People v. Ortega CA2/6

Filed 2/26/13 P. v. Ortega CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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-