People v. Velasco CA2/2 ( 2016 )

Filed 2/2916 P. v. Velasco CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE, B259756
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA131846)
v.
ULISES CARBAJAL VELASCO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
John A. Torribio, Judge. Affirmed.
Gail Harper, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and
Arlene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
Ulises Carbajal Velasco was convicted of murdering his cousin, Sergio Lopez. He
challenges (1) the constitutionality of the lying-in-wait special circumstance, and (2) the
sufficiency of the evidence showing that he killed the victim by lying in wait. We reject
both of defendant’s contentions and affirm.
FACTS
In the summer of 2013, defendant Velasco asked Eduardo Delarosa to help him
obtain divorce papers.1 Eduardo has known defendant and Sergio Lopez since they were
children. Defendant believed that his wife, Dama, was having an affair with Lopez.
“Visibly upset,” defendant disclosed his suspicions to Eduardo, adding that Lopez “was a
ghost to him.” Eduardo suggested that defendant speak to Lopez. Weeks later, Eduardo
heard Lopez and defendant argue at length in Lopez’s driveway: defendant accused
Lopez of sleeping with Dama, “kept referring to Sergio as a ghost” and “said that Sergio
would say anything to save himself.” Defendant threatened Lopez, “If I find out you
slept with Dama, I’ll kill you myself.” Lopez strenuously denied the affair, crying and
pulling on defendant’s shirt for “many hours.”
Eduardo’s brother Mario Delarosa is a life-long friend of defendant and the victim.
Mario saw Lopez nearly every day. During the summer of 2013, Mario saw (but could
not hear) a lengthy argument between defendant and Lopez. After the argument,
defendant no longer visited Lopez, though he was a frequent visitor in the past.
Mario spent the evening with Lopez on September 11, 2013. They drove to
defendant’s home in Lopez’s Escalade, at around 11:30 or 11:45 at night. Lopez wanted
to smoke marijuana with defendant “and give him some bud,” according to Mario. After
picking up defendant, the three men continued to a dead-end street to smoke. Fifteen to
20 minutes later, Lopez drove defendant home and gave him some marijuana in a baggie.
Mario observed that defendant was “acting out of the ordinary . . . kind of nervous.”
1 The opinion refers to Delarosa family members by their first names, for the sake
of clarity.
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Mario and Lopez returned to Lopez’s home. While there, Lopez showed Mario a
text message from defendant. In Mario’s recollection, it read, “Hey fool I think I left my
bud in your backseat. Could you go check if it’s there.” Lopez said he was going outside
to his truck, parked in front of his house, to look for defendant’s baggie.
Soon after, Mario heard three or four gunshots. After hesitating a minute or two,
Mario went to check on Lopez. He found Lopez lying partly in the open back door of his
SUV and partly on the ground, gasping for air. Lopez sustained three gunshot wounds,
all of which took an upward trajectory. One bullet entered the back of the neck behind
the right ear and exited through the mouth. Two fatal bullets entered the right back,
striking the liver, heart, and left lung.
Rachael Delarosa is the wife of Eduardo and sister-in-law of Mario, and a friend
of the victim and defendant. Around 1:00 a.m. on September 12, 2013, she and Eduardo
learned of the shooting. Rachael telephoned defendant, who was awake but sounded
“disoriented,” “exhausted,” and “out of breath” or “breathing heavily.” She informed
him Lopez was shot. Defendant replied, “Oh, he did.” When she instructed him to “get
down there right away,” he responded, “Oh well, I don’t know. I have to go to work
tomorrow, you know. It’s late already.” Defendant later called to tell Rachael that he
was at the shooting site. Defendant approached a deputy and said that he was the
victim’s cousin.
One of Lopez’s neighbors was studying by a window on the night of
September 11-12, 2013. He saw an interior car light illuminate. At the same time, a car
door opened and a person walked over to the vehicle with the interior illumination. He
heard gunshots and saw the same person run away. The eyewitness was unable to see the
shooter’s face in the darkness, noting only that he had a dark complexion. The entire
incident lasted between 30 seconds to one minute. There were no other people in sight.
Another of the victim’s neighbors was in bed. She heard four gunshots in rapid
succession, and went to the front window in time to see a white pickup truck with a dark
stripe pulling away abruptly from the curb across the street, without headlights on. Soon
after, law enforcement officers arrived. Around 2:00 a.m., the witness noticed that the
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same white truck had returned to the shooting scene and “it was parked in the exact same
spot.” She pointed the truck out to a deputy. There was “a lot of ruckus” as an officer
detained a person who was walking away from the truck.
The white pickup truck is registered to Leticia Velasco at the same address in
Norwalk where defendant resided, less than five miles from the shooting scene. Officers
detained defendant at the scene, took him to jail, interviewed him, and removed two cell
phones from him. Gunshot residue was found on defendant’s shirt and shorts.
