P. v. Velasco

Filed 12/12/06 P. v. Velasco CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN CARLOS SANTIAGO VELASCO,
Defendant and Appellant.
F048350
(Super. Ct. No. 28804)
O P I N I O N
APPEAL from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Julie A. Hokans and Robert Gezi,
Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Juan Velasco and an accomplice, Fabian Sanchez, attacked and stabbed
Richard Ashlock. A jury found appellant guilty of assault with a deadly weapon or by
means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)1
The jury also found two special enhancement allegations to be true. One was that
appellant personally inflicted great bodily injury upon Ashlock. (§ 12022.7, subd. (a).)
The other was that appellant committed the crime for the benefit of, at the direction of, or
in association with a criminal street gang, with the specific intent to promote, further or
assist in criminal conduct by gang members. (§ 186.22, subd. (b).) The court sentenced
appellant to four years for the assault (§ 245, subd. (a)(1)), plus three years for the great
bodily injury enhancement (§ 12022.7, subd. (a)), plus 10 years for the gang
enhancement (§ 186.22, subd. (b)(1)(C)), for a total prison term of 17 years.
APPELLANT’S CONTENTIONS
Appellant contends that both of the enhancements must be stricken because the
court erred in instructing the jury with CALJIC No. 17.20 (the so-called “group beating”
instruction). He further contends that his gang enhancement is not supported by
substantial evidence. As we shall explain, we find both of these contentions to be
without merit. We will affirm the judgment.
FACTS
The sufficiency of the evidence to support appellant’s assault conviction is not
challenged. On November 25, 2003, shortly before 7:00 p.m., Richard Ashlock was
walking on California Street in Winton, California with three friends, Pablo Leon,
Charley Guerra and Donald Brady. At the time, Ashlock was wearing a red hat and red
jacket. He and his friends were confronted from behind by two men, appellant and
Fabian Sanchez. Appellant seemed angry and he knocked Ashlock’s red hat off of his
1 All further statutory references are to the Penal Code unless otherwise stated.

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head. He asked Ashlock why he was wearing red on “his” (appellant’s) street. Appellant
then ordered Ashlock to take off his jacket. Ashlock did so to avoid a conflict even
though it was a very cold night. After Ashlock had taken his jacket off, appellant and the
other man walked away.
Ashlock and his friends proceeded to walk down the street and they cut through an
orchard en route to another friend’s house. Ashlock put his jacket back on. After cutting
through the orchard, Ashlock and his friends arrived at a dirt lot. Ashlock noticed a red
Chrysler LeBaron parked in the area. Appellant and another male were inside the red
Chrysler. Appellant and the other male got out of the vehicle. Appellant ran toward
Ashlock and Ashlock took off his jacket because he knew there would be a confrontation.
Appellant swung at Ashlock, but he missed. Ashlock then hit appellant and appellant fell
to the ground. The other male who was with appellant threw a beer at Ashlock and then
attacked him. Ashlock defended himself by punching the other male and knocking him
to the ground. Subsequently, appellant ran up behind Ashlock and stabbed him on the
left side. Ashlock did not realize he had been stabbed at that time, although when he was
struck by appellant he felt a “weird tingling inside.” The blow was very painful.
After appellant had stabbed Ashlock on his left side, the other male stabbed
Ashlock on his right side. Ashlock noticed one of his assailants carrying a five-or six-
inch “boot knife.” After the stabbing, appellant and the other male ran away, got in a car,
and drove off.
Ashlock walked down the street and at some point noticed that his shirt was
bloody. He felt very sick and cold. He then collapsed on the front lawn of a residence.
Subsequently, emergency medical personnel arrived and Ashlock was airlifted to a
hospital
Before Ashlock was taken to the hospital, Merced County sheriff’s Deputy
Richard Howard arrived at Ashlock’s location. Ashlock was lying on his back and there
was a large stab wound on the left upper portion of Ashlock’s abdomen near his ribs.

