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People v. Velasquez

California Court of Appeals, First District, Fourth Division
Mar 13, 2008
No. A115194 (Cal. Ct. App. Mar. 13, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JUAN RAMON VELASQUEZ, Defendant and Appellant. A115194 California Court of Appeal, First District, Fourth Division March 13, 2008

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. SC059929

Ruvolo, P. J.

I. INTRODUCTION

Appellant Juan Ramon Velasquez (Velasquez) appeals from his conviction of attempted murder, participation in a criminal street gang, and two counts of assault with a firearm. He maintains that there was no substantial evidence of his participation in a criminal gang, and that the court erred in not excluding or limiting the testimony of a gang expert. Velasquez also argues that the court erred in denying his motion to suppress a statement by one of the victims, and that the effect of these cumulative errors denied him his due process rights. He urges that, to the extent any of his claims on appeal were forfeited, he received ineffective assistance of counsel. Finally, he maintains the court erred in sentencing. We affirm.

II. PROCEDURAL BACKGROUND

The San Mateo County District Attorney charged Velasquez by information with attempted murder (Count 1) (Pen. Code, §§ 187, subd. (a), 664), two counts of assault with a firearm (Counts 2 and 3) (§ 245, subd. (a)(2)), and participation in a criminal street gang (Count 4) (§ 186.22, subd. (a)). The information also alleged gang enhancements as to Counts 1-3 (§ 186.22, sub. (b)(1)), infliction of great bodily injury enhancements as to Counts 1 and 2 (§ 1192.7, subd. (c)(8)), and personal use of a firearm as to Counts 2 and 3 (§ 12022.5, subd. (a)).

All further undesignated statutory references are to the Penal Code.

A jury found Velasquez guilty of all charges, and found all the enhancing allegations to be true. The court sentenced him to an indeterminate term 40-years-to-life in prison on Count 1, consecutive to a 17-year determinate term on Count 3. The court also sentenced Velasquez to the upper term of four years on Count 2, to be served consecutive to the Count 1 sentence, but stayed it under section 654. The court sentenced Velasquez to two years imprisonment for Count 4, but ordered it to be served concurrently with the sentence for Count 1. This timely appeal followed.

III. FACTUAL BACKGROUND

On July 2, 2005, minor brothers L., 17 years old, and R., 14 years old, were walking home at approximately 1:00 a.m. Neither were gang members. About three blocks from their home in San Bruno, they saw a group of four or five Hispanic males and two Hispanic females in the street. Velasquez approached R., and asked him “Where are you from, what do you bang?” in an angry-sounding voice. R. responded, “We just moved here. I don’t know what you’re talking about.”

L. testified Velasquez “asked him what was going on, and I called him bro.” L. told Velasquez that R. “was my brother and that we were just in the street because [Velasquez] didn’t know who we were.” Velasquez stated he was not L.’s “bro,” and hit him in the face. Other males from Velasquez’s group surrounded L. and began hitting him. R. walked into the street, and Velasquez hit him on the back of the head. Velasquez pulled a gun from his waistband, pointed it at R., and asked him “Do you want to die?” While being beaten, L. saw Velasquez talking to R., but did not see the gun.

L. got away from the men, and told R. to walk in front of him. He did so because he wanted to protect R. as they walked home. L. looked back and saw Velasquez following them. He heard gunshots, and felt “like someone was jabbing a needle in my back.” R. asked L. if he had been shot. L. said he had, and told R. to run home for help. L. testified he “thought [he] was going to die.”

R. ran home, and L. was able to get up and walk to a neighbor’s house for help. Police officer William Fogarty arrived at the scene, and L. told him he had been shot, and that he was “going to die.” L. described the assailant as Hispanic, “a little bit bald,” and five feet eight inches to six feet in height. R. arrived on the scene, and L. told police to make him leave because he “didn’t want him to see his brother die.” L. was taken by ambulance to a hospital. He was hospitalized for a week after undergoing surgery. One bullet was removed from his body.

Velasquez and Mauricio Martinez were arrested in connection with the incident at the apartment of Martinez’s mother. Four days later, police executed a search warrant of the apartment and found a .22-caliber pistol wrapped in a blue bandana. A criminalist specializing in firearms expert testified that the bullet recovered from L.’s body was fired from that gun.

Martinez was a member of the same gang, and was convicted of assault with force likely to inflict great bodily injury in connection with the same incident.

