Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR075851S
NEEDHAM, J.
Chesley Van Evans, Jr. (Evans) appeals from a judgment of conviction imposed after a jury found him guilty of being an ex-felon in possession of a firearm and ammunition. (Pen. Code, §§ 12021, subd. (a)(1); 12316, subd. (b)(1).) He contends there was insufficient evidence that he possessed the gun and ammunition, and the court erroneously instructed the jury regarding flight from the scene. We will affirm.
All statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
Evans was charged with being an ex-felon in possession of a firearm (§ 12021, subd. (a)(1)), being an ex-felon in possession of ammunition (§ 12316, subd. (b)(1)), and resisting or obstructing a peace officer (§ 148, subd. (a)(1)). As to the ex-felon counts, it was alleged that Evans had a prior strike conviction (§§ 667, subds. (d) and (e), § 1170.12, subd. (b) and (c)) and had served a prior prison term (§ 667.5, subd. (b)). The court granted the People’s motion to dismiss the third count, and the matter proceeded to a jury trial on counts one and two.
A. Trial
Sergeant Bernstein of the Fortuna Police Department testified that he was on patrol on May 22, 2007, when he contacted Evans, who was driving a “green Ford Ranger pickup truck.” Officer Bernstein identified Evans at trial.
Fortuna Police Officer Hillman testified that he was in uniform and on duty in a marked police vehicle at 7:50 a.m. on August 9, 2007, patrolling behind a mall. Officer Hillman observed a dark green “’96 Ford Ranger pickup” parked across some parking spaces. There was a person in the driver’s seat with short brown hair and a medium build. Hillman was unable to make eye contact with the person, and as he drove around the front of the pickup truck, the person turned his or her face away.
Officer Hillman made a U-turn to return to the truck, continuing to watch the truck in his rear view mirror. He saw the occupant of the truck exit through the driver’s side door and walk out of view around a shed. The person had short brown hair, was wearing blue jeans, and was walking “maybe slightly faster than normal” but not running.
Officer Hillman parked behind the Ford Ranger and, not more than 20 seconds after the occupant left the truck, called dispatch for a registration check on the license plate. Hillman learned from dispatch that the license plate on the 1996 Ford Ranger actually belonged to a 1976 Dodge. Hillman looked in the truck through an open window and saw in plain view a black rifle on the passenger seat with the barrel facing the floor of the truck. No one was in the truck.
Officer Hillman walked toward the corner of the building where the occupant of the truck had gone, about 60 feet away. He saw a man peering around the shed toward him. Hillman “made eye contact with him for one or two seconds” and could see the right half of his body. Hillman recognized him as Evans, whom he had contacted 15 to 20 times before, and whom he knew had short hair. On this occasion, Evans was wearing blue jeans and had short hair like the person Officer Hillman had seen in the pickup truck. Evans turned around and walked away, out of Hillman’s sight.
At trial, Hillman estimated that he saw the person for a couple of seconds. When confronted with his preliminary hearing testimony that he saw him for a “split second, ” Hillman testified that his recollection was one or two seconds.
Officer Hillman did not pursue Evans, because he did not want to leave the rifle in the truck unsecured. Hillman radioed other police units to patrol the front of the mall to locate Evans, but they were unable to find him.
Meanwhile, Officer Hillman returned to the truck and removed the rifle, which turned out to be loaded. Hillman also found a box of.22-caliber ammunition in the truck, as well as a.223-caliber magazine for an assault rifle. Hillman secured the rifle and the ammunition in his patrol car. Accepted by the court as an expert with respect to firearms, Officer Hillman opined at trial that the rifle was a firearm and that the box of ammunition contained the same or similar annunition as was chambered in the rifle.
Officer Hillman called in the vehicle identification number of the truck and learned that Evans was not the registered owner. Hillman remained with the truck for 20-25 minutes until it was towed. During that time, no one claimed the truck or asked that it not be towed. After it was towed, no one called the police to inquire about its location.
The jury was informed, based on the stipulation of the parties, that Evans had previously been convicted of a felony.
B. Jury Verdict and Sentence
The jury found Evans guilty of being an ex-felon in possession of a firearm (§ 12021, subd. (a)(1)) and in possession of ammunition (§ 12316, subd. (b)(1)). Evans waived his right to a jury trial on the allegations of a prior strike conviction and prior prison term, and the court found those allegations to be true.
Evans was sentenced to five years in state prison, as follows: the middle term of two years on count one, doubled to four years for the prior strike conviction; a consecutive one-year term for the prior prison term; and a concurrent term of two years on count two.
