People v. Velasco CA2/7

Opinion

Filed 8/19/26 P. v. Velasco CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B343812

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24SFCF00205-01) v.

MARCO VELASCO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden Zacky, Judge. Affirmed. Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

__________________________ Marco Velasco appeals from a judgment after he was sentenced to an aggregate term of 100 years for forcible oral copulation, forcible sodomy, forcible sexual penetration, and forcible rape. We appointed counsel to represent Velasco on appeal. After reviewing the record, counsel for Velasco filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 that did not identify any arguable issues. After independently reviewing the record, we have not identified any either. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After a domestic violence incident with her boyfriend, Roberta P. became stranded in Burbank without her cell phone. She asked the police department if they would take her home. The police left Roberta at a hotel and told her to either call a friend or ask the hotel to call a taxi for her. The hotel, however, would not help, and no hotel guests would let Roberta use their phone. Sometime between 11:00 p.m. and midnight, Roberta walked across the street to a gas station. Roberta saw a police officer talking with Velasco, who was sitting inside a big rig truck. Roberta told them that she needed help getting home to Newbury Park, and Velasco offered to take her because “he was going in that direction.” Roberta got into the truck and gave Velasco $100 for gas. At some point during the drive, Velasco began driving in the wrong direction. When Roberta pointed this out to Velasco, he told her he would turn around. However, when he got off the freeway, Velasco drove the big rig to a freeway overpass in San Fernando and parked underneath it. Velasco told her he was 2 expecting a delivery of cars, but that if they were not delivered within the next 15 minutes, he would take her home. After a few minutes, Velasco told Roberta he was going into the back of the truck to relax. Velasco invited her to come to the back of the truck, but she declined. However, Velasco “became adamant and stern” and told her to come into the back. Roberta went into the back and sat down on a mattress. Velasco then took out a pipe and began smoking methamphetamine. Roberta indicated that Velasco “turned a little evil” and began asking her more personal questions, including if she had a boyfriend and whether she liked going to bars. Velasco then reached out and touched Roberta’s knee, came towards her, and began moving his hand up her leg. Roberta tried to block him, but he told her he wanted to have sex. When Roberta continued to refuse his advances, Velasco opened a drawer and showed her that he had a gun, which later turned out to be a BB gun. Velasco then advanced toward her, grabbed her, and began touching her. When she tried to stand up, Velasco threw her onto the mattress and told her that “this is going to happen no matter what.” In an attempt to prevent him from continuing, Roberta falsely told him that she had multiple sclerosis, was married, and had a sexually transmitted disease. However, none of this dissuaded him, and he told Roberta to take off her clothes. When she refused, he began to grab at her clothes. Velasco was able to remove her pants and underwear, and to push up her shirt. When Roberta continued to fight him, Velasco took out the gun and placed it against her jaw. When the pressure of the gun forced her mouth open, Velasco placed his penis in her mouth.

3 However, when Roberta slightly bit down with her teeth to irritate him, he removed his penis from her mouth. Velasco then tried to put his penis between Roberta’s breasts. When that failed, he told her to spread her legs. When she continued to fight him, he flipped her over and forced open her legs. Velasco then put his finger in her anus and vagina. He then removed his finger from her anus and inserted his penis. At one point, Roberta felt a metal object in her anus, which Roberta believed was the gun. The insertion of the metal object caused Roberta to start bleeding. After being forcibly sodomized, Roberta tried to stand up. Velasco pushed her back down and told her that he wanted to ejaculate. Velasco fondled her breasts and placed his penis inside her vagina. However, when Velasco became flaccid, he began rubbing his penis all over Roberta. Velasco told Roberta that once he was able to ejaculate, he would take her home. After Velasco ejaculated, Roberta threw up. Roberta then got dressed but deliberately “swiped [her clothes] ... through his ejaculation so that there would be ... something that [she] could hand to the police.” Velasco then drove her to a fast-food restaurant in Simi Valley. He opened her door and pushed her out of the truck. Roberta identified Velasco from a police six-pack photo lineup, and police matched Velasco’s DNA to clothing items that Roberta was wearing on the night of the assault. Velasco was charged by information with two counts of oral copulation by use of force (Pen. Code, § 287, subd. (c)(2)(A)1; counts 1 and 2); one count of sodomy by use of force (§ 286, subd.

