Filed 10/21/26 P. v. Fulgenzi 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065247
v. (Super. Ct. No. 24HF0852)
WILLIAM RUSSELL FULGENZI, OPINION
JR.,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Justin Glenn-Leistikow, Judge. Affirmed. Request for judicial notice granted.
Annie Fraser, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Christopher P. Beesley and Maxine Hart, Deputy Attorneys General, for
Plaintiff and Respondent.
William Russell Fulgenzi, Jr., appeals after a jury found him
guilty of one count each of evading while driving recklessly and resisting and
obstructing an officer. The trial court found true Fulgenzi suffered a prior
strike conviction.
Fulgenzi argues the trial court erred by instructing the jury with
a modified version of CALCRIM No. 372 on a defendant’s flight. We agree the
trial court erred by so instructing the jury but, for the reasons we explain, the
error was harmless. Fulgenzi concedes his second contention of error on
appeal regarding the calculation of custody credits is now moot. We therefore
affirm.
FACTS
At 4:50 a.m. in April 2024, California Highway Patrol Sergeant
Peter Kim was driving his black and white patrol vehicle on Interstate 5
when he observed a vehicle travelling 40 miles an hour in a section of
Interstate 5 with a posted speed limit of 65 miles per hour. Based on his
training that a vehicle traveling at a relatively low speed could indicate its
driver was impaired, Kim “pull[ed] up to the vehicle” to further observe its
driving pattern. Kim saw the emergency hazard lights of the vehicle suddenly
activate. The driver then voluntarily pulled over to the right shoulder.
Kim followed the vehicle to the shoulder, thinking either the
driver was impaired or there might be something wrong with the car. Kim
activated his overhead lights to alert the driver and other motorists that he
was law enforcement. Kim’s body-worn camera was on.
Kim made contact with the driver, Fulgenzi. Kim told Fulgenzi to
stop his car because he saw the car kept moving forward, creating a
dangerous situation for Kim. Kim further suspected Fulgenzi might have
been under the influence of alcohol or drugs because he appeared “very
erratic, a little paranoid about people following him [and] playing games,”
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and thought “the police were in on it.” Kim, however, did not detect the odor
of alcohol.
Kim asked Fulgenzi for his driver’s license and Fulgenzi refused.
Fulgenzi asked Kim to identify himself and asked whether Kim was a “real
police officer or not.” Kim showed Fulgenzi his badge and told him to look at
the lights of his patrol car.
Kim asked Fulgenzi to turn off his vehicle because Kim was
afraid Fulgenzi might “leave or try and take off on [Kim].” Fulgenzi then put
his hand on the gear shift and drove off. California Highway Patrol Officer
Mustafa Salaiman stopped his patrol car behind Kim’s vehicle so he and his
partner could provide Kim backup. Salaiman was just beginning to exit his
patrol car when he saw Kim running back to his vehicle. Salaiman observed
the vehicle that had been stopped in front of Kim’s vehicle appeared to be
fleeing from Kim.
Kim in his patrol car, and Salaiman and his partner in their
patrol car, pursued Fulgenzi. Kim and Salaiman each testified at trial they
had to reach a speed of 100 miles an hour to catch up to Fulgenzi who they
each estimated was traveling 80 miles per hour. As they chased Fuglenzi,
their emergency red and blue lights and siren were activated.
The officers followed Fulgenzi as he exited Interstate 5 and
travelled through two red lights before stopping in an alleyway. Once
Fulgenzi stopped, the officers repeatedly directed Fulgenzi to turn off his
vehicle and get out of the car; he did not comply. Instead, he gripped the
steering wheel, tensed his body, and refused to get out of his car. The officers
eventually extricated Fulgenzi from the vehicle and placed him under arrest.
There was no indication Fulgenzi was impaired and nothing
illegal was found in Fulgenzi’s vehicle.
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PROCEDURAL HISTORY
Fulgenzi was charged in an information with evading while
driving recklessly in violation of Vehicle Code section 2800.2, a felony, and a
misdemeanor for resisting and obstructing an officer in violation of Penal
Code section 148.1 The information alleged Fulgenzi had previously suffered
a strike offense pursuant to section 667, subdivisions (d) and (e)(1), and
section 1170.12, subdivisions (b) and (c)(1).
A jury found Fulgenzi guilty of both counts. The trial court
thereafter found true Fulgenzi suffered the prior strike conviction. The court
struck the prior conviction and placed Fulgenzi on two years formal probation
with certain terms and conditions. Fulgenzi appealed.
DISCUSSION
I.
INSTRUCTIONAL ERROR
Fulgenzi argues the trial court erred by instructing the jury with
a modified version of CALCRIM No. 372. We review de novo claims of
instructional error. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) For the
reasons we explain, the trial court erred by instructing the jury with the
modified version of CALCRIM No. 372 but conclude that error was harmless.
Section 1127c provides in relevant part: “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
1 All further statutory references are to the Penal Code unless
otherwise specified.
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deciding his guilt or innocence. The weight to which such circumstance is
entitled is a matter for the jury to determine.” (Italics added.)
The standard jury instruction CALCRIM No. 372 is “a distillation
of the instructional duty imposed on the trial court by . . . section 1127c.”
