Filed 2/11/15 P. v. Avina CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F067589
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1411964)
                   v.

RAFAEL AVINA, JR.,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County.
Thomas D. Zeff, Judge.

         Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and
Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



         *Before Gomes, Acting P.J., Kane, J. and Peña, J.
                                    INTRODUCTION
       Defendant Rafael Avina, Jr., was convicted of evading a peace officer, unlawful
taking of a vehicle, and receiving stolen property. On appeal, he contends the trial court
committed prejudicial error by failing to instruct the jury on mistake of fact pursuant to
CALCRIM No. 3406 because defendant believed he had consent to drive the car and did
not know it was stolen. Further, he contends trial counsel was ineffective for failing to
request the instruction and for failing to argue a mistake of fact. We are not persuaded
and will affirm the judgment.
          RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
       On the afternoon of December 6, 2009, David Kernazitskas and his family left
their secured Ceres home for an overnight trip. When Kernazitskas returned on the
evening of December 7, he noted several oddities: a garage light left on, damaged doors,
lawn equipment out of place, and debris on the garage floor. Also missing from the
garage was a 2002 Volvo sedan. Kernazitskas called police. Once the home was cleared,
Kernazitskas realized several items were missing from inside the home, including the
following: a .22-caliber rifle, a pellet gun, a hunting knife, a big screen television and a
smaller television, a laptop computer, a Nintendo Wii game console and several games,
DVDs, a jewelry box containing jewelry and the family pet’s dog tags, and silver chess
pieces. Also taken from inside the home were the keys to the Volvo sedan that were
stored in a cupboard in the laundry room. No one had consent to drive the family’s
Volvo sedan. The next day, Kernazitskas was contacted by police and advised the
family’s vehicle and several items believed to have been taken from inside the home had
been recovered.
       After Kernazitskas’s report, Ceres police were on the lookout for the stolen
vehicle. Later that same evening, Officer Freddy Ortiz, Jr., saw a vehicle matching the
description of the stolen Volvo sedan parked in a driveway in front of a home in
Modesto. The driver’s side door was open and an individual was partially inside the
vehicle. The officer could not discern whether that individual was a man or a woman.

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Ortiz slowly drove by, awaiting a response from dispatch about whether the license plate
on that vehicle matched the stolen Volvo’s. As he did so, the individual walked away
from the sedan and toward the house. Ortiz circled the block; as he made his second
pass, he noted no individuals present outside the home. Dispatch then confirmed the
license plate matched that associated with the stolen vehicle. Ortiz pulled his patrol
vehicle over around the corner, asking other officers to set up a perimeter.
       As officers deployed to the area in response to Ortiz’s request, Officer Greg
Yotsuya radioed that the Volvo sedan had just passed him. A pursuit then ensued and the
Volvo eventually crashed into a fence in a nearby alley. The driver, later identified as
defendant, tried unsuccessfully to climb out of the vehicle. Defendant’s leg or foot was
wedged between the steering wheel and the driver’s side seat or door, thwarting his
escape.
       Numerous items taken from the Kernazitskas residence or their vehicle were found
inside the Modesto home or inside a trailer on the same property.
       Defendant was charged with evading a peace officer (Veh. Code, § 2800.2, subd.
(a)), unlawful taking of a vehicle (id., § 10851, subd. (a)), and receiving stolen property
(Pen. Code, § 496d, subd. (a)). A number of enhancements were also alleged. Defendant
was convicted of all charges following a jury trial. After admitting certain enhancements,
defendant was sentenced to a total prison term of five years eight months.
                                       DISCUSSION
Claim of Instructional Error
       Defendant complains the trial court had a sua sponte duty to instruct the jury on
mistake of fact pursuant to CALCRIM No. 3406 because it was his position at trial that
he did not know the Volvo sedan was stolen.
       A court must instruct the jury on all general principles of law necessary to
properly perform its function: “‘“It is settled that in criminal cases, even in the absence
of a request, the trial court must instruct on the general principles of law relevant to the
issues raised by the evidence. [Citations.] The general principles of law governing the

