People v. Lopez, B282867

CourtCalifornia Court of Appeals
Writing for the CourtCOLLINS, J.
Citation242 Cal.Rptr.3d 451,31 Cal.App.5th 55
Parties The PEOPLE, Plaintiff and Respondent, v. Lauro LOPEZ, Defendant and Appellant.
Docket NumberB282867
Decision Date09 January 2019

31 Cal.App.5th 55
242 Cal.Rptr.3d 451

The PEOPLE, Plaintiff and Respondent,
v.
Lauro LOPEZ, Defendant and Appellant.

B282867

Court of Appeal, Second District, Division 4, California.

Filed January 9, 2019


Certified for Partial Publication.*

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Yun K. Lee and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

COLLINS, J.

242 Cal.Rptr.3d 453
31 Cal.App.5th 57

INTRODUCTION

While driving under the influence of alcohol, appellant Lauro Lopez made a left turn in front of an oncoming motorcycle, hitting and killing the rider. A

31 Cal.App.5th 58

jury convicted appellant of second degree murder and felony hit and run driving resulting in death or serious injury.

Appellant challenges his conviction in several ways. First, he argues that the trial court erred by admitting evidence of the advisement he received after a prior conviction for driving under the influence. Second, appellant raises several claims of error related to the jury instructions. Third, he contends his conviction on both counts must be overturned due to his counsel’s concession at trial that appellant committed the hit and run, coupled with the absence of affirmative evidence that he knowingly waived his constitutional trial rights. Finally, he asserts cumulative error and sentencing error.

In our previous opinion, we reversed the conviction on the hit and run charge based on appellant’s argument regarding his counsel’s concession. We otherwise affirmed. We then granted respondent’s petition for rehearing and received additional briefing on the issue of the concession. Upon reexamination of this issue, we conclude defense counsel’s statements during argument were not tantamount to a guilty plea. We therefore affirm the judgment in its entirety.

PROCEDURAL HISTORY

The Los Angeles County District Attorney charged appellant in an information with one count of second degree murder ( Pen. Code, § 187, subd. (a) ; count one)1 and one count of felony hit and run driving resulting in death or serious injury to another person ( Veh. Code, § 20001, subd. (b)(2) ; count two). Appellant pled not guilty to both counts and the matter proceeded to jury trial.

The jury found appellant guilty on both counts. The court sentenced appellant to 15 years to life on the murder charge and three years on the hit and run charge, to run consecutively.

Appellant timely appealed. As we have indicated, after we issued our initial opinion, we granted respondent’s petition for rehearing on the issue of defense counsel’s concession during argument.

FACTUAL BACKGROUND

The following evidence was adduced at trial.

31 Cal.App.5th 59

I. Prosecution Evidence

A. 2013 drunk driving conviction

Appellant was previously arrested for driving under the influence on January 7, 2013. He pled no contest to driving under the influence with a blood alcohol content of .08 percent or higher in violation of Vehicle Code section 23152, subdivision (b), and admitted as part of his plea that his blood alcohol level was actually .20 percent or higher. Before entering his plea, appellant signed a written advisement, which was also read to him by a Spanish interpreter. It included the following Watson2

242 Cal.Rptr.3d 454

advisement: "I understand that being under the influence of alcohol or drugs or both impairs my ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both. If I continue to drive while under the influence of alcohol or drugs or both, and as a result of my driving someone is killed, I can be charged with murder." In addition, during the plea hearing, the judge repeated the Watson advisement.

The terms of appellant’s plea required him to complete a nine-month alcohol education program and a Mothers Against Drunk Driving (MADD) victim impact program, and barred him from driving without a valid driver’s license or with any measurable amount of alcohol in his system. Appellant was placed on probation for three years.

Pursuant to the terms of his plea, appellant completed a nine-month alcohol program starting in February 2013. The program, given in Spanish, included 23 group sessions, six alcoholic education sessions, 10 interviews, and 19 Alcoholics Anonymous meetings. Upon completion, appellant filled out an exit form stating that he would not drink and drive.

In November 2013, appellant also attended a victim impact panel, an educational program for driving under the influence (DUI) offenders. He registered for and completed the course in English. As part of the program, the administrator testified that she discussed the Watson advisement with the participants and projected the text on a big screen. She would customarily tell the story of another class participant who attended the class twice and later caused an accident that killed two people.

B. 2015 accident

On October 13, 2015 at approximately 7:15 p.m., appellant approached the intersection of Soto Street and 57th Street in Huntington Park. He was

31 Cal.App.5th 60

driving his white pickup truck and his 29-year-old son was in the passenger seat. Appellant made a left turn onto 57th Street in front of an oncoming motorcycle. He struck the motorcycle, knocking its rider to the ground. Appellant then drove away from the scene.

A bystander called 911, reporting that "a guy came, took a left. And nailed a woman or man on a motorcycle." He described the vehicle as a white truck and told the operator where the truck was heading. The 911 call was played for the jury at trial.

Detective Garey Staal of the Huntington Park Police Department (HPPD) testified that he and his partner saw the motorcycle driving on Soto Street before the accident. The motorcycle was travelling a "little faster than the normal traffic but ... nothing that was concerning as far as speed." They came upon the scene of the accident and saw the same motorcycle on the ground. Detective Staal ran toward the victim on the ground and began performing CPR, assisted by others at the scene. Paramedics arrived less than five minutes later. The victim was transported to the hospital and died shortly thereafter from his injuries.

