Filed 5/17/24 P. v. Velasquez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DAMIAN I. VELASQUEZ,

Defendant and Appellant.

 D082765

 (Super. Ct. No. SCD296061)

APPEAL from a judgment of the Superior Court of San Diego County, 

Eugenia A. Eyherabide, Judge. Affirmed.

Aurora E. Bewicke, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Steve 

Oetting and Paige B. Hazard, Deputy Attorneys General for Plaintiff and 

Respondent.
2

I

INTRODUCTION

Damian I. Velasquez appeals a judgment of conviction after a jury 

found him guilty of one count of carjacking (Pen. Code, § 215, subd. (a); 

count 1),1 one count of assault by means of force likely to produce great 

bodily injury (§ 245, subd. (a)(4); count 2), and one count of unlawfully taking 

and driving a vehicle (Veh. Code, § 10851, subd. (a); count 3). He contends 

the trial court erred by ruling in limine that the prosecution could impeach 

him with a prior felony conviction if he elected to testify at trial. The People 

claim Velasquez’s argument is barred because he voluntarily waived his right 

to testify. We agree with the People. Therefore, we affirm the judgment.

II

BACKGROUND

A. Factual Background

R.M. drove his pickup truck to a credit union in National City to make 

a loan payment. While he was in the parking lot, he met and struck up a 

conversation with Louie Granados. At one point during the conversation,

Granados said he had a friend who knew a lot of women. He offered to 

introduce R.M. to the friend and R.M. agreed to meet him. 

R.M. and Granados got into R.M.’s truck and drove to a motel. There, 

the men met with Granados’ friend, Velasquez, who said he knew women in 

downtown San Diego. R.M., Velasquez, and Granados got into R.M.’s truck, 

bought alcohol, picked up a female companion, and drove towards downtown. 

R.M. sat in the driver seat, Velasquez sat in the front passenger seat, and 

Granados and the female companion sat in the backseat. 

1 Further undesignated statutory references are to the Penal Code.
3

They drove around downtown for a while and Velasquez eventually 

said they would not be able to meet up with anyone else. He also pulled out 

and lit a glass pipe, which made R.M. think he needed to get everyone out of 

his truck. R.M. pulled the truck over and asked the occupants whether they 

wanted him to drop them off downtown or elsewhere. According to R.M., 

Velasquez “blew up” and punched him several times. R.M. opened the driverside door and exited the truck. Velasquez slid into the driver seat and sped 

off in the truck, leaving R.M. behind. 

That evening, law enforcement surveilled the motel where R.M. and 

Granados had met with Velasquez earlier in the day. There, they 

apprehended Velasquez and recovered R.M.’s truck. 

B. Procedural Background

Velasquez and Granados were charged by amended information with 

carjacking, assault by means of force likely to produce great bodily injury, 

and unlawfully taking and driving a vehicle. Velasquez was also charged 

with receipt of a stolen vehicle (§ 496d; count 4). The amended information 

alleged that, in the commission of the carjacking and assault charges, 

Velasquez personally inflicted great bodily injury on R.M. (§§ 1192.7, 

subd. (c)(8), 12022.7, subd. (a).) 

Before trial, the prosecution and Velasquez filed competing motions in 

limine concerning the admissibility of two prior federal convictions suffered 

by Velasquez. The prosecution asked the court for permission to impeach 

Velasquez, if he elected to testify, with evidence that he suffered: (1) a 

misdemeanor conviction for being an accessory after the fact in violation of 

Title 18 United States Code section 3 (United States v. Velasquez, Case No. 

18-CR-4602); and (2) a felony conviction for aiding and abetting the bringing 

of an alien into the United States without presentation to an immigration 
4

official in violation of Title 8 United States Code section 1324(a)(2)(B)(iii) 

(United States v. Velasquez, Case No. 19-CR-02207).2 In his motion in 

limine, Velasquez argued the prior convictions were not proper impeachment 

evidence because, according to Velasquez, they were for crimes that did not 

involve moral turpitude; thus, the convictions were not relevant to his 

veracity as a witness. He also argued the court should exclude the prior 

felony conviction under Evidence Code section 352. 

At a pretrial hearing, the trial court tentatively ruled it would exclude 

the misdemeanor conviction and admit the felony conviction as impeachment 

evidence. The court expressed uncertainty whether the felony conviction 

involved a crime of moral turpitude, but it nonetheless found the conviction 

was “very recent” and “probative.” At the request of the defense, the court 

instructed the parties to “sanitize” the facts of the felony conviction at trial by 

referring to it as a conviction for “a federal felony crime, date of conviction 

October 28, 2019.” Upon our review of the record, there appears to be no 

indication that Velasquez’s counsel advised the court that Velasquez would 

refrain from testifying at trial due to the court’s in limine ruling.

