Filed 8/26/13 P. v. Lopez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046477

         v.                                                            (Super. Ct. No. 08NF3673)

JAIME JEZZUEL LOPEZ,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Richard
F. Toohey, Judge. Affirmed.
                   Eric Multhaup, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Christopher Beesley and
Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A jury convicted defendant Jaime Jezzuel Lopez of first degree murder and
found true the special circumstance he committed the murder during a robbery. The
court sentenced defendant to life in prison without the possibility of parole.
              Defendant contends the court erred by excluding evidence he was deported
to Mexico six weeks after the murder and voluntarily returned to the United States
sometime later. He also alleges the court erred by misreading an instruction to the jury.
We affirm the judgment.


                                          FACTS


              In 2001, police officers observed the victim, Reginold Harry, in an area
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where homosexual men would meet to commit lewd acts. Reginold told the officers he
was bisexual. In 2004, police officers observed Reginold in a different meeting area for
homosexual men.
                In 2003, police officers observed defendant in an area where homosexual
men would meet to commit lewd acts. Defendant told an officer he was homosexual. In
2006, defendant was parked at the A to Z adult bookstore in Garden Grove (a meeting
area for homosexual men) and told an officer that he was waiting for a male prostitute to
approach him.
              In June 2007, Reginold lived with his wife of 16 years, Annie, and their
two sons in a one-bedroom apartment in Fullerton, California. The whole family slept in
the apartment‟s single bedroom, with Annie sharing a large bed with their younger son,
while Reginold and the older son slept on a bunk bed‟s bottom and top bunks,
respectively. At the time, Reginold and Annie had not had marital relations for a year
and a half or more.
1
           To avoid confusion, we refer to Reginold and Annie Harry by their first
names. We mean no disrespect.

                                             2
             Annie worked as a dietician assistant at a local hospital, and had previously
been trained and worked as a nurse in other countries. Annie would leave the apartment
at 6:00 a.m. because she worked from 6:30 a.m. to 1:00 p.m. at the hospital. Reginold
worked at night doing data entry at a laboratory, usually from 9:00 p.m. to 5:00 a.m.
Their older son was a high school sophomore and their younger son was in elementary
school.
             The morning of June 4, 2007, Annie woke up at 4:45 a.m. The apartment
was tidy, as Annie always maintained a very tidy home. Reginold and the two sons were
sleeping when Annie left for work at 5:45 a.m. Shortly before 7:00 a.m., the older son
left to walk to school. The apartment was still clean and tidy. Between 7:30 and 7:45
a.m., Annie phoned Reginold to ask whether their younger son was going to school even
though his legs had hurt the day before. Reginold said their younger son was going to
school and was fine. Reginold drove the boy to school. Before dropping his son off,
Reginold said, “Bye, [son], I love you.”
             At about 1:15 p.m., Annie arrived home from work and parked downstairs
in front of her apartment. She looked up at her second floor apartment and was surprised
to see the curtains drawn on the bedroom and living room windows, which was unusual.
Annie walked upstairs and opened the apartment‟s front door. Strewn on the floor were
the contents of a living room cabinet and the cabinet under the kitchen sink. The cabinet
doors were open.
             Annie called out, “Reggie? Reggie?” Hearing no answer, she rushed to the
bedroom. The bedroom door was locked; normally, it was never even closed. A
computer on a nearby desk was turned over. Annie knocked on the bedroom door and
called, “Open the door, Reggie.” Hearing no answer, she phoned the building manager
and asked for someone to come open the door. She grabbed a screwdriver and tried to
remove the door knob, but the knob fell inside while the latch stayed closed.