Staal and his partner gathered a description of the suspect vehicle and its direction of travel from witnesses at the scene; they broadcast that information over their police radio. The detectives also noticed a license plate lying in the street, which appeared to be the front license plate from the suspect vehicle. Staal’s partner wrote down the license plate number and gave it to police dispatch; dispatch advised him that the vehicle with that plate number was registered to appellant.

A short time later, a police officer who had heard the collision and then heard

242 Cal.Rptr.3d 455

about the suspect over the police radio spotted appellant’s truck parked in a nearby business parking lot. As the officer walked over to the truck, he noticed appellant and his son standing in a yard next to the vehicle. The officer approached and asked in Spanish if either of them was driving the pickup truck. The officer testified at trial that in response, appellant pointed to his son, who shook his head no. The officer then called for assistance.

HPPD officer Martin Magallanes arrived a few moments later. He noted that the front license plate on appellant’s truck was missing and the rear plate matched the number from the plate at the scene. He spoke to appellant in Spanish and testified that he could smell alcohol on appellant’s breath. Appellant acknowledged to Magallanes that he had consumed three 24-ounce beers between 5:00 and 6:00 p.m. He stated he did not feel the effects of the alcohol, but Magallanes noticed appellant swaying. Appellant also admitted he had been driving. He told Magallanes that his truck did not have any mechanical problems and he knew he had collided with a motorcycle. He did not ask about the condition of the rider.

31 Cal.App.5th 61

Magallanes administered a field sobriety test to appellant, which indicated appellant was impaired. Appellant was also given two breath tests, one at 8:10 and one at 8:12 p.m.; both showed his blood alcohol content was 0.14 percent. That result was confirmed by a blood draw taken at 8:30 p.m.3 Appellant was arrested.

Magallanes interviewed appellant in jail that evening around 10:00 p.m. Appellant agreed he had "too many beers" and knew driving after drinking...

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46 practice notes
  • People v. Marsh, D074053
    • United States
    • California Court of Appeals
    • 15 Julio 2019
    ...of this issue ... defense counsel's statements during argument were not tantamount to a guilty plea." (See People v. Lopez (2019) 31 Cal.App.5th 55, 58, 242 Cal.Rptr.3d 451 ( Lopez II ).As correctly noted by the Lopez II court (31 Cal.App.5th at p. 63, 242 Cal.Rptr.3d 451 ), our high court ......
  • People v. Burns, D074536
    • United States
    • California Court of Appeals
    • 14 Agosto 2019
    ...must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights.’ " ( People v. Lopez (2019) 31 Cal.App.5th 55, 63, 242 Cal.Rptr.3d 451 ( Lopez ), italics added.)3 Thus, the threshold question is whether defense counsel's concessions during his openi......
  • People v. Bernal, H045620
    • United States
    • California Court of Appeals
    • 5 Diciembre 2019
    ...was not required to obtain a waiver of defendant's constitutional rights in the situation presented here. ( People v. Lopez (2019) 31 Cal.App.5th 55, 64–65, 242 Cal.Rptr.3d 451.)Absent a contrary directive or timely objection from the client, conceding guilt on the charges for which there w......
  • People v. Villa, E074417
    • United States
    • California Court of Appeals
    • 16 Octubre 2020
    ...maintain innocence clear to his counsel , and counsel must override that objective by conceding guilt"].) In People v. Lopez , (2019) 31 Cal.App.5th 55, 66, 242 Cal.Rptr.3d 451, the court noted "we have found no authority, nor has [the defendant] cited any, allowing extension of McCoy 's ho......
  • Request a trial to view additional results
46 cases
  • People v. Marsh, D074053
    • United States
    • California Court of Appeals
    • 15 Julio 2019
    ...of this issue ... defense counsel's statements during argument were not tantamount to a guilty plea." (See People v. Lopez (2019) 31 Cal.App.5th 55, 58, 242 Cal.Rptr.3d 451 ( Lopez II ).As correctly noted by the Lopez II court (31 Cal.App.5th at p. 63, 242 Cal.Rptr.3d 451 ), our high court ......
  • People v. Burns, D074536
    • United States
    • California Court of Appeals
    • 14 Agosto 2019
    ...must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights.’ " ( People v. Lopez (2019) 31 Cal.App.5th 55, 63, 242 Cal.Rptr.3d 451 ( Lopez ), italics added.)3 Thus, the threshold question is whether defense counsel's concessions during his openi......
  • People v. Bernal, H045620
    • United States
    • California Court of Appeals
    • 5 Diciembre 2019
    ...was not required to obtain a waiver of defendant's constitutional rights in the situation presented here. ( People v. Lopez (2019) 31 Cal.App.5th 55, 64–65, 242 Cal.Rptr.3d 451.)Absent a contrary directive or timely objection from the client, conceding guilt on the charges for which there w......
  • People v. Villa, E074417
    • United States
    • California Court of Appeals
    • 16 Octubre 2020
    ...maintain innocence clear to his counsel , and counsel must override that objective by conceding guilt"].) In People v. Lopez , (2019) 31 Cal.App.5th 55, 66, 242 Cal.Rptr.3d 451, the court noted "we have found no authority, nor has [the defendant] cited any, allowing extension of McCoy 's ho......
  • Request a trial to view additional results

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