Filed 3/2/21 P. v. Velasco CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEJANDRO JARDER VELASCO

,

Defendant and Appellant. B 30 5629

(Los Angeles County Super. Ct. No. T A 148620 )

APPEAL from an order of the Superio r Court of Los Angeles County, Tammy Chung Ryu , Judge. Affirmed

.

________________________________
Victoria H. Stafford , under appointment by the Court of Appeal, and Alejandro Jarder Velasco, in pro. per, for Defendant and Appellant

. No appearance for Plaintiff and Respondent.

________________________________2 A jury convicted defendant Alejandro Jarder Velasco of
three counts of committing a lewd act on a child under 14 years
of age (counts 1, 2, & 4; Pen. Code, 1 § 288, subd. (a)), one count
of continuous sexual abuse (count 3; § 288.5, subd. (a)), eight

counts of committing a lewd act on a child 14 or 15 years of age (counts 5

– 12; § 288, subd. (c)(1)), two counts of oral copulation with a minor (counts 14, 15; § 2 87, subd. (b)(1), and one count of sexual penetration with a m inor (count 16; § 289, subd. (h))

. The victim of
defendant’s crimes is his wife’s niece, M.R. In connection with counts 2 and 4, the jury also found true allegations that defendant had “ substantial sexual conduct with [M.R.]” within the meaning of section 1203.066, subdivision (a)(8). 2 The jury acquitted defendant of one count of unlawful sexual intercourse with a minor (§ 261.5, subd. (c))

. The court sentenced defendant to prison for 20 years, comprised of the following terms: 12 years on count 3; con secutive

two

- year terms on each of counts 1, 2, and 4; a consecutive eight

- month term on count 5; one

- year concurrent terms on each
of counts 6 through 12; a consecutive eight

- month term on count 14;

a concurrent 16

- month term on count 15; and an eight

- mon th
consecutive term on count 16. The court also imposed a restitution fine in the amount of $300 (§ 1202.4, subd. (b)), imposed and stayed a parole revocation restitution fine in the amount of $300 (§ 1202.45, subd. (a)), imposed a $600 court operations f ee (§ 1465.8, subd. (a)(1), and a $450 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)).

1 Unless otherwise specified, subsequent statutory references are to the Penal Code.

2 This finding precluded the court from granting probation to defendant or suspending the execution or imposition of the sentence

o n count s 2 and 4. (§ 1203.066, subd. (a). )3 Defendant filed a timely notice of appeal. We appointed counsel for defendant, who filed a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende )

, raising no issues on appeal and requesting that we independently review
the record to determine if the lower court committed any error.
On November 25, 2020, counsel sent a copy of the brief and
the record to defendant and i nformed him that he may file a supplemental brief. On November 30, 2020, this court informed
defendant that he may submit a supplemental brief or letter o f

any grounds of appeal

, contentions, or argument he wishes the

court to consider. On January 26, 20 21, defendant submitted a late supplemental brief, which we permitted him to file. We address his arguments below.

FACTUAL SUMMARY M.R. was born in 2002 and was 17 years old at the time
of trial. According to M.R

. , o n a day in June 2010, when she was eig ht years old , she was visit ing in the home of defendant and defendant’s wife, Myrabella . While she was resting on a bed

, d efendant entered the room, lifted M.R.’s shirt, and put his mouth
on M.R.’s breasts for 20 to 30 seconds , then walked away

. Three years later, M.R. began residing permanently in the
defendant and Myrabella ’s home . During the next six years, defendant committed lewd and sexually abusive acts against M.R. almost daily. The abuse included , among other acts, defendant orally copu lating M.R.

, defendant penetrating M.R.’s vagina with his finger

, defendant sucking M.R.’s breasts, touching M.R.’s genitalia with his penis, and having M.R. orally copulate him. Myrabella first suspected sexual activity between defendant
and M.R. on Febru ary 16, 2019, when she saw a text message on M.R.’s phone stating: “Do you want me to kiss your thin g ? You want me to give sweet kisses? Do y ou want me to kiss it?” The4

message further stated, “ [ M .R.] I love you. Come suck me more.” Myrabella determi ned that the text was sent from defendant’s cell phone

. Myrabella became distraught by the message and, on February 19, 2019, told defendant she did not trust him and asked
him to leave their home. When defendant asked her why, she
told him, “ [ D ] on’t tell me that you do not know.” D efendant then
called M.R. and said, “I think she found out about us,” and told M.R. that if Myrabella asks, to “deny it.” Defendant also sent M.R. numerous text messages telling her to “ deny it,” and directing her to delete their messages. When Myrabella confronted M.R., M.R. told her that defendant had been molesting her “from the summer before third grade up until” the present. Myrabella and M.R. informed law enforcement about the
abuse on A pril 5, 2019.