After Velasquez’s arrest, he admitted his membership in the Mara Salvatrucha (MS) gang to police, telling them he was “OG 15 years.” San Francisco Police Officer Mario Molina, an expert in Latino street gangs, testified that “OG” stood for “original gangster,” and the phrase meant Velasquez had been a gang member for 15 years. Officer Molina also testified regarding the background, activities, symbols and membership in the MS gang.

IV. DISCUSSION

A. Sufficiency of Evidence Supporting Gang Conviction and Enhancements

Velasquez argues that there was no substantial evidence supporting his conviction of gang participation under section 186.22, subdivision (a) and the enhancements for gang activity under section 186.22, subdivision (b)(1). He does not dispute his gang membership or that the gang engaged in a pattern of criminal activity. Instead, he asserts that the evidence was insufficient to demonstrate that one of his gang’s primary activities was committing the crimes enumerated in the statute.

Section 186.22, subdivision (a) provides: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.” Section 186.22, subdivision (b)(1) provides for an enhancement when “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as [prescribed].”

The statute defines “criminal street gang” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated . . ., having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) The “criminal street gang” component requires proof of three essential elements: (1) that there be an “ongoing” association involving three or more participants, having a “common name or common identifying sign or symbol”; (2) that the group has as one of its “primary activities” the commission of one or more specified crimes; and (3) the group’s members either separately or as a group “have engaged in a ‘pattern of criminal gang activity’ . . . .” (People v. Gardeley (1996) 14 Cal.4th 605, 617.)

The enumerated criminal acts include assault with a deadly weapon, robbery, homicide and manslaughter, and sale or possession for sale or manufacture of narcotics. (§ 186.22, subd. (e).)

Velasquez maintains that the prosecution failed to establish the “primary activities” element. He argues that the testimony of the gang expert was inadequate because “he failed to provide specific facts to support his conclusion that MS was primarily involved in the list of enumerated crimes.”

The “primary activities” element is a proper subject of expert testimony. (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1005.) The element may be satisfied by an expert’s testimony that the defendant’s gang “was primarily engaged in . . . statutorily enumerated felonies. [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith).) “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.]” (Id. at p. 323.) “Past offenses, as well as the circumstances of the charged crime, have some tendency in reason to prove the group’s primary activities, and thus both may be considered by the jury on the issue of the group’s primary activities. [Citation.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1465 (Duran), italics added.) “[E]ither prior conduct or acts committed at the time of the charged offenses can be used to establish the ‘primary activities’ element of the gang enhancement offense.” (People v. Galvan (1998) 68 Cal.App.4th 1135, 1140; see also People v. Vy (2004) 122 Cal.App.4th 1209, 1222.)

“The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own or other law enforcement agencies, may be sufficient to prove a gang’s primary activities. [Citations.]” (Duran, supra, 97 Cal.App.4th at p. 1465.) A gang expert may give opinion testimony that is based upon hearsay, including conversations with gang members as well as with the defendant. (Sengpadychith, supra, 26 Cal.4th at p. 324.)

While there must be evidence that the gang’s primary activities included commission of the enumerated offenses, expert testimony regarding specific offenses, as well as evidence that gang members committed those offenses “often” is sufficient to prove that element. In Duran, supra, 97 Cal.App.4th 1448, the gang expert testified that “the gang’s primary activity was ‘putting fear into the community.’ ” (Id. at pp. 1455, 1464.) Defendants claimed that this was not one of the statutorily enumerated offenses, and therefore the evidence was insufficient to support a finding on this element. The court disagreed, holding that the expert’s “testimony supported a jury finding that members of the [gang] were engaged in more than the occasional sale of narcotics, robbery, or assault. [The gang expert] testified that the [gang] members engaged in these activities ‘often,’ indeed often enough to obtain ‘control’ of the narcotics trade in a certain area of Los Angeles.” (Id. at p. 1465.) Evidence of the charged offense and another gang member’s prior conviction provided “specific examples” of gang members’ commission of enumerated offenses. (Ibid.; see People v. Vy, supra, 122 Cal.App.4th at p. 1222.)

Velasquez relies on In re Alexander L. (2007) 149 Cal.App.4th 605 to support his claim that Officer Marino’s testimony was insufficient to satisfy the “primary activities” element. In that case, the defendant was charged with vandalism, based on graffiti, with gang enhancements. The gang expert testified about the primary activities of the gang as follows: “ ‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’ No further questions were asked about the gang’s primary activities on direct or redirect examination, . . . [and ] no specifics were elicited as to the circumstances of these crimes, or where, when, or how [the expert] had obtained the information. He did not directly testify that criminal activities constituted [the gang’s] primary activities.” (Id. at pp. 611-612.)

