People v. Velasquez CA1/5 ( 2014 )

Filed 12/9/14 P. v. Velasquez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A138636
v.
EDGAR VELASQUEZ, (Contra Costa County
Super. Ct. No. 05-121389-1)
Defendant and Appellant.
Appellant Edgar Velasquez appeals from a sentence imposed after his no contest
plea. We affirm.
BACKGROUND
In March 2013, appellant pled no contest to forcible oral copulation upon a child
(Pen. Code, § 288a, subd. (c)(2)(B)), forcible lewd acts upon a child (Pen. Code, § 288,
subd. (b)(1)), and four counts of lewd acts upon a child (Pen. Code, § 288, subd. (a)).
The charges were based on multiple incidents in which appellant sexually molested the
victim, Jane Doe. The incidents took place approximately six years earlier, when
appellant was around 17 years old and Doe was around 10 years old.
Appellant’s plea did not specify a sentence. At the time of his plea, appellant was
informed the maximum aggregate sentence was 20 years imprisonment.
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Jane Doe’s father made a statement at the sentencing hearing.1 He spoke about
other family members and friends who had been victims of sexual assault, and noted
none of the perpetrators had been punished. He also spoke about the impact of
appellant’s crimes on Jane Doe. He stated she had tried to commit suicide a number of
times as a result of the crimes. He also presented the following statement from Jane Doe
about the impact of the crime: “Since this incident I have been suffering from depression.
I have trouble being around and getting along with people.”
Appellant’s lawyer urged the court to impose a sentence of six years, arguing in
mitigation appellant was 17 at the time of the crimes, had since become employed and
married, and was cooperative with the police. The People asked for a sentence of eight
years.
The court imposed an aggregate sentence of eight years. The court provided the
following statement of reasons: “One of the reasons this came to me with a reduced
posture is I am also aware of the fact that many youth at the age of 17 make all sorts of
mistakes in their lives and they don’t grow and mature until they are pretty much in their
mid 20’s. That was one of the factors that brought this from what originally was brought
to me somewhat as a 12 year case to somewhere between six to eight years. . . . [¶] But I
really did want to hear from the victim’s family. I wanted to know the impact. The
impression I had—and I don’t blame the defense attorney, but the impression I had was
that the victim was sympathetic to the defendant, didn’t want to see him go to prison; and
I almost got the sense that there was not the severe damage that he had caused. [¶] In
listening to [the victim’s father] it is clear—and should have been obvious to me even
without the testimony—that a ten year old child—and she was a child—should never
have been treated in this way. And having that mark—when we speak of a 17 year old
being youthful, a child that is hurt at ten is still wounded at 50. [¶] There is not a time in
her life that she will forget this, that it won’t mark her in some ways—in the way that she
1
The statement was made in Spanish and translated through a victim witness
advocate from the district attorney’s office.
2
relates to trusting others, particularly men; in the way she relates as a mother if she has a
daughter. The way [the victim’s father] spoke so poignantly about the wounds that he
saw when he learned other women that he loved had been raped—and this child, even if
she hears of a rape at 20, 30, or 40 will recall hers.”
DISCUSSION
I. The Sentence
Appellant argues the trial court inappropriately based its discretionary sentencing
decision on the victim’s father’s statements regarding other, unrelated sexual assaults.
We disagree.
As an initial matter, appellant waived this argument by failing to object in the trial
court. (People v. Scott (1994) 9 Cal. 4th 331, 353 [“the waiver doctrine . . . appl[ies] to
claims involving the trial court’s failure to properly make or articulate its discretionary
sentencing choices”].) Even if appellant had not waived this argument, we would reject it
on the merits. The trial court’s statements at the sentencing hearing indicate the court
properly based its sentencing decision on the circumstances of appellant’s crime, not on
the other unrelated crimes the father spoke about. (See People v. Mockel (1990) 226
Cal. App. 3d 581, 587 (Mockel) [finding no error in admission of victim’s family’s letters
containing irrelevant information purportedly submitted “to invoke the emotion of the
court” because “judges spend much of their professional lives separating the wheat from
the chaff and have extensive experience in sentencing, along with the legal training
necessary to determine an appropriate sentence”].)
In his reply brief, appellant argues for the first time the expected sentence at the
beginning of the sentencing hearing was six years. This argument is forfeited. “[P]oints
raised in the reply brief for the first time will not be considered, unless good reason is
shown for failure to present them before”; appellant has demonstrated no such good
reason. (In re Marriage of Khera and Sameer (2012) 206 Cal. App. 4th 1467, 1478.) In
any event, the record does not support appellant’s contention. We decline appellant’s
invitation to speculate about what took place at unreported sidebars. Moreover, the trial
court began the proceeding by stating its understanding the parties would provide the
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court with “a sentencing range,” and prefaced its statement of reasons noting the case was
“originally brought to me somewhat as a 12 year case” but had become “somewhere
between six to eight years.” We do not find the record demonstrates the expected
sentence was six years at the beginning of the sentencing hearing.2
II. Ineffective Assistance of Counsel
Appellant next contends his trial counsel was ineffective for failing to either
request a continuance to investigate the father’s statements or attempt to neutralize his
statements through the presentation of information demonstrating bias, a motion to strike
irrelevant portions of his statement, or cross-examination. We disagree.
For purposes of an ineffective assistance of counsel claim, “[p]rejudice is shown
when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ ” (In re Thomas (2006) 37 Cal. 4th
1249, 1256.) Appellant has not shown any reason to doubt the victim’s father’s
statements about the impact of appellant’s crime on Jane Doe. As shown above, this fact
influenced the trial court’s exercise of its sentencing discretion. Appellant has failed to
demonstrate a reasonable probability that any investigation, cross-examination, or other
conduct by trial counsel would have resulted in a different sentence.
Appellant also notes trial counsel advised appellant against making a statement at
the sentencing hearing. The record indicates the statement appellant wished to make was
to the victim’s father. Trial counsel told the court: “[Appellant] has expressed his desire
to make an apology statement. I told him that would have to come at a different time
through writing or therapy. I didn’t think it was an appropriate time for him to address
the father. He would like to do so.” Again, appellant has failed to show prejudice
2
During oral argument, appellant raised for the first time the contention that the
sentence imposed should be reversed because it was result oriented. We treat this
argument as forfeited. (People v. Thompson (2010) 49 Cal. 4th 79, 110, fn. 13 [“Because
counsel failed to raise this . . . argument in her briefs, to raise it at oral argument was
improper.”]; Kinney v. Vaccari (1980) 27 Cal. 3d 348, 356, fn. 6 [“An appellate court is
not required to consider any point made for the first time at oral argument, and it will be
deemed waived”].)
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resulting from any deficient performance. The trial court was aware of appellant’s
remorse. There is no basis to conclude the sentence would have been any different had
appellant apologized to Jane Doe’s father at the sentencing hearing.
DISPOSITION
The judgment is affirmed.
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SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.
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