P. v. Vo

Filed 1/21/10 P. v. Vo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals Judge. Affirmed.

Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.

After a jury convicted defendant Thai Van Vo of grand theft (Pen. Code, 487, subd. (a); all further statutory references are to this code), the trial court placed him on three years formal probation with 365 days of local custody and ordered him to pay victim restitution. He contends the court committed reversible error in giving the flight instruction, CALCRIM No. 372, because it violated his constitutional rights and there was no evidence of flight from the crime[] to warrant the instruction. Finding no error, we affirm the judgment.

FACTS

Between August and mid-October 2004, defendant was a restaurant general manager whose duties included depositing cash and checks into the company account and keeping undeposited amounts in the restaurant safe, to which only he had access. He failed to deposit over $30,000 in August earnings into the account and when confronted claimed he had taken the money without permission to pay for his wifes emergency medical bills. The restaurant allowed him to keep his job and gave him a chance to pay back the money.

On October 7, defendant signed a promissory note for the amount owed, but a week later he admitted he had lost the money gambling and had actually taken over $50,000. He subsequently failed to show up for work and efforts to locate him were unsuccessful.

DISCUSSION

The trial court instructed the jury with CALCRIM No. 372 as follows: If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself. Defendant asserts this instruction was unconstitutional and not supported by the evidence.

Contrary to the Attorney Generals assertion, defendants failure to object when the instruction was given did not forfeit his challenges on appeal because his claim that the instruction violated his due process of law is not of the type that must be preserved by objection. [Citations.] (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Nevertheless, his contentions lack merit.

In reviewing the purportedly erroneous instruction, we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. [Citations.] In conducting this inquiry, we are mindful that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. [Citations.] (People v. Frye (1998) 18 Cal.4th 894, 957, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)

1. Violation of Constitutional Rights

Defendant argues CALCRIM No. 372 violated his due process and jury trial rights because the phrase after the crime was committed tells the jury a crime was committed, thereby eliminating the presumption of innocence, lowering the burden of proof and depriving [him] of a jury verdict. As he reasons, 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[] but neither term[] . . . appl[ies] to the glaring assertion that the crime was committed[.]

People v. Paysinger (2009) 174 Cal.App.4th 26 (Paysinger) recently rejected the same argument after viewing CALCRIM No. 372 as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendants guilt beyond a reasonable doubt. [Citation.] (Id. at p. 30.) It concluded that [e]ven viewing the instruction in isolation, the word if in the operative clauseIf the defendant fled or tried to flee immediately after the crime was committeddoes 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. Thus, it is highly unlikely a reasonable juror would have understood the instruction as dictating that the crime was committed. [Citation.] (Ibid.)

We find Paysinger persuasive and disagree it was incorrectly decided. According to defendant, Paysingers analysis is flawed because CALCRIM No. 372 does not logically say If the defendant fled or tried to flee if after the crime was committed . . . . (or after if the crime was committed). He is correct the instruction did not say that. But neither did Paysinger. Rather the entire phrase must be construed together and modified by the word if such that the jury had to determine both whether defendant had tried to flee and whether he had committed the crime charged.

Defendants convoluted reading of CALCRIM No. 372 is unavailing. If, as he asserts, the instruction presumes the crime was committed, then there is no point in giving an instruction allowing the jury to consider evidence of flight to show he was aware of his guilt because the crime would have already been established. For the same reasons, we reject defendants contention the instruction in Paysinger did not contain the words or after he was accused of a crime and that applying the word if to that as well would allow a conclusion the defendant was was not accused of a crime.

Defendant also urges that Paysinger not be followed because it ma[de] no serious effort to resolve whether a reasonable jury could have been misled by the instruction and interpreted the language as conveying a conclusive presumption. But the fact Paysinger did not use those words does not mean it avoided the question. To the contrary, in concluding it is highly unlikely a reasonable jury would have understood the instruction as dictating that the crime was committed[,] Paysinger cited People v. Daener (1950) 96 Cal.App.2d 827, 833, which held an instruction allowing consideration of a persons flight immediately after the commission of a crime did not presuppose the commission of the crime charged, [citation]; [and] . . . assumed neither the guilt nor flight of the defendant . . . . In other words, it did not contain a conclusive presumption.

