Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1240604 Timothy W. Salter, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Kane, J., and Poochigian, J.
A jury convicted appellant, Alejandro Molina, Jr., of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)); five counts of false imprisonment (§ 236); and single counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and possession of a controlled substance (Health & Saf. Code, § 11364, subd. (a)). The jury also found true enhancement allegations that appellant personally used a firearm in committing each of the robberies (§ 12022.53, subd. (b)). In a separate proceeding, the court found true enhancement allegations that appellant had suffered a prior conviction of a serious felony within the meaning of section 667, subdivision (a), and had served a prison term for a prior felony conviction within the meaning of section 667.5, subdivision (b), and an allegation that he had suffered a “strike.” The court imposed a prison term of 38 years.
Except as otherwise indicated, all statutory references are to the Penal Code.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On appeal, appellant contends the flight instruction the court gave (CALCRIM No. 372) violated his constitutional rights to trial by jury and due process of law, and was not supported by substantial evidence. We will affirm.
FACTS
Prosecution Case
On January 22, 2008 (January 22), appellant and his girlfriend, Zulema Tobar, parked their car in the parking lot of an apartment complex next to the Red Lobster restaurant (the restaurant) in Modesto, walked to the restaurant, and entered. Each was wearing part of a torn t-shirt as a bandanna, covering the face below the eyes, and appellant was carrying a shotgun. Once inside the restaurant, appellant ordered everybody to get down on the floor. Several restaurant patrons and employees were present; they complied.
An employee, Shiloh Kimberling, approached and saw that people were on the ground in the bar area in the front of the restaurant. Then she saw appellant, holding a shotgun. Appellant made it clear he wanted money, so Kimberling took money out of her apron and placed it on the bar. Appellant picked it up.
Another employee, who was in the kitchen and had just been told the restaurant was being robbed, came out of the kitchen and walked to the front of the restaurant, where appellant pointed the shotgun at him and ordered him to open the cash register. The employee complied, and appellant told Tobar to get the cash out of the register. Tobar took money from the cash register drawer and put it in her pockets, at which point she and appellant ran out of the restaurant and ran to the car. They got in and appellant drove off.
At approximately 7:15 p.m. on January 22, City of Modesto Police Officer Sean Martin was sitting in an unmarked police vehicle, parked approximately one mile from the restaurant, when he received a radio dispatch report of a robbery at the restaurant. He immediately drove to the area of the restaurant, where he saw a white car, its lights on, parked at the apartment complex next to the restaurant. Officer Martin found this suspicious because the car was parked in an area where he would have expected robbers fleeing from the restaurant to go. Shortly thereafter, he saw the car pull out. The officer followed in his vehicle, and as he drove, he made a call requesting a marked police vehicle for back-up.
Initially, the white car was traveling at a reasonable rate of speed, but eventually the car entered a Wal-Mart parking lot, where it increased its speed to approximately 45 miles per hour, at which point the officer turned on his lights and siren. The white car then made a turn, went through a stop-sign-controlled intersection without stopping, began weaving in and out of traffic, and made two more turns. The officer continued his pursuit as the white car continued to weave through traffic, until it drove into a parking lot, after which it drove into a cul-de-sac. At that point, Officer Martin determined the pursuit was risking public safety, and he decided to ram the car.
As the car emerged from a cul-de-sac, Officer Martin rammed the car causing it to fish-tail. The car lunged forward, as if the driver was trying to drive away, but was then rammed by another police vehicle, at which point it came to a stop, and police officers surrounded it. At that point, the car was disabled; and appellant and Tobar surrendered.
Defense Case
Appellant testified to the following: On January 22, at Tobar’s request, he gave Tobar a ride to an apartment complex. Tobar went into the complex, for the purpose of buying drugs, and appellant waited in the car. Approximately one half-hour later, Tobar returned to the car; she had a gun and she was in a hurry to leave. Appellant, surmising Tobar had robbed her drug dealer, drove off. As he drove, he saw a white truck behind him; he thought it was the drug dealer giving chase. Appellant accelerated, and at some point he saw police car lights behind him. Eventually a police car crashed into his car.
