Opinion
A149806
01-31-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO EVANGELISTA HUBBELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR298522)
Following a jury trial, defendant Roberto Evangelista Hubbell was convicted of attempted first degree burglary and possession of burglar's tools. Defendant's sole contention on appeal is that the trial court erred in giving an instruction patterned on Judicial Council of California, Criminal Jury Instructions, CALCRIM No. 372 (Defendant's Flight). We conclude that the instruction was properly given and, accordingly, affirm.
As given to the jury, the flight instruction stated, "If the defendant fled or otherwise 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's 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." Throughout his appellate briefing, defendant asserts that the flight instruction was improper because his departure from the backyard of the residence was "indicative of, or at least equally indicative of, his decision to abandon any attempt at entering the home." We cannot agree.
"[T]he instruction given adequately conveyed the concept that if flight was found, the jury was permitted to consider alternative explanations for that flight other than defendant's consciousness of guilt." (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Indeed, the jury was expressly instructed on his defense of abandonment as follows: "[I]f a person freely and voluntarily abandons his or her plans before taking a direct step toward committing a burglary, then the person is not guilty of attempted burglary."
Where an instruction allows the jury to draw a permissive inference from defendant's flight, the instruction is proper so long as there is evidence from which the jury could reasonably infer a consciousness of guilt. (People v. Pensinger (1991) 52 Cal.3d 1210, 1245.) In this case, the evidence at trial was more than sufficient to warrant such an instruction. Specifically, at trial, Officer Lucy Makimoto of the Vacaville Police Department testified that on the day in question, she was dispatched to investigate an attempted residential break in. Although she did not activate the siren on her patrol car and approached the scene quietly, as she did so, she heard "what sounded to me like someone hitting the fence between the two houses there." At that point, she saw defendant jump the fence from the backyard into the driveway of the residence. Makimoto proceeded to interview defendant. A recording of the interview was played for the jury. According to the transcript of the interview, when Makimoto asked defendant why he had stopped trying to break into the homeowner's residence, he explained, "I thought I saw him," twice reiterating, "I thought I saw his shoe." Taken together, this evidence was more than sufficient to support the flight instruction given by the trial court.
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------