People v. Lopez CA2/8

Filed 4/4/14 P. v. Lopez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B245820

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA399073) v.

GABRIEL LOPEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael D. Abzug, Judge. Affirmed as modified.

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Gabriel Lopez appeals from the judgment entered after a jury convicted him of burglarizing a car. We reject his contention that the trial court erred by admitting evidence of his prior burglary conviction and affirm on the merits. However, as conceded by respondent, the trial court committed certain sentencing errors and we modify the judgment to correct those errors.

FACTS AND PROCEDURAL HISTORY

At around 1 a.m. on June 2, 2012, James Martinez saw Gabriel Lopez sitting inside Martinez’s car, which was parked in front of Martinez’s work place at 57th and Bandera Streets in Los Angeles. Martinez recognized Lopez as someone who frequented the area. Lopez appeared to be rummaging through the car. He then left the car carrying Martinez’s sweatshirt and a book of business cards. Martinez yelled “hey,” but Lopez began walking away quickly. Martinez followed Lopez for about a block and a half and when he approached, Lopez threw the book of business cards away and dropped the sweatshirt. Lopez then ran away. Martinez said he had locked his car and that Lopez did not have permission to be inside the car. There was no sign of forced entry or physical damage to Martinez’s car, however. Lopez was charged with one count of burglarizing an automobile. (Pen. Code, § 459.) Over a defense objection the jury heard evidence that Lopez was convicted of residential burglary in 2006. The victim of that crime testified that he saw Lopez pull out a floorboard on the building, which was where the victim both lived and worked. He saw Lopez enter, and then exit, from the opening. The victim then discovered that the money he kept inside his residence was missing. That crime occurred on the same block where Martinez’s car was parked.