Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA312121 Rand S. Rubin, Judge.
Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Tracey Lee Dotson, appeals from his assault with a deadly weapon conviction. (Pen. Code, § 245, subd. (a)(1).) Defendant admitted that he was previously convicted of a serious felony. Defendant argues the trial court improperly instructed the jury on flight. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 7 or 8 p.m. on November 6, 2006, Doron Ben-Naiem was near the intersection of 4th Street and La Cienega Boulevard. Mr. Ben-Naiem had seen an African-American disabled homeless man, later identified as James Martin, in a wheelchair living near 4th Street and a nearby alley for a few weeks prior to that date. Mr. Martin was able to get out of the wheelchair with the help of crutches. Mr. Ben-Naiem had given food to Mr. Martin previously. Mr. Ben-Naiem saw defendant approach Mr. Martin. Defendant said: “‘You stole my suitcase. Where is my fucking suitcase?’” Kevin Di Pietro lived on 4th Street. Mr. Di Pietro heard shouting. When Mr. Di Pietro looked out his window, he saw defendant yelling and gesturing at Mr. Martin. Mr. Di Pietro heard defendant say, “‘I’ll get you motherfuckers, I’ll fuck you up, you ain’t downtown anymore, motherfucker, I will fuck you up.’” Mr. Ben-Naiem heard defendant say, “This is my spot, get away from this spot.” Defendant then took one of Mr. Martin’s crutches. Defendant began hitting Mr. Martin with the crutch. Mr. Martin attempted to block the blows with a cardboard tube, but ultimately fell to the ground. Mr. Di Pietro came out of the house and joined Mr. Ben-Naiem and another neighbor named “Raffi.” Mr. DiPietro’s son, Grady, was also present. Mr. Ben-Naiem called the police on his cellular telephone.
Mr. Ben-Naiem, Mr. Di Pietro, Grady, and the person identified only as Raffi ran across the street screaming, “‘Stop, whoa, stop.’” Defendant backed away. Mr. Martin had a “bad cut” on his face and was bleeding from his mouth. Mr. Di Pietro attempted to help Mr. Martin up. As this was happening, defendant kicked Mr. Martin twice forcefully in the upper body. Mr. Di Pietro, who was holding Mr. Martin’s arm, felt the impact of defendant’s kick. Mr. Martin cried out in pain. Mr. Di Pietro and Grady yelled at defendant. Defendant then took his shopping cart and went south in the alley.
Los Angeles Police Officer Fernando Devera responded to a call regarding the incident. When Officer Devera arrived at the scene, Mr. Martin was being treated by paramedics. Mr. Martin had approximately a one-inch laceration on his upper lip and had lost two lower teeth. Officer Devera saw a wheelchair, a cane, and a crutch lying on the ground. Thereafter, Mr. Di Pietro and Mr. Ben-Naiem described defendant. Officer Devera then drove through the alley. Officer Devera saw defendant lying on the sidewalk about a block south of where the incident occurred. Defendant, who matched the description of the assailant and had blood on both of his arms, was detained. Defendant was taken to where Mr. Martin was being treated by paramedics. Both Mr. Di Pietro and Mr. Ben-Naiem independently identified defendant as the one they saw involved in the fight. Defendant was arrested. Thereafter, defendant was taken to the police station. After waiving his constitutional rights, defendant said: “‘He was taking my stuff and he hit me with a stick so I hit him. He is a thief.’”
Defendant’s sole argument on appeal is that the trial court improperly instructed the jury with CALCRIM No. 372 on flight as follows: “If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” Defendant’s failure to object to this instruction at trial constitutes a waiver of the issue on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326; People v. Jennings (1991) 53 Cal.3d 334, 374; see also People v. Stone (Feb. 21, 2008, A117978) ___ Cal.App.4th ___, ___.) In fact, defense counsel initially objected to specific language in the flight instruction, but later acquiesced to the instruction as modified.
In any event, the flight instruction was properly given. The California Supreme Court has held, “In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’” (People v. Bradford (1997) 14 Cal.4th 1005, 1055, quoting People v. Ray (1996) 13 Cal.4th 313, 345; People v. Jones (1991) 53 Cal.3d 1115, 1145; People v. Mason (1991) 52 Cal.3d 909, 943; People v. Turner (1990) 50 Cal.3d 668, 694-695; § 1127c.) Defendant argues there was no evidentiary support for the instruction. However, evidence was introduced that defendant left the scene of the incident. Officer Devera found defendant in the alley about a block away. We reject defendant’s claim that the fact he was told to “back off” and “get the hell out of here” is indicative there was no flight. Defendant did nothing to aid the victim, who was bleeding profusely. The circumstances of defendant’s departure from the crime scene could logically permit an inference that his movement was motivated by guilt. The delivery of the instruction was proper. (Cf. People v. Jackson (1996) 13 Cal.4th 1164, 1226; People v. Pensinger (1991) 52 Cal.3d 1210, 1244; People v. Mendias (1993) 17 Cal.App.4th 195, 202; People v. Turner, supra, 50 Cal.3d at p. 694; People v. London (1988) 206 Cal.App.3d 896, 903.)
Moreover, the instruction left the weight of the evidence of flight to the trier of fact. In light of other evidence of defendant’s guilt and other instructions given, any error in instructing on flight was harmless. It is not reasonably probable a result more favorable to defendant would have been reached absent such an alleged error. (People v. Crandell (1988) 46 Cal.3d 833, 870; People v. Silva (1988) 45 Cal.3d 604, 628; People v. Watson (1956) 46 Cal.2d 818, 836.)
The judgment is affirmed.
We concur: MOSK, J., KRIEGLER, J.