P. v. Velasquez

Filed 4/12/07 P. v. Velasquez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Wesley R. Mason, Judge. Affirmed.

A jury found Bernardo Velasquez guilty of kidnapping for robbery, robbery and other offenses. His appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the procedural history and facts of the case and possible but not arguable issues, and requesting that this court review the entire record for error. We notified Velasquez of his right to file a brief on his own behalf, but he has not responded. (See People v. Kelly (2006) 40 Cal.4th 106.) We have reviewed the entire record and conclude there is no arguable issue. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At about 9:15 p.m. on April 5, 2005, Hector Fuentes was walking home from school on Sunset Lane in San Ysidro. He saw three men standing by some yellow posts in front of an apartment complex. Fuentes later identified one of the men as Velasquez. Velasquez and his two companions, who were carrying knives, approached Fuentes. Velasquez stated to Fuentes, " 'Hey, kid, what's up?' and 'When I talk to you, I want you to stop and look at me.' " Fuentes tried to keep walking, but Velasquez pushed his shoulder and asked if he had anything of value. Velasquez was showing his knife to Fuentes in a threatening manner and Fuentes was very frightened. Velasquez took Fuentes's wallet, and removed all of Fuentes's money (about $15), his identification card, and his Social Security card.

Velasquez also took bank cards from the wallet and told Fuentes he could use the cards to give him more money. Fuentes told him no because he was in debt. Velasquez responded that if Fuentes did not go with him to the automated teller machine (ATM) and give him more money, the men would go to Fuentes's house and take money from his family and kill them. The men also told Fuentes that if he did not go with them, they would attack him with the knives. Fuentes was afraid for himself and his family and told Velasquez he would withdraw as much money as he could.

The three assailants decided they would take Fuentes to an ATM on San Ysidro Boulevard. Velasquez and one of his accomplices walked on each side of Fuentes. The third man walked behind Fuentes, for a while stabbing Fuentes's backpack with a knife until Velasquez told him to put it away because people would see the knife. The four men turned from Sunset Lane onto a dark street, Alverson Road, where they walked in the middle of the road for about four minutes to San Ysidro Boulevard. On San Ysidro Boulevard, Velasquez spoke to a friend who was passing on a bicycle; Fuentes heard them talking about how they had already robbed some other people who were passing by. There was a lot of traffic on San Ysidro Boulevard, but the men ignored the cars and made Fuentes cross the street through the traffic.

When they arrived at the ATM, Fuentes withdrew $80 and gave the money to Velasquez. The ATM transaction was recorded on film as occurring at 9:36 p.m. The three perpetrators told Fuentes that they had his Social Security and identification cards and if he told anyone about the incident they would go to his home because they knew where he lived. They also stated they would mail his Social Security and identification cards back to him if he did not report the crime. After the three men left, Fuentes called 911. Fuentes's identification card was subsequently used to cross illegal immigrants over the border and his Social Security number was used to apply for credit.

Detective Christopher Kilby testified that around 9:00 p.m. on April 5, 2005, he was part of an undercover surveillance team operating on Sunset Lane regarding a matter unrelated to the current robbery. While on Sunset Lane, Detective Kilby saw Velasquez and two other men standing by a yellow pole in front of a complex. Detective Kilby recognized Velasquez from prior police contacts. Around 9:20 p.m. Detective Kilby saw Velasquez and his companions cross the street and then lost sight of them. About 20 or 30 minutes later, Detective Kilby heard a radio report of a robbery on San Ysidro Boulevard, about three-tenths of a mile away. From the information he received, Detective Kilby suspected that Velasquez may have been involved in the robbery.

Detective Kilby prepared a photographic lineup. On April 8, 2005, Fuentes viewed the lineup and identified Velasquez as one of the robbers. Velasquez also took Detective Kilby to the scene of the robbery. The place where Detective Kilby saw Velasquez and the two companions standing was exactly the same place where Fuentes saw the perpetrators standing before they accosted him.

On April 20, 2005, Velasquez was arrested. At the time of his arrest, the police found a knife with a five-inch fixed blade in Velasquez's jacket pocket and a baggie containing methamphetamine in the lining of his jacket.

At trial, Fuentes testified that he could clearly see Velasquez's face during the robbery; although it was dark there was enough lighting to see; and that he had no doubt Velasquez was the person who robbed him.

Velasquez presented an alibi defense. Velasquez's mother and his sister testified that on April 5, 2005, Velasquez was at his mother's home until around 9:15 or 10:00 p.m. The mother of Velasquez's child testified that on April 5, 2005, she arrived at Velasquez's mother's home around 9:00 p.m., where she spoke with Velasquez until about 10:00 p.m. Velasquez's mother's home was about five to 15 minutes away by car from the scene of the robbery.

A jury found Velasquez guilty of kidnapping for robbery (Pen. Code,^[1] 209, subd. (b)(1)), first degree robbery at an ATM ( 211, 212.5, subd. (b)), and second degree robbery ( 211). The jury found that Velasquez personally used a deadly weapon (a knife) for each of these offenses. ( 12022, subd. (b)(1).) It also found him guilty of attempting to dissuade a witness from reporting a crime ( 136.1, subd. (b)(1)), possessing methamphetamine (Health & Saf. Code,  11377, subd. (a)), and carrying a concealed dirk or dagger ( 12020, subd. (a)(4)).

For the kidnapping for robbery conviction, the court sentenced Velasquez to prison for life with the possibility of parole, plus a one-year enhancement for personal knife use. For the remaining convictions, the court imposed a determinate sentence of seven years, four months. The determinate sentence consisted of a three-year middle term for second degree robbery enhanced one year for knife use, plus consecutive sentences of a two-year middle term for attempting to dissuade a witness ( 1170.15), eight months for possessing methamphetamine (one-third the middle term), and eight months for possessing a dirk or dagger (one-third the middle term). The court stayed a four-year middle term sentence for first degree robbery with the one-year knife use enhancement. ( 654.)

DISCUSSION

Appellate counsel set forth the following possible but not arguable issues. Regarding the convictions, the possible issues were: (1) whether the trial court abused its discretion in failing to disclose records during its in camera review of Detective Kilby's personnel records in response to Velasquez's Pitchess^[2]motion; (2) whether the trial court abused its discretion in denying Velasquez's Marsden^[3]motions for new counsel and day-of-trial Faretta^[4]motion for self-representation; (3) whether defense counsel was ineffective for failing to challenge the photographic lineup as impermissibly suggestive; (4) whether there was substantial evidence to support each of the convictions and the personal knife use enhancements; and (5) whether the trial court abused its discretion in admitting evidence about Velasquez's statement about other robberies. Regarding the sentence, the possible issues were: (1) whether imposition of sentence for both second degree robbery and kidnapping for robbery violated section 654; (2) whether the trial court erred in imposing a full term one-year sentence enhancement on the indeterminate term; and (3) whether a life sentence with the possibility of parole for the kidnapping for robbery conviction is cruel and/or unusual punishment.

In performing our independent review of the record, we ordered the trial court to transmit to us under seal the personnel records examined in camera by the court for the Pitchess request. We have examined these records, and found no records relevant to Velasquez's Pitchess request. We have also examined the record for error as to the other issues identified by appellate counsel or any other issues, and conclude there is no arguable appellate issue. Competent counsel has represented Velasquez on this appeal.

DISPOSITION

The judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

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^[1] Statutory references are to the Penal Code unless otherwise specified.

^[2]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

^[3]People v. Marsden (1970) 2 Cal.3d 118.

^[4]Faretta v. California (1975) 422 U.S. 806.