Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050716720
Reardon, Acting P.J.
A jury found appellant Craig Lamont Brown guilty as charged of two felonies: throwing a substance at a vehicle (Veh. Code, § 23110, subd. (b)) and resisting an executive officer (Pen. Code, § 69)). The court suspended imposition of sentence and placed appellant on three years’ formal felony probation, which included a term of 240 days in county jail with 45 days’ credit for time served. As well, the court imposed a restitution fine of $400 and a probation revocation fine in the same amount.
Appellant challenges delivery of a jury instruction on flight, as well as the credit calculation and the restitution fine. We agree that appellant is entitled to two additional custody credit days and affirm the judgment in all other respects.
I. FACTUAL BACKGROUND
In August 2006, Deputy Sheriff Sarita Ellison of the Contra Costa Sheriff’s Department served as the North Richmond resident deputy. She was assigned to that area to work in the community with citizens and in particular with the narcotics and other criminal activity they face. During the 11 months on that assignment, she came to know appellant through numerous contacts in North Richmond. Deputy Ellison had a personal relationship with appellant and knew him on sight, having had at least 20 contacts with him.
Around 1:39 a.m. on August 12, 2006, Deputy Ellison was driving a fully marked patrol car. She noticed a Dodge Charger driving erratically down Silver Avenue. She executed a traffic stop near the intersection of Silver Avenue and 4th Street. As she approached the vehicle on foot, it took off at a high rate of speed. Deputy Ellison pursued the vehicle, with full lights and sirens on, “going just between 45 and 50,” until it reached the intersection of 3d Street and Silver Avenue.
That intersection was well lit with street lamps on both sides of the street. Deputy Ellison’s headlamps were on at that time as well. There were seven to 10 people “hanging out” at that intersection. As Deputy Ellison approached the intersection, she saw appellant step out from behind a white van. She was concerned that appellant was going to step in front of her patrol car, so she slammed on the brakes and slowed down to 10 -15 miles per hour. Appellant stopped right in front of Deputy Ellison and threw a large wooden rocking chair “head-on” at her vehicle from a distance of 10 - 15 feet.
On cross-examination, Deputy Ellison testified that as she was passing through the intersection someone else threw a garbage can at her car. It was “raining debris”—folks were throwing bottles, sticks and pieces of a broken chair.
The headlights were on appellant and Deputy Ellison saw him clearly through the windshield; her vision was not obstructed at any time prior to appellant throwing the chair. She immediately recognized appellant from her prior contacts, expressing “[a] hundred percent” certainty in the identification. Deputy Ellison swerved to the right; the rocking chair hit the left front light, the hood area and windshield. A piece of brown wood was later found embedded in the front hood area.
Deputy Ellison continued the vehicle pursuit, confident that she could later identify appellant. She did not inform dispatch of the rocking chair incident, reporting only the pertinent information related to the vehicle pursuit. About two minutes after the rocking chair incident, Deputy Ellison ended the pursuit and arrested a passenger. She searched the area for appellant, but did not locate him at that time. Another officer arrived who testified at trial that Deputy Ellison identified appellant by name as having thrown a rocking chair at her vehicle. After obtaining a warrant, she arrested appellant on September 2, 2006.
Defense: Appellant’s defense was that Deputy Ellison’s identification of him was not reliable. Dr. Robert Shomer, an expert on factors involved in perception, memory and eyewitness identification testified generally about how identification processes work. Dr. Shomer stated that facial recognition of individuals “works at a very low level of reliability.... [I]t’ s basically like flipping a coin.” Further, according to Dr. Shomer, it is important to separate assumptions—what we think we saw—from observations, or what we actually saw. Providing an initial prompt description of the individual to someone else is a critical benchmark in accurate eyewitness identification. Stress, the interval of time in which the individual was observed, and the ability to anticipate the event all influence identification. Further, police officers are no better at facial recognition than the average person. Once you have made a choice, memory dynamically changes to support that choice.
Dr. Shomer also testified that familiarity can be supportive of accuracy in circumstances where you state right away that you saw a particular person who is known to you. However, there is no usable relationship between confidence and accuracy. Posed with a hypothetical situation based on the facts of this case, Dr. Shomer indicated that the stress of the situation would reduce accuracy, and the fact that it was very dark would make it difficult to identify the thrower. Although the headlights were on, they would only illuminate the person’s face for a split second. Also, the driver’s attention was diverted in several directions—driving the car, avoiding the person who suddenly appeared, taking appropriate action—such that taking in the details of a person’s face for later eyewitness identification is “way down on the list.” And finally, the absence of a contemporaneous description supports the analysis that the driver was not focused on getting a good look at the culprit, what the person was wearing, etc.
