P. v. Lopez

Filed 6/21/06 P. v. Lopez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

After a jury trial, defendant Gustavo Joel Lopez was found guilty of committing three felony offenses, including hit and run accident resulting in injury (Veh. Code, § 20001, subd. (a), (b)(1); count 1), driving under the influence of alcohol and causing injury (Veh. Code § 23153, subd. (a); count 2), and driving under the influence of alcohol with a blood alcohol level of .08 and causing injury (Veh. Code, § 23153, subd. (b).) As to counts 2 and 3, defendant stipulated that his blood alcohol level was .20 within the meaning of Vehicle Code section 23578. He also admitted a prior conviction of driving under the influence. (Veh. Code, § 23152.)

Defendant was sentenced to one year in county jail. Imposition of the jail sentence was suspended and defendant was placed on probation. He was also ordered to pay restitution of $7,108.35 to the owner of the vehicle damaged in the hit and run accident, as well as restitution of $9,112 to the injured driver of that vehicle.

On appeal, defendant asserts two claims of ineffective assistance of counsel. First, defendant contends that trial counsel failed to object to prosecutorial misconduct when the prosecutor improperly shifted the burden of proof to defendant during the prosecutor's closing argument. Second, defendant contends that trial counsel failed to object when a police officer gave inadmissible opinion testimony. For reasons that we will explain, we conclude that both claims of ineffective assistance of counsel lack merit, and accordingly we also reject defendant's claim of cumulative error. We will therefore affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Background

Defendant was charged by complaint as follows: (1) felony hit and run accident resulting in injury (Veh. Code, § 20001, subd. (a), (b)(1); count 1); (2) felony driving under the influence of alcohol and drugs and causing injury (Veh. Code, § 23153, subd. (a); count 2); (3) felony driving under the influence of alcohol with a blood alcohol level of .08 and causing injury (Veh. Code, § 23153, subd. (b); count 3); and (4) misdemeanor battery (Pen. Code, §§ 242-243, subd. (a).) The complaint also alleged that as to counts 2 and 3, defendant's blood alcohol level was .20 and more by weight within the meaning of Vehicle Code section 23578 and defendant had a prior conviction for driving under the influence.

Defendant waived his right to a preliminary examination and the information was filed on June 17, 2004. A jury trial commenced on November 17, 2004. Prior to trial defendant admitted the prior conviction for driving under the influence. During the trial defendant stipulated that his blood alcohol level was .20.

B. Trial Proceedings

The 10-day trial included testimony from eight witnesses. The witnesses presented two versions of the hit and run incident giving rise to the criminal charges against defendant. According to some witnesses, defendant was the driver of the automobile involved in the incident. Other witnesses testified that the driver was the owner of the automobile, defendant's friend Andrea Flores. During closing argument, both counsel stated that the main issue in the case was whether defendant was the driver. A brief summary of the witnesses' testimony is set forth below.

1. Witness Testimony

Jeremy Tonn

Jeremy Tonn testified that on the day of the hit and run incident, December 27, 2003, he and two friends, Ronald Cheshier and Josh Crockett, were returning home after a day of skateboarding. Shortly before the incident occurred, Cheshier was driving a Honda Civic automobile on southbound Highway 17 with Tonn in the front passenger seat and Crockett in the back. Tonn felt the jolt of a rear impact and briefly lost consciousness. He then saw an Audi automobile pull out in front of the Honda. Cheshier flashed the Honda's headlights to signal the Audi to pull over. Tonn then saw a â€