P. v. Veliz

Filed 9/29/08 P. v. Veliz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Armando Veliz appeals from a judgment entered after a jury convicted him of one felony count of possessing an inmate-manufactured weapon. (Pen. Code,  4502, subd. (a).)[1] In a bifurcated court trial, the trial court found true the special allegation that, prior to the commission of the instant offense, Veliz had suffered two prior felony strike convictions for murder. ( 187, subd. (a), 1170.12, subd. (c)(2).) At sentencing, the trial court denied Velizs Romero[2] motion and sentenced him to a term of 25 years to life, to be served consecutive to the two consecutive life terms without possibility of parole that Veliz had been serving prior to the commission of the instant offense.

We appointed counsel to represent Veliz in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Veliz of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from Veliz.

I. Factual and Procedural Background

A. The prosecutions case

On the morning of May 25, 2006, Sergeant Paul Sullivan was on duty at Salinas Valley State Prison, monitoring inmates as they were released to the D-yard area for recreation. Sergeant Sullivan observed Veliz and another inmate walking around the outdoor track in D-yard when two other inmates, Rodrigues and Gullego,[3] exited a separate building. As they exited, Rodrigues and Gullego were searched by correctional officers. Words were exchanged between the two pairs of inmates, Veliz rushed towards Rodrigues and Gullego and began assaulting them with closed fists.

Sullivan ordered all of the inmates to prone out, or lie on the ground, and repeated that command at least three times. When the inmates did not comply, Sullivan pepper-sprayed the group, including Veliz, who was still fighting with Gullego. Sullivan continued to pepper-spray Veliz, who then began to comply with Sullivans directions and prone out. As Veliz began to prone out, Sullivan saw him throw an object that appeared to be a weapon. Sullivan made note of where the object landed and after securing the inmates, he went over and retrieved it. The object was a five‑inch long piece of hardened plastic, one half inch in diameter, sharpened to a point at one end. No usable fingerprints were found on the weapon, although the investigator also testified that the surface of the object was not conducive of producing finger prints.

B. The defense case

The defense called five correctional officers who were present at the time of the altercation as witnesses. Officer Ricardo Briones testified that he was approximately 10 feet away from the inmates during the fight, but did not see Veliz holding an object or throw an object. Briones also stated that Sullivan was closer to Veliz than he was at the time of the fight and, after the fight, saw Sullivan pointing to two weapons on the ground.

Officer Raphael Torres also saw the fight, but did not see anything in Velizs hands, nor did he see him throw anything to the ground. Torres was approximately 20 to 25 feet away from Veliz, but was concentrating on the inmates who were running towards the fight, rather than on the actual combatants.

Officer Matthew Zorrnes was about 15 feet from Veliz, but he was scann[ing] the whole yard[,] . . . to make sure there was no riot. He observed Sullivan using pepper spray on Veliz, but did not see Veliz with anything in his hands nor did he see him throw any objects.

Officer Sammy Picazo witnessed the fight, but did not see Sullivan pepper spray Veliz, nor did he see Veliz throw a weapon. Picazos attention was on another inmate at the time.

Officer Tim Berlingeri was approximately 10 to 15 feet away from the inmates. He witnessed the altercation from the beginning exchange of verbal statements, prior to any punches being thrown. At no time did he see Veliz with an object in his hands, nor did he see Veliz throw an object. Berlingeri also stated that his attention was not focused on Veliz and Sullivan the entire time, and that he did hear Sullivan yell, Weapon! during the incident.

Veliz was charged by information with one count of possessing an inmate‑manufactured weapon. ( 4502, subd. (a).) The information further alleged that Veliz had suffered two prior felony convictions for murder ( 187, subd. (a)) within the meaning of section 1170.12, subdivision (c)(2). Veliz, represented by counsel, entered a plea of not guilty.

At the close of evidence at trial, Veliz waived his right to a jury trial on the special allegation. The jury was instructed and, after deliberating, found Veliz guilty of the charge of possessing an inmate‑manufactured weapon.

At the court trial on the special allegation, the court received into evidence a certified copy of documents from the California Department of Corrections and Rehabilitation, including an abstract of judgment, fingerprint card and photograph, to establish that Veliz had previously been convicted of two counts of murder ( 187, subd. (a)). The court found the special allegation to be true and referred the matter to the probation department for a presentence report.

At sentencing, the trial court denied Velizs Romero motion and sentenced him to a term of 25 years to life, to be served consecutive to the two consecutive life terms without possibility of parole that Veliz had been serving prior to the commission of the instant offense.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.

II. Disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] All further statutory references are to the Penal Code.

[2] People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[3] The exact spelling of this inmates name is unclear. The reporters transcript lists him as Gullego, Gullegos and, on at least one occasion, Gularro.