P. v. Velasquez

Filed 5/19/08 P. v. Velasquez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Timothy S. Buckley, Retired Associate Justice of the Court of Appeal, Fifth District. (See Cal. Const., art. VI,  21.)

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

PROCEEDINGS

Appellant, Jefferson Velasquez, was charged in an information filed April 16, 2007, with assault by means likely to produce great bodily injury while confined in a state prison (Pen. Code,  4501).^[1] The information alleged a prior serious felony conviction within the meaning of the three strikes law. After a four-day jury trial, Velasquez was convicted on June 21, 2007, of the offense. In a bifurcated proceeding, Velasquez admitted the prior serious felony conviction.

On July 30, 3007, the trial court sentenced Velasquez to the four-year midterm and doubled the sentence to eight years pursuant to the three strikes law. The court ordered this term to be served consecutively to the term Velasquez was serving when he committed this offense. Velasquez filed a timely notice of appeal.

Velasquezs appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Velasquez was advised he could file his own brief with this court. By letter dated February 4, 2008, we invited Velasquez to submit additional briefing. Velasquez replied with a letter asserting that he never had an opportunity to cross-examine the victim, testimony from prison guards was contradictory, the victim could not identify him, and the charges were [too] high.

FACTS

On August 10, 2006, Manuel Velazquez was working as an observation officer in yard 3B at Corcoran State Prison. Whenever there is an incident, Officer Velazquez has to call the yard down, meaning that he has to order all prisoners down to the ground in a prone position on their stomachs. At 10:45 a.m., there was a fight in the yard between three inmates. All three inmates were Hispanic. Officer Velazquez identified Jefferson Velasquez and codefendant Mendoza as two of the participants in the fight.

Officer Velazquez heard people yelling at each other. Officer Velazquez was on the second story of an observation tower, about 20 to 30 yards away from the inmates involved in the incident. Inmates Velasquez and Mendoza were fighting inmate Solorzano, who was moving backward trying to defend himself.^[2] While Solorzano was on the ground, Velasquez and Mendoza starting kicking Solorzano in the upper torso. The attack lasted about 45 seconds.

Velasquez held Solorzanos legs to prevent him from getting up while Mendoza continued kicking Solorzano. Officer Velazquez called the yard down. Everyone in the yard complied with Officer Velazquezs order, except for Velasquez and Mendoza, who continued fighting. Officer Velazquez, who was armed with a rifle, aimed it in the direction of the fight as he continued to order Velasquez and Mendoza down. Neither inmate responded to Officer Velazquezs commands.

Officer Velazquez remembered that Mendoza looked up at him once while he was pointing his weapon at Mendoza. During an incident, Officer Velazquez would open the gate with access to the yard using an electronic switch. When other officers arrive, Officer Velazquez would then close the gate. Officer Velazquez saw inmates Velasquez and Mendoza removed from the yard. Officer Velazquez went to the program office where inmates are taken after an incident. At the program office, Officer Velazquez got a clear view of Velasquez and Mendoza. There were between 200 and 300 inmates in the yard. The only inmates in the area of the attack were Velasquez, Mendoza, and Solorzano.

Leroy Cordova, a search and escort officer at Corcoran State Prison, was assigned to yard 3B when the incident occurred. Cordova became aware of the incident when he heard the yard observation call for yard down. As Cordova scanned the yard, he saw two inmates striking at another inmate. Cordova identified Velasquez and Mendoza as the two attackers.

Initially, Cordova was 40 to 50 yards from the incident. Cordova saw Velasquez and Mendoza striking Solorzano, who was on his knees, with clinched fists and kicks. The gate leading into the yard was closed. Cordova yelled for it to be opened. Once in was open, Cordova responded to the scene. Cordova was yelling at the inmates to get down. Velasquez complied, moving into a prone position, as Cordova arrived. Mendoza did not comply with Cordovas order. Cordova could watch the incident because there was nothing obstructing his view.

Cordova did not see Solorzano striking back. Cordova believed he was unconscious at that time. When Cordova arrived at the scene, Mendoza finally went down. Cordova grabbed Velasquez by his shirt and pulled him away from the area to prevent him from getting back up and resuming his assault. Cordova handcuffed Velasquez. When Cordova first saw the incident, two inmates were attacking and advancing on a third, who was retreating from their attack. Two other officers present during the incident also testified.

Officer Stephen Babb took pictures of the three inmates involved in the incident right after it happened. Several photographs, admitted into evidence, depicted Solorzanos injuries. Solorzano was taken to see a prison medical assistant. Solorzano suffered trauma and swelling to his head and face. Solorzano had a scratch on his stomach, and abrasions to his elbows, left knee, and back. Solorzano complained of nausea and dizziness.

Velasquez testified that he was in prison for a carjacking in 2005. Velasquez explained he was near the incident when it happened. There were many inmates around and Velasquez was in line to use the dip bars. Velasquez stated he went down when he heard the command to do so. He heard scuffling 15 to 20 yards away. The scuffling came toward Velasquez. Because he was prone, Velasquez did not see what was happening. Velasquez denied striking or kicking anyone during the incident.

DISCUSSION

Velasquez contends he wanted to question the victim. Whether to call a witness is usually a trial tactic within trial counsels control. (In re Avena (1996) 12 Cal.4th 694, 756; People v. Williams (1970) 2 Cal.3d 894, 905; People v. Penrod (1980) 112 Cal.App.3d 738, 750.) The primary issues at trial were whether Velasquez was an assailant and whether the victim suffered serious bodily injury. The jury was instructed on these issues. We fail to see, and Velasquez has not shown, how the examination or cross-examination of the victim would have strengthened the case for the defense. We also note that trial counsels decision not to call the victim as a witness does not appear from this record to have constituted ineffective assistance of counsel.^[3]

Velasquez further argues that testimony from prison guards contained contradictions and the victim could not identify Velasquez as an assailant. We note that there were multiple eyewitnesses to Velasquezs attack who did identify him at trial. It was for the trier of fact, not this court, to resolve contradictions, if any, in the testimony of the witnesses.^[4] (People v. Young (2005) 34 Cal.4th 1149, 1181.)

Finally, Velasquez contends the charges were [too] high. Presumably, he is taking issue that he was charged with a felony violation of section 4501. There was substantial evidence at trial that Velasquez was directly engaged in the beating of the victim, including holding his legs while Mendoza continued his assault, and that the victim suffered very serious injuries as a result of the attack. We conclude there was substantial evidence that Velasquez committed the alleged offense.^[5]

After independent review of the record, we conclude there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

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^*Before Levy, Acting P.J., Cornell, J., and Gomes, J.

^[1] Unless otherwise indicated, statutory references are to the Penal Code.

^[2] Officer Velazquez described inmates Velasquez and Mendoza as aggressors and explained that Solorzano was trying to protect himself.

^[3] The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsels decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must demonstrate a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)

^[4] Velasquez tries to draw negative inferences from these facts, however, on appeal, we draw only those inferences that support the findings of the trier of fact and resolve any conflicts in favor of the judgment. (People v. Perez (1992) 2 Cal.4th 1117, 1124; People v. Massie (2006) 142 Cal.App.4th 365, 373-374.)

^[5] On appeal the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendent guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re James D. (1981) 116 Cal.App.3d 810, 813.)