The case proceeded to an eight-day jury trial. At the end of the 

prosecution’s case in chief, Velasquez voluntarily waived his right to testify. 

The jury ultimately found Velasquez guilty of the carjacking, assault, 

and taking and driving a vehicle charges. It also found true the allegations 

that Velasquez personally inflicted great bodily injury on R.M. The jury did 

2 Velasquez’s motion to augment the record with the docket and court 

filings from the federal case in which he suffered his felony conviction is 

denied, as the docket and court filings were not part of the record in the trial 

court. (People v. Brooks (1980) 26 Cal.3d 471, 484 [“Augmentation is not 

available ... for the purpose of adding material that was not a proper part of 

the record in the trial court.”].) However, his alternative request for judicial 

notice of these materials is granted. (Evid. Code, § 452, subd. (d).)
5

not return a verdict on the receipt of a stolen vehicle charge because it found 

Velasquez guilty of unlawfully taking and driving R.M.’s vehicle.3

In a bifurcated proceeding, Velasquez admitted the aggravating 

circumstance that his prior performance while on probation, mandatory 

supervision, post-release supervision, and/or parole was unsatisfactory. The 

court sentenced him to an aggregate term of eight years in prison, consisting 

of the mid-term of five years for the carjacking conviction and three years for 

the great-bodily-injury enhancement. The court stayed execution of mid-term 

sentences for the remaining convictions pursuant to section 654. 

III

DISCUSSION

Velasquez’s sole appellate contention is that the trial court’s in limine 

ruling forced him into an untenable dilemma of choosing whether to refrain 

from testifying, on the one hand, or to testify under the threat of

impermissible impeachment, on the other hand. He asserts this error 

violated state law and his federal constitutional right to testify on his own 

behalf. Velasquez acknowledges the United States Supreme Court and the 

California Supreme Court have both adopted a rule—commonly known as the 

Luce rule—requiring a defendant to testify in order to preserve an appellate 

challenge to an in limine ruling admitting a prior conviction for

impeachment. But he argues the Luce rule does not bar his challenge, 

despite his failure to testify, because it is not a well-founded rule, it has been 

eroded by recent caselaw, and it does not apply to the facts of the present

case. We reject these arguments and conclude the Luce rule bars Velasquez’s 

challenge to the trial court’s in limine ruling.

3 The same jury found codefendant Granados not guilty of all three 

charges pending against him. 
6

In Luce v. United States (1984) 469 U.S. 38 (Luce), the defendant 

moved in limine to preclude the admission of a prior state conviction and the 

federal district court ruled the prior conviction was admissible impeachment 

evidence under former Federal Rules of Evidence rule 609(a)(1).4 On appeal, 

the United States Supreme Court unanimously held that the defendant could 

not challenge the district court’s in limine ruling because, in order “to raise 

and preserve for review [a] claim of improper impeachment with a prior 

conviction, a defendant must testify” at trial. (Luce, at p. 43.) 

The Luce court cited three justifications for this rule. First, it held that

a “court must know the precise nature of the defendant’s testimony” to “rule 

on subtle evidentiary questions,” including when it weighs the probative 

value of a prior conviction against its prejudicial effect; however, such

information “is unknowable when ... the defendant does not testify ....” (Luce, 

supra, 469 U.S. at p. 41.) Second, the Luce court reasoned, “[a]ny possible 

harm flowing from a[n] ... in limine ruling permitting impeachment by a prior 

conviction is wholly speculative” without a defendant’s testimony because an 

appellate court cannot know whether the trial court would have exercised its 

judicial discretion to revisit and alter its prior in limine ruling, or whether 

the prosecution would have “elect[ed] not to use [the] arguably inadmissible 

prior conviction” at trial. (Id. at pp. 41–42.) Third, the Luce court concluded

that, absent a rule requiring a defendant to testify, “almost any error would 

result in the windfall of automatic reversal; the appellate court could not 

4 Federal Rules of Evidence rule 609(a) provides, in relevant part, “The 

following rules apply to attacking a witness’s character for truthfulness by 

evidence of a criminal conviction: [¶] (1) for a crime that ... was punishable by 

death or by imprisonment for more than one year, the evidence: ... [¶] 

(B) must be admitted in a criminal case in which the witness is a defendant, 

if the probative value of the evidence outweighs its prejudicial effect to that 

defendant ....” (Fed. Rules Evid., rule 609(a)(1)(B).) 
7

logically term ‘harmless’ an error that presumptively kept the defendant from 

testifying. Requiring that a defendant testify ... enable[s] the reviewing court 

to determine the impact any erroneous impeachment may have had in light 

of the record as a whole; it ... also tend[s] to discourage making such motions 

solely to ‘plant’ reversible error in the event of conviction.” (Id. at p. 42.)

