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Filed 6/5/ 24 P. v. Lozano CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION F IVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROCKY JOSEPH LOZANO,

Defendant and Appellant. A16 6219

( Sonoma County Super. Ct. No s

. SCR

- 750623

- 1, SCR

- 740062

- 1,

SCR741897

- 1 )

MEMORANDUM OPINION 1

Defendant Rocky Joseph Lozano appeals from a judgment following a

jury trial in which he was found guilty of vehicle theft as well as evading and

resisting arrest. The trial court had also previously found that Lozano

violated his probation in two other cases (case Nos. SCR

- 740062

- 1 and SCR

741897

- 1) by committing new offenses. 2 The court sentenced Lozano to an

aggregate term of seven years and eight months in prison in all three cases.

Lozano’s appointe d counsel on appeal filed a brief pursuant to People v.

Wende ( 1979 ) 25 Cal.3d 436 ( Wende ). Havin g conducted an independent

review of the record pursuant to the holding in that case, we affirm.

1 We resolve this case by memorandum opinion because it raises no

substantial issue of fact or law. (Cal

. Stds

. Jud

. Admin

. , § 8.1.)2

In case No. SCR

- 740062

- 1, Lozano entered a plea of no contest to

commercial burglary ( Pen. Code

, § 459; count 1)

. 3 The trial court sentenced

him to 36 5 days in jail, with credit for time served of 397 days , and two years

of formal probation. On January 24, 2022, the court found that Lozano

violated his probation by committing new offenses.

In case No. SCR

- 741897

- 1, Lozano entered a plea of no contest to

vehicle theft (Veh. Code, § 10851, sub d . (a) ; counts 2, 9 , and 13) , evading

arrest ( id. , § 2800.2, subd. (a); count 3), vandalism (§ 594, subd. (a); count 8),

and receiving a stolen vehicle (§ 496d, sub d. (a); count 15). The trial cour t

sentenced him to two years of formal probati on. On January 24, 2022, the

court found that Lozano violated his probation by committing new offenses.

On March 29, 2022

, a first amended information in the present case

charged Lozano with: (1) evading arrest ( Veh. Code, § 2800.2, subd. (a);

count 1 ); (2) receiving a stolen vehicle (§ 496d, subd. (a); count 2) ; (3) vehicle

theft (Veh. Code, § 10851, subd. (a) ; count 3); and ( 4 ) resisting arrest (§ 148,

subd. (a)(1) ; count 4). The information also alleged various aggravating

factors. Lozano pled not guilty and requested a jury trial

. Lozano also filed a

motion to suppress evidence to exclude his jail calls pursuant to section 1546

(the Electronic Communications Privacy Act). The trial court denied the

motion on the grounds that section 1546 did not apply to jail calls and that

Lozano had notice that his jail calls were being monitored and recorded.

At trial, R.H. testified that in the summer of 2021, he hired Lozano to

perform some handywork and let Lozano borrow his daug hter’s Jeep

. The

Jeep was worth $8,000 to $8,500 and was in good working condition. After

Lozano stopped showing up for work in August 2021, R.H. terminated

3 All further statutory references are to the Penal Code unless otherwise
specified.3

Lozano’s employment and asked Lozano to return the Jeep and some

borrowed tools. When Lozano arrived at R.H.’s house, R.H. told Lozano to go

outside , get his tools out of the Jeep, and le ave the keys. R.H. accompanied

Lozano outside initially but went back into the house as Lozano was

unloading the tools. About 10 minutes later, R.H. went back out side and

discovered that Lozano, the Jeep, and the tools were gone. After attempting

to reach Lozano multiple t imes without success

, R.H. reported the theft to the

police

.
On October 15, 2021, the police located the Jeep and attempted to

conduct an enforcement stop. The driver did not slow down and drove

through two stop signs at an accelerated speed. The driver then got out of

the Jeep while it was still moving

. T wo police officer s , both of whom

recognized Lozano from either a prior arrest or prior suspect reports

,
positively identified Lozano as the driver

. The police lost sight of Lozano

after he ran down an embankmen t. The police searched the Jeep and found a

wallet containing two driver’s licenses and a debit card with Lozano’s name

on them, a cell phone battery pack with the name “Rock” on it

, and a cell

phone displaying an email to rockylozano23@gmail.com on the screen.

On April 6, 2022, the jury found Lozano guilty of counts 1, 3, and 4. 4

During the bench trial that followed, the trial court found true two

aggravating factors beyond a reasonable doubt. On May 25, 2022, Lozano

requested a Marsden hearing. 5 On June 27, 2022, the court denied Lozano’s

oral Marsden motion. On July 25, 2022, Lozano filed a written Marsden

motion

, again request ing new counsel. The court held that this motion was

4 After the conclusion of evidence during jury instructions , t he trial court
dismissed count 2 pursuant to the prosecutio n’s motion

.

5 People v. Marsden (1970) 2 Cal.3d 11 8.4

moot after his counsel declared a conflict of interest and new counsel was

appointed

.
On September 22, 2022, the trial court sentenced Lozano in all three

cases to an aggregate term of seven years and eight months in prison

. This

sentence was comprised of the following : three years (the upper term) on

count 1 and eight months (one

- third the middle term) on count 3 in the

present case ; eight months ( one

- third the middle term ) each on counts 2, 3, 8,

9, and 15 in case No. SCR

- 741897

- 1; and eight months (one

- third the middle

term ) on count 1 in case No. SCR

- 740062

- 1.

Lozano filed a timely notice of appeal, which we construed, pursuant to

Lozano’s motion, to include his two prior cases. The Wende brief filed by

Lozano’s counsel does not draw our attention to any issues under Anders v.

California (1967) 386 U.S. 738, 744. Lozano was apprised of his right to file a

supplemental brief but did not file one. Following Wende guidelines, we have

conducted an independent review of the record and conclude there are no

meritorious issues to be argued on appeal.

DISPOSITION

The judgment is affirmed.5 CHOU, J.

We concur.

JACKSON , P. J.

SIMONS , J.

People v. Lozano / A166219