P. v. Diaz

Filed 9/6/06 P. v. Diaz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge.

Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Julie A. Hokans and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a jury trial, Jerry Alfred Diaz (appellant) was convicted of evading an officer (Veh. Code, § 2800.2, subd. (a)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)). In a bifurcated proceeding, the trial court found a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))^[1] and two prior prison term allegations (§ 667.5, subd. (b)) true. The trial court sentenced appellant to eight years in state prison, consisting of: the upper term of three years, doubled, for evading an officer; a concurrent six-year term for possession of a controlled substance; and 2 one-year terms for the prior prison terms served. The court also sentenced appellant to time served for the driving under the influence violation.

Appellant contends the trial court erred when it failed to inquire into possible juror bias and misconduct. He also contends that there was insufficient evidence to support his conviction for evading an officer, that the trial court failed to give a unanimity instruction, that his sentence violated section 654, and that the trial court wrongfully imposed a fine under section 290.3. We agree only with appellant's last claim, and in all other respects affirm.

FACTS

At approximately 2:00 a.m. on May 19, 2004, California Highway Patrol (CHP) Officers Kenneth Wood and Robert Lawson, in a marked patrol car, saw a blue Chevrolet sedan traveling west on Dudley Avenue at over 75 miles per hour. The officers pursued the vehicle, which turned north onto Lafayette. The vehicle was traveling in a 55-mile-per-hour zone. The officers activated the patrol car's lights and siren.

The vehicle made a right turn onto Dennett Avenue and continued at speeds between 65 and 70 miles per hour. About a minute later, near the intersection of Binkston Avenue and Dennett, the vehicle came to a stop.

Officers Wood and Lawson exited their patrol car and approached the vehicle, which had two occupants. The driver looked back towards the officers through the rear view mirror and â€