United States v. Rodolfo Lopez, Jr. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10408
Plaintiff-Appellee, D.C. No. 2:16-cr-00157-KJM
v.
MEMORANDUM*
RODOLFO CEJA LOPEZ, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted July 10, 2018**
Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges
Rodolfo Ceja Lopez, Jr. appeals from the district court’s order affirming his
conviction for driving when privilege suspended and revoked for driving with
excessive blood alcohol, in violation of 18 U.S.C. § 13 and California Vehicle
Code § 14601.5(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Lopez first contends that the magistrate judge violated his Sixth Amendment
right to confrontation by admitting into evidence a notice from the California
Department of Motor Vehicles (the “DMV notice”) that detailed the findings and
decision from a suspension hearing following Lopez’s 2015 arrest for driving
under the influence. Admission of the DMV notice into evidence did not violate
Lopez’s rights under the Confrontation Clause because the notice is a public
document that was not made in anticipation of litigation and is non-testimonial in
nature. See United States v. Ballesteros-Selinger, 454 F.3d 973, 975 (9th Cir.
2006).
Lopez next contends that the government did not prove beyond a reasonable
doubt that he had knowledge of his underlying suspension at the time of the instant
offense. This argument also fails because, viewing the evidence in the light most
favorable to the government, a rational trier of fact could have found beyond a
reasonable doubt that Lopez knew that his driver’s license had been suspended.
See United States v. Webster, 623 F.3d 901, 907 (9th Cir. 2010). Because we reach
this conclusion without resort to any evidentiary presumptions contained in the
California Vehicle Code, we do not reach Lopez’s argument that those
presumptions are not assimilated under the Assimilative Crimes Act.
Finally, Lopez contends that the magistrate judge violated his Sixth
Amendment right to assistance of counsel by denying his attorney the opportunity
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to present a closing argument. This argument is belied by the record, which
indicates that Lopez’s counsel had a meaningful opportunity to request a closing
argument but remained silent. See United States v. Richter, 782 F.3d 498, 503 (9th
Cir. 2015).
AFFIRMED.
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