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case are those principles closely and openly connected with the facts before the court, and
which are necessary for the jury’s understanding of the case.”’” (People v. Breverman
(1998) 19 Cal.4th 142, 154.) The trial court’s sua sponte instructional duty includes the
obligation to instruct the jury with any affirmative defense supported by substantial
evidence, provided the defense is not inconsistent with the defendant’s theory of the case.
(People v. Salas (2006) 37 Cal.4th 967, 982; Breverman, supra, at p. 157.)
       Even assuming there was sufficient evidence to support an instruction on the
defense of mistake of fact as defendant argues here, an argument substantially similar to
his was rejected by the Supreme Court in People v. Anderson (2011) 51 Cal.4th 989,
997–998. There, the court held trial courts have no duty to instruct sua sponte on a
defense that serves only to negate the mental state element of the crime if the jury is
otherwise properly instructed on the mental state required to commit the crime. The
Supreme Court explained,

       “‘“when a defendant presents evidence to attempt to negate or rebut the
       prosecution’s proof of an element of the offense, a defendant is not
       presenting a special defense invoking sua sponte instructional duties.
       While a court may well have a duty to give a ‘pinpoint’ instruction relating
       such evidence to the elements of the offense and to the jury’s duty to acquit
       if the evidence produces a reasonable doubt, such ‘pinpoint’ instructions
       are not required to be given sua sponte and must be given only upon
       request.”’” (People v. Anderson, supra, at pp. 996–997; see People v.
       Saille (1991) 54 Cal.3d 1103, 1117.)
While Anderson involved the defense of accident, its reasoning was applied to the
mistake of fact defense and “any other defense that operates only to negate the mental
state element of the crime” in People v. Lawson (2013) 215 Cal.App.4th 108, 117. In
Lawson, the defendant was found guilty of petty theft with priors after stealing a $20
hooded sweatshirt from a retail store. (Id. at p. 111.) On appeal, the defendant argued
the jury could have reasonably inferred he simply forgot about the sweatshirt, which he
had draped over his shoulders before paying for the other items and leaving the store.
Therefore, he argued the trial court should have instructed sua sponte on the defense of
mistake of fact. (Id. at p. 118.) The Court of Appeal agreed the evidence supported a

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reasonable inference the defendant had forgotten about the sweatshirt. However, because
this defense amounted to no more than a claim he took the item without intending to steal
it and thus served only to negate the mental state required to commit the crime, the court
found the theft by larceny instructions given—“‘[w]hen the defendant took the property,
he intended to deprive the owner of it permanently’”—sufficient to address such a
defense. (Ibid.) “Like the defense of accident, an instruction on the defense of mistake
of fact would have served only to negate the mental state element of the crime.” “Thus,
even if substantial evidence supported an instruction on mistake of fact, the trial court
had no duty to instruct on the defense sua sponte.” (Ibid.)
       Here, the jury was instructed with CALCRIM Nos. 17501 and 1820,2 respectively
addressing receiving stolen property and unlawfully taking a vehicle. Both addressed the
required mental state for those crimes. Moreover, the jury was also instructed with
CALCRIM No. 376 as follows:




       1CALCRIM No. 1750 states:

       “The defendant is charged in count three with receiving stolen property.
       “To prove that the defendant is guilty of this crime, the People must prove that:
       “1. The defendant aided in concealing or withholding from the owner property that had
been stolen;
       “AND
       “2. When the defendant aided in concealing or withholding the property from the owner,
he knew that the property had been stolen.
       “Property is stolen if it was obtained by any type of theft.”
       2CALCRIM No. 1820 provides as follows:

       “The defendant is charged in count two with unlawfully driving a vehicle.
       “To prove that the defendant is guilty of this crime, the People must prove that:
       “1. The defendant drove someone else’s vehicle without the owner’s consent;
       “AND
      “2. When the defendant did so, he intended to deprive the owner of possession or
ownership of the vehicle for any period of time.”


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              “If you conclude that the defendant knew he possessed property and
       you conclude that the property had in fact been recently stolen, you may not
       convict the defendant of auto theft and receiving stolen property based on
       those facts alone. However, if you also find that supporting evidence tends
       to prove his guilt, then you may conclude that the evidence is sufficient to
       prove he committed auto theft and receiving stolen property.

              “The supporting evidence need only be slight and need not be
       enough by itself to prove guilt. You may consider how, where, and when
       the defendant possessed the property, along with any other relevant
       circumstances tending to prove his guilt of auto theft and receiving stolen
       property.

