P. v. Baskin

 

 

 

 

 

Filed 1/28/14  P. v. Baskin
CA2/5

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

 

 

 

California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b).  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION FIVE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   JEREMIAH BASKIN et al.,               Defendants and Appellants.

B244611         (Los Angeles County       Super. Ct. No. NA086624)

 

APPEAL from
judgments of the Superior Court of Los
Angeles County, Jesse I. Rodriguez, Judge. 
Affirmed.

            Sally
Patrone Brajevich, under appointment by the Court
of Appeal, for Defendant and Appellant Jeremiah Baskin.

            Janet
J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant
Traveon Hill.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney
General, Mary Sanchez and Rene Judkiewicz, Deputy Attorneys General, for
Plaintiff and Respondent.

 

 

 

            Appellants
Jeremiah Baskin and Traveon Hill were convicted of attempted second degree
robbery and second degree commercial
burglary.  Appellants were charged
with the murder of accomplice Brandon Lincoln under the href="http://www.sandiegohealthdirectory.com/">provocative act doctrine,
but the jury found them not guilty of that charge.  The jury found true the allegations that the
burglary and attempted robbery were committed for the benefit of a criminal
street gang within the meaning of Penal Code section 186.22, subd. (b)(1).href="#_ftn1" name="_ftnref1" title="">[1]  Appellant Hill admitted that he had suffered
two prior serious felony convictions within the meaning of the Three Strikes
law and section 667, subdivision (a), and that he had served a prior prison
term within the meaning  of section
667.5, subdivision (b).  Appellant Baskin
admitted that he had suffered a prior serious felony conviction within the
meaning of the Three Strikes law and section 667, subdivision (a), and that he
had served a prior prison term within the meaning of section 667.5, subdivision
(b).  The trial court sentenced appellant
Baskin to a total term of 16 years in state prison and appellant Hill to a term
of 30 years to life in state prison.

            Appellants
appeal, contending the trial court:  made numerous improper and prejudicial remarks
during jury voir dire; erred in instructing the jury on consciousness of guilt;
and in denying the joint defense motion to bifurcate the trial on the gang
enhancements.  Appellants further contend
there is insufficient evidence to support the true finding on the gang enhancements.  Appellants also contend the prosecutor
committed misconduct.  Additionally
appellants contend the trial court abused its discretion in denying their
motions to strike their prior convictions for sentencing purposes.  We affirm the judgments of conviction.

 

 

 

 

I. 
Facts

 

1.  Prosecution’s case

 

On August
18, 2010, a young man came into Arturo Rios’s
jewelry store twice to inquire about fixing a watch. Both Rios and his
employee, Maria Gonzales, were suspicious of the young man and Gonzales worried
that something bad might happen.  

Later in the
day, just before 6:00
p.m., the same man, Brandon Lincoln, came
into the store with three other men. 
Rios was sitting at a desk at the end of the store and Gonzales was
cleaning showcases.  Lincoln entered the
store quickly and pulled out an object from his waistband. Appellant Hill
rushed toward Rios.  Hill also pulled out
an object from his waistband.  One of
these objects turned out to be a mallet-style hammer, but the way that the
intruder moved led Rios to believe it was a gun.  A second hammer was recovered from the
jewelry store after the shooting. 
Appellant Baskin and the fourth man did not remove anything from their
waistbands.  

Rios heard loud “pops”
which he later learned was the breaking of his store’s glass showcases.  Rios believed the men were going to shoot him
and Gonzales.  He was frightened.  Gonzales panicked and was concerned for her
safety.  Rios stood up, pulled out his
gun from his waist and fired it as appellant Hill was heading toward him.  He fired 15 bullets, hitting appellants and
Lincoln.  Lincoln and appellant Hill
crawled out of the store and the other two men fled.  Rios was still scared.  He reloaded his gun, fearing the men would
return to shoot him. 

Gonzales called
911.  Police found two hammers on the
floor of the jewelry store.  Gloves were
also found near the crime scene.  Apart
from Rios’ gun, no other firearms were found at the crime scene.

The incident was
recorded by a security camera on the premises.  The tape was played for the jury at trial.

Appellant
Baskin, who had been shot three times and was bleeding heavily, went to Lincoln’s home,
which Lincoln shared with his aunt, Adrianne Hicks.  Hicks and her neighbor, Delila Duran, took
appellant Baskin to the hospital.    

Police found Lincoln face down
on the sidewalk in front of the store. 
He had been shot four times and was dead.  

Appellant Hill
was found across the street from the jewelry store, lying face down and
bleeding.  He was on the phone telling
someone he had been shot in the store.  Appellant
Hill was severely injured by the gunshots but survived.

Swabs were taken
of blood from inside the jewelry store and the sidewalk near Lincoln’s home and
were tested. The DNA on the swab from the store matched appellant Hill’s DNA,
and the DNA on the swab from the sidewalk matched appellant Baskin’s DNA.  

            Three
witnesses testified about appellants’ gang affiliation.  Detective Traci Gonzales of the Los Angeles
County Sheriff’s Department testified that in 2005, when she worked as a
detective assigned to gang-related cases, she had contact with appellants. Both
appellants had admitted to Detective Gonzales that they were members of the
Santana Blocc gang.  

Lincoln’s neighbor
Duran had known him since childhood.  She
knew that he was a member of the Santana Blocc gang.  He was known as “Blocc Boy” and “Savage.”  Lincoln’s home was a “hangout” for the Santana Blocc gang. 

Detective
Richard Sanchez of the Los Angeles County Sheriff’s Department testified as a
gang expert that the Santana Blocc Crips is a violent criminal gang in Compton.  The common sign or symbol for the gang is “SBC”
or “SBCC.”  The gang uses “Blocc,”
instead of “Block” for part of its name because the last two letters stand for “Compton
Crip.”  Sometimes the “B” in the word “Blocc”
is crossed out because the letter “B” stands for the rival Bloods gang.  

Detective
Sanchez testified that the primary activities of the Santana Blocc gang included
petty thefts, narcotics sales, assaults with deadly weapons, burglaries,
robberies, attempted murders and murders.  The types of robberies committed by gang
members include robberies of jewelry stores.  

