People v. Avina CA5

INTRODUCTION

Defendant Rafael Avina, Jr., was convicted of evading a peace officer, unlawful taking of a vehicle, and receiving stolen property. On appeal, he contends the trial court committed prejudicial error by failing to instruct the jury on mistake of fact pursuant to CALCRIM No. 3406 because defendant believed he had consent to drive the car and did not know it was stolen. Further, he contends trial counsel was ineffective for failing to request the instruction and for failing to argue a mistake of fact. We are not persuaded and will affirm the judgment.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of December 6, 2009, David Kernazitskas and his family left their secured Ceres home for an overnight trip. When Kernazitskas returned on the evening of December 7, he noted several oddities: a garage light left on, damaged doors, lawn equipment out of place, and debris on the garage floor. Also missing from the garage was a 2002 Volvo sedan. Kernazitskas called police. Once the home was cleared, Kernazitskas realized several items were missing from inside the home, including the following: a .22-caliber rifle, a pellet gun, a hunting knife, a big screen…