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United States v. Lopez

United States District Court, E.D. California

August 30, 2017



         Defendant 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.


         On June 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.

         On 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.

         Sometime 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, [1] 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.

         The 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.

         Lopez 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.

         On the 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.

         Lopez's 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).

         The 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.

         The 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.


         Lopez raises three issues on appeal: (1) whether admission of the DMV's administrative record violated Lopez's Sixth Amendment right to confront his accuser;

         (2) whether the magistrate judge erred in denying Lopez's Rule 29 motion for acquittal; and

         (3) whether the magistrate judge prevented Lopez's closing argument, and if so, whether he erred in this ...

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