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Filed 7/6/16 P. v. Velasquez-Mosqueda CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN OMAR VELASQUEZ-MOSQUEDA,

Defendant and Appellant.

C075426

(Super. Ct. No. 12F04699)

A jury convicted defendant Juan Omar Velasquez-Mosqueda of kidnapping 

and assault on a minor with force likely to produce great bodily injury. The trial court 

sentenced him to an aggregate of six years in prison.

Defendant now contends (1) the trial court abused its discretion in selecting 

the midterm of five years on the kidnapping count, and (2) if defense counsel needed 

to object in the trial court to preserve the first contention for appeal, defendant received 

ineffective assistance of counsel.

We conclude (1) defendant forfeited his first contention because his defense 

counsel did not object to the sentence in the trial court, and (2) defendant has not 

established ineffective assistance of counsel.

We will affirm the judgment.
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BACKGROUND

In July 2012, the victim, who was 14 years old at the time, went with two friends

to a birthday party at a house. Pebbles Savala, who lived at the house, was dating Edgar 

Mares, who had previously dated the victim. Pebbles informed Edgar by telephone that 

she was going to beat up the victim. Edgar was incarcerated at the time. The phone 

conversation between Pebbles and Edgar was recorded and played for the jury.

About 35 minutes after arriving at the house, the victim received a text message 

from her mother telling her to come home. When the victim attempted to leave, Pebbles

confronted her and said, “Why are you talking about me?” Pebbles punched the victim 

numerous times. Pebbles’s brother, David Savala, videotaped the incident and 

encouraged Pebbles to hit the victim. The videotape was played for the jury. While 

Pebbles was hitting the victim, other people at the party yelled, “Get her, get her.” At 

one point, A.C., M.A., David and defendant joined in the attack. Defendant punched the 

victim in the face and kicked or hit the victim in her “private area.” He also attempted to 

pull the victim’s pants down.

After the attack ended, David pushed the victim out the front door and told her to 

go home. As the victim walked home, the previous attackers pulled up in a van and 

began yelling at her, and the victim took off running. Defendant grabbed the victim by 

the hair, pushed her into the back of the van and forced her into a face down position by 

grabbing her hair. Defendant held the victim down for about five minutes, even though 

the victim said she could not breathe.

While traveling in the van, David told defendant to have sex with the victim in the 

back seat. Defendant touched and rubbed the victim’s thigh. He also touched the 

victim’s vagina over her clothes. When the victim pulled defendant’s hand away and told 

him to stop, defendant punched her in the face. Defendant then repeatedly attempted to 

put his hand down the victim’s bra. He finally stopped after about the fifth time the 

victim told him to stop.
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Pebbles and others in the van threatened to prostitute the victim. That night they 

all stayed in the same room. The next day, Pebbles, A.C. and M.A. told the victim to 

take a shower because they were going to prostitute her for money. While the victim was 

in the shower, A.C. took a picture of her to post on a prostitution website.

When the victim got out of the shower, she wrapped herself with a towel and went 

into A.C.’s room. Defendant came into the room and attempted to take the victim’s towel

off. The victim resisted and defendant punched her in the face. After defendant left the 

room, Pebbles told the victim she was going to make them a lot of money working as a 

prostitute.

Following a trip to Walmart where the victim was told to shoplift certain items,

Pebbles, defendant, and another individual drove the victim to an area known for 

prostitution. However, because there was no one driving around, they decided to leave. 

Around 2:00 a.m., the victim was dropped off in front of an apartment complex where 

she used to live. Pebbles told the victim not to “snitch” because she has gang members in 

her family. The victim walked home and told her mother what happened.

The jury found defendant guilty of kidnapping (Pen. Code, § 207, subd. (a) --

count 2)

1 and assault on a minor with force likely to produce great bodily injury (§ 245, 

subd. (a)(4) -- count 3). The jury found defendant not guilty of aggravating kidnapping 

(§ 209, subd. (a) -- count 1) and was unable to reach a verdict on the charge of sexual 

battery (§ 243.4, subd. (d)(1) -- count 5), which was dismissed upon a motion by the 

prosecutor.

The probation report recommended an aggregate prison term of nine years,

consisting of the upper term of eight years for the kidnapping and a consecutive one year

(one-third the midterm) for the assault. As to circumstances in aggravation, the report 

 

1 Undesignated statutory references are to the Penal Code.
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identified three circumstances: (1) the crime involved great bodily harm, threat of great 

bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness

(Cal. Rules of Court, rule 4.421(a)(1));

2 (2) the manner in which the crime was carried 

out indicated planning (rule 4.421(a)(8)); and (3) defendant engaged in violent conduct 

indicating that he is a serious danger to society (rule 4.421(b)(1)). As to criteria affecting 

consecutive or concurrent sentences, the report stated that a consecutive sentence was 

appropriate because the crimes committed by defendant involved separate acts of 

violence or threats of violence. (Rule 4.425(a)(2).) As circumstances in mitigation, the 

report noted that defendant was youthful (age 19) (rule 4.408) and had no prior criminal 

record (rule 4.423(b)(1)).

