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People v. Lozano

California Court of Appeals, Second District, Fifth Division
Jul 22, 2008
No. B198513 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a sentence of the Superior Court of Los Angeles County No. VA095461, Leland H. Tipton, Judge.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Lawrence M. Daniels, Supervising Deputy Attorneys General, and Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.


MOSK, J.

INTRODUCTION

Defendant and appellant Luis Lozano (defendant) and four other Hispanic males confronted four African-American males in the parking lot of a store. At defendant’s urging, one of the Hispanic males, co-defendant Efrain Garcia (Garcia), pulled a handgun and shot two of the African-American males, causing them serious but nonfatal injuries.

Defendant pleaded no contest to four counts of assault with a firearm and admitted the gang activity allegation. The trial court found defendant guilty on all four counts, sentenced him on count 1 to the upper term over his counsel’s objection, which objection was based on Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham), and imposed an aggregate sentence on all counts of 13 years, eight months.

Defendant filed a notice of appeal from his sentence, citing Cunningham, supra, 127 S.Ct. 856. On appeal, appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) requesting us to review independently the entire appellate record. After review of the record, we requested the parties to submit letter briefs addressing the Supreme Court’s recent decision in People v. French (2008) 43 Cal.4th 36 (French). Based on the holding in French, it appears that the trial court sentenced defendant to the upper term on count 1 in violation of his rights under Cunningham, supra, 549 U.S. 270, but that any such error was harmless. We therefore conclude that no other arguable issues exist and affirm the sentence from which defendant appeals.

FACTUAL BACKGROUND

The facts are taken from the testimony presented at the preliminary hearing.

Julius White was sitting on the front steps of his apartment complex in Bellflower with his friend, Bryce Smith, when they observed defendant ride by them on a bicycle. Defendant was staring at White and Smith, so they stood up. Defendant turned around, came back, and asked them if they knew him. When White and Smith told defendant “no,” he asked them “where [they] were from.” White and Smith told defendant that they did not “bang.” Defendant told them he was from “Dominguez Barrio.” White’s girlfriend then advised him to get into the car with her and her father so they could drive White and Smith to an A.M./P.M. market.

White identified defendant in court at the preliminary hearing as the man on the bicycle and testified that defendant had a tattoo on his neck and the back of his head.

When White and Smith arrived at the A.M./P.M. market, White saw defendant on his bicycle in the middle of the parking lot looking in their direction. White did not “think anything of it. [He] thought it [the incident with defendant] was done,” so he and Smith continued to walk toward a Kentucky Fried Chicken location. As they walked toward that location, White noticed defendant following behind them, looking at them. White and Smith decided to go to Smith’s house which was close. They crossed the street towards a bank and a Rite-Aid store. They went between the bank and the Rite-Aid “because it was . . . a shorter walking distance.”

In the parking lot of the Rite-Aid store, defendant on his bicycle “pulled in front” of White and Smith and told them they had to “pay taxes” to leave Bellflower that day. White and Smith continued walking, and White noticed four Hispanic males coming towards them. White and Smith started walking faster and saw two African-American men coming out of the Rite-Aid store. They asked the men for help. The two men put their packages in their car and then told the four Hispanic men who had walked up to White and Smith to “fight one on one.” Defendant replied “[W]e don’t fight. We just kill people,” and he told one of the Hispanic males, Garcia, to “just blast them.”

The man to whom defendant made the “blast them” comment was co-defendant Garcia.

White focused his attention on Garcia, who was circling the car of the two African-American men who were trying to help White and Smith. As Garcia came around from the back of the car, White noticed him reaching into his pocket and saw what looked like the handle of a gun. White turned to run, but his path was blocked by the door of the car. He tried to jump into the car, but while doing so he “got hit” and felt pain in his right leg. He had heard at least two gunshots but did not see who fired the shots.

White told one of the deputy sheriffs who responded to the scene that he had been “shot in the butt.” The Los Angeles County Fire Department responded to the scene and confirmed that White had been shot once in the “right butt cheek.” One of the two African-American men who tried to help White and Smith was shot in the shoulder.

PROCEDURAL BACKGROUND

Defendant and co-defendant Garcia were charged in a felony complaint with four counts of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2). The complaint alleged as to counts 1 and 2 that the charged assaults were committed for the benefit of, at the direction of, and in association with a criminal street gang in violation of section 186.22, subdivision (b)(1)(B).

All further statutory references are to the Penal Code.

At the preliminary hearing, White testified, but before he completed his testimony, defendant and Garcia entered into plea agreements. Defendant agreed to plead no contest to all four counts and admit the gang activity allegation, with the understanding that the trial court could impose a maximum sentence of 13 years, eight months. Defendant entered his plea on October 24, 2006.

