P. v. Velasco

Filed 12/2/16 P. v. Velasco CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERTO VELASCO,
Defendant and Appellant.
B266821
(Los Angeles County
Super. Ct. No.
BA420677)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Bernie C. LaForteza, Judge. Affirmed.
Michael Allen, 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, Senior
Assistant Attorney General, Margaret E. Maxwell,

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Supervising Deputy Attorney General, Peggy Z. Huang,
Deputy Attorney General, for Plaintiff and Respondent.
_______________________
A jury convicted defendant and appellant Roberto
Velasco in counts 3 and 5–10 of second degree robbery (Pen.
Code § 211),1 in count 11 of attempted second degree robbery
(§§ 664/211), and found true the allegations that defendant
had personally used a firearm as to all counts (§ 12022.53,
subd. (b)).2 After imposing and recalling the original 43-year
sentence, the trial court sentenced defendant to 34 years 4
months in state prison.3
At issue in this appeal are the consecutive sentences
the trial court imposed as to multiple offenses committed at
the same time. The robberies in counts 5 and 6 were
committed on one occasion, and the robbery and attempted
1 All further statutory references are to the Penal Code
unless otherwise stated.
2 The jury found defendant not guilty of one additional
count and was unable to reach verdicts on two other counts.
3 The sentence was computed as follows: a principal
term of 13 years on count 3, consisting of the middle term of
3 years for robbery plus 10 years for the firearm
enchantment; consecutive subordinate terms totaling 21
years 4 months in counts 5, 6, and 9–11, consisting of one
third the midterm on the substantive charges enhanced by
one third the midterm on the firearm use findings; and
concurrent sentences in counts 7 and 8.

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robbery in counts 10 and 11 took place on another occasion.
Defendant’s primary argument on appeal is that the court
abused its discretion in imposing consecutive terms in counts
6 and 11. He also argues trial counsel was constitutionally
inadequate based on a failure to object to the trial court’s
reliance on improper factors in aggravation of punishment in
imposing consecutive sentences. We affirm.
FACTS4
Between January 2, 2014, and January 21, 2014,
defendant robbed seven people and attempted to rob
another. These crimes were committed in a similar fashion:
wearing a hooded sweatshirt or hat, defendant surprised the
victims at night as they were walking down the street alone
or in pairs. Defendant pointed his gun at each of the victims
and demanded their belongings, including cell phones. After
committing the offenses defendant entered the passenger
side of a waiting vehicle and sped away with his accomplice.
Counts 5 and 6
On January 5, 2014, defendant robbed Liset Flores
(count 5) and Christina Ponce (count 6) as they walked down
4 Given the focus of defendant’s contentions on appeal,
we begin the facts with the events supporting the convictions
in counts 5–6 and 10–11.

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the street. Defendant’s accomplice, driving an SUV, pulled
up next to the women. Defendant exited the SUV and
pointed his gun at each woman, stealing their purses and
Ponce’s cell phone.
Counts 10 and 11
On January 2, 2014, defendant robbed Michelle
Wagner (count 10) and attempted to rob her daughter Nicole
(count 11) as they walked to a grocery store. Defendant
jumped out from between cars, first turning his gun to
Michelle. He took Michelle’s cell phone and her purse, which
contained Nicole’s rent money. He then turned his gun to
Nicole, demanding a cell phone, which she did not have.
Defendant left in a waiting car.
Remaining Counts
About an hour after robbing Michelle Wagner,
defendant exited a car driven by his accomplice and robbed
Efren Lopez (count 3) at gunpoint of his cell phone and
money.
On January 9, 2014, defendant robbed Rebecca
McTavish (count 7) and her boyfriend Jason Woliner (count
8) as they walked to a party. Defendant’s accomplice drove
up next to McTavish and Woliner. Defendant exited the
vehicle, “chambered a round,” pointed his gun at the couple,
and demanded their belongings. Defendant took McTavish’s