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4.
Ashlock sustained two stab wounds, one on his right side and one on his left side,
from the attack. The stab wound on Ashlock’s left side, which was inflicted by appellant,
was larger. Ashlock suffered a cut left intercostal artery, a left rib fracture, and a left
lateral liver laceration as a result of the stabbing. Surgery was required in order to treat
the injuries. After the artery and liver laceration were treated, Ashlock’s stab wounds
were closed with sutures and/or staples.
Upon his release from the hospital, Ashlock was contacted by Detective Wren on
December 2, 2003. Ashlock identified appellant from a photographic lineup. He was
100 percent certain that it was appellant who had stabbed him.
Ashlock had seen appellant before because Ashlock had gone to high school with
appellant. In fact, Ashlock and appellant were in the same grade and even had some of
the same classes. Additionally, Charles Guerra testified at trial that he knew both
appellant and Fabian Sanchez because he had gone to the same school as them and had
grown up with them. Guerra had also seen appellant around town a lot prior to the date
in question. Both Leon and Guerra positively identified appellant as having been
involved in the stabbing of Ashlock.
We will address the sufficiency of the evidence to support the gang enhancement
in our analysis of that issue in part “II” of this opinion.
DISCUSSION
I. THE THREE-YEAR SECTION 12022.7(a) ENHANCEMENT WAS
PROPERLY IMPOSED.
Subdivision (a) of section 12022.7 states:
“Any person who personally inflicts great bodily injury on any person other
than an accomplice in the commission of a felony or attempted felony shall
be punished by an additional and consecutive term of imprisonment in the
state prison for three years.”
The court instructed the jury with CALJIC No. 17.20 as follows:

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“It is alleged in Counts 1 and 2 that in the commission of a felony or
attempted felony, the defendant personally inflicted great bodily injury on
Richard Ashlock.
“If you find a defendant guilty of Attempted Murder alleged in
Count 1 or Assault by Means of Force Likely to Produce Great Bodily
Injury or with a Deadly Weapon, charged in Count 2, you must determine
whether the defendant personally inflicted great bodily injury on Richard
Ashlock in its commission.
“‘Great bodily injury,’ as used in this instruction, means a significant
or substantial physical injury. Minor, trivial or moderate injuries do not
constitute great bodily injury.
“When a person participates in a group beating and it is not possible
to determine which assailant inflicted a particular injury, he may be found
to have personally inflicted great bodily injury upon the victim if 1) the
application of unlawful physical force upon the victim was of such a nature
that, by itself, it could have caused the great bodily injury suffered by the
victim; or 2) that at the time the defendant personally applied unlawful
physical force to the victim, the defendant knew that other persons, as part
of the same incident, had applied, were applying, or would apply unlawful
physical force upon the victim and the defendant then knew, or reasonably
should have known, that the cumulative effect of all the unlawful physical
force would result in great bodily injury to the victim.
“The People have the burden of proving the truth of this allegation.
If you have a reasonable doubt that it is true, you must find it to be not true.
“Include a special finding on that question in your verdict, using a
form that will be supplied for that purpose.”
Appellant contends that this instruction was erroneous in that it conflicts with the
wording of section 12022.7, subdivision (a) itself. He contends that the instruction
allowed the jury to find personal infliction of great bodily injury even if appellant himself
may not have personally inflicted great bodily injury. The California Supreme Court
recently addressed and rejected this argument in People v. Modiri (2006) 39 Cal.4th 481.
The Modiri court stated:
“The Court of Appeal held that CALJIC No. 17.20 prejudicially
failed to require the personal infliction of great bodily harm under section