Detective
Sanchez had contact with both appellants.  He heard them admit to being Santana Blocc
gang members, with appellant Hill admitting to be a member in 2005, and
appellant Baskin admitting to be a member in 2002.  Detective Sanchez observed and photographed
appellant Hill’s tattoos.  On his hands
were tattooed the words “Blocc” and “Boy,” signifying that he was claiming the
Santana Blocc gang.  Right above his
wrist and forearm was a tattoo of a stack of $100 bills, which is a common gang
tattoo called a money roll, signifying that the gang member is making a lot of
money from illegal activities.  The fingers
on both his hands were tattooed with the numbers 5150, signifying that “they
are crazy.”  One tricep was tattooed with
the letter “S” for “Santana,” and the other tricep was tattooed with the letter
“B” for “Blocc.”  The front part of each
shoulder was tattooed in the shape of a hand making a letter “C” gesture for “Compton
Crip.”  Detective Sanchez opined that
appellant Hill is an active Santana Blocc gang member.  He also opined that appellant Baskin was a
member of the Santana Blocc gang.   

Based on a
hypothetical scenario mirroring the evidence in the case, Detective Sanchez
opined that the crimes were gang-related, committed at the direction of, in
association with and for the benefit of Santana Blocc Compton Crip, a gang he
described as “tight knit” with “a very tight alliance.”  Detective Sanchez unequivocally testified, “there
is no doubt in my mind it was [at] the direction of Santana Blocc Compton Crip.
 [¶]  They do it to gain profits. . . .  They make the money, and, then, they turn that
money into narcotics, which is easier to sell than the actual jewelry.”  

 

2.  Defense case

 

Appellant Baskin
offered two witnesses in his defense.  Detective
Freddy Arroyo of the Los Angeles Police Department, testified that on August 18, 2010, he interviewed Maria Gonzales in Spanish, a language in which he
was fluent.  Gonzales told Detective
Arroyo that she was present when the Rios Jewelry Store shooting occurred, and
that she saw one of the young men earlier in the afternoon when he had come
into the store.  She had been at the
front door of the store because she had been suspicious of the young man.  Detective Arroyo asked Gonzales at least
twice whether she saw the young men with any weapons, and each time she said
she did not see any weapons.  

Detective Matthew
Maffei, also of the Los Angeles Police Department, testified that on August 18,
2010, he was asked to help in an investigation of a shooting at the Rios
Jewelry store.  At the store, Rios told
Detective Maffei that he shot the suspects who came into his jewelry store
because he was afraid they would shoot him. 
Detective Maffei took Rios to the park across the street from the
jewelry store.  At the park, Rios
positively identified appellant Hill.   

Appellant Hill
did not offer any evidence.  

 

II.  Discussion

 

            1.
 Court’s Comments during Voir Dire

 

Appellants
contend the trial court made numerous improper and prejudicial comments to
prospective jurors during voir dire.  We
consider each set of remarks in turn.

 

a.  Comments about terrorism and 9/11

 

Appellants
contend the trial court made comments about terrorism and 9/11 which were in no
way relevant to this matter and which were highly prejudicial. 

 

 

 

 

i.  Proceedings below

 

During voir dire, the trial judge told the prospective jurors that
he liked to use analogies.  The trial
court said, “This analogy has nothing to do with this case. It is a
hypothetical case.  Something that
happened some years back.”  The court
then said, “Hypothetically speaking, hopefully it never happens again, but we
have a terrorist attack on our nation and kills one or 2,300 people.  Last time I checked, I think about 98 to 99.7
of the 365 or 80 million people that we have would love be to [sic] the
arresting officer, the jury, the judge and the executioner as to that terrorist
that happened on our shores.  Nothing to
do with this case.  But the issue becomes
most of those same people would abhor—like I said, would be all of them at once
in one coin, arresting officer, executioner, judge, jury, all of them at once,
and then they pull the trigger against that terrorist when they are caught and
tried.  But if the criteria is how much
you despise that or you disagree with that terrorist—if the criteria was that
and being a fair and impartial juror in that hypothetical situation, then that
terrorist could never be tried in this country because, last time we checked,
no one likes those people.  The question
is irrespective of . . . whether you like something or not,
the question is are you able to put that aside and say, yeah, I don’t like
this; I don’t like that.  The question is[,]
are you able to be fair and impartial in this case.”  

The court added:  “That’s a further analogy that I gave you
about Donald Trump giving me all that money.  The bottom line is irrespective of my likes or
dislikes, can I be fair pursuant to my oath, pursuant to my morals and my ethics.
 Simple as that.”   

 

ii.  The court’s comments did not result in
prejudice to appellants

 

As the trial
court stated, a terrorist attack “has nothing to do with this case.”  The court used the terrorism reference while
explaining an easily understood concept to potential jurors:  It is a common reaction for a juror to not “like”
a criminal defendant, but he or she must be able to set aside such a feeling in
order to give the defendant a fair trial. 
There was thus no reason to refer to a terrorist attack or to tell the
prospective jurors that in the court’s opinion virtually everyone in America
would want to be the executioner of the terrorists. 

The mention of
9/11 “continue[s] to invoke fear, dread and anger in the listener.”  (People
v. Zurinaga (2007) 148 Cal.App.4th 1248, 1259-1260.)  Given the continued emotional power of 9/11,
we question whether there is ever a need in an ordinary criminal trial to refer
to 9/11, directly or indirectly.  There
was clearly no need to do so in this case.

We find the
error harmless under either the federal or state standard of review.  (Chapman
v. California (1967) 386 U.S. 18, 22; People
v. Watson (1956) 46 Cal.2d 818, 836.) 
The trial court’s reference to terrorism was brief and not graphic.
Jurors acquitted appellants on the most serious charge of murder, showing that
they were not prejudiced by the court’s comments and were able to fairly
consider each charge on its merits.  The
evidence against appellants on the burglary and robbery charges was
overwhelming.  The robbery was videotaped
and the recording shown to the jury. 
Appellant Hill was found across the street from the store and was
overheard stating that he had been shot in the store.  Lincoln’s aunt and a neighbor testified that appellant Baskin came to Lincoln’s house on
the evening of the robbery seeking assistance for gunshot wounds he had
suffered.  

 

b.  Comments About Reasonable Doubt and the
Burden of Proof.

 

Appellants
contend the trial court inaccurately paraphrased the definitions for reasonable
doubt and the burden of proof and the resulting error violated their due
process rights and require reversal per se.href="#_ftn2" name="_ftnref2" title="">[2]   

Respondent
contends appellants forfeited their claims by failing to object to the trial
court’s remarks.  (See >People v. Boyette (2002) 29 Cal.4th 381,
459 [failure to object to trial court’s disparaging remarks about expert
witness waived claim of misconduct].) Appellants contend the trial court’s remarks
were the equivalent of a jury instruction. 
They point out that instructional errors which affect a defendant’s
substantial rights may be raised on appeal even in the absence of an objection
in the trial court.  (>People v. Brown (2003) 31 Cal.4th 518, 539,
fn. 7.)