Defendant relies on Sandstrom v. Montana (1979) 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39]. The jury instruction there provided that the law presumes that a person intends the ordinary consequences of his voluntary acts. (Id. at p. 515.) Unlike the Sandstrom instruction (the law presumes), CALCRIM No. 372 contains no language a reasonable juror could construe as mandatory. (Sandstrom v. Montana, supra, 442 U.S. at pp. 514-515.) It does not tell the jury defendant had fled immediately after he committed the crime or to presume a crime was committed. Rather, it instructs the jury that it may consider evidence of flight in deciding whether defendant committed the crime. It specifically advises jurors that if they concluded defendant fled or tried to flee, it was up to them to decide the meaning and importance of that conduct and makes clear that evidence that the defendant fled cannot prove guilt by itself.

The California Supreme Court has held such an instruction satisfies due process because it contains a permissive presumption from which a jury [can] infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt. (People v. Mendoza (2000) 24 Cal.4th 130, 180 [construing CALJIC No. 2.52, the CALJIC version of CALCRIM No. 372]; see also People v. Avila(2009) 46 Cal.4th 680, 710 [CALJIC No. 2.52 does not create an unconstitutional permissive inference or lessen the prosecutors burden of proof].) Although the flight instructions in Avila, Mendoza, and Daener, modeled after section 1127c, allowed the jury to consider evidence of flight after the commission of a crime, while CALCRIM No. 372 refers evidence of flight after the crime was committed, defendant fails to convince us there is significant difference between the two phrases. Defendant claims CALCRIM No. 372 employ[s] two separate clauses with the conditional term If appurtenant only to the first . . . . We have already rejected this argument and no further discussion is necessary. (See Paysinger, supra, 174 Cal.App.4that p. 32 [defendant simply repeats the contention that the CALCRIM instruction unconstitutionally presumes the crime was committed, which we have rejected already[ and] . . . do not address . . . further].)

Finally, defendant asserts Paysinger failed to explain how other standard instructions given support its conclusion regarding how a jury would interpret CALCRIM No. 372. These instructions told the jury the following things (among others): (1) You must decide what the facts are; (2) It is up to all of you and you alone to decide what happened; (3) 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[]; and (4) Remember that you may not convict a defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendants guilt[] of that crime has been proved beyond a reasonable doubt. (Paysinger, supra, 174 Cal.App.4th at p. 30.) Contrary to defendants claim, Paysinger explained in the next paragraph that given all of the circumstances, including these instructions, 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 defendants guilt beyond a reasonable doubt. (Id. at p. 31.)

These same instructions were given in this case. When the proper admonition is given to the jury by the court, as here, it must be presumed that the jury heeded the admonition. [Citations.] (People v. Robles (1962) 207 Cal.App.2d 891, 897.) Reviewing the instruction given in the context of the entire record, including the arguments of counsel (People v. Dieguez (2001) 89 Cal.App.4th 266, 276), we conclude there is no reasonable likelihood the jury would have understood CALCRIM No. 372 as requiring them to presume defendants guilt.

2. Sufficiency of Evidence to Warrant the Flight Instruction

Defendant also contends the court erred in giving CALCRIM No. 372 because there was no evidence he fled or left to avoid detection or arrest for the charged offense . . . . We are not persuaded.

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.] [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.] (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) 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.)

Such evidence exists here. Defendant failed to appear for work after admitting he had gambled away $50,000 of his employers money without permission, and efforts to find him were unsuccessful. From these facts, a jury could reasonably infer defendants departure from the crime scene, i.e. his place of employment, reflected consciousness of guilt that he had embezzled from his employer. This was sufficient to trigger section 1127cs requirement that the instruction be given. Even if not, courts have held the erroneous giving of a flight instruction is harmless error. (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183; People v. Visciotti (1992) 2 Cal.4th 1, 61.) To the extent the federal circuit case defendant cites prescribes a different result, it is not binding on this court. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.)

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

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