DISCUSSION

Defendant’s 25

- page supplemental brief, which lacks headings or distinct parts, appears to raise the following arguments: (1) The evidence was insufficient to support the verdicts; (2) defendant was deprived of his right to a fair trial because of juror bias, judicial bias, and juror misconduct ; (3) the court erred by denying his request for new counsel pursuant

to People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ) ; and (4) he

was deprived of his right to the effective assistance of counsel

.
A. Sufficiency of the E vidence Defendant challenges the sufficiency of the evidence supporting his convictions. In assessing this argument, our task
is to “ review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial
evidence

— that is, evidence which is reasonable, credible, and5

of solid value

— such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. ” ( People v. Johnson (1980) 26 Cal.3d 557, 578 .) In making this determination, we “ view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. ” ( People v. Jones (1990) 51 Cal. 3d 294, 314 .) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses

. ( People v. Maury (2003) 30 Cal.4th 342, 403 ; People v. Little (2004) 115 Cal.App.4th 766, 771 .)
Defendant contends that because a forensic examination
of his cell phone and a flash drive revealed no incriminating evidence of text messages or videos, there is no evidence that
he sent the text message Myrabella found on M.R.’s phone. Even
in the absence of such evidence, however, th e testimony of M .R.,

as to defendant’s conduct over the course of nine years provides substantial evidence to support the convictions. Although the evidence regarding the text message was relevant to show how Myrabella learned of defendant’s relationship with M.R., it was,
in light of other evidence, unnecessary to establish the elements
of his crimes. Defendant devotes much of his brief to arguments that M.R. and Myrabella testified falsely or created the alleged misimpression that M.R. is “naïve and [he is] a cold blood ed monster.” He dismisses the evidence of his sexual abuse of M.R. as “assumed, coerced,

. . . pure allegations” and “lies.” M.R.’s testimony that the
sexual abuse occurred five to seven times each week for nine years is, he contends, “[a ]n absurd exaggeration.” He asserts that M.R.
is not only “a pathological liar,” but “a very ungrateful one

, ” and Myrabella is “a liar [and] a half.” These contentions are not within our purview

. As stated above, issues concerning the credibility of
witnesses and the determination of the truth or falsity of testimony6

are within “ the exclusive province of the trial judge or jury .” ( People v. Maury , supra, 30 Cal.4th at p. 403.) We will not disturb them.
Based on our independent review of the record, there is no arguable issue concerning the sufficiency of the evidence supporting
the convictions.

B. Fair Trial Issues Defendant asserts various arguments that implicate his right
to a fair trial. He contends that dur ing jury selection, a prospective juror stated that she “already hates” defendant because she was

a rape victim. Nevertheless, the juror was ultimately selected
for the jury and became the jury forewoman. Defendant does not, however, refer us to the reco rd for this argument and our record does not include a transcription of juror voir dire. We cannot, therefore, review the claim. Defendant contends that his counsel, the prosecutor, the judge, the juror who hated him, and his accusers were biased against him because they are female. The argument is based on conjecture and made without reference to evidence of bias; in short,
it is meritless.
Defendant further contends that his sisters were in the courtroom while the jury deliberated and heard the jurors l aughing. The argument is without support in the record.

C

. Marsden Hearing Prior to the start of trial, defendant requested and was granted a Marsden hearing. Under Marsden

, “ ‘ “ ‘ [w] hen a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the
trial court must permit the defendant to explain the basis of
his contention and to relate specific instances of the attorney ’ s inadequate performance. [Citation.] A defendant is ent itled to relief if the record clearly shows that the first appointed attorney7

is not providing adequate representation [citation] or
that defendant and counsel have become embroiled in such

an irreconcilable conflict that ineffective representation is like ly

to result. ’ ” [Citation.] The decision whether to grant a requested substitution is within the discretion of the trial court; appellate
courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replace ment counsel would “substantially impair” the defendant ’ s right to effective assistance
of counsel. ’ ” ( People v. Abilez ( 2007) 41 Cal.4th 472, 487

– 488.) Defendant contends the court’s failure to appoint new
counsel was error. We have reviewed the transc ript of the Marsden hearing. The court allowed defendant to express his concerns about counsel and her representation of him and gave him the opportunity to relate specific instances of her inadequate performance

. The court permitted counsel to respond to defendant’s
assertions and determined there had not been a breakdown in the relationship between them such that it would make it impossible for counsel to properly represent defendant. Based on our review, t he
court did not abuse its discretion in denying defendant’s Marsden
motion

.

D

. I neffective Assistance of Counsel Defendant asserts that he was deprive d of his right to the effective assistance of counsel in numerous ways, including failing to file unspecified motions on his beha lf

, having “a preconceive[d] notion that the trial will result in conviction,” failing to “ present character witnesses ” he had offered, advising him not to testify at trial, and failing to challenge the allegedly false evidence presented by M.R. and Myrabe lla.
To demonstrate ineffective assistance of counsel, defendant
“must show that counsel ’ s performance was deficient, and that
the deficiency prejudiced the defense.” ( Wiggins v. Smith (2003)8

539 U.S. 510, 521, citing Strickland v. Washington (1984) 466 U.S. 668, 687 .) Defendant has failed to establish, and our review of
the record does not reveal, an arguable issue as to either of these
elements.

E. Conclusion

Pursuant to Wende , we have review ed the record to
determine whether there is any arguabl e issue. Based on our
review of the record , defendant’s contentions, and the applicable law, we are satisfied that defendant’s coun sel has fully complied
with h er responsibilities and that no arguable appellate issue s exist. ( Wende, supra, 25 Cal.3d at p

. 441; People v. Kelly (2006)
40 Cal.4th 106, 110.)

DISPOSITION

The judgment is affirmed.
NOT TO BE PUBLISHED

.

ROTHSCHILD, P. J.
We concur:

CHANEY, J.

BENDIX, J.