The California Supreme Court adopted the Luce rule prospectively in 

People v. Collins (1986) 42 Cal.3d 378 (Collins). The Collins court recognized 

that, although “Luce is a rule of federal criminal procedure that the [United 

States] Supreme Court adopted pursuant to its advisory power,” the 

California Supreme Court “has a similar power to adopt rules of criminal 

procedure” and “may look to [federal criminal practice] for guidance in 

fashioning a rule for California courts” when the federal practice implements 

or construes a state or court rule similar to one in effect in California. (Id. at 

p. 385.) The court determined the federal rule of evidence implemented in 

Luce was “similar in effect to the provisions of our Evidence Code” (namely, 

Evidence Code section 352), and “the reasons given by the Supreme Court for 

adopting the Luce procedure ... [are] sound and equally applicable to 

California practice.” (Collins, at p. 385.) Further, it noted “the Luce decision 

was unanimous ... and ... other states that have addressed the matter have 

been virtually unanimous in adopting the Luce rule as their own.” (Ibid.) 

For all these reasons, the Collins court “likewise adopt[ed] the Luce rule as a 

judicially declared rule of criminal procedure in California.” (Ibid.)

Velasquez offers three reasons why the Luce rule does not, or should 

not, apply here. First, he claims our state’s adherence to the Luce rule should 

be revisited because the Luce rule compels a defendant to make an “unfair 

choice”—either testify under the threat of impeachment by means of a 

potentially irrelevant conviction or, alternatively, refrain from testifying and 
8

waive an appellate challenge to the trial court’s in limine admission of the 

impeachment evidence. Relatedly, he contends the Luce rule’s justifications

simply are not “persuasive.” These arguments have no bearing here. In 

Collins, the California Supreme Court adopted the Luce rule as a rule of state

criminal procedure (Collins, supra, 42 Cal.3d at p. 385), and we are bound to 

follow its decision under principles of stare decisis. (Auto Equity Sales, Inc. v. 

Superior Court (1962) 57 Cal.2d 450, 455–456 (Auto Equity).)

Second, Velasquez contends the Luce rule stands in tension with cases

post-dating Collins, which, according to Velasquez, have allowed defendants 

to challenge other types of trial errors on appeal, even when it might be

difficult to assess the prejudice resulting from the claimed errors. We are not 

persuaded that these procedurally distinguishable cases demonstrate an 

erosion of the Luce rule in California.5 In the decades since Collins, the 

California Supreme Court has never reconsidered or backtracked on its 

adoption of the Luce rule. On the contrary, it has repeatedly and 

unequivocally reaffirmed that the Luce rule remains a rule of criminal 

procedure in our state, including in at least one case post-dating the decisions

on which Velasquez relies. (See People v. Duong (2020) 10 Cal.5th 36, 57 [it 

is “settled jurisprudence that defendant must testify to preserve a challenge 

to the court’s tentative ruling on impeachment”]; see also People v. Ledesma 

(2006) 39 Cal.4th 641, 731 [“It is well established that the denial of a motion 

to exclude impeachment evidence is not reviewable on appeal if the defendant 

subsequently declines to testify.”]; People v. Sims (1993) 5 Cal.4th 405, 456

5 Velasquez relies on People v. Rodas (2018) 6 Cal.5th 219, which 

reversed a lower court ruling that allowed trial to proceed despite defense 

counsel declaring a doubt as to the defendant’s competence, and United 

States v. Gillenwater (9th Cir. 2013) 717 F.3d 1070, which held the defendant 

was deprived of the constitutional right to testify at a competency hearing.
9

[“because defendant elected not to testify at his trial, his objections to the 

trial court’s in limine ruling may not be raised on appeal.”].) As noted above, 

we are bound to follow this unbroken chain of decisions from the California 

Supreme Court. (Auto Equity, supra, 57 Cal.2d at pp. 455–456.)

Third, Velasquez argues the Luce rule does not “necessarily” apply here 

because the trial court’s in limine ruling purportedly violated his federal 

constitutional right to testify on his own behalf, whereas no such federal 

constitutional claims were asserted in Luce or Collins.6 We are not 

persuaded by Velasquez’s efforts to circumvent the Luce rule because he has 

not established that the in limine ruling violated his constitutional rights. 

