Filed 9/17/26 P. v. Velasquez CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065116
v. (Super. Ct. No. 23NF2832)
FRANK JOHN VELASQUEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Elizabeth G. Macias, Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Collette C. Cavalier and Ksenia Gracheva, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant Frank John Velasquez challenges his conviction for
street terrorism at the second phase of a bifurcated jury trial. He claims his
acquittal of attempted murder and assault with a deadly weapon at the first
phase of trial barred his second-phase conviction, citing double jeopardy and
issue preclusion. Alternatively, he contends the trial court abused its
discretion by declining to strike his prior strike offenses at sentencing.
We conclude neither double jeopardy nor issue preclusion barred
the street terrorism conviction. And we find no abuse of discretion by the trial
court. We therefore affirm.
FACTS
I.
INFORMATION AND FIRST PHASE OF TRIAL
The Orange County District Attorney charged Velasquez with
attempted murder, assault with a deadly weapon, and street terrorism. The
information also alleged that Velasquez had seven prior strike convictions,
including four serious felony convictions.
The trial court bifurcated trial on the street terrorism count, with
the attempted murder and assault with a deadly weapon to be tried first and
the street terrorism charge to follow. (See Pen. Code, § 1109, subd. (b) [street
terrorism count “shall be tried separately from all other counts that do not
otherwise require gang evidence as an element of the crime”].)1 A jury was
empaneled and sworn and the matter proceeded to the first phase of trial.
According to the evidence at the first phase, Velasquez was a
member of the Family of Latin Kings gang. The victim—known as “Puppet”—
was a former member of the same gang who had been marked for assault
1 All statutory references are to this code.
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after dropping out. Before the attack, Velasquez exchanged text messages
with a woman who repeatedly reported “Puppet[’s]” movements in and
around a nearby park.
Video evidence showed Velasquez traveling toward the park with
a group of men shortly before the attack. Near the park, he was seen
speaking with members of the group and pointing toward the park before the
group proceeded in that direction. Shortly after, members of the group
confronted Puppet and stabbed him over 30 times, causing life-threatening
injuries. After the attack, Velasquez wrote the woman who had messaged
him, instructing her to delete her messages.
In hospital interviews, Puppet identified Velasquez as one of his
attackers. He recanted that identification at trial.
Velasquez testified he was in the area only to conduct a drug deal
and was uninvolved in the stabbing. He claimed his text messages before the
attack related to a different man with the same moniker and concerned the
drug deal.
After the close of evidence, the trial court instructed the jury on
the elements of attempted murder and assault with a deadly weapon. It did
not instruct on aiding-and-abetting liability for either offense. And the
prosecution argued only that Velasquez personally participated in the crimes:
it asserted the evidence clearly showed that Velasquez “was right there
stabbing [Puppet] multiple times resulting in those horrific injuries that we
saw.”
The jury acquitted Velasquez of attempted murder and assault
with a deadly weapon but convicted him of the lesser included offense of
simple assault (a misdemeanor).
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II.
SECOND PHASE OF TRIAL
During the second phase of trial, held before the same jury, the
defense moved to dismiss the street terrorism count. Counsel claimed this
charge could not be proven because it required proof that Velasquez
promoted, furthered, or assisted in felonious criminal conduct by members of
his gang, yet the jury had acquitted him of the underlying felonies—
attempted murder and assault with a deadly weapon. (See § 186.22, subd.
(a).) Counsel asserted that trying the street terrorism count based upon those
predicate felonies would be double jeopardy. The prosecution responded that,
because the first jury had been instructed only on direct-perpetrator liability,
it intended to prove in the second phase that Velasquez aided and abetted the
predicate felonies. The trial court denied the motion.
The prosecution presented evidence about Velasquez’s
involvement with the gang, the gang’s criminal activities, and how the attack
on Puppet would benefit the gang.
The trial court instructed the jury under CALCRIM No. 1400
that the charge required proof that Velasquez had willfully assisted,
furthered, or promoted felonious conduct by members of the gang by aiding
and abetting attempted murder or assault with a deadly weapon. It
instructed the jury on the meaning of aiding and abetting. The jury convicted
Velasquez of street terrorism.
III.
SENTENCING
At sentencing, the defense urged the trial court to strike
Velasquez’s seven prior strike convictions and his four serious-felony priors.
Counsel noted that the seven strike convictions arose from only three cases
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and had all been suffered when Velasquez was between 22 and 25 years old,
with the most recent occurring 11 years earlier. Counsel also argued several
mitigating factors: Velasquez’s role in the attack was minor; he became blind
as a young adult and was homeless; he had a traumatic childhood, marked by
abuse and neglect; he had been shot multiple times in the past; he suffered
from both PTSD and drug addiction; and he had previously completed
probation successfully.
