People v. Lopez
42 Cal.App.5th 337
| Cal. Ct. App. | 2019Background
- In 2015 Lauro Lopez, while driving with a BAC ~0.14–0.16%, made a left turn into an oncoming motorcycle, killing the rider, then drove away; he was arrested after witnesses and license-plate evidence linked him to the scene.
- Lopez had a 2013 DUI conviction with written and oral Watson advisements and completed DUI education and MADD victim-impact coursework; those advisements warned that driving under the influence can be murder if someone dies.
- The prosecutor charged Lopez with second-degree (implied-malice) murder and felony hit-and-run resulting in death; a jury convicted on both counts and the court imposed consecutive terms (15 years-to-life + 3 years).
- At trial the prosecution introduced the 2013 plea/advisements to prove Lopez’s knowledge of the danger of drunk driving; defense did not testify and conceded guilt on the hit-and-run count at argument but contested murder.
- On appeal Lopez raised multiple claims: erroneous admission of Watson advisements, instructional errors (implied malice definition, unanimity, refusal to give lesser-included vehicular manslaughter instructions), counsel’s concession of hit-and-run as tantamount to a guilty plea (and lack of waiver), section 654 sentencing error, and cumulative error.
- This court affirmed the judgment in full after rehearing, holding (inter alia) that objections to the Watson evidence were forfeited, CALCRIM No. 520 was proper, no unanimity or lesser-included instruction was required, counsel’s concession did not equal a guilty plea requiring a personal waiver, and section 654 did not bar cumulative punishment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Watson advisements | Advisements show Lopez knew dangers of DUI and support implied malice; admissible | Admission was hearsay and trial court’s statement created a conclusive presumption on dangerousness; error | Defendant forfeited these objections by not raising them below; no reversible error on other grounds |
| Implied-malice instruction (CALCRIM No. 520) | Instruction was proper and reflects controlling law | Claimed instruction should require "high probability of death" formulation (Thomas) | Court followed Supreme Court precedent that CALCRIM No. 520 is correct; no error |
| Unanimity instruction for murder theory (pre-accident act vs. post-accident flight) | Jury might have convicted based on different acts; unanimity required | Post-accident conduct alone insufficient to establish implied malice; prosecution relied on pre-accident conduct | No unanimity instruction required because reasonable jurors could not have relied solely on post-accident conduct to find implied malice |
| Lesser-included vehicular manslaughter instructions | Trial court should have instructed on vehicular manslaughter variants as lesser included or at least given elements | Vehicular manslaughter offenses are not necessarily included in implied-malice murder; court lacked authority without prosecution consent | Court properly refused; those vehicular offenses are not lesser-included of implied-malice murder under the elements/pleading test |
| Counsel’s concession of hit-and-run and need for waiver | Concession was tantamount to guilty plea; absence of on-the-record waiver requires reversal | Counsel’s concession during opening/closing is not a guilty plea equivalent; no evidence defendant objected | Concession was not equivalent to a guilty plea (no stipulation surrendering elements); no personal waiver required; conviction stands |
| Section 654 multiple punishment challenge | Single indivisible DUI act produced both murder and hit-and-run, so sentence should be stayed on one count | Fleeing the scene had a separate objective (avoid arrest); divisible course of conduct supports separate punishments | Substantial evidence supports divisible objectives; section 654 does not bar consecutive sentences |
Key Cases Cited
- People v. Watson, 30 Cal.3d 290 (Cal. 1981) (Watson advisement and implied malice framework referenced)
- People v. Nieto Benitez, 4 Cal.4th 91 (Cal. 1992) (explains two formulations of implied malice and endorses the CALCRIM-type formulation)
- People v. Cain, 10 Cal.4th 1 (Cal. 1995) (concession of guilt by counsel at guilt phase is not tantamount to a guilty plea requiring a personal waiver)
- People v. Sanchez, 24 Cal.4th 983 (Cal. 2001) (elements comparison controls whether an offense is a lesser included crime)
- People v. Farwell, 5 Cal.5th 295 (Cal. 2018) (stipulation admitting all elements of a charged offense is tantamount to guilty plea)
- McCoy v. Louisiana, 138 S. Ct. 1500 (U.S. 2018) (counsel may not concede client’s guilt over the client’s express and unyielding objection)
- People v. Butler, 184 Cal.App.3d 469 (Cal. Ct. App. 1986) (holding flight after an accident may reflect a separate intent supporting separate punishment)