United States District Court, E.D. California
Rodolfo Ceja Lopez, Jr., appeals his misdemeanor conviction
before the magistrate judge for driving with a suspended
license. At hearing, Cameron Desmond appeared for the United
States and Certified Law Clerks Heather Phillips and Byron
Donovan with the Federal Defender's office appeared for
Lopez. ECF No. 41. As explained below, the court DENIES
Lopez's appeal and AFFIRMS his conviction.
FACTUAL AND PROCEDURAL BACKGROUND
8, 2015, at approximately 1:30 a.m., Lopez was arrested for
driving under the influence, resulting in an automatic
suspension of his license. Gov't Ex. 111-14, ECF No.
35-1. On July 8, 2015, at a Department of Motor Vehicles
(DMV) probable cause hearing, Driver Safety Officer Wendy
Minshew determined there was probable cause to believe Lopez
drove while intoxicated, and so there was probable cause to
have arrested him. Id. at 11-12.Officer Minshew
completed an order of disqualification memorializing the
suspension of Lopez's license for driving while
intoxicated in violation of California Civil Code sections
13353, 13353.1 or 13353.2. Id. at 8. Minshew
suspended Lopez's license from July 18 to November 17,
2015. Id. at 11. A copy of the disqualification
order was mailed to Lopez at an address of “East
Blanchi Road, ” instead of Lopez's proffered
address of “Emily Court” in Stockton. Gov't
Ex. 1 at 11; ER 84.
August 20, 2015, Officer Timothy Menz, a police officer for
the Defense Logistics Agency, saw Lopez driving a commercial
vehicle at Tracy Depot in the County of San Joaquin. Excerpt
of Record (ER) 36-37, ECF No. 35-1. Officer Menz approached
Lopez and asked for a driver's license. Id. at
39. Lopez instead showed him a California identification
card. Id. Finding this unusual, Officer Menz ran
Lopez's information through dispatch, which reported
Lopez had a suspended license. Id. at 40. Officer
Menz then cited Lopez. Id.
later, on July 12, 2016, the United States government filed a
second superseding information charging Lopez with driving
with a suspended license in violation of 18 U.S.C. §
13(a) and California Vehicle Code section 14601.5(a). ER
130-31. California Vehicle Code section 14601.5(a),
assimilated into federal law by virtue of the Assimilative
Crimes Act,  requires the government to show (1) Lopez
drove while a license was suspended or revoked under
California Vehicle Code sections 13353, 13353.1, or 13353.2,
and (2) Lopez knew of the suspension or revocation. Cal. Veh.
Code § 14601.5(a). The second superseding information
specifically alleges Lopez knew his license was suspended
when he was stopped on August 20, 2015. ER 130-31.
magistrate judge held a two-day bench trial on July 19 and
August 8, 2016. ECF No. 11; ER 4-20, 21-113 (transcript).
Talha Khan appeared for the United States and Brandon Li
appeared for Lopez. ER 3. On the first day, Lopez's
counsel contended Lopez did not actually know his license was
suspended because the DMV's administrative record
identified his address incorrectly. ER 84; 99-105. Officer
Menz testified, however, that the day he stopped Lopez, Lopez
knew his license was suspended. ER 42. When Officer Menz was
asked how he knew this, he said his notes from that day say
Lopez's license was “already confiscated.” ER
45. Officer Menz testified it was his standard practice to
write “already confiscated” when the driver knew
his license had been suspended. Id. The government
cited the DMV's administrative record to show Lopez
attended and knew of the suspension at the time of the July 8
hearing. ER 80-83.
objected to admission of the DMV's administrative record,
contending that because he could not cross-examine Wendy
Minshew, the document's declarant, admission violated his
Sixth Amendment's Confrontation Clause right. ER 34.
Lopez also moved for acquittal based on Rule 29, contending
the United States did not prove beyond a reasonable doubt
that Lopez knew of his suspension when Officer Menz stopped
him. ER 87-88; see Fed. R. Crim. P. 29 (allowing
motion for judgment of acquittal after government closes its
evidence or after close of all the evidence). The judge
resolved these issues on the second day of trial after
additional briefing was submitted. ER 3-20.
second day, the magistrate judge allowed argument on
Lopez's Rule 29 motion and “closing arguments on
the case.” ER 4. Before argument, the judge noted his
impressions of the evidence. ER 4-20. First, he credited
Officer Menz's testimony that Lopez knew his license was
suspended at the time he was stopped. ER 5-6. Second, the
judge found the DMV's administrative record admissible as
a non-testimonial document outside the purview of the
Confrontation Clause. ER 6-7.
counsel argued Officer Menz's testimony should not be
credited because, when initially asked about his interaction
with Lopez on the day Lopez was stopped, Menz stated he did
not recall the details. ER 8. Defense counsel also disagreed
the administrative record documents were non-testimonial. ER
9. Counsel argued that because Officer Minshew did not
testify, the documents should have been excluded.
Id. To the extent the administrative record was
submitted to prove knowledge, counsel argued it did not
achieve this goal because the address on the document was
incorrect. ER 10. In response to the second point, the
magistrate judge observed because Lopez requested a hearing
on the suspension of his license, it could be inferred he
knew of the suspension. ER 10-11; see also ECF No.
35-1 at 12-13 (ER 10-11).
government submitted without argument, referencing its
arguments in its briefing provided to the court. ER 15. The
magistrate judge then said he was prepared to rule.
Id. He asked both parties if the matter was
submitted. Id. The government said yes. Defense
counsel said nothing. Id.
magistrate judge concluded the government proved beyond a
reasonable doubt that defendant had violated California
Vehicle Code section 14601.5(a). ER 16. The court then
continued to sentencing. ER 16-17. Defense counsel stated a
$300.00 fine would be appropriate and that Mr. Lopez could
pay the fine immediately. ER 18. The court then ordered Lopez
to pay $300.00. ER 19. The case was closed. ER 20. Lopez
timely appealed the judgment on August 16, 2016. ECF No. 29.
raises three issues on appeal: (1) whether admission of the
DMV's administrative record violated Lopez's Sixth
Amendment right to confront his accuser;
whether the magistrate judge erred in denying Lopez's
Rule 29 motion for acquittal; and
whether the magistrate judge prevented Lopez's closing
argument, and if so, whether he erred in this ...