              “Remember that you may not convict the defendant of any crime
       unless you are convinced that each fact essential to the conclusion that the
       defendant is guilty of that crime has been proved beyond a reasonable
       doubt.”
Defendant’s defense—that he did not know the Volvo was a stolen vehicle, and that he
evaded police because his driving privilege was suspended—“served only to negate the
mental state[s]” required to commit the crimes of receiving stolen property and unlawful
taking of a vehicle. (People v. Lawson, supra, 215 Cal.App.4th at p. 118.) Moreover, the
court’s other instructions sufficiently addressed defendant’s defense. Therefore, the trial
court was not required to sua sponte instruct the jury on the mistake of fact defense.
       People v. Russell (2006) 144 Cal.App.4th 1415, upon which defendant relies, does
not require a different result. In that case, the defendant testified he found a 1982
Yamaha motorcycle abandoned in a parking lot; the motorcycle, however, had been
reported stolen. (Id. at pp. 1420-1421.) Defendant believed the motorcycle had been
abandoned for a number of reasons, including its condition, the fact it had not been
registered for nearly two years, and the fact it was found sitting next to trash dumpsters
behind a Cycle Gear store. (Id. at pp. 1421-1422.) The Russell court held the defendant
was entitled to a sua sponte mistake of fact instruction based on evidence he believed the
motorcycle he stole had been abandoned: “[I]nstructions on the applicable defenses
would have been more valuable to the jury than instructions regarding the elements of the
offense.” (Russell, at p. 1433.) However, as the Lawson court observed, “[I]n the wake

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of Anderson …, Russell … is apparently no longer good law to the extent it held that the
trial court had a duty to instruct sua sponte on the defense of mistake of fact.” (People v.
Lawson, supra, 215 Cal.App.4th at p. 118.)
       Finally, even assuming the court did have a sua sponte duty to instruct the jury
with CALCRIM No. 3406, the error was harmless.3 “An erroneous failure to instruct on
mistake of fact is reversible error only if it is reasonably probable that the giving of the
instruction would have produced a result more favorable to the defendant. [Citation.]”
(People v. Zamani (2010) 183 Cal.App.4th 854, 866; see People v. Watson (1956) 46
Cal.2d 818, 836.) No such reasonable probability exists here for several reasons. First,
the mistake of fact or a lack of knowledge evidence was weak; it pertained only to the
condition of the vehicle. Second, the evidence inferring defendant’s knowledge that the
vehicle was stolen was comparatively strong. Defendant led police on a chase within five
minutes of Officer Ortiz spotting the stolen vehicle in front of the residence in Modesto.
Third, the jury was fully and properly instructed regarding the People’s burden of proving
defendant’s specific intent or mental state beyond a reasonable doubt. In light of these
circumstances, and the fact the sole purpose of the mistake evidence was to attempt to
negate the mental state elements of the charged offenses, we conclude it was not
reasonably likely that giving a mistake instruction would have resulted in a more
favorable outcome for defendant.
       To conclude, with respect to both the unlawful taking or driving of a vehicle and
receiving stolen property counts, the jury was fully instructed that the prosecution was
required to prove defendant knew the vehicle was stolen. Thus, no additional sua sponte
instruction as to the defense of mistake was required. (People v. Anderson, supra, 51
Cal.4th at pp. 997–998.)




       3We reject defendant’s contention that the trial court’s failure to instruct should be
reviewed under the Chapman standard. (Chapman v. California (1967) 386 U.S. 18, 24.)


