Opinion
D041397.
7-1-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE M. LOZANO, Defendant and Appellant.
A jury convicted Jose M. Lozano of forcible rape while acting in concert (Pen. Code, §§ 261, subd. (a)(2), 264.1), forcible rape ( § 261, subd. (a)(2)), false imprisonment ( §§ 236/237, subd. (a)), and sexual intercourse with a minor under 16 years of age ( § 261.5, subd. (d)). The court sentenced him to prison for the seven— year middle term for forcible rape while acting in concert. It imposed a concurrent term for false imprisonment and stayed sentence on the remaining convictions ( § 654).
All statutory references are to the Penal Code.
FACTS
Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738), the following occurred. On December 29, 2000, 17-year-old Judy B., 15-year-old Jessica B., and 15-year-old A. went with three males, Sam, Lozano, and Frederico to Sams apartment where they drank beer and tequila. In the apartment, A. told them she was 15 years old and she kissed Killer. Jessica kissed Lozano. Judy and Jessica went outside. They returned and told A. they would be outside. She declined their offer to join them. After Judy and Jessica went outside, Sam joined them. While Sam, Jessica, and Judy were outside, Lozano said to A. and Killer, "were going to have a threesome." Lozano sat on the couch and tried to push A.s head down to his penis. A. told Killer she wanted to go somewhere else. She wanted to get away from Lozano. Killer walked to the bedroom and A. followed. Lozano followed them. Lozano put a chair against the door and pushed A. onto the bed. While Killer held A. down, Lozano forcibly engaged in sexual intercourse with her. After Lozano was finished, Killer engaged in sexual intercourse with A. After about 15 or 20 minutes, A. came out of the apartment crying. A. said, "They raped me" and "I think I just lost my virginity." A. became pregnant and had an abortion.
The record does not disclose Sams surname. Sam is also referred to as Florencio.
Lozano is referred to in the record as Shyboy.
Frederico is referred to in the record as Killer. The record does not disclose his surname.
Jessica testified that when she was 12 or 13 years old, she had a sexual relationship with Lozano. There was no objection to Jessicas testimony. The DNA examination revealed Lozano was likely the father of the fetus taken from A.
Lozano initially told police he did not engage in sexual intercourse with A. He later testified that he did engage in sexual intercourse with A. but it was consensual. He testified he believed A. was 17 years old.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071. Pursuant to Anders v. California (1967) 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, counsel refers to as possible but not arguable issues: (1) whether there is sufficient evidence to support the convictions; (2) whether the trial court abused its discretion in imposing the seven— year sentence; (3) whether the trial court erred in admitting evidence that Lozano engaged in sexual intercourse with Jessica when she was underage; and (4) whether the trial court erred in failing to give a limiting instruction on the evidence of Lozanos prior sexual conduct.
We granted Lozano permission to file a brief on his own behalf. He has not responded. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Lozano on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, J. and OROURKE, J.