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              The apartment building‟s repairman arrived. Annie seemed very nervous
and asked him to quickly open the door. The repairman disengaged the latch and opened
the bedroom door.
              Annie rushed inside the bedroom. The room was dark because the curtain
was drawn. Dresser drawers were open. Items were scattered on the floor. The closet
door was slid partially open.
              Annie rushed to the bed and saw a naked Reginold laying down on his
stomach. The white satin bedspread was red with blood. Annie shook Reginold hard and
screamed, “Reggie, get up. Reggie, talk to me.” She checked his neck for a pulse but
there was none. One side of his head had no hair and was totally white. Annie saw
something on one side of the bed, touched it, and realized it was a patch of skin and hair.
              The repairman was leaving the apartment when he heard Annie yelling,
followed by a high-pitched shrill scream. He returned to the bedroom to ensure she was
safe. He saw a body on the bed. After confirming that Annie had phoned 911, the
repairman went to the manager‟s office to report the incident.
              The police arrived within 10 minutes and found no signs of a forced entry
into the ransacked apartment.
              On the lower bunk bed were a box of condoms, a bottle of lubricant, and a
black belt. Underneath the mattress were two heterosexual pornographic DVD‟s. Two
pools of blood had seeped through a number of comforters and sheets onto the mattress.
On a dresser drawer at the head of the bed was a blood swipe (where an object with blood
is rubbed against another object and transfers blood onto it). There was blood cast-off
(which occurs when a bloody is moved and the blood is cast off in a blood stain pattern)
throughout the bedroom — on virtually every wall, the ceiling, the bedspread, the
pillows, a dresser, the blinds, the closet doors, a crucifix, and a picture of Mahatma
Gandhi. The blood cast-off on the wall behind the bed and the window area was
consistent with the perpetrator being behind the victim on the bed and hitting with the left

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or right hand and then pulling back and hitting again a number of times. There was blood
spatter (which occurs when an object makes contact with blood causing the blood to
splash off onto an area) on a bedroom wall and a pillow. Three of Annie‟s purses were
on the bed, instead of in their normal place in a closet. The purses on the bed next to the
blood-spattered pillow had no blood on them.
              A DNA sample was taken from a drinking glass in the bedroom. The DNA
swab was properly maintained and kept at the crime lab and the chain of custody was
maintained throughout the testing process.
              Annie normally kept a black jewelry case and two plastic boxes of jewelry
in a bedroom closet. Now all of her 22 karat gold jewelry was gone, along with $700 to
$800 in cash and a bag containing her video camera and all the cassettes recording
memories dating from her sons‟ birth up to that day. Also missing were surgical gloves
and a roll of trash bags from the kitchen, Reginold‟s wallet, and a crystal cross that had
been on a nightstand at the foot of the bed.
              Annie later gave the police an identical crucifix that belonged to her sister.
Annie found a homosexual men‟s magazine and a men‟s workout magazine underneath
the carpet in the trunk of Reginold‟s car, which she gave the police. She gave them a
bank statement showing a May 21, 2007 withdrawal for $22 from an automatic teller
machine at the A to Z Bookstore in Garden Grove. At police request, a flyer was posted
at the A to Z Bookstore with Reginold‟s photo and a synopsis of the incident.
              Reginold‟s autopsy revealed he had suffered 13 lacerations to the left side
and back of his head. Beneath the lacerations, hemorrhaging had occurred and the
temporal bone was fractured down to the base of his skull. The injuries to Reginold‟s
skull were consistent with his having been struck several times with the edges of the
crystal cross, which weighed about three pounds. Reginold also had superficial injuries
to his left shoulder and upper back, as well as defensive wounds on his right hand. There



                                               5
was no evidence of sexual trauma to his anus. His death was caused by severe blunt
force head trauma.
              Almost six weeks later, on July 16, 2007, officers arrived at a home on
Donna Lane in Garden Grove in response to a report of a disturbance. The home was
located 10 miles from the Harrys‟ apartment in Fullerton and 4.6 miles from the A to Z
Bookstore in Garden Grove.
              The homeowner, Eladio Alvarez, told an officer that defendant rented a
studio/garage in the backyard. Defendant lived there with his friend, an Asian man.
Defendant never paid the $600 rent during the three months he was there because he said
he was unemployed. Most of the backyard was off limits to defendant and his friend
because defendant was not paying his rent.
              Alvarez had told his daughter to phone the police because defendant was
arguing with his friend. Alvarez had told defendant he was going to call the police. Prior
to the police arriving, defendant asked Alvarez if he (defendant) could leave some items
at the house but Alvarez refused. About five minutes before the officers arrived,
Alvarez‟s daughter saw defendant going back and forth from the studio/garage to the
back of a shed in the backyard; she thought this was unusual because defendant was not
allowed to go there.
              Defendant told the police that he was in a relationship with Trung Pham,
they lived together at the studio, and they had recently broken up. After talking with
defendant about the dispute, an officer told defendant to leave the Alvarez residence.
              The next day, Alvarez was doing yard work in the backyard when he found
two backpacks behind a storage shed. Alvarez had previously seen defendant and Pham
with the backpacks. Alvarez called the police. The responding officer saw a box of latex
gloves on top of one blue backpack. Inside the backpack was a large black plastic
Samsonite case filled with jewelry. Inside the other backpack was a laptop computer,
computer equipment, a Sprint pocket personal computer, jewelry inside some small bags,