In contrast, here there was expert testimony regarding the MS gang’s primary activities, as well as specific examples of commission of offenses enumerated in the statute. Officer Molina testified as an expert in Latino criminal street gangs, including the MS gang. He testified that the primary activities of the MS gang in San Francisco were “robberies, attempted homicides, homicides, stolen vehicles, they’re big on that, breaking into cars for finding alcohol in there and narcotics.” Officer Molina had “handle[d] a lot of these cases [him]self.” Officer Molina based his opinion on his police investigations over the prior three years, specifically “police reports that I have written, arrests that I have made, [as well as] investigations that I have assisted, two other bureaus . . . that we have in San Francisco, and other police departments that I have consulted with throughout the Bay Area.” Additionally, there was evidence of Velasquez’s commission of the offenses charged in this case, as well as evidence that Martinez, another MS gang member known by Officer Molina, already had been convicted of assault with force likely to inflict great bodily injury in connection with the same incident. In light of this testimony, there was substantial evidence of the “primary activities” element.

B. Expert Testimony on International Aspects of the Gang

Velasquez maintains that the Officer Molina’s expert testimony regarding the MS gang’s connection with El Salvador and the Mexican Mafia was more prejudicial than probative, and denied him his due process rights. He also argues that, if this claim was forfeited by his attorney’s failure to object, he was denied the effective assistance of counsel. Finally, he argues that the prosecutor committed misconduct by eliciting testimony that exceeded the scope of the trial court’s “implicit ruling.”

We review a court’s order admitting evidence for abuse of discretion. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) Velasquez’s attorney moved in limine to exclude any testimony regarding the MS gang “apart from this particular group of folks at 20th and Mission Street.” He argued that the expert should not be allowed to testify that the MS gang is a “national or international gang,” or about “some information that the MS gang worldwide was going to attack police officers . . . .” The prosecutor advised the court that Officer Molina’s testimony regarding the international nature of the MS gang would be nothing beyond “what he testified to in the prelim which is that the gang consisted of people from El Salvador, that it does exist on a statewide level within California and that there are cli[ques] within other parts of California besides simply San Francisco. And how that becomes relevant is specifically one of the tattoos on [Velasquez]’s back reflects the initials PLS which is also reflected on the face plate of his cell phone in the exhibits that are in evidence. That will only be raised via Officer Molina’s testimony in describing that he is aware of what PLS stands for . . . .” The prosecutor agreed that he would not introduce testimony from Officer Molina about “any potential plot by MS to attack police officers.” The court responded: “Or anything regarding Al Q[a]ida, obviously,” and indicated it would give a limiting instruction regarding gang evidence before Officer Molina testified.

We fail to find any “implied ruling” by the court regarding the international aspect of the gang in general, or mention of the Mexican Mafia. The record reflects that the court’s mention of the international nature of gangs was in reference to a film some potential jurors had seen. The court made no ruling on eliciting testimony regarding the international connections of the MS gang. Consequently, we find no prosecutorial misconduct in eliciting evidence in violation of an “implied ruling.”

The court instructed the jury as follows immediately prior to Officer Molina’s testimony: “You may consider evidence of gang activity only for the limited purpose of deciding whether [Velasquez] acted with the intent, purpose and knowledge that are required to prove the gang related crimes and allegations charged. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness, and when you consider the facts and information relied on by an expert witness in reaching his opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that [Velasquez] is a person of bad character or that he has a disposition to commit a crime.”

Officer Molina testified that “Mara Salvatrucha” meant a group from El Salvador. He indicated that it was “an up and coming gang in the United States, they’re all over. . . . Talking to known MS gang members in the last few years, that’s what they all talk about. MS is going to become the biggest gang in the United States.” He testified about the gang’s origins in Los Angeles, indicating that a group of “Salvadorian youths . . . felt like they needed protection from the already established gangs in LA. . . .” Some brought the gang culture back to El Salvador when they were deported. “[T]hat’s how the gang got established in El Salvador. And some of those people from El Salvador are coming back to the United States, and also we have numerous cli[ques] or groups of MS in the United States,” including cliques in Los Angeles and San Francisco. He explained that “MS is the big umbrella and we have different subgroups that fall under that umbrella.” He also indicated that MS is affiliated with the Mexican Mafia, a larger umbrella organization that “controls most of the . . . prisons throughout California.” Officer Molina testified that the letter “M” on clothing or in tattoos signified association with Mara Salvatrucha or the Mexican Mafia.