We view the trial
court’s comments as closer to being instructions on the law than the sort of
general comment considered by the Court in People
v. Boyette, supra, 29 Cal. 4th at page 459.  The trial
court in fact read the prospective jurors the standard CALCRIM instruction on
reasonable doubt.  The rest of the court’s
comments were related to that instruction. 
Accordingly, we will review appellant’s claim.

 

i.  Proceedings below

 

During voir
dire, the court read the definition of the legal term “reasonable doubt.”href="#_ftn3" name="_ftnref3" title="">[3]  Afterward, the court told the prospective
jurors, “Do not ask me to explain it to you because I will get in trouble.  In deciding what is a reasonable doubt, that
is between you and you and between you and the other jurors if you are
selected; no more, no less.”  

The trial court
then explained that appellants are presumed innocent, even if they never say a
word at trial, that the prosecution has the burden to prove the case to the
jury beyond a reasonable doubt, and that “[t]he defense doesn’t have to prove
anything to you.”  The court further
explained that appellants “don’t have to call any witnesses.  They don’t have to ask a question.  They don’t have to stand up, nothing,
theoretically speaking.  And the burden
remains with the prosecution, period.  Like
I always say, it is not a high burden. It is not a low burden. It is not . . .
a medium burden.  It is a burden that was
established ad infinitum, sort of forever, period.  We as judges have to accept it whether we like
it or not.”  

The court
reiterated the prosecution’s burden of proof: 
“The People’s burden is beyond a reasonable doubt. . . . It is not to
prove the case to you perfect or a hundred percent.  It doesn’t exist.  There’s no perfect case.  There’s no case that anyone can prove a
hundred percent.”

“We see on
television.  We read the papers all—there
are—I think last time I counted with all the different channels, there are like
300, 400 channels nowadays.  Maybe a
great percentage of them are crime programs, lawyer programs, police programs.  So technological—you know, looking at all
this, and everything is perfect down to the 10th trillionths of a trillionth of
your hair.  That’s not real life at least
as to the People’s burden. Okay. Keep that in mind.”

“Proof beyond a
reasonable doubt.  You don’t go in there
looking for a doubt because it is proof beyond a reasonable doubt.  If you have a doubt as to the guilt or
innocence here, then you have to decide is it reasonable or not because you
could have doubts, but they must be reasonable.  So you don’t go in there already saying there
is a doubt.  Only if in your mind after
you decide what the facts are, discuss the case, the facts with the other
jurors, discuss the evidence, the exhibits, the law, and you have to decide. If
I have a doubt, is it reasonable or not. If you don’t have a doubt, that’s it.”
  

The trial court
explained that jurors are not to speculate, and are to listen to the
evidence.  The court told the prospective
jurors that the lawyers “prepared this case.  They know the case better than you and I will
know this case ever.  They know whether
they have an obligation.  They have a
burden.  They know where they’re going in
this case.  They know what they need to
do.”  

Toward the end
of voir dire, when the trial court asked the prospective jurors collective
questions, it explained the prosecution’s burden of proof and the presumption
of innocence:  “In terms of the burden of
proof; the People’s obligation to prove the case and each element beyond a
reasonable doubt against the defendants, the defendants’ right not to
testify—the lawyers don’t have to prove anything to you.  The defendants don’t have to prove their
innocence to you.  They are presumed to
be innocent. . . . This presumption can be overcome by the People through their
witnesses and exhibits.  Of course, that
presumption remains until after you cross that threshold and go into the jury
room to deliberate and determine what the facts are.  You are not to consider penalty or punishment.
 You are not to speculate.  You are not to be investigators.  You are not to be partisans.  You are not to be litigants.  You are to be judges of the facts; no more,
no less.”   

After the jurors
were selected, one of them asked, “You’re going to make sure that we understand
the instructions and the law and everything[?]  I want to do this right.”  The trial court answered, “I am convinced
beyond any doubt whatsoever that all of you will do your job according to the
law and according to your oath.  The
instructions—the law is the law.  I read
the law to you.  [¶]  Remember when I read that reasonable doubt
that I told you don’t ask me what it means because I’m going to get in big
trouble.  You don’t want me to lose my
job.  [¶]  Okay.  Remember we are judges.  We are judges. These are the attorneys,
extremely professional people.  They know
what they are doing. . . .  You don’t have to worry
about anything. . . .”   

 

c.  The trial court did not improperly paraphrase
the law

 

A trial court
errs when it explains or expands upon the concept of reasonable doubt in a
manner which lowers the prosecution’s burden of proof.  (People
v. Johnson (2004) 119 Cal.App.4th 976, 985-986.) 

Appellants
contend the trial court’s comments were the same as those found improper in >People v. Johnson, supra, 119
Cal.App.4th at pages 985-986, and People
v. Johnson (2004) 115 Cal.App.4th 1169, and had the same effect.  Appellants are mistaken.

In one of those
cases, the trial court compared reasonable doubt to decisions jurors made in
daily life, such as going to college, and argued that jurors could not come up
with a decision in life made with “absolutely no doubt,” and could not wait to
be “convinced beyond all possible doubt” before making a decision because “it’s
never happened in your life[.]”  (>People v. Johnson, supra, 119
Cal.App.4th at p. 980.)  In the other
case, the court stated people plan future activities such as vacations because
they “have a belief beyond a reasonable doubt that they will be here tomorrow.”  (People
v. Johnson, supra, 115 Cal.App.4th at p. 1171.)

In both cases,
the Court of Appeal found the comments erroneous because everyday activities do
not require the same deliberative process as required for a jury trial and do
not require an individual to have an abiding conviction of the wisdom of their
conviction.  That was not the case
here.  The court did not use everyday
activities to explain or illustrate the concept of reasonable doubt.

Appellant Hill
further contends the trial court improperly suggested to jurors that the
meaning of beyond a reasonable doubt was up to them.  He claims that while “at some point this is
entirely true, a jury’s determination of reasonable doubt necessarily depends
on how it is defined.”  Appellant
overlooks the fact that the trial court’s remark came immediately after the
court read the jury instruction defining reasonable doubt.  Further, as we discuss throughout this
section of the opinion, the trial court did not misstate the definition of
reasonable doubt.  Thus, appellant’s
claim fails.

