People v. Velasquez CA4/1

Filed 3/30/16 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, D069290

Plaintiff and Respondent,

v. (Super. Ct. No. FSB1400215)

VINCENT RICARDO VELASQUEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County,

Victor R. Stull, Judge. Affirmed.

Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C.

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
 A jury convicted Vincent Ricardo Velasquez of forcible rape in concert (Pen.

Code, § 264.1, subd. (a); count 1; further undesignated statutory references are to the Pen.

Code) and forcible oral copulation in concert (§ 288a, subd. (d)(1); count 2), and in a

bifurcated proceeding following the verdict, the trial court found true the allegations that

Velasquez had convictions resulting in two prior strikes (§§ 1170.12, subds. (a)-(d), 667,

subds. (b)-(i)), two prior serious felonies (§ 667, subd. (a)(1)) and four prior prison terms

(§ 667.5, subd. (b)).

The trial court sentenced Velasquez to prison for a determinate term of 17 years on

count 2 and an indeterminate term of 39 years to life on count 1 and imposed certain fines

and fees.

On appeal, Velasquez raises five issues, contending that the trial court erred:

(1) in admitting into evidence a photograph of Velasquez that showed the front of his

tattooed body from the waist to the head; (2) in failing to instruct the jury sua sponte on

unanimity; (3) in failing to instruct the jury sua sponte on a lesser included offense; (4) in

failing to vacate Velasquez's two prior convictions for gang participation or, alternatively,

in failing to dismiss the allegation of those convictions at the time of sentencing; and

(5) in calculating the total prison sentence. None provides a basis on which to reverse;

accordingly, we affirm the judgment.

I.

FACTUAL BACKGROUND

We review the record and recite the facts in a light most favorable to the judgment.

(People v. Hill (1998) 17 Cal.4th 800, 848-849.) Where, in the discussion of certain

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issues on appeal, Velasquez is entitled to our consideration of other evidence, we will set

forth in that discussion the additional issue-specific evidence.

On the night of January 10, 2014 (all subsequent dates are in the year 2014), the

family with which Jane Doe was living1 hosted a small gathering. Around 11:00 or

11:30 p.m., Velasquez, his younger brother Brian Jamerson and his friend Jesse Sandoval

arrived at the get-together. Doe had not met any of them before, although Sandoval was

a friend of Doe's boyfriend, who was incarcerated, and Sandoval had contacted Doe

about the boyfriend and the two of them (Sandoval and Doe) had exchanged Facebook

messages. Sandoval recognized Doe, introduced himself, and the two of them talked for

an hour or so. Around 12:30 a.m. on January 11, at Sandoval's request, Doe gave

Sandoval, Velasquez and Jamerson a ride to the house of Cecilia Jeminte, the mother of

Velasquez and Jamerson.

When they arrived at Jeminte's house, Jeminte opened the door for everyone, and

Doe went to use the bathroom. On her way out, Doe walked into the bedroom where the

three men had gone to say good night to them. The room was small, approximately eight

feet by 12 feet, with a couch and a mattress. Jamerson was just leaving, and once Doe

entered the bedroom Sandoval closed the door with Doe, Velasquez and Sandoval inside.

The door did not have a knob or lock, and Velasquez placed an air tank next to the inside

of the door as he and Sandoval asked her to stay. Doe told them that she had to go home

1 At one point, Doe testified that the family was that of her ex-boyfriend. At other
points, Doe referred to him as a current boyfriend. The status of Doe's relationship with
the friend is irrelevant to the issues on appeal. For convenience, we will refer to him as a
current boyfriend.

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because her roommate was expecting her and she had plans to go to church in the

morning, but Sandoval moved closer to her and told her she was going to stay.

At this point, Doe became scared sitting on the couch; she testified that "little

alarms started going off." Sandoval sat down next to Doe and began kissing her, putting

his hands up her shirt and taking off her bra. Doe told Sandoval "no," explained that she

had to go and then asked him to please let her leave; but that only made him more

determined to keep her there, and he began pulling off her pants. Meanwhile, Sandoval

was naked, and Velasquez began taking off his clothes. Seeing what she described as the

"scary" tattoos on Velasquez's naked body, Doe became even more afraid.

Sandoval removed the remainder of Doe's clothing, forced her to lay on her back

on the arm of the couch and have sexual intercourse with him. Doe again told Sandoval

"no" and again asked to leave, but Sandoval continued with the intercourse.

Velasquez approached Doe, pulled down his boxer shorts and told Doe, "suck my

dick." When Doe tried to push Velasquez away and again said "no" and that she wanted

to go home, Sandoval told her not to say "no" to his "homie" and to do what his "homie"

said or the situation "was gonna be worse" for her. Doe then put down her arm, at which

time Velasquez grabbed the back of her head, turned it sideways to face him and forced

her to orally copulate him — all the while being vaginally penetrated by Sandoval.

This continued for hours, although at some point Sandoval withdrew long enough

for the two men to guide Doe to the mattress. Velasquez continued to force the oral

copulation even during the move. When Sandoval withdrew, Doe was crying and again

asked to leave.

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 Once on the mattress, the men continued to penetrate Doe — Sandoval vaginally

and Velasquez orally. The men compelled Doe to participate in nonconsensual, nonstop

sex for four hours, physically pushing her into different positions. Although the positions

changed, for the most part Sandoval was forcing his penis into Doe's vagina, and

Velasquez was forcing his penis into Doe's mouth. Both men ejaculated "a few times"

over the course of the ordeal — Sandoval three times and Velasquez at least once.

Sandoval generally told Doe what to do, and if she did not respond promptly, he

punched her with a closed fist or slapped her — all the while encouraging Velasquez to

participate more fully. Likewise, Velasquez caused Doe physical pain by constantly

pulling her head forcefully into his pelvis during the oral copulation. In addition,

Sandoval verbally demeaned and degraded Doe. Doe explained that she did not scream

for help, because at one point — and the record is unclear as to exactly when — Sandoval

told Doe to "be quiet and not to yell" or else he and Velasquez would "hurt" her. Doe

believed the threat.

According to Doe, shortly before the events concluded, Sandoval stuck his fingers

in her anus. He removed them (covered with feces) and ordered Doe to clean them. She

wiped them with a sock on the floor, but Sandoval was not satisfied and stuck his fingers

in Doe's mouth, causing her to vomit.

Leading up to the final acts, Sandoval ejaculated in or around Doe's vagina and

proceeded to watch as Velasquez continued forcing Doe to orally copulate him until he

ejaculated. Sandoval then ordered Doe to turn around in order for her to orally copulate

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him while Velasquez had intercourse from behind. Although Velasquez had difficulty

regaining an erection, he nonetheless penetrated her vagina with his penis.

Meanwhile, Sandoval had finished and gotten dressed. When Velasquez finished,

Doe asked the men whether she could put on her clothes, but Sandoval said no. After

Sandoval left the bedroom, Velasquez told Doe she could get dressed. Doe put on her

pants and sweatshirt, but did not take time to look for her bra, underpants or socks. The

keys to Doe's truck were not where she left them. Wanting only to leave, Doe told

Velasquez that she did not care about the car and could walk home, but as she headed

toward the bedroom door, Velasquez grabbed her by the shoulders and threatened, "I'm

not sure if I'm done fucking you yet." Doe was crying and begging Velasquez to let her

go home, and he allowed her to leave the room and the house.

Not seeing her truck on the street where she had left it hours earlier, Doe just

began walking away. Fearful that Sandoval might return, see her on the sidewalk and

further detain her, Doe began to run — all the way to where her adult son and ex-husband

lived, which was approximately five blocks away. Ten minutes later, Doe arrived at their

house in shock and collapsed after knocking on a window.

Doe's son and ex-husband found her in front of their house, behind a bench, in the

fetal position crying around 5:00 a.m. As she was attempting to tell them that she had

been raped, she suffered an asthma attack. Doe's son quickly got an inhaler and medicine

from his father and treated Doe. Once she was able to breathe again, her son tried to

convince her to call the police, but she would not because she was too scared. After

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letting Doe cry for a while, her son took her to the house of her boyfriend's family where

she had been staying.

Later in the day on January 11, after showering Doe went to a hospital to report

the rape and be examined. The medical staff gave Doe medication for pain and anxiety

and performed a basic examination. After the police arrived, they took her to a different

hospital where a nurse performed an examination with a rape kit. The nurse who

examined Doe noted several tears to her anal verge (where Doe said Sandoval had

penetrated her); tenderness on the bridge of her nose (where Doe said Velasquez had

forced her head into his pelvis); bruises on her upper arms (where Doe said Sandoval had

held her); and abrasions on the sides of her body between her ribs and hips (where Doe

said Sandoval had hit her). Although the vaginal examination did not disclose any

physical injuries, the nurse confirmed multiple times that the lack of a noticeable injury

to the vagina did not rule out vaginal rape.

