P.v . Walls

Filed 3/19/09 P.v . Walls CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Sherrill A. Ellsworth, Judge. Affirmed.

Gideon Margolis, 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, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.

Prior to trial, defendant pled guilty to being a felon in possession of a firearm, to wit, a shotgun (Pen. Code, 12021, subd. (a)(1))^[1](count 2). The following day, a jury found defendant guilty of first degree robbery ( 211) with the personal use of a firearm ( 12022.53, subd. (b)). The trial court thereafter found true that defendant had sustained a prior serious felony conviction ( 667, subd. (a)) and a prior strike conviction ( 667, subd. (c), 1170.12, subd. (c)(1)). Defendant was sentenced to a total term of 21 years in state prison. Defendants sole contention on appeal is that the trial court prejudicially erred in failing to sua sponte instruct the jury with a flight instruction. We reject this contention and affirm the judgment.

I

FACTUAL BACKGROUND

On July 27, 2006, about 11:00 p.m., James Stevens was working at a Pizza Hut in San Jacinto as an assistant manager with three other employees. They were cleaning the store as part of the closing process when Stevens heard a beep, indicating someone was entering through the back door. Stevens, who was in the kitchen near the cash registers, turned around and saw defendant entering through the back door, carrying a full-length shotgun and wearing a red handkerchief over his face. Upon seeing Stevens, defendant ordered him and a coworker, who was standing near Stevens, to drop to the ground. Both complied.

At the same time, the Pizza Hut driver came out of the bathroom; when he saw what was occurring, he fled out the front door. Defendants confederate, who had apparently entered the store after defendant, told defendant, Weve got to get out of here, Dog.

After defendant secured all the employees in one area, he demanded money from the waitress and yelled at her about the safe. The waitress replied that she knew nothing about the safe, including the combination. To distract defendants attention from the waitress, Stevens jumped up and opened the two cash drawers, which contained about $314 in small denomination bills. Defendant began grabbing the money from the cash drawers. When done, defendant ordered Stevens and the others to stay down, and he and his confederate left out the back door.

Deputy Antonio Soto of the Riverside Sheriffs Department was dispatched to the Pizza Hut and arrived minutes after the robbery. Upon reviewing the store surveillance video, Deputy Soto radioed a more detailed description of defendant to other officers in the area. Deputy Jesse Newby and his partner were directed to the area and set up a perimeter. While starting to secure the area, Deputy Newby immediately noticed someone hiding in the bushes in the front of a nearby house. Defendant, who was holding the shotgun pointed up in the air in his right hand, came out from the bushes and said, I give up. Defendant was placed under arrest.

A search of defendant revealed $404 in small denomination bills and three shotgun shells in his pockets. The shotgun was loaded. Stevens was taken to the location where defendant was arrested, where he identified defendant as the man who had robbed him.

II

DISCUSSION

Defendant contends the trial court prejudicially erred in failing to sua sponte give a flight instruction to the jury pursuant to Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 372.^[2] We disagree.

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.

The Supreme Court has interpreted section 1127c as mandating a rule that if there is evidence identifying the person who fled as the defendant, and if such evidence is relied on as tending to show guilt, then a flight instruction is proper. (People v. Abilez (2007) 41 Cal.4th 472, 521-522; see also People v. Jurado (2006) 38 Cal.4th 72, 126.) Flight requires neither the physical act of running nor the reaching of a far-away haven. (Abilez, at p. 522.) But [e]vidence that a defendant left the scene [of a crime] is not alone sufficient; instead, the circumstances of departure must suggest a purpose to avoid being observed or arrested. (People v. Bonilla (2007) 41 Cal.4th 313, 328; see also Abilez, at p. 522.) Put another way, [a] flight instruction is proper whenever evidence of the circumstances of [a] defendants departure from the crime scene . . . logically permits an inference that his movement was motivated by guilty knowledge. (Abilez, at p. 522.)

Normally, it is the People who want a flight instruction; the defendant does not. The issue usually comes up on appeal only because the trial court has given the instruction; the defendant then argues that the instruction was prejudicial, because it suggested to the jury  falsely â€‘‑ that he or she fled.

Without belaboring the issue, even if the trial court erred in failing to give the flight instruction because a reasonable juror could infer that defendants actions in fleeing the scene and immediately being found hiding in some bushes near the scene suggested consciousness of guilt, we find any error to be harmless. In People v. Williams (1960) 179 Cal.App.2d 487, the court stated: While the instruction on flight should have been given by the court on its own motion, . . . its omission was more favorable than harmful to [the defendant]. We believe that in view of the fact that [the defendant] admitted he drove [the perpetrator] from the scene of the crime an instruction on flight could only have been more damaging to his defense. (Id. at p. 491.) In People v. Sheldon (1967) 254 Cal.App.2d 174, the court concluded: The evidence of [the defendants] guilt, entirely apart from the evidence regarding his flight, was overwhelming. Under these circumstances the courts failure to instruct the jury on flight could not have had any effect upon the jurys ultimate determination. (Id. at p. 181; see also People v. Roy (1971) 18 Cal.App.3d 537, 551 [[t]he instruction could have been more helpful to the prosecution than to the defendant. In the circumstances of the present case the failure to give the instruction, if error, was clearly nonprejudicial], disapproved on unrelated grounds in People v. Ray (1975) 14 Cal.3d 20, 32.)

Likewise, here, there was no possibility that the jury relied on flight as the sole evidence of defendants guilt. It undoubtedly also relied on the fact that the victim identified defendant as the perpetrator; that defendant was caught with the shotgun; that defendant stated, I give up; and that defendant was caught wearing the same clothes and holding the same shotgun visible in the video surveillance and as described by the victim at trial. There was overwhelming evidence of defendants guilt here. Furthermore, the instruction would have been inculpatory, not exculpatory, in its effect. We therefore conclude that the trial courts failure to give a flight instruction was harmless.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

GAUT

J.

KING

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] CALCRIM No. 372 provides: If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) 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.