P. v.
Filed 7/18/13 P. v. Flores
CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS ENRIQUE FLORES,
Defendant and Appellant.
B243923
(Los Angeles
County
Super. Ct.
No. BA385567)
APPEAL from
a judgment of the Superior Court
of
County, Henry J. Hall, Judge. Modified and, as so modified, affirmed.
Kevin D.
Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant
Carlos Enrique Flores appeals his convictions for
degree robbery, misdemeanor vandalism, receiving stolen property, and auto
burglary. The trial court sentenced Flores to a term of four years
eight months in prison. Flores contends
(1) the trial court prejudicially erred by giving the standard jury instruction
regarding flight after a crime; and (2) he should have been sentenced to a jail
term, not a prison term, for the misdemeanor vandalism offense. Flores’s second contention has merit, and we order his
sentence modified accordingly. In all
other respects, we affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
1.
Facts.
On June
9, 2011, Flores and three accomplices went on an early morning crime spree. The evidence relevant to the issues presented
on appeal established the following.
a.
Vandalism and burglary in the
parking structure.
On June 9, 2011, at approximately 3:38
a.m.,
Flores drove Alex Iraheta, Luis
Mesa (known as “Besoâ€) and Josue B. (known as “Framerâ€) in a black Lexus
to the top level of a parking structure located near Kenmore Avenue and Sixth Street in Los Angeles. The group spray painted graffiti on the
parking structure walls and on vehicles.
They also shattered the windows of at least seven vehicles and took
property from at least three of them, including, among other things, a
navigation system, and two pellet guns along with a magazine and ammunition.
b.
Shortly before 7:00 o’clock that morning, Flores was driving his cohorts
through Los Angeles when Iraheta and Framer
suggested that they rob someone.
Fifteen-year-old Nelson C. was walking to school near the
intersection of Washington Boulevard and Magnolia Avenue, wearing headphones and
listening to his iPod. Flores stopped the car near
Nelson, and Iraheta and Framer exited the car and approached him. Flores made a U-turn and moved the car near Iraheta and
Framer. Iraheta told Nelson to empty his
pockets. Iraheta activated a taser he
was holding, causing it to buzz and emit electrical current. Nelson ran and screamed for help. Iraheta and Framer chased him. They stopped following him once he neared
some bystanders. Nelson ran toward his
home, and reported the incident to a police officer he happened to see on the
way.
c.
Moments later, Iraheta and Framer approached 16-year-old
Oswaldo O. from behind as he was walking to school in the same area. The men stood in front of Oswaldo and
demanded that he give them “ ‘everything you have.’ †Iraheta activated the taser gun
repeatedly. Framer took Oswaldo’s
cellular telephone and wallet, and tore a gold chain from his neck. The men told Oswaldo, “ ‘you didn’t see
anything,’ †and ran off. Oswaldo
returned to his residence and telephoned police.
d.
After robbing Oswaldo, Iraheta and Framer returned to Flores’s car and the group
continued to drive around. At
approximately 7:25 a.m., they approached the intersection of Catalina Street and Jefferson Boulevard, where16-year-old
Christopher C. was riding his bicycle to school. Flores stopped the car, allowing Iraheta and Framer to
exit. They approached Christopher. Iraheta told him he was going to take the
bicycle. He attempted to stun
Christopher with the taser. Christopher
avoided the taser, but fell off his bicycle in the process. Iraheta took Christopher’s bicycle and rode
away on it. He told Christopher not to
follow him. Framer got back into the
Lexus, and Flores drove off.
Christopher used his cellular telephone to call police.
e.
Later in the day on June 9, 2011, Flores and two of his
accomplices pawned the navigation system, one of the pellet guns, and
ammunition at Mr. Steve’s Pawnshop in Los Angeles. Flores provided his California identification card and his
thumbprint to complete the transaction.
A video surveillance system inside the shop captured the transaction on
film. Flores was paid $48 for the items.
Video footage from the parking structure’s
surveillance system showed Flores’s Lexus entering the lot, and two of his accomplices
approaching the structure’s walls moments after exiting the car. Video footage from an electronics store
located in the area of the Oswaldo O. robbery showed two men exit the
Lexus and walk southbound on Magnolia towards Washington. The Lexus drove northbound a short distance,
waited “a couple minutes†with its emergency lights on, and then made a U-turn
and continued driving on Magnolia.
Los Angeles Police Department
Detective Sergio Martinez investigated the crimes. After obtaining the Lexus’s license plate
number from the video, he spoke with Flores’s mother the day after the crimes,
June 10, 2011. The Lexus seen in
the video was in the driveway of her residence.
A search of the Lexus revealed a taser in a storage pocket in the
driver’s side door.
Martinez spoke to Flores at his home
on June 10, 2011, and he and other detectives conducted a recorded interviewed
of Flores later that day. A tape of the
interview was played for the jury.
