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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B239283
                                                                           (Super. Ct. No. BA388227)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

FRANK ORTEGA,

     Defendant and Appellant.



                   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 arrest, Ortega told the officers: "I had to drive like that because
Listo 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,1 claiming the instruction was supported by Ortega's post-

1 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.
                                              2
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 danger, such that
the defendant did not have time to form the required criminal intent. (Pen. Code, § 26,
par. Six; People v. Wilson (2005) 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. (People v. Petznick (2003) 114 Cal.App.4th 663,
676-677; People v. Cole (2004) 33 Cal.4th 1158, 1206.) Substantial evidence is evidence
from which a jury reasonably could conclude that the particular facts underlying the
instruction exist. (Petznick, at p. 677; People v. Flannel (1979) 25 Cal.3d 668, 685-686,




              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>.]"
                                               3
superseded in part by statute on another point as stated in In re Christian S. (1994) 7
Cal.4th 768, 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 12502 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. (Ibid.) 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.

2 Evidence Code 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."
                                              4
              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 Ortiz, supra, 38 Cal.App.4th at p. 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.)




                                              5
                   Sentence Imposed on Count 2 Should Not be 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.


                                             6
                                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.




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