Appellant Hill
also contends the trial court erred in informing the prospective jurors that
the People could establish reasonable doubt with a less than “perfect” case, “suggesting
that evidentiary deficiencies were the norm, and not to expect a case to be
prove to an exactitude.”  We do not
agree.  The court’s comments were made in
reference to television shows, and suggest only that trials in real life are
not like trials on television.  The court
pointed out that television shows are “technological—you know, looking at all
this, and everything is perfect down to the 10th trillionths of a trillionth of
your hair.”  The court’s comments were
consistent with the standard jury instruction on reasonable doubt, which states,
“The evidence need not eliminate all possible doubt because everything in life
is open to some possible or imaginary doubt.”

Appellant Hill
additionally contends the court’s comment to jurors that they not begin
deliberations “looking for a doubt” suggests that the jury should not subject
the prosecution’s case to rigorous thinking. 
Appellant is mistaken.  The court
was telling the prospective jurors not to pre-judge the case.  The rest of the court’s statement was:  “So you don’t go in there already saying
there is a doubt.  Only if in your mind
after you decide what the facts are, discuss the case, the facts with the other
jurors, discuss the evidence, the exhibits, the law, and you have to
decide.  If I have a doubt, is it
reasonable or not.  If you don’t have a
doubt, that’s it.”

Appellant Baskin
points to several phrases by the court which he claims were erroneous.  Like appellant Hill, he points to the
comments about a “perfect” case as misstating the reasonable doubt
standard.  As we discuss, >supra, those comments were proper.

Appellant Baskin
also contends the prosecutor compounded the court’s error by also incorrectly
paraphrasing the reasonable doubt instruction when he said:  “What is beyond a reasonable doubt?  It is exactly what the judge instructed.  I can’t say it is 52 percent or 99 percent.  There is no number you can put on it.  As the prosecutor in this case, it is my
burden to prove the case to you if you are selected as jurors to prove the case
to you beyond a reasonable doubt.”  Appellant does not elaborate on his claim.  We see nothing incorrect in the prosecutor’s
statement.  The prosecutor told the
prospective jurors to follow the court’s instruction, adding only that a number
cannot be put on reasonable doubt.  That
is true.

Appellant Baskin
further contends the trial court improperly paraphrased the burden of proof by
using the phrases “it is not a high burden” and “presumption of innocence is
not static.”  The phrases are taken out
of context.  

The court said
in full:  “[I]t is not a high burden.  It is not a low burden. It is not . . . a
medium burden.”  The court was explaining
that the burden of proof standard was a complex concept, not easily explained
by simple adjectives.  That is true.

The court said
in full:  “The presumption of innocence
is not static.  It is not forever because
that presumption can be overcome by the prosecution . . . .”
 This is clearly a correct statement of
law.  A defendant begins a case with the
presumption of innocence, but that presumption can be rebutted by the
prosecution. 

Finally,
appellant Baskin contends the trial court incorrectly suggested the defense had
a burden when the court stated:  “[T]hese
lawyers, as I said, they prepared this case. 
They know the case better than you and I will know this case ever.  They know whether they have an
obligation.  They have a burden.”  The court continued:  “They know where they’re going in this
case.  They know what they need to
do.  They know what they need to
ask.  It is a lot of tactical
considerations in a trial.”

In context, the
court was telling the prospective jurors not to decide the case before they
went into the jury room for deliberations. 
Before making the above remarks, the court told the prospective jurors:  â€œWhen we’re sitting here, as I said, we could
be speculating, and you are sitting there saying I just wish Mr. Bengston would
call this witness.  Because in the
meantime, from now until you cross that threshold there, you’re not to
speculate.  You’re not to form or express
any opinions about the case.”  The court
then reiterated that the prospective jurors should not speculate about why a
person might not have been called as a witness, or a question was not
asked.  The court then made the
above-quoted remark, which explains to jurors why they should not
speculate.  This was a proper statement
of the law.

 

            d.
 Appellants’ right not to testify

 

Appellants
contend that when the court told the prospective jurors “judges penalize defendants
for not testifying,” the court was somehow conveying to the prospective jurors
that this was acceptable behavior.

i.  Proceedings below

 

The trial court initially told prospective jurors:  “In every criminal case, the person charged
with a crime, . . . those people do not have to testify in
a case in which they are a defendant. So Mr. Hill and Mr. Baskin—it is one of
the most absolute things in criminal law, the right not to testify. . . .”    

The court added:
 â€œBut the problem is that I’m going to
give you a lot of instructions.  I’m
going to give you a lot of admonitions.  I’m
going to tell you to do some things, and I’m going to tell you a lot more
things not to do.  But I realize that no
matter how many instructions I will give to you in writing or orally, I cannot
control your minds.  That’s an
understatement because, believe it or not, when I’m sitting, I cannot even
control my own mind.  How would I expect
to control yours?  But the guidelines
that we give you, the admonitions that we give you to protect everyone’s
rights, including the People, are things that come into play sometimes.  And sometimes you may be sitting there, and
unconsciously things come into your mind. . . .”   

“Because of this
area, it happens quite often that most jurors will tell us, if, if not all of
them, yes, I accept the point of law that in a criminal case a defendant does
not have to testify.  He has that
absolute right.  What happens is that
some of us start thinking about it and say why not.  And sometimes what happens is people
penalize—judges penalize defendants for not testifying. . . . Can’t do it. Can’t
do it.”   

“Why?  Because that is . . . the law.  That’s what our forefathers say when they were
founding our republic, democracy.  [Two],
it is pursuant to your oath; [three], it is the only right thing to do because
they do have a burden.  The burden is
with the People; no more, no less.”   

 

            ii.  The court did not convey approval of
inferring guilt.

 

             â€œ[T]he privilege against self-incrimination of
the Fifth Amendment prohibits any comment on a defendant’s failure to testify
at trial that invites or allows the jury to infer guilt therefrom, whether in
the form of an instruction by the court or a remark by the prosecution.  [Citation.]” 
(People v. Clair (1992) 2
Cal.4th 629, 662.)

            The
court’s comments do not invite the prospective jurors to infer guilt from
appellants’ decision to exercise their Fifth Amendment rights.  The court’s comments consist of an
acknowledgement that some people want to infer guilt when a defendant does not
testify coupled with an admonition that it is very important not to infer guilt
and thereby penalize a defendant for exercising his right not to testify.  In other words, the court was telling the
prospective jurors to fight against a common impulse.  There is nothing improper about these
remarks.