Flores told the detectives that on June 9, 2011, he had picked up
Iraheta, Beso, and Framer from their respective homes shortly after
midnight. He drove them to the parking
structure. He admitted being present
when the others vandalized the garage and broke into vehicles. He admitted painting his name on a wall. He admitted that later that morning, Iraheta
and Framer suggested they rob someone.
He did not want to question them and decided to “let these guys do what
they want to do.†He knew what they
planned to do when they exited the Lexus, and he kept the engine running and
waited for them while they went out to rob people. He did not think he would “get in trouble
for . . . them robbing people.â€
He talked them out of robbing “an old lady†who was wearing a gold
chain. He admitted that the taser was
his. He admitted pawning the navigation
system.
He signed the following
statement: “We were at the parking
structure on the last level and Beso, Framer and Alex vandalized the
walls. At one point they started walking
down the parking structure breaking into cars.
On Washington, Framer and Alex hopped out of the car on some guy who
they said took off running. They briefly
chased him but stopped and then approached another guy. They gave me a G.P.S. system and pellet gun
to pawn.â€
Nelson, Oswaldo, and Christopher separately identified
Iraheta as one of the robbers in pretrial photographic lineups. All three youths identified Iraheta and
Framer from still photographs extracted from the parking structure’s video
system. Oswaldo identified Iraheta at
trial.
The parking structure manager paid
$300 to have the graffiti removed from the vehicles, and $200 for its removal
from the walls.
The defense presented no evidence.
2.
Procedure.
Flores and Iraheta were tried together, by different juries.
degree robbery (Pen. Code, §§ 664, 211);
two counts of second degree robbery (§ 211); misdemeanor vandalism
(§ 594, subd. (a)); receiving stolen property (§ 496,
subd. (a)); and two counts of second degree burglary of a vehicle
(§ 459). The trial court sentenced
Flores to a term of four years eight months in prison. It imposed a restitution fine, a suspended
parole restitution fine, criminal conviction assessments, and court security
fees, and ordered Flores to pay victim restitution. Flores appeals.
DISCUSSION
1.
Instruction with CALCRIM No. 372
was not prejudicial error.
The trial court asked the parties
whether they wished the court to instruct with CALCRIM No. 372, regarding
flight after crime. The court
queried: “Do we believe that the flight
instruction is appropriate or not appropriate?
. . . [T]his is one of
those ones that is a palliative instruction for the defense. It keeps the jury from over considering the
fact that the defendants left the scene of the crime.†The People argued that the instruction was
warranted, and requested it be given.
Both defense counsel objected.
The trial court overruled the objections and instructed as follows: “If the defendant fled immediately after the
crime was committed, that conduct may show that 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.†Flores
contends use of the instruction was error, because there was no substantial
evidence of his flight after the crimes.
A trial court must instruct,
law that are closely and openly connected to the facts before the court and
that are necessary for the jury’s understanding of the case. (People v. Moye (2009) 47 Cal.4th 537,
548.) A trial court errs by giving an
instruction that, while correctly stating the law, has no application to the
facts of the case. (People v. Hamilton (2009) 45 Cal.4th 863, 937; People v. Cross (2008) 45 Cal.4th 58, 67.) We independently determine whether
jury instructions given were correct and adequate. (People
v. Riley (2010) 185 Cal.App.4th 754, 767; People v. Mathson (2012) 210 Cal.App.4th 1297, 1311.)
Whenever the prosecution
relies upon evidence of flight as tending to show guilt, the trial court is
statutorily required to instruct the jury with the principles embodied in
CALCRIM No. 372. (§ 1127c;
1032, 1073-1074; People v. Richardson (2008)
43 Cal.4th 959, 1020; People v. Howard (2008)
42 Cal.4th 1000, 1020.) A flight instruction
is properly given if the jury could reasonably infer that the defendant
departed the crime scene under circumstances suggesting his movement was
motivated by a consciousness of guilt. (
McWhorter (2009) 47 Cal.4th 318, 376; People
v. Bradford (1997) 14 Cal.4th 1005, 1055; People v. Visciotti (1992) 2 Cal.4th 1, 60.) “ ‘ “[F]light requires neither the
physical act of running nor the reaching of a far-away haven. [Citation.]
Flight manifestly does require, however, a purpose to avoid being
observed or arrested.†’
[Citations.] ‘
the scene of an alleged crime does not warrant an inference of consciousness of
guilt [citations], but the circumstances
of departure from the crime scene may sometimes do so.’ [Citation.]â€
(Bradford, at p. 1055;
710; Wallace, at p. 1074.)
Flores argues the instruction was
improper because there was no substantial evidence of flight. In his view, no evidence showed he acted with
a purpose to avoid being observed or arrested.