Velasquez maintains that the references to the Mexican Mafia and the international nature of the MS gang in Officer Molina’s testimony were highly inflammatory and “ ‘extremely prejudicial.’ ”

In general, “evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. [Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) Such evidence “may be relevant to establish the defendant’s motive, intent or some fact concerning the charged offenses other than criminal propensity. . . .” (Ibid.)

In this case, the district attorney charged Velasquez with one count of participation in a criminal street gang, as well as alleging gang enhancements as to the remaining three counts. Accordingly, the gang evidence was specifically relevant and admissible to prove one charged offense and the enhancing allegations. The question, then, is whether in this context, Officer Molina’s testimony about the international connections of the MS gang was more prejudicial than probative.

As many courts have emphasized, “prejudicial” in the context of Evidence Code section 352 does not mean “damaging” to the defendant. (See, e.g., People v. Branch (2001) 91 Cal.App.4th 274, 286 (Branch); People v. Zambrano (2007) 41 Cal.4th 1082, 1138.) “ ‘Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. . . . “ ‘The “undue prejudice” referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” ’ ” (Branch, supra, 91 Cal.App.4th at p. 286.)

“ ‘[T]he statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]” . . . In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.’ ” (Branch, supra, 91 Cal.App.4th at p. 286, citing Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008-1009.)

Velasquez has not demonstrated that he was “unduly prejudiced,” as that term has been defined, by the introduction of evidence regarding the MS gang’s connection with the Mexican Mafia or its origins in El Salvador. Nor has he demonstrated that any potential prejudice would “substantially” outweigh the probative value of the evidence. The expert testimony regarding the MS gang culture, activities, membership, was directly relevant to the charge of gang participation and the three allegations of gang enhancements. Officer Molina’s testimony about the MS gang’s connection with El Salvador was relevant to explain the origin of the gang and its foes. The testimony was also relevant to explain the gang’s organization, tattoos, hand signs, and clothing. In the context of Office Molina’s relevant, extensive testimony about gangs, his peripheral comments about the Mexican Mafia and El Salvador were not inflammatory or unduly prejudicial.

C. Prosecutorial Misconduct in Closing Argument

Velasquez maintains that the prosecutor’s references to terrorism during his closing argument were prejudicial misconduct. Velasquez has the burden of demonstrating that the prosecutor’s alleged misconduct “ ‘comprise[d] a pattern of conduct “so egregious that it infect[ed] the trial with such unfairness as to make the conviction a denial of due process.” [Citation.]’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ ” (People v. Gray (2005) 37 Cal.4th 168, 215-216, citing People v. Hill (1998) 17 Cal.4th 800, 819.)

Velasquez was charged with one count of gang participation and two gang enhancements under section 186.22. That section is part of the chapter titled: “California Street Terrorism Enforcement and Prevention Act.” (§ 186.20.) In enacting this chapter, the Legislature made specific findings that “the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. . . . It is the intent of the Legislature in enacting this chapter to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.” (§ 186.21.)

In his closing argument, the prosecutor noted that a potential juror had stated he “considered gang violence urban terrorism.” Velasquez’s attorney objected, and the court overruled the objection. The prosecutor acknowledged that “terrorism is a loaded word, and perhaps that seems a bit harsh when it’s used by that individual during voir dire selection, however, it is actually entirely appropriate. When the law that you’re going to be considering regarding the gang allegations and the gang counts in this case w[as] enacted, . . . Los Angeles was essentially under siege by gang violence. [¶] People decided they were going to put a stop to it and they enacted a statute and that statute is called the STEP Act. And that stands for Street Terrorism Enforcement and Protection Act. [¶] [Velasquez] terrorized both of those boys on July 2nd of last year, there’s no doubt about it.”

Given that Velasquez was charged with violation of the “California Street Terrorism Enforcement and Prevention Act,” we cannot say that the prosecutor’s closing argument in which he makes reference to terrorism was misconduct.

D. Testimony Regarding the Victim’s Statement

Velasquez next urges that admission of testimony that L. stated, in the presence of both his brother R. and Officer Fogarty, that he was “going to die,” was more prejudicial than probative and denied him his due process rights. He further argues that his trial counsel was ineffective in that he failed to “press for a definitive ruling” on his motion to exclude the evidence. As noted above, we consider whether admission of this evidence was an abuse of discretion.

Velasquez’s attorney filed a motion to exclude L.’s statement, made after he was shot: “I’m dying, tell mom I love her.” The prosecutor argued that the statement was relevant to the great bodily injury enhancement. He also explained that the statement was evidence of L.’s state of mind when he first spoke to police, and could explain some of the differences between L.’s statements to police at the time of the shooting and in later conversations. The court agreed that “there’s no real theory that ‘Tell mom I love her’ is relevant or there’s really a lot of probative value,” and took the matter under submission.

