P. v. Coleman

Filed 2/22/07  P. v. Coleman CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Brian C. Yep, Judge.  Affirmed in part and reversed in part with directions.

            Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Marc E. Turchin and Susan Lee Frierson, Deputy Attorneys General, for Plaintiff and Respondent.

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            Steven Coleman appeals from the judgment entered following a bifurcated jury trial in which he was convicted of two counts of assault upon a peace officer (Pen. Code, §  245, subd.  (c)), unlawfully taking or driving a vehicle (Veh. Code, §  10851, subd.  (a)), and evading an officer while driving recklessly (Veh. Code, §  2800.2, subd.  (a)), with further findings that he had previously been convicted of violating Vehicle Code section 10851 within the meaning of Penal Code section 666.5 and had sustained 13 prior convictions within the meaning of Penal Code section 667.5, subdivision  (b).  Defendant contends that he was prejudiced by the trial court's response to a jury question, that the trial court had a sua sponte duty to instruct on mistake of fact and claim of right, and that he was improperly sentenced for unlawfully taking or driving a vehicle.  The Attorney General seeks a sentencing remand with respect to the disposition of findings made under section 667.5, subdivision  (b) and the trial court's failure to impose required security fees.  We reverse in part and remand for resentencing, and affirm the judgment in all other respects.

BACKGROUND

            On December  10, 2004, Oscar Aguayo parked his 2000 white Chevrolet pickup at his place of work in Palmdale, hung his keys on a peg, and drove away in a company vehicle.  When he returned at the end of the day, he discovered that his truck had been stolen.  In the early morning hours of January  17, 2005, officers in a marked patrol car on Imperial Highway near Central Avenue in Los Angeles saw what was later established to be Aguayo's pickup truck being driven with one of its taillights out.  Defendant was the truck's sole occupant.  The officers activated the lights of their patrol car to effect a traffic stop.  In response, defendant fled.  A high-speed chase ensued and other officers responded to calls for assistance.  At several points during the chase, officers momentarily lost sight of the truck.  The chase ended when the truck collided with a patrol car from which one officer had just emerged and another was still inside.  Following the impact, defendant got out of the truck and attempted to flee but was immediately apprehended.

            In defense, defendant testified he thought the truck belonged to â€