He and his cohorts were not pursued by the victims or police; he did not
leave any of the crime scenes in haste or evasively; he did nothing to avoid being
observed; he did not leave town or his home; and he did not attempt to hide the
Lexus, or change its appearance. His
mere return to familiar environs, he posits, did not warrant the
instruction. The People counter that the
instruction was proper because Flores’s acts of driving from the parking lot
after the vandalism and burglaries, from the intersection of Washington and
Magnolia following the attempted robbery of Nelson and the robbery of Oswaldo,
and from the intersection of Catalina and Jefferson following the robbery of
Christopher, “was evidence from which a jury could find that appellant had fled
in order to avoid arrest.â€
In our view, the evidence of flight
was weak at best, showing only that Flores left the crime scenes. “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.]†(
328.) But any error in giving CALCRIM
No. 372 was manifestly harmless because there is no probability Flores would
have obtained a more favorable outcome had the trial court omitted the
instruction. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Silva (1988) 45 Cal.3d 604, 628.) “The instruction did not assume that flight
was established, but instead permitted the jury to make that factual
determination and to decide what weight to accord it.†(People
v. Carter (2005) 36 Cal.4th 1114, 1182-1183; People v. Visciotti, supra, 2 Cal.4th at p. 61; see generally
at
p. 1020.) Flores’s argument that the
jury would reasonably have inferred “the trial evidence must have contained at
least some evidence of appellant’s flight†is not persuasive. The jury was instructed: “Some of these instructions may not apply,
depending on your findings about the facts of the case. Do not assume just because I give a
particular instruction that I am suggesting anything about the facts. After you have decided what the facts are,
follow the instructions that do apply to the facts as you find them.†(CALCRIM No. 200.) In any event, the flight instruction’s
cautionary nature benefits a defendant, “ ‘admonishing the jury to circumspection
regarding evidence that might otherwise be considered decisively
inculpatory. [Citations.]’ †(People
v. Boyette (2002) 29 Cal.4th 381, 438-439; see People v. Henderson (2003) 110 Cal.App.4th 737, 742.)
The evidence against Flores was
overwhelming. He admitted driving his
cohorts in the Lexus to the parking structure, being present when they
committed the vandalism and thefts, and painting his name on the wall. He admitted being the driver during the
robberies and attempted robbery, all the while knowing his cohorts planned to
commit robberies. That Flores did this
not just once, but three times, effectively negated any argument that he lacked
the requisite intent. Also damning was
his admission that he owned the taser used in the robberies. After the crimes, he pawned some of the
stolen property. Under these
circumstances, his defense that he was simply in the car and did not
specifically intend to rob anyone or assist the perpetrators in the crimes, was
farfetched. It is clear the jury would
not have rendered a more favorable verdict for Flores had the instruction been
omitted. Contrary to Flores’s assertion,
the fact the jury deliberated for three hours does not suggest the case was
close: the jury had before it seven
counts to consider. There was no
prejudicial error.
2.
Sentence on the misdemeanor
vandalism count.
Flores was convicted in count 4 of misdemeanor
vandalism. The trial court did not
orally state what sentence it was imposing on count 4. The court’s minute order and the abstract of
judgment, however, indicate the court imposed a two-year prison term, stayed
pursuant to section 654.
Flores contends this was error. The vandalism statute, section 594,
subdivision (b)(2)(A), provides that a misdemeanor violation of section 594 is
“punishable by imprisonment in a county jail not exceeding one year.†Flores therefore requests that the sentence
on count 4 be modified to reflect a stayed, one-year jail term.
The People concede that the prison
term was improperly imposed. However,
they urge that section 654 is inapplicable because Flores was not convicted of
any other offenses relating to the vandalism.
They request that the sentence be modified to reflect a concurrent
one-year county jail sentence, rather than a stayed sentence. In his reply brief, Flores does not contest
the People’s position.
We agree that in light of section
594, subdivision (b)(2)(A), Flores’s sentence on count 4 must be modified to a
one-year county jail term. We also agree
with the People that section 654 is inapplicable. Section 654, subdivision (a), provides in
pertinent part: “An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.†Section 654 bars multiple punishment for
separate offenses arising out of a single occurrence where all of the offenses
were incident to one objective. (
1302, 1368; People v. Latimer (1993)
5 Cal.4th 1203, 1208; People v. Calderon (2013)
214 Cal.App.4th 656, 661.) Here, it is
beyond dispute that the vandalism in the parking lot involved different acts,
and was undertaken with a different intent and objective, than the subsequent
offenses. Therefore, we order the
judgment modified as the People suggest.
>
DISPOSITION
The judgment is modified to
reflect that the correct sentence on count 4 is a concurrent, one-year term in
county jail. The clerk of the superior
court shall prepare and forward to the Department
of Corrections and Rehabilitation an amended abstract of judgment
reflecting this modification. In all
other respects, the judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
CROSKEY,
Acting P.J.
KITCHING,
J.
name="_ftn1" title="">[1]
Christopher did not identify
Iraheta at trial and repudiated his pretrial identification of him.
name="_ftn2" title="">[2]
Iraheta is not a party to this
appeal.
