People v. Avina CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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.