People v. Velasquez CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCS175592
- Trial judge
- Garry G. Haehnle
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), William S. Dato, Buchanan
Analysis
The trial court denied Velasquez's second petition for resentencing under Penal Code section 1172.6, finding he failed to establish a prima facie case because he had already been determined to be the actual killer and his arguments regarding factual innocence were not cognizable under the statute. The Court of Appeal affirmed the denial, concluding that the record contained no arguable issues for reversal and that Velasquez's claims of innocence were properly directed to habeas corpus rather than the statutory resentencing procedure.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of second petition for resentencing under Penal Code section 1172.6“The petition fails to state a prima facie case for re- sentencing.” | de novo | correct | agree with court The appellate court affirmed the denial, finding no arguable issues for reversal. The trial court correctly applied the prima facie standard, noting that Velasquez had been previously determined to be the actual killer and that his arguments regarding factual innocence and sufficiency of evidence are not cognizable under section 1172.6, which is a resentencing statute, not a vehicle for challenging the validity of the conviction itself. The court correctly identified that such challenges belong in a habeas corpus proceeding. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the framework for independent review of the record by appointed appellate counsel when no arguable issues are identified in a criminal appeal.
The appellate opinion: sound — The opinion is procedurally sound as it correctly identifies that the statutory resentencing procedure under section 1172.6 does not provide a mechanism for challenging the sufficiency of the evidence or factual innocence, which are matters for habeas corpus. It appropriately notes the recent change in law regarding Wende briefs but proceeds with independent review due to the timing of the appeal and the filing of a supplemental brief.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Velasquez's second Penal Code section 1172.6 petition at the prima facie stage without issuing an order to show cause, reasoning that he had been found to be the actual killer (sole defendant, jury found he personally and intentionally discharged a firearm causing death) so Senate Bill 775's expansion of the statute did not help him, and that his sufficiency-of-evidence and innocence arguments were not cognizable under the statute. On appeal, counsel filed a Wende brief, the Court of Appeal conducted an independent review notwithstanding the intervening Delgadillo decision, considered Velasquez's supplemental brief asserting innocence, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of second section 1172.6 petition at the prima facie stage, without order to show cause or evidentiary hearing, on the ground that Velasquez was the actual killer and Senate Bill 775's amendments did not make him eligible“the provisions of Penal Code section [1172.6 ] which were expanded by the passing of Senate Bill 775 do not affect the current petition since he has already been determined to be the actual killer.” | unclear | correct | agree with court Section 1172.6 relief is available only to persons convicted under felony murder, natural and probable consequences, or another theory of imputed malice. The opinion recites that Velasquez was the only person charged, was tried as the actual perpetrator, and the jury found he personally and intentionally discharged a firearm causing death. On that record of conviction he is ineligible as a matter of law, and SB 775 (which extended relief to attempted murder, manslaughter, and other imputed-malice theories) does not change that. The trial court's additional reliance on the unappealed 2019 denial as preclusive is less secure after People v. Strong's treatment of issue preclusion where the law has changed, but the result does not depend on it because the record independently shows ineligibility. The Court of Appeal did not state a standard of review; prima facie eligibility is reviewed de novo under Lewis, and the result is the same under any standard. |
Rejection of Velasquez's sufficiency-of-the-evidence and actual-innocence arguments as outside the scope of section 1172.6“To the extent Velasquez may have a remedy to challenge his conviction, it will be by habeas corpus and not this statutory resentencing procedure.” | unclear | correct | agree with court Section 1172.6 is a resentencing procedure limited to the theories of liability specified in the statute; it is not a vehicle to relitigate whether the evidence supported the jury's verdict or to assert innocence. The trial court correctly noted such claims belong on direct appeal (already decided) or, if at all, in habeas corpus. The appellate court's agreement is consistent with the statute and with Delgadillo's description of the limited nature of these postjudgment appeals. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appointed appellate counsel who finds no arguable issues may file a brief asking the court to independently review the record for error in a first appeal of right.
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende independent review is not constitutionally required on appeal from denial of a section 1172.6 petition; the court must evaluate arguments raised in a defendant's supplemental brief and may, but need not, independently review the record.
- missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage the court may consult the record of conviction and may deny the petition only where the record establishes ineligibility as a matter of law without weighing evidence or making credibility findings; the opinion affirmed a prima facie denial without articulating this governing standard.
