People v. Velasquez CA4/3

Filed 12/1/14 P. v. Velasquez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, G048172 Plaintiff and Respondent, (Super. Ct. No. 10CF1250) v. OPINION YONI VELASQUEZ,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury convicted Yoni Velasquez of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)); all further references are to this code unless noted), unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and active participation in a criminal street gang (§ 186.22, subd. (a) [street terrorism]). The jury also found two penalty enhancements applied: defendant committed the offenses for the benefit or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and he vicariously used a firearm in committing the robbery (§ 12022.53, subds. (b), (e)(1)). Defendant challenges the sufficiency of the evidence to support the gang enhancements, and he argues the trial court erroneously allowed the gang expert to testify he was an active participant in the Orange Varrio Cypress criminal street gang (OVC gang). These challenges are without merit, and we therefore affirm the judgment. I FACTUAL AND PROCEDURAL BACKGROUND Defendant and a fellow OVC gang member, Javier Esparza, pulled up in a stolen black Infiniti sedan alongside Jose Velez as he walked toward his son’s elementary school. When Esparza opened the passenger door and challenged Velez, “Where are you from,” Velez hastened to explain he was not a gang member by stating, “Not from here, nowhere. I just moved with my wife right here [a] couple months ago” and “I don’t [gang] bang.” Esparza pulled a gun from under his sweatshirt, cocked it and pointed it at Velez, demanding cash. Velez had none, prompting Esparza to demand, “What do you have,” and Velez produced his Nokia cell phone, which Esparza handed to defendant in the driver’s seat. Velez estimated the duo were in their late 20’s; he noticed defendant wore a black cap, defendant and Esparza both wore blue gloves, and he noticed orange paint splatter in the front passenger compartment. Defendant immediately made several calls with Velez’s phone, identifying himself by his gang moniker, “Clown,” when the calls connected.