Although the in limine ruling might have played a role in Velasquez’s 

decision not to testify, it certainly did not bar him “from testifying. He was 

free to testify,” if he elected to do so, “subject to impeachment with the prior 

misconduct evidence.” (People v. Sanghera (2016) 6 Cal.App.5th 365, 375 

(Sanghera).) This mere threat of impeachment did not violate Velasquez’s 

constitutional rights. As Collins explained, “[n]o witness ... has the right to 

give testimony immune from ... challenge [by impeachment evidence]. The 

procedure of impeaching by proof of prior felony conviction originated at 

common law, and has long been authorized by our Legislature [citation]. It is 

settled that such impeachment does not violate the due process clause of 

either the federal or the state Constitution.” (Collins, supra, 42 Cal.3d at 

p. 387; see also Currier v. Virginia (2018) 585 U.S. 493, 503 [“whether it’s the 

defendant who must decide between exercising his right to testify in his own 

defense or keeping impeachment evidence of past bad acts from the jury. ... 

6 “[T]he Fifth, Sixth, and Fourteenth Amendments to the United States 

Constitution guarantee that an accused has the right to testify on his or her 

own behalf.” (People v. Gutierrez (2009) 45 Cal.4th 789, 821.)
10

This Court has held repeatedly that difficult strategic choices like these are 

‘not the same as no choice,’ [citation], and the Constitution ‘does not ... forbid 

requiring’ a litigant to make them”]; United States v. Howell (6th Cir. 2021) 

17 F.4th 673, 682 [“Although the possibility of being ‘subject to impeachment 

by the use of a prior conviction’ on cross-examination, in some sense, ‘may 

deter a defendant from taking the stand,’ that possibility does not amount to 

a constitutional violation because such circumstances do ‘not prevent [a 

defendant] from taking the stand.’ ”].) 

Thus, to the extent the in limine ruling was error, it was “one that 

involves state evidentiary rules, not a constitutional right.” (Sanghera, 

supra, 6 Cal.App.5th at p. 374 [applying Luce rule despite claim that pretrial

ruling violated defendant’s constitutional right to testify]; see also United 

States v. Lussier (8th Cir. 2017) 844 F.3d 1019, 1023 [defendant “contends 

that the district court erred in ruling that it would admit impeachment 

evidence of his prior conviction ... if [he] testified, arguing that the ruling 

violated his Fifth Amendment right to due process and his Sixth Amendment 

right to a jury trial. By not testifying, [he] failed to preserve this claim”]; 

United States v. Gunter (6th Cir. 2009) 551 F.3d 472, 483 [defendant 

“attempts to distinguish Luce by arguing that it ... did not reach the 

constitutional right to testify .... This argument is unpersuasive.”]; Galindo 

v. Ylst (9th Cir. 1992) 971 F.2d 1427, 1429 [applying Luce rule despite claim 

that admission of impeachment evidence violated right to testify]; accord 

People v. Rodrigues (1994) 8 Cal.4th 1060, 1175 [noting that “the Luce rule is 

not inconsistent with any constitutional mandate”], italics added, abrogated 

on other grounds as recognized by People v. Leon (2020) 8 Cal.5th 831, 848.)

In any event, assuming Velasquez could raise a valid constitutional 

claim based on the in limine ruling, he does not direct us to any portion of the 
11

record in which his counsel stated that he would refrain from testifying, or 

that he actually refrained from testifying, due to the in limine ruling. Even if 

his counsel had stated as much, we could not say with certainty that the in 

limine ruling was in fact a reason for Velasquez’s waiver of his right to 

testify. “Because an accused’s decision whether to testify ‘seldom turns on 

the resolution of one factor,’ [citation], a reviewing court cannot assume that 

the adverse ruling motivated a defendant’s decision not to testify. In support 

of his [in limine] motion a defendant might make a commitment to testify if 

his motion is granted; but such a commitment is virtually risk free because of 

the difficulty of enforcing it.” (Luce, supra, 469 U.S. at p. 42.)

For all these reasons, we conclude the Luce rule is directly applicable 

and controlling in the present case. Under a straightforward application of 

the Luce rule, Velasquez is precluded from challenging the trial court’s in 

limine ruling based on his failure to testify at trial. (Collins, supra, 42 Cal.3d 

at p. 388; Luce, supra, 469 U.S. at p. 43.)

IV

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

O’ROURKE, J.

CASTILLO, J.