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a letter addressed to defendant, a driver‟s license renewal application for Pham, and a
2004 tax return for a woman who did not know either defendant or Pham. The jewelry
and watches were eventually sent to an auction company to be sold pursuant to police
policy, because they had not been claimed. The auction company inventoried the items
and took photographs of the jewelry and watches.
              Defendant‟s DNA standard was properly maintained and kept at the crime
lab and the chain of custody was maintained throughout the testing process. DNA testing
revealed defendant was the major contributor of DNA on the drinking glass found in the
bedroom on the day of Reginold‟s murder. In July 2008, the lead investigator in the
murder case was informed of the DNA match.
              In August 2008, Annie went to the police station to look at photographs to
see if any of the jewelry taken from her home in 2007 was depicted in those photographs.
She identified three pieces of jewelry as definitely belonging to her and a watch as
resembling one of hers, although she could not definitively identify it as hers without
seeing the watch.


Defense
              Defendant testified in his own defense as follows. He had been to the
Fullerton apartment just once. He went there with his friend and drug dealer, Ivan
Argueta. Prior to June 2007, Argueta had sold defendant crystal methamphetamine more
than 20 times. At that time, defendant had been using methamphetamine for about two
years. Defendant and Argueta are both homosexual, and they attended gay clubs
together.
              On the day in question, Argueta came to defendant‟s home unannounced,
woke him up, and asked defendant to help Argueta move out of his boyfriend‟s apartment
because Argueta and his boyfriend had had a fight. Argueta was high and freaking out.
Argueta drove defendant to the apartment in Argueta‟s white Mustang. Argueta opened

                                             7
the door to the apartment and defendant followed him inside. Drawers were open and
stuff was on the floor. Argueta told defendant to stay in the living room; defendant sat
down on the couch. Argueta “went somewhere inside.” Defendant heard Argueta
moving around in the other room. Defendant shouted to Argueta in the other room,
asking what he was doing, what was all this mess, and where was the bathroom.
Defendant could not recall what Argueta was saying; Argueta “was just screaming.”
Defendant used the bathroom and then returned to the living room. He went to the
kitchen, got a glass and some water from the sink, drank the water, and put the glass
down on the kitchen counter. He did not go into the bedroom or place the glass on any
bedroom furniture. Defendant started “freaking out about the place being a mess.” It
bothered him that Argueta was getting back at his boyfriend by making such a mess. He
told Argueta that he wanted to leave. Argueta told defendant to take three pieces of
luggage away in Argueta‟s car. Defendant said he was not coming back for Argueta.
Argueta said, “Just take my car, don‟t worry.” Argueta stayed at the apartment.
Defendant drove home, left the luggage in the Mustang, and went inside to sleep.
Sometime that afternoon, Argueta came and woke defendant up. Argueta asked
defendant for the car keys. Argueta then left.
              That evening, Argueta returned and gave defendant two plastic grocery
bags containing about 12 pieces of jewelry. Defendant and Argueta talked about money
that Argueta had borrowed from defendant. (Defendant had pawned a computer and
printer to get the money to lend to Argueta). Argueta left and defendant never saw him
again.
              On the day defendant fought with Pham, defendant hid the backpacks
behind the storage shed because he and Pham had stuff in there they did not want the
police to find. They had been committing credit card fraud and identity theft by stealing
mail from mailboxes. Pham‟s cell phone, iPod, and defendant‟s computer were in one



