State v. Lopez-Garcia

Court of Appeals of Oregon

State v. Lopez-Garcia

485 P.3d 305, 310 Or. App. 686

CourtCourt of Appeals of Oregon

DecidedApril 14, 2021

DocketA169912

StatusPublished

This text of 485 P.3d 305 (State v. Lopez-Garcia) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Lopez-Garcia, 485 P.3d 305, 310 Or. App. 686 (Or. Ct. App. 2021).

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Opinion

Submitted September 9, 2020, affirmed April 14, 2021

STATE OF OREGON, Plaintiff-Respondent, v. ANDRES LOPEZ-GARCIA, Defendant-Appellant. Marion County Circuit Court 18CR54949; A169912 485 P3d 305

Claudia M. Burton, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge. PER CURIAM Affirmed. Cite as 310 Or App 686 (2021) 687

PER CURIAM Defendant was convicted by jury verdict of first- degree assault constituting domestic violence, ORS 163.185. On appeal he argues that the trial court plainly erred in instructing the jury that it need not reach unanimous ver- dicts, and contends that, because the erroneous jury instruc- tion constituted a structural error, his conviction must be reversed in light of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). The Supreme Court rejected that argument in State v. Flores Ramos, 367 Or 292, 319, 478 P3d 515 (2020). Further, because the jury was not polled, we decline to exercise our discretion to review the plain error. See State v. Dilallo, 367 Or 340, 349, 478 P3d 509 (2020) (taking the same approach). We therefore reject defendant’s argument concerning the nonunanimous jury instruction. Affirmed.

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Submitted September 9, 2020, affirmed April 14, 2021

STATE OF OREGON, Plaintiff-Respondent, v. ANDRES LOPEZ-GARCIA, Defendant-Appellant. Marion County Circuit Court 18CR54949; A169912 485 P3d 305

Claudia M. Burton, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge. PER CURIAM Affirmed. Cite as 310 Or App 686 (2021) 687

PER CURIAM Defendant was convicted by jury verdict of first- degree assault constituting domestic violence, ORS 163.185. On appeal he argues that the trial court plainly erred in instructing the jury that it need not reach unanimous ver- dicts, and contends that, because the erroneous jury instruc- tion constituted a structural error, his conviction must be reversed in light of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). The Supreme Court rejected that argument in State v. Flores Ramos, 367 Or 292, 319, 478 P3d 515 (2020). Further, because the jury was not polled, we decline to exercise our discretion to review the plain error. See State v. Dilallo, 367 Or 340, 349, 478 P3d 509 (2020) (taking the same approach). We therefore reject defendant’s argument concerning the nonunanimous jury instruction. Affirmed.

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485 P.3d 305, 310 Or. App. 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lopez-garcia-orctapp-2021.

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