As for the use
of the term “judges,” appellants read too much into this term.  The trial court repeatedly told the
prospective jurors to think of themselves as judges.  Well before making the above-quoted remarks, the
court told the prospective jurors:  “I’m
going to tell you that we are not partisans in this case.  You and I are judges here if you are
selected.”  Later, the court again told
prospective jurors  “You are not to be
investigators.  You are not to be
partisans.  You are not to be litigants.  You are to be judges of the facts; no more, no
less.”  Thus, when the court stated that “sometimes
what happens is people penalize—judges penalize defendants for not testifying,”
he was referring primarily to jurors. 
There was nothing improper in this remark.

 

            e.
 Trial court’s comments about
punishment/death penalty

 

Appellant Baskin
contends that the trial court’s comment about punishment and the death penalty
during voir dire violated the prohibition of considering penalty during the
guilt phase of the trial.  Appellant Hill
joins in this contention.

Respondent
contends appellants have waived this claim by failing to object in the trial
court.  (See People v. Boyette, supra, 29 Cal.4th at p. 459.)  We agree. 
Assuming for the sake of argument that the claim was not waived, we
would see no error.

The court first
stated:  “In every criminal case, when a
person is charged with a crime, . . . you have to have no
concerns about it because in the same way that I as a judge here cannot tell
you what the facts are and what your verdict should be—that’s the province of
the jurors.  If we go to the next step,
you are not to tell me or consider penalty or punishment because that’s
irrelevant to you, period.  That should
never ever enter into your mind in your deliberations.  I’ll get back to that in a few moments.”  

            The
court later stated:  “You’re not to
consider penalty or punishment. The important thing is not that you don’t think
about it because you can’t help it sometimes. 
The important thing is that if those things come into your mind, you
must do your utmost pursuant to your oath and to your morals and to your
ethics— that you sort of take them out.  You
heard some of our leaders in the past.  That they compartmentalize things.  You have to compartmentalize it and put it
outside your mind.  After the case is
over, you can do anything with it but not during the case.  Ladies and gentlemen, keep that in mind,
please.”  

            Baskin
is correct that the jury should not consider possible penalties when deciding
guilt.  (See People v. Martinez (2010) 47 Cal.4th 911, 958; People v. Holt (1984) 37 Cal.3d 436, 458.)  The court’s comments were an explanation of
that prohibition, not a violation of it. 
It is of course the trial court’s duty to explain such rules to the
jury.

 

f.  The court’s “religious” references

 

Appellant Baskin
contends the trial court’s references to biblical terms and the jurors’
religious beliefs were improper and, considered with the court’s other
comments, prejudicial.  Appellant Hill
joins this contention.

Respondent
contends appellants have waived this claim by failing to object in the trial
court.  (See People v. Boyette, supra, 29 Cal.4th at p. 459.)  We agree. 
Assuming for the sake of argument that the claim was not waived, we
would see no error.

While
questioning the individual prospective jurors seeking to be excused from jury
service, the trial judge at one point commented about “flood gates.”  He said it was a biblical name.  He said, “If I open the flood gates too wide
[i.e., allowed prospective jurors to open the doors of his courtroom in order
to leave], even the attorneys would leave.  I’m the only one left.”  Later during voir dire, the trial judge
mentioned that he gave his courtroom doors the biblical name “flood gates.”  He reiterated, “I am convinced if I open those
doors a little bit too wide, I’d be the only one left.  I have to be careful of your request [to be
excused from jury service].  Please keep
that in mind.”  

Still on the
topic of why he often needed to deny prospective jurors’ requests to be excused
from jury service, the trial judge noted, “Sometimes people say, you know,
judge, my upbringing, my religious beliefs, my philosophical beliefs, my
political beliefs, whatever beliefs that I have do not allow me to be sitting
in judgment of another human being.”  The
court explained why these excuses did not warrant being excused from jury
service as follows:  “[T]he problem is
except in some very distant areas in the death penalty case, which this is not
the one, that you are not . . . sitting in judgment of another human being. . .
. [I]f you are selected [to be on the jury panel], you’re going to be sitting
in judgment of the evidence . . . .”  

“Appeals to
religious authority at the guilt phase are . . . impermissible . . . .”
 (People
v. Harrison (2005) 35 Cal.4th
208, 247.)  “The jury at the guilt phase
is not charged with making an ethical or normative decision; instead, it
decides questions of historical fact based on the evidence and applies to those
facts the law as articulated by the trial court.  Religious input has no legitimate role to play
in this process.  [Citation.]  [¶]  But not every reference to the Bible is an
appeal to religious authority.  Not only
is the Bible a religious text, but it is also generally regarded as a literary
masterpiece; indeed, it is among the oldest and best-known literary works in
our culture.  The English departments of
major secular universities teach courses on the Bible as literature.  And this court has repeatedly held that in
closing argument attorneys may use ‘illustrations drawn from common experience,
history, or literature.’  [Citations.]  As an article in a respected law journal
explains, ‘fiction, anecdotes, jokes and Bible
stories are commonly regarded as acceptable’ in closing argument.  [Citation.]” 
(Id. at pp. 247-248 [fn.
omitted].)

The trial court’s
first “religious” reference was to flood gates and was clearly a literary
allusion to illustrate the court’s point. 
There is no doubt that a reasonable juror would have understood it as
such.  The court’s comment was
proper.  The court’s second “religious”
reference simply acknowledged that some jurors have concerns that their
religious beliefs prevent them from serving on a jury.  This is not an appeal to religious authority
in any way.  The court in fact emphasized
that jurors were to judge the evidence, not the person.  The court’s comment was proper.

 

g.  The court’s comment on race

 

Appellant Baskin
contends the trial court improperly remarked on appellants’ race.  Appellant Hills joins in this contention.

Respondent
contends appellants have waived this claim by failing to object in the trial
court.  (See People v. Boyette, supra, 29 Cal.4th at p. 459.)  We agree. 
Assuming for the sake of argument that the claim was not waived, we
would see no prejudice to appellants.

The trial court
made one statement about race, telling the jurors prior to trial, “You are not
to consider the defendants’ race at all in this case to determine whether they
are guilty or not guilty.”  Even assuming
for the sake of argument that this remark were improper, we would find it
harmless under any standard of review.  (See,
e.g., Chapman v. California, supra,
386 U.S. at p. 22; People v. Watson,
supra, 46 Cal.2d at p. 836.)  It was a very brief reference, substantively
it was unobjectionable and, as we discuss throughout this opinion, the evidence
against appellants was overwhelming.