An expert in eyewitness identification, in response to a hypothetical question, gave testimony indicating that given the circumstances of the robbery of the restaurant, it was very unlikely that persons present during the robbery could accurately identify the perpetrators.
DISCUSSION
The trial court instructed the jury with CALCRIM No. 372 as follows: “If the defendant fled immediately after the crime was committed, that conduct may show he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
The People argue that appellant has forfeited his challenge to CALCRIM No. 372 because appellant did not object in the trial court to the instruction. We disagree. (§ 1259 [“The appellate court may... review any instruction given, ... even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby”]; People v. Smithey (1999) 20 Cal.4th 936, 982, fn. 12 [challenge to flight instruction affects substantial rights of defendant and is therefore cognizable on appeal in the absence of objection to the instruction in the trial court].) Accordingly, we turn to the merits of appellant’s arguments.
Constitutionality of CALCRIM No. 372
Appellant contends CALCRIM No. 372 contains language that presumes a crime has been committed, thereby undermining the presumption of innocence, relieving the prosecution of proving beyond a reasonable doubt that appellant committed the charged offenses and depriving appellant of a jury verdict, in violation of appellant’s rights under the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, he argues: “The conditional term ‘if’ applies only to the fact of flight, and the permissive term ‘may’ applies only to the inference to be drawn from the fact. These terms do not apply to the glaring assertion that ‘the crime was committed.’ Instead, that clause stands unqualified.”
“In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Nor do we limit our consideration to “only parts of an instruction....” (People v. Smith (2008) 168 Cal.App.4th 7, 13.) “When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. [Citations.] The meaning of instructions is no longer determined under a strict test of whether a ‘reasonable juror’ could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. [Citations.]” (Dieguez, at p. 276.) “Further, in examining the entire charge we assume that jurors are ‘“‘“intelligent persons and capable of understanding and correlating all jury instructions which are given.”’”’” (Smith, at p. 13.)
Appellant’s argument isolates and takes out of context the words “the crime was committed” in the first sentence of the instruction, and interprets them as a directive to the jury from the trial court that the charged offenses were, in fact, committed. His argument, however, contravenes the principles summarized above. In addition to CALCRIM No. 372, the court’s instructions to the jury included the following: “You must decide what the facts are in this case”; “A defendant in a criminal case is presumed to be innocent”; “This presumption requires that the People prove a defendant guilty beyond a reasonable doubt”; “Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt”; “Pay careful attention to all of these instructions and consider them together”; and “Do not take anything I said or did during the trial as an indication of... what your verdict should be.” In addition, CALCRIM No. 372 itself told the jury, in its last sentence, that evidence that appellant fled could not, in and of itself, establish guilt. When we consider the entire charge to the jury in light of the presumption that a jury will understand and correlate all the instructions, we conclude it is not reasonably likely that the jury would interpret the challenged instruction as dictating that “the crime was committed.”
We find instructive People v. Paysinger (2009) 174 Cal.App.4th 26 (Paysinger). In that case, also a robbery prosecution, the trial court gave CALCRIM No. 372 and several of the instructions given in the instant case, quoted above. The appellate court rejected the same constitutional challenge to CALCRIM No. 372 that appellant raises here, based on its “examin[ation] [of] the jury instructions as a whole, in light of the trial record.” (Id. at p. 30.)
The court in Paysinger stated further that “the trial record demonstrates that there was no real question about whether a crime was committed, ” and that the “only real question in defendant’s case was whether defendant was a participant in the taking.” (Paysinger, supra, 174 Cal.App.4th at p. 31.) The court concluded that “[u]nder these circumstances, ... it is not reasonably likely the jury misunderstood the phrase ‘the crime was committed’ in CALCRIM No. 372 in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt.” (Ibid.) The same reasoning applies here where, as in Paysinger, it is beyond serious dispute that the robberies occurred and the only real question is whether appellant was one of the robbers.