(People v. Pettigrew (2021) 62 Cal.App.5th 477, 499.) Here, the trial court
instructed the jury on flight of a defendant with a modified version of
CALCRIM No. 372 which stated: “If Mr. Fulgenzi fled, that conduct may
show that he was aware of his guilt. If you conclude that Mr. Fulgenzi fled, it
is up to you to decide the meaning and importance of that conduct. However,
evidence that Mr. Fulgenzi fled cannot prove guilt by itself.”2
The trial court erred because the given instruction modified the
standard CALCRIM No. 372 to omit, with respect to a defendant’s flight or
attempt to flee, the condition that such flight or attempt to flee have occurred
“immediately after the crime was committed/ [or] after (he/she) was accused
of committing the crime.” The instruction as so modified therefore does not
comport with section 1127c’s requirement for the inclusion of such a temporal
condition. We therefore consider whether the trial court’s error was
prejudicial.
Instructional error, such as error in giving the flight instruction,
is reviewed for prejudice under the standard of People v. Watson (1956)
46 Cal.2d 818, 836. (People v. Silva (1988) 45 Cal.3d 604, 628; People v.
Mendias (1993) 17 Cal.App.4th 195, 202.) Reversal is required only if we
2 In the respondent’s brief, the Attorney General argues Fulgenzi
forfeited his challenge because he did not object to the flight instruction in
the trial court. The California Supreme Court, however, has held that
“[c]hallenges to the flight instruction given pursuant to section 1127c are
cognizable on appeal even in the absence of a contemporaneous objection.”
(People v. Rogers (2013) 57 Cal.4th 296, 332, fn. 5.)
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determine a result more favorable to Fulgenzi would have been reasonably
probable if the trial court had not given the incorrect flight instruction.
(People v. Watson, supra, 46 Cal.2d at p. 836.)
In his opening brief, Fulgenzi argues the subject instruction
reduced the prosecution’s burden of proof and therefore the applicable
standard of review is whether “beyond a reasonable doubt . . . the error
complained of did not contribute to the verdict obtained,” pursuant to
Chapman v. California (1967) 386 U.S. 18. The California Supreme Court
has “repeatedly rejected the contention” the flight instruction compels or
allows the jury to find a defendant guilty using a standard lower than proof
beyond a reasonable doubt. (People v. Cage (2015) 62 Cal.4th 256, 286.)
Fulgenzi does not explain how the modification of the standard flight
instruction here would compel a different conclusion.
In any event, we conclude, under either standard, Fulgenzi was
not prejudiced as a result of the trial court instructing the jury with the
modified CALCRIM No. 372 flight instruction. That instruction left it to the
jury to find whether Fulgenzi had, in fact, fled and did not otherwise interfere
with the other given jury instructions on reasonable doubt or on the
substantive elements of the offense of evading while driving recklessly which
required the jury to determine, inter alia, whether Fulgenzi “willfully fled
from, or tried to elude, the officer, intending to evade the officer.” (See People
v. Abilez (2007) 41 Cal.4th 472, 522 [“‘the instruction did not assume that
flight was established, leaving that factual determination and its significance
to the jury’”].)
Moreover, the prosecutor did not reference, much less rely on the
given flight instruction in her closing argument, perhaps because that
instruction was irrelevant in the context of the charged offenses. The jury
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was also instructed on what to do with irrelevant instructions as it was given
CALCRIM No. 200, which states in pertinent part: “Some of these
instructions may not apply, depending on your findings about the facts of the
case. After you have decided what the facts are, follow the instructions that
do apply to the facts as you find them.” We presume the jury followed the
trial court’s instruction in that respect. (People v. Boyette (2002) 29 Cal.4th
381, 436.)
Furthermore, the trial court’s instructional error was harmless in
light of the overwhelming evidence of Fulgenzi’s guilt for evading while
driving recklessly, which consisted of Kim’s and Salaiman’s respective
testimony as well as the video evidence presented of Fulgenzi’s acts after
Kim’s contact with him. The trial court’s instructional error was therefore
harmless here.
II.
CONTENTION OF ERROR IN CALCULATING CUSTODY CREDITS IS MOOT
In his opening brief, Fulgenzi argues, notwithstanding the trial
court’s statutory duty to calculate a defendant’s actual days in custody and
any conduct credit pursuant to section 2900.5, the court did not calculate
Fulgenzi’s custody credits in this case. He urges that this court remand the
matter to the trial court for a determination of custody credits.
In the respondent’s brief, the Attorney General asserts the trial
court subsequently calculated such credits at a probation violation
arraignment hearing on January 30, 2026, rendering Fulgenzi’s argument
moot. The Attorney General’s assertion is supported by its concomitantly
filed request that we take judicial notice of the court’s January 30, 2026
minute order.
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We grant the Attorney General’s unopposed request for judicial
notice, pursuant to Evidence Code sections 452, subdivision (d) and 459, and
take judicial notice of the trial court’s January 30, 2026 minute order
showing Fulgenzi had accrued 20 actual credits and 20 conduct credits for a
total of 40 days. In his reply brief, Fulgenzi agrees the January 30, 2026
minute order establishes the credits contention is moot, as do we.
DISPOSITION
The judgment is affirmed.
MOTOIKE, P. J.
WE CONCUR:
DELANEY, J.
GOODING, J.
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