People v. Velasquez CA4/3

Opinion

Filed 9/17/26 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, G065116 v. (Super. Ct. No. 23NF2832)

FRANK JOHN VELASQUEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Elizabeth G. Macias, Judge. Affirmed. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Collette C. Cavalier and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Frank John Velasquez challenges his conviction for street terrorism at the second phase of a bifurcated jury trial. He claims his acquittal of attempted murder and assault with a deadly weapon at the first phase of trial barred his second-phase conviction, citing double jeopardy and issue preclusion. Alternatively, he contends the trial court abused its discretion by declining to strike his prior strike offenses at sentencing. We conclude neither double jeopardy nor issue preclusion barred the street terrorism conviction. And we find no abuse of discretion by the trial court. We therefore affirm. FACTS I. INFORMATION AND FIRST PHASE OF TRIAL The Orange County District Attorney charged Velasquez with attempted murder, assault with a deadly weapon, and street terrorism. The information also alleged that Velasquez had seven prior strike convictions, including four serious felony convictions. The trial court bifurcated trial on the street terrorism count, with the attempted murder and assault with a deadly weapon to be tried first and the street terrorism charge to follow. (See Pen. Code, § 1109, subd. (b) [street terrorism count “shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime”].)1 A jury was empaneled and sworn and the matter proceeded to the first phase of trial. According to the evidence at the first phase, Velasquez was a member of the Family of Latin Kings gang. The victim—known as “Puppet”— was a former member of the same gang who had been marked for assault 1 All statutory references are to this code.

2 after dropping out. Before the attack, Velasquez exchanged text messages with a woman who repeatedly reported “Puppet[’s]” movements in and around a nearby park. Video evidence showed Velasquez traveling toward the park with a group of men shortly before the attack. Near the park, he was seen speaking with members of the group and pointing toward the park before the group proceeded in that direction. Shortly after, members of the group confronted Puppet and stabbed him over 30 times, causing life-threatening injuries. After the attack, Velasquez wrote the woman who had messaged him, instructing her to delete her messages. In hospital interviews, Puppet identified Velasquez as one of his attackers. He recanted that identification at trial. Velasquez testified he was in the area only to conduct a drug deal and was uninvolved in the stabbing. He claimed his text messages before the attack related to a different man with the same moniker and concerned the drug deal. After the close of evidence, the trial court instructed the jury on the elements of attempted murder and assault with a deadly weapon. It did not instruct on aiding-and-abetting liability for either offense. And the prosecution argued only that Velasquez personally participated in the crimes: it asserted the evidence clearly showed that Velasquez “was right there stabbing [Puppet] multiple times resulting in those horrific injuries that we saw.” The jury acquitted Velasquez of attempted murder and assault with a deadly weapon but convicted him of the lesser included offense of simple assault (a misdemeanor).

3 II. SECOND PHASE OF TRIAL During the second phase of trial, held before the same jury, the defense moved to dismiss the street terrorism count. Counsel claimed this charge could not be proven because it required proof that Velasquez promoted, furthered, or assisted in felonious criminal conduct by members of his gang, yet the jury had acquitted him of the underlying felonies— attempted murder and assault with a deadly weapon. (See § 186.22, subd. (a).) Counsel asserted that trying the street terrorism count based upon those predicate felonies would be double jeopardy. The prosecution responded that, because the first jury had been instructed only on direct-perpetrator liability, it intended to prove in the second phase that Velasquez aided and abetted the predicate felonies. The trial court denied the motion. The prosecution presented evidence about Velasquez’s involvement with the gang, the gang’s criminal activities, and how the attack on Puppet would benefit the gang. The trial court instructed the jury under CALCRIM No. 1400 that the charge required proof that Velasquez had willfully assisted, furthered, or promoted felonious conduct by members of the gang by aiding and abetting attempted murder or assault with a deadly weapon. It instructed the jury on the meaning of aiding and abetting. The jury convicted Velasquez of street terrorism. III. SENTENCING At sentencing, the defense urged the trial court to strike Velasquez’s seven prior strike convictions and his four serious-felony priors. Counsel noted that the seven strike convictions arose from only three cases 4 and had all been suffered when Velasquez was between 22 and 25 years old, with the most recent occurring 11 years earlier. Counsel also argued several mitigating factors: Velasquez’s role in the attack was minor; he became blind as a young adult and was homeless; he had a traumatic childhood, marked by abuse and neglect; he had been shot multiple times in the past; he suffered from both PTSD and drug addiction; and he had previously completed probation successfully. The trial court struck all four of Velasquez’s serious-felony priors but declined to strike his prior strike convictions, thoroughly explaining its reasoning. Alongside the mitigating circumstances identified by the defense, the court considered Puppet’s serious injuries and Velasquez’s persistent pattern of serious and violent criminal conduct spanning more than a decade. His criminal record included drug, firearm, violent, and gang-related offenses. Despite receiving multiple custodial sentences ranging from 60 days in jail to 12 years in state prison, he continued to reoffend. The court concluded Velasquez fell within the spirit of the three strikes law. It sentenced him to 25 years to life. DISCUSSION I. THE STREET TERRORISM CONVICTION IS VALID Neither double jeopardy nor issue preclusion barred Velasquez’s street terrorism conviction. We review the application of those doctrines to undisputed facts de novo. (People v. Davis (2011) 202 Cal.App.4th 429, 438 [double jeopardy]; People v. Jimenez (2024) 103 Cal.App.5th 994, 1004 [issue preclusion].)