Police officers went to Jeminte's house to detain possible suspects based on Doe's

description of events from early that morning. As the officers were talking to Jeminte at

the front door, Velasquez and another man fled from the house; they ran through yards

and jumped over five or six fences as the officers and their back-ups chased them. The

police caught the two suspects and arrested Velasquez.2 Other officers, who had

obtained a warrant, searched Jeminte's house and took with them, among other items,

underpants and a bra that officers believed belonged to Doe.

2 At trial, the People presented evidence that Sandoval was still at large.

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 At the beginning of the police interview, Velasquez denied knowing Doe. By the

end of the interview, Velasquez admitted receiving oral sex from and having vaginal

intercourse with Doe — initially explaining that Doe had invited him to have sex, then

changing his story to an invitation from Sandoval to join him (Sandoval) and Doe.

II.

PROCEDURAL BACKGROUND

In early February, the People filed an information against Velasquez, alleging the

following four counts: (1) forcible rape in concert, in violation of section 264.1,

subdivision (a); (2) forcible oral copulation in concert, in violation of section 288a,

subdivision (d)(1); (3) forcible sexual penetration in concert, in violation of

section 264.1, subdivision (a); and (4) forcible sodomy in concert, in violation of

section 286, subdivision (d)(1). The information alleged a number of prior strikes

(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), prior serious or violent felony

convictions (§ 667, subd. (a)(1)), and prior prison terms (§ 667.5, subd. (b)).

Following trial, the jury found Velasquez guilty on count 1 (forcible rape in

concert) and count 2 (forcible oral copulation in concert) and not guilty on count 3

(forcible sexual penetration in concert) and count 4 (forcible sodomy in concert). The

trial court found true the allegations that Velasquez had convictions resulting in two prior

strikes, two prior serious felonies and four prior prison terms.

In posttrial proceedings, the court denied a new trial, declined to set aside or

invalidate the prior (strike) convictions for gang participation (§ 186.22, subd. (a)), and

struck the two prior strike convictions as to count 2 (forcible oral copulation in concert).

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 The court sentenced Velasquez to a determinate term of 17 years on count 2 and a

consecutive indeterminate term of 39 years to life on count 1, calculated credits and

imposed a fine. Defendant timely appealed.

III.

DISCUSSION

Velasquez raises five major issues on appeal. The first three concern events

during the trial, and the final occurred in posttrial proceedings. We find no reversible

error.

A. The Court Did Not Err in Admitting Into Evidence the Photograph of Velasquez

Velasquez argues that the trial court erred in admitting into evidence a photograph

of him from the waist up in which he is shirtless and his tattoos are plainly visible.

Velasquez contends the photograph is irrelevant and whatever probative value it might

have had was outweighed by its prejudicial effect. The People respond by arguing that

the court did not abuse its discretion in admitting the photograph into evidence.

The court did not err in admitting the photograph into evidence.

1. Additional Background

The evidence at issue, trial exhibit No. 1, is an eight-inch by 10-inch color

photograph of the frontal view of Velasquez which the prosecutor represented to the trial

court was taken within 24 hours of the events of January 11. The photograph is of

Velasquez standing with his hands at his sides and from the bottom to the top shows from

his finger tips to the top of his head. Velasquez is shirtless, and from what can be seen of

the front of his arms, chest, neck and face, tattoos cover almost the entirety of his upper

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body (with the exception of a small area on his right shoulder and a small area around his

cheeks and nose). The illustrations include women's faces, numerous letters of the

alphabet,3 a hooded figure, the grim reaper (including the scythe) and various intricate

scenes and designs.

To prove the charges of rape in concert (count 1), the People were required to

establish that the perpetrator accomplished the sexual intercourse by "force, violence,

duress, menace, or fear of immediate and unlawful bodily injury." (§ 261, subd. (a)(2).)

To prove the charges of oral copulation in concert (count 2), the People were required to

establish that the perpetrator committed an act of oral copulation by "force or fear of

immediate and unlawful bodily injury." (§ 288a, subd. (d)(1).) In pretrial proceedings,

the People brought a motion in limine to allow the photograph to be admitted into

evidence. The People argued that, because they had the burden of proving that Doe was

actually and reasonably in fear of Velasquez, they wanted to let the jury see and

understand what Doe faced when Velasquez confronted her in the bedroom on

January 11. In response to Velasquez's argument that the photograph would prejudicially

suggest gang membership, the prosecutor agreed to a limiting instruction, if necessary, in

which the jury would be told that it could consider the photograph only with regard to

Doe's state of mind. The court deferred ruling until it could hear Doe's trial testimony

regarding her fear.

3 The only discernable word is "Cecilia."

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 At trial, Doe testified that she first became scared after Velasquez placed the air

tank next to the bedroom door to keep the door from opening. She became even more

afraid as Velasquez undressed and she saw the "scary" tattoos on Velasquez's naked

body. The prosecutor then asked the court's permission to show the photograph to Doe.

In a sidebar conference, Velasquez's attorney objected on the basis the photograph was

irrelevant and its prejudicial effect outweighed any probative value. The court ruled that

(1) because Doe's fear was relevant, evidence of what contributed to her fear was

relevant, and (2) because Doe testified Velasquez's tattoos elevated her fear, the People

were entitled to present visual evidence of what she said caused the additional fear. The

court also ruled that, on balance, the evidence of the tattoos was more probative than

prejudicial given the issue of Doe's fear and, thus, her purported consent to the sexual

advances as asserted by Velasquez.

Finally, days later when the People asked that the photograph be admitted into

evidence, Velasquez's counsel again objected. Commenting that it had previously ruled

that the photograph was admissible, the court overruled the objection.

2. Law

Velasquez argues that the trial court erred in admitting the photograph into

evidence on two grounds: (1) the photograph was not relevant; and if relevant, (2) the

prejudicial effect of the admission of the evidence outweighed any probative value.

Under Evidence Code sections 350 and 351, respectively, "[n]o evidence is

admissible except relevant evidence[,]" and "all relevant evidence is admissible." In this

regard, "relevant evidence" means "evidence, including evidence relevant to the

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credibility of a witness or hearsay declarant, having any tendency in reason to prove or

disprove any disputed fact that is of consequence to the determination of the action."

(Evid. Code, § 210.) Under Evidence Code section 352, the trial court may exclude

otherwise relevant evidence "if its probative value is substantially outweighed by the

probability that its admission will . . . (b) create substantial danger of undue prejudice, of

confusing the issues, or of misleading the jury."

Because a trial court has "wide discretion in assessing whether in a given case a

particular piece of evidence is relevant and whether it is more prejudicial than probative,"

we review the court's decision under these standards for an abuse of discretion. (People

v. Duff (2014) 58 Cal.4th 527, 558, italics added.) A court abuses its discretion in this

context only where the appellant establishes that, by its ruling, the court acted "in an

arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of

justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)

3. Analysis

a. Relevance (Evid. Code, §§ 350, 351)

Velasquez argues first that the photograph was not relevant to "any issue at trial"

(capitalization omitted), discussing what he characterizes as "[t]he primary issue" of

Doe's consent. We assume that the defense of consent includes the issue whether

Velasquez engaged Doe in sexual intercourse or oral copulation by fear.

Doe first became afraid when Velasquez moved the air tank next to the door so

that it would not open. The next mention of fear by Doe was when Velasquez undressed.

In particular, Doe testified that the tattoos on Velasquez's naked body made her "more

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afraid" because they were so "scary." Given that testimony and the People's burden of

proving forcible rape and forcible oral copulation, the evidence of Velasquez's tattoos

was relevant.

Accordingly, in ruling that photograph was relevant to the issue of Doe's fear —

both its existence and reasonableness — the trial court did not act in an arbitrary,

capricious or absurd manner and, thus, did not abuse its discretion in determining

relevance.

b. More Probative Than Prejudicial (Evid. Code, § 352)

Under Evidence Code section 352, the trial court must balance the probative value

of the proffered evidence against the potential prejudice should the evidence be admitted.

(People v. Soper (2009) 45 Cal.4th 759, 779, fn. 16.) " 'The chief elements of probative

value are relevance, materiality and necessity. [¶] Before permitting the jury to [receive

the challenged] evidence . . . the court must ascertain that the evidence (a) "tends

logically, naturally and by reasonable inference" to prove the issue upon which it is

offered; (b) is offered upon an issue which will ultimately prove to be material to the

People's case; and (c) is not merely cumulative with respect to other evidence which the

People may use to prove the same issue.' " (People v. Lang (1989) 49 Cal.3d 991, 1049

(conc. & dis. opn. of Mosk, J.), abrogated on other grounds in People v. Diaz (2015) 60

Cal.4th 1176.) In contrast, "the chief element of prejudice is the potential to lead a jury

to convict the defendant because of his bad character or record and not on the basis of his

conduct." (Lang, at p. 1049.)

