People v. Lopez

• Decision Date: 14 June 2021
• Docket Number: B305783
• Citation: 65 Cal.App.5th 484,279 Cal.Rptr.3d 892
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joe LOPEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

65 Cal.App.5th 484

279 Cal.Rptr.3d 892

The PEOPLE, Plaintiff and Respondent,

v.Joe LOPEZ, Defendant and Appellant.

B305783

Court of Appeal, Second District, Division 7, California.

Filed June 14, 2021

Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

FEUER, J.

Joe Lopez appeals from a judgment entered after a jury convicted him of murder ( Pen. Code, § 187, subd. (a) ) and gross vehicular manslaughter while intoxicated (Id ., § 191.5, subd. (a)). Lopez's principal contention on appeal is that the trial court violated his constitutional rights by refusing to provide to counsel during voir dire the names of prospective jurors, instead referring to them only by their badge numbers. Lopez also contends the trial court abused its discretion in denying his request to exclude his admission in a jail call with his sister that he had killed someone.

It is a generally accepted practice for trial courts to refer to jurors by their juror badge numbers during voir dire to protect the jurors’ privacy. Courts must be careful in utilizing this practice to make clear to jurors there is a reason for the procedure other than possible safety concerns relating to the defendant. The trial court in this case adopted a general practice of not only identifying prospective jurors by their badge numbers, but also withholding from the attorneys the jurors’ names out of a concern the attorneys (or a member of the public or press) would obtain additional information about the jurors on the Internet or contact the jurors. In the absence of a compelling need specific to the case to conceal from the attorneys the names of prospective jurors, this was an abuse of discretion. The trial court also erred in advising prospective jurors that the court was referring to them by numbers in part for security reasons, because jurors could speculate that Lopez posed a security risk. Although the trial court abused its discretion in concealing the names of prospective jurors, on the record here the error was harmless. In addition, the trial court did not abuse its discretion in denying defendant's motion to exclude his admission. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial

1. The prosecution case

Late at night on August 12, 2017 Sam Edinburgh drove his Toyota Corolla from a performance he attended toward his home in Palmdale. At about 12:45 the following morning he called his daughter to tell her he was pulling over to the side of the freeway to take a nap.

Sometime between 5:10 and 5:20 a.m., Norma Hernandez was driving northbound on Route 14 near the Soledad Canyon exit when she saw a car crash into the back of a car that was parked on the right-hand lane or edge of the shoulder. The moving car appeared to be travelling at about 60 to 65 miles per hour, the same speed Hernandez was driving. Hernandez saw car parts from the collision going "everywhere," so she stopped on the freeway and called 911.

Around the same time, Michael Esplana was driving northbound on Route 14 when he saw a car in the middle of the northbound lanes that was "slowly catching on fire." Esplana pulled over to the left side of the freeway adjacent to the concrete divider and called 911. Esplana exited his vehicle and approached the burning car. Flames emanated from the rear bumper, then enveloped the entire car. Esplana observed a white car on the right side of the road against the guard rail.

California Highway Patrol Officer Manuel Ramos and his partner responded to the scene. By the time they arrived, a firetruck was there. Officer Ramos observed a car fully engulfed in flames in the middle of the freeway, and a white Toyota Matrix on the right side of the road. Lopez was standing next to the Toyota Matrix. Officer Ramos spoke with Lopez, who smelled of alcohol. Lopez stated he was the driver of the white car, which his uncle had loaned him, and he confirmed he was in a collision.

Lopez told Officer Ramos that the other vehicle had "literally stopped in the middle [of the freeway] from nowhere," and Lopez "hit it." Lopez stated he was going more than 60 or 65 miles per hour, but no more than 70. Officer Ramos suggested to Lopez he must have been going at least 90 miles per hour because otherwise he would have had time to see the other car, to which Lopez responded, "No, sir. I was not going 90 miles an hour."