The trial court struck all four of Velasquez’s serious-felony priors
but declined to strike his prior strike convictions, thoroughly explaining its
reasoning. Alongside the mitigating circumstances identified by the defense,
the court considered Puppet’s serious injuries and Velasquez’s persistent
pattern of serious and violent criminal conduct spanning more than a decade.
His criminal record included drug, firearm, violent, and gang-related
offenses. Despite receiving multiple custodial sentences ranging from 60 days
in jail to 12 years in state prison, he continued to reoffend. The court
concluded Velasquez fell within the spirit of the three strikes law. It
sentenced him to 25 years to life.
DISCUSSION
I.
THE STREET TERRORISM CONVICTION IS VALID
Neither double jeopardy nor issue preclusion barred Velasquez’s
street terrorism conviction. We review the application of those doctrines to
undisputed facts de novo. (People v. Davis (2011) 202 Cal.App.4th 429, 438
[double jeopardy]; People v. Jimenez (2024) 103 Cal.App.5th 994, 1004 [issue
preclusion].)
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The double jeopardy doctrine does not apply to Velasquez because
he was not “twice put in jeopardy” for the same offense.2 (U.S. Const., 5th
Amend.) The Double Jeopardy Clause “protects against a second prosecution
for the same offense after acquittal” and “against a second prosecution for the
same offense after conviction.” (People v. Izaguirre (2007) 42 Cal.4th 126, 133
(cleaned up).) It does not prevent the state from prosecuting greater and
lesser included offenses “in a single prosecution.” (Ohio v. Johnson (1984) 467
U.S. 493, 500; accord, United States v. Jose (9th Cir. 2005) 425 F.3d 1237,
1241, fn. 2.)
Velasquez was subject to a single prosecution, based on a single
information, before a single jury. For all charges against him, jeopardy
attached at the time the jury was sworn in, even though the court deferred
the presentation of evidence on the street terrorism charge. (Martinez v.
Illinois (2014) 572 U.S. 833, 839 [“‘jeopardy attaches when the jury is
empaneled and sworn’”].) When the jury acquitted Velasquez of the
attempted murder and aggravated assault charges, jeopardy did not
terminate as to the bifurcated street terrorism charge. Rather, because that
proceeding had “‘not run [its] full course,’” Velasquez remained subject to
2 As greater and lesser included offenses, the street terrorism
charge and the underlying attempted murder and aggravated assault charges
are treated as the same offense for double jeopardy purposes. “[C]ourts have
treated greater and lesser included offenses as the same offense for double
jeopardy purposes . . . .” (Currier v. Virginia (2018) 585 U.S. 493, 500.) And
this principle applies even when, as here, the lesser offense is merely one of
multiple predicates the greater offense can rest on. (Harris v. Oklahoma
(1977) 433 U.S. 682 [felony-murder conviction precluded later prosecution for
underlying robbery]; United States v. Hatchett (7th Cir. 2001) 245 F.3d 625,
633 [“one offense need not invariably be a lesser included offense of another
in order for the two to be deemed the same offense”].)
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“continuing jeopardy.” (Justices of Boston Municipal Court v. Lydon (1984)
466 U.S. 294, 308.)
Section 1109, which provides for the bifurcated trial of street
terrorism charges, “concerns the order of presentation of evidence at trial.”
(People v. Burgos (2024) 16 Cal.5th 1, 20, fn. 5.) It does not affect when
jeopardy attaches or terminates. Thus, the second phase was not a second
prosecution and double jeopardy did not bar the trial on street terrorism.
(See, e.g., United States v. Jackson (2d Cir. 2011) 658 F.3d 145, 151 [no
double jeopardy where defendant was convicted of lesser included offense and
retried on deadlocked greater offense].)
This result is consistent with the interests underlying the Double
Jeopardy Clause. The doctrine “recognizes the vast power of the sovereign,
the ordeal of a criminal trial, and the injustice our criminal justice system
would invite if prosecutors could treat trials as dress rehearsals until they
secure the convictions they seek.” (Currier v. Virginia, supra, 585 U.S. at
p. 498.) It is not meant to “pose an insuperable obstacle to the administration
of justice in cases where there is no semblance of these types of oppressive
practices.” (Ibid. (cleaned up).)
The prosecution here engaged in no oppressive practices and
sought no advantage against Velasquez. Instead, the court and the parties
merely followed the procedure prescribed by the Legislature for trying a
street terrorism charge alongside other offenses. That procedure is intended
to benefit defendants by “reduc[ing] the prejudicial impact of gang evidence
and . . . protect[ing] defendants from erroneous conviction.” (People v. Tran
(2022) 13 Cal.5th 1169, 1208.) Nothing about the procedure subjected
Velasquez to the type of repeated prosecution or prosecutorial manipulation
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that the Double Jeopardy Clause is designed to prevent. And Velasquez cites
no case holding that following section 1109 violates double jeopardy.