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 Given the foregoing standard and our discussion in part III.A.3.a., ante, the trial

court did not abuse its discretion in determining that the photograph had probative value:

it tended to prove Doe's fear (both its existence and reasonableness), an issue material to

the People's case, and was not cumulative. Indeed, given the issues of consent and fear,

the evidence of Velasquez's appearance at the time he engaged in sex with Doe was

highly probative.

Velasquez's attempt to distinguish this case from People v. Thomas (2011) 51

Cal.4th 449 (Thomas) is not persuasive. For purposes of this argument, we accept

Velasquez's premise that evidence of a defendant's gang membership must be " 'carefully

scrutinized by trial courts' " so as to avoid the jury's inference that a gang member has a

criminal disposition. (Quoting People v. Carter (2003) 30 Cal.4th 1166, 1194.) In

Thomas, an appeal following a conviction for rape and murder, the trial court had

admitted into evidence several photographs of the defendant's tattoos that the defendant

contended established a gang connection. (Thomas, at p. 488.) Under facts similar to

those here, the Supreme Court concluded that the trial court did not abuse its discretion in

ruling that, because of the issue of consent to the sexual intercourse, the photographs by

themselves (i.e., without evidence connecting them to gang membership) were not

inherently prejudicial. (Ibid.) Velasquez tries to distinguish Thomas on the basis that the

the defendant in Thomas had no prior relationship with the victim, whereas here Doe

knew Velasquez. We fail to see any true distinction, since Doe had met Velasquez only

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hours before the events and did not really know him. Otherwise, Thomas is directly on

point and controlling.4

For the first time on appeal, Velasquez objects to what his appellate attorney

describes as "the most prominent tattoo in the photograph[, which] states 'Westside'

across [Velasquez's] abdomen" and argues that, because Jamerson belonged to a gang

called "West Side Verdugo," the jury could infer that Velasquez was also an active

member in the gang. We are not convinced.

First, by not presenting any argument to the trial court based on the purported

meaning of the specific tattoo — thereby giving the trial court the opportunity to consider

this argument in ruling on the admissibility of the photograph (People v. De Soto (1997)

54 Cal.App.4th 1, 10) — Velasquez forfeited appellate review of the issue. (People v.

Wash (1993) 6 Cal.4th 215, 244.) Second, contrary to Velasquez's description of the

tattoo in his opening brief — i.e., "the very large gang tattoo across [Velasquez's]

abdomen" — the photograph only shows the letters "ESTSID" (and, in fact the "D" looks

more like an "O," resulting in "ESTSIO"), which is distinctly different than Jamerson's

testimony regarding his membership in the "West Side Verdugo" gang. Finally, at the

4 We note that, in Thomas, the trial court instructed the jury that the photographs
" 'can only be used on the issue of consent. In other words, what [the victim] actually
could see on the day in question. You cannot use it for any other issue or purpose other
than the issue of consent.' " (Thomas, supra, 51 Cal.4th at p. 488.) Here, the prosecutor
agreed to — in fact, suggested — the same limiting instruction. If Velasquez had the
same concern at trial that he expresses on appeal, he could have requested a similar
instruction. Having failed to do so, he cannot complain about the lack of an instruction
(People v. Cowan (2010) 50 Cal.4th 401, 480) and is left only with a prejudice argument
that likely could have been avoided altogether by a limiting instruction.

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time the trial court was balancing probative value and prejudicial effect (while Doe was

on the witness stand), the evidence from Jamerson regarding his gang membership had

not been presented, and Velasquez's counsel did not advise the court that such evidence

might be forthcoming.

In any event, even if we consider the events after the court overruled Velasquez's

evidentiary objection, Velasquez cannot establish prejudice — i.e., what he suggests may

have been the jury's erroneous inference that the tattoo was gang-related. First, there is

no indication anywhere in the record that the jury considered, let alone determined,

whether Velasquez was a gang member at the time of the charged offenses. Second,

Velasquez's attorney — not the prosecutor — presented the evidence Velasquez contends

might have associated him with a gang. Velasquez's attorney called Jamerson as a

witness and asked him about his gang affiliation, including the name of the gang and his

related tattoos. Even after that introduction of gang evidence on direct examination, the

prosecutor only asked Jamerson six questions, none of which had anything to do with

Velasquez's photograph, gang membership or tattoos. Additionally, Velasquez's attorney

first asked Velasquez about his prior gang affiliation and two prior convictions for

associating with a criminal street gang. Although the prosecutor confirmed the two

convictions on cross-examination, he did not ask any other gang-related questions.

Finally, the prosecutor did not mention anything gang-related in his closing argument or

rebuttal.

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 Accordingly, in ruling that the probative value of the photograph outweighed any

chance of undue prejudice, the trial court did not act in an arbitrary, capricious or absurd

manner and, thus, did not abuse its discretion.

c. Conclusion

Because the trial court did not abuse its discretion in ruling both that the

photograph was relevant and that its probative value outweighed any potential prejudice,

the trial court did not err in admitting the photograph into evidence.

B. The Trial Court Did Not Err in Failing to Instruct the Jury on Unanimity

Velasquez argues that, because the evidence could have supported "two discreet

rape in concert offenses" — one with Velasquez as principal and one with Sandoval as

principal — the trial court erred in failing to instruct the jury that it had to agree

unanimously on which act they relied in finding Velasquez guilty of rape in concert. The

People counter by arguing that a unanimity instruction was not required because the jury

did not have to agree on whether Velasquez was the principal or an aider and abettor in

the rape in concert charge.

The trial court did not err in failing to instruct the jury on unanimity.

1. Additional Background

In count 1, Velasquez was charged with violating Section 264.1, subdivision (a),

which criminalizes as rape in concert "any case in which the defendant, voluntarily acting

in concert with another person, by force or violence and against the will of the victim,

commit[s] an act described in Section 261, 262, or 289, either personally or by aiding and

abetting the other person." As applicable here, section 261, subdivision (a)(2) defines

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"[r]ape" as "an act of sexual intercourse accomplished with a person not the spouse of the

perpetrator" "[w]here it is accomplished against a person's will by means of force,

violence, duress, menace, or fear of immediate and unlawful bodily injury on the person

or another."

Based on CALCRIM No. 1001, the court instructed the jury in part as follows:

"To prove that [Velasquez] is guilty of [rape in concert,] the People must
prove that: (1) [Velasquez] personally committed forcible rape and
voluntarily acted with someone else who aided and abetted its commission.
Or, (2) [Velasquez] voluntarily aided and abetted someone else who
personally committed forcible rape."

Given this instruction and the evidence introduced at trial, the People argued to the jury

both that Sandoval aided and abetted Velasquez as the principal and that Velasquez aided

and abetted Sandoval as the principal.

In defense to the evidence that Velasquez was the principal, Velasquez argued to

the jury both (1) that, because he did not penetrate Doe vaginally, he did not commit

rape, and (2) that Doe voluntarily participated in (i.e., consented to) to the intercourse. In

support of the first argument, the record contains evidence that, at the time Velasquez

attempted sexual intercourse with Doe, he did not have an erection; he merely rubbed his

penis on the outside of her vagina; he did not penetrate her; and he did not ejaculate.

In defense to the evidence that Velasquez aided and abetted Sandoval as the

principal, Velasquez argued to the jury that, because he reasonably believed Doe

voluntarily participated in (i.e., consented to) the intercourse with Sandoval, he

(Velasquez) did not aid or abet a rape. In support of this argument, the record contains

evidence that Velasquez saw Doe and Sandoval hugging and kissing at the party and in

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the bedroom, that Doe undressed herself in the bedroom, that he believed Doe and

Sandoval invited him to join them, and that he never heard Sandoval tell Doe to do what

Velasquez told her to do (i.e., to orally copulate him) or she would suffer. Velasquez's

brother and sister also testified that they saw Doe and Sandoval hugging and kissing in

the bedroom.

The jury found Velasquez guilty of rape in concert, as charged in count 1.

2. Law

Under the California Constitution, a unanimous jury verdict is required to convict

a person of a crime. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124,

1132 (Russo).) In particular, the jury must agree unanimously that the defendant is guilty

of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.)

