P. v. Velez

Filed 8/16/04 P. v. Velez CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
VINCENT VELEZ,
Defendant and Appellant.
F042668
(Super. Ct. No. 658120-1)
O P I N I O N
THE COURT∗
APPEAL from a judgment of the Superior Court of Fresno County. Gary Austin,
Judge.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Matthew L. Cate and Angelo S.
Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A Fresno County jury convicted appellant Vincent Velez of first-degree murder
(Pen. Code,1 § 187(a)) with the personal use of a firearm (§ 12022.53, subds. (b)) for the
∗ Before Harris, Acting P.J., Buckley, J., and Levy, J.

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benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Velez
to 25-years-to-life for the murder plus two consecutive 10-year terms for the street gang
and firearm enhancements.2 Velez believes the increased 10-year term for the street gang
enhancement was unauthorized by law. We agree and modify the judgment accordingly.
DISCUSSION3
Enacted as part of Proposition 21’s Gang Violence and Juvenile Crime Prevention
Act, section 186.22 provides in pertinent part:
“(b)(1) Except as provided in paragraphs (4) and (5), any person
who is convicted of a felony committed for the benefit of, at the direction
of, or in association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang members,
shall, upon conviction of that felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of which he or
she has been convicted, be punished as follows:
[¶] … [¶]
“(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5 [including murder], the person shall be punished
by an additional term of 10 years.
[¶] … [¶]
“(5) Except as provided in paragraph (4) [addressing inapplicable
felony offenses], any person who violates this subdivision in the
commission of a felony punishable by imprisonment in the state prison for
1 Further statutory references are to the Penal Code.
2 The trial court also struck a second firearm enhancement under section 12022,
subdivision (a)(1).
3 Velez does not dispute the jury’s findings or the substantiality of the evidence; a
recitation of the underlying facts is therefore unnecessary to address his legal question
regarding the application of the section 186.22 street gang enhancement. Velez has not
waived his right to appellate review by failing to raise the issue before the trial court
because he contends his sentence was unauthorized by law and could not have been
imposed under any circumstances. (People v. Smith (2001) 24 Cal.4th 849, 852; People
v. Scott (1994) 9 Cal.4th 331, 354.)

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life, shall not be paroled until a minimum of 15 calendar years have been
served.” (Emphasis added.)
Velez contends that in lieu of the 10-year consecutive sentence imposed for the
gang enhancement under section 186.22, subdivision (b)(1)(C), the trial court should
have sentenced him under the enhancement provision’s subdivision (b)(5), which
provides for a 15 year minimum period of incarceration before parole.
The application of the gang enhancement under section 186.22 has been subject to
debate and is currently pending before the Supreme Court. (People v. Lopez, review
granted Nov. 12, 2003, S119294; see also People v. Lopez, review granted June 9, 2004,
S123684; People v. Vo, review granted Nov. 25, 2003, S119234.4) The majority of
published appellate decisions have found the determinate term sentence enhancement
under subdivision (b)(1) applicable only where the defendant did not commit a felony
punishable by imprisonment for life under subdivision (b)(5).5 (People v. Harper (2003)
109 Cal.App.4th 520 [Fourth App. Dist., Div. One]; People v. Johnson (2003) 109
Cal.App.4th 1230 [Second App. Dist., Div. Six]; People v. Ortiz (1997) 57 Cal.App.4th
480 [Fourth App. Dist., Div. Three].) Under these cases, the courts of appeal found the
defendants’ minimum parole terms extended under subdivision (b)(5). “Put another way,
4 The Supreme Court granted review in People v. Lopez (S119234) and People v.
Vo (S119294), deferring briefing pending its decision in People v. Lopez (S119294) to
examine the following issue: “Is a defendant who is convicted of first degree murder with
a finding that the crime was committed for the benefit of a criminal gang within the
meaning of Penal Code section 186.22, subject to an enhancement of 10 years under
section 186.22, subdivision (b)(1)(c) or a minimum parole eligibility term of 15 years
section 186.22, subdivision (b)(5), which applies where the defendant is convicted of ‘a
felon punishable by imprisonment in the state prison for life?’ ” (Supreme Ct. Minutes,
June 9, 2004, S123684 [Lopez]; Supreme Ct. Minutes, Nov. 25, 2003, S119234 [Vo];
Supreme Ct. Minutes, Nov. 12, 2003, S119294 [Lopez].)
5 Section 186.22, subdivision (b)(5) was formerly numbered (b)(4) before the voters
approved Proposition 21 at the March 7, 2000, Primary Election, effective March 8,
2000. Further reference to subdivision (b)(5) includes former subdivision (b)(4).

