People v. Velasco CA2/8

Filed 6/26/15 P. v. Velasco CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B257668

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA128189) v.

ARNULFO VELASCO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed.

Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

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We affirm defendant Arnulfo Velasco’s conviction for murder. He confessed to killing the victim, whom he shot as the victim was attempting to open a door or a gate. Although there was evidence an unidentified person told defendant that the victim wanted to kill him, there was no evidence defendant was in fear of imminent harm at the time he shot the victim. We reject defendant’s challenges to the trial court’s jury instructions, all of which are based on claims that there was evidence defendant acted in self-defense, unreasonable self-defense or was provoked. No such evidence existed, and we therefore find no error in the instructions. FACTS AND PROCEDURE Velasco, a gang member, admitted to shooting rival gang member Juan Avila. Avila died of a gunshot wound to his chest. Immediately before the shooting, Velasco was a passenger in Jonathan Hernandez’s1 car and saw Avila standing across the street. Defendant testified Hernandez made a U-turn; defendant exited the car; defendant said “fuck you” and shot Avila. According to defendant, just prior to shooting, Avila was holding a bag and “was trying to open up a door to the carwash.” After the shooting, defendant told his cousin that he killed Avila. On February 28, 2013, defendant received a text message indicating “[y]ou hit that foo [sic] four times mahboy [sic] and he died when he got to the hospital.” The phone did not show who wrote the text message. Defendant threw away the gun he used to kill Avila because he did not want it traced back to him. Jesse Hibbler observed the shooting. He saw defendant exit a car after the car made a U-turn. Defendant had a gun in his hand when he exited the car, and defendant shot Avila approximately five times. According to Hibbler, after the shooting defendant “gave [the] driver [(Hernandez)] . . . a high-five.” (At trial, defendant denied giving Hernandez a “high five.”)