When a defendant is charged with a criminal offense, but the evidence suggests

more than one discrete crime, either the People must elect among the crimes or the trial

court must instruct the jurors that they all agree on the same criminal act. (Russo, supra,

25 Cal.4th at p. 1132; see CALCRIM No. 3500.5) A trial court is required sua sponte to

give a unanimity instruction where the evidence in the case suggests more than one

5 "The defendant is charged with
[in Count _____] [sometime during the period of __________ to _________]. [¶]
The People have presented evidence of more than one act to prove that the defendant
committed this offense. You must not find the defendant guilty unless you all agree that
the People have proved that the defendant committed at least one of these acts and you all
agree on which act (he/she) committed." (CALCRIM No. 3500.)

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discrete crime and the prosecutor does not elect among the crimes.6 (Russo, at p. 1132;

People v. Riel (2000) 22 Cal.4th 1153, 1199.) The requirement for such an instruction

" 'is intended to eliminate the danger that the defendant will be convicted even though

there is no single offense which all the jurors agree the defendant committed.' " (Russo,

at p. 1132.) However, "where the evidence shows only a single discrete crime but leaves

room for disagreement as to exactly how that crime was committed or what the

defendant's precise role was, the jury need not unanimously agree on the basis or, as the

cases often put it, the 'theory' whereby the defendant is guilty."7 (Ibid.)

A related exception to the unanimity requirement is that the jurors need not agree

on the specific criminal act where the offense constitutes a "continuous course of

conduct." (People v. Maury (2003) 30 Cal.4th 342, 423 (Maury); see 5 Witkin, Cal.

Crim. Law (4th ed. 2012) Crim. Trial, § 729, p. 1133.) This exception arises " ' "when

the acts alleged are so closely connected that they form part of one and the same

transaction, and thus one offense." ' "8 (People v. Hernandez (2013) 217 Cal.App.4th

6 Here, the prosecutor did not elect, and Velasquez did not request a unanimity
instruction.

7 For example, in deciding whether a defendant is guilty of murder, "the jury need
not decide unanimously whether defendant was guilty as the aider and abettor or as the
direct perpetrator." (People v. Santamaria (1994) 8 Cal.4th 903, 918; see People v.
Jenkins (2000) 22 Cal.4th 900, 1024-1025 [jury may convict defendant of first degree
murder without making unanimous determination whether murder was deliberate and
premeditated or committed during the course of a felony].)

8 Although inapplicable here, the exception is also used when the criminal statute
contemplates a continuous course of conduct or a series of acts over a period of time.
(Hernandez, supra, 217 Cal.App.4th at p. 572.) Examples include statutes criminalizing
20
559, 572 (Hernandez), italics added; see People v. Benavides (2005) 35 Cal.4th 69, 98

(Benavides) [same; jury not required to agree on which specific act of rape or sodomy

supported conviction of lewd and lascivious conduct].)

In sum, although a unanimity instruction is required where there are discrete

crimes, it is not required where the acts are so closely connected as to form one offense

even if supported by different theories.

Because our consideration of whether the trial court should have given a particular

jury instruction involves a mixed question of law and fact which is " 'predominantly

legal,' " we review de novo the issue whether a unanimity instruction was required here.

(Hernandez, supra, 217 Cal.App.4th at p. 568 [unanimity instruction].)

3. Analysis

In support of his position that two discrete criminal acts may have been committed

(one as principal and one as aider and abettor), Velasquez first contrasts the People's

information against him with the People's information against Sandoval. The People

charged Sandoval with two counts of violating section 264.1, subdivision (a): in one

count, as principal, by "unlawfully and voluntarily acting with another person,

personally" to rape Doe; and in another count, as aider and abettor, by "unlawfully and

voluntarily acting with another person, by aiding [and] abetting Vincent Velasquez," to

rape Doe. (Italics added.) In contrast, here the People charged Velasquez with one count

pimping, pandering, failure to provide for a minor, contributing to the delinquency of a
minor and child abuse. (People v. Avina (1993) 14 Cal.App.4th 1303, 1309 [collecting
cases].)

21
of violating section 264.1, subdivision (a) by "unlawfully and voluntarily acting with

another person, personally and by aiding and abetting the other person," to rape Doe.

(Italics added.) The differences in the two informations do not, by themselves, establish

two discrete criminal acts by Velasquez. Indeed, the language in the charging document

specifying that Velasquez was both a principal and an aider and abettor not only suggests

that the prosecution based its charge on a continuous course of conduct, but also " 'alerts

the jury that the charge consists of a continuous course of conduct, to be proved by

evidence of more than one individual act.' " (People v. Leonard (2014) 228 Cal.App.4th

465, 491 [pandering].)

Regardless, on the merits, we are satisfied that a unanimity instruction was not

required here, because all of the acts of rape, regardless who was the principal and who

was the aider and abettor, were part of a continuous course of conduct with acts so

closely connected as to form one ongoing offense. (Maury, supra, 30 Cal.4th at p. 423;

Benavides, supra, 35 Cal.4th at p. 98.) The men did not allow Doe to leave the eight-foot

by 12-foot room (that contained only a couch and mattress) for over four hours, during

which time nonstop sexual activity occurred until Velasquez allowed Doe to leave.

Velasquez emphasizes that he presented distinct defenses to the different acts —

lack of penetration as to acts in which Doe testified Velasquez was the principal, and lack

of knowledge that Doe had not consented to the acts in which she testified Sandoval was

the principal. Quoting from People v. Percelle (2005) 126 Cal.App.4th 164, 181

(Percelle), Velasquez suggests that the continuous course of conduct exception only

applies "when '[ "]the defendant offers essentially the same defense to each of the acts,

22
and there is no reasonable basis for the jury to distinguish between them.[" ]' " (Italics

added.) However, that is not what Percelle says; Velasquez conflates two independent

exceptions to requiring a unanimity instruction. As Division Two of our court recently

explained, quoting more fully from Percelle:

"[A] unanimity instruction is not ' "required when the acts alleged are so
closely connected as to form part of one continuing transaction or course of
criminal conduct," ' or ' " 'when the defendant offers essentially the same
defense to each of the acts, and there is no reasonable basis for the jury to
distinguish between them.' [Citations.]" [Citation.]' ([Percelle, supra,]
126 Cal.App.4th 164, 181-182.)"

(Hernandez, supra, 217 Cal.App.4th at p. 572, italics added.)

Thus, the unanimity instruction is unnecessary in either of two situations:

(1) where the defendant asserts essentially the same defense to each of the acts that could

justify the conviction, and there is no reasonable basis for the jury to distinguish between

the defenses; or (2) where the acts alleged are so closely connected that they formed one

continuing course of criminal conduct. (Percelle, supra, 126 Cal.App.4th at pp. 181-182;

Hernandez, supra, 217 Cal.App.4th at p. 572.) Notably, Velasquez presents no argument

on appeal in response to the second situation, which was what was before the trial court

here — namely, acts so closely connected that they formed one continuous course of

conduct. Indeed, Velasquez cites three authorities that he contends cannot be

distinguished from the present case, but in each the court required a unanimity instruction

only because the defendant offered evidence of distinct defenses to separate acts; there

was no issue on appeal as to whether the defendant's separate acts were so closely

connected that they formed one continuing course of criminal conduct. (Hernandez, at

23
p. 575 ["separate instances of possession [of a gun], separated by time and space"];

People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071 [charge of possession of

heroin; heroin found on television set at home prior to arrest, and heroin found in

defendant's pocket later in the day after arrest]; People v. Laport (1987) 189 Cal.App.3d

281, 282-283 [one count of grand theft with evidence of embezzlement and theft over a

15-month period].)9

Contrary to Velasquez's argument on appeal, just because he presented two

distinct defenses — lack of penetration to the evidence that Velasquez raped Doe, and

lack of knowledge of the evidence that Doe did not consent to the sexual intercourse with

Sandoval — does not affect our consideration as to whether the rapes, regardless who

was the principal, were part of a continuous course of conduct with acts so closely

connected as to form one ongoing offense. Because of the overwhelming evidence of a

continuous course of conduct, the trial court did not err in failing to instruct the jury on

unanimity.

C. The Trial Court Did Not Commit Reversible Error in Failing to Instruct the Jury
Sua Sponte on a Lesser Included Offense

Velasquez argues that the trial court erred in failing to instruct the jury on assault

with intent to commit rape, a lesser included offense of rape in concert. The People

9 Additionally, Velasquez relies on People v. Wolfe (2003) 114 Cal.App.4th 177,
184, and People v. Crawford (1982) 131 Cal.App.3d 591, 599, for the argument that his
distinct defenses also preclude application of a different exception to the unanimity
requirement — an exception where the two criminal acts are so substantially identical in
nature that any juror believing one act took place would also believe that all acts took
place. However, the People do not contend the criminal acts here are so substantially
identical to preclude application of the unanimity requirement.

