Opinion
B163235.
11-6-2003
THE PEOPLE, Plaintiff and Respondent, v. LESLIE R. WILLIAMS et al., Defendants and Appellants.
Janice Wellborn and Judith Vitek, under appointment by the Court of Appeal, for Defendants and Appellants. Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.
Appellants Leslie Williams and Jermaine Williams were convicted, following a jury trial, of two counts of second degree robbery in violation of Penal Code section 211. Both men were sentenced to a total of four years in state prison.
All further statutory references are to the Penal Code unless otherwise specified.
Appellants appeal from the judgment of conviction, contending that the trial court erred in instructing the jury with CALJIC No. 2.52 concerning flight after a crime. We affirm the judgment of conviction.
Facts
On June 22, 2002, at about 9:00 p.m., Luis Trejo was approached by three men near Western and Gage Avenues. Trejo later identified the men as appellants Leslie and Jermaine Williams and co-defendant Eldred Dakers. The men forced Trejo up against a wall and took his wallet, bus pass and money. The three men then ran away.
Dakers is not a party to this appeal.
At about the same time, Francisco Guevara was walking on Gage near Western when he was approached by three men. He later identified the men as the two Williamses and Dakers. Dakers told Guevara to "Give me all." Dakers took $4 to $6 from Guevara. Leslie took Guevaras cellular telephone. Guevara believed that Leslie had a gun. Leslie and Dakers ran off in one direction, while Jermaine ran in the opposite direction.
Guevara went to his near-by home and his niece called police.
As police officers were responding to the Guevara call, citizens directed two of them, Officers Melendez and Ritch, to Trejo, who was standing on a corner. The officers reached Trejo about five minutes after the robbery. The officers drove Trejo around the area. The officers saw a group of three men walking along the street who matched Trejos description of the robbers. The officers turned the car spotlight on the three men. Trejo stated that he believed that the three men were the ones who had robbed him. The men ran away. Officers chased and caught one of the men, Leslie Williams.
Trejo identified Leslie as one of the robbers in a field show-up. Guevara was brought to the scene and identified Leslie as one of the men who robbed him.
Officer Ritch returned to the location where he had first seen the three men and discovered a white Pontiac Grand Am with a broken side window and exposed wires on the steering column. He was joined by Officer Melendez, and the two discovered a cellular telephone inside the car. The two left the Grand Am while the telephone was shown to Guevara. Guevara identified it as the one stolen from him.
Officer Melendez returned to the location of the Grand Am with Officer Ritch, but the car was gone. Several minutes later, Officer Melendez saw the car drive by on Western. Two police cars followed the Grand Am until it was stopped in an alley off 60th and Western. Dakers was driving and Jermaine Williams was in the passengers seat.
Trejo and Guevara identified Jermaine and Dakers as the other two robbers.
At trial, Leslie testified that he ran away from a car which was approaching him rapidly because he believed that there was going to be a drive-by shooting. He did not realize that the car was a police car. He denied robbing Trejo or Guevara.
Discussion
Appellants contend that the trial court erred in instructing the jury with CALJIC No. 2.52 regarding flight after a crime and that this error violated their constitutional right to due process and trial by jury. Respondent contends that appellants have waived this claim by failing to object in the trial court. We review this claim pursuant to section 1259.
CALJIC No. 2.52 tells the jury: "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."
Appellants contend specifically that evidence of their identity was at issue, there was no independent evidence of flight as to which their identity was undisputed and so it was error to give a flight instruction.
"If there is evidence identifying the person who fled as the defendant, and if such evidence `is relied upon as tending to show guilt, then it is proper to instruct on flight." (People v. Mason (1991) 52 Cal.3d 909, 943.)
Here, both victims identified Jermaine, Leslie and Dakers as the men who robbed them and testified that Jermaine, Leslie and Dakers fled on foot after committing the robbery. The victims testimony alone is sufficient evidence to support the flight instruction. In addition, there is also evidence that Leslie fled when police shined a spotlight on him shortly after the robbery and that Jermaine and Dakers fled from police by driving through an alley. Thus, there is more than ample evidence of flight. This evidence was relied on as tending to show guilt, not identification of the robbers. Thus, the flight instruction was properly given.
Disposition
The judgment is affirmed.
We concur: TURNER, P.J. and MOSK, J.