II. DISCUSSION
A. Flight Instruction
Over defense counsel’s objection, the trial court gave CALJIC No. 2.52 as a “cautionary” measure, as follows: “The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient by 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 defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
Citing People v. Anjell (1979) 100 Cal.App.3d 189, appellant argues the court erred in delivering this instruction, reasoning that the instruction is improper where “identity is a contested issue.” (Id. at p. 199.) As that court further stated, “[T]he instruction becomes relevant only if the sole contested issue in the case—the defendant’s identity as the robber—is assumed.” (Id. at p. 200.) Our Supreme Court in People v. Mason (1991) 52 Cal.3d 909, 942-943 has disapproved Anjell for its overly broad dictum that the flight instruction is erroneous where identity is contested. “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. [Citation.] ‘The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury’s need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.’ [Citation.]” (People v. Mason, supra, 52 Cal.3d at p. 943.)
A flight instruction is proper where there is evidence that the defendant departed the scene under circumstances suggesting that his or her movement was motivated by a consciousness of guilt. (People v. Ray (1996) 13 Cal.4th 313, 345.) Here, appellant had disappeared from the street corner within two minutes of throwing the chair. Appellant had a motive to depart because he knew Deputy Ellison. A logical inference of that knowledge is that he knew that Deputy Ellison had seen him throw the chair and would recognize him as the perpetrator. Deputy Ellison stated that the intersection was well lit with several streetlights, plus her headlights were on. Appellant stopped “right in front of” her after she slowed down between 10 and 15 miles per hour.
In any event, any error in providing the flight instruction was harmless because absent the instruction, it is not reasonably probable that a more favorable result would be forthcoming. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Mask (1986) 188 Cal.App.3d 450, 456.) Another officer arriving on the scene shortly after Deputy Ellison testified that Deputy Ellison told him “Craig Lamont Brown had thrown a rocking chair at her vehicle....” Deputy Ellison was certain of her identity of appellant, someone she knew personally from some 20 previous encounters in North Richmond. Lighting was good, her visibility that early morning was not impaired, and she observed him close up, while driving slowly. The instruction itself is clear that flight alone is not enough to convict. The jury had two choices: to credit Ellison’s eyewitness identification or reject it as not proving identity beyond a reasonable doubt. With these two choices, the perpetrator’s possible flight from the scene—whether it was appellant or someone else—would add nothing to the relevant inquiry: Who was the person who fled?
B. Presentence Credit Calculation
The People concede that the court miscalculated the presentence credits appellant had accumulated, agreeing that he should have received credit for 47 instead of 45 days. When a convicted defendant has been in custody, all days of custody of the defendant shall be credited upon his or her term of imprisonment. (Pen. Code, § 2900.5, subd. (a).) The court imposing sentence must determine the date or dates of admission to and release from custody prior to sentencing, and the total number of days to be credited. (Id., subd. (d).) Appellant was in custody from September 2, 2006, until September 24, 2006 (total of 23 days), and from October 22, 2007, until November 14, 2007 (total of 24 days). Appellant is entitled to two additional custody credit days.
C. Restitution Fine
Appellant charges that the trial court erroneously set the restitution fine at $200 per count, thus exhibiting a misunderstanding of the scope of its discretion under Penal Code section 1202.4, subdivision (b) (section 1202.4(b)). Imposing the restitution fine of $400, the trial court reasoned: “There’s also the restitution.... And that provides for... restitution to the fund of not less than $200 or it could be $10,000, but the Legislature changed it... [so it is] not by cases as it was, but now it’s on each count. So if you have ten counts you have ten times 200 and that’s a big figure. In this case here there are two counts, so that’s 400 bucks for you.”
This statute reads in part: “(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine.... [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony.... [¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (§ 1202.4(b)(1), (2).)
Appellant is adamant that the minimum restitution fine is $200 per case, regardless of the number of counts for which a defendant is convicted. He relies on People v. Holmes (2007) 153 Cal.App.4th 539, 547, in which the court held that when “a defendant has been convicted of several felony offenses in one proceeding, a restitution fine is not imposed on ‘each count’ but instead one fine is imposed taking into account all the offenses in the proceeding....” We do not disagree with Holmes and indeed in this case a total restitution fine of $400 was imposed taking into account the two felony convictions.
Section 1202.4(b)(1) sets out the minimum-maximum range for restitution fines for felony and misdemeanor convictions. Subdivision (b)(2) in turn specifies a formula that may be used in determining the appropriate amount of a felony restitution fine in a given case. That formula calls for multiplying $200 by the years of imprisonment and “the number of felony counts of which the defendant is convicted.” (§ 1202.4(b)(2), italics added.)
Here it appears that the trial court elected to set the restitution fine according to the statutory formula. Since appellant received probation, the middle multiplier of years of imprisonment was omitted, leaving the calculation at $200 times two felony counts. The court did not err in calculating the restitution fine.
III. DISPOSITION
The trial court is directed to modify the judgment to reflect two additional days of presentence custody credit. In all other respects, the judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.