Filed 10/1/15 P. v. Lozano CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent ,

v. RUBEN LOZANO, Jr ., Defendant and Appellant. F069287 (Super. Ct. No s . F12904172 & F12906646)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Fresno County. William K.
Levis

. (Retired Judge of the Fresno Sup. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.)
Gabriel C. Vivas , under appo intment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

- ooOoo

-

* Before Gomes, Acting P.J., Detjen, J. and Franson, J.2

.

In ca se Nos. F1 2904172 and F12906646 appellant Ruben Lozano, Jr. , pled no

contest in each case to a count of petty theft with prior s (Pen. Code , § 666) , 1 admitted a prior prison term enhancement (§ 667.5, subd. (b) ) , and was sentenced to local time followed by release on mandatory supervised relea se (MSR). After he violated the terms of his MSR, he was ordered to serve his remaining time in local custody. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND On June 6, 2012, adult students at a “ DUI ” c lass saw Lozano carrying away one of
their bicycle s as ano ther man was putting a nother bicycle i n the bed of a pickup. The
students s urrounded Lozano and he was handcuffed by t he class instructor who was also a loss prevention officer (case No. F12904172). On June 8, 2012, the district attorney filed a felony complaint in case
No. F12904172 charging Lozano with petty theft with prior s and a prior prison term
enhancement. On August 6, 2012, Lozano walked out of a Home Depot store with a sink faucet valued at $169 without paying for it. Lozano was detained and told the loss prevention
officer that he and a friend would return the me rchan dise for credit or a gift card. Lozano would then take the card to a business called “Get Cash Now” and exchange it for 68 percent of the card’s value (case No. F12906646 ). On August 31, 2012 , the district attorney filed a felony complaint in case
No. F129 06646 charging Lozano with commercial burglary (count 1/§ 459), petty theft with priors (count 2), and a prior prison term enhancement. On November 29, 2012, Lozano entered into a plea deal in both cases pursuant to which he pled no contest in case No. F1 2904172 to petty theft with priors for a lid of two

1 All statutory references are to the Penal Code unless otherwise noted.3

.

year s in that case which would be split between local custody time and supervised
release. In case No. F12906646 , Lozano pled no contest to petty theft with prior s , and admitted the prior prison term enhancement in exchange for the dismissal of the remaining count and a lid of three years, which would run concurrent to the term imposed
in case No. F 12904172

. The agreement also provided that two unrelated misdemeanor

cas es would be dismisse d. On January 7, 2013, in case No. F12904172 the court sentenced Lozano to an aggregate three

- year local term, the middle term of two year s on his petty theft with prior s conviction in that case , and a one

- year pr ior prison term enhancement. Eighteen months of this term were to be served in custody and 18 months on MSR. In case No.
F12906646 the court sente nced Lozano to a local term of two years on his petty th eft
conviction in that case , to run concurrent wi th the term imposed in case No. F12904172

. The court also ordered that he serve one year of this term in custody and one year on MSR. On August 24, 2013, Lozano was released on MSR. On November 25, 2013, Lozano missed an appointment with his probation officer. Additionally , following his release on MSR , Lozano was arrested numerous times for new charges, including on November 26, 2013, and November 29, 2013. On January 8, 2014, and January 9, 2014, Lozano failed to appear at a court hearing.
O n March 17, 2014, the probation department (department) filed a MSR r eport alleging that Lozano violated his probation by failing to report to the department on November 25, 2013, being out of contact with the department since October 24, 2013, and failing to obey all laws by committing s everal ne w violations. The court summarily revoked Lozano’s MSR. On February 3, 2014, Lozano was arrested on outstanding bench warrants.4

.

On March 3, 2014, Lozano admitted that he violated the terms of his MSR in both
cases. The court then sentenced Lozano to serve the remaining time in each case concurrently in custody. However, after the matter was recalled , the court granted Lozano’s request to withdraw his admissions in both cases. On March 17, 2014, after Lozano again admitted that he violated the terms of his
MSR in both cases , t he court again sentenced him to serve the remaining time in each case concurrently in custody. Lozano’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and a sks this court to independently review the record. ( People v. Wende , supra , 25 Cal.3d 436.) Lozano has not responded to this court’s invitation to submit additional briefing. Following an independent review of the record we find that no reasonably
argua ble factual or legal issues exist.
DISPOSITION The judgment is affirmed.