At sentencing, the prosecutor argued for the sentence recommended by the 

probation officer, while defense counsel argued for probation or the low term on each 

count. The trial court sentenced defendant to an aggregate term of six years in prison, 

consisting of the midterm of five years for the kidnapping and a consecutive one year 

(one-third the midterm) for the assault. The trial court explained that it chose the 

midterm for the kidnapping count because the factors in mitigation (defendant’s age and

lack of prior criminal record) balanced the factors in aggravation (the fact that the crime 

involved great violence and great bodily harm disclosing a high degree of cruelty, 

viciousness, and callousness, and defendant’s conduct indicates he is a serious danger to 

society). The trial court noted defendant’s repeated failure to follow the rules in jail --

the probation report said defendant failed to rise for count on five separate occasions and 

left his cell without permission on two occasions when the jail was on lockdown -- and 

the trial court also noted that defendant had engaged in other instances of misconduct 

after the probation report was prepared, such as being in the wrong cell, improperly 

 

2 Undesignated rule references are to the California Rules of Court.
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pushing the panic button for an hour, and sneaking out of his cell to use the phone. 

The trial court said defendant’s behavior showed an increasing defiance to correctional 

officers and did not reflect true repentance, sorrow or a willingness to conform to the 

rules of society.

DISCUSSION

I

Defendant contends the trial court abused its discretion in selecting the midterm 

of five years on the kidnapping count. The contention is forfeited.

“A party in a criminal case may not, on appeal, raise ‘claims involving the trial 

court’s failure to properly make or articulate its discretionary sentencing choices’ if the 

party did not object to the sentence at trial. [Citation.] The rule applies to ‘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.’ ” (People v. Gonzalez (2003) 31 Cal.4th 745, 751; see People v. 

McCullough (2013) 56 Cal.4th 589, 594-595, 597, 599.)

The record reflects that defendant’s counsel had a fair opportunity to object 

to the trial court’s sentencing decision but did not. Nevertheless, defendant argues 

his statement in mitigation and request for probation were tantamount to an objection

to the sentence imposed. We disagree. Objections to an imposed sentence must be 

sufficiently specific to provide the trial court with a meaningful opportunity to correct 

any errors. (People v. De Soto (1997) 54 Cal.App.4th 1, 9.) The failure to object with 

specificity results in forfeiture of the claims on appeal. (Id. at p. 10.) Because defendant 

failed to specifically object to the trial court’s sentencing decision, he has forfeited his 

right to challenge that decision on appeal.
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II

Defendant next claims that if his trial attorney needed to object in the trial court 

to preserve the first contention on appeal, defendant received ineffective assistance 

of counsel.

To establish a claim of ineffective assistance of counsel, defendant must prove that 

(1) trial counsel’s representation was deficient because it fell below an objective standard 

of reasonableness under prevailing professional norms, and (2) the deficiency resulted in 

prejudice to defendant. (People v. Mai (2013) 57 Cal.4th 986, 1009; Strickland v. 

Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) “Prejudice is shown 

when there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. 

Williams (1997) 16 Cal.4th 153, 215.) If defendant makes an insufficient showing on 

either one of these components, his ineffective assistance claim fails. (People v. Holt

(1997) 15 Cal.4th 619, 703; Strickland v. Washington, at p. 687.)

“It is particularly difficult to prevail on an appellate claim of ineffective 

assistance. On direct appeal, a conviction will be reversed for ineffective assistance only 

if (1) the record affirmatively discloses counsel had no rational tactical purpose for the 

challenged act or omission, (2) counsel was asked for a reason and failed to provide one, 

or (3) there simply could be no satisfactory explanation. All other claims of ineffective 

assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. 

Mai, supra, 57 Cal.4th at p. 1009, italics omitted.) As a general matter, because the 

failure to object to evidence usually involves a tactical decision on counsel’s part, it 

rarely establishes a counsel’s incompetence. (People v. Frierson (1979) 25 Cal.3d 142, 

158; see also People v. Boyette (2002) 29 Cal.4th 381, 433.)
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To properly analyze whether defendant’s trial counsel was ineffective in failing 

to object, it will be helpful to review the applicable substantive law and the trial court’s 

exercise of discretion.

Under California’s determinate sentencing law, three terms of imprisonment are 

specified by statute for most offenses. (People v. Sandoval (2007) 41 Cal.4th 825, 836.) 

