People v. Lozada CA1/5

Filed 6/22/16 P. v. Lozada CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A145586 v. VICTOR MELESIO LOZADA, (Sonoma County Super. Ct. No. SCR-23405) Defendant and Appellant.

Victor Melesio Lozada appeals from an order denying his petition for resentencing under The Safe Neighborhoods and Schools Act (Pen. Code, § 1170.18), commonly known as Proposition 47.1 He contends the court erred because, in ruling Lozada had failed to establish that the stolen property in his possession had a value of $950 or less, the court relied on evidence that was inherently unreliable. We will affirm the order. I. FACTS AND PROCEDURAL HISTORY A. Underlying Proceeding A felony complaint accused Lozada of receiving stolen property. (§ 496, subd. (a).) It also alleged that he had served four prior prison terms. (§ 667.5, subd. (b).) At the preliminary hearing, Detective Anthony King of the Sonoma County Sheriff’s Department testified that he investigated a “marijuana rip off” in Santa Rosa in October 2007. Another officer detained Lozada, who was carrying a five-foot long bag with a shoulder strap. King opened the bag, which he thought weighed about five or six pounds, and saw “fresh marijuana.” Lozada said the marijuana had been stolen from a

1 Except where otherwise indicated, all statutory references are to the Penal Code.

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location on Kenmore Lane in Santa Rosa, but he had not stolen it; he received it in exchange for getting a friend a car. Detective King, aware that marijuana had been reported stolen from the Kenmore Lane address, contacted Joseph Cota, who lived at the residence. Cota said he had a medical marijuana certificate and grew marijuana. When asked how much marijuana was stolen, Cota said his loss was $38,400. On cross-examination, Detective King testified that the marijuana he saw inside the bag consisted of stalks of the plant, stacked in a bundle, but he could not guess how many stalks there were. The marijuana was fresh, not dried. After the preliminary hearing and the filing of an Information, Lozada entered a plea of guilty to receiving stolen property (§ 496, subd. (a)) as a felony. The prior prison term allegations were stricken. In April 2008, the court denied probation and sentenced Lozada to 242 days in county jail. B. Current Resentencing Proceeding Following the enactment of Proposition 47, Lozada filed a petition to reduce his felony conviction for receiving stolen property to a misdemeanor pursuant to section 1170.18. The People opposed the petition, contending Lozada was statutorily ineligible for resentencing because the marijuana was worth more than $950. At a May 2015 hearing on Lozada’s resentencing petition, defense counsel noted that the sentencing court had not ordered any restitution. Counsel opted “to submit on the preliminary hearing transcript,” pointing out the following in the transcript: (1) Detective King testified that the bag Lozada carried, which was five-feet long and one and a half feet in diameter, was not full and contained fresh rather than dried marijuana; and (2) King did not know how many stalks were in the bag. Counsel argued that to determine the value of the stolen property, “we really would have to speculate and look to a possible projected value that would occur in the future when these plants would have been mature and ripe for—in producing the type of fruit that we’re—fruit or this plant could [sic] which would be the flowers and bud. And the plants were not in that state at this time.”