People v. Velasquez CA2/3 ( 2013 )

Filed 12/12/13 P. v. Velasquez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B248857
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA405723)
v.
RENE VELASQUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Bob S.
Bowers Jr., Judge. Affirmed.
James C. Huber, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant, Rene Velasquez, appeals from the judgment entered
following a court trial which resulted in his conviction of the serious (Pen. Code, § 1170,
subd. (h)(3))1 and violent (§ 667.5, subd. (c)) felony of second degree robbery (§ 211) of
a victim 65 years of age or older (§ 667.9, subd. (a)) and his stipulation to the allegations
he previously had been convicted of five felonies for which he served terms in prison or
county jail pursuant to section 667.5, subdivision (b). The trial court sentenced
Velasquez to nine years in prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The robbery.
At approximately 11:00 a.m. on December 11, 2012, 70-year-old Jafar Vaghari
was riding on a bus in the vicinity of Broadway and 59th Place.2 When the bus reached
his stop and Vaghari got off, Velasquez also got off the bus and assisted Vaghari with his
packages. However, after the two men had stepped away from the bus, Velasquez
attacked Vaghari, knocked him down, then reached into Vaghari’s right front pants
pocket. Although Vaghari resisted by holding Velasquez’s arm, Velasquez was able to
take from Vaghari $30 in cash and a number of documents bearing his signature.3
Jessie Lee Ford was coming out of the alley next to El Eden Market when he saw
Velasquez put his hands in Vaghari’s jacket pocket and remove his wallet. As Velasquez
was attacking Vaghari, Ford heard Vaghari telling Velasquez to “stop” and to not “do it.”
Ford also heard some individuals in a car tell Vaghari to not “let him do that.” However,
Velasquez was able to take Vaghari’s wallet. He then headed down the alley and began
to go through the wallet, discarding papers and other items he did not want.
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
Vaghari previously had been convicted of soliciting a prostitute.
3
Although Vaghari knew the total amount of money taken from his pocket was $30,
he could not remember the various denominations of the bills.
2
Los Angeles Police Department Detective Michael Arteaga was on patrol in a
marked car near the intersection of 59th Place and Broadway at approximately 11:15 a.m.
on December 11, 2012. As he drove past the intersection, a group of civilians flagged
him down. The detective made a left hand turn and approached the group to see “what
the commotion was about.” As he rolled down his window, a number of individuals
approached his car and, as a result of what they told him, the detective headed west on
59th Place. As he was driving, Arteaga saw another individual pointing at the alley
which ran “north-south . . . west of Broadway at 59th Place.” The detective entered the
alley and, as he drove north, observed Velasquez running north. Arteaga followed
Velasquez, requested back-up units and observed Velasquez throwing items onto the
ground. Then, for some reason Velasquez stopped running. At that point, Arteaga
stopped his patrol car, pulled out his weapon, got out of the car and “proned [Velasquez]
out.” When back-up units arrived, the officers took Velasquez into custody. The $30
taken from Vaghari was not found on Velasquez’s person.
Los Angeles Police Officer Christian Wecker and his partner, Officer Lopez, were
two of the officers who responded to Arteaga’s request for backup. When the officers
arrived at 59th Place and Broadway, Wecker saw Arteaga detaining Velasquez. While
Lopez assisted Arteaga as he took Velasquez into custody, Wecker searched the alley for
paperwork and other items Velasquez had discarded. Although there were some areas the
officer was unable to search because they were surrounded by fences with locked gates,
one item recovered by the officer consisted of a four- page document with Vaghari’s
name on it. Wecker also found an interim driver’s license issued by the California
Department of Motor Vehicles. Wecker did not find any money.
As he was searching the alley, Wecker was approached by Vaghari, who told the
officer he had been robbed. Vaghari then pointed to Velasquez, who was standing
outside a police car at the time, and spontaneously told Wecker that Velasquez was the
“one that robbed [him].”4
4
According to Vaghari’s earlier testimony, “[t]he police did not talk to [him].”
3
Los Angeles Police Department Detective Guillermo Medina was the investigating
officer in the case involving Vaghari and Velasquez. The day after the robbery,
December 12, 2012, Medina went to El Eden Market and spoke with the proprietor of the
business, Luis Gonzalez. Gonzalez provided Medina with a copy of the video footage
taken from outside his store. Medina, himself, “download[ed]” the video off Gonzalez’s
system on to a “thumb drive.”