In addition, “viewing [CALCRIM No. 372] in isolation, ” the court in Paysinger reasoned: “[T]he word ‘if’ in the operative clause―‘If the defendant fled or tried to flee immediately after the crime was committed’―does not logically modify only the phrase ‘the defendant fled or tried to flee, ’ as defendant contends. Rather, ‘if’ modifies the entire phrase, including the words ‘after the crime was committed.’” (Paysinger, supra, 174 Cal.App.4th at p. 30, italics added.) “Thus, ” the court concluded, “it is highly unlikely a reasonable juror would have understood the instruction as dictating that ‘the crime was committed.’” (Ibid.)
On this final point, appellant argues, Paysinger was wrongly decided because “the word ‘if’ does not ‘logically’ modify the phrase ‘after the crime was committed.’” He also finds inadequate the Paysinger court’s explanation of its conclusion that the challenged instruction passes constitutional muster considered in light of the other instructions given. However, we need not determine whether the Paysinger court is wrong in its analysis of CALCRIM No. 372 when considered in isolation. As demonstrated above, we must consider the jury instructions as a whole. Further, we reject appellant’s contention that Paysinger was wrongly decided on that point.
Appellant next argues that CALCRIM No. 372 “varies significantly” in three respects from the language of section 1127c, and that these variations “show[] CALCRIM No. 372 is unsound.”
Section 1127c provides: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given.”
First, appellant points out that CALCRIM No. 372 tells the jury that flight may show awareness of guilt before telling the jury that flight alone is not sufficient to prove guilt, while section 1127c communicates those ideas in the opposite order. The Paysinger court, responding to this same point, stated: “To the extent defendant suggests this difference makes the CALCRIM instruction constitutionally deficient because the first sentence of the instruction ‘strongly suggests... that evidence of flight is in fact sufficient to show guilt, ’ we are not persuaded. The first sentence of CALCRIM No. 372 suggests no such thing, and in any event the final sentence of the instruction positively refutes any such suggestion. In reviewing an instruction for constitutionality, we do not view it in isolation from the other instructions the court gave and we certainly do not view one part of an instruction in isolation from another part. Viewed as a whole and in light of the other instructions, CALCRIM No. 372 is not unconstitutional.” (Paysinger, supra, 174 Cal.App.4th at p. 31.) We agree with Paysinger on this point.
Next, appellant argues that the instruction in section 1127c tells the jury it may “‘consider’” evidence of flight but “in no way tells the jury how it should interpret flight, if proved, ” whereas CALCRIM No. 372 “goes far beyond telling a jury it may consider flight” because it states that flight “‘may show that [the defendant] was aware of his guilt.’” The defendant in Paysinger made this identical claim, and again, we agree with the Paysinger court’s response: “It has long been accepted that if flight is significant at all, it is significant because it may reflect consciousness of guilt, which in turn tends to support a finding of guilt. [Citation.] That CALCRIM No. 372 tells the jury this does not in any way make the instruction unconstitutional.” (Paysinger, supra, 174 Cal.App.4th at pp. 31-32.)
Finally, appellant points out that “section 1127c addresses flight ‘after the commission of a crime, ’” whereas “CALCRIM No. 372 addresses flight ‘after the crime was committed, ’” and thereby, according to appellant, “unequivocally tells the jury ‘the’ crime was indeed committed.” By this argument, however, appellant simply repeats his contention that CALCRIM No. 372 unconstitutionally presumes the crime was committed. We have already rejected this argument. Accordingly, we do not address it further.
Sufficiency of the Evidence Supporting CALCRIM No. 372
Appellant also contends the court erred in giving CALCRIM No. 372 because, he asserts, there was “no evidence appellant ‘fled’ or tired to ‘flee’ to avoid detection of the charged offenses.” We disagree.
“‘In general, a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.”’ [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observed or arrested.’ [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
Here, the evidence showed that after Officer Martin turned on his lights and siren, after which appellant ran a stop sign, weaved in and out of traffic and, even after Officer Martin’s vehicle rammed appellant’s car, appeared to try to drive away, giving up the attempt only when his car was rendered inoperative. These circumstances amply supported the inference that appellant’s act of driving away from the area of the robbery was motivated by the desire to avoid being apprehended by police. The court did not err in instructing the jury with CALCRIM No. 372.
DISPOSITION
The judgment is affirmed.