United States v. Rodolfo Lopez, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 11, 2018
• Docket: 17-10408
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 17-10408 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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