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backpack, including her cell phone, and Woliner’s cell phone.
On January 21, 2014, defendant robbed Alexandra
Oliver (count 9) as she walked down an alley. Defendant
emerged from the passenger side of a car and pointed a gun
at Oliver. She threw her bag at him and dropped to the
ground. Defendant asked if she had a cell phone in her bag.
She replied, “Yes.” Defendant took her bag, got back into the
car, and fled the scene. Oliver memorized the license plate
number of the fleeing vehicle and reported the robbery to the
police.
Additional Evidence
The car described by Oliver belonged to defendant’s
sister’s ex-girlfriend. At the request of the police,
defendant’s sister called defendant and said the police would
like to speak with him. The police found defendant at his
home, holding a white trash bag containing four cell phones.
The police searched defendant’s closet and discovered $9,000
in cash.
Defendant lived with his mother, a sister, and the
sister’s four young children. Defendant was unemployed at
the time of the robberies and helped his father sell clothing
at the Los Angeles Swap Meet on Sundays. Defendant’s
mother denied that defendant had $9,000 hidden in his
closet.
Defendant admitted to robbing Oliver but denied
involvement in the other robberies. His sister’s ex-girlfriend

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had given him cell phones that he sold at the Los Angeles
Swap Meet, but he was not involved in the procurement of
these cell phones. He became curious about how she
obtained the phones. On January 21, 2014, she drove
defendant to an alley, saw Oliver, and told him it was “[his]
turn.” Defendant robbed Oliver, but claimed an
acquaintance committed the other robberies. Defendant
made a phone call to his girlfriend from jail, telling her to
take the money from his closet and spend it on herself
because he did not want his family to find the money.
DISCUSSION
Consecutive Sentences
Defendant contends that the trial court abused its
discretion by imposing consecutive sentences on counts 6
and 11. Defendant reasons that because counts 6 and 11
“arose from the same set of circumstances, at the same time,
and in the same place” as counts 5 and 10, respectively, the
court’s reason for imposing consecutive sentences was
invalid because counts 5 and 6, and 10 and 11, were not
separate acts of violence.5 Defendant also contends that the
5 Defendant points to purported legal errors in the
court’s reasoning for the sentence imposed on May 7, 2015.
As the sentence imposed on May 7, 2015, was not the final
sentence, we review this hearing only to the extent that the

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trial court improperly weighed the sentencing factors,
imposing a sentence that is inconsistent with “legitimate
sentencing objectives.” Defendant claims that that the
mitigating factors were “overwhelming” and the aggravating
factors “almost nonexistent,” requiring a shorter term of
imprisonment.
Relevant Proceedings
The May 7, 2015 Sentencing Hearing
At the May 7, 2015 sentencing hearing, the court
“consider[ed] the probation report, the People’s sentencing
memorandum” and “evidence taken at the trial.” The
Wagners made statements explaining the lasting fears they
suffer resulting from defendant pointing a gun at them and
how defendant’s actions changed their lives.6 McTavish
trial court relied on the statements and arguments
presented at that time.
6 Michelle Wagner described how her life had changed
as a result of the robbery and her hope to heal with time.
She is terrified to walk after dark and suffers panic attacks.
She pictured life without her daughter, or her daughter
being terribly injured. She has nightmares and headaches
several times a month.
Nicole Wagner explained the fear she felt when
defendant pointed the gun toward her. She lived in poverty

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provided a letter, asking the court for “leniency in
sentencing” and requesting that defendant be given “a
chance to be a contributing member to the community, and a
very lengthy prison sentence will not allow that.”
Six of defendant’s family members and two family
friends gave statements asking for leniency because
defendant was young, was the only father figure to his
sister’s four young children, and had acted under financial
pressure during a period of unemployment. They also
requested that the court give defendant a second chance so
he could rehabilitate himself. Defendant made a statement,
saying he regretted his actions, but he “didn’t think it’s right
that everything be put on [him]” and that going to jail was
“not worth it.”
Defense counsel asked the trial court to impose a
principal term of 15 years, composed of the high term of five
years plus a 10-year enhancement for use of a firearm, and
for the remaining sentences to run concurrently. Counsel
argued that a shorter sentence was warranted because
defendant was only 19 years old “and virtually a kid” at the
time of the offenses, the crimes happened over a 20-day
period, and no actual physical harm had been done to the
victims. When asked by the court to address its discretion to
run the sentences concurrently, defense counsel argued for
concurrent sentences because the purpose of sentencing is
rehabilitation, defendant should be allowed “a second
and suffered eviction after defendant robbed her of her rent
money.

