Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050708057
Jones, P.J.
Appellant Michael Patrick Hosier challenges his conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and receiving a motor vehicle as stolen property. (Pen. Code, § 496d, subd. (a).) His sole contention on appeal is the trial court erred by instructing the jury with CALCRIM No. 372, the instruction addressing the issue of a defendant’s flight as consciousness of his or her guilt.
Unless otherwise noted, all further statutory references are to the Penal Code.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of April 25, 2007, Sharon Snyder discovered that her blue 1993 Saturn SL2 sedan was missing and she called the police. The next day, Concord Police Officer Mike Huth and his partner, Chris Loercher, were patrolling in an unmarked Ford Crown Victoria. The car had interior red and blue lights. Huth and Loercher were wearing black uniforms with “a visible police badge sewn over the left front breast pocket and . . . Concord Police Department shoulder patches on [the] shoulder[s].” Each officer also wore a walkie-talkie clipped to his right shoulder. The two officers were part of a “stolen vehicle task force” which searched for stolen cars. Huth had extensive training and experience in the area of vehicle theft; he paid particular attention to Toyotas, Hondas, and Saturns because “[t]hose are the top three cars that are stolen . . . the early 90’s models of those vehicles.”
While Huth and Loercher were driving along Clayton Road in Concord, they saw a blue Saturn a few car lengths ahead of them. Huth performed a license plate check on the Saturn. Seconds later, Huth learned the car was stolen. About eight or nine seconds after Huth pulled behind the Saturn, it turned onto Market Street and then “immediately” pulled into the All Star gas station. As Huth explained, “Right when we got behind [the Saturn], we didn’t know if the driver knew that we were behind him. So at the time that we noticed the car and started informing our dispatchers of what was occurring, I’d say it was no less than about eight, nine seconds when the [Saturn] turned onto Market Street and then immediately turned into a gas station . . . maybe a hundred yards past Clayton Road.” The Saturn parked in front of the gas station’s convenience store. Huth pulled into the gas station and turned on the car’s lights and sirens. He and Loercher approached the Saturn and saw appellant in the driver’s seat and two women in the car. Huth and Loercher arrested all three occupants.
Huth found a key in the ignition and tried, unsuccessfully, to remove it. The key was bent, but it did not appear to be shaved. Huth pulled on the key for about 10 seconds, but “it didn’t move.” Another officer eventually removed the key “by force.” Huth explained that car thieves use shaved keys and other objects, such as scissors, to start the ignition of a stolen car. Huth did not see any wires hanging underneath the steering wheel, nor did he notice any external damage to the ignition.
A shaved key is one that has been filed down so that it can be used to start the ignitions of multiple cars.
Concord Police Officer Alison Bevan went to the All Star gas station to assist Huth and Loercher. Bevan did not notice any damage to the Saturn’s ignition or to the exterior but she did have a “hard time removing” the key from the ignition because it “was kind of shoved in there, forced in there.” Bevan tried “turning the key but it wouldn’t come out,” so she “wiggle[d]” the key for “a minute or two” until it came out. Bevan thought this was unusual. The key was difficult to remove because it was a duplicate key and was not made for a Saturn.
The police returned Snyder’s car to her, but she did not recognize the key. Her key was engraved with the word “Saturn” on it; the key that was returned to her had the word “Bell” printed on it.
At trial, the prosecution introduced evidence regarding appellant’s prior convictions of possessing a stolen vehicle (Veh. Code, § 10851, subd. (a)) and of receiving a motor vehicle as stolen property (§ 496d, subd. (a)). Both convictions concerned Saturns.
After the close of evidence, the parties discussed jury instructions, specifically CALCRIM No. 372. The prosecutor stated that she intended to argue that appellant “looked in his rearview mirror and saw the officer in uniform behind him and he pulled into the gas station and tried to get away.” Defense counsel objected to the instruction on the grounds that the “facts don’t support it.” Over defense counsel’s objection, the court delivered CALCRIM No. 372 to the jury. That instruction provided as follows: “If the defendant fled immediately after the crime was committed or after he was accused of committing the crime, 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.”
A jury convicted appellant of unlawfully or driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and receiving stolen property, a motor vehicle (§ 496d, subd. (a)). The court found that appellant’s prior conviction allegations were true and sentenced him to a three-year prison term.
DISCUSSION
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.”