 

            2.  Bifurcation

 

Appellant Baskin
contends there was scant evidence at the preliminary hearing showing that the
crimes were gang-related, and thus the gang evidence was extremely prejudicial
with little probative value for the substantive charges.  He concludes the trial court erred in denying
the defense motion to bifurcate the trial court of the gang enhancement
allegations.  Appellant Hill joins in
this claim.

 

            a.  Applicable law

 

A trial court’s
denial of bifurcation of a jury trial is subject to review for an abuse of
discretion.  The court’s decision will
not be disturbed on appeal unless it exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice.  (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.)

“[E]vidence of
gang membership is often relevant to, and admissible regarding, the charged
offense.  Evidence of the defendant’s
gang affiliation—including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and the
like—can help prove identity, motive, modus operandi, specific intent, means of
applying force or fear, or other issues pertinent to guilt of the charged
crime.  [Citations.]  To the extent the evidence supporting the gang
enhancement would be admissible at a trial of guilt, any inference of prejudice
would be dispelled, and bifurcation would not be necessary.  [Citation.]” 
(People v. Hernandez, supra,
33 Cal.4th at pp. 1049-1050.)  “Even if
some of the evidence offered to prove the gang enhancement would be
inadmissible at a trial of the substantive crime itself—for example, if some of
it might be excluded under Evidence Code section 352 as unduly prejudicial when
no gang enhancement is charged—a court may still deny bifurcation.”  (Id.
at p. 1050.)  â€œ[A] trial court’s
discretion to deny bifurcation of a charged gang enhancement is similarly
broader than its discretion to admit gang evidence when the gang enhancement is
not charged.”  (Ibid.)

 

            b.  Proceedings below

 

            Prior
to trial, defense counsel jointly requested to bifurcate the gang
allegations.  The trial court denied the
request.  

The court explained
its denial:  “The issue is under a 352
analysis whether or not the prejudicial effect substantially outweighed the
probative value and the consumption of time, a number of things.”

“[U]sing this
balancing process, based on the offer of proof that has been given to the court
and the arguments that the three of you have made, the court comes to the
reasonable, common sense conclusion, exercising its full discretionary powers,
that the gang membership is prejudicial, but the probative value of that association,
of that brotherhood, of sort of the Three Musketeers idea, the classical idea
of the Three Musketeers substantially outweighs any prejudicial effect because
even though motive is not an element, it does go to a certain motive.  It goes to intent and identification when we
have these three people that just how coincidental that they just meet at this
store at the front door and decided to say, hey, let’s make our day.  This is a day’s pay.  We’re going to go in there and break the cases
and steal everything.  At least two of
them have hammers, and then the fact that Mr. Baskin, as an offer of proof, is
injured.”

“Again, I don’t
have any information whether or not we have any photos or any video of Mr.
Baskin being at the location, but he goes back to the location where the first
suspect, now the deceased, lives and is a known hangout.  When we’re looking at the totality of the
circumstances, again, I think that it is relevant, and it is material, and the
probative value clearly outweighs any prejudicial effect.  [¶]  And,
therefore, the People are allowed to be able to use that testimony in the case
in chief, and it is not bifurcated.”

 

            c.  The trial court did not abuse its discretion
by denying the motion to bifurcate

 

Section 186.22,
subdivision (b)(1) applies to “any person who is convicted of a felony
committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific
intent to promote, further, or assist in any criminal conduct by gang members . . . .”  (Italics added.)  Generally, if the evidence shows that a
defendant “intended to and did commit the charged felony with known members of
a gang, the jury may fairly infer that the defendant had the specific intent to
promote, further, or assist criminal conduct by those gang members.”  (People
v. Albillar (2010) 51 Cal.4th 47, 68.)

            The
evidence at the preliminary hearing showed that Hill, Baskin and Lincoln were
members of the same gang, the Santana Blocc Compton Crip (“SBCC”).  The evidence also suggested that the fourth
robber was a gang member.  Robberies were
one of the primary activities of that gang. 
The victim’s description of the attempted robbery showed concerted
activity.  Following the attempted
robbery, Baskin went to a known SBCC gang house to seek assistance.  This is sufficient evidence to support an
inference that the attempted robbery was committed in association with a
criminal street gang and with the requisite specific intent.

            Since
the evidence at the preliminary hearing supported an inference that the
attempted robbery was gang-related, the trial court did not abuse its
discretion in denying the motion to bifurcate the gang enhancement. 

            Even
if the trial court erred, any error was harmless under any standard of
review.  (See, e.g., Chapman v. California, supra, 386 U.S. at p. 22; >People v. Watson, supra, 46 Cal.2d at p.
836.)  As we discuss in section 1 of this
opinion, the evidence against appellants on the burglary and robbery charges
was overwhelming.  Jurors acquitted appellants
on the most serious charge of murder, showing that they were not prejudiced by
the gang evidence and were able to fairly consider each charge on its
merits. 

 

            3.  Sufficiency of the evidence – gang
enhancement

 

            Appellants
contend there is insufficient evidence to support the jury’s true findings on
the gang enhancement allegations.  They
specifically contend the prosecution relied almost entirely on expert testimony
and this testimony was deficient.

 

 

 

 

            a. 
Applicable law

 

“In reviewing a challenge to the sufficiency of the evidence, we do
not determine the facts ourselves.  Rather,
we examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.  [Citations.]  We presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.  [Citation.]  [¶]  The
same standard of review applies to cases in which the prosecution relies
primarily on circumstantial evidence and to special circumstance allegations.  [Citation.]  [I]f the circumstances reasonably justify the
jury’s findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled with a contrary finding.  [Citation.]  We do not reweigh evidence or reevaluate a
witness’s credibility.  [Citations.]”  (People
v. Nelson (2011) 51 Cal.4th 198, 210 [internal quotation marks omitted].)

It is well
settled that expert testimony may be used to prove a gang enhancement.  (People
v. Vang (2011) 52 Cal.4th 1038, 1048; People
v. Hernandez, supra, 33 Cal.4th at pp. 1047-1048; People v. Sengpadychith (2001) 26 Cal.4th 316, 322.)  Indeed, “‘[e]xpert opinion that particular
criminal conduct benefited a gang’ is not only permissible but can be
sufficient to support the . . . section 186.22, subdivision (b)(1), gang
enhancement. [Citation.]” (People v.
Vang, supra, 52 Cal.4th at p. 1048.)

