P. v. Velasquez 2/16/05 CA2/7

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B171476

Case Date: 06/09/2005

Preview:Filed 2/16/05 P. v. Velasquez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SECOND APPELLATE DISTRICT DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. CESAR VELASQUEZ, Defendant and Appellant.

B171476 (Los Angeles County Super. Ct. No. BA241537)

APPEAL from a judgment of the Superior Court of Los Angeles County, George G. Lomeli, Judge. Affirmed in part; reversed in part and remanded. Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Tuchin, Lawrence M. Daniels and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent. _______________

Cesar Velasquez appeals from the judgment entered after a jury convicted him of 10 offenses ranging from petty theft to attempted murder that was willful, deliberate and premeditated. We reject his contentions that the trial court erred by denying his motion to bifurcate the trial of those offenses from the trial on the criminal street gang enhancement under Penal Code section 186.22 and that the evidence is insufficient to support the jury's finding the offenses were committed for the benefit of, at the direction of or in association with a criminal street gang. We also reject his contention the trial court erred by failing to stay pursuant to section 654 his sentences on count 5 for possession of a short-barreled shotgun and count 12 for possession of a firearm by a felon. We agree with Velasquez that the upper terms imposed on count 3 for assault with a firearm and the enhancement related to that count cannot be justified on this record under People v. Blakely (2004) 524 U.S. ___ [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and, therefore, remand for resentencing on that count. We also direct the trial court on remand to strike the firearm enhancements under section 12021.5, subdivision (a), imposed on counts 5, 10 and 12. PROCEDURAL BACKGROUND 1. The Charges Velasquez was charged with multiple crimes arising from his participation in four separate incidents: (1) two counts of attempted second degree robbery (

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