People v. Velasquez CA4/1 ( 2024 )

Filed 5/17/24 P. v. Velasquez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082765
Plaintiff and Respondent,
v. (Super. Ct. No. SCD296061)
DAMIAN I. VELASQUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Eugenia A. Eyherabide, Judge. Affirmed.
Aurora E. Bewicke, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Steve
Oetting and Paige B. Hazard, Deputy Attorneys General for Plaintiff and
Respondent.
I
INTRODUCTION
Damian I. Velasquez appeals a judgment of conviction after a jury
found him guilty of one count of carjacking (Pen. Code, § 215, subd. (a);
count 1),1 one count of assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(4); count 2), and one count of unlawfully taking
and driving a vehicle (Veh. Code, § 10851, subd. (a); count 3). He contends
the trial court erred by ruling in limine that the prosecution could impeach
him with a prior felony conviction if he elected to testify at trial. The People
claim Velasquez’s argument is barred because he voluntarily waived his right
to testify. We agree with the People. Therefore, we affirm the judgment.
II
BACKGROUND
A. Factual Background
R.M. drove his pickup truck to a credit union in National City to make
a loan payment. While he was in the parking lot, he met and struck up a
conversation with Louie Granados. At one point during the conversation,
Granados said he had a friend who knew a lot of women. He offered to
introduce R.M. to the friend and R.M. agreed to meet him.
R.M. and Granados got into R.M.’s truck and drove to a motel. There,
the men met with Granados’ friend, Velasquez, who said he knew women in
downtown San Diego. R.M., Velasquez, and Granados got into R.M.’s truck,
bought alcohol, picked up a female companion, and drove towards downtown.
R.M. sat in the driver seat, Velasquez sat in the front passenger seat, and
Granados and the female companion sat in the backseat.
1 Further undesignated statutory references are to the Penal Code.
2
They drove around downtown for a while and Velasquez eventually
said they would not be able to meet up with anyone else. He also pulled out
and lit a glass pipe, which made R.M. think he needed to get everyone out of
his truck. R.M. pulled the truck over and asked the occupants whether they
wanted him to drop them off downtown or elsewhere. According to R.M.,
Velasquez “blew up” and punched him several times. R.M. opened the driver-
side door and exited the truck. Velasquez slid into the driver seat and sped
off in the truck, leaving R.M. behind.
That evening, law enforcement surveilled the motel where R.M. and
Granados had met with Velasquez earlier in the day. There, they
apprehended Velasquez and recovered R.M.’s truck.
B. Procedural Background
Velasquez and Granados were charged by amended information with
carjacking, assault by means of force likely to produce great bodily injury,
and unlawfully taking and driving a vehicle. Velasquez was also charged
with receipt of a stolen vehicle (§ 496d; count 4). The amended information
alleged that, in the commission of the carjacking and assault charges,
Velasquez personally inflicted great bodily injury on R.M. (§§ 1192.7,
subd. (c)(8), 12022.7, subd. (a).)
Before trial, the prosecution and Velasquez filed competing motions in
limine concerning the admissibility of two prior federal convictions suffered
by Velasquez. The prosecution asked the court for permission to impeach
Velasquez, if he elected to testify, with evidence that he suffered: (1) a
misdemeanor conviction for being an accessory after the fact in violation of
Title 18 United States Code section 3 (United States v. Velasquez, Case No.
18-CR-4602); and (2) a felony conviction for aiding and abetting the bringing
of an alien into the United States without presentation to an immigration
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official in violation of Title 8 United States Code section 1324(a)(2)(B)(iii)
(United States v. Velasquez, Case No. 19-CR-02207).2 In his motion in
limine, Velasquez argued the prior convictions were not proper impeachment
evidence because, according to Velasquez, they were for crimes that did not
involve moral turpitude; thus, the convictions were not relevant to his
veracity as a witness. He also argued the court should exclude the prior
felony conviction under Evidence Code section 352.
At a pretrial hearing, the trial court tentatively ruled it would exclude
the misdemeanor conviction and admit the felony conviction as impeachment
evidence. The court expressed uncertainty whether the felony conviction
involved a crime of moral turpitude, but it nonetheless found the conviction
was “very recent” and “probative.” At the request of the defense, the court
instructed the parties to “sanitize” the facts of the felony conviction at trial by
referring to it as a conviction for “a federal felony crime, date of conviction
October 28, 2019.” Upon our review of the record, there appears to be no
indication that Velasquez’s counsel advised the court that Velasquez would
refrain from testifying at trial due to the court’s in limine ruling.
