People v. Lopez CA1/5

Filed 12/16/14 P. v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A140840

v. (San Mateo County Super. Ct. No. SC076064) LEONARDO JESUS LOPEZ,

Defendant and Appellant. ____________________________________/

A jury convicted appellant Leonardo Jesus Lopez (Lopez or defendant) of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1) (Count 1)),1 possession of a loaded and operable firearm while in possession of cocaine (Health & Saf. Code, § 11370.1, subd. (a) (Count 2)), and unlawful possession of ammunition (§ 30305, subd. (a) (Count 3)). The court denied Lopez’s Romero motion and sentenced him to six years in state prison.2 Lopez appeals. He contends the court erred by denying his Romero motion. We conclude the court committed a sentencing error and remand for further proceedings. In all other respects, we affirm.

1 All further statutory references are to the Penal Code. 2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). 1

FACTUAL AND PROCEDURAL BACKGROUND Our summary of facts comes primarily from the probation report. Lopez’s Prior Convictions In 2004, then 18-year-old Lopez was convicted of first degree burglary (§ 459) and attempted robbery (§§ 664/211). “The victim had been cleaning out his garage, when two unknown suspects approached carrying guns. When the victim ran out the back door, he was shot in the abdomen. The defendant later reported that they had gone to the victim’s residence to steal some marijuana. He admitted to having possession of a handgun, which police located at his residence. Police noted that the handgun was fully loaded and there was a live round in the chamber. Two additional loaded magazines were also located.” The Incident In April 2012, East Palo Alto police “officers were patrolling an area frequented by gang members and known for narcotics sales. A drug transaction was observed between the defendant and another subject. The defendant fled when police announced themselves. Five minutes later, it was reported that two suspects were attempting to steal bicycles from a nearby residence and that one of the residents had detained the defendant. [¶] When an officer arrived on the scene, the resident was sitting on the defendant, who was lying face down. As the officer turned the defendant’s body, he observed a firearm directly underneath him. A loaded magazine was removed from the magazine well of the firearm and one live round was ejected from the chamber. It was subsequently determined the firearm . . . had been stolen ten years earlier. “The defendant was arrested and transported to the police department, where he was advised of his Miranda rights. Inside his jacket, were two plastic baggies containing rock cocaine base, $227.00 cash and an iPhone. The defendant claimed he could not recall what occurred prior to police contacting him, as he had been attacked for unknown reasons. He could not explain why he was in the backyard of the residence, claiming he had blacked out. He refused to answer questions regarding the firearm and drugs and he denied being under the influence. He also declined medical attention. [¶] The defendant