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backpack. Defendant subsequently went to the police department to ask that his property
be returned, but was told it had either been donated to charity or sold.
              Defendant admitted that in 2008 he was convicted of felony fraud in
Orange County. In October 2008, a police detective showed defendant a photograph of
the Harry apartment. Defendant denied having been there because at “that point in time
[he] didn‟t recognize the place.” When defendant was shown a photograph of Reginold,
defendant first said he did not recognize that person. Defendant later told the detectives
that he recognized Reginold from a flyer he saw at the A to Z Bookstore.
              The defense also called a police detective as a witness. The detective
testified that he interviewed defendant in October 2008 regarding the June 2007 incident
at the Fullerton apartment. Defendant told the detective that it had been about four to
five years since he had been in Fullerton. The detective showed defendant a photograph
of the Fullerton apartment and mentioned there was scientific evidence linking him to the
location. Eventually defendant admitted he was there and gave the version of events
involving Argueta. Defendant told the detective that when he was in the apartment, he
went to the kitchen, filled up a glass of water, and drank some. At that time, the detective
had not told defendant that his DNA was found on a drinking glass in the apartment.
              The detective found a July 20, 2007 traffic citation in which Argueta had
provided a Fullerton address to a police officer. The address was located two to three
miles from the Harrys‟ Fullerton apartment. The detective verified that Argueta did
indeed own a white Mustang and located him in Mexico. A Spanish-speaking officer
interviewed Argueta in Mexico and obtained samples of Argueta‟s hair and saliva. Tests
showed that Argueta‟s DNA was not present in the Fullerton apartment.




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                                      DISCUSSION

The Court Did Not Abuse Its Discretion by Excluding Evidence of Defendant’s
Deportation to Mexico and His Return to the United States
              Defendant contends the court erred by excluding evidence of his
deportation in July 2007, his subsequent return to southern California, and his attempt to
retrieve his property from the police department. He argues his “overall course of
conduct and the particular incident in which he made an affirmative contact with local
police was consistent with his innocence of the murder and inconsistent with a
consciousness of guilt or knowledge of the murder.”
              Outside the jury‟s presence, before the People called their last witness, the
court and counsel discussed on the record defendant‟s immigration status and deportation
to Mexico. The prosecutor specifically requested that the evidence be excluded. Defense
counsel noted that the jury had not heard, but the court was aware, that defendant was
arrested on July 16, 2007 (the day of the domestic violence incident on Donna Lane),
served jail time, was deported, and then came back into the United States. Defense
counsel argued that evidence of defendant‟s deportation to Mexico and return to the
United States would help show his innocence since he could have stayed in Mexico. The
prosecutor argued defendant could have many unknown reasons for returning to the
United States, the evidence lacked foundation as to his innocence, and evidence of his
immigration status could potentially prejudice the People.
              The court asked whether there was any other relevant information about the
time period after defendant returned to the United States. Defense counsel replied that,
after defendant returned to this country, he went to the police department to claim his
seized property but was told it was gone. Defense counsel stated, however, this had
“nothing to do with the deportation angle.” The prosecutor mentioned defendant
committed a series of burglaries after his return to the United States and the People



                                            10
intended to impeach defendant based on his moral turpitude conviction. Defense counsel
stated defendant wanted “to explain to the jury his lifestyle and how he was leading his
life and his drug habit” subsequent to the homicide, although the attorney himself was not
certain the testimony would be relevant.
              After the close of the People‟s case, outside the jury‟s presence, the court
held further proceedings on evidentiary issues. The court exercised its discretion under
Evidence Code section 352 to exclude evidence of defendant‟s multiple convictions of
theft. But the court admitted evidence defendant had been convicted of a felony.
              The court then asked defense counsel if he had any offer of proof as to the
relevance of defendant‟s deportation and subsequent return to the United States. Defense
counsel had no further explanation over and above what he had said earlier about
defendant‟s wishes. The court ruled the evidence of defendant‟s immigration status and
that he was deported and reentered the country was irrelevant. The court added that if,
after defendant testified, either side believed such evidence somehow became relevant,
the court would be willing to take a second look at it.
              Defendant then testified. He did not testify about his deportation from and
reentry into the United States. He did, however, testify (over the prosecutor‟s relevance
objection) that he went to the police to ask for the return of the property in the backpacks.
He testified the police said the property “was already given to either charity or sold.”
              After defendant finished testifying and before the next defense witness was
called, the court asked outside the jury‟s presence, whether the attorneys needed to
discuss anything about the state of the evidence. Defense counsel replied, “No.”
              Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence is
relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action,” and includes evidence relevant to the
credibility of a witness or hearsay declarant. (Evid. Code, § 210.) In contrast, evidence
need not be material to be admissible (People v. Lewis (2009) 172 Cal.App.4th 1426,

