People v. Velasco CA2/1

Filed 3/2/21 P. v. Velasco CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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 ONE
THE PEOPLE, B305629
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA148620)
v.
ALEJANDRO JARDER VELASCO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Tammy Chung Ryu, Judge. Affirmed.
________________________________
Victoria H. Stafford, under appointment by the Court of
Appeal, and Alejandro Jarder Velasco, in pro. per, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
A jury convicted defendant Alejandro Jarder Velasco of
three counts of committing a lewd act on a child under 14 years
of age (counts 1, 2, & 4; Pen. Code,1 § 288, subd. (a)), one count
of continuous sexual abuse (count 3; § 288.5, subd. (a)), eight
counts of committing a lewd act on a child 14 or 15 years of age
(counts 5–12; § 288, subd. (c)(1)), two counts of oral copulation with
a minor (counts 14, 15; § 287, subd. (b)(1), and one count of sexual
penetration with a minor (count 16; § 289, subd. (h)). The victim of
defendant’s crimes is his wife’s niece, M.R.
In connection with counts 2 and 4, the jury also found true
allegations that defendant had “substantial sexual conduct with
[M.R.]” within the meaning of section 1203.066, subdivision (a)(8).2
The jury acquitted defendant of one count of unlawful sexual
intercourse with a minor (§ 261.5, subd. (c)).
The court sentenced defendant to prison for 20 years,
comprised of the following terms: 12 years on count 3; consecutive
two-year terms on each of counts 1, 2, and 4; a consecutive
eight-month term on count 5; one-year concurrent terms on each
of counts 6 through 12; a consecutive eight-month term on count 14;
a concurrent 16-month term on count 15; and an eight-month
consecutive term on count 16. The court also imposed a restitution
fine in the amount of $300 (§ 1202.4, subd. (b)), imposed and
stayed a parole revocation restitution fine in the amount of $300
(§ 1202.45, subd. (a)), imposed a $600 court operations fee (§ 1465.8,
subd. (a)(1), and a $450 court facilities assessment (Gov. Code,
§ 70373, subd. (a)(1)).
1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.
2This finding precluded the court from granting probation to
defendant or suspending the execution or imposition of the sentence
on counts 2 and 4. (§ 1203.066, subd. (a).)
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Defendant filed a timely notice of appeal.
We appointed counsel for defendant, who filed a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising
no issues on appeal and requesting that we independently review
the record to determine if the lower court committed any error.
On November 25, 2020, counsel sent a copy of the brief and
the record to defendant and informed him that he may file a
supplemental brief. On November 30, 2020, this court informed
defendant that he may submit a supplemental brief or letter of
any grounds of appeal, contentions, or argument he wishes the
court to consider. On January 26, 2021, defendant submitted a late
supplemental brief, which we permitted him to file. We address his
arguments below.
FACTUAL SUMMARY
M.R. was born in 2002 and was 17 years old at the time
of trial. According to M.R., on a day in June 2010, when she was
eight years old, she was visiting in the home of defendant and
defendant’s wife, Myrabella. While she was resting on a bed,
defendant entered the room, lifted M.R.’s shirt, and put his mouth
on M.R.’s breasts for 20 to 30 seconds, then walked away.
Three years later, M.R. began residing permanently in the
defendant and Myrabella’s home. During the next six years,
defendant committed lewd and sexually abusive acts against M.R.
almost daily. The abuse included, among other acts, defendant
orally copulating M.R., defendant penetrating M.R.’s vagina with
his finger, defendant sucking M.R.’s breasts, touching M.R.’s
genitalia with his penis, and having M.R. orally copulate him.
Myrabella first suspected sexual activity between defendant
and M.R. on February 16, 2019, when she saw a text message on
M.R.’s phone stating: “Do you want me to kiss your thing? You
want me to give sweet kisses? Do you want me to kiss it?” The
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message further stated, “[M.R.] I love you. Come suck me more.”
Myrabella determined that the text was sent from defendant’s cell
phone.
Myrabella became distraught by the message and, on
February 19, 2019, told defendant she did not trust him and asked
him to leave their home. When defendant asked her why, she
told him, “[D]on’t tell me that you do not know.” Defendant then
called M.R. and said, “I think she found out about us,” and told
M.R. that if Myrabella asks, to “deny it.” Defendant also sent M.R.
numerous text messages telling her to “deny it,” and directing her
to delete their messages.
When Myrabella confronted M.R., M.R. told her that
defendant had been molesting her “from the summer before third
grade up until” the present.
Myrabella and M.R. informed law enforcement about the
abuse on April 5, 2019.
DISCUSSION
Defendant’s 25-page supplemental brief, which lacks
headings or distinct parts, appears to raise the following
arguments: (1) The evidence was insufficient to support the
verdicts; (2) defendant was deprived of his right to a fair trial
because of juror bias, judicial bias, and juror misconduct; (3) the
court erred by denying his request for new counsel pursuant
to People v. Marsden (1970) 2 Cal.3d 118 (Marsden); and (4) he
was deprived of his right to the effective assistance of counsel.
A. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence
supporting his convictions. In assessing this argument, our task
is to “review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and
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of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson
(1980) 26 Cal.3d 557, 578.) In making this determination, we “view
the evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence.” (People v. Jones
(1990) 51 Cal.3d 294, 314.) We do not reweigh the evidence, resolve
conflicts in the evidence, or reevaluate the credibility of witnesses.
(People v. Maury (2003) 30 Cal.4th 342, 403; People v. Little (2004)
115 Cal.App.4th 766, 771.)
Defendant contends that because a forensic examination
of his cell phone and a flash drive revealed no incriminating
evidence of text messages or videos, there is no evidence that
he sent the text message Myrabella found on M.R.’s phone. Even
in the absence of such evidence, however, the testimony of M.R.,
as to defendant’s conduct over the course of nine years provides
substantial evidence to support the convictions. Although the
evidence regarding the text message was relevant to show how
Myrabella learned of defendant’s relationship with M.R., it was,
in light of other evidence, unnecessary to establish the elements
of his crimes.
Defendant devotes much of his brief to arguments that M.R.
and Myrabella testified falsely or created the alleged misimpression
that M.R. is “naïve and [he is] a cold blooded monster.” He
dismisses the evidence of his sexual abuse of M.R. as “assumed,
coerced, . . . pure allegations” and “lies.” M.R.’s testimony that the
sexual abuse occurred five to seven times each week for nine years
is, he contends, “[a]n absurd exaggeration.” He asserts that M.R.
is not only “a pathological liar,” but “a very ungrateful one,” and
Myrabella is “a liar [and] a half.” These contentions are not within
our purview. As stated above, issues concerning the credibility of
witnesses and the determination of the truth or falsity of testimony
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are within “the exclusive province of the trial judge or jury.” (People
v. Maury, supra, 30 Cal.4th at p. 403.) We will not disturb them.
Based on our independent review of the record, there is no
arguable issue concerning the sufficiency of the evidence supporting
the convictions.
B. Fair Trial Issues
Defendant asserts various arguments that implicate his right
to a fair trial. He contends that during jury selection, a prospective
juror stated that she “already hates” defendant because she was
a rape victim. Nevertheless, the juror was ultimately selected
for the jury and became the jury forewoman. Defendant does not,
however, refer us to the record for this argument and our record
does not include a transcription of juror voir dire. We cannot,
therefore, review the claim.
Defendant contends that his counsel, the prosecutor, the
judge, the juror who hated him, and his accusers were biased
against him because they are female. The argument is based on
conjecture and made without reference to evidence of bias; in short,
it is meritless.
Defendant further contends that his sisters were in the
courtroom while the jury deliberated and heard the jurors laughing.
The argument is without support in the record.
C. Marsden Hearing
Prior to the start of trial, defendant requested and was
granted a Marsden hearing. Under Marsden, “ ‘ “ ‘[w]hen a
defendant seeks to discharge his appointed counsel and substitute
another attorney, and asserts inadequate representation, the
trial court must permit the defendant to explain the basis of
his contention and to relate specific instances of the attorney’s
inadequate performance. [Citation.] A defendant is entitled to
relief if the record clearly shows that the first appointed attorney
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is not providing adequate representation [citation] or
that defendant and counsel have become embroiled in such
an irreconcilable conflict that ineffective representation is likely
to result.’ ” [Citation.] The decision whether to grant a requested
substitution is within the discretion of the trial court; appellate
courts will not find an abuse of that discretion unless the failure to
remove appointed counsel and appoint replacement counsel would
“substantially impair” the defendant’s right to effective assistance
of counsel.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 487–488.)
Defendant contends the court’s failure to appoint new
counsel was error. We have reviewed the transcript of the Marsden
hearing. The court allowed defendant to express his concerns
about counsel and her representation of him and gave him the
opportunity to relate specific instances of her inadequate
performance. The court permitted counsel to respond to defendant’s
assertions and determined there had not been a breakdown in the
relationship between them such that it would make it impossible for
counsel to properly represent defendant. Based on our review, the
court did not abuse its discretion in denying defendant’s Marsden
motion.
D. Ineffective Assistance of Counsel
Defendant asserts that he was deprived of his right to the
effective assistance of counsel in numerous ways, including failing
to file unspecified motions on his behalf, having “a preconceive[d]
notion that the trial will result in conviction,” failing to “present
character witnesses” he had offered, advising him not to testify at
trial, and failing to challenge the allegedly false evidence presented
by M.R. and Myrabella.
To demonstrate ineffective assistance of counsel, defendant
“must show that counsel’s performance was deficient, and that
the deficiency prejudiced the defense.” (Wiggins v. Smith (2003)
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539 U.S. 510, 521, citing Strickland v. Washington (1984) 466 U.S.
668, 687.) Defendant has failed to establish, and our review of
the record does not reveal, an arguable issue as to either of these
elements.
E. Conclusion
Pursuant to Wende, we have reviewed the record to
determine whether there is any arguable issue. Based on our
review of the record, defendant’s contentions, and the applicable
law, we are satisfied that defendant’s counsel has fully complied
with her responsibilities and that no arguable appellate issues
exist. (Wende, supra, 25 Cal.3d at p. 441; People v. Kelly (2006)
40 Cal.4th 106, 110.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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