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1192.7(c)(8). When defendant sought review on other grounds, we
solicited briefing on whether the Court of Appeal was wrong. The issue
presented is whether the group beating theories in CALJIC No. 17.20
satisfy the personal-infliction requirement of section 1192.7(c)(8), as
construed in [People v. Cole (1982)] 31 Cal.3d 568, and applied in [People
v. Corona (1989)] 213 Cal.App.3d 589, and [People v. Dominick (1986)]
182 Cal.App.3d 1174.
“No instructional error occurred at trial. For 20 years, courts have
upheld personal-infliction findings where the defendant physically joins a
group attack, and directly applies force to the victim sufficient to inflict, or
contribute to the infliction of, great bodily harm. Consistent with the
statutory language and the manner in which it has been judicially construed,
the defendant need not be the sole or definite cause of a specific injury. For
reasons we explain, these group beating principles have been accepted by
the Legislature. CALJIC No. 17.20 duly describes them. A contrary
approach would mean that those who perpetrate mob violence and inflict
gratuitous injury would often evade enhanced punishment. Thus, we will
reinstate the section 1192.7(c)(8) finding vacated on appeal.” (Id. at p. 486,
second italics added.)2
The court thus did not err in instructing the jury with CALJIC No. 17.20, and the
jury’s finding that appellant personally inflicted great bodily injury upon Ashlock must
be upheld.
II. THE 10-YEAR SECTION 186.22(b)(1)(C) ENHANCEMENT WAS PROPERLY
IMPOSED.
Section 186.22 states in pertinent part:
“(b)(1) Except as provided in paragraphs (4) and (5), any person
who is convicted of a felony committed for the benefit of, at the direction
2 Section 1192.7, subdivision (c) provides in pertinent part: “As used in this
section, ‘serious felony’ means any of the following: [¶] … (8) any felony in which the
defendant personally inflicts great bodily injury on any person, other than an accomplice,
or any felony in which the defendant personally uses a firearm .…” Thus both section
1192.7, subdivision (c)(8) and section 12022.7, subdivision (a) contain the phrase
“personally inflicts great bodily injury on any person.” As the Modiri opinion points out,
the Legislature intended this language to have the same meaning in each of these statutes.
(People v. Modiri, supra, 39 Cal.4th at p. 498, and fns. 8 and 9 at p. 492.)

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of, or in association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang members,
shall, upon conviction of that felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of which he or
she has been convicted, be punished as follows: [¶] …
“(C) If the felony is a violent felony, as defined in subdivision (c) of
Section 667.5, the person shall be punished by an additional term of 10
years.”
Subdivision (c) of section 667.5 states in pertinent part: “For the purpose of this
section, ‘violent felony’ shall mean any of the following: [¶] … [¶] (8) Any felony in
which the defendant inflicts great bodily injury on any person other than an accomplice
which has been charged and proved as provided for in Section 12022.7 ….”
Appellant raises two arguments as to why he contends the section 186.22,
subdivision (b)(1)(C) enhancement must be stricken.
His first argument is that because the jury was instructed with an erroneous
CALJIC No. 17.20 instruction on personal infliction of great bodily injury in connection
with the section 12022.7, subdivision (a) enhancement, we must conclude that his
infliction of great bodily injury was not properly “charged and proved as provided for in
Section 12022.7.” (§ 667.5, subd. (c)(8).) Thus, he contends, the People did not properly
prove that he committed a “violent felony” within the meaning of sections 667.5,
subdivision (c) and 186.22, subdivision (b)(1)(C). As we explained in part “I” of this
opinion, however, there was no error in the CALJIC No. 17.20 instruction. (People v.
Modiri, supra, 39 Cal.4th 481.)
Appellant’s second argument is that the gang enhancement is not supported by
substantial evidence because the People failed to prove that appellant’s gang, South Side
Locs or “SSL,” was a “criminal street gang” within the meaning of section 186.22,
subdivision (b)(1). Subdivision (f) of section 186.22 states:
“(f) As used in this chapter, “criminal street gang” means any
ongoing organization, association, or group of three or more persons,