                                             11
1441); “[e]vidence is „material‟ if there is a reasonable possibility it would make a
difference in the outcome” (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence
(The Rutter Group 2012) ¶ 8:102.1, p. 8B-1 (rev. # 1, 2012)). The weight of particular
evidence is not a factor in determining its relevance for admissibility. (People v. Clark
(2011) 52 Cal.4th 856, 923.) But “„evidence which produces only speculative inferences
is irrelevant evidence.‟” (People v. Babbitt (1988) 45 Cal.3d 660, 682.)
              “A trial court has broad discretion to determine whether evidence is
relevant.” (People v. Lomax (2010) 49 Cal.4th 530, 581.) Accordingly, we review for an
abuse of discretion a trial court‟s rulings on the admissibility of evidence. (Id. at p. 582.)
A judgment may not be reversed due to the erroneous exclusion of evidence unless the
error is prejudicial and it appears of record that, subject to exceptions, the “substance,
purpose, and relevance of the excluded evidence was made known to the court by the
questions asked, an offer of proof, or by any other means.” (Evid. Code, § 354, subd.
(a).)
              “Ordinarily a criminal defendant‟s attempt „to inflate garden-variety
evidentiary questions into constitutional ones [will prove] unpersuasive. “As a general
matter, the „[a]pplication of the ordinary rules of evidence . . . does not impermissibly
infringe on a defendant‟s right to present a defense.‟ [Citations.] Although completely
excluding evidence of an accused‟s defense theoretically could rise to this level,
excluding defense evidence on a minor or subsidiary point does not impair an accused‟s
due process right to present a defense.”‟” (People v. Thornton (2007) 41 Cal.4th 391,
443.)
              Defendant broadly contends that the court excluded any testimony on his
part about his deportation, return, and voluntary contact with the police. Defendant
particularly stresses the significance of this last circumstance; he argues that his visit to
the police station to claim his property “was particularly probative of an innocent state of
mind because [the action] was highly unlikely behavior for someone trying to avoid

                                              12
arrest for murder.” But defendant did in fact testify to this conduct. The court overruled
the prosecutor‟s relevance objection and allowed defendant to testify that he asked the
police to return his property, but the police stated the property had been donated to
charity or sold. The only information missing from the testimony was the exact timing of
his visit to the police station, i.e., that it took place after he voluntarily returned to the
United States from Mexico. Nonetheless, the jury would have necessarily inferred that
defendant asked the police to return the property sometime after the police confiscated
the backpacks in the first place and therefore sometime after Reginold‟s murder. In other
words, the jury heard evidence from which it could have inferred (but obviously did not)
that defendant went to the police station with an innocent state of mind.
               We conclude the court did not abuse its discretion by excluding as
irrelevant the proffered evidence that defendant was deported to Mexico and returned
voluntarily to the United States and that his effort to regain his property took place after
his return to this country. The court was well within its discretion to find that any
inference of defendant‟s innocence, based on this evidence, would be purely speculative.


There was No Reversible Instructional Error
               The court provided the jury with a written instruction on felony murder
which stated, inter alia: “The defendant must have intended to commit the felony of
robbery before or at the time he caused the death.” But the court, in reading the
instruction to the jury, erroneously substituted the word “murder” for “robbery,” saying,
“The defendant must have intended to commit the felony of murder before or at the time
that he caused the death.” The court also instructed the jury, “I will give you a copy of
the instructions to use in the jury room. . . . Only consider the final version of the
instructions in your deliberations.”
               In People v. Mills (2010) 48 Cal.4th 158, 200, the trial court misread an
instruction to the jury by erroneously adding the word “not” twice. By doing so, the

                                                13
court “told the jury the opposite of the correct definition.” (Ibid.) Our Supreme Court
held the trial court committed no reversible error. (Ibid.) “The risk of a discrepancy
between the orally delivered and the written instructions exists in every trial, and verdicts
are not undermined by the mere fact the trial court misspoke. „We of course presume
“that jurors understand and follow the court‟s instructions.” [Citation.] This presumption
includes the written instructions. [Citation.] To the extent a discrepancy exists between
the written and oral versions of jury instructions, the written instructions provided to the
jury will control.‟ [Citation.] Because the jury was given the correctly worded
instructions in written form and instructed with CALJIC No. 17.45 that „[y]ou are to be
governed only by the instruction in its final wording,‟ and because on appeal we give
precedence to the written instructions, we find no reversible error.” (Id. at pp. 200-201,
fn. omitted.)
                Mills is controlling here. There was no error.


                                       DISPOSITION


                The judgment is affirmed.



                                                   IKOLA, J.

WE CONCUR:



O‟LEARY, P. J.



THOMPSON, J.



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