P. v. Ortega
Filed 2/26/13 P. v. Ortega
CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
FRANK ORTEGA,
Defendant and
Appellant.
2d Crim. No.
B239283
(Super. Ct.
No. BA388227)
(
Frank Ortega appeals the
judgment following his convictions for evading an officer (Veh. Code, § 2800.2,
subd. (a)) (count 1) and misdemeanor reckless driving (Veh. Code, § 23103,
subd. (a)) (count 2). He was sentenced
to the low term of one year four months in state prison on count 1 and to a
concurrent 90-day term on count 2.
Ortega contends the trial court
erred by refusing to instruct the jury on the defense of duress and by failing
to stay imposition of the sentence on count 2.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
On the evening of August 26, 2011, while on patrol in
his black-and-white police vehicle, Los Angeles Police Sergeant Louie Lozano
observed a Ford pickup truck fail to stop at the red light at the intersection
of Lincoln Park Avenue and Mission
Road. The
truck was traveling at a high rate of speed, up to 70 miles per hour. Lozano, who had been stopped at the
intersection, began pursuit. He saw the
truck run another red light. As the
chase continued, the truck increased its speed to approximately 80 miles per
hour, wove in and out of traffic, ran several stop signs and made an illegal
left turn. When Lozano was about a half
block behind the truck, he activated his lights and siren. The truck continued to travel at 75 to 80
miles per hour and ran more stop signs and red lights before turning onto a
side street.
When Sergeant Lozano
turned onto the side street, he saw the truck stopped, with one person running
away from it. The passenger door of the
truck was closed, and there was no one else in the area. Two back-up units arrived within 30 to 45
seconds. A resident notified the
officers that a male had exited the truck and was running through his
backyard. The officers discovered
Ortega, the truck's owner, hiding in the bushes. Shortly after his
from Rose Hills
[a gang] had a .38 pointed at me and demanded that I take him places to pick up
some things. I was so scared . . . that
I . . . soiled my pants." Ortega
had in fact defecated in his pants.
Although Sergeant Lozano had seen only one person in the truck, he had a
police helicopter conduct an infrared search of the surrounding area. No other suspects were located.
Ortega was charged with
evading an officer and misdemeanor reckless
driving. At trial, he sought to
admit his post-arrest statement about "Listo." The trial court ruled that the statement was
admissible as a non-hearsay statement, explaining: "The statement in my view was made not
for the truth of the matter asserted but to show the state of mind of [Ortega]
at the time when he allegedly did this driving."
Ortega requested that
the trial court instruct the jury with CALCRIM No. 3402 on the defense of
duress,
claiming the instruction was supported by Ortega's post-arrest statement to
police. Relying on People v. Ortiz (1995) 38 Cal.App.4th 377 (Ortiz), the court refused the request, observing "there is no
evidence currently . . . before the jury as to the evidence that [Ortega] was
threatened. The evidence only came in
for the non-hearsay purpose . . . as to [Ortega's] state of mind. [¶] . . .
There is not substantial evidence before the court because the evidence
was only admitted for a non-hearsay
purpose."
The trial court gave
defense counsel an opportunity to re-open evidence to allow Ortega to testify
regarding the alleged second person in the truck. When he chose not to do so, the trial court
instructed the jury that Ortega's post-arrest statement regarding Listo
"is only to be used as evidence of [Ortega's] fear, and is not to be used
as proof of what was spoken." The jury
convicted Ortega on both charges.
DISCUSSION
Ortega
Failed to Present Substantial Evidence of Duress
Ortega contends the
trial court erroneously refused to instruct the jury on duress. We disagree.
A defense of duress requires that the defendant show that he acted under
immediate threat of harm and reasonably believed his life was in
defendant did not have time to form the required criminal intent. (Pen. Code, § 26, par. Six;
36 Cal.4th 309, 331; People v. Heath
(1989) 207 Cal.App.3d 892, 899-901.) A
defendant is entitled to a jury instruction on duress only if it is supported
by substantial evidence. (
Cal.App.4th 663, 676-677;
1158, 1206.) Substantial evidence is
evidence from which a jury reasonably could conclude that the particular facts
underlying the instruction exist. (
685-686, superseded in part by statute on another point as stated in
777.)
The only evidence of
duress proffered by Ortega was his post-arrest statement that he "had to
drive like that because Listo from Rose
Hills had a .38 pointed at me and
demanded that I take him places to pick up some things. I was so scared . . . that I . . . soiled my
pants." Ortega acknowledges this
statement was admitted as circumstantial evidence of his state of mind and not
for the truth of the matter asserted. In
other words, the statement was not admitted to prove that Listo was actually in
the truck, threatening Ortega with a gun and forcing him to drive recklessly. Rather, it was admitted only as
circumstantial evidence from which inferences could be drawn concerning his
fear of Listo.
Ortiz, supra, 38 Cal.App.4th at page 389 addressed the difference
between evidence admissible under Evidence Code section 1250
and evidence admissible as circumstantial evidence of the declarant's state of
mind. Evidence admitted under section
1250 is hearsay as it describes a mental or physical condition and is received
for the truth of the matter asserted. (
In contrast, evidence which does not declare a state of mind, but is
circumstantial evidence of the declarant's state of mind, is not hearsay. "It is not received for the truth of the
matter stated, but rather whether the statement is true or not, the fact such
statement was made is relevant to a determination of the declarant's state of
mind." (Ibid.)
