The People v. Diaz CA2/6

Filed 8/26/13 P. v. Diaz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B245667 (Super. Ct. No. 2012026372) Plaintiff and Respondent, (Ventura County)

v.

OSCAR DIAZ,

Defendant and Appellant.

Oscar Diaz was convicted by jury of evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)) and hit-and-run driving (Veh. Code, § 20002, subd. (a).) In a bifurcated proceeding, appellant admitted a prior strike conviction (Pen. Code, §§ 667, subds. (c)(1) & (e)(1); 1170.12, subds. (a)(1) & (c)(1)) and admitted serving two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to eight years state prison. Appellant appeals on the ground that the trial court erred in not sua sponte instructing on the defense of necessity. We affirm. Facts and Procedural History On July 19, 2012, at 3:00 in the afternoon, Oxnard Police Officer Matthew Ross was on patrol and saw appellant driving a blue Honda on Ventura Road near Doris Avenue with an inoperable signal light. Officer Ross activated his emergency lights to make a traffic top. Appellant appeared to be angry and led Officer Ross on a two to three mile car chase.

Appellant turned down a residential street, accelerated rapidly, and drove 25 to 60 miles per hour in a residential area that had a posted speed limit of 25 miles per hour. Appellant ran a stop sign, turned right onto Ventura Road, and drove past gas stations, fast food restaurants, and pedestrians. At the intersection of Ventura Road and Gonzales Road, appellant drove through a gas station and went westbound on Gonzales Road, accelerating up to 50 or 60 miles per hour. Turning left onto Gallatin Place, appellant drove 40 to 50 miles per hour through a residential area as Officer Ross chased him with his siren and emergency lights activated. At the intersection of Ivywood Drive and Ventura Road, appellant ran a red light and hit a Chevy Malibu. Appellant sped off, making unsafe lane changes and forcing vehicles off the road. At the intersection of Ventura Road and Wooley Road, appellant cut off four vehicles and almost hit a large utility truck carrying propane or air tanks. Driving eastbound on Wooley Road, appellant lost control of the Honda and hit a pole as he turned into an alley. Officer Robert Valenzuela assisted Officer Ross in the chase and testified that K-9 Officer Scott Coe joined the pursuit, half-way through the car chase When appellant hit the pole, Officer Ross ordered him out of the Honda. Upon questioning after receiving and waiving his constitutional rights, and Mirandized him (Miranda v. Arizona (1996) 384 U.S. 436 [16 L.Ed.2d 694]) appellant said that he fled because "he did not want to get a ticket." At trial, appellant said that he fled because he saw Officer Coe, not Officer Ross, when he was first signaled to pull over. Appellant claimed that Office Coe harassed him ten months earlier when he stopped appellant for an equipment violation. Appellant feared that Officer Coe would try to harass him again with his police dog. "[F]rom what I heard from my friends, I thought my life was in danger, so I didn't want to stop until I knew there was a safe place to stop at where there was a lot of pedestrians just in case he . . put the dog on me or anything." Appellant said that he tried to drive to a gas station where pedestrians and bystanders could witness the traffic stop.