Gonzalez testified that on December 11, 2012, he owned El Eden Market at 5931
South Broadway. Just after 11:00 a.m. that day, Gonzalez saw “two people fighting
outside and one [of the men] was screaming.” The man who was screaming was “an
older man with white hair [who was wearing] glasses.” The second man, who Gonzalez
identified as Velasquez, “was going through [the older man’s] pockets and taking his
jacket.” When a duplicate of the video recorded at El Eden Market was played for
Gonzalez, he indicated it showed “the altercation [he had] just described.”
b. The prior convictions and prison terms.
After waiving his right to a trial on the alleged prior convictions and prison or jail
terms, Velasquez stipulated he had “suffered [five] prior prison [or jail] commitments,
within the meaning of . . . section 667.5[, subdivision] (b)(1).” Velasquez admitted he
was “incarcerated for these [five] priors, and that [he] did not remain custody free or
crime free for a period of [five] years following [his] release from each of the
commitments.” Velasquez then admitted having been convicted of and serving terms in
prison or jail for each of the individually alleged crimes. Both counsel for Velasquez and
the prosecutor joined in Velasquez’s waiver of his right to a trial and his admissions of
the prior convictions and prison or jail terms.
2. Procedural history.
Following a preliminary hearing, an information was filed on February 21, 2013 in
which Velasquez was charged with one count of the violent (§ 667.5, subd. (c)) and
serious (§ 1192.7, subd. (c)) felony of second degree robbery (§ 211). It was further
alleged the victim of the offense was 65 or more years of age (§ 667.9, subd.(a)) and any
custody time for the offense was to be served in state prison (§ 1170, subd. (h)(3)).
4
Finally, it was alleged Velasquez had suffered five prior felony convictions “and that a
term [in prison or county jail had been] served [for each offense] as described in . . .
section 667.5 . . . , and that [Velasquez] did not remain free of prison custody for, and did
commit an offense resulting in a felony conviction during[] a period of five years
subsequent to the conclusion of [each] term.”
At proceedings held on February 21, 2013, Velasquez pleaded not guilty to the
count alleging second degree robbery and denied all the remaining allegations.
Before trial had begun, on April 11, 2013 Velasquez made a Marsden5 motion.
Velasquez, who was under the impression Vaghari might not testify, indicated his
counsel had told him he did not have the right to face his accuser at trial. Defense
counsel then explained he had told Velasquez that, as Vaghari had testified at the
preliminary hearing, if the People could show he was unavailable to testify at trial, they
could “proceed on the [preliminary hearing] transcript.” After the trial court informed
Velasquez his counsel was correct and that, under certain circumstances, the district
attorney could read the preliminary hearing testimony into evidence, Velasquez indicated
his counsel had also indicated he could not have counsel removed from his case “because
[the] case had progressed too far.” Velasquez continued, stating his counsel had
informed him that “what [he] consider[ed] to be very important video footage evidence
was no longer obtainable due to ownership change of a business located at the crime
scene. [Velasquez] believe[d] this footage [was] still obtainable and [that his attorney’s]
investigator [had] terminated his investigation prematurely.” Velasquez indicated it was
“for these reasons [he was] request[ing] [the] court to remove [his counsel] and appoint
new counsel . . . .”
With regard to the video tape recorded at El Eden Market, defense counsel
indicated he had shown a copy of the tape to Velasquez on December 26, 2012. When
counsel later visited Velasquez in jail on March 6, 2013, Velasquez indicated something
might have been recorded which had not been provided to counsel or his investigator.
5
People v. Marsden (1970) 2 Cal. 3d 118.
5
Accordingly, counsel “dispatched an investigator that day out to the establishment to see
if the video still existed, and [the store employees indicated] it had been taped over.” The
video tape had not been preserved, which counsel believed was common.