The Supreme Court has interpreted section 1127c as “ ‘mandating a rule that if there is evidence identifying the person who fled as the defendant, and if such evidence is relied on as tending to show guilt, then a flight instruction is proper.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 521-522 (Abilez), quoting People v. Roberts (1992) 2 Cal.4th 271, 310; see also People v. Jurado (2006) 38 Cal.4th 72, 126.) Flight “ ‘ “requires neither the physical act of running nor the reaching of a far-away haven.” ’ ” (Abilez, supra, 41 Cal.4th at p. 522.) But “[e]vidence that a defendant left the scene [of a crime] is not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observed or arrested.’ ” (People v. Bonilla (2007) 41 Cal.4th 313, 328 (Bonilla), quoting People v. Crandell (1988) 46 Cal.3d 833, 869, abrogated on another point in People v. Crayton (2002) 28 Cal.4th 346, 365-366; see also Abilez, supra, 41 Cal.4th at p. 522.) Put another way, “ ‘[a] flight instruction is proper whenever evidence of the circumstances of [a] defendant’s departure from the crime scene . . . logically permits an inference that his [or her] movement was motivated by guilty knowledge.’ ” (Abilez, supra, 41 Cal.4th 472, 522, quoting People v. Turner (1990) 50 Cal.3d 668, 694.)
Here, the prosecutor argued that appellant’s flight reflected consciousness of his guilt. Appellant, however, argues that giving the flight instruction was improper because there was no evidence that he actually fled, nor any evidence to support a reasonable inference that he fled. We disagree. In Bonilla, the Supreme Court considered and rejected a similar contention and held that “[t]o obtain the instruction [on flight], the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence.” (Bonilla, supra, 41 Cal.4th at p. 328.)
Here as in Bonilla, the prosecution was not required to establish that appellant fled from Huth and Loercher, only that there was evidence from which a jury could find that he fled and infer from that flight appellant’s consciousness of guilt. (See People v. Bradford (1997) 14 Cal.4th 1005, 1055 [flight instruction proper where there is “sufficient evidence to warrant instructing the jury to determine whether flight occurred, and, if so, what weight to accord such flight”].) There was sufficient evidence to warrant a flight instruction here. Huth testified that the Saturn turned onto Market Street approximately eight or nine seconds after the officers’ car pulled up a few car lengths behind it. Huth also testified that the Saturn, after turning onto Market Street, “immediately” pulled into the All Star gas station. Despite the fact that the officers had not turned on their red and blue emergency lights, nor ordered appellant to stop, appellant made two right turns in close succession in what could be interpreted as an attempt to “ ‘avoid being observed or arrested.’ ” (Abilez, supra, 41 Cal.4th at p. 522.)
That Huth testified he was not certain whether appellant knew the officers’ car was behind him does not render this inference unreasonable. The jury could reasonably infer that appellant knew there was a police car behind him based on the following evidence: (1) he made two right turns in a rapid manner; (2) he had experience as a car thief and presumably had interacted with the police on at least two prior occasions; (3) the officers’ car was the same make and model as marked patrol vehicles and had interior emergency lights; and (4) the officers were wearing uniforms with police patches and walkie talkies. The jury could also reasonably infer that appellant — having realized that police officers were driving behind him — decided to try to get away from the officers’ car.
Appellant suggests that the jury could attribute appellant’s conduct to an innocent explanation. We agree, but the jury could also infer that appellant’s decision to make two turns in rapid succession and to pull into a gas station — while being followed by police officers — was consistent with the prosecution’s theory that appellant knew the car was stolen. (See, e.g., Bonilla, supra, 41 Cal.4th at p. 329; Turner, supra, 50 Cal.3d at p. 695 [defendant’s abrupt departure from crime scene could have been a “normal response[ ] to a grisly homicide . . . but that is not the only reasonable inference”].)