5 The double jeopardy doctrine does not apply to Velasquez because he was not “twice put in jeopardy” for the same offense.2 (U.S. Const., 5th Amend.) The Double Jeopardy Clause “protects against a second prosecution for the same offense after acquittal” and “against a second prosecution for the same offense after conviction.” (People v. Izaguirre (2007) 42 Cal.4th 126, 133 (cleaned up).) It does not prevent the state from prosecuting greater and lesser included offenses “in a single prosecution.” (Ohio v. Johnson (1984) 467 U.S. 493, 500; accord, United States v. Jose (9th Cir. 2005) 425 F.3d 1237, 1241, fn. 2.) Velasquez was subject to a single prosecution, based on a single information, before a single jury. For all charges against him, jeopardy attached at the time the jury was sworn in, even though the court deferred the presentation of evidence on the street terrorism charge. (Martinez v. Illinois (2014) 572 U.S. 833, 839 [“‘jeopardy attaches when the jury is empaneled and sworn’”].) When the jury acquitted Velasquez of the attempted murder and aggravated assault charges, jeopardy did not terminate as to the bifurcated street terrorism charge. Rather, because that proceeding had “‘not run [its] full course,’” Velasquez remained subject to 2 As greater and lesser included offenses, the street terrorism charge and the underlying attempted murder and aggravated assault charges are treated as the same offense for double jeopardy purposes. “[C]ourts have treated greater and lesser included offenses as the same offense for double jeopardy purposes . . . .” (Currier v. Virginia (2018) 585 U.S. 493, 500.) And this principle applies even when, as here, the lesser offense is merely one of multiple predicates the greater offense can rest on. (Harris v. Oklahoma (1977) 433 U.S. 682 [felony-murder conviction precluded later prosecution for underlying robbery]; United States v. Hatchett (7th Cir. 2001) 245 F.3d 625, 633 [“one offense need not invariably be a lesser included offense of another in order for the two to be deemed the same offense”].)