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the Penal Code section 186.22 enhancement is not an additional term, but an extended
parole eligibility date.” (Ortiz, supra, at p. 486.)
The Attorney General urges this court to apply the reasoning of the majority in
People v. Herrera (2001) 88 Cal.App.4th 1353 [Second App. Dist., Div. Five]. Over a
strongly worded dissent, the Herrera court construed the “[e]xcept as provided by
paragraph (4)” language in section 186.22, subdivision (b)(1) to mean that if subdivision
(b)(5) does not apply for any reason, then the determinate sentencing enhancement under
subdivision (b)(1) must be adopted. (Herrera, supra, at p. 1364.) The Attorney General
contends that as in Herrera, the 15-year minimum parole term under subdivision (b)(5) is
inapplicable to Velez because he was already subject to a minimum parole term under his
25-years-to-life sentence for first-degree murder. According the Attorney General, the
10-year determinate sentence enhancement must therefore be applied under section
186.22, subdivision (b)(1)(C).
Given the weight of contrary appellate authority and lack of directly relevant
Supreme Court direction,6 we decline to adopt the Attorney General’s position.
Moreover, “any statutory ambiguities in a penal law ordinarily should be construed in the
defendant’s favor.” (People v. Franklin (1999) 20 Cal.4th 249, 255.) “When language
which is susceptible of two constructions is used in a penal law, the policy of this state is
to construe the statute as favorably to the defendant as its language and the circumstance
6 In People v. Montes (2003) 31 Cal.4th 350, the Supreme Court examined whether
the 10-year determinate term under section 186.22, subdivision (b)(1)(C) applied to a
seven-year base term for attempted murder (§§ 187, 664) where the defendant was also
sentenced to 25-year-to-life firearm enhancement (§ 12022.53, subd. (d)). Montes
concluded that “section 186.22(b)(5) applies only where the felony by its own terms
provides for a life sentence.” (Montes, supra, 31 Cal.4th at p. 352.) However, the
Supreme Court deliberately cautioned that the proper application of section 186.22(b)(5)
when the underlying felony itself provides for an indeterminate life sentence was not
before it and declined to express an opinion on the matter. (Montes, supra, at p. 361, fn.
14.)

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of its application reasonably permit. The defendant is entitled to the benefit of every
reasonable doubt as to the true interpretation of words or the construction of a statute.”
(People v. Overstreet (1986) 42 Cal.3d 891, 896.) So construing section 186.22, the
determinate street gang enhancement applies only when a determinate sentence is
imposed for the underlying offense. (§ 186.22, subd. (b)(1).) When a defendant is
sentenced to a life term, the 15-year parole minimum must be imposed. (§ 186.22, subd.
(b)(5).)
We therefore modify Velez’s sentence by vacating the 10-year gang-related
enhancement under section 186.22, subdivision (b)(1)(C) and imposing in its place the
requirement that he “shall not be paroled until a minimum of 15 calendars years have
been served” under section 186.22, subdivision (b)(5). As a result, Velez’s sentence is
now 25 years to life for murder plus a consecutive 10 years for the firearm enhancement,
with a “no parole” condition until he has served at least 15 years.
DISPOSITION
The judgment is modified by vacating the 10-year enhancement imposed under
subdivision (b)(1)(C) of section 186.22 and imposing in its place the enhancement
required by subdivision (b)(5) of section 186.22 mandating Velez not be paroled until he
serves a minimum of 15 calendar years. As modified, the judgment is affirmed and the
case is remanded to the trial court with directions to issue a corrected abstract of
judgment and forward it to the Department of Corrections.

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