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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JAIME JEZZUEL LOPEZ,

 Defendant and Appellant.

 G046477

 (Super. Ct. No. 08NF3673)

 O P I N I O N

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.

* * *
2

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 

where homosexual men would meet to commit lewd acts.

1

 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.
3

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. 
4

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 
5

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 
6

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, 
7

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 
8

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 
9

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.
10

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 
11

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, 
12

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 
13

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 
14

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.