People v. Garcia CA2/8

Filed 2/26/14 P. v. Garcia CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B242172

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA 120790) v.

JORGE GARCIA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Dewey Lawes Falcone, Judge. Affirmed as modified.

Jonathan P. Milberg, 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, Assistant Attorney General, Susan Sullivan Pithey and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

******

In this appeal from a conviction for taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), we reject defendant’s contention that the trial court should have instructed jurors on the affirmative defense of entrapment. We modify the judgment to correct minor sentencing errors, and otherwise affirm. FACTS AND PROCEDURE The Los Angeles County Sherriff’s Department has a program entitled the Taskforce for Regional Autotheft Prevention. The program includes leaving “bait” cars in locations with spiking auto thefts. The bait cars appear abandoned after the apparent owner leaves the car unattended with the engine running and either the driverside door or passengerside door open. Deputy sheriffs then observe whether anyone drives away in the bait car. On July 18, 2011, two plainclothes deputy sheriffs engaged in a role play. They honked, yelled, and uttered profanities in order to attract attention. After the role play, one deputy entered the other’s car, leaving her car -- the bait car -- behind. The bait car’s engine was running, and the passenger door was open. Several people, including defendant, were walking in the area of the role play. Defendant approached the bait car. He closed the passenger door with his shirt over his hand and opened the driverside door with his shirt over his hand. He used his shirt to cover the gear shift and the steering wheel as he drove away. Defendant was not carrying burglary tools when he drove away in the bait car. In addition to the deputy sheriffs who participated in the role play and observed the bait car after the role play, a television show called Bait Car also had persons at the scene. The deputy sheriffs, not the producers of the television show, controlled the scene. No one from the television show had contact with defendant prior to his arrest. Los Angeles County was compensated for produced episodes of the show Bait Car. No footage from this case was used on television. Defendant was charged and convicted of one count of unlawful driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a). A prior robbery was alleged as a serious or violent felony conviction and as a prior prison term warranting a