6 “continuing jeopardy.” (Justices of Boston Municipal Court v. Lydon (1984) 466 U.S. 294, 308.) Section 1109, which provides for the bifurcated trial of street terrorism charges, “concerns the order of presentation of evidence at trial.” (People v. Burgos (2024) 16 Cal.5th 1, 20, fn. 5.) It does not affect when jeopardy attaches or terminates. Thus, the second phase was not a second prosecution and double jeopardy did not bar the trial on street terrorism. (See, e.g., United States v. Jackson (2d Cir. 2011) 658 F.3d 145, 151 [no double jeopardy where defendant was convicted of lesser included offense and retried on deadlocked greater offense].) This result is consistent with the interests underlying the Double Jeopardy Clause. The doctrine “recognizes the vast power of the sovereign, the ordeal of a criminal trial, and the injustice our criminal justice system would invite if prosecutors could treat trials as dress rehearsals until they secure the convictions they seek.” (Currier v. Virginia, supra, 585 U.S. at p. 498.) It is not meant to “pose an insuperable obstacle to the administration of justice in cases where there is no semblance of these types of oppressive practices.” (Ibid. (cleaned up).) The prosecution here engaged in no oppressive practices and sought no advantage against Velasquez. Instead, the court and the parties merely followed the procedure prescribed by the Legislature for trying a street terrorism charge alongside other offenses. That procedure is intended to benefit defendants by “reduc[ing] the prejudicial impact of gang evidence and . . . protect[ing] defendants from erroneous conviction.” (People v. Tran (2022) 13 Cal.5th 1169, 1208.) Nothing about the procedure subjected Velasquez to the type of repeated prosecution or prosecutorial manipulation 7 that the Double Jeopardy Clause is designed to prevent. And Velasquez cites no case holding that following section 1109 violates double jeopardy. Issue preclusion does not help Velasquez, either. That doctrine precludes “relitigation of an ultimate fact” between the same parties in a subsequent proceeding. (People v. Santamaria (1994) 8 Cal.4th 903, 913.) For issue preclusion to apply, the issue must be identical to the issue “actually litigated” and “necessarily decided” in the prior proceeding. (People v. Curiel (2023) 15 Cal.5th 433, 451–452 (Curiel).) An issue is actually litigated when it is properly raised, submitted for determination, and determined. (Id. at p. 452.) In deciding whether issue preclusion applies, courts consider the entire record, “‘including the pleadings, the evidence, the jury instructions, and any special jury findings or verdicts.’” (Ibid.) The defendant has the burden of showing that issue preclusion applies. (People v. Sanchez (2020) 49 Cal.App.5th 961, 980.) Even assuming issue preclusion can apply within a single proceeding, Velasquez has not shown that it would apply here. He argues that the first-phase acquittals resolved “the issue of [his] culpability for attempted murder and assault with a deadly weapon.” But issue preclusion applies to “ultimate fact[s],” not to a defendant’s overall culpability for an offense. (Santamaria, supra, 8 Cal.4th at p. 913.) Velasquez identifies no ultimate fact that was actually litigated and necessarily decided in his favor at the first trial. Although he cites several cases involving issue preclusion, he makes no attempt to explain how they apply here, and we therefore do not address them. Nor do the verdicts establish any fact that would preclude the second-phase conviction. The acquittals show only that the prosecution failed to prove beyond a reasonable doubt that Velasquez committed attempted 8 murder or assault with a deadly weapon as the direct perpetrator. They do not reveal what factual issue produced the acquittals. More importantly, because the jury was never instructed on aiding-and-abetting liability, that issue was not “actually litigated,” let alone “necessarily decided” in his favor. At the second phase, by contrast, the jury was instructed that the street terrorism charge could be established if Velasquez willfully promoted, furthered, or assisted felonious conduct by aiding and abetting attempted murder or assault with a deadly weapon. Because the factual predicate for that theory was neither litigated nor decided in the first phase, the acquittals had no preclusive effect. Velasquez cites cases for the proposition that the prosecution may not avoid double jeopardy by asserting a different theory. But his double-jeopardy claim fails for a different reason: he was not subjected to successive prosecutions. And the theories submitted to the jury for decision do affect the scope of issue preclusion. The street terrorism conviction is therefore valid. II. THE TRIAL COURT REASONABLY DECLINED TO STRIKE THE PRIOR STRIKE CONVICTIONS The trial court was not compelled to strike Velasquez’s prior strike convictions. We review the trial court decision for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) A trial court abuses its discretion by declining to strike a prior strike only if the defendant so clearly falls outside the spirit of the three strikes scheme that no reasonable person could disagree. (Id. at p. 377.) Only extraordinary circumstances warrant a finding that a defendant falls outside the spirit of the three strikes scheme. (Id. at p. 378.) Accordingly, “the circumstances where no reasonable people 9 could disagree that the [defendant] falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.) The circumstances here were not so extraordinary. Velasquez’s criminal history showed a severe and escalating trajectory of criminal conduct featuring drugs, firearms, violence, and gang activity. He continued to reoffend after short and lengthy sentences alike. His current offense continued this trajectory, involving participation in a coordinated gang attack that caused the victim life-threatening injuries. To be sure, Velasquez presented mitigating circumstances as well: He became blind as a young adult, struggled with substance abuse, PTSD, and homelessness, and endured a difficult upbringing, among other things. The trial court considered these circumstances. And given his commitment to gang life and his persistent pattern of serious criminal conduct, it was entirely reasonable for the court to find the mitigating factors insufficiently weighty to justify striking his prior strikes. Velasquez’s citation to People v. Avila (2020) 57 Cal.App.5th 1134 is unhelpful. Unlike the trial court there, nothing suggests the court here misunderstood the governing law or failed to consider relevant mitigating factors. (Avila, at p. 1141.) To the contrary, it considered the full record, weighed mitigation against aggravation, and even decided to strike Velasquez’s prior serious felonies. But concluding that Velasquez remained within the spirit of the three strikes scheme fell well within its discretion.

10 DISPOSITION The judgment is affirmed.

SCOTT, J.

WE CONCUR:

DELANEY, ACTING P. J.

GOODING, J.