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PEOPLE v. LOZANO

No. B189649.

58 Cal.Rptr.3d 923 (2007)

150 Cal.App.4th 1304

The PEOPLE, Plaintiff and Respondent, v. Fernando LOZANO, Defendant and Appellant.

Court of Appeal of California, Second District, Division Four.

May 18, 2007.

Attorney(s) appearing for the Case

Shawn O'Laughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.

EPSTEIN, P.J.

This is one of many appeals raising issues concerning the effect of trial court error in basing an upper term sentence, in part, on non-recidivist facts not submitted to a jury or admitted by the defendant. Following United States Supreme Court precedent, we conclude that such error is tested under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L...

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