People v. Lozano CA4/1

Filed 9/29/23 P. v. Lozano CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081432

Plaintiff and Respondent,

v. (Super. Ct. No. SCD290774)

JORGE SALVADOR LOZANO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Peter L. Gallagher, Judge. Affirmed as modified.

Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Kathryn A. Kirschbaum, and Maxine Hart, Deputies Attorney General, for Plaintiff and Respondent. Jorge Salvador Lozano appeals the order granting him probation after a jury found him guilty of three crimes arising out of a confrontation with law

enforcement officers. He contends a condition in the written order forbidding him to use marijuana even with a prescription must be stricken as unconstitutionally overbroad or, alternatively, as in conflict with the condition as orally pronounced by the sentencing court. We modify the written condition to make it consistent with the court’s oral pronouncement and affirm the order as so modified. BACKGROUND San Diego police officers James Colbert and Andrew Castro were on patrol when they received a report that a man was walking along a street holding a hatchet and trying to open the doors of cars as they drove by. The officers went to the scene and found Lozano standing in an intersection holding the hatchet. When Castro commanded Lozano to drop the hatchet, he did. Refusing commands to get on the ground, Lozano aggressively advanced toward the officers; and as he approached, they saw a dagger tucked in his waistband. Colbert fired his taser at Lozano, who fell to the ground, but soon got up in defiance of commands to remain down. A scuffle ensued during which Lozano struck Colbert and attempted to strike Castro. Additional law enforcement officers arrived and subdued Lozano. A machete and a glass pipe with a white crystalline substance were found concealed under his clothing. A jury found Lozano guilty of two counts of forcefully resisting an executive officer (Pen. Code, § 69) and one count of carrying a concealed dirk or dagger (id., § 21310). At the sentencing hearing, the court stated it wanted to continue the hearing to allow the probation department to perform a full mental health workup and develop a treatment plan, but Lozano refused the continuance. The court suspended imposition of sentence and placed Lozano on formal probation for two years. Based on the nature of the