24
respond by arguing, first, that there was no substantial evidence to support such an

instruction and, second, that even if the instruction was required, the error did not

prejudice Velasquez.

Although the court erred in failing to instruct the jury on the lesser included crime,

the error was harmless.

1. Additional Background

Velasquez again relies on the two defenses he presented to count 1, rape in

concert: To the extent he was considered the principal, he did not penetrate Doe; and to

the extent he was considered the aider and abettor, he was unaware Doe had not

consented to the sex with Sandoval. From this premise, Velasquez argues on appeal that,

because there was the possibility that the jury would find (1) that he was unaware Doe

had not consented to the sex with Sandoval (and thus would acquit on the aiding and

abetting charge) and (2) that he did not penetrate Doe (and thus would acquit on the rape

charge), the court was required to instruct the jury on assault with intent to commit rape

— an offense included within a charge of rape in concert.

In support of his defense based on a lack of penetration, Velasquez directs us to

evidence in the record from both him and Doe that suggests he did not penetrate her

vagina with his penis. In response, the People tell us that there is "no evidence" that

Velasquez attempted but failed to penetrate Doe's vagina with his penis.

2. Law

Because "every" lesser included offense that is supported by substantial evidence

"must" be presented to the jury, "a trial court errs if it fails to instruct, sua sponte, on all

25
theories of a lesser included offense which find substantial support in the evidence."

(People v. Breverman (1998) 19 Cal.4th 142, 155, 162 (Breverman).) This sua sponte

responsibility arises regardless of the wishes of trial counsel or the parties, whenever

substantial evidence supports the lesser charge. (Id. at pp. 158, 162.) In this context,

substantial evidence means " ' "evidence from which a jury composed of reasonable

[persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was

committed." (Id. at p. 162.) In determining the substantiality of evidence, a trial court is

to consider only the "legal sufficiency" of the evidence, not its weight or the credibility of

the witnesses who presented the evidence. (Id. at p. 177.)

Without deciding the issue, for purposes of this argument we accept the parties'

agreement that assault with intent to commit rape (§ 220, subd. (a)(1))10 is a lesser

included offense of rape in concert (§ 264.1, subd. (a)). (See In re Jose M. (1994) 21

Cal.App.4th 1470, 1476-1477.) Thus, as applicable here, because Velasquez was

charged with raping Doe (while Sandoval aided and abetted), if the record contains

substantial evidence both that Velasquez assaulted Doe with the intent to rape her and

that he did not rape her, the trial court was required to instruct the jury on assault with

intent to rape. (Breverman, supra, 19 Cal.4th at p. 162.)

We review de novo whether a jury instruction on a lesser included offense should

have been given. (People v. Waidla (2000) 22 Cal.4th 690, 733 [trespass and assault as

lesser included offenses in burglary and robbery, respectively].) In so doing, we view the

10 A crime is committed under section 220, subdivision (a)(1) whenever "any person
. . . assaults another with intent to commit . . . rape . . . in violation of Section 264.1 . . . ."

26
evidence in a light most favorable to Velasquez, resolving any doubts as to the

sufficiency of the evidence in his favor. (People v. Wright (2015) 242 Cal.App.4th 1461,

1482-1483 & fn. 7 [voluntary manslaughter and second degree murder as lesser included

offenses in first degree murder].)

3. Analysis

The Attorney General tells us that "there was no evidence presented that

[Velasquez] attempted . . . but failed to penetrate Doe's vagina with his penis." (Italics

added.) Although that statement accurately reflects Velasquez's trial testimony —

because Velasquez testified that he neither attempted to have nor succeeded in having

intercourse with Doe — the statement fails to take into account Doe's inconsistent

recollection of the event.

Velasquez and Doe each testified without contradiction that Velasquez could not

get an erection after ejaculating during oral copulation. Doe then testified that, despite

his flaccid penis, Velasquez attempted sexual intercourse from behind her. Despite some

evidence of penetration, Doe's testimony regarding penetration was not consistent: She

testified at least once that she could not feel whether Velasquez penetrated her vagina and

at least twice that she was not sure whether Velasquez penetrated her vagina; and at the

hospital on the night of January 11, she told one of the investigating officers that

Velasquez did not penetrate her and that he only rubbed his penis on the outside of her

vagina.

In response to this evidence, the People refer us to Doe's later testimony in which

she clearly and unequivocally testified that Velasquez penetrated her vagina. However,

27
we merely review the record for substantial evidence; we do not weigh the evidence or

make credibility determinations. (Breverman, supra, 19 Cal.4th at p. 177.) Moreover, by

relying on this later testimony by Doe, the Attorney General impliedly confirms that the

record earlier contains substantial evidence to the contrary. Indeed, this unequivocal

testimony of penetration was elicited during the People's redirect examination — after

Doe's earlier equivocation (on direct and cross-examination) that she was not sure

whether Velasquez had penetrated her and after Doe's earlier testimony (on cross-

examination) that she told an investigating officer Velasquez had not penetrated her.

Thus, if the jury believed (1) Doe merely rubbed his penis on the outside of, but

did not penetrate, Doe's vagina (Velasquez's defense as principal), and (2) Velasquez was

unaware Doe did not consent to the sexual advances of Sandoval (Velasquez's defense as

aider and abettor), then the jury could have acquitted Velasquez of rape in concert yet

still convicted him of assault with the intent to rape. Accordingly, because the record

contains substantial evidence from which a jury could conclude that Velasquez

committed the lesser crime (assault with intent to rape) but not the greater crime (rape in

concert), the trial court erred in failing sua sponte to instruct the jury on the lesser crime.

(Breverman, supra, 19 Cal.4th at pp. 155, 162; People v. Eid (2014) 59 Cal.4th 650, 656.)

The question remains whether this error was prejudicial, since reversal is required

only if the error "resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) We

apply the standard articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson) to

determine whether the failure to instruct on the lesser included offense resulted in a

miscarriage of justice requiring reversal. (People v. Beltran (2013) 56 Cal.4th 935, 955;

28
Breverman, supra, 19 Cal.4th at p. 178.) Under this standard, such error is reversible

only when there is a reasonable probability that the appellant would have received a more

favorable result had the instruction been given. (Breverman, at p. 178; Watson, at

p. 836.) For purposes of this analysis, a "reasonable probability" is one sufficient to

undermine the confidence in the conviction. (Strickland v. Washington (1984) 466 U.S.

668, 694.) "Such posttrial review focuses not on what a reasonable jury could do, but

what such a jury is likely to have done in the absence of the error under consideration."

(Breverman, at p. 177.) In this context, we may consider the relative strength of the

evidence in support of the judgment compared to the relative weakness of the evidence in

support of a different outcome. (Ibid.) The appellant bears the burden of establishing

prejudice. (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.)

With regard to Velasquez as principal, Velasquez argues that the evidence

regarding penetration "was not overwhelming." We disagree. Initially, the jury could not

have believed Velasquez; otherwise, it would have acquitted him entirely, since his

testimony was that there was no penetration because he did not attempt vaginal

intercourse with Doe. Looking next to Doe's testimony, although she did equivocate as

we described ante, once the prosecutor explained to Doe the legal definition of

penetration on redirect, she testified unequivocally that Velasquez penetrated her.11 Doe

11 "[Prosecutor:] You were also asked some questions about whether or not you
were sure the defendant was able to penetrate you, and I want to ask a more specific
question. [¶] If when we ask about penetration we mean any penetration, however
slight, does that make it an easier question for your to answer?
"[Doe:] Yes.
29
explained that by the time she met with the police officer at the hospital, she had been

given medication that made her "fuzzy" and "was confused," and that she was "sure now"

that Velasquez had penetrated her. Also, on January 11, once Doe reported the incident:

based on her first interview with a police officer (which was prior to the interview with a

different officer described in the preceding sentence), the officer testified that Doe told

him she "was certain" Velasquez had penetrated her vagina with his penis;12 and the

nurse who examined Doe at the hospital confirmed that, during the interview, Doe told

her that Velasquez had penetrated her vaginally. Finally — and most persuasively —

when a police officer interviewed Velasquez (having told him she was investigating

allegations by Doe), without qualification Velasquez admitted that he had had "vaginal

sex" with Doe on January 11.13

With regard to Velasquez as aider and abettor, Velasquez suggests that, because

the jury returned not guilty verdicts on counts 3 and 4 (forcible sexual penetration in

concert and forcible sodomy in concert, respectively) and because the jury asked for a

clarification on the aiding and abetting instruction, the jury likely had difficulty finding

"[Prosecutor:] Did the defendant penetrate you, however slightly?
"[Doe:] Yes, he did." (Italics added.)
Consistently, pursuant to CALCRIM No. 1000, the court instructed the jury:
" 'Sexual intercourse means any penetration, no matter how slight, of the vagina or
genitalia by the penis.' " (Italics added.)

