Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA801805, Stephan G. Saleson, Judge.
Gregory Marshall, 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, Daniel Rogers and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant, Nathaniel Carter, of attempted murder (Pen. Code, §§ 664/187, subd. (a)), during which he discharged a firearm (§ 12022.53, subd. (c)) and used a firearm (§ 12022.53, subd. (b)) and assault with a semiautomatic firearm (§ 245, subd. (b)), during which he used a firearm (§ 12022.5, subd. (a)). He was sentenced to prison for 29 years and appeals claiming two instructions were erroneously given. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
Defendant went to an apartment occupied by the victim and other family members and knocked on the door. The victim thought defendant was a neighbor and opened the door. Defendant asked to use the telephone, then the bathroom, which the victim allowed him to do. When defendant emerged from the bathroom, he pulled out a gun, pointed it at the victim and fired. The gun grazed the victim’s left ear and scalp. The two men scuffled and the victim’s brother and father came down from upstairs to assist the victim. The brother stabbed defendant in the back with a knife and the father grabbed defendant and pulled him into the kitchen, during which defendant dropped the gun. The victim picked it up and hit him with it.
Issues and Discussion
1. Judicial Council of California Criminal Jury Instructions, CALCRIM No. 362
Over defendant’s objection, the jury was given CALCRIM No. 362, which provides, “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false, or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
Defendant was interviewed ten days after the crimes. At the beginning of the interview, the police informed defendant that a $675,000 warrant had been issued for his arrest for attempted murder. Defendant asserted that he was the victim. Defendant questioned why a warrant had been issued for him when he was the one who got shot or got shot at. Then he changed it to that he got stabbed. Defendant again asserted that he was the victim. He said that he was the only one in the victim’s apartment that was injured. He said he got injured by the victim letting him in to use the phone. He said he used the phone, then “got his ass whooped” by the people in the apartment. He denied using the bathroom. He denied having a gun on him when he went into the apartment. He then said, “I’m the one that was hit with the gun” when he tried to leave the apartment. He repeated that he was the victim. He said he got stabbed because they started fighting him. He denied he started fighting them. He said, “I didn’t do nothing. I’m the victim.” He said the only mistake he made was going into the apartment. He twice said, “I didn’t do nothin’ with the gun.” Then he admitted that he brought a gun there by saying that he left it there because he was getting beaten up. He then volunteered that no one died from the gun and no one got grazed and he said he was sure about this. When the police told him that he was lucky the victim did not die, he said that the victim “didn’t even get touched by my gun.”
Contrary to defendant’s assertion, he did not “more or less” admit “this fact... immediately.”
Every statement the defendant made above, except for the two that are italicized, is a lie. Therefore, contrary to defendant’s assertion, there was an evidentiary basis for the giving of this instruction. Defendant’s assertion that the fact that he changed his story and admitted to bringing the gun to the apartment meant that the instruction was inappropriate is incorrect. (See People v. Carrington (2009) 47 Cal.4th 145, 188.)
Defendant takes issue with the fact that during his argument to the jury, the prosecutor applied this instruction to defendant’s statements during the interview that he did not bring a gun (although he later admitted that he did), that he was the victim and that he was stabbed just because he was let into the apartment. We note that defendant did not object to the prosecutor’s remarks, and, therefore, waived the matter. (People v. Foster (2010) 50 Cal.4th 1301, 1354.) Moreover, defendant did lie when he asserted that he had not brought a gun to the apartment and that he was stabbed just because he went there. Defendant argues that it was improper for the jury instruction to be used as to his assertions that he was the victim, because, in his mind, he was. However, it was for the jury to determine, according to the provisions of the instruction, whether this was a lie and, if so, its meaning and importance. Certainly, there was a basis for reasonable jurors to conclude that these assertions of victimization were false, therefore it was not improper for the prosecutor to make this argument. Finally, the prosecutor argued, again without objection from defendant, that defendant volunteered that no one got grazed. The prosecutor argued that this suggested that defendant knew the victim had gotten grazed, which, of course, made the statement false. This was a rational inference to derive, from the evidence, and, therefore, it was not error for the prosecutor to argue it to the jury.
Defendant also asserts that CALCRIM No. 362 should not be given because it is an argumentative pinpoint instruction that singles out particular evidence and suggests that the jury draw inferences favorable to the prosecution from it. However, defendant also acknowledges that the California Supreme Court has rejected this position in People v. Page (2008) 44 Cal.4th 1, 49, 50. We are bound by Page. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
More recently, the California Supreme Court rejected the argument that this instruction is an impermissibly argumentative pinpoint directive that allows the jury to draw improper inferences of guilt. (People v. McWhorter (2009) 47 Cal.4th 318, 377 (McWhorter).) We are bound by McWhorter.
2. CALCRIM No. 372
Over defense objection, the jury was given CALCRIM No. 372, which provides, “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 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.”
The crimes occurred around 2:00 a.m. on October 5, 2008 on Bonnie View Drive in Rialto. At 2:23 a.m. the same day a police officer received a call to go to an apartment on South Linden in Rialto, where defendant was. An officer testified that Metrolink tracks separated the two locations, that they were approximately 100 yards apart, and he showed the jury on a map where the two were.
As with CALCRIM No. 362, defendant claims that this instruction is an impermissibly argumentative pinpoint directive, although he concedes that the Supreme Court has rejected this argument. (People v. Navarette (2003) 30 Cal.4th 458, 502 (Navarette).) We are bound by Navarette.
We note that more recently, the California Supreme Court reiterated its rejection of the argument that the instruction is an impermissible pinpoint instruction that allows the jury to draw improper inferences of guilt. (McWhorter, supra, 47 Cal.4th at p. 377.) We are bound by McWhorter.
Defendant points out that CALCRIM No. 362 contains language that its predecessor, which was approved by the California Supreme Court in Navarette, did not. Specifically, CALCRIM No. 362 talks about flight immediately “after the crime was committed.” However, CALJIC No. 2.52, which was addressed in Navarette, addressed flight “after the commission of a crime.” (Former CALJIC No. 2.52) We detect no difference between the two.
Defendant also asserts that there was an insufficient evidentiary basis for the instruction. We disagree. “A flight instruction is proper where the evidence shows a defendant departed the crime scene under circumstances suggesting his movement was motivated by a consciousness of guilt.” (McWhorter, supra, 47 Cal.4th at p. 376.) Citing several cases, defendant asserts that simply because he went home after the crimes, his departure from the scene should not be construed as suggesting consciousness of guilt. However, defendant was severely wounded and bleeding badly. For him to “just go home” rather than staying where he was (or nearby) and asking someone to call 911 so he could receive the medical care he so urgently needed suggested a consciousness of guilt. Moreover, it was for the jury to determine, under the provisions of the instruction, whether defendant fled, and, if so, what meaning and importance this had.
Disposition
The judgment is affirmed.
We concur: MILLER, J., CODRINGTON, J.