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chance,” and the court’s tentative sentence of running all the
counts consecutively “is basically a life sentence.”
The prosecutor argued there were insufficient
mitigating circumstances to justify concurrent sentences.
The prosecutor believed that the only factor in mitigation—
defendant’s minimal criminal history—was negated by the
number of criminal acts he committed. Defendant showed
no real remorse or acceptance of responsibility.
The court sentenced defendant to 43 years in state
prison. It selected count three as the principal term and
imposed the middle term of three years plus ten years on the
firearm enhancement. The court selected the middle term
because “the factors in mitigation and aggravation are
substantially in balance.” It imposed consecutive sentences
for the remaining counts, noting it was exercising its
discretion to run the sentences consecutively because of the
high degree of violence (counts 6 and 11), the separate
nature of the offenses (counts 5, 7, 9, and 10), and multiple
victims (count 8).
The July 28, 2015 Sentencing Hearing
On June 5, 2015, during an unreported chambers
conference, the trial court invoked section 1170, subdivision
(d), and recalled and vacated the sentence imposed on May
7, 2015. The court held a second sentencing hearing on July
28, 2015, incorporating the material previously received and
arguments made. The court indicated that it “reconsidered

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the sentence of 43 years and reconsidered the statements --
victim impact statements provided by the People as to
Rebecca . . . McTavish.” The court reduced defendant’s
sentence to 34 years 4 months by imposing concurrent
sentences in counts 7 and 8. It again selected count 3 as the
principal term, imposed the middle term sentence, and
imposed a consecutive sentence for the firearm
enhancement. The court imposed consecutive sentences in
counts 5, 6, 9, 10, and 11 because of “the separate nature of
the offenses.”
Analysis
A trial court has discretion when choosing to impose a
concurrent or consecutive sentence for an offense. (§ 669,
subd. (a); People v. Sandoval (2007) 41 Cal.4th 825, 850.) A
single aggravating factor may justify consecutive sentences.
(People v. Davis (1995) 10 Cal.4th 463, 552; People v. King
(2010) 183 Cal.App.4th 1281, 1323–1324.) The criteria
affecting the decision to impose consecutive rather than
concurrent sentences include the following: “Facts relating
to the crimes, including whether or not: [¶] (1) The crimes
and their objectives were predominantly independent of each
other; [¶] (2) The crimes involved separate acts of violence or
threats of violence; or [¶] (3) The crimes were committed at
different times or separate places, rather than being
committed so closely in time and place as to indicate a single
period of aberrant behavior.” (Cal. Rules of Court, rule 4.425

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(a)7; People v. Thurs (1986) 176 Cal.App.3d 448, 451–452
(Thurs) [consecutive sentence not an abuse of discretion
where defendant committed robbery of two victims at the
same time and place].) “A trial court’s decision to impose a
particular sentence is reviewed for abuse of discretion and
will not be disturbed on appeal ‘unless its decision is so
irrational or arbitrary that no reasonable person could agree
with it.’ [Citation.]” (People v. Jones (2009) 178 Cal.App.4th
853, 860–861; accord, People v. Bradford (1976) 17 Cal.3d 8,
20.)
Defense counsel did request concurrent sentences be
imposed, but he did not expressly object on the ground that
the court relied on an improper factor in aggravation when
imposing consecutive sentences. To the extent defendant
argues the court relied on an improper factor in aggravation
to support the consecutive sentences, the issue is forfeited
due to the lack of a timely objection. “[C]omplaints about the
manner in which the trial court exercises its sentencing
discretion and articulates its supporting reasons cannot be
raised for the first time on appeal.” (People v. Scott (1994) 9
Cal.4th 331, 356 (Scott).) “Routine defects in the court’s
statement of reasons are easily prevented and corrected if
called to the court’s attention.” (Id. at p. 353.) The rule
announced in Scott applies “to claims involving the trial
court’s failure to properly make or articulate its
discretionary sentencing choices. Included in this category
7 Subsequent citations to rules are to the California
Rules of Court.

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are cases in which the stated reasons allegedly do not apply
to the particular case, and cases in which the court
purportedly erred because it double-counted a particular
sentencing factor, misweighed the various factors, or failed
to state any reasons or give a sufficient number of valid
reasons.” (Ibid.)
Even if the issue had been preserved, it fails on the
merits. As noted above, only one aggravating factor is
required to support a consecutive sentence. The court here
relied on “the separate nature of the offenses committed” to
justify consecutive sentences. Defendant’s contention that
this is an inappropriate basis for consecutive sentences as to
the offenses against two victims on one occasion is wrong as
a matter of law. California law has long recognized that
violent crimes against multiple victims may be separately
punished. (People v. Latimer (1993) 5 Cal.4th 1203, 1212;
Neal v. State of California (1960) 55 Cal.2d 11, 20–21,
disapproved of on another ground in People v. Correa (2012)
54 Cal.4th 331 and superseded by statute on another ground
as stated in People v. Salmorin (2016) 1 Cal.App.5th 738;
Thurs, supra, 176 Cal.App.3d at p. 452 [“When there are
several victims, an act of violence is separate when it
exposes one of the victims to a risk of injury that is not
shared by the others”].) Defendant cites no contrary
authority.
The trial court’s findings in this case fall squarely
within rule 4.425 (a)(2). The offenses in counts 6 and 11,
although committed at the same time as counts 5 and 10,