12 The officer even showed where in his written report he noted the vaginal
penetration.

13 Velasquez first explained to the officer that Doe initiated the sexual activity with
him and later in the interview that Sandoval invited Velasquez to join him (Sandoval) and
Doe.

30
that Velasquez aided or abetted Sandoval's rape. We disagree. First, counts 3 and 4 had

to do with anal penetration by Sandoval, and the jury could have believed such acts never

took place. With regard to vaginal penetration, Velasquez's only defense was that he was

unaware Doe had not consented to the sex with Sandoval. Velasquez's testimony in this

regard (that he never heard Doe say "no" or otherwise communicate a lack of consent

over the course of the four hours and he did not hear what Sandoval told Doe before

Velasquez joined them) was not credible, and Doe's testimony of her lack of consent was

both credible and overwhelming.14

Because Velasquez did not establish that there is a reasonable probability he

would have received a more favorable result had the instruction on the lesser charge been

given, Velasquez did not meet his burden of establishing prejudice and, thus, reversible

error.

D. The Trial Court Did Not Err in Its Consideration of Velasquez's Two Prior
Convictions of Gang Participation

Velasquez presents two independent arguments based on the court's true findings

of his two prior strike convictions. First, he argues that the court erred by not vacating or

invalidating both prior convictions. Alternatively, he argues that the court abused its

discretion in declining to strike the prior convictions as applicable to count 1 (rape in

concert). The People respond by arguing, first, that the trial court properly refused to

14 In addition to our independent review of the evidence, we note the trial court's
comment that Doe presented "most certainly, by far, the most compelling testimony from
a victim in a sexual assault case" that the court had ever heard.

31
vacate the prior convictions and, second, that Velasquez did not meet his burden of

establishing the court abused its discretion in declining to strike the priors as to count 1.

The trial court did not err in its consideration of Velasquez's prior two strike

convictions.

1. Additional Background

In April 2012, the People filed a two-count criminal complaint against Velasquez

(2012 Complaint), alleging: In count 1, Velasquez was a felon in possession of a firearm

in violation of section 29800, subdivision (a); and in count 2, Velasquez committed street

terrorism in violation of section 186.22, subdivision (a).15 Later in April 2012,

Velasquez pleaded guilty to count 2 (2012 Conviction), and the court dismissed count 1.

At the time of the plea, Velasquez acknowledged that the 2012 Conviction would be a

"strike." The court imposed a sentence of one year four months.

Less than one year later, in April 2013, the People filed another two-count

criminal complaint against Velasquez (2013 Complaint), alleging: In count 1, Velasquez

committed street terrorism in violation of section 186.22, subdivision (a); and in count 2,

Velasquez was a felon in possession of metal knuckles in violation of section 21810.16

15 This offense is also referred to as "gang participation." (People v. Rios (2013) 222
Cal.App.4th 542, 558.)

16 The 2013 Complaint also named Velasquez's brother, Jamerson, charging him
with one count of possession of a controlled substance in violation of Health and Safety
Code section 11377, subdivision (a).

32
In June 2013, Velasquez pleaded guilty to count 1 (2013 Conviction).17 At the time of

the plea, Velasquez acknowledged the 2013 Conviction would be a second "strike." The

court imposed a sentence of one year four months.

Prior to the court trial to determine the truth of the charging allegations that

Velasquez had been convicted of the two prior strikes, Velasquez filed a motion to

invalidate the 2012 Conviction.18 In the motion, Velasquez argued that, in the

"felonious criminal conduct by members of th[e] gang" (§ 186.22, subd. (a)) underlying

the street terrorism conviction in the 2012 Conviction, Velasquez acted alone with no

other gang member.19 This fact was important to Velasquez, because he sought to

17 We assume the court dismissed count 1, but the record on appeal does not contain
a copy of an order of dismissal or court minutes reflecting such dismissal.

18 The three-page document is entitled "Motion to Set Aside Prior Conviction;
Petition for Writ of Error Coram Nobis; Petition for Writ of Habeas Corpus; Motion to
Vacate Judgment of Conviction; Request for Evidentiary Hearing." In one and a half
pages of text with no legal authority as to the procedure being invoked, Velasquez asked
the court "to invalidate" the 2012 Conviction.

19 The street terrorism statute, section 186.22, subdivision (a), provides a criminal
punishment for anyone convicted of "actively participat[ing] 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." (Ibid., italics added.) Velasquez's appellate counsel
tells us the underlying " 'felonious criminal conduct' " in count 1 of the 2012 Complaint
was Velasquez's "lone act of possession of a firearm." However, counsel presents no
record reference or evidence to support the statement, and the arguments of counsel are
not evidence. (People v. Gardner (1969) 71 Cal.2d 843, 849 (Gardner) ["Matters not
presented by the record cannot be considered on the suggestion of counsel in the briefs."];
In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11 [counsel's statements in brief to court are
not evidence]; People v. Wallace (2004) 33 Cal.4th 738, 754, fn. 3 (Wallace) [in § 1385,
subd. (a) proceedings to strike a prior strike conviction, defense counsel's explanation of
33
vacate the 2012 Conviction on the basis that, in People v. Rodriguez (2012) 55 Cal.4th

1125 — an opinion filed after the 2012 Conviction — our Supreme Court held that a

conviction under section 186.22, subdivision (a) requires that the underlying felony be

committed "by at least two gang members." (Rodriguez, at p. 1132.) According to

Velasquez, therefore, since he pled guilty to a crime he did not commit, he was entitled to

have the conviction "invalidate[d]."

The People opposed the motion on the basis that it was an improper collateral

attack on the factual basis underlying Velasquez's plea to the 2012 Complaint.

The court denied the motion, orally citing and quoting from People v. Maultsby

(2012) 53 Cal.4th 296: Because " '[a] guilty plea admits every element of the offense

charged and is a conclusive admission of guilt,' " by pleading guilty, Velasquez

" 'waive[d] any right to raise questions about the evidence, including its sufficiency,' "

underlying count 1 of the 2012 Complaint. (Id. at p. 302.)

The court then held a trial on the truth of two prior strike convictions. After

receiving evidence and hearing the argument of counsel, the court found true the

allegations of the two prior strike convictions that are at issue in this appeal — namely,

the violations of section 186.22, subdivision (a) in 2012 and 2013.20 At sentencing, the

events surrounding defendant's plea not evidence].) We discuss this further at
part III.D.3.a., post.

20 The court also found true other allegations of prior convictions, none of which are
at issue in this appeal.

34
court exercised its discretion under section 1385, subdivision(a),21 and struck the

allegations of the two prior strike convictions as to count 2 only.

2. Law

In In re Madrid (1971) 19 Cal.App.3d 996 (Madrid), three habeas corpus

petitioners challenged their convictions of kidnapping for robbery under section 209. (Id.

at p. 998.) Although each petitioner had pled guilty, between the date of the last plea and

the filing of the three writ petitions, the Supreme Court issued an opinion in which it

interpreted section 209 as requiring proof of an element that, according to each of the

three petitioners, was not present in the underlying criminal case in which he pleaded

guilty. (Madrid, at p. 998.) Significantly, the record in each underlying case supported

each petitioner's contention regarding the element of proof missing in his case. (Id. at

p. 1003.) Based on the facts in the underlying records, the Court of Appeal issued the

requested writ relief, allowing each petitioner to withdraw the guilty plea in his

underlying criminal case. (Id. at pp. 1006-1007.) The Supreme Court agreed with this

reasoning and, citing and relying on Madrid, granted the same relief two years later to a

similarly situated habeas corpus petitioner in In re Crumpton (1973) 9 Cal.3d 463, 467-

469 (Crumpton).

21 "The judge or magistrate may, either of his or her own motion or upon the
application of the prosecuting attorney, and in the furtherance of justice, order an action
to be dismissed. . . ." (§ 1385, subd. (a).) Our Supreme Court has construed this statute
"as permitting a judge to dismiss . . . the allegation that a defendant has previously been
convicted of a felony." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508
(Romero).)

35
 Because Velasquez did not tell the trial court — and does not suggest to us on

appeal — the procedural basis on which he brought his motion to invalidate the 2012

Conviction (see fn. 18, ante.), our ability to determine the appropriate standard of review

has been hampered. However, given the basis of our ruling, post, the standard of review

does not affect the outcome.

