People v. Rivera CA3

Filed 9/29/15 P. v. Rivera CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Alpine) ----

THE PEOPLE, C075542

Plaintiff and Respondent, (Super. Ct. No. SF124384A)

v.

EMILIANO TINO RIVERA,

Defendant and Appellant.

A jury found defendant Emiliano Tino Rivera guilty of one count of evading a police officer while driving a car (Veh. Code, § 2800.2) and three counts of assault with a deadly weapon on a police officer (Pen. Code, § 245, subd. (c)); unless otherwise stated, statutory references that follow are to the Penal Code). The jury was unable to reach a verdict on three other charges of assaulting a police officer with a deadly weapon (§ 245, subd. (c)) and those charges were dismissed. The trial court found defendant previously had served a prison term and sentenced defendant to an aggregate term of seven years in state prison.

1

On appeal, defendant contends trial counsel was ineffective in failing to request an instruction on “accident” (CALCRIM No. 3404) and that he was prejudiced by counsel’s failure. We affirm the judgment.

FACTS AND PROCEEDINGS

On May 25, 2013, Lodi Police Officer Jose Nuno and his partner Officer Nick Rafiq were on patrol in Lodi. Around 5:30 p.m. Nuno attempted to stop a white Chevy truck with an expired registration. When Nuno turned on the patrol car’s emergency lights, the driver, later identified as defendant, stopped the truck at the curb. But as Nuno began to get out of the patrol car, defendant drove off. Nuno went back to the patrol car, turned on the lights and siren, and chased the truck while calling for police back-up. During the pursuit, defendant drove in excess of posted speed limits, failed to stop at nine posted stop signs, failed to stop at several traffic lights, and accelerated to 80 to 90 miles per hour. Defendant finally came to a stop near a park, where a large family gathering was taking place. Nuno stopped his patrol car behind defendant. Nuno and Rafiq then saw the truck’s reverse lights come on, the rear tires accelerate, and the truck move backward toward the patrol car. The truck struck the patrol car and the rear of the truck became stuck on the hood of the patrol car, pushing the patrol car backward, leaving skid marks. Defendant then put the truck in “drive,” pulling the patrol car forward before the truck separated from the patrol car and sped away. The patrol car was damaged but neither Nuno nor Rafiq were injured. As defendant sped away, he nearly hit two more patrol cars. One patrol car veered off the road to avoid being hit, the other veered up onto the curb causing the car’s tire to blow out. Three more patrol cars arrived and had to swerve onto or toward the sidewalk to avoid colliding with defendant’s truck.