A cell phone found in the victim’s pocket contained text messages between Lopez
and defendant. On the night of September 10, 2013, defendant wrote, “Hey cuz you got
any herb.” Lopez replied that he was not around, but would be back the next day. On
September 11, defendant again wrote, “You got herb cuz.” Subsequent messages
indicate that defendant and Lopez made a plan to meet, once Lopez obtained marijuana.
Later, defendant texted, “Can you check if I dropped my bud . . . in the car.” Lopez
wrote back, “Let me check.” Defendant replied, “K.”
Investigators obtained a surveillance tape of the area near the shooting scene. The
tape shows that at 12:58 p.m., a vehicle pulls up and the lights go out. A person runs up
to the vehicle at 1:03, the vehicle’s brake lights go on, but not its headlights, and it drives
away. At 2:23 a.m., the same vehicle pulls up in the same spot: defendant emerges and
approaches the shooting scene. He was intercepted off camera by deputies. The video
time stamp was about two minutes slower than actual time.
Detectives arranged to monitor and tape defendant’s jail visitors. On
September 28, 2013, defendant was visited by Joanna Solis. Defendant was recorded
discussing a search warrant that was executed at his home following his arrest. Solis
states, “They’re saying they didn’t get anything, and I was like, oh, my gosh.” Defendant
notes that “in a letter, I’ll let you know where you could get it and probably take it
somewhere.” He remarks, “It was, like, right under their eyes and they couldn’t see it,”
adding, “I made it disappear.” He continued, “Trust me, I did what I had to do. . . . So
you know, it was kicked in the backyard and, yeah, it’s under there. . . . You should let
me know before my dad plans on pouring cement.” Defendant tells Solis, “[Y]ou don’t
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want to grab it . . . . You don’t want to touch it, man, or just grab it. It’s in a bag.” Solis
replies, in Spanish, “I’ll grab it with a rag.” Later, defendant reminds Solis to find out
when his father plans to pour cement, and then defendant would let his parents know
“where it’s at.”
After listening to defendant’s recorded conversation, investigators searched the
back yard of defendant’s residence. There, they unearthed a plastic bag containing a
loaded .38 caliber revolver, a holster, and a box of bullets. The microscopic
characteristics of a test round fired from the revolver matched an expended bullet found
on the running board of the right rear passenger door of the Escalade, where Lopez fell,
as well as the bullets removed from Lopez’s body during an autopsy. Solis admitted at
trial that she saw defendant with a revolver months before the shooting.
A jury found defendant guilty of first degree murder and of being a felon with a
prior conviction in possession of a firearm. (Pen. Code, §§ 187, 29800, subd. (a)(1).) It
found true the special circumstance that defendant killed the victim by means of lying in
wait (Pen. Code, § 190.2, subd. (a)(15)); it also found that he personally used a firearm
(Pen. Code, § 2022.53, subds. (b), (c) & (d)). He was sentenced to life imprisonment
without the possibility of parole for murder, plus a consecutive term of 25 years to life.
DISCUSSION
1. Constitutionality of the Lying-in-Wait Special Circumstance
Defendant argues that “the lying-in-wait special circumstance is unconstitutional
because it fails to perform the narrowing function required by the Eighth Amendment and
fails to ensure that there is a meaningful basis for distinguishing those cases in which the
death penalty or LWOP are imposed from those in which they are not.”
The Supreme Court has, in its words, “repeatedly rejected” constitutional
challenges that the lying-in-wait special circumstance fails to narrow the class of persons
eligible for death or distinguish the cases in which the death penalty is imposed from the
cases in which it is not imposed. (People v. Nakahara (2003) 30 Cal. 4th 705, 721. See,
e.g., People v. Morales (1989) 48 Cal. 3d 527, 557-558; People v. Roberts (1992) 2
Cal. 4th 271, 322-323; People v. Carasi (2008) 44 Cal. 4th 1263, 1310; People v.
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Crittenden (1994) 9 Cal. 4th 83, 154-156, and People v. Edelbacher (1989) 47 Cal. 3d
983, 1023 [the lying-in-wait special circumstance does not violate the Eighth
Amendment]; People v. Cage (2015) 62 Cal. 4th 256, 281 [declining to reconsider the
constitutionality of the lying-in-wait special circumstance].)
In People v. Gutierrez (2002) 28 Cal. 4th 1083, the defendant argued that the
special circumstance of lying in wait is unconstitutional because there is no significant
distinction between first degree murder by lying in wait, and the special circumstance of
lying in wait, thereby failing to meaningfully narrow the penalty. The Court wrote that
murder by means of lying in wait requires only a wanton and reckless intent to inflict
injury likely to cause death. However, when the evidence establishes an intentional
murder involving (1) a concealment of purpose; (2) a period of watching and waiting for
an opportune time to act; and (3) a surprise attack on the unsuspecting victim from a
position of advantage, these special circumstances are distinct from “ordinary”
premeditated murder and justify the most severe penalty. (Id. at pp. 1148-1149, citing
People v. Morales, supra, 48 Cal.3d at p. 557.) “[C]oncealment of purpose inhibits
detection, defeats self-defense, and may betray at least some level of trust, making it
more blameworthy than premeditated murder that does not involve surprise.” (People v.