We review for an abuse of discretion the trial court's decision not to strike the

priors on count 1. (Romero, supra, 13 Cal.4th at p. 504.) In so doing, we consider only

whether "the ruling in question 'falls outside the bounds of reason' " in light of the

"applicable law and the relevant facts." (People v. Williams (1998) 17 Cal.4th 148, 162

(Williams) [review of order vacating prior strikes under § 1385, subd. (a)].)

3. Analysis

a. Order Denying Motion to Invalidate 2012 Conviction

Velasquez's argument that the 2012 Conviction should be invalidated is based on

the factual premise that Velasquez acted alone with no other gang member. Despite

appellate counsel's statement that "the record clearly shows [Velasquez] did not commit

that crime," the record on appeal contains no evidence of any facts related to the acts

underlying the 2012 Conviction. More specifically, Velasquez's motion did not contain

any evidence; and at the hearing on the motion, counsel did not proffer any evidence,

merely stating that he "would like" the court to conduct an evidentiary hearing.22 The

22 To the extent trial counsel asked for an evidentiary hearing and the court only
entertained oral argument, Velasquez does not raise any issue on appeal.

36
arguments of counsel — both in the trial court and on appeal — are not evidence.

(Gardner, supra, 71 Cal.2d at p. 849; Wallace, supra, 33 Cal.4th at p. 754, fn. 3.)

Notably, in Madrid, each of the three petitioners presented a reporter's transcript of

proceedings in which evidence of the facts underlying the offense to which the petitioner

pled guilty was presented to the trial court in each of the habeas corpus proceedings.

(Madrid, supra, 19 Cal.App.3d at p. 1002 [two preliminary hearing transcripts and one

grand jury proceeding transcript].) Likewise, in Crumpton, the habeas corpus petitioner

presented evidence of the underlying facts contained in a reporter's transcript from a

preliminary hearing. (Crumpton, supra, 9 Cal.3d at p. 467.) Thus, whereas in Madrid

and Crumpton the records contained evidence of facts that each petitioner did not commit

the crime to which he pled guilty, here there is no record that Velasquez did not commit

the crime to which he pled guilty.

" '[T]he judgment challenged on appeal is presumed correct, and it is the

appellant's burden to affirmatively demonstrate error.' " (People v. Cardenas (2015) 239

Cal.App.4th 220, 227.) Our review is "limited to consideration of the matters contained

in the appellate record," and in this regard "[t]he appellant has the burden of furnishing an

appellate court with a record sufficient to consider the issues on appeal." (People v.

Neilson (2007) 154 Cal.App.4th 1529, 1534.) In People v. Siegenthaler (1972) 7 Cal.3d

465 (Siegenthaler), for example, in an appeal from a denial of a motion to set aside an

information, a defendant who "failed to include as part of the record on appeal the

transcript of the preliminary hearing . . . [was] precluded from seeking appellate review

of the denial of the motion." (Id. at p. 469.) Based on the record in the present appeal,

37
the only evidence (as opposed to argument) that was before the court was Velasquez's

guilty plea on which the trial court based its finding that Velasquez suffered a strike

conviction.

As in Siegenthaler, therefore, because Velasquez failed to provided evidence of

the facts he contends entitled him to have the 2012 Conviction invalidated, he is

precluded from seeking appellate review of his motion. For this reason, Velasquez has

not met his burden of establishing that the trial court erred in denying his motion to set

aside the 2012 Conviction.

In his opening brief, Velasquez also raises the issue of his entitlement to invalidate

the 2013 Conviction. Because trial counsel did not include the 2013 Conviction in his

motion to invalidate the 2012 Conviction, appellate counsel presents the issue in the

context of constitutionally ineffective assistance of trial court. Once again, however,

because Velasquez has failed to provide evidence of the facts he contends might entitle

him to have the 2013 Conviction invalidated, any error in failing to include the 2013

Conviction in the motion is necessarily harmless. (Watson, supra, 46 Cal.2d at p. 836.)

Thus, we have no reason to consider whether trial counsel was ineffective.

In the event Velasquez attempts to invalidate either the 2012 Conviction or the

2013 Conviction in subsequent proceedings, we express no opinion on the procedure he

may employ or the merits of any argument he may raise.

38
 b. Order Denying Romero Motion to Strike Prior Convictions on
Count 1

Velasquez argues that the trial court abused its discretion in not striking the 2012

Conviction or the 2013 Conviction on count 1. He suggests that because the trial court

ruled that the prior strikes were both " 'purely status offenses' "23 and "not criminalized

by section 186.22, subdivision (a)," Velasquez is "squarely outside the spirit of the Three

Strikes law." We disagree.

When a trial court is presented with the consideration whether to strike a prior

strike conviction, the court "must consider whether, in light of the nature and

circumstances of his present felonies and prior serious and/or violent felony convictions,

and the particulars of his background, character, and prospects, the defendant may be

deemed outside the scheme's spirit, in whole or in part, and hence should be treated as

though he had not previously been convicted of one or more serious and/or violent

felonies." (Williams, supra, 17 Cal.4th at p. 161.) The trial court here did exactly what is

required of it. In declining to strike the two priors as to count 1, the court: began its

analysis by expressly stating that it considered Williams and Romero and was exercising

its discretion in the "further . . . interest of justice"; found that the convictions in the

present case were for "violent and serious crimes" and the underlying offenses had a

considerable impact on a victim; detailed at least a dozen convictions from Velasquez's

extensive criminal history other than the two strike convictions and the jury verdicts in the

23 Apparently the trial court accepted trial counsel's offer of proof as to the facts
underlying the two convictions.

39
present case, which presented "a pretty dismal example of citizenship" and "d[id] him

considerable harm";24 noted that the two prior strikes came close in time25 and did not

occur during "an aberrant period of lawlessness"; and, as to Velasquez's character and

future prospects, found that Velasquez had no special education or training that would

allow him to compete in today's job market for anything other than a low level position.26

Based on those findings, the court's ruling was not arbitrary or beyond the bounds of

reason.

Although Velasquez acknowledges the Williams factors we quoted ante,

(Williams, supra, 17 Cal.4th at p. 161), he does not attempt to establish how the court's

analysis and application of these factors were inappropriate or erroneous in this case.

Instead, as we mentioned, Velasquez contends only that, because the court found both

prior strikes were " 'purely status offenses,' " the court erred in not striking them on the

basis they are "squarely outside the spirit of the Three Strikes law" — without telling us

what he contends is "the spirit of the Three Strikes Law" or providing us with legal

authority supporting the argument that the court's failure to strike the priors is outside that

24 These offenses included assault with a deadly weapon, battery and burglary as a
juvenile; and as an adult, they included burglary, petty theft, public intoxication, failure
to appear, possession of stolen property, assault with force, felon in possession of a
firearm, and numerous probation and parole violations over the years. Velasquez was 29
years old at the time of his arrest in this case.

25 The 2013 Complaint was filed less than a year after the 2012 Complaint.

26 Velasquez did not finish high school and never held a job for any appreciable
period of time.

40
"spirit." As such, Velasquez did not meet his burden of establishing an abuse of

discretion.

The trial court did not err in declining to strike either the 2012 Conviction or the

2013 Conviction for purposes of sentencing Velasquez on count 1.

E. Velasquez Did Not Meet His Burden of Establishing Reversible Error in
Sentencing

Velasquez argues that the judgment should be reversed and the matter remanded

for resentencing because the total sentence on both counts is inconsistent with the court's

oral pronouncement of the total sentence.27 The People's position is that, because the

clerk's and reporter's transcripts are consistent with the sentences on each count, the court

merely made a mathematical error in totaling Velasquez's prison time, and there is no

need for resentencing.

Under the totality of the circumstances, Velasquez is not entitled to be

resentenced.

1. Additional Background

The court conducted two sentencing hearings — one on October 3 and one on

October 21. The minutes from the October 3 hearing do not reflect a complete sentence

and conclude with the entry, "[T]he defendant is not properly sentenced." At the

October 21 hearing, the court explained that at the prior hearing the court may have failed

to formally pronounce a sentence on count 1, and both counsel agreed. Accordingly, the

27 Although the sentence contained other terms and conditions, throughout this part
of the opinion, the only portion of the sentence at issue — and, thus, the only portion of
the sentence we will discuss — is the prison term.

41
court sentenced Velasquez at the October 21 hearing, as follows: On count 1, the court

orally pronounced an indeterminate sentence of 39 years to life, and on count 2, the court

orally pronounced a sentence of 17 years.28 Consistently, these identical prison terms

are reflected in the clerk's minutes and the abstract of judgment for each count.