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whether formal or informal, having as one of its primary activities the
commission of one or more of the criminal acts enumerated in paragraphs
(1) to (25), inclusive, of subdivision (e), having a common name or
common identifying sign or symbol, and whose members individually or
collectively engage in or have engaged in a pattern of criminal gang
activity.”
Appellant contends that there was insufficient evidence that SSL had “as one of its
primary activities the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, of subdivision (e).” We disagree. In People v.
Sengpadychith (2001) 26 Cal.4th 316, the court stated:
“Sufficient proof of the gang’s primary activities might consist of
evidence that the group’s members consistently and repeatedly have
committed criminal activity listed in the gang statute. Also sufficient might
be expert testimony, as occurred in [People v. Gardeley (1996)] 14 Cal.4th
605. There, a police gang expert testified that the gang of which defendant
Gardeley had for nine years been a member was primarily engaged in the
sale of narcotics and witness intimidation, both statutorily enumerated
felonies. (See § 186.22, subd. (e)(4) & (8).) The gang expert based his
opinion on conversations he had with Gardeley and fellow gang members,
and on ‘his personal investigations of hundreds of crimes committed by
gang members,’ together with information from colleagues in his own
police department and other law enforcement agencies. (Gardeley, supra,
at p. 620.)” (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)
In this case prosecution witness Officer Preston Hambrecht testified as an expert
on gangs. Included in his testimony was the following:
“Q. Tell us what the primary activities of South Side Locs are.
“A. Robberies, grand thefts, vandalisms, murders, drive-by shootings.
“Q. Are you aware of previous cases where the South Side Locs have been
found to be a criminal street gang?
“A. Yes, I have.”
The criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision
(e) include robbery (§ 186.22, subd. (e)(2)), grand theft (§ 186.22, subd. (e)(9)), felony

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vandalism (§ 186.22, subd. (e)(20)), unlawful homicide or manslaughter (§ 186.2, subd.
(e)(3)), and discharging or permitting the discharge of a firearm from a motor vehicle
(§ 186.22, subd. (e)(6)). Thus, Officer Hambrecht’s testimony was more than sufficient
to satisfy the “primary activities” component of subdivision (f) of the statute. (People v.
Sengpadychith, supra, 26 Cal.4th 316.)
Appellant correctly points out that the court’s instruction to the jury on the
definition of “criminal street gang” omitted from that definition some of the crimes which
Hambrecht testified were primary activities of SSL. The court’s instruction stated:
“‘Criminal street gang’ means any ongoing organization,
association, or group of three or more persons, whether formal or informal,
(1) having as one of its primary activities the commission of one or more of
the following criminal acts, Penal Code Section 245(a)(1), Assault With a
Deadly Weapon or With Force Likely to Produce Great Bodily Injury,
Penal Code Section 459, Burglary, Penal Code Section 187, Murder, Penal
Code Section 487(c), Grand Theft from the Person, or Vehicle Code
Section 10851, Unlawful Driving or Taking of a Vehicle (2) having a
common name or common identifying sign or symbol and (3) whose
members individually or collectively engage in or have engaged in a pattern
of criminal gang activity.”
Hambrecht’s testimony nevertheless did include as primary activities of SSL at least two
of the criminal acts mentioned in the instruction (murder and grand theft). As the statute
and the instruction point out, only “one or more” of the qualifying criminal acts must be a
primary activity of the gang in order to satisfy the “primary activities” requirement of the
section 186.22, subdivision (f) definition of “criminal street gang.” Hambrecht’s
testimony was thus still more than sufficient to satisfy the requirement of the statute.
We also note that Officer Hambrecht’s testimony on the issue of the primary
activities of SSL was undisputed, and that appellant’s trial counsel in fact offered, in the
presence of the jury, to stipulate that “SSL is a criminal street gang within the meaning of
186.22.” The People declined to stipulate and instead presented their evidence. Not
surprisingly, appellant raised no argument in the trial court that the People had failed to

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prove SSL was a criminal street gang. Rather, appellant’s unsuccessful defense was that
appellant was not the perpetrator of the assault on Ashlock.
DISPOSITION
The judgment is affirmed.
_________________________
Levy, Acting P.J.
WE CONCUR:
_______________________________
Hill, J.
_______________________________
Kane, J.

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