The case proceeded to an eight-day jury trial. At the end of the
prosecution’s case in chief, Velasquez voluntarily waived his right to testify.
The jury ultimately found Velasquez guilty of the carjacking, assault,
and taking and driving a vehicle charges. It also found true the allegations
that Velasquez personally inflicted great bodily injury on R.M. The jury did
2 Velasquez’s motion to augment the record with the docket and court
filings from the federal case in which he suffered his felony conviction is
denied, as the docket and court filings were not part of the record in the trial
court. (People v. Brooks (1980) 26 Cal.3d 471, 484 [“Augmentation is not
available ... for the purpose of adding material that was not a proper part of
the record in the trial court.”].) However, his alternative request for judicial
notice of these materials is granted. (Evid. Code, § 452, subd. (d).)
4
not return a verdict on the receipt of a stolen vehicle charge because it found
Velasquez guilty of unlawfully taking and driving R.M.’s vehicle.3
In a bifurcated proceeding, Velasquez admitted the aggravating
circumstance that his prior performance while on probation, mandatory
supervision, post-release supervision, and/or parole was unsatisfactory. The
court sentenced him to an aggregate term of eight years in prison, consisting
of the mid-term of five years for the carjacking conviction and three years for
the great-bodily-injury enhancement. The court stayed execution of mid-term
sentences for the remaining convictions pursuant to section 654.
III
DISCUSSION
Velasquez’s sole appellate contention is that the trial court’s in limine
ruling forced him into an untenable dilemma of choosing whether to refrain
from testifying, on the one hand, or to testify under the threat of
impermissible impeachment, on the other hand. He asserts this error
violated state law and his federal constitutional right to testify on his own
behalf. Velasquez acknowledges the United States Supreme Court and the
California Supreme Court have both adopted a rule—commonly known as the
Luce rule—requiring a defendant to testify in order to preserve an appellate
challenge to an in limine ruling admitting a prior conviction for
impeachment. But he argues the Luce rule does not bar his challenge,
despite his failure to testify, because it is not a well-founded rule, it has been
eroded by recent caselaw, and it does not apply to the facts of the present
case. We reject these arguments and conclude the Luce rule bars Velasquez’s
challenge to the trial court’s in limine ruling.
3 The same jury found codefendant Granados not guilty of all three
charges pending against him.
5
In Luce v. United States (1984) 469 U.S. 38 (Luce), the defendant
moved in limine to preclude the admission of a prior state conviction and the
federal district court ruled the prior conviction was admissible impeachment
evidence under former Federal Rules of Evidence rule 609(a)(1).4 On appeal,
the United States Supreme Court unanimously held that the defendant could
not challenge the district court’s in limine ruling because, in order “to raise
and preserve for review [a] claim of improper impeachment with a prior
conviction, a defendant must testify” at trial. (Luce, at p. 43.)
The Luce court cited three justifications for this rule. First, it held that
a “court must know the precise nature of the defendant’s testimony” to “rule
on subtle evidentiary questions,” including when it weighs the probative
value of a prior conviction against its prejudicial effect; however, such
information “is unknowable when ... the defendant does not testify ....” (Luce,
supra, 469 U.S. at p. 41.) Second, the Luce court reasoned, “[a]ny possible
harm flowing from a[n] ... in limine ruling permitting impeachment by a prior
conviction is wholly speculative” without a defendant’s testimony because an
appellate court cannot know whether the trial court would have exercised its
judicial discretion to revisit and alter its prior in limine ruling, or whether
the prosecution would have “elect[ed] not to use [the] arguably inadmissible
prior conviction” at trial. (Id. at pp. 41–42.) Third, the Luce court concluded
that, absent a rule requiring a defendant to testify, “almost any error would
result in the windfall of automatic reversal; the appellate court could not
4 Federal Rules of Evidence rule 609(a) provides, in relevant part, “The
following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction: [¶] (1) for a crime that ... was punishable by
death or by imprisonment for more than one year, the evidence: ... [¶]
(B) must be admitted in a criminal case in which the witness is a defendant,
if the probative value of the evidence outweighs its prejudicial effect to that
defendant ....” (Fed. Rules Evid., rule 609(a)(1)(B).)