Issue preclusion does not help Velasquez, either. That doctrine
precludes “relitigation of an ultimate fact” between the same parties in a
subsequent proceeding. (People v. Santamaria (1994) 8 Cal.4th 903, 913.) For
issue preclusion to apply, the issue must be identical to the issue “actually
litigated” and “necessarily decided” in the prior proceeding. (People v. Curiel
(2023) 15 Cal.5th 433, 451–452 (Curiel).) An issue is actually litigated when
it is properly raised, submitted for determination, and determined. (Id. at
p. 452.) In deciding whether issue preclusion applies, courts consider the
entire record, “‘including the pleadings, the evidence, the jury instructions,
and any special jury findings or verdicts.’” (Ibid.) The defendant has the
burden of showing that issue preclusion applies. (People v. Sanchez (2020) 49
Cal.App.5th 961, 980.)
Even assuming issue preclusion can apply within a single
proceeding, Velasquez has not shown that it would apply here. He argues
that the first-phase acquittals resolved “the issue of [his] culpability for
attempted murder and assault with a deadly weapon.” But issue preclusion
applies to “ultimate fact[s],” not to a defendant’s overall culpability for an
offense. (Santamaria, supra, 8 Cal.4th at p. 913.) Velasquez identifies no
ultimate fact that was actually litigated and necessarily decided in his favor
at the first trial. Although he cites several cases involving issue preclusion,
he makes no attempt to explain how they apply here, and we therefore do not
address them.
Nor do the verdicts establish any fact that would preclude the
second-phase conviction. The acquittals show only that the prosecution failed
to prove beyond a reasonable doubt that Velasquez committed attempted
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murder or assault with a deadly weapon as the direct perpetrator. They do
not reveal what factual issue produced the acquittals. More importantly,
because the jury was never instructed on aiding-and-abetting liability, that
issue was not “actually litigated,” let alone “necessarily decided” in his favor.
At the second phase, by contrast, the jury was instructed that the
street terrorism charge could be established if Velasquez willfully promoted,
furthered, or assisted felonious conduct by aiding and abetting attempted
murder or assault with a deadly weapon. Because the factual predicate for
that theory was neither litigated nor decided in the first phase, the acquittals
had no preclusive effect.
Velasquez cites cases for the proposition that the prosecution
may not avoid double jeopardy by asserting a different theory. But his
double-jeopardy claim fails for a different reason: he was not subjected to
successive prosecutions. And the theories submitted to the jury for decision
do affect the scope of issue preclusion. The street terrorism conviction is
therefore valid.
II.
THE TRIAL COURT REASONABLY DECLINED TO STRIKE
THE PRIOR STRIKE CONVICTIONS
The trial court was not compelled to strike Velasquez’s prior
strike convictions. We review the trial court decision for abuse of discretion.
(People v. Carmony (2004) 33 Cal.4th 367, 375.) A trial court abuses its
discretion by declining to strike a prior strike only if the defendant so clearly
falls outside the spirit of the three strikes scheme that no reasonable person
could disagree. (Id. at p. 377.) Only extraordinary circumstances warrant a
finding that a defendant falls outside the spirit of the three strikes scheme.
(Id. at p. 378.) Accordingly, “the circumstances where no reasonable people
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could disagree that the [defendant] falls outside the spirit of the three strikes
scheme must be even more extraordinary.” (Ibid.)
The circumstances here were not so extraordinary. Velasquez’s
criminal history showed a severe and escalating trajectory of criminal
conduct featuring drugs, firearms, violence, and gang activity. He continued
to reoffend after short and lengthy sentences alike. His current offense
continued this trajectory, involving participation in a coordinated gang attack
that caused the victim life-threatening injuries.
To be sure, Velasquez presented mitigating circumstances as
well: He became blind as a young adult, struggled with substance abuse,
PTSD, and homelessness, and endured a difficult upbringing, among other
things. The trial court considered these circumstances. And given his
commitment to gang life and his persistent pattern of serious criminal
conduct, it was entirely reasonable for the court to find the mitigating factors
insufficiently weighty to justify striking his prior strikes.
Velasquez’s citation to People v. Avila (2020) 57 Cal.App.5th 1134
is unhelpful. Unlike the trial court there, nothing suggests the court here
misunderstood the governing law or failed to consider relevant mitigating
factors. (Avila, at p. 1141.) To the contrary, it considered the full record,
weighed mitigation against aggravation, and even decided to strike
Velasquez’s prior serious felonies. But concluding that Velasquez remained
within the spirit of the three strikes scheme fell well within its discretion.
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DISPOSITION
The judgment is affirmed.
SCOTT, J.
WE CONCUR:
DELANEY, ACTING P. J.
GOODING, J.
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