Stevens (2007) 41 Cal. 4th 182, 204.)
2. Sufficiency of the Evidence
As noted above, the elements peculiar to the special circumstance are a concealed
purpose, plus “watchful waiting and a surprise attack upon an unsuspecting victim, either
by ambush or by taking the person unaware.” (People v. Sims (1993) 5 Cal. 4th 405,
434.) “Watchful” means “‘alert and vigilant’ in anticipation of the victim’s arrival to
take him or her by surprise.” (People v. Streeter (2012) 54 Cal. 4th 205, 247.)
“[T]he lying-in-wait special circumstance requires no fixed, quantitative minimum
time, but the lying in wait must continue for long enough to premeditate and deliberate,
conceal one’s purpose, and wait and watch for an opportune moment to attack.” (People
v. Bonilla (2007) 41 Cal. 4th 313, 333.) The special circumstance may be found true if
“‘the lethal acts [ ] begin at and flow continuously from the moment the concealment and
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watchful waiting ends.’” (People v. Morales, supra, 48 Cal.3d at p. 558.) We view the
evidence in the light most favorable to the judgment, presuming the existence of every
reasonable inference that may be derived from the evidence. (People v. Gutierrez, supra,
28 Cal.4th at p. 1149; People v. Ochoa (1993) 6 Cal. 4th 1199, 1206.)
The evidence in this case amply supports the special circumstance of lying in wait.
Defendant texted Lopez, ostensibly to obtain marijuana. When they met, defendant was
“nervous” and “acting out of the ordinary,” inferably because his murder plan was in
play. Later that night, defendant moved forward with his plot, when he claimed to have
forgotten the marijuana in Lopez’s car. Apart from fabricating an excuse to entice the
victim outside at 1:00 a.m., when no witnesses were likely to be present, defendant lay in
wait near Lopez’s home. A surveillance camera recorded defendant’s vehicle entering
the area beforehand. When he arrived, defendant had an opportunity to deliberate. He
could have rethought the entire idea of shooting a close relative in cold blood. He could
have restarted his truck and driven away. He did not do so.
Secreted from view, defendant sent Lopez a text message: “Can you check if I
dropped my bud . . . in the car.” In response, Lopez wrote, “Let me check.” Without
making a threat or disclosing his true, murderous intentions, defendant sent Lopez on an
errand that would remove him from the safety of his house and leave him defenseless to
an attack from behind.
Though hidden from Lopez’s view, defendant could see when the victim left the
house. Actual physical concealment from view is not required for the lying-in-wait
special circumstance. (People v. Coombs (2004) 34 Cal. 4th 821, 853.) Nonetheless,
defendant was literally hidden from view when Lopez walked out of the house and into
the trap. (Compare Richards v. Superior Court (1983) 146 Cal. App. 3d 306, 314-316, in
which the victim willingly accompanied the defendants into a garage, where they killed
him. Richards was disapproved because it required an actual physical concealment as a
element of lying in wait, in People v. Morales, supra, 48 Cal.3d at pp. 556-557.)
Defendant waited for an opportune moment to attack, when his unsuspecting
cousin opened the car door to check for a baggie of marijuana. A neighbor saw the
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interior light illuminate in Lopez’s car when he opened the door. This prompted
defendant to walk over and approach the open car door on the dark street. As Lopez
leaned over the backseat, looking for defendant’s supposedly lost marijuana, he was
ambushed. From behind, a position of advantage, defendant shot Lopez multiple times,
in a surprise attack. The upward trajectory of the bullets described by the coroner
indicates that the victim was bent downward when he was shot in the back. There was
one continuous flow from the time defendant sent a text message to lure the victim
outside to the time that he left his truck, walked over, and shot the victim in the back.
Both the surveillance tape and a neighbor who was awakened by gunshots caught
defendant’s vehicle leaving the shooting scene promptly afterward, only to return to the
exact spot about an hour later. The jury could reasonably deduce that Lopez never saw
his attacker approach from behind, and never had a chance to plead for his life. For his
part, defendant never had to look his cousin in the face before killing him, and was safe
from being identified as the shooter had the victim survived the attack.2 The special
circumstance of murder by means of lying in wait was warranted by the evidence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J. HOFFSTADT, J.
2 As one court has observed, an ambush “is perceived as a particularly cowardly
form of murder.” (Richards v. Superior Court, supra, 146 Cal.App.3d at p. 314, fn. 5.)
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