THE PEOPLE v. VINCENT ALBERT LOZANO (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Vincent Albert Lozano appeals from the judgment entered following his conviction by jury on three counts of forgery.  (Pen.Code, § 476.)   We affirm.

An information was filed in October 2009, alleging that appellant committed three counts of check forgery.  (Pen.Code, § 476.)   The information alleged that appellant had suffered numerous prior convictions within the meaning of Penal Code sections 667.5, subdivision (b) and 1203, subdivision (e)(4).   Appellant pled not guilty to all three counts and denied all the special allegations.   Appellant's motion to bifurcate the prior allegations was granted.   The testimony at trial established the following.

On July 30, 2009, a vitamin company named Vicare, located in Pasadena, California, was burglarized.   Ximin Xiang, a manager for Vicare, was the sole person at the Pasadena location responsible for writing checks for the business.¹  She testified that, during the burglary, the company's safe was broken into and business checks with the business logo on them were stolen.   Xiang identified two checks as Vicare checks, one dated August 13, 2009 and the other August 17, 2009.   Both were made payable to Prime Selection.   She testified that the checks belonged to the company but that the signature on the checks was not hers, and no one had permission to write checks to Prime Selection.

Manuel Vidal and David Jimenez sold and delivered food for Prime Selection, a meat company.   Vidal drove a refrigerator truck for Prime Selection and solicited sales throughout Southern California.   Vidal purchased the meat on consignment and was paid on commission only.

On August 13, 2009, around 6:00 p.m., Vidal and Jimenez were driving the company truck when they were flagged down by appellant.   Appellant was driving a van in the opposite direction, with his wife and several children in the vehicle.   Vidal and Jimenez had not met appellant before.   Appellant told Vidal and Jimenez that “he had a meat man before” and asked Vidal what kind of deals they had.   Vidal showed appellant the products and agreed to meet appellant at his house.   Vidal and Jimenez went to appellant's house and sold him several cases of meat for $610, including a tip.   Appellant paid with a check with the Vicare logo on it, made out to Prime Selection and dated August 13, 2009.

A few days later, appellant called Jimenez and said he wanted to buy more meat.   On August 17, 2009, Vidal and Jimenez met appellant a few blocks from the place of the original transaction, and appellant bought $1,120 worth of meat.   Appellant paid with another Vicare check, written out of a book that looked to Vidal like the type of checkbook contractors use.

Vidal turned the checks in to the office to be deposited, but their boss “thought that that was just too easy.   So he started getting suspicious.”   Appellant called to arrange another purchase on August 21, 2009, but when Vidal and Jimenez told their boss, he told them that the two checks were counterfeit and had been returned by the bank.   Vidal and Jimenez contacted the Pomona Police Department on August 21.   Vidal was very nervous because he was afraid he would be blamed for the fraud and lose his job.

On August 21, Vidal and Jimenez were instructed by the police department to complete the deal and then to let the police know when they had received the check.   Appellant bought four cases of meat for $1,000 and paid with a check containing the logo of Rising Star. When appellant pulled out the checkbook to write the check, Vidal noticed that the checking account was that of a different company than the previous checks.   Vidal and Jimenez watched appellant write out the check.   After appellant paid, Jimenez called the police, who showed up immediately.

Pomona Police Officer Deon Brown investigated the possible check fraud.   Vidal and Jimenez explained that they had set up a meeting with appellant to deliver more meat products, and Officer Brown went to a location near the meeting spot.

After the purchase, Officer Brown approached appellant and asked him what he did for a living.   Appellant replied that he did handy jobs and that he did not operate under any name or business logo.   Officer Brown asked if appellant was buying meat from Prime Selection, and appellant replied that he was.   Officer Brown asked how that purchase was being made, and appellant told him that he paid in cash.   After Officer Brown showed appellant the check he had given Vidal, appellant changed his story several times as to whether he had paid by cash or check.   Appellant then said he had not signed the check, but he subsequently admitted signing the check in the name of Xavier Montes, who was a friend of his.   Officer Brown took photographs of the boxes of meat in appellant's vehicle.

Shao Bin Zhang testified that he had owned an acupuncture business named Rising Star for 20 years.   His company was burglarized five years earlier, and his company's checkbooks were stolen.   Zhang testified that a check with his company logo on it, dated August 21, 2009, written to Prime Selection, was from a bank that had been taken over by a different bank, and that he did not write the check or authorize it.

Jimenez's testimony at trial was consistent with Vidal's testimony.   Appellant presented no witnesses.

The jury found appellant guilty on all three charges.   Appellant waived trial on his prior convictions and admitted having suffered four prior convictions that were within the scope of Penal Code section 667.5, subdivision (b).  The prosecution moved to strike the first prior alleged because it was sentenced concurrently with the second.

The court sentenced appellant to a total term of eight years, four months.   As to count one, the court imposed the upper term of three years, plus one-year terms for each of the four prior prison terms.  (Pen.Code, § 667.5, subd. (b).)  As to count two, the court imposed a term of eight months, one-third the mid term of 24 months, to run consecutive to the sentence in count one.   For count three, the court imposed a consecutive term of eight months.   The court imposed the requisite fines and fees and gave appellant credit for 136 days of actual custody and 68 days of good time/work time credit for a total of 204 days.   Appellant filed a timely notice of appeal.

After review of the record, appellant's court-appointed counsel filed an opening brief requesting this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On September 27, 2010, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider.   No response has been received to date.

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case.   (Smith v. Robbins (2000) 528 U.S. 259, 278;  People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Xiang's preliminary hearing testimony was read to the jury because she was not available at trial..  FN1. Xiang's preliminary hearing testimony was read to the jury because she was not available at trial.

WILLHITE, J. SUZUKAWA, J.