Opinion
F078473
12-05-2019
THE PEOPLE, Plaintiff and Respondent, v. JOAQUIN VELETA, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SC082317A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
Appointed counsel for defendant Joaquin Veleta asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.
PROCEDURAL SUMMARY
The facts of the case are irrelevant to our review, but they may be found in our prior opinion in People v. Veleta (Jan. 6, 2003, F038701) [nonpub. opn.].
In 2001, defendant was convicted by jury trial of second degree robbery (Pen. Code, § 212.5, subd. (c); count 1), assault with a deadly weapon (§ 245, subd. (a)(1) count 2), unlawful threat to commit a crime of great bodily injury (§ 422; count 3), participation in a criminal street gang to further assist felony criminal conduct (§ 186.22, subd. (a); count 4), and witness intimidation (§ 136.1, subd. (a)(2); count 5). The jury found, as to counts 1, 2, and 3, that the offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1) and, as to count 5, that the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(4)(C). The trial court imposed an aggregate prison sentence of 22 years to life, which included an indeterminate term of seven years to life on count 5.
All statutory references are to the Penal Code.
Defendant appealed and we filed People v. Veleta (Jan. 6, 2003, F038701) [nonpub. opn.], affirming the judgment.
On April 6, 2017, defendant filed a petition for writ of habeas corpus in the superior court. On June 13, 2017, the superior court denied the petition.
On August 4, 2017, defendant filed a petition for writ of habeas corpus in this court, claiming the trial court imposed an illegal enhancement under section 186.22, subdivision (b)(4)(C).
On January 3, 2018, and February 23, 2018, the People conceded, explaining that defendant should have been sentenced pursuant to section 136.1, subdivision (a)(2) and section 186.22, subdivision (b)(1). (See People v. Lopez (2012) 208 Cal.App.4th 1049, 1064-1065 [§ 186.22, subd. (b)(4)(C) gang allegations can only enhance the sentence for a conviction obtained under § 136.1, subd. (c)(1)].)
On May 10, 2018, we filed an order to show cause why defendant was not entitled to some form of relief.
On October 16, 2018, the superior court granted the petition for writ of habeas corpus and vacated the sentence on count 5, recommending that, on resentencing, the court impose the enhancement under section 186.22, subdivision (b)(1), rather than section 186.22, subdivision (b)(4)(C), because the jury had found true all of the elements for the former.
At resentencing on November 20, 2018, the trial court imposed an aggregate fixed prison term of 18 years eight months, as follows: on count 1, three years, plus a 10-year term for the gang enhancement; on count 2, one year, plus a one-year term for the gang enhancement; on count 3, two stayed years, plus a stayed three-year term for the gang enhancement; on count 4, two stayed years; on count 5, two years, plus a one-year-eight-month term for the gang enhancement.
On November 20, 2018, defendant filed a notice of appeal.
Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.