The appellate opinion: sound with gaps — The result is correct: a sole defendant tried and convicted as the actual perpetrator with a personal-discharge-causing-death finding is ineligible for section 1172.6 relief as a matter of law, and innocence claims are not cognizable in this procedure. The opinion, however, does not itself analyze the record of conviction under the Lewis prima facie standard or address the trial court's reliance on the unappealed prior denial as preclusive, instead resting on a Wende-style conclusion that no arguable issue exists.
Opinion
Filed 1/12/23 P. v. Velasquez 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, D080661
Plaintiff and Respondent, v. (Super. Ct. No. SCS175592)
CARLOS TORREZ VELASQUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed. Carlos Torrez Velasquez, in pro. per.; and Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. This appeal is from the denial of appellant’s second petition for resentencing under Penal Code1 section 1172.6. In 2004, Carlos Torrez Velasquez was convicted of second degree murder (§ 187, subd. (a)). The jury also found that he personally and 1 All further statutory references are to the Penal Code. intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). He was the only person charged and was tried as the actual perpetrator of the homicide. Velasquez was sentenced to an indeterminate term of 40 years to life in prison. Velasquez appealed and this court affirmed his conviction in an unpublished opinion. (People v. Velasquez (Nov. 2, 2006, D045500).) In 2019, Velasquez filed a petition for resentencing under section 1172.6, which was denied on the grounds that he was not eligible for relief under the statute. In 2022, Velasquez filed his second petition for resentencing under section 1172.6. Among other contentions, Velasquez argued he was eligible for relief after the modifications made to section 1172.6 by Senate Bill No. 775. The court appointed counsel, reviewed the record of conviction, and again denied the petition without an order to show cause or an evidentiary hearing. The court stated: “In this case, Inmate Velasquez filed his first [section] [1172.6 ] petition on January 22, 2019. The petition was denied on February 22, 2019. The petition was denied because the defendant was found to be the actual killer. No appeal was filed on that denial.
“Inmate Velasquez subsequently filed a new petition on March 21, 2022. The petition was filed pursuant to Senate Bill 775. However, the provisions of Penal Code section [1172.6 ] which were expanded by the passing of Senate Bill 775 do not affect the current petition since he has already been determined to be the actual killer. Velasquez did not appeal that finding.
“Additionally, in the new petition, Velasquez argues factual reasons why the jury should not have found him guilty as the actual killer. None of these reasons are subject to [section 1172.6] analysis. Those reasons go to sufficiency of the evidence to support the conviction, which are the 2 subject for a direct appeal. Petitioner’s conviction was upheld on appeal on January 5, 2006.
“Velasquez also includes in his petition a jury instruction, CALJIC [No.]17.19.5, which only applies to the special allegation, not the underlying crime for which he was convicted.
“The petition fails to state a prima facie case for re- sentencing.”
Velasquez filed a timely notice of appeal. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks this court to review the record for error as contemplated by Wende. We offered Velasquez the opportunity to file his own brief on appeal. He has responded with a supplemental brief, which we will discuss below. In the opening brief, appellate counsel asks the court to review the record for error. We are aware the Supreme Court has now issued its opinion in People v. Delgadillo (Dec. 19, 2022) ____ Cal.5th ____ [2022 Cal. LEXIS 7654], limiting the application of Wende in cases of appeals from denial of postjudgment petitions for resentencing under section 1172.6. Given the timing, we have already completed our independent review of the record for error. Further, Velasquez has submitted a supplemental brief, which we will now address. In his supplemental brief, Velasquez maintains he is innocent of the offense for which he was convicted. At base, he wants an evidentiary hearing under section 1172.6 in order to prove he is innocent of the crime. Velasquez does not raise any arguable issues regarding his eligibility for resentencing. To the extent Velasquez may have a remedy to challenge his conviction, it will be by habeas corpus and not this statutory resentencing procedure. 3 The supplemental brief does not raise any issue that is cognizable on appeal from the denial of a postjudgment petition for resentencing. DISPOSITION Our review of the record does not reveal any arguable issues for reversal on appeal. Velasquez’s supplemental brief does not raise any meritorious issues challenging the denial of his petition for resentencing. The order denying the petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
DATO, J.
BUCHANAN, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12