People v. Lozano

58 Cal.Rptr.3d 923 (2007) 150 Cal.App.4th 1304 The PEOPLE, Plaintiff and Respondent,

v.

Fernando LOZANO, Defendant and Appellant.

No. B189649. Court of Appeal of California, Second District, Division Four.

May 18, 2007. [924] Shawn O'Laughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.

EPSTEIN, P.J.

This is one of many appeals raising issues concerning the effect of trial court error in basing an upper term sentence, in part, on non-recidivist facts not submitted to a jury or admitted by the defendant. Following United States Supreme Court precedent, we conclude that such error is tested under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, and, so considered, is harmless in this case because the pertinent facts are supported by uncontested evidence at trial, and no other reasonable [925] conclusion may be drawn but that they were committed in the course of the criminal conduct. Accordingly, we affirm the trial court judgment.

FACTUAL AND PROCEDURAL SUMMARY

On November 6, 2005, Gadis Villalobos attended a party with a friend on 260th Street in Los Angeles. Appellant was also in attendance and after leaving for a while was not allowed to reenter. Appellant argued with the person who refused to allow him in and then apologized.

A short time later, Mr. Villalobos heard his car alarm. When he went outside, he saw appellant "carving something into [his] car." Appellant slashed the car's tires and told Mr. Villalobos he had better call a tow truck because he was going to have to tow the car home. Appellant also said, "something about 255 Street." Mr. Villalobos understood "255 Street" to mean "whatever gang [appellant was] in." Appellant hit Mr. Villalobos and Mr. Villalobos stepped back. Mr. Villalobos estimated the damage to his vehicle was approximately $7,100. The front windshield was smashed, the two side mirrors were kicked off, the right and left sides of the car, including the fenders, were dented and the phrases, "Fuck him, 255" and "Tow him, Fuck him" were carved on the side of the car. Mr. Villalobos had spent approximately $300 to change the front windshield, to buy a new side mirror and four tires and estimated it would cost another $6,800 to make the other repairs.