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logically term ‘harmless’ an error that presumptively kept the defendant from
testifying. Requiring that a defendant testify ... enable[s] the reviewing court
to determine the impact any erroneous impeachment may have had in light
of the record as a whole; it ... also tend[s] to discourage making such motions
solely to ‘plant’ reversible error in the event of conviction.” (Id. at p. 42.)
The California Supreme Court adopted the Luce rule prospectively in
People v. Collins (1986) 42 Cal.3d 378 (Collins). The Collins court recognized
that, although “Luce is a rule of federal criminal procedure that the [United
States] Supreme Court adopted pursuant to its advisory power,” the
California Supreme Court “has a similar power to adopt rules of criminal
procedure” and “may look to [federal criminal practice] for guidance in
fashioning a rule for California courts” when the federal practice implements
or construes a state or court rule similar to one in effect in California. (Id. at
p. 385.) The court determined the federal rule of evidence implemented in
Luce was “similar in effect to the provisions of our Evidence Code” (namely,
Evidence Code section 352), and “the reasons given by the Supreme Court for
adopting the Luce procedure ... [are] sound and equally applicable to
California practice.” (Collins, at p. 385.) Further, it noted “the Luce decision
was unanimous ... and ... other states that have addressed the matter have
been virtually unanimous in adopting the Luce rule as their own.” (Ibid.)
For all these reasons, the Collins court “likewise adopt[ed] the Luce rule as a
judicially declared rule of criminal procedure in California.” (Ibid.)
Velasquez offers three reasons why the Luce rule does not, or should
not, apply here. First, he claims our state’s adherence to the Luce rule should
be revisited because the Luce rule compels a defendant to make an “unfair
choice”—either testify under the threat of impeachment by means of a
potentially irrelevant conviction or, alternatively, refrain from testifying and
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waive an appellate challenge to the trial court’s in limine admission of the
impeachment evidence. Relatedly, he contends the Luce rule’s justifications
simply are not “persuasive.” These arguments have no bearing here. In
Collins, the California Supreme Court adopted the Luce rule as a rule of state
criminal procedure (Collins, supra, 42 Cal.3d at p. 385), and we are bound to
follow its decision under principles of stare decisis. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455–456 (Auto Equity).)
Second, Velasquez contends the Luce rule stands in tension with cases
post-dating Collins, which, according to Velasquez, have allowed defendants
to challenge other types of trial errors on appeal, even when it might be
difficult to assess the prejudice resulting from the claimed errors. We are not
persuaded that these procedurally distinguishable cases demonstrate an
erosion of the Luce rule in California.5 In the decades since Collins, the
California Supreme Court has never reconsidered or backtracked on its
adoption of the Luce rule. On the contrary, it has repeatedly and
unequivocally reaffirmed that the Luce rule remains a rule of criminal
procedure in our state, including in at least one case post-dating the decisions
on which Velasquez relies. (See People v. Duong (2020) 10 Cal.5th 36, 57 [it
is “settled jurisprudence that defendant must testify to preserve a challenge
to the court’s tentative ruling on impeachment”]; see also People v. Ledesma
(2006) 39 Cal.4th 641, 731 [“It is well established that the denial of a motion
to exclude impeachment evidence is not reviewable on appeal if the defendant
subsequently declines to testify.”]; People v. Sims (1993) 5 Cal.4th 405, 456
5 Velasquez relies on People v. Rodas (2018) 6 Cal.5th 219, which
reversed a lower court ruling that allowed trial to proceed despite defense
counsel declaring a doubt as to the defendant’s competence, and United
States v. Gillenwater (9th Cir. 2013) 717 F.3d 1070, which held the defendant
was deprived of the constitutional right to testify at a competency hearing.
8
[“because defendant elected not to testify at his trial, his objections to the
trial court’s in limine ruling may not be raised on appeal.”].) As noted above,
we are bound to follow this unbroken chain of decisions from the California
Supreme Court. (Auto Equity, supra, 57 Cal.2d at pp. 455–456.)
Third, Velasquez argues the Luce rule does not “necessarily” apply here
because the trial court’s in limine ruling purportedly violated his federal
constitutional right to testify on his own behalf, whereas no such federal
constitutional claims were asserted in Luce or Collins.6 We are not
persuaded by Velasquez’s efforts to circumvent the Luce rule because he has
not established that the in limine ruling violated his constitutional rights.
