) II. Count 1 Upper Term Velasco contends the court violated his constitutional rights by imposing the upper term sentence without a jury determination of the aggravating factors. The People concede resentencing is required under People v. Wiley (2025) 17 Cal.5th 1069. Though they maintain the court’s error is arguably harmless based on Velasco’s record showing probation violations and his parole status at the time of his latest offenses, they say remand is necessary in any event due to the court’s failure to consider whether to substitute the lesser section 12022.5 firearm use enhancement in place of the 10-year section 12022.53 enhancement. Again, we accept the People’s concession. The law now limits a sentencing court’s authority to impose an upper term sentence. “[A]s a matter of constitutional right . . . , absent a stipulation or waiver, any aggravating fact other than a prior conviction relied upon to support an upper term sentence must be found true by a jury beyond a reasonable doubt.”

8 (People v. Mitchell (2026) 19 Cal.5th 729, 739; see also id. at p. 743; People v Wiley, supra, 17 Cal.5th at pp. 1076, 1078, 1086 [under the federal Constitution’s Fifth and Sixth Amendments, “a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm” (fn. omitted)].) Under Wiley, determinations that a defendant’s prior convictions are of increasing seriousness and his or her unsatisfactory performance on probation require a jury determination of those facts before they can be used to justify an upper term sentence. (Wiley, at pp. 1082-1083.) Finding increasing seriousness of prior convictions requires a “qualitative assessment of the offenses’ ‘time, location, character, and purpose.’ ” (Id. at p. 1083, quoting Erlinger v. United States (2024) 602 U.S. 821, 840.4) A defendant’s probation performance could involve consideration of evidence of misconduct not previously adjudicated in a criminal trial; and it would also involve proving the defendant was ordered to serve a term of probation and remained on probation at the time of the new offense. (Wiley, at p. 1083.) Thus, the determination involves “circumstances clearly go[ing] beyond the fact of prior conviction and its elements.” (Ibid.)

4 The United States Supreme Court in Erlinger v. United States, supra, 602 U.S. 821, stated that under the Fifth and Sixth Amendments, “[v]irtually ‘any fact’ that ‘ “increase[s] the prescribed range of penalties to which a criminal defendant is exposed” ’ must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).” (Id. at p. 834.) A “ ‘narrow exception’ permit[s] judges to find only ‘the fact of a prior conviction.’ [Citation.] Under that exception, a judge may ‘do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.’ ” (Id. at p. 838.) 9 As to the People’s point about harmless error, we observe the court based its ruling in part on a finding that Velasco was on parole when he committed the current offense. The People assert the record does not contain documentary evidence of this fact. We note that Velasco’s probation report indicates he was on a grant of parole when he committed the offenses for which he was convicted in 2013. But “a California trial court’s reliance on information in a probation department presentence report [citation] to impose an upper term sentence is now precluded.” (People v. Wiley, supra, 17 Cal.5th at p. 1081, fn. 5.) Absent certified documents establishing that fact, we cannot conclude, beyond a reasonable doubt, that every juror necessarily would have found Velasco was on parole when he committed his most recent crimes, or that his performance on probation and parole was unsatisfactory. Accordingly, we will remand so the People may have an opportunity to retry the aggravating factors. (See People v. Lynch, supra, 16 Cal.5th at p. 776.) III. Court’s Ruling That Striking Velasco’s Enhancements Would Endanger Public Safety Finally, Velasco contends the record does not support the court’s finding that he presented a danger to public safety for purposes of deciding whether to strike his firearm or prior conviction enhancements under section 1385. He argues: “While the trial court’s reasons for its sentence may have been appropriate at an original sentencing, it is insufficient for the purposes of a section 1172.75 resentencing hearing.” He argues the court focused solely on his criminal history and past offenses, which occurred 15 years earlier in 1999, 2007, 2009, and 2010, and not any evidence pertaining to his 10 current dangerousness, as the prosecution did not present a “C-file,”5 an updated probation report, or evidence that he used violence while in custody. Thus, according to Velasco, “there was no evidence in the record that indicated [he] presented a current risk of dangerousness after spending 14 years in custody, particularly with the plethora of evidence of his rehabilitation,” requiring that the court consider and give great weight to the various applicable mitigating factors.6 He asks us to remand for the trial court to engage in the appropriate analysis to determine whether dismissal of any enhancements would be in the furtherance of justice. The People respond that Velasco’s criminal history, the violent nature of his current offense, and the fact striking the 10-year enhancement would subject him to immediate release supports the court’s decision, and thus it did not abuse its discretion. As to Velasco’s claim that the court disregarded his post-conviction efforts at rehabilitation, the People maintain section 1385 does not require the court to consider any particular factor. They say we “should make clear in [our] remand order that there is no infirmity in the trial court’s decision not to strike [Velasco’s] section 12022.53, subdivision (b)

5 “ ‘C-file’ refers to ‘the confidential correctional inmate files maintained by the Department of Corrections.’ ” (People v. Garcia (2024) 101 Cal.App.5th 848, 853, fn. 6.)

6 Velasco identifies these mitigating factors as multiple enhancements alleged in a single case (§ 1385, subd. (c)(2)(B)); imposition of an enhancement resulting in an over-20-year sentence (§ 1385, subd. (c)(2)(C)); his status as a minor when he committed the prior offense alleged under section 667, subdivision (a)(1) (§ 1385, subd. (c)(2)(G)); and the section 667, subdivision (a)(1) enhancement being based on an over-five-year-old prior conviction (§ 1385, subd. (c)(2)(H)).

11 firearm use enhancement or his section 667, subdivision (a)(1) serious felony enhancement on the basis that doing so would endanger public safety.” As we have previously explained (People v. Velasco, supra, 97 Cal.App.5th at p. 674), a trial court has discretion to reconsider the entire sentence on a remand for resentencing. (See also People v. Trammel (2023) 97 Cal.App.5th 415, 435 [a “resentencing court is permitted to reconsider all of its discretionary sentencing choices”]; People v. Cutting (2019) 42 Cal.App.5th 344, 348; People v. Hill (1986) 185 Cal.App.3d 831, 834 [“When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices”].) Because we remand for resentencing here, the proper course is to permit the court to exercise its discretion as to the entire sentence and all of its sentencing choices, including whether to strike or dismiss Velasco’s enhancements under section 1385, subdivision (c).

12 DISPOSITION The matter is remanded with directions that the trial court resentence Velasco in accordance with this opinion. Thereafter, the court shall order the clerk of the court to prepare a fifth amended abstract of judgment memorializing these changes and transmit a certified copy to the Department of Corrections and Rehabilitation.

O’ROURKE, Acting P. J.

WE CONCUR:

KELETY, J.

CASTILLO, J.