In addition to orally pronouncing a sentence on each of the two counts on

October 21, the court stated, "So combining the counts 1 and 2 . . . , total commitment is

46 years to life." (Italics added.) Inconsistently, the clerk's minutes reflect: "Total state

prison time is 56 years to life." (Italics added.)

2. Law

Velasquez relies on the concept that the abstract of judgment is not the judgment;

it "may not add to or modify the judgment it purports to digest or summarize." (People v.

Mitchell (2001) 26 Cal.4th 181, 185.)

3. Analysis

Velasquez's position is that, because the court orally stated the total sentence "is

46 years to life," we cannot determine whether this total sentence influenced the trial

court's discretionary sentencing choices on each of the individual counts; and, if so, then

the discretionary sentencing on the two counts would be wrong, since the apparent

exercise of the court's discretion totaled 56 years, not 46 years. Velasquez describes the

issue as a clerical error in not accurately recording in the court's minutes the court's oral

pronouncement of the total sentence — a clerical error that cannot be corrected without a

28 As we explain post, each of these sentences includes all enhancements.

42
remand for resentencing. The People's position is that the court clearly exercised its

discretion as required as to each count, and the court merely "misspoke" in stating the

total commitment was 46 years instead of 56 years (39 + 17).

At the October 3 hearing, the court exercised its discretion as follows as to

count 2:29

"I . . . do also recognize that I have the ability obviously, under Penal Code
Section 1385, to dismiss or strike allegations, and I am going to do so as to
Count 2. I am going to strike both strikes as to Count 2. And the reason I
am going to do that is that . . . Mr. Velasquez was not actively engaged in
conduct which would constitute theft or a crime which would harm a
personal victim . . . , although I will note he did possess a firearm in one of
the prior strikes. There was no indication he was doing anything other than
carrying it. So to this [count], I think Mr. Velasquez is partially outside the
spirit of the Three Strikes statute, and that's why I am striking both strikes
as to Count 2.

"[T]he sentences are mandated to be consecutive, so Count 2 will be
consecutive to Count 1. . . . [T]he primary support for that is Penal Code
section 1170.12 and, I believe it is, (a)(7). In case there is other support
needed for that, in an exercise of discretion, I would find that the defendant
has not shown remorse and also that there is reasonable likelihood that, if
not imprisoned, he will continue to be a danger to others as an independent
justification for [a] consecutive sentence.

"There is a need to make a sentencing choice as to which term to apply. It's
not a one-third the mid. It is a full consecutive term. So I am choosing the
mitigated term of five years. And I am doing that . . . . Relying on
circumstances in mitigation, . . . the defendant played a minor role in the
offense, and I thought that there was some indication that there was a level
of intoxication involved.

"And I fully realize that to strike a strike is an extraordinary exercise of
discretion, . . . and I can only say I have stated my reasons.

29 The punishment for oral copulation in concert, as alleged in count 2 is
"imprisonment in the state prison for five, seven, or nine years." (§ 288a, subd. (d)(1).)

43
 "The sentence as to Count 2, therefore, will be[:] [¶] . . . [¶] [A] mitigated
term of five years is imposed to be consecutive with an enhancement for a
prior serious felony conviction pursuant to Penal Code section 667(a)(1), a
period of five years, the second five years enhancement to be consecutive,
same serious felony prior under 667(a)(1), a period of five years, and two
one-year state prison priors under 667.5(B). So the total as to Count 2 will
be 17 years." (Italics added.)

Also at the October 3 hearing, the court explained that it placed in the court's file a

written copy of all of its "sentencing choices." As to count 2, the written choices are

consistent with both the court's oral statements quoted ante and the court's oral statements

in the exercise of its discretion on Velasquez's Romero motion (in which the court struck

the two prior strikes) described ante at part III.D.3.b.30 As to the sentencing on count 1,

the court's detailed written explanation is as follows:31

"Sentencing as to Count 1:

"1. The greatest minimum sentence is option 1, 3x9 years, the aggravated
term for P.C. 264.1, for a total of 27 years to life.

"2. The upper term of 9 years is selected for the following reasons:

"a. The defendant was an active participant in the commission of the
crime.

30 We note that, at the August 29 hearing at which the court heard arguments on
Velasquez's Romero motion, when the court mentioned the sentence it had been
considering, the court estimated the total term would be "around 60 some years."

31 The punishment for rape in concert, as alleged and proven in count 1, is
"confinement in the state prison for five, seven, or nine years." (§ 264.1, subd. (a).)
Based on the true findings of the 2012 Conviction and the 2013 Conviction and the
selection of the upper term for the section 264.1, subdivision (a) conviction, the
punishment "shall be an indeterminate term of life imprisonment with a minimum term of
the indeterminate sentence . . ." trebled. (§§ 1170.12, subd. (c)(2)(A)(i), 667,
subd. (e)(2)(A)(i).)

44
 "b. The defendant inflicted emotional injury.

"c. The defendant's record begins as a minor and has continued
rather consistently until his conviction in this case indicating a
pattern of regular criminal conduct.

"d. The defendant's performance on probation and parole has not
been satisfactory. He was on a grant of parole at the time he
committed the crime for which he has been convicted.

"For purposes of making this selection the court finds no
circumstances in mitigation.

"3. Priors:

"a. [Two] P.C. 667(a) priors were found true and defendant will
serve an additional determinate term of 5 years for each such prior
conviction, consecutive to each other, consecutive to the life term,
and consecutive to Count 2.

"b. [Two] P.C. 667.5(b) [priors] were found true and defendant will
serve an additional determinate term of 1 year for each such prior
conviction, consecutive to each other, consecutive to the life term,
and consecutive to Count 2.

"4. The total term for Count 1 is 39 years to life." (Italics added.)

The written explanation also contains a notation at the end, "[t]otal commitment is 46

years to life."

At the October 21 hearing, the court confirmed the October 3 exercise of its

discretion communicated to counsel on count 1:

"THE COURT: Well, I know I gave my reasons for the way I exercised my
discretion.

"[DEFENSE COUNSEL]: Correct. [¶] . . . [¶] Well, I have 39 years on
count 1. Does that . . . conform with the Court?

"THE COURT: Yes."

45
The court then confirmed that it had arrived at the 39-year figure, as follows: "[T]he

Court impos[ed] a nine-year-high term, tripled, by virtue of the three-strike law, to

27 years. Plus an additional 10 for each of the 667(A) prior serious felonies, plus two,

one-year enhancements for a prior prison term, total 39." (Italics added.) The court

continued: "I've already expressed why I chose the terms that I did and why I made my

decisions with respect to denial of probation and choosing aggravated terms [on count 1]

and sentencing consecutively between counts 1 and 2." The court then repeated the

calculations of the two prison terms, as follows:

"So as to count 1, Penal Code section 264[.]1, rape in concert, total 27 years
to life. [¶] Consecutive to that, state prison prior under 667(a), which
w[as] found true, five years, that will . . . run consecutive to count 1; the
second 667[(a)] prior found true, five years. That will run consecutive to
the . . . first 667(a) prior and to count 1. [¶] There are two state prison
priors under 667[.]5 sub[division] (b). [E]ach is one year consecutive to
count 1, each consecutive to each other, each consecutive to the two 667(a)
priors. Total term for count 1 is 39 years to life.

"And I have already sentenced as to count 2. I'm not going to repeat that.
[¶] But for count 2, the total term of imprisonment is 17 years. And that
was all determinate time. All determinate time will [be] served first,
followed by the indeterminate time. The . . . period of imprisonment may
be followed by a period of parole to life." (Italics added.)

Finally, the court orally stated, "So combining the counts 1 and 2 and the applicable

enhancements . . . , total commitment is 46 years to life."

From our detailed review of the record, the totality of the circumstances leads to

only one conclusion: the trial court intended to sentence Velasquez to prison for a

determinate term of 17 years on count 2 and an indeterminate term of 39 years to life on

count 1; the court merely miscalculated the total years of commitment by incorrectly

46
adding 17 and 39 to reach 46 (instead of 56, which was much closer to the court's original

estimate of "60 some years").

The court thoroughly and properly exercised its discretion, as required, in

sentencing Velasquez on each count. Contrary to Velasquez's speculation, there is no

indication or reason to suspect that the trial court's understanding of the total commitment

— whether 46 or 56 years — influenced the exercise of the court's discretion in

sentencing Velasquez on each of the individual counts. Indeed, Velasquez does not

contend either (1) that the court abused its discretion or otherwise erred in sentencing him

on either count, or (2) that an exercise of discretion or legal duty was triggered in the

court's calculation of the total commitment.

Accordingly, Velasquez did not meet his burden of establishing reversible error

entitling him to be resentenced.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

47