We agree with appellant that this is not a situation like the one presented in other cases where the defendant physically runs away from a crime scene. (See, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 152 [witnesses saw defendant running from the crime scene looking nervous and scared].) But the Supreme Court has never held that a flight instruction is proper only where the defendant runs away from the crime scene or from the police. The court has held that a flight instruction is proper where a defendant’s conduct indicates “ ‘ “a purpose to avoid being observed or arrested,” ’ ” i.e., where the defendant behaves suspiciously when leaving a crime scene. (Abilez, supra, 41 Cal.4th at p. 522 [flight instruction proper where defendant left the victim’s house in victim’s car immediately after she was killed]; People v. Pensinger (1991) 52 Cal.3d 1210, 1244 [jury could infer that sudden change in defendant’s plans showed consciousness of guilt]; see also People v. Cowger (1988) 202 Cal.App.3d 1066, 1076 [“[t]he circuitous route taken by defendant was indicative ‘of an attempt to avoid contact with the police’ ”].) Here, the jury could infer that appellant’s decision to turn onto Market Street shortly after the officers’ car pulled up behind the Saturn, and his decision to “immediately” turn into a gas station, were an attempt to avoid being observed or arrested by the police officers. (Abilez, supra, 41 Cal.4th at p. 522.) Accordingly, the court properly gave the flight instruction.
To demonstrate error, appellant relies heavily on comments the court made before agreeing to deliver the flight instruction. When the prosecutor requested the flight instruction, the court remarked that it did not think that the case was a “normal flight-type” of case and that it did not “see . . . evidence of flight” because the officers’ car was unmarked and because there was no evidence that appellant looked in his rearview mirror before making the two turns. The court also noted, however, that the prosecutor’s version of the events was “an interpretation of the evidence” and gave the instruction. The problem with appellant’s reliance on the court’s comments is that they are not — as appellant suggests — “findings;” nor are they in any way binding on this court. We review the lower court’s decision to give the flight instruction, not the court’s expression of ambivalence before deciding to give that instruction. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451 [“[b]ecause we review the correctness of the order, and not the court’s reasons, we will not consider the court’s oral comments or use them to undermine the order ultimately entered”].) In any event, the court’s comments are one reasonable interpretation of the evidence. Another equally reasonable interpretation of the evidence is that urged by the prosecution: appellant saw the police officers and tried to evade them because he knew he was driving a stolen car.
Next, appellant contends the jury instruction unfairly suggested to the jury that he fled from the police where there was no evidence to support such an inference. We disagree. As in Abilez, CALCRIM No. 372 “ ‘did not assume that flight was established. . . .’ ” (Abilez, supra, 41 Cal.4th at p. 522.) Instead, the instruction left “ ‘that factual determination and its significance to the jury.’ ” It “ ‘merely permitted the jury to consider evidence of flight in deciding defendant’s guilt or innocence; it did not suggest that the jury should consider such evidence as dispositive.’ ” (Ibid.) CALCRIM No. 372 did not induce the jury to find consciousness of guilt in the absence of flight; it informed the jury that flight, if proved, could be considered in deciding appellant’s guilt or innocence.
Finally, any error in instructing the jury on flight was harmless because it is not reasonably probable that a result more favorable to appellant would have been reached absent the alleged error. (People v. Watson (1956) 46 Cal.2d 818, 836.) There was ample evidence of appellant’s guilt. The police officers found appellant driving a car without the owner’s permission. When the police apprehended appellant, the key in the Saturn’s ignition was not made for a Saturn and was jammed into the ignition. This evidence created a reasonable inference that appellant knew the Saturn was stolen and that he intended to deprive Snyder of possession of it. (See People v. Green (1995) 34 Cal.App.4th 165, 181 [evidence was sufficient to establish defendant had requisite intent to deprive the owner of possession of the car where the defendant did not have permission to drive the car, was discovered driving it, and operated it “without an ignition key and by means of a screwdriver, which is a common method used by car thieves”].) And the fact that each of appellant’s prior convictions — for unlawfully taking or driving a motor vehicle and for receiving a motor vehicle as stolen property — involved a Saturn was compelling evidence that he had the requisite intent here.
Second, the jury was instructed to determine for itself what the facts were and also to disregard inapplicable jury instructions. (CALCRIM No. 200.) The court advised the jury that “[y]ou must decide what the facts are. It is up to you exclusively to decide what happened based only on the evidence that’s been presented to you in this trial.” The court also instructed the jury that “[s]ome of these instructions may not apply, depending on your finding about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you’ve decided what the facts are, follow the instructions that do apply to the facts as you find them.” If the jury believed that there was insufficient evidence of flight to warrant the flight instruction, it was instructed to disregard the instruction.
Accordingly, any error in instructing the jury with CALCRIM No. 372 was harmless.
DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Needham, J.