Expert testimony
concerning the culture, habits, and psychology of gangs is permissible because
these subjects are “sufficiently beyond common experience that the opinion of
an expert would assist the trier of fact . . . .”  (Evid. Code, § 801, subd. (a); see also >People v. Gardeley (1996) 14 Cal.4th
605, 617.)  Gang experts may testify
regarding certain activities of the gang even though they may parallel the
elements of the criminal street gang allegation.  (People
v. Valdez (1997) 58 Cal.App.4th 494, 506.)  The expert also may testify concerning whether
the defendant acted for the benefit of a gang, even though it is an ultimate
factual issue for the jury to decide, because these are matters far beyond the
common experience of the jury.  (>People v. Hill (2011) 191 Cal.App.4th
1104, 1120; People v. Valdez, supra,
58 Cal.App.4th at pp. 508-510.)  In
addition, an expert’s testimony is admissible concerning an individual’s
membership in a gang, the primary activities of a specific gang, the motivation
for a particular crime, and gang-related tattoos.  (People
v. Hill, supra, 191 Cal.App.4th at p. 1120.)

 

b.  Analysis

 

            Here,
the gang expert testified that robberies, including take-over and
smash-and-grab robberies of jewelry stores, were one of the primary activities
of SBCC.  He also testified that SBCC was
a “tight knit” gang and was not a gang that “will just let anybody go and do
[crimes like takeover robberies] without them.” 
This is sufficient to support the expert’s testimony, in response to a
hypothetical based on the facts of the case, that the attempted robbery was at
the direction of the SBCC, and also in association with and for the benefit of
the SBCC.  

            Appellant
Hill contends that the expert’s opinion that the robbery would have “benefited
the gang because the jewelry could be turned into cash to buy narcotics [to
then sell] stretches any realistic requirements of actual evidence of gang
motivation.”  Assuming Hill is correct
that the proposed use of the cash strains credulity and is speculative, the
essence of the opinion is sound:  SBCC
committed jewelry store robberies to obtain jewelry which could be converted to
cash to finance the ongoing activities of the gang.   

            Appellant
Hill also contends that there is no evidence that “gang membership or the
apparatus of the gang” were relied upon or played any role in the burglary and
attempted robbery” and hence no evidence to support a finding that the crimes
were committed “in association with” a criminal street gang.  Hill relies on People v. Albillar, supra, 51 Cal. 4th at page
60, for this evidentiary requirement.  In
that case, the court found sufficient evidence that defendants relied on their
common gang membership and the apparatus of the gang in committing the charged
crimes.  (Ibid.)  Much of this evidence
came from the gang expert who testified in part that gang members chose to
commit crimes together because, “‘[t]hey can trust on each other’s
loyalties.  They can handle contingencies
that may arise during the commission of [the] crime that they did not plan for
initially.’”  (Id. at p. 60-61.)  “In
addition, the bonds within the gang ‘would keep people from ratting on their
own gang’ to the police about the crimes that gang members were committing.”  (Id.
at p. 61.)  The remainder of the evidence
came from the defendants concerted activities in committing the crimes.

Similar evidence
was present here.  There was ample
evidence that appellants acted in concert with each other, Lincoln, and the
unidentified fourth man.  Lincoln assessed
the jewelry store, left, then returned with appellants and the fourth man.  They wore gloves and brought hammers to break
through the glass cases in the store. 
The men broke at least some of the glass cases before fleeing from the
victim’s gunfire. 

The gang expert
testified that SBCC gang members “do it among themselves.  [SBCC] is not a gang that will just let
anybody go and do stuff like this without them.”  The expert explained:  “There is a reason for that.  The term ‘snitch.’  They don’t want to take someone that is not
going to be loyal to the gang.  [¶]  You really have to have a close knit group
when you do stuff like this because they don’t want the weak individual to wind
up” in police hands.  This is very
similar to the expert’s testimony in People
v. Albillar, supra, 51 Cal. 4th at pages 60-61.  There
was also evidence that Baskin went to Lincoln’s aunt’s
house, a known gang hangout, to seek assistance after he was (unexpectedly)
wounded.  Thus, he relied on the gang
apparatus to handle a contingency that occurred during the crimes.

Appellants also
rely on In re Daniel C. (2011) 195
Cal.App.4th 1350, People v. Ramon
(2009) 175 Cal.App.4th 843, and In re
Frank S. (2006) 141 Cal.App.4th 1192 to show insufficiency of the evidence.
 Their reliance is misplaced.

            >In re Daniel C. involved a minor who was
an affiliate of a gang and who committed a robbery while accompanied by an
admitted gang member and a gang affiliate. 
The gang enhancement was found true even thought the minor said no gang
words and made no gang signs, and his companions were not involved in the
crime.  The Court of Appeal reversed the
true finding on the gang enhancement because there was “no evidence that the
minor acted in concert with his companions. 
[The minor’s] companions left the store before he picked up the [stolen
item], and they did not assist him in assaulting [the victim].”  (In re
Daniel C., supra, 195 Cal.App.4th at
p. 1361.)  Here, as we discuss>, supra, there was ample evidence that
appellants acted in concert with each other, with Lincoln and with
the unidentified fourth man.

In re Frank S., involved a
gang affiliate who committed the crime of carrying a concealed dirk or
dagger.  The gang enhancement was found
true even though he was arrested alone. 
The minor told police that “he had been jumped two days prior and needed
the knife for protection.”  There was no
evidence that the minor had any reason to expect to use the knife in a
gang-related crime.  The Court of Appeal
reversed the true finding, holding:  “To
allow the expert to state the minor’s specific intent for the knife without any
other substantial evidence opens the door for prosecutors to enhance many
felonies as gang-related and extends the purpose of the statute beyond what the
Legislature intended.”  (>In re Frank S., supra, 141 Cal.App.4th
at p. 1199.)  Here, appellants committed
the charged crimes in concert with fellow gang members, and there was evidence
that robbery was a primary activity of their gang.  This is sufficient to create an inference
that appellants had the requisite specific intent.  (See People
v. Albillar, supra, 51 Cal.4th at pp. 60-61.) 