Although the in limine ruling might have played a role in Velasquez’s
decision not to testify, it certainly did not bar him “from testifying. He was
free to testify,” if he elected to do so, “subject to impeachment with the prior
misconduct evidence.” (People v. Sanghera (2016) 6 Cal.App.5th 365, 375
(Sanghera).) This mere threat of impeachment did not violate Velasquez’s
constitutional rights. As Collins explained, “[n]o witness ... has the right to
give testimony immune from ... challenge [by impeachment evidence]. The
procedure of impeaching by proof of prior felony conviction originated at
common law, and has long been authorized by our Legislature [citation]. It is
settled that such impeachment does not violate the due process clause of
either the federal or the state Constitution.” (Collins, supra, 42 Cal.3d at
p. 387; see also Currier v. Virginia (2018) 585 U.S. 493, 503 [“whether it’s the
defendant who must decide between exercising his right to testify in his own
defense or keeping impeachment evidence of past bad acts from the jury. ...
6 “[T]he Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution guarantee that an accused has the right to testify on his or her
own behalf.” (People v. Gutierrez (2009) 45 Cal.4th 789, 821.)
9
This Court has held repeatedly that difficult strategic choices like these are
‘not the same as no choice,’ [citation], and the Constitution ‘does not ... forbid
requiring’ a litigant to make them”]; United States v. Howell (6th Cir. 2021)
17 F.4th 673, 682 [“Although the possibility of being ‘subject to impeachment
by the use of a prior conviction’ on cross-examination, in some sense, ‘may
deter a defendant from taking the stand,’ that possibility does not amount to
a constitutional violation because such circumstances do ‘not prevent [a
defendant] from taking the stand.’ ”].)
Thus, to the extent the in limine ruling was error, it was “one that
involves state evidentiary rules, not a constitutional right.” (Sanghera,
supra, 6 Cal.App.5th at p. 374 [applying Luce rule despite claim that pretrial
ruling violated defendant’s constitutional right to testify]; see also United
States v. Lussier (8th Cir. 2017) 844 F.3d 1019, 1023 [defendant “contends
that the district court erred in ruling that it would admit impeachment
evidence of his prior conviction ... if [he] testified, arguing that the ruling
violated his Fifth Amendment right to due process and his Sixth Amendment
right to a jury trial. By not testifying, [he] failed to preserve this claim”];
United States v. Gunter (6th Cir. 2009) 551 F.3d 472, 483 [defendant
“attempts to distinguish Luce by arguing that it ... did not reach the
constitutional right to testify .... This argument is unpersuasive.”]; Galindo
v. Ylst (9th Cir. 1992) 971 F.2d 1427, 1429 [applying Luce rule despite claim
that admission of impeachment evidence violated right to testify]; accord
People v. Rodrigues (1994) 8 Cal.4th 1060, 1175 [noting that “the Luce rule is
not inconsistent with any constitutional mandate”], italics added, abrogated
on other grounds as recognized by People v. Leon (2020) 8 Cal.5th 831, 848.)
In any event, assuming Velasquez could raise a valid constitutional
claim based on the in limine ruling, he does not direct us to any portion of the
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record in which his counsel stated that he would refrain from testifying, or
that he actually refrained from testifying, due to the in limine ruling. Even if
his counsel had stated as much, we could not say with certainty that the in
limine ruling was in fact a reason for Velasquez’s waiver of his right to
testify. “Because an accused’s decision whether to testify ‘seldom turns on
the resolution of one factor,’ [citation], a reviewing court cannot assume that
the adverse ruling motivated a defendant’s decision not to testify. In support
of his [in limine] motion a defendant might make a commitment to testify if
his motion is granted; but such a commitment is virtually risk free because of
the difficulty of enforcing it.” (Luce, supra, 469 U.S. at p. 42.)
For all these reasons, we conclude the Luce rule is directly applicable
and controlling in the present case. Under a straightforward application of
the Luce rule, Velasquez is precluded from challenging the trial court’s in
limine ruling based on his failure to testify at trial. (Collins, supra, 42 Cal.3d
at p. 388; Luce, supra, 469 U.S. at p. 43.)
IV
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
O’ROURKE, J.
CASTILLO, J.
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