The evidence regarding L.’s statements that he was dying were relevant, as argued by the prosecutor, both as evidence of L.’s great bodily injury, and to explain his state of mind immediately after the shooting. The jury properly could consider discrepancies among L.’s statements immediately after the shooting, later to police, and at trial, against the backdrop of his extreme physical pain and emotional state when he first spoke to Officer Fogarty. While the statement “Tell mom I love her,” may have been unduly prejudicial, no evidence of that statement was adduced at trial. We find no error in the admission of L.’s statements that he was dying.

Velasquez also urges reversal on the basis of the cumulative prejudicial effect of the claimed errors. Because we find no error, we find no merit in this contention.

E. Sentencing

Velasquez maintains that his sentence to the upper term of imprisonment on Count 2, assault of L., violated his constitutional rights because it was based on aggravating factors not found true by a jury under Cunningham v. California (2007) 549 U.S.___, [127 S.Ct. 856]. Our Supreme Court recently held in People v. Black (2007) 41 Cal.4th 799 (Black II) that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of the prior convictions.” (Id. at p. 816, italics added.) This exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of prior convictions.” (Id. at p. 819.) In Black II, the court concluded the defendant’s recidivism rendered him eligible for the upper-term sentence when the trial court found that the defendant’s prior convictions were numerous and of increasing seriousness. (Id. at pp. 812, 818.)

Here, the trial court stated the following in regard to the mitigating and aggravating factors: “[T]he only factor that I see, frankly, in mitigation is the fact that [Velasquez] does not have a significant record as an adult, but the factors in aggravation are innumerable. The fact that the victims in this case were vulnerable, they were unarmed, were outnumbered by [Velasquez] and his associates. [Their backs were turned to [Velasquez] at the time they were shot at. They were helpless victims. [Velasquez]’s crime clearly involved a great deal of violence, bodily harm, threat of bodily harm, and the manner in which the crime was carried out indicated at a minimum planning by leading a gang attack on both victims and surrounding them with his associates. And [Velasquez] has engaged in violent conduct in the past in his juvenile record. So the Court does find the factors in aggravation outweigh the factors in mitigation.”

The parties agree that that the court stated “their backs were turned” rather than “the facts were turned” as indicated in the transcript.

The issue of whether juvenile adjudications fall within the recidivism exception is currently before the California Supreme Court. (See People v. Tu, review granted Dec. 12, 2007, S156995; People v. Grayson, review granted Dec. 19, 2007, S157952; People v. Nguyen, review granted July 31, 2007, S154847.) Historically, California courts have condoned the use of juvenile adjudications as constitutional when used as prior convictions under the three strikes law. (See People v. Bowden (2002) 102 Cal.App.4th 387, 391-394; People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1080; People v. Buchanan (2006) 143 Cal.App.4th 139, 149.) As People v. Smith explained: “[N]othing in Apprendi or the cases upon which it relied limits the Legislature’s authority to identify a prior juvenile adjudication involving a serious or violent offense or any other fact it deems reasonably relevant for purposes of imposing an increased sentence . . . .” (People v. Smith, supra, at p. 1078.)

Here, the court relied in part on Velasquez’s “violent conduct in the past in his juvenile record.” A fact “that may be determined by examining the records of prior convictions” does not implicate a defendant’s constitutional right to jury trial. (Black II, supra, 41 Cal.4th at p. 819.) The court’s statement of reasons here includes not only the fact that Velasquez had prior sustained juvenile petitions, but also that one included violent conduct, both of which could be determined by examining Velasquez’s record. Accordingly, Velasquez’s constitutional rights were not denied by imposition of the upper term on one count of assault based on the factor relating to his recidivism.

California Rules of Court, rule 4.421(b)(1) defines this factor as “defendant has engaged in violent conduct that indicates a serious danger to society.”

DISPOSITION

The judgment is affirmed.

We concur: Reardon, J Sepulveda, J.


Summaries of

People v. Velasquez

California Court of Appeals, First District, Fourth Division
Mar 13, 2008
No. A115194 (Cal. Ct. App. Mar. 13, 2008)
Case details for

People v. Velasquez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JUAN RAMON VELASQUEZ, Defendant…

Court:California Court of Appeals, First District, Fourth Division

Date published: Mar 13, 2008

Citations

No. A115194 (Cal. Ct. App. Mar. 13, 2008)