“Kidnapping is punishable by imprisonment in the state prison for three, five, or eight 

years.” (§ 208, subd. (a).) The choice of the appropriate term rests within the sound 

discretion of the court. (§ 1170, subd. (b).) In exercising his or her discretion, “the 

sentencing judge may consider circumstances in aggravation or mitigation, and any other 

factor reasonably related to the sentencing decision. The relevant circumstances may be 

obtained from the case record, the probation officer’s report, other reports and statements 

properly received, statements in aggravation or mitigation, and any evidence introduced 

at the sentencing hearing.” (Rule 4.420(b).)

When making sentencing decisions, trial courts have wide discretion in weighing 

aggravating and mitigating factors. (People v. Avalos (1996) 47 Cal.App.4th 1569, 

1582.) A single valid aggravating factor justifies the upper term. (People v. Black (2007) 

41 Cal.4th 799, 815.) In making discretionary sentencing decisions, the trial court “is not 

prohibited from considering evidence underlying charges of which a defendant has been 

acquitted.” (People v. Towne (2008) 44 Cal.4th 63, 71.) Abuse of discretion only occurs 

when the trial court’s determination is “arbitrary or capricious” or exceeds the bounds of 

reason. (People v. Welch (1993) 5 Cal.4th 228, 234.)

Here, the trial court chose the midterm sentence on the kidnapping count because 

it determined that the factors in mitigation balanced the factors in aggravation. The trial 

court did not abuse its discretion in weighing the aggravating and mitigating factors and 

determining that a midterm sentence was appropriate. The sentencing choice was not 

arbitrary or capricious and did not exceed the bounds of reason.
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Moreover, the trial court did not err in relying on the aggravating factors it cited at 

sentencing. There was evidence showing that defendant punched the victim in the face, 

kicked or hit her in her “private area,” and attempted to pull her pants off at the party. 

There was also evidence showing that, after the victim left the party, defendant punched 

the victim in the face on two separate occasions, dragged her into a van by her hair, 

forced her face into a downward position by grabbing her hair, touched and rubbed her 

thigh, touched her vagina on the outside of her pants, repeatedly attempted to touch her 

breasts, and attempted to pull a towel off of her. In addition, there was evidence showing 

that defendant was present on both occasions when the victim was driven to an area 

known for prostitution and told she was going to have to work as a prostitute against her 

will. The record amply supports the trial court’s determination that defendant’s acts 

involved great violence and great bodily harm disclosing a high degree of cruelty, 

viciousness, and callousness, and that defendant is a serious danger to society. 

Defendant’s crimes, which were perpetrated over an extended period of time and in the 

view of others, not only caused physical harm to the victim but also exposed her to fear, 

shame, and humiliation.

Furthermore, it was not improper for the trial court to use the fact that defendant 

punched the victim at the party as an aggravating factor. The prohibition against dual use 

in rule 4.420(d) applies to using an element of a crime to impose the upper term; it does 

not apply when, as here, the middle term is imposed. (See People v. Haynes (1984) 

160 Cal.App.3d 1122, 1137-1138.)

In addition, the trial court did not err in considering defendant’s behavior in jail. 

As defendant concedes, the trial court did not find that the jail conduct was an 

aggravating factor. Instead, the trial court noted defendant’s behavior in jail as further 

support for its determination that defendant was a serious danger to society. In any event, 

because such conduct was reasonably related to the trial court’s sentencing decision, the 

trial court had the discretion to consider it. (Rule 4.420(b).)
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Thus, on the record before us, we cannot say trial counsel’s representation was 

deficient. In view of the egregious nature of defendant’s conduct and the trial court’s 

explanation for its chosen sentence, it cannot be said that there was no rational purpose 

for trial counsel’s failure to object to the sentence imposed. The trial court relied on valid 

aggravating and mitigating circumstances set forth in the rules of court in making its 

sentencing decision. Further, the trial court did not err in considering defendant’s 

behavior in jail because it was reasonably related to its sentencing decision. Under the 

circumstances, trial counsel could have reasonably concluded that an objection would not 

have resulted in a reduction of defendant’s sentence. Indeed, given the circumstances in 

aggravation, the trial court would have acted well within its discretion if it had imposed 

the upper term as requested by the probation officer and the prosecutor. Thus, we cannot 

fault counsel for not making what would have been a futile objection. Moreover,

defendant failed to establish prejudice. It is not reasonably probable that, absent the 

alleged errors by trial counsel, the trial court would have chosen a lesser sentence. 

Accordingly, defendant’s claim of ineffective assistance of counsel fails.

DISPOSITION

The judgment is affirmed.

 /S/

MAURO, J.

We concur:

 /S/

NICHOLSON, Acting P. J.

 /S/

RENNER, J.