People v. Ramon involved a
gang member who was convicted of receiving a stolen vehicle, being a felon in
possession of a firearm and carrying a loaded firearm in public; the gang
enhancement allegations to those crimes were found true.  Ramon was a gang member, was accompanied by
another gang member, and was stopped in his gang’s territory.  The gang expert relied on identical hypothetical
facts as the basis for his opinion that the crimes were committed for the
benefit of the gang.  The Court of Appeal
reversed the true finding on the gang enhancement, ruling that these facts did
not support the expert’s opinion.  The
court concluded that “[t]he analysis might be different if the expert’s opinion
had included ‘possessing stolen vehicles’ as one of the activities of the gang.”
 (People
v. Ramon, supra, 175 Cal.App.4th at pp. 852-853.)  Here, the expert’s opinion was that take-over
and smash and grab robberies of jewelry stores were one of appellants’ gang’s
primary activities.

Appellant Baskin
also cites People v. Ochoa (2009) 179
Cal.App.4th 650 for the proposition that the gang expert’s testimony alone was
insufficient to support the gang enhancement. 
The Court of Appeal explained that the expert testimony alone was
insufficient because “‘[T]he record must provide some evidentiary support,
other than merely the defendant’s record of prior offenses and past gang
activities or personal affiliations, for a finding that the >crime was committed for the benefit of,
at the direction of, or in association with a criminal street gang.’  [Citation.]”  (Id.
at p. 657)  There was no such support in >Ochoa, however, because the defendant
made no gang references during the crimes and acted alone.  (Id.
at p. 653.)  As we discussed, the crimes
in this case involved at least three gang members acting in concert to commit a
crime that was one of the primary activities of their gang.  Thus, there was something more than just the
gang expert’s testimony.

 

4. Consciousness
of guilt instruction

 

Appellants
contend that the trial court violated their due process rights

by instructing the jury with CALCRIM No.
372, which permits the jury to infer consciousness of guilt from flight.  They contend the instruction is legally
incorrect and was not supported by the evidence.href="#_ftn4" name="_ftnref4" title="">[4]

The trial court
instructed the jury on CALCRIM No. 372 as follows:  â€œIf a defendant fled or tried to flee
immediately after the crime was committed, that conduct may show that he was
aware of his guilt.  If you conclude that
a defendant fled or tried to flee, it is up to you to decide the meaning and
importance of that conduct.  However,
evidence that a defendant fled or tried to flee cannot prove guilt by itself.”  

 

a.  Standard of review

 

A claim of instructional error is reviewed de novo.  (People
v. Cole (2004) 33 Cal.4th 1158, 1210.)  â€œThe proper test for judging the adequacy of
instructions is to decide whether the trial court ‘fully and fairly instructed
on the applicable law . . . .’  [Citation.]
 â€˜â€œIn determining whether error has been
committed in giving or not giving jury instructions, [the reviewing court] must
consider the instructions as a whole . . . [and] assume that the jurors are
intelligent persons and capable of understanding and correlating all jury
instructions which are given.  [Citation.]”’  [Citation.]  â€˜Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.]’  [Citation.]”  (People
v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)

 

b.  CALCRIM No. 372 is a correct statement of the
law

 

Appellants
contend CALCRIM No. 372 permits an irrational inference of guilt.  Appellants are mistaken.

As appellants
acknowledge, the California Supreme Court approved CALJIC No. 2.52, the
predecessor instruction to CALCRIM No. 372. 
(People v. Pensinger (1991) 52
Cal.3d 1210, 1243; see also People v.
Mendoza (2000) 24 Cal.4th 130, 179-180.)href="#_ftn5" name="_ftnref5" title="">[5]  Appellants contends that CALCRIM No. 372
differs significantly from CALJIC No. 2.52 because the CALCRIM instruction uses
the phrase “aware of his guilt” which is not found in the earlier CALJIC
instruction.  They contend that the
CALCRIM phrase equates flight with guilt. 


Appellants
acknowledge that the Fifth District Court of Appeal rejected this claim in >People v. Hernandez Rios (2007) 151
Cal.App.4th 1154, but argue this case is wrongly decided.  We agree with our colleagues in the Fifth Appellate
District that the use of the term “aware of his guilt” does not create a
different inference than the one permitted by the earlier CALJIC instruction.  (People
v. Hernandez Rios, supra, 151 Cal.App.4th at pp. 1158-1159.)  CALCRIM No. 372 does not permit an irrational
inference of guilt.

Appellants also
contend CALCRIM No. 372 permits the jury to give evidence of flight whatever
weight the jury chooses and even to make it the determinative factor in their
deliberations.  They conclude this
violated their right to be convicted only upon proof of each element of the
crime beyond a reasonable doubt.  We do
not agree.

The language of
CALCRIM No. 372 states, “it is up to you to decide the meaning and importance
of that conduct.”  This language is very
similar to the language of its predecessor instruction, CALJIC No. 2.52, which
told the jury, “[t]he weight to which this circumstance is entitled is a matter
for you to decide.”  We see no meaningful
difference between the two phrases.

The California
Supreme Court has repeatedly rejected the claim that CALJIC No. 2.52
reduced the prosecutor’s burden of proof. 
CALJIC No. 2.52 makes “clear to the jury that certain types of deceptive
or evasive behavior on a defendant’s part could indicate consciousness of
guilt, while also clarifying that such activity was not of itself sufficient to
prove a defendant’s guilt, and allowing the jury to determine the weight and
significance assigned to such behavior.  >The cautionary nature of the instructions
benefits the defense, admonishing the jury to circumspection regarding evidence
that might otherwise be considered decisively inculpatory.  [Citations.]  We therefore conclude that these
consciousness-of-guilt instructions did not improperly endorse the prosecution’s
theory or lessen its burden of proof.”  (>People v. Jackson (1996) 13 Cal.4th
1164, 1224 [italics added]; see also, e.g., People
v. Boyette, supra, 29 Cal.4th at pp. 438-439.)  We likewise reject appellants’ similar claim
concerning CALCRIM No. 372.

Further, nothing
in CALCRIM No. 372 negated multiple other instructions given in this case
concerning the jury’s fact-finding duties, including CALCRIM Nos. 200 (Duties
of Judge and Jury), 220 (Reasonable Doubt), 226 (Witnesses), 251 (Union of Act
and Intent: Specific Intent or Mental State), and 302 (Evaluating Conflicting
Evidence).   

c.  CALCRIM No. 372 was
properly given in this case

 

Appellants claim that the four suspects fled to escape the victim’s
shooting and so it was improper for the trial court to give a flight instruction.  There is sufficient evidence of flight to
support the instruction.

Both appellants not only left the store where the victim was
shooting, but continued to flee.  Baskin
went to Lincoln’s home.  Hill fled to the
park across the street from the store, where he apparently collapsed from his
gunshot wounds.  He was found by police
in the middle of the park toward the al