California Highway Patrol Officer Omar Sanchez also responded to the scene and spoke with Lopez.¹ Lopez had "red and watery eyes" and a strong odor of an alcoholic beverage. Officer Sanchez asked Lopez whether he was driving the Toyota Matrix, and Lopez responded, "Yes, absolutely." Lopez said he was driving about 70 miles per hour in the far right lane when he saw a "blunt object" appear on the road. Lopez had last consumed one 12-ounce beer the prior day at noon. Officer Sanchez administered several field sobriety tests to Lopez, which Lopez did not perform satisfactorily. Officer Sanchez also had Lopez blow two times into a preliminary alcohol screening (PAS) device, at 6:56 and 6:59 a.m. Each time Lopez's blood alcohol concentration was recorded at approximately .15 percent. Officer Sanchez opined based on Lopez's objective symptoms and the results of the field sobriety and PAS tests that Lopez had driven his car under the influence of alcohol and he could not operate his vehicle with the caution that a sober person would characteristically exercise. Further, Lopez had made an unsafe turn in violation of Vehicle Code section 22107² by driving onto the shoulder, which caused the collision.

Following Lopez's arrest, his blood was taken by a nurse at the hospital at 8:00 a.m. Two separate tests of the blood sample showed Lopez had blood alcohol concentrations of .15 and .17 percent. Los Angeles County Sheriff's Department senior criminalist Isaac Cheney opined that a male weighing 150 pounds with a blood alcohol concentration of .15 to .17 percent would have had 4.8 to 5.5 standard drinks in his system at the time of the test. Cheney opined that at blood alcohol levels of .08 and above, "all people are impaired and unsafe to operate a motor vehicle safely."

California Highway Patrol Officer Chad Smithson, who observed and documented the accident scene following the collision, opined the Toyota Corolla was parked on the right shoulder, and Lopez's car "while traveling on the right shoulder hit it at a high rate of speed, at a direct impact to the rear." Upon impact, the Toyota Corolla collided with the guardrail and spun out, travelling backwards into the middle two lanes of the roadway. Lopez's car travelled along the right shoulder and came to rest against the guardrail.

On the day of his arrest, Lopez called his sister Sarah Lopez (Sarah) from jail. The recording of the call was played for the jury. Lopez stated he had been charged with a felony and asked Sarah to post bail for his release. He stated he could pay the bail if he was able to return to work. Lopez added, "If not, they're going to throw me in jail .... I killed somebody." Sarah asked, "Did they die?" Lopez responded, "Yes."³

2. The defense case

Kurt Weiss, a collision reconstruction specialist, viewed the accident site and reviewed the evidence gathered by the California Highway Patrol officers. Weiss explained there was a "gentle" curve in the freeway before the accident site, and as drivers approach the area, a hillside on the left blocks the view until the driver rounds the corner, interfering with the driver's ability to see objects in the distance. Weiss estimated a driver approaching the accident site could see approximately three-quarters of a mile ahead. Weiss acknowledged on cross-examination the turn "doesn't seem overly dangerous to negotiate," and the collision was caused by driver error by the operator of the Toyota Matrix.

B. The Verdict and Sentence

The jury found Lopez guilty on count 1 of murder and on count 2 of gross vehicular manslaughter while intoxicated. The trial court sentenced Lopez to 15 years to life in state prison on count 1 and imposed and stayed the middle term of six years on count 2 pursuant to Penal Code section 654.

Lopez timely appealed.

DISCUSSION

A. The Trial Court Abused Its Discretion in Concealing the Names of Prospective Jurors from Counsel, but the Error Was Harmless

1. Proceedings below

On the first day of trial, before the prospective jurors were brought into the courtroom, the trial court provided counsel with a random list of 63 jurors. In response to defense counsel's comment that there were no names on the list, the court stated, "You are not going to get the names .... [¶] ... [¶] ... You just get [a] random list without names." Defense counsel commented, "This is the first time I have had a list without any names on it." The court replied, "I don't give out names because I have had attorneys googling, making improper contact with jurors .... [¶] ... [¶] ... [M]ost of my colleagues in the building do not give out the names."⁴ Defense counsel stated, "Usually we have names. We give back the list every day. We are not supposed to take the list home. We usually have a list of the names so we have an idea of the ethnicity of the jurors, have an idea where they come from." The court stated, "You are going to get information from the process, you will get their information, area of residence, everything else, like I said. And I'm not alone. Most of my colleagues do not give out the names. If you do felonies, the names are not given out." The court explained its practice of concealing the names of jurors started in 2008 or 2009 when defense counsel in a case was sitting at counsel table researching jurors on the Internet. The court later added, "The reason I do not give out...