The trial court thereafter imposed sentence on defendant on January 30, 2007, as follows: an upper term of four years on count 1, plus five years on the gang activity enhancement pursuant to section 186.22, subdivision (b)(1)(B); a consecutive one-year sentence on count 2, based on one-third of the mid-term, plus a one-year, eight month consecutive sentence based on one-third of the five-year enhancement under section 186.22; a consecutive one-year sentence on count 3, based on one-third of the mid-term; a consecutive one-year sentence on count 4, based on one-third of the mid-term, for an aggregate sentence of 13 years, eight months. Defendant’s counsel made a specific objection to the upper term sentence on count 1 under Cunningham, supra, 127 S.Ct. 856—which was decided on January 22, 2007—and thereafter filed an appeal from the sentence citing Cunningham.

DISCUSSION

As noted above, appointed counsel filed an opening brief in accordance with Wende, supra, 25 Cal.3d 436. We gave notice to defendant that his appointed counsel had not found any arguable issues, and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted this court to consider. Defendant did not file a supplemental brief.

We examined the entire record, including the record of defendant’s plea of nolo contendere to count 1 and his sentence. Based on that independent review and the Supreme Court’s recent decision in French, supra, 43 Cal.4th 36, we requested the parties to submit letter briefs on the issue of whether defendant waived his right under Cunningham, supra, 549 U.S. 270 to a jury trial on the aggravating factors relied upon by the trial court to impose the upper term sentence on count 1. Defendant now contends that there was Cunningham error, and the Attorney General concedes that point, but argues that any such error was harmless.

After reviewing the respective letter briefs of the parties, we have concluded that, in light of the Supreme Court’s decision in French, supra, 43 Cal.4th 36, defendant did not waive his right to a jury trial on the aggravating factors relied upon by the trial court in imposing the upper term sentence on count 1 because the plea preceded Cunningham, supra, 549 U.S. 270. Therefore, the trial court erred in imposing the upper term without a jury trial on that issue. We, however, agree with the Attorney General’s contention that, based on the record before us, any such error was harmless.

At the sentencing hearing, the trial court made the following findings concerning aggravating factors: “[T]he crime involved great violence, great bodily harm, threat of great bodily harm and disclosed a high degree of cruelty, viciousness or callousness and defendant induced others to participate in the commission of the crime, occupied a position of leadership, shown by his words during the commission of the crime, and . . . the manner in which the crime was carried out indicat[ed] planning and sophistication.” As noted above, after making the foregoing findings without the aid of a jury, the trial court then imposed the upper term sentence on count 1 in violation of defendant’s right to a jury trial on aggravating factors under Cunningham, supra, 549 U.S. 270.

In People v. Sandoval (2007) 41 Cal.4th 825, 839, the Supreme Court held that so-called Cunningham error may be deemed harmless “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . .” We therefore review the record applying that standard to determine if the error was harmless.

The record in this case reflects that the trial court heard White’s eyewitness testimony at the preliminary hearing. That testimony described defendant’s conduct on the day of the incident, including that he followed White and Smith, accosted them along with four cohorts in the parking lot of the Rite-Aid store, and demanded money. When White and Smith sought the assistance of two African-American men, one of whom admonished defendant and his cohorts to fight fair, defendant replied “We don’t fight. We just kill people.” Thereafter defendant urged Garcia, who was circling around White and Smith, to “just blast them.” White saw Garcia approach from behind and pull what looked like a gun from his pocket. As White attempted to flee, he was shot in the backside. White’s injuries, while not life threatening, were serious.

A jury presented with such testimony would have unquestionably found true at least one of the factors relied upon by the trial court in imposing the upper term. Among other things, White’s testimony demonstrated that the manner in which the crime was carried out involved planning and sophistication, great violence, great bodily harm, and a high degree of cruelty, viciousness, and callousness. In particular, defendant’s boast that “We just kill people” and his directions to Garcia to “just blast them”―uttered just before White was shot from behind―show beyond a reasonable doubt a high degree of viciousness and callousness towards human life.

Based on our review of the record under the applicable standard for determining harmless error, any Cunningham error was harmless and there are no other arguable issues on appeal. We are therefore satisfied that defendant’s counsel has fully complied with her responsibilities under Wende, supra, 25 Cal.3d 426.

DISPOSITION

The sentence of the trial court is affirmed.

We concur: ARMSTRONG, Acting P. J. KRIEGLER, J.


Summaries of

People v. Lozano

California Court of Appeals, Second District, Fifth Division
Jul 22, 2008
No. B198513 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Lozano

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LUIS ALBERTO LOZANO, Defendant…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Jul 22, 2008

Citations

No. B198513 (Cal. Ct. App. Jul. 22, 2008)