People v. Velasco
185 Cal. Rptr. 3d 94
Cal. Ct. App.2015Background
- In November 2010 Robert Frank Velasco (a documented member of Puente 13) assaulted Marvin Bransford with a handgun during an attempt to collect $40 allegedly owed to Brenda de la Paz; de la Paz is a member of the 18th Street gang.
- Velasco was charged and convicted of attempted first degree robbery, assault with a firearm, possession of a firearm by a felon, and street terrorism (Pen. Code § 186.22(a)); jury found not guilty of first degree burglary and returned not-true or hung gang findings on other allegations.
- Velasco admitted a prior strike, a prior serious felony, and a prison prior; he was sentenced to 28 years 8 months.
- The prosecution presented gang expert testimony establishing Puente 13 and 18th Street gang characteristics; evidence showed Velasco’s Puente 13 membership and de la Paz’s 18th Street membership, and testimony that different gangs sometimes cooperate in the high desert.
- The central legal dispute on appeal (published portion) concerned whether § 186.22(a) requires the defendant to promote/further/assist felonious conduct by members of the defendant’s own gang (as opposed to any gang member, including members of another gang).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for street terrorism (Pen. Code § 186.22(a)) | The statute requires only that the defendant act with other gang members; Velasco acted with de la Paz so § 186.22(a) is satisfied | Velasco argued § 186.22(a) requires the felonious conduct be by members of the defendant’s own gang; no evidence he committed a felonious act with another Puente 13 member | Reversed conviction for street terrorism: § 186.22(a) requires the defendant to promote/further/assist felonious conduct by members of the defendant’s gang (i.e., the same gang), and the record lacks evidence of felonious conduct committed with another Puente 13 member. |
| Whether count 1 must be reduced to second degree robbery under § 1157 | People argued the attempted first degree robbery verdict stands | Velasco argued the verdict must be reduced to second degree robbery | Court rejected Velasco’s claim in the unpublished portion and affirmed the conviction on count 1. |
| Whether sentence on counts 4 and 5 should have been stayed under § 654 | People supported full sentence | Velasco argued portions of his sentence on counts 4 and 5 should be stayed under § 654 | Court found other claims lacked merit in the unpublished portion but did not resolve the § 654 stay claim for count 5 because it reversed the street-terrorism conviction and vacated count 5 sentence. |
Key Cases Cited
- People v. Rodriguez, 55 Cal.4th 1125 (interpreting § 186.22(a) as requiring felonious conduct by at least two gang members and rejecting application where defendant acted alone)
- People v. Albillar, 51 Cal.4th 47 (discussing whether underlying felony must be gang related under STEP Act)
- People v. Lamas, 42 Cal.4th 516 (setting out elements of § 186.22(a))
- People v. Ortega, 145 Cal.App.4th 1344 (discussing gang subsets and proving which subset participated)
- People v. Gardeley, 14 Cal.4th 605 (role for gang expert testimony where gang culture is outside jurors’ common experience)
- People v. Steele, 27 Cal.4th 1230 (standard of review for sufficiency of the evidence)
Disposition: Reversed conviction under count 5 (street terrorism) and vacated sentence on count 5; otherwise judgment affirmed; remanded for proceedings consistent with the opinion.