This appeal followed.
II. DISCUSSION
Evans contends there was insufficient evidence to support his conviction for possessing the gun and ammunition as an ex-felon. He further contends the court erroneously instructed the jury with CALCRIM No. 372, pertaining to flight from the scene. Neither contention has any merit.
A. Substantial Evidence
Evans stipulated that he had a prior felony conviction. Conviction on counts one and two therefore required the prosecution to prove, beyond a reasonable doubt, that Evans owned, purchased, received, or had in his possession or under his control a firearm and ammunition. (§§ 12021, subd. (a); 12316, subd. (b)(1).) To prove constructive possession, the prosecutor had to prove that Evans had knowledge of and dominion over the weapon and ammunition. (See, e.g., People v. Llamas (1997) 51 Cal.App.4th 1729, 1743.)
Officer Hillman observed an individual with short brown hair and blue jeans in the driver’s seat of a dark green Ford pickup that contained, in plain view, a firearm and ammunition. Evans does not dispute that this evidence was sufficient to establish that the person in the driver’s seat of the pickup truck was in possession of the firearm and ammunition. Rather, he contends there is insufficient evidence that he was the person in the truck.
Substantial evidence supports the conclusion that Evans was the person Officer Hillman saw in the truck. Hillman saw that the person in the green Ford pickup truck had short brown hair and was wearing blue jeans as he walked toward a building 60 feet away. When Hillman looked towards that building, he saw peering at him from around the building a person with short brown hair and blue jeans, like the person who had been in the truck. Based on 15 to 20 prior encounters, Hillman recognized this person to be Evans. Furthermore, Evans was seen driving a green Ford pickup truck just three months earlier. From this evidence it could reasonably be inferred beyond a reasonable doubt that Evans was the person in the truck with the rifle and ammunition in plain view. There was substantial evidence of possession for purposes of section 12021, subdivision (a)(1). (See People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410 [§ 12021, subd. (a) committed “the instant the felon in any way has a firearm within his control”]; People v. Hurtado (1996) 47 Cal.App.4th 805, 813 [“section 12021 prohibits a convicted felon from possessing a firearm even momentarily except in self-defense, defense of others, or as a result of legal necessity”].)
Evans argues that he was not the truck’s registered owner. However, it was not necessary for the prosecution to prove that Evans owned the truck, only that he possessed the firearm and ammunition. Exclusive possession or ownership need not be shown. (People v. Cordova (1979) 97 Cal.App.3d 665, 669; People v. Hunt (1963) 221 Cal.App.2d 224.)
Evans also argues that many people have short brown hair and wear blue jeans. However, there are not many people who have short brown hair and blue jeans and are identified by an officer as the defendant, and match the description of the person seen inside the truck with the rifle and ammunition, and were peering at the officer as he approached the location to which the truck’s occupant had walked, and were seen to be driving previously the same truck. Nor is there any evidence that anyone with short brown hair and blue jeans – besides Evans – was in the area at the time. In the final analysis, there was evidence from which a jury reasonably could find that Evans was the person in the truck with the rifle and ammunition.
B. Instruction on Flight
Over defense objection, the trial court instructed the jury with 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.”
Evans contends the instruction is argumentative and should not have been given because there was no evidence of flight. He is incorrect.
1. Argumentative
Our Supreme Court has repeatedly held that the CALJIC version of the flight instruction is not argumentative or unconstitutional. (See, e.g., People v. Loker (2008) 44 Cal.4th 691, 705-706 [CALJIC No. 2.52 is not impermissibly argumentative, does not permit the jury to draw impermissible inferences of guilt, and does not create a mandatory presumption]; see People v. Avila (2009)46 Cal.4th 680, 710 [“contrary to defendant’s assertion, a flight instruction does not create an unconstitutional permissible inference or lessen the prosecutor’s burden of proof, and is proper even when identity is at issue.”].)
Evans contends that Loker does not apply here, because CALJIC No. 2.52 is different from CALCRIM No. 372 in the order of its sentences. CALJIC No. 2.52, like the language of section 1127c from which the flight instructions derive, first states that evidence of flight is not in itself sufficient to prove guilt and then states that such evidence may be considered in determining guilt. By contrast, CALCRIM No. 372 tells the jury first that evidence of flight may prove guilt and then states that such evidence is not alone sufficient. He urges that CALCRIM No. 372 is therefore argumentative because it invites the jury to draw an inference of Evans’ guilt from the fact of his flight.
