Filed 4/5/22 In re Vasquez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
|
In re JOSE RINCON VASQUEZ
on Habeas Corpus.
| G060510
(Super. Ct. No. 16NF0028)
O P I N I O N |
Original proceeding on a petition for a writ of habeas corpus after a judgment from the Superior Court of Orange County, Patrick Donahue, Judge. Petition dismissed as moot.
Aaron Schechter, under appointment by the Court of Appeal, for Petitioner.
No appearance for Real Party in Interest.
This is a companion petition to the direct appeal in People v. Vasquez, G060006, which we judicially notice and file concurrently herewith. As explained in that opinion, the substantive issue presented is whether the trial court had the authority to reduce petitioner’s 25-year-to-life firearm enhancement under Penal Code section 12022.53, subdivision (d) to a lesser enhancement under that section. As a procedural matter, we must also decide whether petitioner forfeited his right to have the firearm enhancement reduced because, although he asked the trial court to strike the enhancement altogether, he did not alternatively ask the court to reduce it to a lesser one.
While the appeal was pending, the California Supreme Court decided the substantive issue in petitioner’s favor in People v. Tirado (2022) 12 Cal.5th 688, so only the forfeiture issue remains. As to that issue, petitioner has submitted a declaration from his trial attorney saying he had no tactical reason for not asking the trial court to reduce the firearm enhancement as an alternative remedy to outright dismissal. However, we need not decide whether this failure constituted ineffective assistance of counsel because we have concluded in the direct appeal that, notwithstanding the lack of a request for a reduction below, the substantive issue is reviewable as a pure question of law. And because the Supreme Court has now decided that issue in petitioner’s favor, the matter must be remanded for resentencing. Therefore, the petition for a writ of habeas corpus is moot, and we dismiss it as such. (See People v. Simms (2018) 23 Cal.App.5th 987, 999, fn. 2; In re Miranda (2011) 191 Cal.App.4th 757, 762.)
DISPOSITION
Petition dismissed as moot.
BEDSWORTH, ACTING P. J.
WE CONCUR:
SANCHEZ, J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