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respectively, involved separate acts of violence or threats of
violence when defendant pointed his gun at each of the
victims.
Defendant’s claim that the imposition of consecutive
sentences in counts 6 and 11 was an abuse of discretion
because the mitigating circumstances overwhelmed the
circumstance in aggravation is no more than a request that
we reweigh the evidence and impose our judgment over that
of the trial court. This is not our function. (Scott, supra, 9
Cal.4th at p. 355 [appellate court cannot “reweigh valid
[sentencing] factors bearing on the decision below”].) While
there were arguable circumstances in mitigation, which the
trial court understood, rejection of those circumstances was
not unreasonable as a matter of law.
For example, defendant argues that “precedents of the
United States Supreme Court make it plain that Velasco’s
age meant that he was less culpable and more capable of
rehabilitation,” citing to Miller v. Alabama (2012) ___ U.S.
___ [132 S.Ct. 2455], Graham v. Florida (2010) 560 U.S. 48,
and Roper v. Simmons (2005) 543 U.S. 551. These Supreme
Court authorities do not apply to defendant, who is not a
minor. (People v. Perez (2016) 3 Cal.App.5th 612, 618; People
v. Argeta (2012) 210 Cal.App.4th 1478, 1482; People v.
Abundio (2013) 221 Cal.App.4th 1211, 1220–1221.) The trial
court was well aware of defendant’s age at sentencing as
defense counsel frequently pointed to defendant’s relative
youth, but in the end the court determined the counts in
question warranted consecutive sentences.

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Equally unpersuasive is the argument that defendant’s
crimes were committed so closely in time as to indicate a
single period of aberrant behavior. (Rule 4.425 (a)(3).) The
trial court could reasonably conclude that defendant’s
multiple offenses, spanning 20 days and involving multiple
offenses at different locations, was not aberrant behavior.
Defendant did not voluntarily cease his criminal activity.
(Rule 4.423 (b)(3) [a defendant’s voluntary acknowledgement
of wrongdoing before arrest or at an early stage of
proceedings is a factor in mitigation].) He was captured
shortly after his final robbery, as a result of Oliver reporting
the license plate number of the getaway car to the police.
Even after the Oliver robbery, defendant engaged in
behavior inconsistent with an offender seeking to end a brief
period of criminality. Defendant was captured as he
attempted to throw away stolen cell phones, called his
girlfriend from jail and urged her to remove $9,000 from his
residence, and complained at sentencing that it was unfair
“that everything be put on me.”
Defendant argues that no victim was physically
injured, but this circumstance did not compel the trial court
to impose concurrent sentences. None of the victims offered
physical resistance when confronted by defendant at
gunpoint. The exercise of prudent judgment by victims held
at gunpoint and the absence of gratuitous violence by
defendant is not the type of mitigation that requires
concurrent sentences as a matter of law. The argument also
overlooks the harm done by defendant, as evidenced by the

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statements of Michelle and Nicole Wagner describing their
ongoing fears and the trauma caused by defendant.
Ineffective Assistance of Counsel
Defendant contends that trial counsel abdicated his
duty to object “when the court relied on improper factors to
consecutize [defendant’s] sentence.” Defendant also faults
counsel’s failure to argue that “the United States Supreme
Court precedents . . . explained why [defendant’s] youth and
circumstances were such strong mitigating factors.”
As explained above, the premise of these contentions is
incorrect—the trial court properly found a circumstance in
aggravation, and the Supreme Court precedents did not
apply to defendant. “Because there was no sound legal basis
for objection,” defendant “cannot establish ineffective
assistance” of counsel at sentencing. (People v. Cudjo (1993)
6 Cal.4th 585, 616.) Defendant has failed to establish
deficient conduct by counsel or prejudice; his claim of
inadequate representation therefore fails. (Strickland v.
Washington (1984) 466 U.S. 668, 687–688.)

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DISPOSITION
The judgment is affirmed.
KRIEGLER, Acting P.J.
We concur:
BAKER, J.
KUMAR, J.
 Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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