People v. Velazquez
201 Cal. App. 4th 219
Cal. Ct. App.2011Background
- Velazquez was charged with three counts of criminal threats under § 422 and three counts of dissuading a witness under § 136.1(b)(2), with gang enhancements under § 186.22(b)(1)(B),(4) and a prior prison term allegation.
- The victim, Debbie Porter, failed to appear for trial, though she testified in rebuttal for the March 9–10 incidents after the trial court denied a motion for acquittal as to those counts.
- Evidence at trial showed a March 3 threat and related conduct; evidence for March 9–10 depended on Porter’s rebuttal testimony and related call-log and demeanor testimony, much of which was later constrained by hearsay rulings.
- The jury convicted on all counts and the court found the gang allegations true and the prior prison term true; Velazquez was sentenced to life with various terms and credits.
- On appeal Velazquez challenged the denial of the acquittal motion for counts 3–6, the sufficiency of the evidence for those counts, the 10-year gang enhancement on count 1, and the calculation of custody and conduct credits.
- The appellate court reversed counts 3–6, remanded for resentencing on count 1, and ordered recalculation of custody credits, with further remand for conduct credits if any.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court err denying acquittal on counts 3–6? | Velazquez argues insufficiency of evidence at the time of motion. | Velazquez contends the March 9–10 threats were not proven. | Yes; reversal of counts 3–6 and acquittal on those counts. |
| Is the remaining dissuading a witness count (count 2) supported by evidence under § 136.1(b)(2)? | The threats and conduct on March 9–10 show intent to dissuade prosecutions. | Fernandez-based interpretation limits § 136.1(b)(2) to prearrest efforts. | Yes; count 2 affirmed. |
| Was the 10-year gang enhancement on count 1 proper? | Enhancement applied under § 186.22(b)(1)(C) for a violent felony. | Criminal threats are not a violent felony for that subsection; only a five-year enhancement applies. | No; strike 10-year enhancement and impose 5-year enhancement under § 186.22(b)(1)(B). |
| Should custody and conduct credits be recalculated on remand? | Actual custody and conduct credits were miscalculated. | Credit calculation should be corrected and conduct credits considered. | Yes; remand for correction of custody credit and calculation of conduct credits. |
Key Cases Cited
- People v. Stevens, 41 Cal.4th 182 (Cal. 2007) (standard for 1118.1 sufficiency reviewed as sufficiency for conviction)
- People v. Toledo, 26 Cal.4th 221 (Cal. 2001) (elements of criminal threats and requirements for fear and immediacy)
- People v. Belton, 23 Cal.3d 516 (Cal. 1979) (burden to prove each element; disbelief of defendant’s testimony not sufficient)
- People v. Fernandez, 106 Cal.App.4th 943 (Cal. App. 2003) (prearrest dissuasion vs. testimony influence; scope of § 136.1(b))
- People v. Salvato, 234 Cal.App.3d 872 (Cal. App. 1991) (multis count/continuing conduct approach to appellate review)