When Velasquez then informed the trial court his counsel had told him that, due to
the late date in the proceedings, it was unlikely the court would remove him, the trial
court responded it would not change lawyers 11 days before trial “unless there [was] a
good reason” to do so. Here, counsel had simply been informing Velasquez of laws and
facts which the court believed Velasquez did not wish to hear. The court continued:
“[Counsel] is telling you the basics. I’ve already dealt with the issue that you’ve already
faced your accuser at the preliminary hearing [and your counsel] . . . is right, that quite
often tapes are taped over. And he’s also right, that at this late stage of the case, we don’t
just change lawyers, unless there is a very good reason.” The trial court concluded
defense counsel was simply telling Velasquez the truth and it was “not going to remove
him for that reason.”
After the trial court denied his Marsden motion, Velasquez indicated he wished to
represent himself for the remainder of the proceedings. However, after the trial court
refused to grant him a continuance to prepare for trial, Velasquez changed his mind and
indicated he wished to withdraw his request to proceed in propria persona.
The trial court informed Velasquez he faced a term of 11 years in prison.
However, if he wished to enter a plea to the robbery, the People were offering him a
sentence of only three years. Velasquez, however, declined the offer and indicated he
wanted to go to trial.
At proceedings held on April 30, 2013, Velasquez indicated he wished to waive
his right to a jury trial and to instead be tried by the court. After the prosecutor took the
appropriate waiver, the trial court found Velasquez had “expressly, knowingly [and]
understandingly waived his right to a jury trial in this matter.”
After hearing the evidence, listening to counsel’s arguments and reviewing the
applicable jury instructions, the trial court found Velasquez guilty of second degree
robbery in violation of section 211 as charged in count 1 of the information. The trial
6
court further found the allegation the victim was 65 years of age or older pursuant to
section 667.9, subdivision (a) to be true. Finally, the trial court, after Velasquez had
stipulated to the allegations, found he had suffered five prior felony convictions for which
he served terms in county jail or state prison pursuant to section 667.5, subdivision (b).
On May 17, 2013, the trial court sentenced Velasquez to the middle term of three
years in state prison for his conviction of second degree robbery as alleged in count 1 of
the information.6 With regard to the finding the robbery was committed against a person
who was 65 years of age or older within the meaning of section 667.9, subdivision (a),
the court imposed a consecutive term of one year. Finally, with regard to the findings
Velasquez previously had been convicted of five felonies for which he served terms in
prison or county jail within the meaning of section 667.5, subdivision (b), the court
imposed five consecutive one-year terms. In total, the court sentenced Velasquez to nine
years in state prison.
With regard to fees and assessments, the court ordered Velasquez to pay a $300
restitution fine (§ 1202.4), a stayed $300 parole revocation restitution fine (§ 1202.45), a
$40 court operations assessment (§ 1465.8, subd. (a)(1)), a $20 DNA assessment (Gov.
Code, § 76104.7, subd. (a)(1)), a $20 state court construction assessment (Gov. Code,
§ 70372), a $40 conviction assessment (Gov. Code, § 70373), a $40 state penalty
assessment (§ 1464) and an $8 state criminal surcharge (§ 1465.7). The trial court then
awarded Velasquez presentence custody credit for 157 days actually served and 23 days
6
Although the reporter’s transcript indicates the trial court imposed a term of “4”
years, as the court had emphasized it intended to impose the middle term which, pursuant
to section 213, subdivision (a)(1) and (2) is three years, both the minute order and
abstract of judgment reflect a sentence of three years and the trial court had previously
stated it was going to impose a total term of nine years, which would require it to impose
a three-year term for Velasquez’s conviction of robbery, we presume the number “4” is a
typographical error.
7
of conduct credit, for a total of 180 days.7 Finally, at Velasquez’s request, the trial court
recommended that he be sent to fire camp.
Velasquez filed a timely notice of appeal on May 17, 2013.
CONTENTIONS
After examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent review of the
record. By notice filed September 11, 2013, the clerk of this court advised Velasquez to
submit within 30 days any contentions, grounds of appeal or arguments he wished this
court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 279-284; People
v. Wende (1979) 25 Cal. 3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J. ALDRICH, J.
7
The reporter’s transcript correctly indicates the trial court awarded Velasquez
presentence custody credit for 157 days actually served and 23 days of conduct credit. It
then indicates he was given a total of “208 days” of credit. However, since the minute
order and abstract of judgment show the correct total of 180 days, we attribute the
incorrect total of 208 days to a simple error in addition or a typographical error.
8