1 All further statutory references are to the Penal Code.

4 (c)(2)(A); count 3); one count of sexual penetration with force (§ 289, subd. (a)(1)(A); count 4); and one count of forcible rape (§ 261, subd. (a)(2); count 5). As to each count, it was further alleged that Velasco committed the offense under two of the circumstances specified in section 667.61, subdivision (e), specifically that Velasco kidnapped the victim (id., subd. (e)(1)) and personally used a dangerous or deadly weapon (id., subd. (e)(3)), with the result that each sex offense carried a punishment of imprisonment for 25 years to life (id., subd. (a)).2 After the trial court denied Velasco’s motion under People v. Marsden (1970) 2 Cal.3d 118 to appoint a new attorney for him, the matter proceeded to trial. The jury found Velasco guilty on all counts and found true the allegations that he kidnapped the victim and used a dangerous or deadly weapon within the meaning of section 667.61, subdivisions (e)(1) and (e)(3). The trial court sentenced Velasco on February 3, 2025. The court indicated each of the five counts carried a mandatory term of 25 years to life pursuant to section 667.61, subdivision (a), based on the jury’s true finding on the two aggravating circumstances under section 667.61, subdivision (e). With respect to whether the sentences for counts 2 through 5 should be imposed consecutively or concurrently to count 1, the prosecution argued “this was a sexual assault that … took place over the course of multiple hours in the back of the defendant’s truck, and the victim was moved to various parts of the back cabin of the truck. The defendant committed different sex acts … 2 The information also alleged that during the offenses Velasco engaged in aggravated kidnapping, within the meaning of section 667.61, subdivision (d)(2), but the jury found that allegation not true.

5 throughout the time.” The defense argued that, given the secluded setting in the back of the truck, “there really was no external interruption such as the presence of a third party or a movement to a new location from there or any significant break in time which would have provided Mr. Velasco with an opportunity to reflect.” The court determined the sentence for count 2, the second charge of oral copulation, should run concurrently with the first oral copulation offense charged in count 1. However, the court concluded that each of the other offenses (counts 3 through 5) constituted “a separate occasion” within the meaning of section 667.61, subdivision (i), because before each one Velasco had an opportunity for reflection before switching to an assault on an “entirely different body part,” i.e., from oral copulation to sodomy to vaginal penetration. Thus, the court imposed consecutive sentences for counts 3 through 5. The aggregate term was 100 years to life. Velasco timely appealed.

DISCUSSION

We appointed counsel to represent Velasco in this appeal. After reviewing the record, counsel filed a brief raising no issues. Appointed counsel advised Velasco on February 23, 2026, that he could personally submit any contentions or issues he wanted this court to consider. Appointed counsel also sent Velasco the record on appeal and a copy of the appellate brief. This court also sent a letter to Velasco on February 23, 2026, advising him that “[w]ithin 30 days of the date of this notice, appellant may submit a supplemental brief or letter stating any grounds for an appeal, or contentions, or arguments which appellant wishes this court to 6 consider.” At his request, we extended Velasco’s time to file a supplemental brief to May 22, 2026. We did not receive a brief from Velasco by the deadline. On May 29, 2026, we received a motion from Velasco seeking to have counsel appointed to pursue a claim under the Racial Justice Act (RJA). (§ 745.) This motion, however, should be filed in the superior court. (See People v. Wilson (2024) 16 Cal.5th 874, 944 [“Under both the RJA and long-settled principles of law, appellants are entitled to file a concurrent habeas corpus petition raising extrarecord RJA claims in superior court, regardless of where the proceedings stand in the appeal”]; see also McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 39-40 [“[t]he appointment of counsel in RJA habeas proceedings is governed by section 1473, subdivision (e)…. [T]he plain language of section 1473(e) imposes a duty on trial courts to consider whether indigent petitioners who request counsel ... are entitled to appointed counsel based on an assessment of the adequacy of the factual allegations in the habeas petition”].) To the extent Velasco’s motion could be construed as an untimely supplemental brief seeking to appeal RJA violations based on the trial record (§ 745, subd. (b)), the RJA claims are forfeited on appeal because they were not raised in the trial court. (See People v. Wagstaff (2025) 111 Cal.App.5th 1207, 1219- 1220; People v. Corbi (2024) 106 Cal.App.5th 25, 41; People v. Lashon (2024) 98 Cal.App.5th 804, 811-812.) We have examined the record and are satisfied appellate counsel for Velasco has complied with counsel’s responsibilities and there are no arguable issues. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118- 119; People v. Wende, supra, 25 Cal.3d at pp. 441-442.)

7 DISPOSITION

The judgment is affirmed.

STONE, J. We concur:

MARTINEZ, P. J.

FEUER, J.