P. v. Velasquez

Filed 2/5/08 P. v. Velasquez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE COURT:*

Osbaldo S. Velasquez (appellant) appeals from the judgment entered following a jury trial resulting in his convictions of carjacking (Pen. Code, 215; count 2),[1]second degree robbery ( 211; count 3), assault by means likely to produce great bodily injury ( 245, subd. (a)(1); count 4), and assault with a firearm ( 245, subd. (a)(3); count 5). In counts 2, 3, and 4, the jury made findings of the personal use of a firearm ( 12022.5, subd. (a), 12022.53, subd. (b)), and that in counts 2 through 5, the offenses were committed for the benefit of a criminal street gang ( 186.22, subds. (b)(1)(C) & (b)(4)). The trial court sentenced appellant in count 2 to an indeterminate term of life with a minimum term of 15 years, enhanced by a consecutive term of 10 years for the use of a firearm. For the remaining counts, it imposed concurrent determinate terms that did not exceed the term imposed for count 2.

We appointed counsel to represent him on this appeal.

After an examination of the record, counsel filed a Wende Brief (Peoplev. Wende (1979) 25 Cal.3d 436) in which no issues are raised.

On November 2, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.

To date we have received no response.

The trial evidence disclosed that between 10:00 and 10:30 p.m. on March 3, 2006, 18-year-old D.Z. was washing his black 1990 Nissan Maxima behind an apartment complex on Vanowen Street in Los Angeles. He and his family were visiting a family friend at that location. The friends apartment was located in the territory claimed by the Haskell Street Locos gang. D.Z. did not live in the area and was not gang-affiliated.

When D.Z. bent over to clean a wheel, appellant and codefendant George Ayala walked up the driveway. Ayala spray painted Valerio and other Valerio Street gang graffiti on the apartment complexs dumpster and fence. At the same time, appellant rigorously questioned D.Z. about his gang affiliation and accused him of Haskell Street membership, which D.Z. denied. Appellant accused D.Z. of assaulting a fellow gang member, wanted to know whether D.Z. had money, and reached for D.Z.s pocket. When D.Z. resisted, appellant punched D.Z. in the face, and the youths started fighting. D.Z. knocked appellant to the ground, and Ayala walked over and shoved D.Z.

Appellant got up and put a nine-millimeter handgun to D.Z.s temple. He then punched D.Z. again. At gunpoint, appellant stole D.Z.s wallet and D.Z.s two cellular telephones. Appellant asked for the keys to the Maxima, and Ayala found them in the Maximas ignition. At gunpoint, threatening to kill D.Z., appellant ordered D.Z. into a nearby laundry room, and Ayala and appellant drove off in the Maxima.

D.Z.s mother immediately telephoned 911, and D.Z. and an older family friend drove the area looking for the Maxima. At approximately 10:40 p.m., two Los Angeles police officers drove by the Maxima, which Ayala had pulled to the curb on Saticoy Street. At the same time, the officers heard the police broadcast that followed the mothers 911 call. Ayala drove off, and the officers pursued the Maxima to Valerio Street. Ayala drove too fast and tried to make a turn, and the Maxima jumped a curb and turned over. Appellant and Ayala were arrested. D.Z.s wallet was inside the Maxima, and appellant had D.Z.s cellular telephones in a pants pocket.

A gang officer testified about relevant gang culture and mores on the issue of the alleged gang enhancement. The officer testified that the Valerio Street gang was a criminal street gang that employed distinctive signs and symbols and that two of its members had recently been convicted of criminal offenses enumerated in section 186.22. The gang officer opined that the charged criminal conduct was committed for the benefit of the gang.

Appellant did not testify.

Ayala, whose gang moniker was Pelon, testified that he and appellant, a fellow Valerio Street criminal gang member, went to Vanowen Street to meet a girl named Claudia, who was appellants friend. When they got there, Ayala did a lot of tagging along Vanowen Street with blue and red spray paint. Claudia never met them at the location as planned. Ayala claimed that he became panicky because he was afraid that he and appellant would be discovered in rival Haskell Street Locos territory. He acknowledged that crossing out rival gang graffiti, as he did, could result in gang retaliation.

Ayala said that because he was afraid, he started looking inside parked cars to find a way to get out of there. He admitted that he stole the Maxima. He explained that he found the black Maxima in a carport area. Keys were in the ignition, and he drove the car off.

Ayala testified that appellant only reluctantly accompanied him, and later, on Saticoy Street, appellant wanted him to abandon the car. Ayala said that he had never seen D.Z. before, D.Z. was nowhere to be seen when he stole the Maxima, and he and appellant did not have a gun. He also denied knowing that he was being followed by the police until he heard the police units siren. He admitted that the tagging he did on Vanowen Street benefitted his gang.

In rebuttal, the detective who conducted the postarrest interview of Ayala testified that Ayala had asked her what constituted carjacking, and she told him. Ayala then replied that he was good for a grand theft auto. He also told her that he was the person who had sprayed the Valerio graffiti behind the apartment complex.

We have examined the entire record and are satisfied that appellants attorney has fully complied with his responsibilities and that no arguable issues exist. (Peoplev. Wende, supra, 25 Cal.3d at p. 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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* BOREN, P. J., DOI TODD, J., CHAVEZ, J.

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