CALJIC No. 2.52 provides, in pertinent part: “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 the 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.” (CALJIC No. 2.52.)
In People v. Paysinger (2009) 174 Cal.App.4th 26, the court rejected essentially the same argument now posited by Evans: “Defendant argues at some length about how the language of CALCRIM No. 372 differs from the language in Penal Code section 1127c, which provides for the giving of a flight instruction when appropriate. [Footnote omitted.] The purpose of this exercise is not entirely clear. Nevertheless, to the extent defendant intends to suggest the CALCRIM instruction is unconstitutional or otherwise unlawful because of these differences, we disagree. [¶] Defendant first points out that CALCRIM No. 372 tells the jury that flight may show awareness of guilt before telling the jury that flight alone is not sufficient to prove guilt, while Penal Code section 1127c communicates those ideas in the opposite order. To the extent defendant suggests this difference makes the CALCRIM instruction constitutionally deficient because the first sentence of the instruction ‘strongly suggests... that evidence of flight is in fact sufficient to show guilt, ’ we are not persuaded. The first sentence of CALCRIM No. 372 suggests no such thing, and in any event the final sentence of the instruction positively refutes any such suggestion. In reviewing an instruction for constitutionality, we do not view it in isolation from the other instructions the court gave and we certainly do not view one part of an instruction in isolation from another part. Viewed as a whole and in light of the other instructions, CALCRIM No. 372 is not unconstitutional.” (Paysinger, at p. 31, italics added.)
The “other instructions” to which the Paysinger court referred included instructions that the jury “ ‘must decide what the facts are, ’ ” it was up to the jury and the jury alone to decide what happened, a defendant in a criminal case is presumed innocent, and a defendant may not be convicted unless the prosecution has proven each essential fact beyond a reasonable doubt. (Paysinger, supra, 174 Cal.App.4th at p. 30.) These instructions were given in the matter before us as well.
While the appellant’s contention in Paysinger may not have been exactly the same as Evans’ contention, it included what Evans argues here regarding the order of the instruction’s sentences. Paysinger quite plainly holds that CALCRIM No. 372 does not impermissibly invite the jury to find the defendant guilty based on flight. We agree and conclude that Evans’ argument is meritless.
2. No Evidence of Flight
Evans next contends that CALCRIM No. 372 should not have been given because the evidence did not show that he fled the scene.
A flight instruction is generally proper where the evidence shows the defendant departed the crime scene under circumstances suggesting that his movement was motivated by consciousness of guilt. (Avila, supra, 46 Cal.4th at p. 710; see People v. Bonilla (2007) 41 Cal.4th 313, 328-329; People v. Abilez (2007) 41 Cal.4th 472, 522; People v. Howard (2008) 42 Cal.4th 1000, 1020-1021.) Flight requires a purpose to avoid being observed or apprehended. (Avila, supra, 46 Cal.4th at p. 710.) Flight does not require the physical act of running. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
As mentioned ante, there was substantial evidence that the person in the green Ford pickup truck was Evans. The evidence was that this person – Evans – turned away as Hillman passed by in his marked patrol vehicle. It is also reasonable to infer from the evidence that, from his vantage point, Evans could see that Hillman’s marked police vehicle was making a U-turn and returning to the green Ford pickup truck, where Evans was sitting with the loaded rifle and a box of ammunition. As Hillman was turning his vehicle around to return to the truck, Evans got out and walked “maybe slightly faster than normal” toward a shed. As Hillman approached the shed and made eye contact with Evans, Evans turned away and disappeared. Hillman testified that he recognized Evans based on 15 to 20 prior contacts, and it can reasonably be inferred from these contacts that Evans also recognized Hillman, and even suspected Hillman was aware of, or could easily ascertain, his status as a felon. It is therefore reasonable to infer that Evans’ movement was motivated by a consciousness of guilt. The instruction was proper.
Respondent asserts that Officer Hillman testified that the man in the truck “turned away and ducked down to avoid being seen, ” citing page 74 of the reporter’s transcript. Actually, Officer Hillman testified that the occupant of the pickup “turned to do something, turning his face away from me and was doing something on the – towards the passenger side of the vehicle.” Nevertheless, the totality of the evidence supported the court’s instruction.
III. DISPOSITION
The judgment is affirmed.
We concur: JONES, P. J., SIMONS, J.
Section 1127c provides: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] ‘The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given.” (Italics added.)