SAN BERNARDINO – A judge dismissed criminal charges this morning against Andrew Eloy Lozano, a local member of the Vagos motorcycle club who was arrested last month in a law enforcement sweep across Southern California.
At a scheduled preliminary hearing for Lozano in San Bernardino Superior Court, Judge James Dorr ruled that prosecutors presented insufficient evidence to hold Lozano for trial on charges of possessing body armor and participating in a criminal street gang.
“The court finds there is insufficient evidence as to both counts and the allegation,” Dorr said during the proceedings.
The judge ordered the charges dismissed against Lozano, 35, of Fontana. He was one of a handful of local Vagos members who were arrested as part of a statewide investigation, state and local law enforcement agencies announced in October.
At a preliminary hearing, a judge listens to witness testimony and reviews evidence to determine if sufficient evidence exists to hold over the defendant for trial.
In Lozano’s case, the charge of possessing body armor was only illegal if he had a violent felony conviction, prosecutors said. Prosecutors had alleged in the charging documents that Lozano was convicted in 2004 of negligent discharge of a firearm.
But defense lawyer Mark McDonald told the court that his client’s conviction of California Penal Code section 246.3, “while a strike, is not a violent felony.”
McDonald argued during the proceedings that the conviction was a serious felony – a separate legal distinction.
Prosecutors didn’t provide evidence to say whether Lozano was the person who actually fired the gun in the 2004 conviction – which would have been a violent felony – or whether he was simply an aider-and-abettor.
McDonald later declined to comment about the ruling.
After the hearing, Deputy District Attorney Steve Sanchez said he intends to obtain court records from the 2004 case and possibly re-file the body armor charges.
Lozano has another case from 2009 in Fontana Superior Court for evading police with wanton disregard for public safety. He was out of custody on a bail bond in that case when he was arrested in the body armor case.
However, Lozano’s bail bond was never exonerated in the evading police case, according to the defense, and he should be released from custody. He returns to court on that case Friday for a trial readiness hearing.