Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-071539-1
Marchiano, P.J.
Defendant Jugjita David Banger set fire to a residential garbage can and then left the scene when confronted by the homeowner. A jury convicted him of one count of arson of the property of another (Pen. Code, § 451, subd. (d)). The trial court sentenced him to three years’ probation, conditioned on serving one year in county jail. Defendant contends the trial court erred by giving the flight instruction, CALCRIM No. 372, because the instruction is argumentative and there is no evidence of flight. We conclude the flight instruction is not argumentative and there is sufficient evidence of flight to warrant giving the instruction. Accordingly, we affirm.
I. FACTS
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
A string of five arson fires broke out in a four- to five-block area of Antioch between 2:15 and 3:36 a.m. on August 30, 2007. Defendant was charged with setting all five fires, but convicted of setting only one―the only fire linked to defendant by the identification testimony of an eyewitness.
Israel Munoz lived on Alcala Street. On the evening of August 29, 2007, he put his garbage can out on the street, for collection the next morning. At approximately 3:30 a.m. on August 30, Munoz was awakened by the voices of two men in front of his house. He looked out his front bedroom window and saw two men wearing dark clothing standing next to his garbage can. In his testimony, Munoz identified one of the two men as defendant.
Defendant had cut his Mohawk and shaved his beard before trial. At first, Munoz did not identify him in court. The prosecutor showed Munoz defendant’s booking photograph. Munoz identified defendant from the photo as one of the men he saw standing next to his garbage can.
Defendant reached inside the garbage can while the second man held up the lid. Munoz heard one of the men say, “Let’s light this one up so it burns all night.” Munoz believed the speaker was defendant. Munoz yelled, “You better not do that or I will call the police.” The same man who spoke earlier replied, “Oh, really?”―as if to suggest that he did not really care.
The two men immediately walked away. Munoz saw flames coming out of his garbage can. He put out the fire with his garden hose.
Munoz flagged down a passing police car and pointed down the street at the two men. He told the officer the men had set fire to his garbage can. The police detained the two men near the site of a second arson fire, just before the garbage can at that residence ignited. Defendant’s clothes smelled strongly of smoke. The hair on his right hand was singed and smelled burnt. Munoz made an in-field identification of defendant as one of the two men who had set fire to his garbage can.
Defendant did not testify. His defense was that the second man committed the arson.
II. DISCUSSION
The trial court gave the flight instruction, CALCRIM No. 372, 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.”
Defendant contends the trial court erred by giving this instruction. He claims the instruction is argumentative, in that it invites the jury to draw an inference of guilt in favor of the prosecution. He also claims there is no evidence of flight in this case.
Our standard of review for instructional error is de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) We review the instructions as a whole to determine whether it is reasonably likely that the jury understood the challenged instruction in such a way as to undermine the presumption of innocence or dilute the People’s burden to prove the defendant’s guilt beyond a reasonable doubt. (See People v. Paysinger (2009) 174 Cal.App.4th 26, 30 (Paysinger).) We conclude the trial court properly gave CALCRIM No. 372 in this case.
It is unclear whether defendant objected to the instruction in the trial court. Normally, a failure to object would constitute a waiver of an instructional challenge on appeal. (See People v. Bolin (1998) 18 Cal.4th 297, 326.) Notwithstanding the apparent failure to object, we may consider the merits of the issue. (Pen. Code, § 1259; People v. Slaughter (2002) 27 Cal.4th 1187, 1199.)
Argumentative.
Defendant compares the language of the instruction with that of its predecessor, CALJIC No. 2.52. The predecessor instruction, tracking the language of Penal Code section 1127c, first tells the jury that flight is insufficient to prove guilt, and then tells the jury flight is a fact the jury may consider in deciding guilt or innocence. (See People v. Loker (2008) 44 Cal.4th 691, 705−706 [quoting CALJIC No. 2.52].) CALCRIM No. 372 reverses this order: first, it tells the jury flight may show awareness of guilt; then, it tells the jury flight alone is insufficient to convict.
Defendant claims this reverse order amounts to an argument in favor of a determination of guilt. He does not adequately explain why, and we are unable to see how the simple linguistic act of reversing the order of the two points of the instruction somehow invites a finding of guilt or dilutes the People’s burden of proof. Indeed, a challenge to the instruction very similar to defendant’s has been rejected. (Paysinger, supra, 174 Cal.App.4th at p. 31.)
We note that defendant’s jury was also instructed that it was the sole arbiter of the facts, that defendant was presumed innocent and the People had to prove his guilt beyond a reasonable doubt, and the jury could not convict defendant unless it was convinced that each fact essential to his guilt had been proved beyond a reasonable doubt. Viewing CALCRIM No. 372 as part of the instructional whole, and in light of these other instructions, we conclude the instruction is not argumentative and worked no constitutional defect in defendant’s trial.
We note that there is no violation of due process involved in permitting a jury to infer a defendant’s consciousness of guilt from his flight immediately after the commission of a crime. (See People v. Mendoza (2000) 24 Cal.4th 130, 179−180 [rejecting challenge to CALJIC No. 2.52]; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157−1159 [rejecting challenge to CALCRIM No. 372].)
Sufficiency of the Evidence.
Defendant contends there was no evidence of flight because he simply walked away from Munoz’s house and was still walking―not running―when stopped by the police. But a physical act of running is not essential to flight. (People v. Cannady (1972) 8 Cal.3d 379, 391; People v. Jack (1965) 233 Cal.App.2d 446, 458−459 (Jack).) What is essential is that the defendant leave the premises to avoid arrest or observation. (Jack, at p. 458; see People v. Bonilla (2007) 41 Cal.4th 313, 328−329.) Such behavior shows consciousness of guilt. Defendant left the scene, having just started the fire and after just being warned by Munoz that he would call the police. Defendant immediately left to avoid arrest and further observation, and thus a potentially stronger identification, by eyewitness Munoz. A demonstrable state of anxiety on the part of defendant need not be present.
There is sufficient evidence of flight to justify the giving of CALCRIM No. 372.
III. DISPOSITION
The judgment of conviction is affirmed.
We concur: Dondero, J., Banke, J.
The common sense significance of flight after wrongdoing has been recognized by other authors.“The wicked man flees though no one pursues.” (Proverbs 28: 1.) “By flight I’ll shun the danger which I fear.” (Shakespeare, Pericles, act. I, scene 1.)