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Ineffective Assistance of Counsel
       In a related argument, defendant contends defense counsel provided ineffective
assistance of counsel by failing to request CALCRIM No. 3406 and by failing to argue
mistake of fact to the jury.
       To prevail on an ineffective assistance of counsel claim, the appellant must
establish two things: (1) counsel’s performance fell below an objective standard of
reasonableness, and (2) that prejudice occurred as a result. (Strickland v. Washington
(1984) 466 U.S. 668, 687; People v. Hernandez (2012) 53 Cal.4th 1095, 1105; People v.
Bradley (2012) 208 Cal.App.4th 64, 86–87.) The Strickland court explained that
prejudice is “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Strickland v. Washington, supra, at
p. 694.) Further, the high court stated that “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome” of the proceeding. (Ibid.)
       “‘“Reviewing courts will reverse convictions [on direct appeal] on the ground of
inadequate counsel only if the record on appeal affirmatively discloses that counsel had
no rational tactical purpose for [his or her] act or omission.”’ [Citation.]” (People v.
Lucas (1995) 12 Cal.4th 415, 437.) If the record on appeal “‘“sheds no light on why
counsel acted or failed to act in the manner challenged[,] … unless counsel was asked for
an explanation and failed to provide one, or unless there simply could be no satisfactory
explanation,” the claim on appeal must be rejected,’” and the “claim of ineffective
assistance in such a case is more appropriately decided in a habeas corpus proceeding.”
(People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
       Specifically, defendant asserts “there could be no possible reason why [defense]
counsel would knowingly want the jury to fail to consider appellant’s legal defense of
mistake,” and that the “failure to frame [his] lack of knowledge in the context of mistake
of fact deprived that jury of instruction on an appropriate defense.”
       Assuming for the sake of argument defense counsel should have requested an
instruction regarding mistake of fact, defendant has not been prejudiced by that failure.

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(People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 [“‘“a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies”’”].)
       Other instructions adequately covered the purported mistake of fact: that
defendant had no reason to believe the vehicle was stolen. As we have already explained,
the trial court properly instructed the jury with CALCRIM Nos. 376, 1750, and 1820
addressing the mental state element of the crimes of receiving stolen property and
unlawful taking of a vehicle. Both counts required the jury to conclude defendant knew
the Volvo sedan was stolen. Additional instructions would have been redundant, perhaps
even confusing. The essence of the mistake was effectively encompassed in the court’s
other instructions. (See People v. Anderson, supra, 51 Cal.4th at pp. 997–998; People v.
Lawson, supra, 215 Cal.App.4th at p. 111.)
       By virtue of returning guilty verdicts, the jury necessarily rejected defendant’s
mistake of fact defense. There was plenty of evidence to support the jury’s findings.
While, as defense counsel argued, there may not have been any direct evidence tying
defendant to the Modesto home, its occupants, or the other stolen items recovered there,
there was circumstantial evidence of such a nexus. When Officer Ortiz spotted a Volvo
sedan in the driveway matching the description of the stolen vehicle, there was an
individual partially inside it. As the officer slowly drove past the house, that individual
stepped away from the vehicle and turned toward the house. The officer circled the
block, making a second pass; no one was outside on that occasion. He then parked his
marked patrol car around the corner, asking other officers to set a perimeter in the area
after dispatch confirmed a match. He believed it was possible the vehicle would be
moved because the individual had spotted the patrol car. As officers responded to Officer
Ortiz’s call, Officer Yotsuya reported the Volvo sedan had just passed his position. No
more than five minutes had passed between Ortiz’s initial observation and the Volvo
passing by Yotsuya’s position. The vehicle crashed into a nearby fence after a brief
pursuit. Defendant was the vehicle’s sole occupant. Circumstantially speaking, there

                                              9.
was significant evidence from which a jury could conclude that defendant knew the
Volvo was stolen.
       Nor do we necessarily agree defense counsel failed to argue the asserted mistake
of fact. While counsel may not have used the phrase “mistake of fact,” his closing
argument did address the “big issue … [of] whether or not [defendant] knew that the
vehicle was stolen.” Counsel specifically referenced the evidence that supported an
inference that defendant had no such knowledge: “The ignition wasn’t punched. The
stereo wasn’t stolen. The car was in fine shape. The keys were in the car.” Counsel
repeated those facts and emphasized the lack of direct evidence that defendant “was
inside of [the Modesto residence] or with these people who were inside [the home] where
the property was found. There is no evidence that [defendant] was in the trailer in the
back of the property that was at [the home] where property, again, was found ….
[¶] [T]here is no direct evidence of what [defendant] knew about this vehicle and that’s
critical.” Thus, a mistake of fact by defendant was implied in defense counsel’s closing
argument.
       For the foregoing reasons, it is not reasonably probable that had counsel requested
CALCRIM No. 3406 and expressly argued defendant’s mistake of fact to the jury that the
result would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694.)
                                     DISPOSITION
       The judgment is affirmed.




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