Filed 9/16/26 P. v. Velasco CA4/1
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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.
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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.)
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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.
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[¶] 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
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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
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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.”
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(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.)
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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
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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)).
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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).
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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.
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