People v. Velasquez-Mosqueda CA3

Filed 7/6/16 P. v. Velasquez-Mosqueda CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C075426

v. (Super. Ct. No. 12F04699)

JUAN OMAR VELASQUEZ-MOSQUEDA,

Defendant and Appellant.

A jury convicted defendant Juan Omar Velasquez-Mosqueda of kidnapping and assault on a minor with force likely to produce great bodily injury. The trial court sentenced him to an aggregate of six years in prison. Defendant now contends (1) the trial court abused its discretion in selecting the midterm of five years on the kidnapping count, and (2) if defense counsel needed to object in the trial court to preserve the first contention for appeal, defendant received ineffective assistance of counsel. We conclude (1) defendant forfeited his first contention because his defense counsel did not object to the sentence in the trial court, and (2) defendant has not established ineffective assistance of counsel. We will affirm the judgment.

1

BACKGROUND In July 2012, the victim, who was 14 years old at the time, went with two friends to a birthday party at a house. Pebbles Savala, who lived at the house, was dating Edgar Mares, who had previously dated the victim. Pebbles informed Edgar by telephone that she was going to beat up the victim. Edgar was incarcerated at the time. The phone conversation between Pebbles and Edgar was recorded and played for the jury. About 35 minutes after arriving at the house, the victim received a text message from her mother telling her to come home. When the victim attempted to leave, Pebbles confronted her and said, “Why are you talking about me?” Pebbles punched the victim numerous times. Pebbles’s brother, David Savala, videotaped the incident and encouraged Pebbles to hit the victim. The videotape was played for the jury. While Pebbles was hitting the victim, other people at the party yelled, “Get her, get her.” At one point, A.C., M.A., David and defendant joined in the attack. Defendant punched the victim in the face and kicked or hit the victim in her “private area.” He also attempted to pull the victim’s pants down. After the attack ended, David pushed the victim out the front door and told her to go home. As the victim walked home, the previous attackers pulled up in a van and began yelling at her, and the victim took off running. Defendant grabbed the victim by the hair, pushed her into the back of the van and forced her into a face down position by grabbing her hair. Defendant held the victim down for about five minutes, even though the victim said she could not breathe. While traveling in the van, David told defendant to have sex with the victim in the back seat. Defendant touched and rubbed the victim’s thigh. He also touched the victim’s vagina over her clothes. When the victim pulled defendant’s hand away and told him to stop, defendant punched her in the face. Defendant then repeatedly attempted to put his hand down the victim’s bra. He finally stopped after about the fifth time the victim told him to stop.