In Ortiz, the statement of the victim
was offered to show her state of mind as evidence that she would not have
sought an intimate relationship with her assailant. (Ortiz,
supra, 38 Cal.App.4th at pp. 385-386.)
The truth of the circumstances was unimportant. Her fear concerned the defendant's claim that
she sought him. Here, Ortega's stated
fear is not relevant absent independent evidence of its cause.
The trial court
appropriately instructed the jury that the post-arrest statement "is only
to be used as evidence of [Ortega's] fear, and is not to be used as proof of
what was spoken." (See
389.) Because the statement was admitted
only for that limited purpose, and not for the truth, it did not provide
sufficient evidentiary support for a jury instruction on the defense of
duress. The trial court correctly
observed "there hasn't been any evidence presented to the jury . . . that
a threat was actually made."
As the prosecution
points out, there was no other evidence that any life-threatening danger to
Ortega was "both imminent and immediate at the time the crime [was]
committed." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100.) At most, the statement was an
unsubstantiated, self-serving misstatement of the truth. Sergeant Lozano testified that Ortega was the
only person in the truck. When Lozano
approached the truck, he saw only Ortega running from the vehicle. In an abundance of caution, however, Lozano
called in a police helicopter with infrared heat detection to search for a
second suspect. No one was found. Officers at the scene observed that the door
on the passenger side of the truck was still closed after Ortega abandoned the
truck, and a local resident told the officers he saw only one man running from
the truck. In the absence of any
evidence of life-threatening danger, the trial court properly refused to
instruct the jury on duress.
Even if the post-arrest
statement did support an instruction on duress, the error was not
prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836.) A conviction must be reversed only if it is
reasonably probable that the defendant would have realized a better result but
for the error. (People v. Breverman (1998) 19 Cal.4th 142, 178.) There was no credible evidence that Ortega
was under duress from Listo or anyone else at the time he committed the
crimes. Given the overwhelming evidence
of Ortega's guilt, any error in failing to give the instruction was
harmless. (Ibid.)
Stayed
Ortega
contends the trial court should have stayed execution of his sentence on count
2 under Penal Code section 654 because he committed both crimes with the single
intent and objective of evading the police.
We disagree.
Penal Code section 654
provides that "[a]n act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall
the act or omission be punished under more than one provision." In other words, section 654 prohibits
multiple punishments for a single act or indivisible course of conduct. (People
v. Hester (2000) 22 Cal.4th 290, 294; People
v. Latimer (1993) 5 Cal.4th 1203, 1208.)
The trial court must stay execution of the sentence on convictions for
which multiple punishments are prohibited.
(People v. Reed (2006) 38
Cal.4th 1224, 1227.)
The record reflects
Ortega's initial criminal objective was to drive recklessly. Sergeant Lozano observed Ortega speeding
through a red light before Ortega was aware that Lozano was stopped at that
intersection. The pursuit had yet to
begin. Thus, the first episode of
driving was wholly unrelated to the officer's presence or pursuit and
constituted the offense of reckless driving.
(See Veh. Code, § 23103, subd. (a).)
Once the pursuit began the offense took on a wholly different character
and objective. Accordingly, the trial
court properly refused to stay execution of the sentence on count 2.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Drew
E. Edwards, Judge
Superior
Court County
of Los Angeles
______________________________
Gideon Margolis, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Linda C. Johnson, Supervising
Deputy Attorney General, Ryan M. Smith, Deputy Attorney General, for Plaintiff
and Respondent.
CALCRIM No. 3402 states:
"The
defendant is not guilty of <insert
crime[s]> if (he/ she) acted under duress. The defendant acted under
duress if, because of threat or menace, (he/she) believed that (his/her/ [or]
someone else's) life would be in immediate danger if (he/she) refused a demand
or request to commit the crime[s]. The demand or request may have been express
or implied.
The defendant's
belief that (his/her/ [or] someone else's) life was in immediate danger must
have been reasonable. When deciding whether the defendant's belief was
reasonable, consider all the circumstances as they were known to and appeared
to the defendant and consider what a reasonable person in the same position as
the defendant would have believed.
A threat of future
harm is not sufficient; the danger to life must have been immediate.
[The People must
prove beyond a reasonable doubt that the defendant did not act under duress. If
the People have not met this burden, you must find the defendant not guilty of
<insert crime[s]>.]
[This defense does
not apply to the crime of <insert
charge[s] of murder; see Bench Notes>.]"
section 1250 provides that "evidence of a statement of the declarant's then
existing state of mind, emotion, or physical sensation (including a statement
of intent, plan . . .) is not made inadmissible by the hearsay rule when: [¶]
(1) The evidence is offered to prove the declarant's state of mind,
emotion, or physical sensation at that time or at any other time when it is
itself an issue in the action; or
[¶] (2) The evidence is offered
to prove or explain acts or conduct of the declarant."
