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People v. Byrd11/21/2001
As modified December 20, 2001. Appellant's petition for rehearing denied. No change in judgment.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TIMOTHY LEE BYRD, DEFENDANT AND APPELLANT.
(Super.Ct.No. 99F05475)
The opinion of the court was delivered by: Hull, J.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury convicted defendant of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a) -- count one) and falsely identifying himself to an officer, a misdemeanor (Pen. Code, § 148.9, subd. (a) -- count three; further undesignated statutory references are to the Penal Code). The jury deadlocked on count two, which charged a violation of section 69 (resisting an officer by force and violence), and the trial court declared a mistrial as to that charge. In bifurcated proceedings, the court found four strike priors (§§ 667, subds. (b)-(i), 1170.12) to be true.
The court sentenced defendant to state prison for an indeterminate term of 25 years to life on count one and a concurrent six-month county jail commitment on count three.
Defendant appeals. He contends: (1) The trial court failed to instruct sua sponte on mistake of fact (CALJIC No. 4.35) or, in the alternative, defense counsel rendered ineffective assistance in failing to request it; (2) The trial court erroneously instructed on the issue of scope of consent as it relates to driving or taking a vehicle; (3) The trial court erroneously instructed in the language of CALJIC No. 17.41.1; punishment. We affirm the judgment.
Facts
Lorena Coen (Coen) began drinking at home at noon on June 26, 1999. Later that afternoon she drove her 1984 Ford Mustang to the Valley Station bar and then five blocks away to Lewey G's bar in Rio Linda, where she continued her drinking. She became intoxicated.
After drinking at Lewey G's, she started to drive home, but she realized she was too drunk to drive. She parked her car across the street from a house belonging to acquaintances, Gina and Dennis. She heard her name being called by Eugean Allen, a man she had known for years. Allen invited her to the party at Gina and Dennis's house and she accepted. Coen continued to drink there.
Coen drove the half block to Lewey G's a couple of times during the party. At trial, she remembered having people, perhaps including the defendant, in her car. She recalled driving to the American Legion Hall behind Lewey G's. At some point during the day while driving her car, Coen saw a highway patrol car, which she thought defendant might have brought to her attention. Realizing she should not be driving, she parked in front of the Ace Hardware store next door to Lewey G's.
After seeing the highway patrol officer, Coen went into Lewey G's and exchanged shirts with a male customer at the bar and put her hair in a ponytail, so that she would not be recognized by the officer. Coen forgot she was not wearing a bra when she changed her shirt and exposed her upper torso. The officer came into Lewey G's, looked around and left. Coen then called her boyfriend, Mike, to give her a ride home.
Coen went out to lock her car, when Mike arrived, but she could not find her keys. She locked the car manually, intending to return the next day with a spare set of keys.
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